G.R. No.
108017 April 3, 1995 CORPORATION
MARIA BENITA A. DULAY, in her own
behalf and in behalf of the minor children
KRIZTEEN ELIZABETH, BEVERLY
MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former
Eighth Division, HON. TEODORO P.
REGINO, in his capacity as Presiding
Judge of the Regional Trial Court
National Capital Region, Quezon City,
Br. 84, SAFEGUARD INVESTIGATION
AND SECURITY CO., INC., and
SUPERGUARD SECURITY
CORPORATION, respondents.
BIDIN, J.:
This petition for certiorari prays for the
reversal of the decision of the Court of
Appeals dated October 29, 1991 in CA-
G.R. CV No. 24646 which affirmed the
order of the Regional Trial Court
dismissing Civil Case No. Q-89-1751,
and its resolution dated November 17,
1991 denying herein, petitioner's motion
for reconsideration.
The antecedent facts of the case are as
follows:
On December 7, 1988, an altercation
between Benigno Torzuela and Atty.
Napoleon Dulay occurred at the "Big
Bang Sa Alabang," Alabang Village,
Muntinlupa as a result of which Benigno
Torzuela, the security guard on duty at
the said carnival, shot and killed Atty.
Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay,
widow of the deceased Napoleon Dulay,
in her own behalf and in behalf of her
minor children, filed on February 8, 1989
an action for damages against Benigno
Torzuela and herein private respondents
Safeguard Investigation and Security
Co., Inc., ("SAFEGUARD") and/or
Superguard Security Corp.
("SUPERGUARD"), alleged employers
of defendant Torzuela. The complaint,
docketed as Civil Case No. Q-89-1751
among others alleges the following:
1. . . .
Defendants SAFEGUARD
INVESTIGATION AND SECURITY CO.,
INC., (Defendant Safeguard) and
SUPERGUARD SECURITY
(Defendant on the ground that the complaint does
Superguard) are corporations duly
organized and existing in accordance
with Philippine laws, with offices at 10th
Floor, Manufacturers Building, Inc.,
Plaza Santa Cruz, Manila. They are
impleaded as alternative defendants for,
while the former appears to be the
employer of defendant BENIGNO
TORZUELA (defendant TORZUELA),
the latter impliedly acknowledged
responsibility for the acts of defendant
TORZUELA by extending its sympathies
to plaintiffs.
Defendant BENIGNO TORZUELA is of
legal age, an employee of defendant
SAFEGUARD and/or defendant
SUPERGUARD and, at the time of the
incident complained of, was under their
control and supervision. . . .
3. On December 7, 1988 at around 8:00
a.m., defendant TORZUELA, while he
was on duty as security guard at the "Big
Bang sa Alabang," Alabang Village,
Muntinlupa, Metro Manila shot and killed
NAPOLEON V. DULAY with a .38 caliber
revolver belonging to defendant
SAFEGUARD, and/or SUPERGUARD
(per Police Report dated January 7,
1989, copy attached as Annex A);
4. The incident resulting in the death of
NAPOLEON V. DULAY was due to the
concurring negligence of the defendants.
Defendant TORZUELA'S wanton and
reckless discharge of the firearm issued
to him by defendant SAFEGUARD
and/or SUPERGUARD was the
immediate and proximate cause of the
injury, while the negligence of defendant
SAFEGUARD and/or SUPERGUARD
consists in its having failed to exercise
the diligence of a good father of a family
in the supervision and control of its
employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual,
compensatory, moral and exemplary
damages, and attorney's fees. The said
Civil Case No. Q-89-1751 was raffled to
Branch 84 of the Regional Trial Court of
Quezon City, presided by respondent
Judge Teodoro Regino.
On March 2, 1989, private respondent
SUPERGUARD filed a Motion to Dismiss
Therefore, the inclusion of private
not state a valid cause of action.
SUPERGUARD claimed that Torzuela's
act of shooting Dulay was beyond the
scope of his duties, and that since the
alleged act of shooting was committed
with deliberate intent (dolo), the civil
liability therefor is governed by Article
100 of the Revised Penal Code, which
states:
Art. 100. Civil liability of a person guilty of
a felony. — Every person criminally liable
for a felony is also civilly liable.
Respondent SUPERGUARD further
alleged that a complaint for damages
based on negligence under Article 2176
of the New Civil Code, such as the one
filed by petitioners, cannot lie, since the
civil liability under Article 2176 applies
only to quasi-offenses under Article 365
of the Revised Penal Code. In addition,
the private respondent argued that
petitioners' filing of the complaint is
premature considering that the
conviction of Torzuela in a criminal case
is a condition sine qua non for the
employer's subsidiary liability (Rollo, p.
55-59).
Respondent SAFEGUARD also filed a
motion praying that it be excluded as
defendant on the ground that defendant
Torzuela is not one of its employees
(Rollo, p. 96).
Petitioners opposed both motions,
stating that their cause of action against
the private respondents is based on their
liability under Article 2180 of the New
Civil Code, which provides:
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 caused by their employees and
household helpers acting within the
scope of their assigned tasks, even
though the former are not engaged in any
business or an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against
alternative defendants is allowed under
Rule 3, Section 13 of the Rules of Court.
cover acts that are intentional and
respondents as alternative defendants in
the complaint is justified by the following:
the Initial Investigation Report prepared
by Pat. Mario Tubon showing that
Torzuela is an employee of
SAFEGUARD; and through overt acts,
SUPERGUARD extended its sympathies
to petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March
21, 1989 charging Benigno Torzuela with
homicide was filed before the Regional
Trial Court of Makati and was docketed
as Criminal Case No. 89-1896.
On April 13, 1989, respondent Judge
Regino issued an order granting
SUPERGUARD'S motion to dismiss and
SAFEGUARD'S motion for exclusion as
defendant. The respondent judge held
that the complaint did not state facts
necessary or sufficient to constitute a
quasi-delict since it does not mention any
negligence on the part of Torzuela in
shooting Napoleon Dulay or that the
same was done in the performance of his
duties. Respondent judge ruled that
mere allegations of the concurring
negligence of the defendants (private
respondents herein) without stating the
facts showing such negligence are mere
conclusions of law (Rollo, p. 106).
Respondent judge also declared that the
complaint was one for damages founded
on crimes punishable under Articles 100
and 103 of the Revised Penal Code as
distinguished from those arising from,
quasi-delict. The dispositive portion of
the order dated April 13, 1989 states:
WHEREFORE, this Court holds that in
view of the material and ultimate facts
alleged in the verified complaint and in
accordance with the applicable law on
the matter as well as precedents laid
down by the Supreme Court, the
complaint against the alternative
defendants Superguard Security
Corporation and Safeguard Investigation
and Security Co., Inc., must be and (sic)
it is hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the
respondent court and petitioners' motion
for reconsideration thereof was denied.
Petitioners take exception to the assailed
decision and insist that quasi-delicts are
not limited to acts of negligence but also
voluntary, citing Andamo v. IAC (191
SCRA 195 [1990]). Thus, petitioners
insist that Torzuela' s act of shooting
Napoleon Dulay constitutes a quasi-
delict actionable under Article 2176 of the
New Civil Code.
Petitioners further contend that under
Article 2180 of the New Civil Code,
private respondents are primarily liable
for their negligence either in the selection
or supervision of their employees. This
liability is independent of the employee's
own liability for fault or negligence and is
distinct from the subsidiary civil liability
under Article 103 of the Revised Penal
Code. The civil action against the
employer may therefore proceed
independently of the criminal action
pursuant to Rule 111 Section 3 of the
Rules of Court. Petitioners submit that
the question of whether Torzuela is an
employee of respondent SUPERGUARD
or SAFEGUARD would be better
resolved after trial.
Moreover, petitioners argue that
Torzuela's act of shooting Dulay is also
actionable under Article 33 of the New
Civil Code, to wit:
Art. 33. In cases of defamation, fraud,
and physical injuries, a civil action for
damages, entirely separate and distinct
from the criminal action, may be brought
by the injured party. Such civil action
shall proceed independently of the
criminal prosecution, and shall require
only a preponderance of evidence.
(Emphasis supplied)
In the same vein, petitioners cite Section
3, Rule 111 of the Rules of Court which
provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed
independently — In the cases provided
for in Articles 32, 33, 34 and 2176 of the
Civil Code of the Philippines, the
independent civil action which has been
reserved may be brought by the offended
party, shall proceed independently of the
criminal action, and shall require only a
preponderance of evidence. (Emphasis
supplied)
The term "physical injuries" under Article
33 has been held to include
consummated, frustrated and attempted
homicide. Thus, petitioners maintain that
Torzuela's prior conviction is
unnecessary since the civil action can
proceed independently of the criminal
action. On the other hand, it is the private
respondents' argument that since the act
was not committed with negligence, the
petitioners have no cause of action under
Articles 2116 and 2177 of the New Civil
Code. The civil action contemplated in
Article 2177 is not applicable to acts
committed with deliberate intent, but only
applies to quasi-offenses under Article
365 of the Revised Penal Code.
Torzuela's act of shooting Atty. Dulay to
death, aside from being purely personal,
was done with deliberate intent and could
not have been part of his duties as
security guard. And since Article 2180 of
the New Civil Code covers only: acts
done within the scope of the employee's
assigned tasks, the private respondents
cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is
being prosecuted for homicide for the
fatal shooting of Napoleon Dulay. Rule
111 of the Rules on Criminal Procedure
provides:
Sec. 1. Institution of criminal and civil
actions. When a criminal action is
instituted, the civil action for the recovery
of civil liability is impliedly instituted with
the criminal action, unless the offended
party waives the civil action , reserves his
right to institute it separately or institutes
the civil action prior to the criminal action.
Such civil action includes recovery of
indemnity under the Revised Penal
Code, and damages under Articles 32,
33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or
omission of the accused. (Emphasis
supplied)
It is well-settled that the filing of an
independent civil action before the
prosecution in the criminal action
presents evidence is even far better than
a compliance with the requirement of
express reservation (Yakult Philippines
v. Court of Appeals, 190 SCRA 357
[1990]). This is precisely what the
petitioners opted to do in this case.
However, the private respondents
opposed the civil action on the ground
that the same is founded on a delict and
not on a quasi-delict as the shooting was
not attended by negligence. What is in
dispute therefore is the nature of the
petitioner's cause of action.
The nature of a cause of action is
determined by the facts alleged in the
complaint as constituting the cause of
action (Republic v. Estenzo, 158 SCRA
282 [1988]). The purpose of an action or
suit and the law to govern it is to be
determined not by the claim of the party
filing the action, made in his argument or
brief, but rather by the complaint itself, its
allegations and prayer for relief. (De
Tavera v. Philippine Tuberculosis
Society, 112 SCRA 243 [1982]). An
examination of the complaint in the
present case would show that the
plaintiffs, petitioners herein, are invoking
their right to recover damages against
the private respondents for their
vicarious responsibility for the injury
caused by Benigno Torzuela's act of
shooting and killing Napoleon Dulay, as
stated in paragraphs 1 and 2 of the
complaint.
Article 2176 of the New Civil Code
provides:
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.
Contrary to the theory of private
respondents, there is no justification for
limiting the scope of Article 2176 of the
Civil Code to acts or omissions resulting
from negligence. Well-entrenched is the
doctrine that article 2176 covers not only
acts committed with negligence, but also
acts which are voluntary and intentional.
As far back as the definitive case of
Elcano v. Hill (77 SCRA 98 [1977]), this
Court already held that:
. . . Article 2176, where it refers to "fault
or negligence," 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 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 quasi-delict
only and not as a crime is not
extinguished 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. (Emphasis
supplied)
The same doctrine was echoed in the
case of Andamo v. Intermediate
Appellate Court (191 SCRA 195 [1990]),
wherein the Court held:
Article 2176, whenever it refers to "fault
or negligence," covers not only acts
criminal in character, whether intentional
and voluntary or negligent.
Consequently, a civil action lies against
the offender in a criminal act, whether or
not he is prosecuted or found guilty or
acquitted, provided that the offended
party is not allowed, (if the tortfeasor is
actually also charged 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.
[citing Virata v. Ochoa, 81 SCRA 472]
(Emphasis supplied)
Private respondents submit that the word
"intentional" in the Andamo case is
inaccurate obiter, and should be read as
"voluntary" since intent cannot be
coupled with negligence as defined by
Article 365 of the Revised Penal Code. In
the absence of more substantial reasons,
this Court will not disturb the above
doctrine on the coverage of Article 2176.
Private respondents further aver that
Article 33 of the New Civil Code applies
only to injuries intentionally committed
pursuant to the ruling in Marcia v. CA
(120 SCRA 193 [1983]), and that the
actions for damages allowed thereunder
are ex-delicto. However, the term
"physical injuries" in Article 33 has
already been construed to include bodily
injuries causing death (Capuno v. Pepsi-
Cola Bottling Co. of the Philippines, 121
Phil. 638 [1965); Carandang v. Santiago,
97 Phil. 94 [1955]). It is not the crime of
physical injuries defined in the Revised
Penal Code. It includes not only physical
injuries but also consummated,
frustrated, and attempted homicide
(Madeja v. Caro, 126 SCRA 293 [1983]).
Although in the Marcia case (supra), it
was held that no independent civil action
may be filed under Article 33 where the
crime is the result of criminal negligence,
it must be noted however, that Torzuela,
the accused in the case at bar, is
charged with homicide, not with reckless
imprudence, whereas the defendant
in Marcia was charged with reckless
imprudence. Therefore, in this case, a
civil action based on Article 33 lies.
Private respondents also contend that
their liability is subsidiary under the
Revised Penal Code; and that they are
not liable for Torzuela's act which is
beyond the scope of his duties as a
security guard. It having been
established that the instant action is
not ex-delicto, petitioners may proceed
directly against Torzuela and the private
respondents. Under Article 2180 of the
New Civil Code as aforequoted, when an
injury is caused by the negligence of the
employee, there instantly arises a
presumption of law that there was
negligence on the part of the master or
employer either in the selection of the
servant or employee, or in supervision
over him after selection or both (Layugan
v. Intermediate Appellate Court, 167
SCRA 363 [1988]). The liability of the
employer under Article 2180 is direct and
immediate; it is not conditioned upon
prior recourse against the negligent
employee and a prior showing of the
insolvency of such employee (Kapalaran
Bus Lines v. Coronado, 176 SCRA 792
[1989]). Therefore, it is incumbent upon
the private respondents to prove that
they exercised the diligence of a good
father of a family in the selection and
supervision of their employee.
Since Article 2176 covers not only acts of
negligence but also acts which are
intentional and voluntary, it was therefore
erroneous on the part of the trial court to
dismiss petitioner's complaint simply
because it failed to make allegations of
attendant negligence attributable to
private respondents.
With respect to the issue of whether the
complaint at hand states a sufficient
cause of action, the general rule is that
the allegations in a complaint are
sufficient to constitute a cause of action
against the defendants if, admitting the
facts alleged, the court can render a valid
judgment upon the same in accordance
with the prayer therein. A cause of action
exist if the following elements are
present, namely: (1) a right in favor of the
plaintiff by whatever means and under
whatever law it arises or is created; (2)
an obligation on the part of the named
defendant to respect or not to violate
such right; and (3) an act or omission on
the part of such defendant violative of the
right of the plaintiff or constituting a
breach of the obligation of the defendant
to the plaintiff for which the latter may
maintain an action for recovery of
damages (Del Bros Hotel Corporation v.
CA, 210 SCRA 33 [1992]); Development
Bank of the Philippines v. Pundogar, 218
SCRA 118 [1993])
This Court finds, under the foregoing
premises, that the complaint sufficiently
alleged an actionable breach on the part
of the defendant Torzuela and
respondents SUPERGUARD and/or
SAFEGUARD. It is enough that the
complaint alleged that Benigno Torzuela
shot Napoleon Dulay resulting in the
latter's death; that the shooting occurred
while Torzuela was on duty; and that
either SUPERGUARD and/or
SAFEGUARD was Torzuela's employer
and responsible for his acts. This does
not operate however, to establish that the
defendants below are liable. Whether or
not the shooting was actually reckless
and wanton or attended by negligence
and whether it was actually done within
the scope of Torzuela's duties; whether
the private respondents SUPERGUARD
and/or SAFEGUARD failed to exercise
the diligence of a good father of a family;
and whether the defendants are actually
liable, are questions which can be better
resolved after trial on the merits where
each party can present evidence to prove
their respective allegations and
defenses. In determining whether the
allegations of a complaint are sufficient to
support a cause of action, it must be
borne in mind that the complaint does not
have to establish or allege the facts
proving the existence of a cause of action
at the outset; this will have to be done at
the trial on the merits of the case (Del
Bros Hotel Corporation v. CA, supra). If
the allegations in a complaint can furnish
a sufficient basis by which the complaint
can be maintained, the same should not
be dismissed regardless of the defenses
that may be assessed by the defendants
(Rava Dev't. Corp. v. CA, 211 SCRA 152
[1992] citing Consolidated Bank & Trust
Corporation v. Court of Appeals, 197
SCRA 663 [1991]). To sustain a motion
to dismiss for lack of cause of action, the
complaint must show that the claim for
relief does not exist rather than that a
claim has been defectively stated, is
ambiguous, indefinite or uncertain (Azur
v. Provincial Board, 27 SCRA 50 [1969]).
Since the petitioners clearly sustained an
injury to their rights under the law, it
would be more just to allow them to
present evidence of such injury.
WHEREFORE, premises considered,
the petition for review is hereby
GRANTED. The decision of the Court of
Appeals as well as the Order of the
Regional Trial Court dated April 13, 1989
are hereby REVERSED and SET ASIDE.
Civil Case No. Q-89-1751 is remanded to
the Regional Trial Court for trial on the
merits. This decision is immediately
executory.
SO ORDERED.
[G.R. No. 151452. July 29, 2005]
SPS. ANTONIO C. SANTOS and
ESPERANZA C. SANTOS, NORA
BARNALO, BELINDA LUMACTAD,
MARIENELA DY, NIKKA SANTOS and
LEONARDO FERRER, petitioners, vs.
HON. NORMANDIE B. PIZARDO, as
Presiding Judge, RTC of Quezon City,
Branch 101, DIONISIO M SIBAYAN, and
VIRON TRANSPORTATION
COMPANY, INC., represented by
VIRGILIO Q. RONDARIS,
President/Chairman, respondents.
DECISION
TINGA, J.:
In this Petition for Review on Certiorari[1]
dated March 1, 2002, petitioners assail
the Resolutions of the Court of Appeals
dated September 10, 2001 and January
9, 2002, respectively dismissing their
petition for certiorari and denying their
motion for reconsideration, arising from
the dismissal of their complaint to
recover civil indemnity for the death and
physical injuries of their kin.
The following facts are matters of record.
In an Information dated April 25, 1994,
Dionisio M. Sibayan (Sibayan) was
charged with Reckless Imprudence
Resulting to Multiple Homicide and
Multiple Physical Injuries in connection
with a vehicle collision between a
southbound Viron Transit bus driven by
Sibayan and a northbound Lite Ace Van,
which claimed the lives of the vans driver
and three (3) of its passengers, including
a two-month old baby, and caused
physical injuries to five (5) of the vans
passengers. After trial, Sibayan was
convicted and sentenced to suffer the
penalty of imprisonment for two (2)
years, four (4) months and one (1) day to
four (4) years and two (2) months.
However, as there was a reservation to
file a separate civil action, no
pronouncement of civil liability was made
by the municipal circuit trial court in its
decision promulgated on December 17,
1998.[2]
On October 20, 2000, petitioners filed a
complaint for damages against Sibayan,
Viron Transit and its
President/Chairman, Virgilio Q.
Rondaris, with the Regional Trial Court of
Quezon City, pursuant to their
reservation to file a separate civil
action.[3] They cited therein the
judgment convicting Sibayan.
Viron Transit moved to dismiss the
complaint on the grounds of improper
service of summons, prescription and
laches, and defective certification of non-
forum shopping. It also sought the
dropping of Virgilio Q. Rondaris as
defendant in view of the separate
personality of Viron Transit from its
officers.[4]
Petitioners opposed the motion to
dismiss contending, among others, that
the right to file a separate action in this
case prescribes in ten (10) years
reckoned from the finality of the judgment
in the criminal action. As there was no
appeal of the decision convicting
Sibayan, the complaint which was filed
barely two (2) years thence was clearly
filed within the prescriptive period.
The trial court dismissed the complaint
on the principal ground that the cause of
action had already prescribed. According
to the trial court, actions based on quasi
delict, as it construed petitioners cause of
action to be, prescribe four (4) years from
the accrual of the cause of action. Hence,
notwithstanding the fact that petitioners
reserved the right to file a separate civil
action, the complaint ought to be
dismissed on the ground of
prescription.[5]
Improper service of summons was
likewise cited as a ground for dismissal
of the complaint as summons was served
through a certain Jessica Ubalde of the
legal department without mentioning her
designation or position.
Petitioners filed a motion for
reconsideration pointing out yet again
that the complaint is not based on quasi
delict but on the final judgment of
conviction in the criminal case which
prescribes ten (10) years from the finality
of the judgment.[6] The trial court denied
petitioners motion for reconsideration
reiterating that petitioners cause of action
was based on quasi delict and had
prescribed under Article 1146 of the Civil
Code because the complaint was filed
more than four (4) years after the
vehicular accident.[7] As regards the
improper service of summons, the trial
court reconsidered its ruling that the
complaint ought to be dismissed on this
ground.
Petitioners filed a petition for certiorari
with the Court of Appeals which
dismissed the same for error in the
choice or mode of appeal.[8] The
appellate court also denied petitioners
motion for reconsideration reasoning that
even if the respondent trial court judge
committed grave abuse of discretion in
issuing the order of dismissal, certiorari
is still not the permissible remedy as
appeal was available to petitioners and
they failed to allege that the petition was
brought within the recognized exceptions
for the allowance of certiorari in lieu of
appeal.[9]
In this petition, petitioners argue that a
rigid application of the rule that certiorari
cannot be a substitute for appeal will
result in a judicial rejection of an existing
obligation arising from the criminal
liability of private respondents.
Petitioners insist that the liability sought
to be enforced in the complaint arose ex
delicto and is not based on quasi delict.
The trial court allegedly committed grave
abuse of discretion when it insisted that
the cause of action invoked by petitioners
is based on quasi delict and concluded
that the action had prescribed. Since the
action is based on the criminal liability of
private respondents, the cause of action
accrued from the finality of the judgment
of conviction.
Assuming that their petition with the
appellate court was procedurally flawed,
petitioners implore the Court to exempt
this case from the rigid operation of the
rules as they allegedly have a legitimate
grievance to vindicate, i.e., damages for
the deaths and physical injuries caused
by private respondents for which no civil
liability had been adjudged by reason of
their reservation of the right to file a
separate civil action.
In their Comment[10] dated June 13,
2002, private respondents insist that the
dismissal of the complaint on the ground
of prescription was in order. They point
out that the averments in the complaint
make out a cause of action for quasi
delict under Articles 2176 and 2180 of
the Civil Code. As such, the prescriptive
period of four (4) years should be
reckoned from the time the accident took
place.
Viron Transit also alleges that its
subsidiary liability cannot be enforced
since Sibayan was not ordered to pay
damages in the criminal case. It is Viron
Transits contention that the subsidiary
liability of the employer contemplated in
Article 103 of the Revised Penal Code
presupposes a situation where the civil
aspect of the case was instituted in the
criminal case and no reservation to file a
separate civil case was made.
Private respondents likewise allege that
the recourse to the Court of Appeals via
certiorari was improper as petitioners
should have appealed the adverse order
of the trial court. Moreover, they point out
several other procedural lapses allegedly
committed by petitioners, such as lack of
certification against forum-shopping; lack
of duplicate original or certified true copy
of the assailed order of the trial court; and
non-indication of the full names and
addresses of petitioners in the petition.
Petitioners filed a Reply[11] dated
September 14, 2002, while private
respondents filed a Rejoinder[12] dated
October 14, 2002, both in reiteration of
their arguments.
We grant the petition.
Our Revised Penal Code provides that
every person criminally liable for a felony
is also civilly liable.[13] Such civil liability
may consist of restitution, reparation of
the damage caused and indemnification
of consequential damages.[14] When a
criminal action is instituted, the civil
liability arising from the offense is
impliedly instituted with the criminal
action, subject to three notable
exceptions: first, when the injured party
expressly waives the right to recover
damages from the accused; second,
when the offended party reserves his
right to have the civil damages
determined in a separate action in order
to take full control and direction of the
prosecution of his cause; and third, when
the injured party actually exercises the
right to maintain a private suit against the
offender by instituting a civil action prior
to the filing of the criminal case.
Notably, it was the 1985 Rules on
Criminal Procedure, as amended in
1988, which governed the institution of
the criminal action, as well as the
reservation of the right to file a separate
civil action. Section 1, Rule 111 thereof
states:
Section 1. Institution of criminal and civil
actions.When a criminal action is
instituted, the civil action for the recovery
of civil liability is impliedly instituted with
the criminal action, unless the offended
party waives the civil action, reserves his
right to institute it separately, or institutes
the civil action prior to the criminal action.
Such civil action includes recovery of
indemnity under the Revised Penal
Code, and damages under Articles 32,
33, 34 and 2176 of the Civil Code of the
Philippines arising from the same act or
omission of the accused.
A waiver of any of the civil actions
extinguishes the others. The institution
of, or the reservation of the right to file,
any of said civil actions separately
waives the others.
The reservation of the right to institute
the separate civil actions shall be made
before the prosecution starts to present
its evidence and under circumstances
affording the offended party a reasonable
opportunity to make such reservation.
In no case may the offended party
recover damages twice for the same act
or omission of the accused.
When the offended party seeks to
enforce civil liability against the accused
by way of moral, nominal, temperate or
exemplary damages, the filing fees for
such action as provided in these Rules
shall constitute a first lien on the
judgment except in an award for actual
damages.
In cases wherein the amount of
damages, other than actual, is alleged in
the complaint or information, the
corresponding filing fees shall be paid by
the offended party upon filing thereof in
court for trial.
Petitioners expressly made a reservation
of their right to file a separate civil action
as a result of the crime committed by
Sibayan. On account of this reservation,
the municipal circuit trial court, in its
decision convicting Sibayan, did not
make any pronouncement as to the
latters civil liability.
Predicating their claim on the judgment
of conviction and their reservation to file
a separate civil action made in the
criminal case, petitioners filed a
complaint for damages against Sibayan,
Viron Transit and its
President/Chairman. Petitioners assert
that by the institution of the complaint,
they seek to recover private respondents
civil liability arising from crime.
Unfortunately, based on its misreading of
the allegations in the complaint, the trial
court dismissed the same, declaring that
petitioners cause of action was based on
quasi delict and should have been
brought within four (4) years from the
time the cause of action accrued, i.e.,
from the time of the accident.
A reading of the complaint reveals that
the allegations therein are consistent
with petitioners claim that the action was
brought to recover civil liability arising
from crime. Although there are
allegations of negligence on the part of
Sibayan and Viron Transit, such does not
necessarily mean that petitioners were
pursuing a cause of action based on
quasi delict, considering that at the time
of the filing of the complaint, the cause of
action ex quasi delicto had already
prescribed. Besides, in cases of
negligence, the offended party has the
choice between an action to enforce civil
liability arising from crime under the
Revised Penal Code and an action for
quasi delict under the Civil Code.
An act or omission causing damage to
another may give rise to two separate
civil liabilities on the part of the offender,
i.e., (1) civil liability ex delicto, under
Article 100 of the Revised Penal Code;
and (2) independent civil liabilities, such
as those (a) not arising from an act or
omission complained of as a felony, e.g.,
culpa contractual or obligations arising
from law under Article 31 of the Civil
Code, intentional torts under Articles 32
and 34, and culpa aquiliana under Article
2176 of the Civil Code; or (b) where the
injured party is granted a right to file an
action independent and distinct from the
criminal action under Article 33 of the
Civil Code.[15] Either of these liabilities
may be enforced against the offender
subject to the caveat under Article 2177
of the Civil Code that the plaintiff cannot
recover damages twice for the same act
or omission of the defendant and the
similar proscription against double
recovery under the Rules above-quoted.
At the time of the filing of the complaint
for damages in this case, the cause of
action ex quasi delicto had already
prescribed. Nonetheless, petitioners can
pursue the remaining avenue opened for
them by their reservation, i.e., the
surviving cause of action ex delicto. This
is so because the prescription of the
action ex quasi delicto does not operate
as a bar to an action to enforce the civil
liability arising from crime especially as
the latter action had been expressly
reserved.
The case of Mendoza v. La Mallorca Bus
Company[16] was decided upon a similar
set of facts. Therein, the driver of La
Mallorca Bus Company was charged
with reckless imprudence resulting to
damage to property. The plaintiff made
an express reservation for the filing of a
separate civil action. The driver was
convicted which conviction was affirmed
by this Court. Later, plaintiff filed a
separate civil action for damages based
on quasi delict which was ordered
dismissed by the trial court upon finding
that the action was instituted more than
six (6) years from the date of the accident
and thus, had already prescribed.
Subsequently, plaintiff instituted another
action, this time based on the subsidiary
liability of the bus company. The trial
court dismissed the action holding that
the dismissal of the earlier civil case
operated as a bar to the filing of the
action to enforce the bus companys
subsidiary liability.
We held that the dismissal of the action
based on culpa aquiliana is not a bar to
the enforcement of the subsidiary liability
of the employer. Once there is a
conviction for a felony, final in character,
the employer becomes subsidiarily liable
if the commission of the crime was in the
discharge of the duties of the employees.
This is so because Article 103 of the
Revised Penal Code operates with
controlling force to obviate the possibility
of the aggrieved party being deprived of
indemnity even after the rendition of a
final judgment convicting the employee.
Seen in this light, the trial court should
not have dismissed the complaint on the
ground of prescription, but instead
allowed the complaint for damages ex
delicto to be prosecuted on the merits,
considering petitioners allegations in
their complaint, opposition to the motion
to dismiss[17] and motion for
reconsideration[18] of the order of
dismissal, insisting that the action was to
recover civil liability arising from crime.
This does not offend the policy that the
reservation or institution of a separate
civil action waives the other civil actions.
The rationale behind this rule is the
avoidance of multiple suits between the
same litigants arising out of the same act
or omission of the offender.[19] However,
since the stale action for damages based
on quasi delict should be considered
waived, there is no more occasion for
petitioners to file multiple suits against
private respondents as the only recourse
available to them is to pursue damages
ex delicto. This interpretation is also
consistent with the bar against double
recovery for obvious reasons.
Now the procedural issue. Admittedly,
petitioners should have appealed the
order of dismissal of the trial court
instead of filing a petition for certiorari
with the Court of Appeals. Such
procedural misstep, however, should be
exempted from the strict application of
the rules in order to promote their
fundamental objective of securing
substantial justice.[20] We are loathe to
deprive petitioners of the indemnity to
which they are entitled by law and by a
final judgment of conviction based solely
on a technicality. It is our duty to prevent
such an injustice.[21]
WHEREFORE, judgment is hereby
rendered SETTING ASIDE the
resolutions of the Court of Appeals dated
September 10, 2001 and January 9,
2002, respectively dismissing the
present action and denying petitioners
motion for reconsideration, as well as the
orders of the lower court dated February
26, 2001 and July 16, 2001. Let the case
be REMANDED to the trial court for
further proceedings.
SO ORDERED.
G.R. No. 150157 January 25,
2007
MAURICIO MANLICLIC and
PHILIPPINE RABBIT BUS LINES, INC.,
Petitioners,
vs.
MODESTO CALAUNAN, Respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the decision1 of the
Court of Appeals in CA-G.R. CV No.
55909 which affirmed in toto the
decision2 of the Regional Trial Court
(RTC) of Dagupan City, Branch 42, in
Civil Case No. D-10086, finding
petitioners Mauricio Manliclic and
Philippine Rabbit Bus Lines, Inc. (PRBLI)
solidarily liable to pay damages and
attorney’s fees to respondent Modesto
Calaunan.
The factual antecedents are as follows:
The vehicles involved in this case are: (1)
Philippine Rabbit Bus No. 353 with plate
number CVD-478, owned by petitioner
PRBLI and driven by petitioner Mauricio
Manliclic; and (2) owner-type jeep with
plate number PER-290, owned by
respondent Modesto Calaunan and
driven by Marcelo Mendoza.
At around 6:00 to 7:00 o’clock in the
morning of 12 July 1988, respondent
Calaunan, together with Marcelo
Mendoza, was on his way to Manila from
Pangasinan on board his owner-type
jeep. The Philippine Rabbit Bus was
likewise bound for Manila from
Concepcion, Tarlac. At approximately
Kilometer 40 of the North Luzon
Expressway in Barangay Lalangan,
Plaridel, Bulacan, the two vehicles
collided. The front right side of the
Philippine Rabbit Bus hit the rear left side
of the jeep causing the latter to move to
the shoulder on the right and then fall on
a ditch with water resulting to further
extensive damage. The bus veered to
the left and stopped 7 to 8 meters from
point of collision.
Respondent suffered minor injuries while
his driver was unhurt. He was first
brought for treatment to the Manila
Central University Hospital in Kalookan
City by Oscar Buan, the conductor of the
Philippine Rabbit Bus, and was later
transferred to the Veterans Memorial
Medical Center.
By reason of such collision, a criminal
case was filed before the RTC of
Malolos, Bulacan, charging petitioner
Manliclic with Reckless Imprudence
Resulting in Damage to Property with
Physical Injuries, docketed as Crim.
Case No. 684-M-89. Subsequently on 2
December 1991, respondent filed a
complaint for damages against
petitioners Manliclic and PRBLI before
the RTC of Dagupan City, docketed as
Civil Case No. D-10086. The criminal
case was tried ahead of the civil case.
Among those who testified in the criminal
case were respondent Calaunan,
Marcelo Mendoza and Fernando Ramos.
In the civil case (now before this Court),
the parties admitted the following:
1. The parties agreed on the capacity of
the parties to sue and be sued as well as
the venue and the identities of the
vehicles involved;
2. The identity of the drivers and the fact
that they are duly licensed;
3. The date and place of the vehicular
collision;
4. The extent of the injuries suffered by
plaintiff Modesto Calaunan and the
existence of the medical certificate;
5. That both vehicles were going towards
the south; the private jeep being ahead
of the bus;
6. That the weather was fair and the road
was well paved and straight, although
there was a ditch on the right side where
the jeep fell into.3
When the civil case was heard, counsel
for respondent prayed that the transcripts
of stenographic notes (TSNs)4 of the
testimonies of respondent Calaunan,
Marcelo Mendoza and Fernando Ramos
in the criminal case be received in
evidence in the civil case in as much as
these witnesses are not available to
testify in the civil case.
Francisco Tuliao testified that his
brother-in-law, respondent Calaunan, left
for abroad sometime in November, 1989
and has not returned since then. Rogelio
Ramos took the stand and said that his
brother, Fernando Ramos, left for
Amman, Jordan, to work. Rosalia
Mendoza testified that her husband,
Marcelo Mendoza, left their residence to
look for a job. She narrated that she
thought her husband went to his
hometown in Panique, Tarlac, when he
did not return after one month. She went
to her husband’s hometown to look for
him but she was informed that he did not
go there.1awphil.net
The trial court subpoenaed the Clerk of
Court of Branch 8, RTC, Malolos,
Bulacan, the court where Criminal Case
No. 684-M-89 was tried, to bring the
TSNs of the testimonies of respondent
Calaunan,5 Marcelo Mendoza6 and
Fernando Ramos7 in said case, together
with other documentary evidence
marked therein. Instead of the Branch
Clerk of Court, it was Enrique Santos
Guevara, Court Interpreter, who
appeared before the court and identified
the TSNs of the three afore-named
witnesses and other pertinent
documents he had brought.8 Counsel for
respondent wanted to mark other TSNs
and documents from the said criminal
case to be adopted in the instant case,
but since the same were not brought to
the trial court, counsel for petitioners
compromised that said TSNs and
documents could be offered by counsel
for respondent as rebuttal evidence.
For the defendants, petitioner Manliclic
and bus conductor Oscar Buan testified.
The TSN9 of the testimony of Donato
Ganiban, investigator of the PRBLI, in
Criminal Case No. 684-M-89 was
marked and allowed to be adopted in the
civil case on the ground that he was
already dead.
Respondent further marked, among
other documents, as rebuttal evidence,
the TSNs10 of the testimonies of Donato
Ganiban, Oscar Buan and petitioner
Manliclic in Criminal Case No. 684-M-89.
The disagreement arises from the
question: Who is to be held liable for the
collision?
Respondent insists it was petitioner
Manliclic who should be liable while the
latter is resolute in saying it was the
former who caused the smash up.
The versions of the parties are
summarized by the trial court as follows:
The parties differed only on the manner
the collision between the two (2) vehicles
took place. According to the plaintiff and
his driver, the jeep was cruising at the
speed of 60 to 70 kilometers per hour on
the slow lane of the expressway when
the Philippine Rabbit Bus overtook the
jeep and in the process of overtaking the
jeep, the Philippine Rabbit Bus hit the
rear of the jeep on the left side. At the
time the Philippine Rabbit Bus hit the
jeep, it was about to overtake the jeep. In
other words, the Philippine Rabbit Bus
was still at the back of the jeep when the
jeep was hit. Fernando Ramos
corroborated the testimony of the plaintiff
and Marcelo Mendoza. He said that he
was on another jeep following the
Philippine Rabbit Bus and the jeep of
plaintiff when the incident took place. He
said, the jeep of the plaintiff overtook
them and the said jeep of the plaintiff was
followed by the Philippine Rabbit Bus
which was running very fast. The bus
also overtook the jeep in which he was
riding. After that, he heard a loud sound.
He saw the jeep of the plaintiff swerved
to the right on a grassy portion of the
road. The Philippine Rabbit Bus stopped
and they overtook the Philippine Rabbit
Bus so that it could not moved (sic),
meaning they stopped in front of the
Philippine Rabbit Bus. He testified that
the jeep of plaintiff swerved to the right
because it was bumped by the Philippine
Rabbit bus from behind.
Both Mauricio Manliclic and his driver,
Oscar Buan admitted that the Philippine
Rabbit Bus bumped the jeep in question.
However, they explained that when the
Philippine Rabbit bus was about to go to
the left lane to overtake the jeep, the
latter jeep swerved to the left because it
was to overtake another jeep in front of
it. Such was their testimony before the
RTC in Malolos in the criminal case and
before this Court in the instant case.
[Thus, which of the two versions of the
manner how the collision took place was
correct, would be determinative of who
between the two drivers was negligent in
the operation of their respective
vehicles.]11
Petitioner PRBLI maintained that it
observed and exercised the diligence of
a good father of a family in the selection
and supervision of its employee,
specifically petitioner Manliclic.
On 22 July 1996, the trial court rendered
its decision in favor of respondent
Calaunan and against petitioners
Manliclic and PRBLI. The dispositive
portion of its decision reads:
WHEREFORE, judgment is rendered in
favor of the plaintiff and against the
defendants ordering the said defendants
to pay plaintiff jointly and solidarily the
amount of P40,838.00 as actual
damages for the towing as well as the
repair and the materials used for the
repair of the jeep in question;
P100,000.00 as moral damages and
another P100,000.00 as exemplary
damages and P15,000.00 as attorney’s
fees, including appearance fees of the
lawyer. In addition, the defendants are
also to pay costs.12
Petitioners appealed the decision via
Notice of Appeal to the Court of
Appeals.13
In a decision dated 28 September 2001,
the Court of Appeals, finding no
reversible error in the decision of the trial
court, affirmed it in all respects.14
Petitioners are now before us by way of
petition for review assailing the decision
of the Court of Appeals. They assign as
errors the following:
I
THE COURT OF APPEALS ERRED ON
A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT’S QUESTIONABLE
ADMISSION IN EVIDENCE OF THE
TSN’s AND OTHER DOCUMENTS
PRESENTED IN THE CRIMINAL CASE.
II
THE COURT OF APPEALS ERRED ON
A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT’S RELIANCE ON
THE VERSION OF THE RESPONDENT
ON HOW THE ACCIDENT
SUPPOSEDLY OCCURRED.
III
THE COURT OF APPEALS ERRED ON
A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT’S UNFAIR
DISREGARD OF HEREIN PETITIONER
PRBL’s DEFENSE OF EXERCISE OF
DUE DILIGENCE IN THE SELECTION
AND SUPERVISION OF ITS
EMPLOYEES.
IV
THE COURT OF APPEALS ERRED ON
A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT’S QUESTIONABLE
AWARD OF DAMAGES AND
ATTORNEY’S FEE.
With the passing away of respondent
Calaunan during the pendency of this
appeal with this Court, we granted the
Motion for the Substitution of
Respondent filed by his wife, Mrs. Precila
Zarate Vda. De Calaunan, and children,
Virgilio Calaunan, Carmelita
Honeycomb, Evelyn Calaunan, Marko
Calaunan and Liwayway Calaunan.15
In their Reply to respondent’s Comment,
petitioners informed this Court of a
Decision16 of the Court of Appeals
acquitting petitioner Manliclic of the
charge17 of Reckless Imprudence
Resulting in Damage to Property with
Physical Injuries attaching thereto a
photocopy thereof.
On the first assigned error, petitioners
argue that the TSNs containing the
testimonies of respondent Calaunan,18
Marcelo Mendoza19 and Fernando
Ramos20 should not be admitted in
evidence for failure of respondent to
comply with the requisites of Section 47,
Rule 130 of the Rules of Court.
For Section 47, Rule 13021 to apply, the
following requisites must be satisfied: (a)
the witness is dead or unable to testify;
(b) his testimony or deposition was given
in a former case or proceeding, judicial or
administrative, between the same parties
or those representing the same interests;
(c) the former case involved the same
subject as that in the present case,
although on different causes of action;
(d) the issue testified to by the witness in
the former trial is the same issue involved
in the present case; and (e) the adverse
party had an opportunity to cross-
examine the witness in the former
case.22
Admittedly, respondent failed to show the
concurrence of all the requisites set forth
by the Rules for a testimony given in a
former case or proceeding to be
admissible as an exception to the
hearsay rule. Petitioner PRBLI, not being
a party in Criminal Case No. 684-M-89,
had no opportunity to cross-examine the
three witnesses in said case. The
criminal case was filed exclusively
against petitioner Manliclic, petitioner
PRBLI’s employee. The cases dealing
with the subsidiary liability of employers
uniformly declare that, strictly speaking,
they are not parties to the criminal cases
instituted against their employees.23
Notwithstanding the fact that petitioner
PRBLI was not a party in said criminal
case, the testimonies of the three
witnesses are still admissible on the
ground that petitioner PRBLI failed to
object on their admissibility.
It is elementary that an objection shall be
made at the time when an alleged
inadmissible document is offered in
evidence; otherwise, the objection shall
be treated as waived, since the right to
object is merely a privilege which the
party may waive. Thus, a failure to
except to the evidence because it does
not conform to the statute is a waiver of
the provisions of the law. Even assuming
ex gratia argumenti that these
documents are inadmissible for being
hearsay, but on account of failure to
object thereto, the same may be
admitted and considered as sufficient to
prove the facts therein asserted.24
Hearsay evidence alone may be
insufficient to establish a fact in a suit but,
when no objection is made thereto, it is,
like any other evidence, to be considered
and given the importance it deserves.25
In the case at bar, petitioner PRBLI did
not object to the TSNs containing the
testimonies of respondent Calaunan,
Marcelo Mendoza and Fernando Ramos
in the criminal case when the same were
offered in evidence in the trial court. In
fact, the TSNs of the testimonies of
Calaunan and Mendoza were admitted
by both petitioners.26 Moreover,
petitioner PRBLI even offered in
evidence the TSN containing the
testimony of Donato Ganiban in the
criminal case. If petitioner PRBLI argues
that the TSNs of the testimonies of
plaintiff’s witnesses in the criminal case
should not be admitted in the instant
case, why then did it offer the TSN of the
testimony of Ganiban which was given in
the criminal case? It appears that
petitioner PRBLI wants to have its cake
and eat it too. It cannot argue that the
TSNs of the testimonies of the witnesses
of the adverse party in the criminal case
should not be admitted and at the same
time insist that the TSN of the testimony
of the witness for the accused be
admitted in its favor. To disallow
admission in evidence of the TSNs of the
testimonies of Calaunan, Marcelo
Mendoza and Fernando Ramos in the
criminal case and to admit the TSN of the
testimony of Ganiban would be unfair.
We do not subscribe to petitioner
PRBLI’s argument that it will be denied
due process when the TSNs of the
testimonies of Calaunan, Marcelo
Mendoza and Fernando Ramos in the
criminal case are to be admitted in the
civil case. It is too late for petitioner
PRBLI to raise denial of due process in
relation to Section 47, Rule 130 of the
Rules of Court, as a ground for objecting
to the admissibility of the TSNs. For
failure to object at the proper time, it
waived its right to object that the TSNs
did not comply with Section 47.
In Mangio v. Court of Appeals,27 this
Court, through Associate Justice
Reynato S. Puno,28 admitted in
evidence a TSN of the testimony of a
witness in another case despite therein
petitioner’s assertion that he would be
denied due process. In admitting the
TSN, the Court ruled that the raising of
denial of due process in relation to
Section 47, Rule 130 of the Rules of
Court, as a ground for objecting to the
admissibility of the TSN was belatedly
done. In so doing, therein petitioner
waived his right to object based on said
ground.
Petitioners contend that the documents
in the criminal case should not have been
admitted in the instant civil case because
Section 47 of Rule 130 refers only to
"testimony or deposition." We find such
contention to be untenable. Though said
section speaks only of testimony and
deposition, it does not mean that
documents from a former case or
proceeding cannot be admitted. Said
documents can be admitted they being
part of the testimonies of witnesses that
have been admitted. Accordingly, they
shall be given the same weight as that to
which the testimony may be entitled.29
On the second assigned error,
petitioners contend that the version of
petitioner Manliclic as to how the
accident occurred is more credible than
respondent’s version. They anchor their
contention on the fact that petitioner
Manliclic was acquitted by the Court of
Appeals of the charge of Reckless
Imprudence Resulting in Damage to
Property with Physical Injuries.
To be resolved by the Court is the effect
of petitioner Manliclic’s acquittal in the
civil case.
From the complaint, it can be gathered
that the civil case for damages was one
arising from, or based on, quasi-delict.30
Petitioner Manliclic was sued for his
negligence or reckless imprudence in
causing the collision, while petitioner
PRBLI was sued for its failure to exercise
the diligence of a good father in the
selection and supervision of its
employees, particularly petitioner
Manliclic. The allegations read:
"4. That sometime on July 12, 1988 at
around 6:20 A.M. plaintiff was on board
the above-described motor vehicle
travelling at a moderate speed along the
North Luzon Expressway heading South
towards Manila together with MARCELO
MENDOZA, who was then driving the
same;
"5. That approximately at kilometer 40 of
the North Luzon Express Way, the
above-described motor vehicle was
suddenly bumped from behind by a
Philippine Rabbit Bus with Body No. 353
and with plate No. CVD 478 then being
driven by one Mauricio Manliclic of San
Jose, Concepcion, Tarlac, who was then
travelling recklessly at a very fast speed
and had apparently lost control of his
vehicle;
"6. That as a result of the impact of the
collision the above-described motor
vehicle was forced off the North Luzon
Express Way towards the rightside
where it fell on its driver’s side on a ditch,
and that as a consequence, the above-
described motor vehicle which maybe
valued at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck as
shown by pictures to be presented during
the pre-trial and trial of this case;
"7. That also as a result of said incident,
plaintiff sustained bodily injuries which
compounded plaintiff’s frail physical
condition and required his hospitalization
from July 12, 1988 up to and until July 22,
1988, copy of the medical certificate is
hereto attached as Annex "A" and made
an integral part hereof;
"8. That the vehicular collision resulting
in the total wreckage of the above-
described motor vehicle as well as bodily
(sic) sustained by plaintiff, was solely due
to the reckless imprudence of the
defendant driver Mauricio Manliclic who
drove his Philippine Rabbit Bus No. 353
at a fast speed without due regard or
observance of existing traffic rules and
regulations;
"9. That defendant Philippine Rabbit Bus
Line Corporation failed to exercise the
diligence of a good father of (sic) family
in the selection and supervision of its
drivers; x x x"31
Can Manliclic still be held liable for the
collision and be found negligent
notwithstanding the declaration of the
Court of Appeals that there was an
absence of negligence on his part?
In exonerating petitioner Manliclic in the
criminal case, the Court of Appeals said:
To the following findings of the court a
quo, to wit: that accused-appellant was
negligent "when the bus he was driving
bumped the jeep from behind"; that "the
proximate cause of the accident was his
having driven the bus at a great speed
while closely following the jeep"; x x x
We do not agree.
The swerving of Calaunan’s jeep when it
tried to overtake the vehicle in front of it
was beyond the control of accused-
appellant.
xxxx
Absent evidence of negligence,
therefore, accused-appellant cannot be
held liable for Reckless Imprudence
Resulting in Damage to Property with
Physical Injuries as defined in Article 365
of the Revised Penal Code.32
From the foregoing declaration of the
Court of Appeals, it appears that
petitioner Manliclic was acquitted not on
reasonable doubt, but on the ground that
he is not the author of the act complained
of which is based on Section 2(b) of Rule
111 of the Rules of Criminal Procedure
which reads:
(b) Extinction of the penal action does not
carry with it extinction of the civil, unless
the extinction proceeds from a
declaration in a final judgment that the
fact from which the civil might arise did
not exist.
In spite of said ruling, petitioner Manliclic
can still be held liable for the mishap. The
afore-quoted section applies only to a
civil action arising from crime or ex
delicto and not to a civil action arising
from quasi-delict or culpa aquiliana. The
extinction of civil liability referred to in
Par. (e) of Section 3, Rule 111 [now
Section 2 (b) of 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 a quasi-delict only and not
as a crime is not extinguished even by a
declaration in the criminal case that the
criminal act charged has not happened
or has not been committed by the
accused.33
A quasi-delict or culpa aquiliana is a
separate legal institution under the Civil
Code with a substantivity all its own, and
individuality that is entirely apart and
independent from a delict or crime – a
distinction exists between the civil liability
arising from a crime and the
responsibility for quasi-delicts or culpa
extra-contractual. The same negligence
causing damages may produce civil
liability arising from a crime under the
Penal Code, or create an action for
quasi-delicts or culpa extra-contractual
under the Civil Code.34 It is now settled
that acquittal of the accused, even if
based on a finding that he is not guilty,
does not carry with it the extinction of the
civil liability based on quasi delict.35
In other words, if an accused is acquitted
based on reasonable doubt on his guilt,
his civil liability arising from the crime
may be proved by preponderance of
evidence only. However, if an accused is
acquitted on the basis that he was not the
author of the act or omission complained
of (or that there is declaration in a final
judgment that the fact from which the civil
might arise did not exist), said acquittal
closes the door to civil liability based on
the crime or ex delicto. In this second
instance, there being no crime or delict to
speak of, civil liability based thereon or
ex delicto is not possible. In this case, a
civil action, if any, may be instituted on
grounds other than the delict complained
of.
As regards civil liability arising from
quasi-delict or culpa aquiliana, same will
not be extinguished by an acquittal,
whether it be on ground of reasonable
doubt or that accused was not the author
of the act or omission complained of (or
that there is declaration in a final
judgment that the fact from which the civil
liability might arise did not exist). The
responsibility arising from fault or
negligence in a quasi-delict is entirely
separate and distinct from the civil
liability arising from negligence under the
Penal Code.36 An acquittal or conviction
in the criminal case is entirely irrelevant
in the civil case37 based on quasi-delict
or culpa aquiliana.
Petitioners ask us to give credence to
their version of how the collision occurred
and to disregard that of respondent’s.
Petitioners insist that while the PRBLI
bus was in the process of overtaking
respondent’s jeep, the latter, without
warning, suddenly swerved to the left
(fast) lane in order to overtake another
jeep ahead of it, thus causing the
collision.
As a general rule, questions of fact may
not be raised in a petition for review. The
factual findings of the trial court,
especially when affirmed by the appellate
court, are binding and conclusive on the
Supreme Court.38 Not being a trier of
facts, this Court will not allow a review
thereof unless:
(1) the conclusion is a finding grounded
entirely on speculation, surmise and
conjecture; (2) the inference made is
manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is
based on a misapprehension of facts; (5)
the findings of fact are conflicting; (6) the
Court of Appeals went beyond the issues
of the case and its findings are contrary
to the admissions of both appellant and
appellees; (7) the findings of fact of the
Court of Appeals are contrary to those of
the trial court; (8) said findings of fact are
conclusions without citation of specific
evidence on which they are based; (9)
the facts set forth in the petition as well
as in the petitioner's main and reply briefs
are not disputed by the respondents; and
(10) the findings of fact of the Court of
Appeals are premised on the supposed
absence of evidence and contradicted by
the evidence on record.39
After going over the evidence on record,
we do not find any of the exceptions that
would warrant our departure from the
general rule. We fully agree in the finding
of the trial court, as affirmed by the Court
of Appeals, that it was petitioner Manliclic
who was negligent in driving the PRBLI
bus which was the cause of the collision.
In giving credence to the version of the
respondent, the trial court has this say:
x x x Thus, which of the two versions of
the manner how the collision took place
was correct, would be determinative of
who between the two drivers was
negligent in the operation of their
respective vehicle.
In this regard, it should be noted that in
the statement of Mauricio Manliclic (Exh.
15) given to the Philippine Rabbit
Investigator CV Cabading no mention
was made by him about the fact that the
driver of the jeep was overtaking another
jeep when the collision took place. The
allegation that another jeep was being
overtaken by the jeep of Calaunan was
testified to by him only in Crim. Case No.
684-M-89 before the Regional Trial Court
in Malolos, Bulacan and before this
Court. Evidently, it was a product of an
afterthought on the part of Mauricio
Manliclic so that he could explain why he
should not be held responsible for the
incident. His attempt to veer away from
the truth was also apparent when it would
be considered that in his statement given
to the Philippine Rabbit Investigator CV
Cabading (Exh. 15), he alleged that the
Philippine Rabbit Bus bumped the jeep of
Calaunan while the Philippine Rabbit Bus
was behind the said jeep. In his
testimony before the Regional Trial Court
in Malolos, Bulacan as well as in this
Court, he alleged that the Philippine
Rabbit Bus was already on the left side
of the jeep when the collision took place.
For this inconsistency between his
statement and testimony, his explanation
regarding the manner of how the collision
between the jeep and the bus took place
should be taken with caution. It might be
true that in the statement of Oscar Buan
given to the Philippine Rabbit
Investigator CV Cabading, it was
mentioned by the former that the jeep of
plaintiff was in the act of overtaking
another jeep when the collision between
the latter jeep and the Philippine Rabbit
Bus took place. But the fact, however,
that his statement was given on July 15,
1988, one day after Mauricio Manliclic
gave his statement should not escape
attention. The one-day difference
between the giving of the two statements
would be significant enough to entertain
the possibility of Oscar Buan having
received legal advise before giving his
statement. Apart from that, as between
his statement and the statement of
Manliclic himself, the statement of the
latter should prevail. Besides, in his
Affidavit of March 10, 1989, (Exh. 14),
the unreliability of the statement of Oscar
Buan (Exh. 13) given to CV Cabading
rear its "ugly head" when he did not
mention in said affidavit that the jeep of
Calaunan was trying to overtake another
jeep when the collision between the jeep
in question and the Philippine Rabbit bus
took place.
xxxx
If one would believe the testimony of the
defendant, Mauricio Manliclic, and his
conductor, Oscar Buan, that the
Philippine Rabbit Bus was already
somewhat parallel to the jeep when the
collision took place, the point of collision
on the jeep should have been somewhat
on the left side thereof rather than on its
rear. Furthermore, the jeep should have
fallen on the road itself rather than having
been forced off the road. Useless,
likewise to emphasize that the Philippine
Rabbit was running very fast as testified
to by Ramos which was not controverted
by the defendants.40

Having ruled that it was petitioner
Manliclic’s negligence that caused the
smash up, there arises the juris tantum
presumption that the employer is
negligent, rebuttable only by proof of
observance of the diligence of a good
father of a family.41 Under Article
218042 of the New Civil Code, when an
injury is caused by the negligence of the
employee, there instantly arises a
presumption of law that there was
negligence on the part of the master or
employer either in the selection of the
servant or employee, or in supervision
over him after selection or both. The
liability of the employer under Article
2180 is direct and immediate; it is not
conditioned upon prior recourse against
the negligent employee and a prior
showing of the insolvency of such
employee. Therefore, it is incumbent
upon the private respondents to prove
that they exercised the diligence of a
good father of a family in the selection
and supervision of their employee.43
In the case at bar, petitioner PRBLI
maintains that it had shown that it
exercised the required diligence in the
selection and supervision of its
employees, particularly petitioner
Manliclic. In the matter of selection, it
showed the screening process that
petitioner Manliclic underwent before he
became a regular driver. As to the
exercise of due diligence in the
supervision of its employees, it argues
that presence of ready investigators
(Ganiban and Cabading) is sufficient
proof that it exercised the required due
diligence in the supervision of its
employees.
In the selection of prospective
employees, employers are required to
examine them as to their qualifications,
experience and service records. In the
supervision of employees, the employer
must formulate standard operating
procedures, monitor their
implementation and impose disciplinary
measures for the breach thereof. To fend
off vicarious liability, employers must
submit concrete proof, including
documentary evidence, that they
complied with everything that was
incumbent on them.44
In Metro Manila Transit Corporation v.
Court of Appeals,45 it was explained
that:
Due diligence in the supervision of
employees on the other hand, includes
the formulation of suitable rules and
regulations for the guidance of
employees and the issuance of proper
instructions intended for the protection of
the public and persons with whom the
employer has relations through his or its
employees and the imposition of
necessary disciplinary measures upon
employees in case of breach or as may
be warranted to ensure the performance
of acts indispensable to the business of
and beneficial to their employer. To this,
we add that actual implementation and
monitoring of consistent compliance with
said rules should be the constant
concern of the employer, acting through
dependable supervisors who should
regularly report on their supervisory
functions.
In order that the defense of due diligence
in the selection and supervision of
employees may be deemed sufficient
and plausible, it is not enough to emptily
invoke the existence of said company
guidelines and policies on hiring and
supervision. As the negligence of the
employee gives rise to the presumption
of negligence on the part of the
employer, the latter has the burden of
proving that it has been diligent not only
in the selection of employees but also in
the actual supervision of their work. The
mere allegation of the existence of hiring
procedures and supervisory policies,
without anything more, is decidedly not
sufficient to overcome such presumption.
We emphatically reiterate our holding, as
a warning to all employers, that "the
formulation of various company policies
on safety without showing that they were
being complied with is not sufficient to
exempt petitioner from liability arising
from negligence of its employees. It is
incumbent upon petitioner to show that in
recruiting and employing the erring driver
the recruitment procedures and
company policies on efficiency and
safety were followed." x x x.
The trial court found that petitioner
PRBLI exercised the diligence of a good
father of a family in the selection but not
in the supervision of its employees. It
expounded as follows:
From the evidence of the defendants, it
seems that the Philippine Rabbit Bus
Lines has a very good procedure of
recruiting its driver as well as in the
maintenance of its vehicles. There is no
evidence though that it is as good in the
supervision of its personnel. There has
been no iota of evidence introduced by it
that there are rules promulgated by the
bus company regarding the safe
operation of its vehicle and in the way its
driver should manage and operate the
vehicles assigned to them. There is no
showing that somebody in the bus
company has been employed to oversee
how its driver should behave while
operating their vehicles without courting
incidents similar to the herein case. In
regard to supervision, it is not difficult to
observe that the Philippine Rabbit Bus
Lines, Inc. has been negligent as an
employer and it should be made
responsible for the acts of its employees,
particularly the driver involved in this
case.
We agree. The presence of ready
investigators after the occurrence of the
accident is not enough to exempt
petitioner PRBLI from liability arising
from the negligence of petitioner
Manliclic. Same does not comply with the
guidelines set forth in the cases above-
mentioned. The presence of the
investigators after the accident is not
enough supervision. Regular supervision
of employees, that is, prior to any
accident, should have been shown and
established. This, petitioner failed to do.
The lack of supervision can further be
seen by the fact that there is only one set
of manual containing the rules and
regulations for all the drivers of PRBLI.
46 How then can all the drivers of
petitioner PRBLI know and be continually
informed of the rules and regulations
when only one manual is being lent to all
the drivers?
For failure to adduce proof that it
exercised the diligence of a good father
of a family in the selection and
supervision of its employees, petitioner
PRBLI is held solidarily responsible for
the damages caused by petitioner
Manliclic’s negligence.
We now go to the award of damages.
The trial court correctly awarded the
amount of P40,838.00 as actual
damages representing the amount paid
by respondent for the towing and repair
of his jeep.47 As regards the awards for
moral and exemplary damages, same,
under the circumstances, must be
modified. The P100,000.00 awarded by
the trial court as moral damages must be
reduced to P50,000.00.48 Exemplary
damages are imposed by way of
example or correction for the public
good.49 The amount awarded by the trial
court must, likewise, be lowered to
P50,000.00.50 The award of P15,000.00
for attorney’s fees and expenses of
litigation is in order and authorized by
law.51
WHEREFORE, premises considered,
the instant petition for review is DENIED.
The decision of the Court of Appeals in
CA-G.R. CV No. 55909 is AFFIRMED
with the MODIFICATION that (1) the
award of moral damages shall be
reduced to P50,000.00; and (2) the
award of exemplary damages shall be
lowered to P50,000.00. Costs against
petitioners.
SO ORDERED.
AVELINO CASUPANAN and ROBERTO
CAPITULO, petitioners, vs. MARIO
LLAVORE LAROYA, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari
to set aside the Resolution[1] dated
December 28, 1999 dismissing the
petition for certiorari and the
Resolution[2] dated August 24, 2000
denying the motion for reconsideration,
both issued by the Regional Trial Court
of Capas, Tarlac, Branch 66, in Special
Civil Action No. 17-C (99).
The Facts
Two vehicles, one driven by respondent
Mario Llavore Laroya (Laroya for brevity)
and the other owned by petitioner
Roberto Capitulo (Capitulo for brevity)
and driven by petitioner Avelino
Casupanan (Casupanan for brevity),
figured in an accident. As a result, two
cases were filed with the Municipal
Circuit Trial Court (MCTC for brevity) of
Capas, Tarlac. Laroya filed a criminal
case against Casupanan for reckless
imprudence resulting in damage to
property, docketed as Criminal Case No.
002-99. On the other hand, Casupanan
and Capitulo filed a civil case against
Laroya for quasi-delict, docketed as Civil
Case No. 2089.
When the civil case was filed, the
criminal case was then at its preliminary
investigation stage. Laroya, defendant in
the civil case, filed a motion to dismiss
the civil case on the ground of forum-
shopping considering the pendency of
the criminal case. The MCTC granted the
motion in the Order of March 26, 1999
and dismissed the civil case.
On Motion for Reconsideration,
Casupanan and Capitulo insisted that the
civil case is a separate civil action which
can proceed independently of the
criminal case. The MCTC denied the
motion for reconsideration in the Order of
May 7, 1999. Casupanan and Capitulo
filed a petition for certiorari under Rule 65
before the Regional Trial Court (Capas
RTC for brevity) of Capas, Tarlac,
Branch 66,[3] assailing the MCTCs Order
of dismissal.
The Trial Courts Ruling
The Capas RTC rendered judgment on
December 28, 1999 dismissing the
petition for certiorari for lack of merit. The
Capas RTC ruled that the order of
dismissal issued by the MCTC is a final
order which disposes of the case and
therefore the proper remedy should have
been an appeal. The Capas RTC further
held that a special civil action for
certiorari is not a substitute for a lost
appeal. Finally, the Capas RTC declared
that even on the premise that the MCTC
erred in dismissing the civil case, such
error is a pure error of judgment and not
an abuse of discretion.
Casupanan and Capitulo filed a Motion
for Reconsideration but the Capas RTC
denied the same in the Resolution of
August 24, 2000.
Hence, this petition.
The Issue
The petition premises the legal issue in
this wise:
In a certain vehicular accident involving
two parties, each one of them may think
and believe that the accident was caused
by the fault of the other. x x x [T]he first
party, believing himself to be the
aggrieved party, opted to file a criminal
case for reckless imprudence against the
second party. On the other hand, the
second party, together with his operator,
believing themselves to be the real
aggrieved parties, opted in turn to file a
civil case for quasi-delict against the first
party who is the very private complainant
in the criminal case.[4]
Thus, the issue raised is whether an
accused in a pending criminal case for
reckless imprudence can validly file,
simultaneously and independently, a
separate civil action for quasi-delict
against the private complainant in the
criminal case.
The Courts Ruling
Casupanan and Capitulo assert that Civil
Case No. 2089, which the MCTC
dismissed on the ground of forum-
shopping, constitutes a counterclaim in
the criminal case. Casupanan and
Capitulo argue that if the accused in a
criminal case has a counterclaim against
the private complainant, he may file the
counterclaim in a separate civil action at
the proper time. They contend that an
action on quasi-delict is different from an
action resulting from the crime of
reckless imprudence, and an accused in
a criminal case can be an aggrieved
party in a civil case arising from the same
incident. They maintain that under
Articles 31 and 2176 of the Civil Code,
the civil case can proceed independently
of the criminal action. Finally, they point
out that Casupanan was not the only one
who filed the independent civil action
based on quasi-delict but also Capitulo,
the owner-operator of the vehicle, who
was not a party in the criminal case.
In his Comment, Laroya claims that the
petition is fatally defective as it does not
state the real antecedents. Laroya further
alleges that Casupanan and Capitulo
forfeited their right to question the order
of dismissal when they failed to avail of
the proper remedy of appeal. Laroya
argues that there is no question of law to
be resolved as the order of dismissal is
already final and a petition for certiorari is
not a substitute for a lapsed appeal.
In their Reply, Casupanan and Capitulo
contend that the petition raises the legal
question of whether there is forum-
shopping since they filed only one action
- the independent civil action for quasi-
delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for
quasi-delict on the ground of forum-
shopping under Supreme Court
Administrative Circular No. 04-94. The
MCTC did not state in its order of
dismissal[5] that the dismissal was with
prejudice. Under the Administrative
Circular, the order of dismissal is without
prejudice to refiling the complaint, unless
the order of dismissal expressly states it
is with prejudice.[6] Absent a declaration
that the dismissal is with prejudice, the
same is deemed without prejudice. Thus,
the MCTCs dismissal, being silent on the
matter, is a dismissal without prejudice.
Section 1 of Rule 41[7] provides that an
order dismissing an action without
prejudice is not appealable. The remedy
of the aggrieved party is to file a special
civil action under Rule 65. Section 1 of
Rule 41 expressly states that where the
judgment or final order is not appealable,
the aggrieved party may file an
appropriate special civil action under
Rule 65. Clearly, the Capas RTCs order
dismissing the petition for certiorari, on
the ground that the proper remedy is an
ordinary appeal, is erroneous.
Forum-Shopping
The essence of forum-shopping is the
filing of multiple suits involving the same
parties for the same cause of action,
either simultaneously or successively, to
secure a favorable judgment.[8] Forum-
shopping is present when in the two or
more cases pending, there is identity of
parties, rights of action and reliefs
sought.[9] However, there is no forum-
shopping in the instant case because the
law and the rules expressly allow the
filing of a separate civil action which can
proceed independently of the criminal
action.
Laroya filed the criminal case for reckless
imprudence resulting in damage to
property based on the Revised Penal
Code while Casupanan and Capitulo
filed the civil action for damages based
on Article 2176 of the Civil Code.
Although these two actions arose from
the same act or omission, they have
different causes of action. The criminal
case is based on culpa criminal
punishable under the Revised Penal
Code while the civil case is based on
culpa aquiliana actionable under Articles
2176 and 2177 of the Civil Code. These
articles on culpa aquiliana read:
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.
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.
Any aggrieved person can invoke these
articles provided he proves, by
preponderance of evidence, that he has
suffered damage because of the fault or
negligence of another. Either the private
complainant or the accused can file a
separate civil action under these articles.
There is nothing in the law or rules that
state only the private complainant in a
criminal case may invoke these articles.
Moreover, paragraph 6, Section 1, Rule
111 of the 2000 Rules on Criminal
Procedure (2000 Rules for brevity)
expressly requires the accused to litigate
his counterclaim in a separate civil
action, to wit:
SECTION 1. Institution of criminal and
civil actions. (a) x x x.
No counterclaim, cross-claim or third-
party complaint may be filed by the
accused in the criminal case, but any
cause of action which could have been
the subject thereof may be litigated in a
separate civil action. (Emphasis
supplied)
Since the present Rules require the
accused in a criminal action to file his
counterclaim in a separate civil action,
there can be no forum-shopping if the
accused files such separate civil action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure (1985 Rules for
brevity), as amended in 1988, allowed
the filing of a separate civil action
independently of the criminal action
provided the offended party reserved the
right to file such civil action. Unless the
offended party reserved the civil action
before the presentation of the evidence
for the prosecution, all civil actions
arising from the same act or omission
were deemed impliedly instituted in the
criminal case. These civil actions
referred to the recovery of civil liability ex-
delicto, the recovery of damages for
quasi-delict, and the recovery of
damages for violation of Articles 32, 33
and 34 of the Civil Code on Human
Relations.
Thus, to file a separate and independent
civil action for quasi-delict under the
1985 Rules, the offended party had to
reserve in the criminal action the right to
bring such action. Otherwise, such civil
action was deemed impliedly instituted in
the criminal action. Section 1, Rule 111
of the 1985 Rules provided as follows:
Section 1. Institution of criminal and civil
actions. When a criminal action is
instituted, the civil action for the recovery
of civil liability is impliedly instituted with
the criminal action, unless the offended
party waives the action, reserves his right
to institute it separately, or institutes the
civil action prior to the criminal action.
Such civil action includes recovery of
indemnity under the Revised Penal
Code, and damages under Articles 32,
33, 34 and 2176 of the Civil Code of the
Philippines arising from the same act or
omission of the accused.
A waiver of any of the civil actions
extinguishes the others. The institution
of, or the reservation of the right to file,
any of said civil actions separately
waives the others.
The reservation of the right to institute
the separate civil actions shall be made
before the prosecution starts to present
its evidence and under circumstances
affording the offended party a reasonable
opportunity to make such reservation.
In no case may the offended party
recover damages twice for the same act
or omission of the accused.
x x x. (Emphasis supplied)
Section 1, Rule 111 of the 1985 Rules
was amended on December 1, 2000 and
now provides as follows:
SECTION 1. Institution of criminal and
civil actions. (a) When a criminal action is
instituted, the civil action for the recovery
of civil liability arising from the offense
charged shall be deemed instituted with
the criminal action unless the offended
party waives the civil action, reserves the
right to institute it separately or institutes
the civil action prior to the criminal action.
The reservation of the right to institute
separately the civil action shall be made
before the prosecution starts presenting
its evidence and under circumstances
affording the offended party a reasonable
opportunity to make such reservation.
xxx
(b) x x x
Where the civil action has been filed
separately and trial thereof has not yet
commenced, it may be consolidated with
the criminal action upon application with
the court trying the latter case. If the
application is granted, the trial of both
actions shall proceed in accordance with
section 2 of this rule governing
consolidation of the civil and criminal
actions. (Emphasis supplied)
Under Section 1 of the present Rule 111,
what is deemed instituted with the
criminal action is only the action to
recover civil liability arising from the
crime or ex-delicto. All the other civil
actions under Articles 32, 33, 34 and
2176 of the Civil Code are no longer
deemed instituted, and may be filed
separately and prosecuted
independently even without any
reservation in the criminal action. The
failure to make a reservation in the
criminal action is not a waiver of the right
to file a separate and independent civil
action based on these articles of the Civil
Code. The prescriptive period on the civil
actions based on these articles of the
Civil Code continues to run even with the
filing of the criminal action. Verily, the
civil actions based on these articles of
the Civil Code are separate, distinct and
independent of the civil action deemed
instituted in the criminal action.[10]
Under the present Rule 111, the
offended party is still given the option to
file a separate civil action to recover civil
liability ex-delicto by reserving such right
in the criminal action before the
prosecution presents its evidence. Also,
the offended party is deemed to make
such reservation if he files a separate
civil action before filing the criminal
action. If the civil action to recover civil
liability ex-delicto is filed separately but
its trial has not yet commenced, the civil
action may be consolidated with the
criminal action. The consolidation under
this Rule does not apply to separate civil
actions arising from the same act or
omission filed under Articles 32, 33, 34
and 2176 of the Civil Code.[11]
Suspension of the Separate Civil Action
Under Section 2, Rule 111 of the
amended 1985 Rules, a separate civil
action, if reserved in the criminal action,
could not be filed until after final
judgment was rendered in the criminal
action. If the separate civil action was
filed before the commencement of the
criminal action, the civil action, if still
pending, was suspended upon the filing
of the criminal action until final judgment
was rendered in the criminal action. This
rule applied only to the separate civil
action filed to recover liability ex-delicto.
The rule did not apply to independent
civil actions based on Articles 32, 33, 34
and 2176 of the Civil Code, which could
proceed independently regardless of the
filing of the criminal action.
The amended provision of Section 2,
Rule 111 of the 2000 Rules continues
this procedure, to wit:
SEC. 2. When separate civil action is
suspended. After the criminal action has
been commenced, the separate civil
action arising therefrom cannot be
instituted until final judgment has been
entered in the criminal action.
If the criminal action is filed after the said
civil action has already been instituted,
the latter shall be suspended in whatever
stage it may be found before judgment
on the merits. The suspension shall last
until final judgment is rendered in the
criminal action. Nevertheless, before
judgment on the merits is rendered in the
civil action, the same may, upon motion
of the offended party, be consolidated
with the criminal action in the court trying
the criminal action. In case of
consolidation, the evidence already
adduced in the civil action shall be
deemed automatically reproduced in the
criminal action without prejudice to the
right of the prosecution to cross-examine
the witnesses presented by the offended
party in the criminal case and of the
parties to present additional evidence.
The consolidated criminal and civil
actions shall be tried and decided jointly.
During the pendency of the criminal
action, the running of the period of
prescription of the civil action which
cannot be instituted separately or whose
proceeding has been suspended shall be
tolled.
x x x. (Emphasis supplied)
Thus, Section 2, Rule 111 of the present
Rules did not change the rule that the
separate civil action, filed to recover
damages ex-delicto, is suspended upon
the filing of the criminal action. Section 2
of the present Rule 111 also prohibits the
filing, after commencement of the
criminal action, of a separate civil action
to recover damages ex-delicto.
When civil action may proceed
independently
The crucial question now is whether
Casupanan and Capitulo, who are not
the offended parties in the criminal case,
can file a separate civil action against the
offended party in the criminal case.
Section 3, Rule 111 of the 2000 Rules
provides as follows:
SEC 3. When civil action may proceed
independently. - In the cases provided in
Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines, the independent
civil action may be brought by the
offended party. It shall proceed
independently of the criminal action and
shall require only a preponderance of
evidence. In no case, however, may the
offended party recover damages twice
for the same act or omission charged in
the criminal action. (Emphasis supplied)
Section 3 of the present Rule 111, like its
counterpart in the amended 1985 Rules,
expressly allows the offended party to
bring an independent civil action under
Articles 32, 33, 34 and 2176 of the Civil
Code. As stated in Section 3 of the
present Rule 111, this civil action shall
proceed independently of the criminal
action and shall require only a
preponderance of evidence. In no case,
however, may the offended party recover
damages twice for the same act or
omission charged in the criminal action.
There is no question that the offended
party in the criminal action can file an
independent civil action for quasi-delict
against the accused. Section 3 of the
present Rule 111 expressly states that
the offended party may bring such an
action but the offended party may not
recover damages twice for the same act
or omission charged in the criminal
action. Clearly, Section 3 of Rule 111
refers to the offended party in the
criminal action, not to the accused.
Casupanan and Capitulo, however,
invoke the ruling in Cabaero vs.
Cantos[12] where the Court held that the
accused therein could validly institute a
separate civil action for quasi-delict
against the private complainant in the
criminal case. In Cabaero, the accused
in the criminal case filed his Answer with
Counterclaim for malicious prosecution.
At that time the Court noted the absence
of clear-cut rules governing the
prosecution on impliedly instituted civil
actions and the necessary
consequences and implications thereof.
Thus, the Court ruled that the trial court
should confine itself to the criminal
aspect of the case and disregard any
counterclaim for civil liability. The Court
further ruled that the accused may file a
separate civil case against the offended
party after the criminal case is terminated
and/or in accordance with the new Rules
which may be promulgated. The Court
explained that a cross-claim,
counterclaim or third-party complaint on
the civil aspect will only unnecessarily
complicate the proceedings and delay
the resolution of the criminal case.
Paragraph 6, Section 1 of the present
Rule 111 was incorporated in the 2000
Rules precisely to address the lacuna
mentioned in Cabaero. Under this
provision, the accused is barred from
filing a counterclaim, cross-claim or third-
party complaint in the criminal case.
However, the same provision states that
any cause of action which could have
been the subject (of the counterclaim,
cross-claim or third-party complaint) may
be litigated in a separate civil action. The
present Rule 111 mandates the accused
to file his counterclaim in a separate civil
action which shall proceed
independently of the criminal action,
even as the civil action of the offended
party is litigated in the criminal action.
Conclusion
Under Section 1 of the present Rule 111,
the independent civil action in Articles 32,
33, 34 and 2176 of the Civil Code is not
deemed instituted with the criminal action
but may be filed separately by the
offended party even without reservation.
The commencement of the criminal
action does not suspend the prosecution
of the independent civil action under
these articles of the Civil Code. The
suspension in Section 2 of the present
Rule 111 refers only to the civil action
arising from the crime, if such civil action
is reserved or filed before the
commencement of the criminal action.
Thus, the offended party can file two
separate suits for the same act or
omission. The first a criminal case where
the civil action to recover civil liability ex-
delicto is deemed instituted, and the
other a civil case for quasi-delict - without
violating the rule on non-forum shopping.
The two cases can proceed
simultaneously and independently of
each other. The commencement or
prosecution of the criminal action will not
suspend the civil action for quasi-delict.
The only limitation is that the offended
party cannot recover damages twice for
the same act or omission of the
defendant. In most cases, the offended
party will have no reason to file a second
civil action since he cannot recover
damages twice for the same act or
omission of the accused. In some
instances, the accused may be insolvent,
necessitating the filing of another case
against his employer or guardians.
Similarly, the accused can file a civil
action for quasi-delict for the same act or
omission he is accused of in the criminal
case. This is expressly allowed in
paragraph 6, Section 1 of the present
Rule 111 which states that the
counterclaim of the accused may be
litigated in a separate civil action. This is
only fair for two reasons. First, the
accused is prohibited from setting up any
counterclaim in the civil aspect that is
deemed instituted in the criminal case.
The accused is therefore forced to litigate
separately his counterclaim against the
offended party. If the accused does not
file a separate civil action for quasi-delict,
the prescriptive period may set in since
the period continues to run until the civil
action for quasi-delict is filed.
Second, the accused, who is presumed
innocent, has a right to invoke Article
2177 of the Civil Code, in the same way
that the offended party can avail of this
remedy which is independent of the
criminal action. To disallow the accused
from filing a separate civil action for
quasi-delict, while refusing to recognize
his counterclaim in the criminal case, is
to deny him due process of law, access
to the courts, and equal protection of the
law.
Thus, the civil action based on quasi-
delict filed separately by Casupanan and
Capitulo is proper. The order of dismissal
by the MCTC of Civil Case No. 2089 on
the ground of forum-shopping is
erroneous.
We make this ruling aware of the
possibility that the decision of the trial
court in the criminal case may vary with
the decision of the trial court in the
independent civil action. This possibility
has always been recognized ever since
the Civil Code introduced in 1950 the
concept of an independent civil action
under Articles 32, 33, 34 and 2176 of the
Code. But the law itself, in Article 31 of
the Code, expressly provides that the
independent civil action may proceed
independently of the criminal
proceedings and regardless of the result
of the latter. In Azucena vs.
Potenciano,[13] the Court declared:
x x x. There can indeed be no other
logical conclusion than this, for to
subordinate the civil action contemplated
in the said articles to the result of the
criminal prosecution whether it be
conviction or acquittal would render
meaningless the independent character
of the civil action and the clear injunction
in Article 31 that this action 'may proceed
independently of the criminal
proceedings and regardless of the result
of the latter.
More than half a century has passed
since the Civil Code introduced the
concept of a civil action separate and
independent from the criminal action
although arising from the same act or
omission. The Court, however, has yet to
encounter a case of conflicting and
irreconcilable decisions of trial courts,
one hearing the criminal case and the
other the civil action for quasi-delict. The
fear of conflicting and irreconcilable
decisions may be more apparent than
real. In any event, there are sufficient
remedies under the Rules of Court to
deal with such remote possibilities.
One final point. The Revised Rules on
Criminal Procedure took effect on
December 1, 2000 while the MCTC
issued the order of dismissal on
December 28, 1999 or before the
amendment of the rules. The Revised
Rules on Criminal Procedure must be
given retroactive effect considering the
well-settled rule that -
x x x statutes regulating the procedure of
the court will be construed as applicable
to actions pending and undetermined at
the time of their passage. Procedural
laws are retroactive in that sense and to
that extent.[14]
WHEREFORE, the petition for review on
certiorari is hereby GRANTED. The
Resolutions dated December 28, 1999
and August 24, 2000 in Special Civil
Action No. 17-C (99) are ANNULLED
and Civil Case No. 2089 is
REINSTATED.
SO ORDERED.
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 10
presented 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 term bad 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.1awphîl.nèt
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
— above] which is incompetent. We do not
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
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. 56 The 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.
[G.R. No. 122039. May 31, 2000]
VICENTE CALALAS, petitioner, vs.
COURT OF APPEALS, ELIZA
JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.
D E C I S I ON
MENDOZA, J.:
This is a petition for review on certiorari
of the decision[1] of the Court of Appeals,
dated March 31, 1991, reversing the
contrary decision of the Regional Trial
Court, Branch 36, Dumaguete City, and
awarding damages instead to private
respondent Eliza Jujeurche Sunga as
plaintiff in an action for breach of contract
of carriage.
The facts, as found by the Court of
Appeals, are as follows:
At 10 oclock in the morning of August 23,
1989, private respondent Eliza Jujeurche
G. Sunga, then a college freshman
majoring in Physical Education at the
Siliman University, took a passenger
jeepney owned and operated by
petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24
passengers, Sunga was given by the
conductor an "extension seat," a wooden
stool at the back of the door at the rear
end of the vehicle. Sclaw
On the way to Poblacion Sibulan, Negros
Occidental, the jeepney stopped to let a
passenger off. As she was seated at the
rear of the vehicle, Sunga gave way to
the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by
Iglecerio Verena and owned by
Francisco Salva bumped the left rear
portion of the jeepney. As a result, Sunga
was injured. She sustained a fracture of
the "distal third of the left tibia-fibula with
severe necrosis of the underlying skin."
Closed reduction of the fracture, long leg
circular casting, and case wedging were
done under sedation. Her confinement in
the hospital lasted from August 23 to
September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an
orthopedic surgeon, certified she would
remain on a cast for a period of three
months and would have to ambulate in
crutches during said period.
On October 9, 1989, Sunga filed a
complaint for damages against Calalas,
alleging violation of the contract of
carriage by the former in failing to
exercise the diligence required of him as
a common carrier. Calalas, on the other
hand, filed a third-party complaint against
Francisco Salva, the owner of the Isuzu
truck. Korte
The lower court rendered judgment
against Salva as third-party defendant
and absolved Calalas of liability, holding
that it was the driver of the Isuzu truck
who was responsible for the accident. It
took cognizance of another case (Civil
Case No. 3490), filed by Calalas against
Salva and Verena, for quasi-delict, in
which Branch 37 of the same court held
Salva and his driver Verena jointly liable
to Calalas for the damage to his jeepney.
Rtcspped
On appeal to the Court of Appeals, the
ruling of the lower court was reversed on
the ground that Sungas cause of action
was based on a contract of carriage, not
quasi-delict, and that the common carrier
failed to exercise the diligence required
under the Civil Code. The appellate court
dismissed the third-party complaint
against Salva and adjudged Calalas
liable for damages to Sunga. The
dispositive portion of its decision reads:
WHEREFORE, the decision appealed
from is hereby REVERSED and SET
ASIDE, and another one is entered
ordering defendant-appellee Vicente
Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and
compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation;
and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends
that the ruling in Civil Case No. 3490 that
the negligence of Verena was the
proximate cause of the accident negates
his liability and that to rule otherwise
would be to make the common carrier an
insurer of the safety of its passengers.
He contends that the bumping of the
jeepney by the truck owned by Salva was
a caso fortuito. Petitioner further assails
the award of moral damages to Sunga on
the ground that it is not supported by
evidence. Sdaadsc
The petition has no merit.
The argument that Sunga is bound by the
ruling in Civil Case No. 3490 finding the
driver and the owner of the truck liable for
quasi-delict ignores the fact that she was
never a party to that case and, therefore,
the principle of res judicata does not
apply. Missdaa
Nor are the issues in Civil Case No. 3490
and in the present case the same. The
issue in Civil Case No. 3490 was whether
Salva and his driver Verena were liable
for quasi-delict for the damage caused to
petitioners jeepney. On the other hand,
the issue in this case is whether
petitioner is liable on his contract of
carriage. The first, quasi-delict, also
known as culpa aquiliana or culpa extra
contractual, has as its source the
negligence of the tortfeasor. The second,
breach of contract or culpa contractual, is
premised upon the negligence in the
performance of a contractual obligation.
Consequently, in quasi-delict, the
negligence or fault should be clearly
established because it is the basis of the
action, whereas in breach of contract, the
action can be prosecuted merely by
proving the existence of the contract and
the fact that the obligor, in this case the
common carrier, failed to transport his
passenger safely to his destination.[2] In
case of death or injuries to passengers,
Art. 1756 of the Civil Code provides that
common carriers are presumed to have
been at fault or to have acted negligently
unless they prove that they observed
extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This
provision necessarily shifts to the
common carrier the burden of proof.
Slxmis
There is, thus, no basis for the contention
that the ruling in Civil Case No. 3490,
finding Salva and his driver Verena liable
for the damage to petitioners jeepney,
should be binding on Sunga. It is
immaterial that the proximate cause of
the collision between the jeepney and the
truck was the negligence of the truck
driver. The doctrine of proximate cause
is applicable only in actions for quasi-
delict, not in actions involving breach of
contract. The doctrine is a device for
imputing liability to a person where there
is no relation between him and another
party. In such a case, the obligation is
created by law itself. But, where there is
a pre-existing contractual relation
between the parties, it is the parties
themselves who create the obligation,
and the function of the law is merely to
regulate the relation thus created. Insofar
as contracts of carriage are concerned,
some aspects regulated by the Civil
Code are those respecting the diligence
required of common carriers with regard
to the safety of passengers as well as the
presumption of negligence in cases of
death or injury to passengers. It provides:
Slxsc
Art. 1733. Common carriers, from the
nature of their business and for reasons
of public policy, are bound to observe
extraordinary diligence in the vigilance
over the goods and for the safety of the
passengers transported by them,
according to all the circumstances of
each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in articles 1734, 1735, and
1746, Nos. 5,6, and 7, while the
extraordinary diligence for the safety of
the passengers is further set forth in
articles 1755 and 1756.
Art. 1755. A common carrier is bound to
carry the passengers safely as far as
human care and foresight can provide,
using the utmost diligence of very
cautious persons, with due regard for all
the circumstances.
Art. 1756. In case of death of or injuries
to passengers, common carriers are
presumed to have been at fault or to
have acted negligently, unless they
prove that they observed extraordinary
diligence as prescribed by articles 1733
and 1755.
In the case at bar, upon the happening of
the accident, the presumption of
negligence at once arose, and it became
the duty of petitioner to prove that he had
to observe extraordinary diligence in the
care of his passengers. Scslx
Now, did the driver of jeepney carry
Sunga "safely as far as human care and
foresight could provide, using the utmost
diligence of very cautious persons, with
due regard for all the circumstances" as
required by Art. 1755? We do not think
so. Several factors militate against
petitioners contention. Slx
First, as found by the Court of Appeals,
the jeepney was not properly parked, its
rear portion being exposed about two
meters from the broad shoulders of the
highway, and facing the middle of the
highway in a diagonal angle. This is a
violation of the R.A. No. 4136, as
amended, or the Land Transportation
and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. - No
person shall drive his motor vehicle in
such a manner as to obstruct or impede
the passage of any vehicle, nor, while
discharging or taking on passengers or
loading or unloading freight, obstruct the
free passage of other vehicles on the
highway.
Second, it is undisputed that petitioners
driver took in more passengers than the
allowed seating capacity of the jeepney,
a violation of 32(a) of the same law. It
provides: Mesm
Exceeding registered capacity. - No
person operating any motor vehicle shall
allow more passengers or more freight or
cargo in his vehicle than its registered
capacity.
The fact that Sunga was seated in an
"extension seat" placed her in a peril
greater than that to which the other
passengers were exposed. Therefore,
not only was petitioner unable to
overcome the presumption of negligence
imposed on him for the injury sustained
by Sunga, but also, the evidence shows
he was actually negligent in transporting
passengers. Calrky
We find it hard to give serious thought to
petitioners contention that Sungas taking
an "extension seat" amounted to an
implied assumption of risk. It is akin to
arguing that the injuries to the many
victims of the tragedies in our seas
should not be compensated merely
because those passengers assumed a
greater risk of drowning by boarding an
overloaded ferry. This is also true of
petitioners contention that the jeepney
being bumped while it was improperly
parked constitutes caso fortuito. A caso
fortuito is an event which could not be
foreseen, or which, though foreseen, was
inevitable.[3] This requires that the
following requirements be present: (a)
the cause of the breach is independent of
the debtors will; (b) the event is
unforeseeable or unavoidable; (c) the
event is such as to render it impossible
for the debtor to fulfill his obligation in a
normal manner, and (d) the debtor did
not take part in causing the injury to the
creditor.[4] Petitioner should have
foreseen the danger of parking his
jeepney with its body protruding two
meters into the highway. Kycalr
Finally, petitioner challenges the award
of moral damages alleging that it is
excessive and without basis in law. We
find this contention well taken.
In awarding moral damages, the Court of
Appeals stated: Kyle
Plaintiff-appellant at the time of the
accident was a first-year college student
in that school year 1989-1990 at the
Silliman University, majoring in Physical
Education. Because of the injury, she
was not able to enroll in the second
semester of that school year. She
testified that she had no more intention of
continuing with her schooling, because
she could not walk and decided not to
pursue her degree, major in Physical
Education "because of my leg which has
a defect already."
Plaintiff-appellant likewise testified that
even while she was under confinement,
she cried in pain because of her injured
left foot. As a result of her injury, the
Orthopedic Surgeon also certified that
she has "residual bowing of the fracture
side." She likewise decided not to further
pursue Physical Education as her major
subject, because "my left leg x x x has a
defect already."
Those are her physical pains and moral
sufferings, the inevitable bedfellows of
the injuries that she suffered. Under
Article 2219 of the Civil Code, she is
entitled to recover moral damages in the
sum of P50,000.00, which is fair, just and
reasonable.
As a general rule, moral damages are not
recoverable in actions for damages
predicated on a breach of contract for it
is not one of the items enumerated under
Art. 2219 of the Civil Code.[5] As an
exception, such damages are
recoverable: (1) in cases in which the
mishap results in the death of a
passenger, as provided in Art. 1764, in
relation to Art. 2206(3) of the Civil Code;
and (2) in the cases in which the carrier
is guilty of fraud or bad faith, as provided
in Art. 2220.[6]
In this case, there is no legal basis for
awarding moral damages since there
was no factual finding by the appellate
court that petitioner acted in bad faith in
the performance of the contract of
carriage. Sungas contention that
petitioners admission in open court that
the driver of the jeepney failed to assist
her in going to a nearby hospital cannot
be construed as an admission of bad
faith. The fact that it was the driver of the
Isuzu truck who took her to the hospital
does not imply that petitioner was utterly
indifferent to the plight of his injured
passenger. If at all, it is merely implied
recognition by Verena that he was the
one at fault for the accident. Exsm
WHEREFORE, the decision of the Court
of Appeals, dated March 31, 1995, and
its resolution, dated September 11, 1995,
are AFFIRMED, with the
MODIFICATION that the award of moral
damages is DELETED.
SO ORDERED.
G.R. No. 74431 November 6, 1989
PURITA MIRANDA VESTIL and
AGUSTIN VESTIL, petitioners,
vs.
INTERMEDIATE APPELLATE COURT,
DAVID UY and TERESITA UY,
respondents.
Pablo P. Garcia for petitioners.
Roberto R. Palmares for private
respondents.
CRUZ, J.:
Little Theness Tan Uy was dead at the
age of three. Her parents said she died
because she was bitten by a dog of the
petitioners, but the latter denied this,
claiming they had nothing to do with the
dog. The Uys sued the Vestils, who were
sustained by the trial court. On appeal,
the decision of the court a quo was
reversed in favor of the Uys. The Vestils
are now before us. They ask us to set
aside the judgment of the respondent
court and to reinstate that of the trial
court.
On July 29, 1915, Theness was bitten by
a dog while she was playing with a child
of the petitioners in the house of the late
Vicente Miranda, the father of Purita
Vestil, at F. Ramos Street in Cebu City.
She was rushed to the Cebu General
Hospital, where she was treated for
"multiple lacerated wounds on the
forehead" 1 and administered an anti-
rabies vaccine by Dr. Antonio Tautjo.
She was discharged after nine days but
was readmitted one week later due to
"vomiting of saliva." 2 The following day,
on August 15, 1975, the child died. The
cause of death was certified as broncho-
pneumonia. 3
Seven months later, the Uys sued for
damages, alleging that the Vestils were
liable to them as the possessors of
"Andoy," the dog that bit and eventually
killed their daughter. The Vestils rejected
the charge, insisting that the dog
belonged to the deceased Vicente
Miranda, that it was a tame animal, and
that in any case no one had witnessed it
bite Theness. After trial, Judge Jose R.
Ramolete of the Court of First Instance of
Cebu sustained the defendants and
dismissed the complaint. 4
The respondent court arrived at a
different conclusion when the case was
appealed. 5 It found that the Vestils were
in possession of the house and the dog
and so should be responsible under
Article 2183 of the Civil Code for the
injuries caused by the dog. It also held
that the child had died as a result of the
dog bites and not for causes independent
thereof as submitted by the appellees.
Accordingly, the Vestils were ordered to
pay the Uys damages in the amount of
P30,000.00 for the death of Theness,
P12,000.00 for medical and
hospitalization expenses, and P2,000.00
as attorney's fees.
In the proceedings now before us, Purita
Vestil insists that she is not the owner of
the house or of the dog left by her father
as his estate has not yet been partitioned
and there are other heirs to the property.
Pursuing the logic of the Uys, she claims,
even her sister living in Canada would be
held responsible for the acts of the dog
simply because she is one of Miranda's
heirs. However, that is hardly the point.
What must be determined is the
possession of the dog that admittedly
was staying in the house in question,
regardless of the ownership of the dog or
of the house.
Article 2183 reads as follows:
The possessor of an animal or whoever
may make use of the same is responsible
for the damage which it may cause,
although it may escape or be lost. 'This
responsibility shall cease only in case the
damages should come from force
majeure from the fault of the person who
has suffered damage.
Thus, in Afialda v. Hisole, 6 a person
hired as caretaker of a carabao gored
him to death and his heirs thereupon
sued the owner of the animal for
damages. The complaint was dismissed
on the ground that it was the caretaker's
duty to prevent the carabao from causing
injury to any one, including himself.
Purita Vestil's testimony that she was not
in possession of Miranda's house is
hardly credible. She said that the
occupants of the house left by her father
were related to him ("one way or the
other") and maintained themselves out of
a common fund or by some kind of
arrangement (on which, however, she
did not elaborate ). 7 She mentioned as
many as ten of such relatives who had
stayed in the house at one time or
another although they did not appear to
be close kin.8 She at least implied that
they did not pay any rent, presumably
because of their relation with Vicente
Miranda notwithstanding that she herself
did not seem to know them very well.
There is contrary evidence that the
occupants of the house, were boarders
(or more of boarders than relatives) who
paid the petitioners for providing them
with meals and accommodations. It also
appears that Purita Vestil had hired a
maid, Dolores Jumao-as, who did the
cooking and cleaning in the said house
for its occupants. 9 Her mother, Pacita,
who was a nursemaid of Purita herself,
categorically declared that the petitioners
were maintaining boarders in the house
where Theness was bitten by a dog.10
Another witness, Marcial Lao, testified
that he was indeed a boarder and that
the Vestils were maintaining the house
for business purposes. 11 And although
Purita denied paying the water bills for
the house, the private respondents
submitted documentary evidence of her
application for water connection with the
Cebu Water District, which strongly
suggested that she was administering
the house in question. 12
While it is true that she is not really the
owner of the house, which was still part
of Vicente Miranda's estate, there is no
doubt that she and her husband were its
possessors at the time of the incident in
question. She was the only heir residing
in Cebu City and the most logical person
to take care of the property, which was
only six kilometers from her own house.
13 Moreover, there is evidence showing
that she and her family regularly went to
the house, once or twice weekly,
according to at least one witness, 14 and
used it virtually as a second house.
Interestingly, her own daughter was
playing in the house with Theness when
the little girl was bitten by the dog. 15 The
dog itself remained in the house even
after the death of Vicente Miranda in
1973 and until 1975, when the incident in
question occurred. It is also noteworthy
that the petitioners offered to assist the
Uys with their hospitalization expenses
although Purita said she knew them only
casually. 16
The petitioners also argue that even
assuming that they were the possessors
of the dog that bit Theness there was no
clear showing that she died as a result
thereof. On the contrary, the death
certificate 17 declared that she died of
broncho-pneumonia, which had nothing
to do with the dog bites for which she had
been previously hospitalized. The Court
need not involve itself in an extended
scientific discussion of the causal
connection between the dog bites and
the certified cause of death except to
note that, first, Theness developed
hydrophobia, a symptom of rabies, as a
result of the dog bites, and second, that
asphyxia broncho-pneumonia, which
ultimately caused her death, was a
complication of rabies. That Theness
became afraid of water after she was
bitten by the dog is established by the
following testimony of Dr. Tautjo:
COURT: I think there was mention of
rabies in the report in the second
admission?
A: Now, the child was
continuously vomiting just before I
referred to Dr. Co earlier in the morning
and then the father, because the child
was asking for water, the father tried to
give the child water and this child went
under the bed, she did not like to drink
the water and there was fright in her
eyeballs. For this reason, because I was
in danger there was rabies, I called Dr.
Co.
Q: In other words, the child had
hydrophobia?
A: Yes, sir. 18
As for the link between rabies and
broncho-pneumonia, the doctor had the
following to say under oath:
A: Now, as 1 said before,
broncho-pneumonia can result from
physical, chemical and bacterial means.
... It can be the result of infection, now,
so if you have any other disease which
can lower your resistance you can also
get pneumonia.

xxx xxx xxx
Q: Would you say that a person
who has rabies may die of complication
which is broncho-pneumonia?
A: Yes.
Q: For the record, I am
manifesting that this book shown the
witness is know as CURRENT
DIANOSIS & TREATMENT, 1968 by
Henry Brainerd, Sheldon Margen and
Milton Chaton. Now, I invite your
attention, doctor, to page 751 of this book
under the title "Rabies." There is on this
page, "Prognosis" as a result of rabies
and it says: Once the symptoms, have
appeared death inevitably occurs after 2-
3 days as a result of cardiac or
respiratory failure or generalized
paralysis. After a positive diagnosis of
rabies or after a bite by a suspected
animal if the animal cannot be observed
or if the bite is on the head, give rabies
vaccine (duck embryo). Do you believe in
this statement?
A: Yes.
Q: Would you say therefore that
persons who have rabies may die of
respiratory failure which leave in the form
of bronco-pneumonia?
A: Broncho-pneumonia can be a
complication of rabies. 19
On the strength of the foregoing
testimony, the Court finds that the link
between the dog bites and the certified
cause of death has beep satisfactorily
established. We also reiterate our ruling
in Sison v. Sun Life Assurance Company
of Canada, 20 that the death certificate is
not conclusive proof of the cause of
death but only of the fact of death.
Indeed, the evidence of the child's
hydrophobia is sufficient to convince us
that she died because she was bitten by
the dog even if the death certificate
stated a different cause of death. The
petitioner's contention that they could not
be expected to exercise remote control of
the dog is not acceptable. In fact, Article
2183 of the Civil Code holds the
possessor liable even if the animal
should "escape or be lost" and so be
removed from his control. And it does not
matter either that, as the petitioners also
contend, the dog was tame and was
merely provoked by the child into biting
her. The law does not speak only of
vicious animals but covers even tame
ones as long as they cause injury. As for
the alleged provocation, the petitioners
forget that Theness was only three years
old at the time she was attacked and can
hardly be faulted for whatever she might
have done to the animal.
It is worth observing that the above
defenses of the petitioners are an implied
rejection of their original posture that
there was no proof that it was the dog in
their father's house that bit Theness.
According to Manresa the obligation
imposed by Article 2183 of the Civil Code
is not based on the negligence or on the
presumed lack of vigilance of the
possessor or user of the animal causing
the damage. It is based on natural equity
and on the principle of social interest that
he who possesses animals for his utility,
pleasure or service must answer for the
damage which such animal may cause.
21
We sustain the findings of the Court of
Appeals and approve the monetary
awards except only as to the medical and
hospitalization expenses, which are
reduced to P2,026.69, as prayed for in
the complaint. While there is no
recompense that can bring back to the
private respondents the child they have
lost, their pain should at least be
assuaged by the civil damages to which
they are entitled.
WHEREFORE, the challenged decision
is AFFIRMED as above modified. The
petition is DENIED, with costs against
the petitioners. It is so ordered.
G.R. No. 124354 December 29,
1999
ROGELIO E. RAMOS and ERLINDA
RAMOS, in their own behalf and as
natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK
RAMOS and RON RAYMOND RAMOS,
petitioners,
vs.
COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates
physicians to give primordial
consideration to the health and welfare of
their patients. If a doctor fails to live up to
this precept, he is made accountable for
his acts. A mistake, through gross
negligence or incompetence or plain
human error, may spell the difference
between life and death. In this sense, the
doctor plays God on his patient's fate. 1
In the case at bar, the Court is called
upon to rule whether a surgeon, an
anesthesiologist and a hospital should be
made liable for the unfortunate comatose
condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the
decision 3 of the Court of Appeals, dated
29 May 1995, which overturned the
decision 4 of the Regional Trial Court,
dated 30 January 1992, finding private
respondents liable for damages arising
from negligence in the performance of
their professional duties towards
petitioner Erlinda Ramos resulting in her
comatose condition.
The antecedent facts as summarized by
the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year old
(Exh. "A") robust woman (TSN, October
19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains
allegedly caused by the presence of a
stone in her gall bladder (TSN, January
13, 1988, pp. 4-5), she was as normal as
any other woman. Married to Rogelio E.
Ramos, an executive of Philippine Long
Distance Telephone Company, she has
three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19,
1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she
sought professional advice. She was
advised to undergo an operation for the
removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She
underwent a series of examinations
which included blood and urine tests
(Exhs. "A" and "C") which indicated she
was fit for surgery.
Through the intercession of a mutual
friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka
(should be Hosaka; see TSN, February
20, 1990, p. 3), one of the defendants in
this case, on June 10, 1985. They agreed
that their date at the operating table at
the DLSMC (another defendant), would
be on June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should undergo
a "cholecystectomy" operation after
examining the documents (findings from
the Capitol Medical Center, FEU Hospital
and DLSMC) presented to him. Rogelio
E. Ramos, however, asked Dr. Hosaka to
look for a good anesthesiologist. Dr.
Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr.
Hosaka charged a fee of P16,000.00,
which was to include the
anesthesiologist's fee and which was to
be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 31-
33; TSN, February 27, 1990, p. 13; and
TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of
operation, she was admitted at one of the
rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985
and while still in her room, she was
prepared for the operation by the hospital
staff. Her sister-in-law, Herminda Cruz,
who was the Dean of the College of
Nursing at the Capitol Medical Center,
was also there for moral support. She
reiterated her previous request for
Herminda to be with her even during the
operation. After praying, she was given
injections. Her hands were held by
Herminda as they went down from her
room to the operating room (TSN,
January 13, 1988, pp. 9-11). Her
husband, Rogelio, was also with her
(TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two
or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was
to administer anesthesia. Although not a
member of the hospital staff, Herminda
introduced herself as Dean of the
College of Nursing at the Capitol Medical
Center who was to provide moral support
to the patient, to them. Herminda was
allowed to stay inside the operating
room.
At around 9:30 A.M., Dr. Gutierrez
reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed Herminda
Cruz about the prospect of a delay in the
arrival of Dr. Hosaka. Herminda then
went back to the patient who asked,
"Mindy, wala pa ba ang Doctor"? The
former replied, "Huwag kang mag-alaala,
darating na iyon" (Ibid.).
Thereafter, Herminda went out of the
operating room and informed the
patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13).
When she returned to the operating
room, the patient told her, "Mindy, inip na
inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told
Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the
operating room.
At around 10:00 A.M., Rogelio E. Ramos
was "already dying [and] waiting for the
arrival of the doctor" even as he did his
best to find somebody who will allow him
to pull out his wife from the operating
room (TSN, October 19, 1989, pp. 19-
20). He also thought of the feeling of his
wife, who was inside the operating room
waiting for the doctor to arrive (ibid.). At
almost 12:00 noon, he met Dr. Garcia
who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr.
Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse
remarked, "Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing those
words, he went down to the lobby and
waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz,
who was inside the operating room with
the patient, heard somebody say that
"Dr. Hosaka is already here." She then
saw people inside the operating room
"moving, doing this and that, [and]
preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she
held the hand of Erlinda Ramos, she then
saw Dr. Gutierrez intubating the hapless
patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan" (id., p. 17). Because
of the remarks of Dra. Gutierrez, she
focused her attention on what Dr.
Gutierrez was doing. She thereafter
noticed bluish discoloration of the
nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached
her. She then heard Dr. Hosaka issue an
order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After
Dr. Calderon arrived at the operating
room, she saw this anesthesiologist
trying to intubate the patient. The
patient's nailbed became bluish and the
patient was placed in a trendelenburg
position — a position where the head of
the patient is placed in a position lower
than her feet which is an indication that
there is a decrease of blood supply to the
patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of
the operating room, and she told Rogelio
E. Ramos "that something wrong was . .
. happening" (Ibid.). Dr. Calderon was
then able to intubate the patient (TSN,
July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside
the operating room, saw a respiratory
machine being rushed towards the door
of the operating room. He also saw
several doctors rushing towards the
operating room. When informed by
Herminda Cruz that something wrong
was happening, he told her (Herminda)
to be back with the patient inside the
operating room (TSN, October 19, 1989,
pp. 25-28).
Herminda Cruz immediately rushed
back, and saw that the patient was still in
trendelenburg position (TSN, January
13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient
taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr. Hosaka.
The latter informed the former that
something went wrong during the
intubation. Reacting to what was told to
him, Rogelio reminded the doctor that the
condition of his wife would not have
happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also
asked by the hospital to explain what
happened to the patient. The doctors
explained that the patient had
bronchospasm (TSN, November 15,
1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter or
on November 15, 1985, the patient was
released from the hospital.
During the whole period of her
confinement, she incurred hospital bills
amounting to P93,542.25 which is the
subject of a promissory note and affidavit
of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that
fateful afternoon of June 17, 1985, she
has been in a comatose condition. She
cannot do anything. She cannot move
any part of her body. She cannot see or
hear. She is living on mechanical means.
She suffered brain damage as a result of
the absence of oxygen in her brain for
four to five minutes (TSN, November 9,
1989, pp. 21-22). After being discharged
from the hospital, she has been staying
in their residence, still needing constant
medical attention, with her husband
Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00
(TSN, October 19, 1989, pp. 32-34). She
was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage"
(Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed
a civil case 6 for damages with the
Regional Trial Court of Quezon City
against herein private respondents
alleging negligence in the management
and care of Erlinda Ramos.
During the trial, both parties presented
evidence as to the possible cause of
Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and
Dr. Mariano Gavino to prove that the
sustained by Erlinda was due to lack of
oxygen in her brain caused by the faulty
management of her airway by private
respondents during the anesthesia
phase. On the other hand, private
respondents primarily relied on the
expert testimony of Dr. Eduardo Jamora,
a pulmonologist, to the effect that the
cause of brain damage was Erlinda's
allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).
After considering the evidence from both
sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:
After evaluating the evidence as shown
in the finding of facts set forth earlier, and
applying the aforecited provisions of law
and jurisprudence to the case at bar, this
Court finds and so holds that defendants
are liable to plaintiffs for damages. The
defendants were guilty of, at the very
least, negligence in the performance of
their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this
Court finds that she omitted to exercise
reasonable care in not only intubating the
patient, but also in not repeating the
administration of atropine (TSN, August
20, 1991, pp. 5-10), without due regard
to the fact that the patient was inside the
operating room for almost three (3)
hours. For after she committed a mistake
in intubating [the] patient, the patient's
nailbed became bluish and the patient,
thereafter, was placed in trendelenburg
position, because of the decrease of
blood supply to the patient's brain. The
evidence further shows that the hapless
patient suffered brain damage because
of the absence of oxygen in her
(patient's) brain for approximately four to
five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the acts of
Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the
patient as part of his obligation to provide
the patient a good anesthesiologist', and
for arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital), this
Court finds that it is liable for the acts of
negligence of the doctors in their
"practice of medicine" in the operating
room. Moreover, the hospital is liable for
failing through its responsible officials, to
cancel the scheduled operation after Dr.
Hosaka inexcusably failed to arrive on
time.
In having held thus, this Court rejects the
defense raised by defendants that they
have acted with due care and prudence
in rendering medical services to plaintiff-
patient. For if the patient was properly
intubated as claimed by them, the patient
would not have become comatose. And,
the fact that another anesthesiologist
was called to try to intubate the patient
after her (the patient's) nailbed turned
bluish, belie their claim. Furthermore, the
defendants should have rescheduled the
operation to a later date. This, they
should have done, if defendants acted
with due care and prudence as the
patient's case was an elective, not an
emergency case.
xxx xxx xxx
WHEREFORE, and in view of the
foregoing, judgment is rendered in favor
of the plaintiffs and against the
defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the
former the following sums of money, to
wit:
1) the sum of P8,000.00 as
actual monthly expenses for the plaintiff
Erlinda Ramos reckoned from November
15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject
to its being updated;
2) the sum of P100,000.00 as
reasonable attorney's fees;
3) the sum of P800,000.00 by
way of moral damages and the further
sum of P200,000,00 by way of exemplary
damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably
interposed an appeal to the Court of
Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing
the findings of the trial court. The decretal
portion of the decision of the appellate
court reads:
WHEREFORE, for the foregoing
premises the appealed decision is
hereby REVERSED, and the complaint
below against the appellants is hereby
ordered DISMISSED. The counterclaim
of appellant De Los Santos Medical
Center is GRANTED but only insofar as
appellees are hereby ordered to pay the
unpaid hospital bills amounting to
P93,542.25, plus legal interest for justice
must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was
received on 9 June 1995 by petitioner
Rogelio Ramos who was mistakenly
addressed as "Atty. Rogelio Ramos." No
copy of the decision, however, was sent
nor received by the Coronel Law Office,
then counsel on record of petitioners.
Rogelio referred the decision of the
appellate court to a new lawyer, Atty.
Ligsay, only on 20 June 1995, or four (4)
days before the expiration of the
reglementary period for filing a motion for
reconsideration. On the same day, Atty.
Ligsay, filed with the appellate court a
motion for extension of time to file a
motion for reconsideration. The motion
for reconsideration was submitted on 4
July 1995. However, the appellate court
denied the motion for extension of time in
its Resolution dated 25 July 1995. 9
Meanwhile, petitioners engaged the
services of another counsel, Atty. Sillano,
to replace Atty. Ligsay. Atty. Sillano filed
on 7 August 1995 a motion to admit the
motion for reconsideration contending
that the period to file the appropriate
pleading on the assailed decision had not
yet commenced to run as the Division
Clerk of Court of the Court of Appeals
had not yet served a copy thereof to the
counsel on record. Despite this
explanation, the appellate court still
denied the motion to admit the motion for
reconsideration of petitioners in its
Resolution, dated 29 March 1996,
primarily on the ground that the fifteen-
day (15) period for filing a motion for
reconsideration had already expired, to
wit:
We said in our Resolution on July 25,
1995, that the filing of a Motion for
Reconsideration cannot be extended;
precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion
that plaintiffs/appellees received a copy
of the decision as early as June 9, 1995.
Computation wise, the period to file a
Motion for Reconsideration expired on
June 24. The Motion for
Reconsideration, in turn, was received by
the Court of Appeals already on July 4,
necessarily, the 15-day period already
passed. For that alone, the latter should
be denied.
Even assuming admissibility of the
Motion for the Reconsideration, but after
considering the Comment/Opposition,
the former, for lack of merit, is hereby
DENIED.
SO ORDERED. 10
A copy of the above resolution was
received by Atty. Sillano on 11 April
1996. The next day, or on 12 April 1996,
Atty. Sillano filed before this Court a
motion for extension of time to file the
present petition for certiorari under Rule
45. The Court granted the motion for
extension of time and gave petitioners
additional thirty (30) days after the
expiration of the fifteen-day (15) period
counted from the receipt of the resolution
of the Court of Appeals within which to
submit the petition. The due date fell on
27 May 1996. The petition was filed on 9
May 1996, well within the extended
period given by the Court.
Petitioners assail the decision of the
Court of Appeals on the following
grounds:
I legal counsel only on 20 June 1995.
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS
DRA. GUTIERREZ, DRA. CALDERON
AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE
OF THE RESPONDENTS DID NOT
CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF
RES IPSA LOQUITUR. 11
Before we discuss the merits of the case,
we shall first dispose of the procedural
issue on the timeliness of the petition in
relation to the motion for reconsideration
filed by petitioners with the Court of
Appeals. In their
Comment, 12 private respondents
contend that the petition should not be
given due course since the motion for
reconsideration of the petitioners on the
decision of the Court of Appeals was
validly dismissed by the appellate court
for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals
that the reason behind the delay in filing
the motion for reconsideration is
attributable to the fact that the decision of
the Court of Appeals was not sent to then
counsel on record of petitioners, the
Coronel Law Office. In fact, a copy of the
decision of the appellate court was
instead sent to and received by petitioner
Rogelio Ramos on 9 June 1995 wherein
he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other
communications received by petitioner
Rogelio Ramos, the appellate court
apparently mistook him for the counsel
on record. Thus, no copy of the decision
of the counsel on record. Petitioner, not
being a lawyer and unaware of the
prescriptive period for filing a motion for
reconsideration, referred the same to a
It is elementary that when a party is
represented by counsel, all notices
should be sent to the party's lawyer at his
given address. With a few exceptions,
notice to a litigant without notice to his
counsel on record is no notice at all. In
the present case, since a copy of the
decision of the appellate court was not
sent to the counsel on record of
petitioner, there can be no sufficient
notice to speak of. Hence, the delay in
the filing of the motion for reconsideration
cannot be taken against petitioner.
Moreover, since the Court of Appeals
already issued a second Resolution,
dated 29 March 1996, which superseded
the earlier resolution issued on 25 July
1995, and denied the motion for
reconsideration of petitioner, we believed
that the receipt of the former should be
considered in determining the timeliness
of the filing of the present petition. Based
on this, the petition before us was
submitted on time.
After resolving the foregoing procedural
issue, we shall now look into the merits
of the case. For a more logical
presentation of the discussion we shall
first consider the issue on the
applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter,
the first two assigned errors shall be
tackled in relation to the res ipsa loquitur
doctrine.
Res ipsa loquitur is a Latin phrase which
literally means "the thing or the
transaction speaks for itself." The phrase
"res ipsa loquitur'' is a maxim for the rule
that the fact of the occurrence of an
injury, taken with the surrounding
circumstances, may permit an inference
or raise a presumption of negligence, or
make out a plaintiff's prima facie case,
and present a question of fact for
defendant to meet with an explanation.
13 Where the thing which caused the
injury complained of is shown to be under
the management of the defendant or his
servants and the accident is such as in
ordinary course of things does not
happen if those who have its
management or control use proper care,
it affords reasonable evidence, in the
absence of explanation by the
defendant, that the accident arose from
or was caused by the defendant's want
of care. 14
The doctrine of res ipsa loquitur is simply
a recognition of the postulate that, as a
matter of common knowledge and
experience, the very nature of certain
types of occurrences may justify an
inference of negligence on the part of the
person who controls the instrumentality
causing the injury in the absence of some
explanation by the defendant who is
charged with negligence. 15 It is
grounded in the superior logic of ordinary
human experience and on the basis of
such experience or common knowledge,
negligence may be deduced from the
mere occurrence of the accident itself. 16
Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common
knowledge.
However, much has been said that res
ipsa loquitur is not a rule of substantive
law and, as such, does not create or
constitute an independent or separate
ground of liability. 17 Instead, it is
considered as merely evidentiary or in
the nature of a procedural rule. 18 It is
regarded as a mode of proof, or a mere
procedural of convenience since it
furnishes a substitute for, and relieves a
plaintiff of, the burden of producing
specific proof of negligence. 19 In other
words, mere invocation and application
of the doctrine does not dispense with
the requirement of proof of negligence. It
is simply a step in the process of such
proof, permitting the plaintiff to present
along with the proof of the accident,
enough of the attending circumstances to
invoke the doctrine, creating an inference
or presumption of negligence, and to
thereby place on the defendant the
burden of going forward with the proof.
20 Still, before resort to the doctrine may
be allowed, the following requisites must
be satisfactorily shown:
1. The accident is of a kind
which ordinarily does not occur in the
absence of someone's negligence;
2. It is caused by an
instrumentality within the exclusive
control of the defendant or defendants;
and
3. The possibility of contributing
conduct which would make the plaintiff
responsible is eliminated. 21
In the above requisites, the fundamental
element is the "control of instrumentality"
which caused the damage. 22 Such
element of control must be shown to be
within the dominion of the defendant. In
order to have the benefit of the rule, a
plaintiff, in addition to proving injury or
damage, must show a situation where it
is applicable, and must establish that the
essential elements of the doctrine were
present in a particular incident. 23
Medical malpractice 24 cases do not
escape the application of this doctrine.
Thus, res ipsa loquitur has been applied
when the circumstances attendant upon
the harm are themselves of such a
character as to justify an inference of
negligence as the cause of that harm. 25
The application of res ipsa loquitur in
medical negligence cases presents a
question of law since it is a judicial
function to determine whether a certain
set of circumstances does, as a matter of
law, permit a given inference. 26
Although generally, expert medical
testimony is relied upon in malpractice
suits to prove that a physician has done
a negligent act or that he has deviated
from the standard medical procedure,
when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for
expert medical testimony is dispensed
with because the injury itself provides the
proof of negligence. 27 The reason is
that the general rule on the necessity of
expert testimony applies only to such
matters clearly within the domain of
medical science, and not to matters that
are within the common knowledge of
mankind which may be testified to by
anyone familiar with the facts. 28
Ordinarily, only physicians and surgeons
of skill and experience are competent to
testify as to whether a patient has been
treated or operated upon with a
reasonable degree of skill and care.
However, testimony as to the statements
and acts of physicians and surgeons,
external appearances, and manifest
conditions which are observable by any
one may be given by non-expert
witnesses. 29 Hence, in cases where the
res ipsa loquitur is applicable, the court is
permitted to find a physician negligent
upon proper proof of injury to the patient,
without the aid of expert testimony,
where the court from its fund of common
knowledge can determine the proper
standard of care. 30 Where common
knowledge and experience teach that a
resulting injury would not have occurred
to the patient if due care had been
exercised, an inference of negligence
may be drawn giving rise to an
application of the doctrine of res ipsa
loquitur without medical evidence, which
is ordinarily required to show not only
what occurred but how and why it
occurred. 31 When the doctrine is
appropriate, all that the patient must do
is prove a nexus between the particular
act or omission complained of and the
injury sustained while under the custody
and management of the defendant
without need to produce expert medical
testimony to establish the standard of
care. Resort to res ipsa loquitur is
allowed because there is no other way,
under usual and ordinary conditions, by
which the patient can obtain redress for
injury suffered by him.
Thus, courts of other jurisdictions have
applied the doctrine in the following
situations: leaving of a foreign object in
the body of the patient after an operation,
32 injuries sustained on a healthy part of
the body which was not under, or in the
area, of treatment, 33 removal of the
wrong part of the body when another part
was intended, 34 knocking out a tooth
while a patient's jaw was under
anesthetic for the removal of his tonsils,
35 and loss of an eye while the patient
plaintiff was under the influence of
anesthetic, during or following an
operation for appendicitis, 36 among
others.
Nevertheless, despite the fact that the
scope of res ipsa loquitur has been
measurably enlarged, it does not
automatically apply to all cases of
medical negligence as to mechanically
shift the burden of proof to the defendant
to show that he is not guilty of the
ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be
cautiously applied, depending upon the
circumstances of each case. It is
generally restricted to situations in
malpractice cases where a layman is
able to say, as a matter of common
knowledge and observation, that the
consequences of professional care were
not as such as would ordinarily have
followed if due care had been
exercised. 37 A distinction must be made
between the failure to secure results, and
the occurrence of something more
unusual and not ordinarily found if the
service or treatment rendered followed
the usual procedure of those skilled in
that particular practice. It must be
conceded that the doctrine of res ipsa
loquitur can have no application in a suit
against a physician or surgeon which
involves the merits of a diagnosis or of a
scientific treatment. 38 The physician or
surgeon is not required at his peril to
explain why any particular diagnosis was
not correct, or why any particular
scientific treatment did not produce the
desired result. 39 Thus, res ipsa loquitur
is not available in a malpractice suit if the
only showing is that the desired result of
an operation or treatment was not
accomplished. 40 The real question,
therefore, is whether or not in the
process of the operation any
extraordinary incident or unusual event
outside of the routine performance
occurred which is beyond the regular
scope of customary professional activity
in such operations, which, if unexplained
would themselves reasonably speak to
the average man as the negligent cause
or causes of the untoward consequence.
41 If there was such extraneous
interventions, the doctrine of res ipsa
loquitur may be utilized and the
defendant is called upon to explain the
matter, by evidence of exculpation, if he
could. 42
We find the doctrine of res ipsa loquitur
appropriate in the case at bar. As will
hereinafter be explained, the damage
sustained by Erlinda in her brain prior to
a scheduled gall bladder operation
presents a case for the application of res
ipsa loquitur.
A case strikingly similar to the one before
us is Voss vs. Bridwell, 43 where the
Kansas Supreme Court in applying the
res ipsa loquitur stated:
The plaintiff herein submitted himself for
a mastoid operation and delivered his
person over to the care, custody and
control of his physician who had
complete and exclusive control over him,
but the operation was never performed.
At the time of submission he was
neurologically sound and physically fit in
mind and body, but he suffered
irreparable damage and injury rendering
him decerebrate and totally
incapacitated. The injury was one which
does not ordinarily occur in the process
of a mastoid operation or in the absence
of negligence in the administration of an
anesthetic, and in the use and
employment of an endoctracheal tube.
Ordinarily a person being put under
anesthesia is not rendered decerebrate
as a consequence of administering such
anesthesia in the absence of negligence.
Upon these facts and under these
circumstances a layman would be able to
say, as a matter of common knowledge
and observation, that the consequences
of professional treatment were not as
such as would ordinarily have followed if
due care had been exercised.
Here the plaintiff could not have been
guilty of contributory negligence because
he was under the influence of
anesthetics and unconscious, and the
circumstances are such that the true
explanation of event is more accessible
to the defendants than to the plaintiff for
they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and
circumstances alleged in Count II it is
held that a cause of action is stated
under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the
aforequoted case apply with equal force
here. In the present case, Erlinda
submitted herself for cholecystectomy
and expected a routine general surgery
to be performed on her gall bladder. On
that fateful day she delivered her person
over to the care, custody and control of
private respondents who exercised
complete and exclusive control over her.
At the time of submission, Erlinda was
neurologically sound and, except for a
few minor discomforts, was likewise
physically fit in mind and body. However,
during the administration of anesthesia
and prior to the performance of
cholecystectomy she suffered
irreparable damage to her brain. Thus,
without undergoing surgery, she went out
of the operating room already
decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda
sustained, is an injury which does not
normally occur in the process of a gall
bladder operation. In fact, this kind of
situation does not in the absence of
negligence of someone in the
administration of anesthesia and in the
use of endotracheal tube. Normally, a
person being put under anesthesia is not
rendered decerebrate as a consequence
of administering such anesthesia if the
proper procedure was followed.
Furthermore, the instruments used in the
administration of anesthesia, including
the endotracheal tube, were all under the
exclusive control of private respondents,
who are the physicians-in-charge.
Likewise, petitioner Erlinda could not
have been guilty of contributory
negligence because she was under the
influence of anesthetics which rendered
her unconscious.
Considering that a sound and unaffected
member of the body (the brain) is injured
or destroyed while the patient is
unconscious and under the immediate
and exclusive control of the physicians,
we hold that a practical administration of
justice dictates the application of res ipsa
loquitur. Upon these facts and under
these circumstances the Court would be
able to say, as a matter of common
knowledge and observation, if
negligence attended the management
and care of the patient. Moreover, the
liability of the physicians and the hospital
in this case is not predicated upon an
alleged failure to secure the desired
results of an operation nor on an alleged
lack of skill in the diagnosis or treatment
as in fact no operation or treatment was
ever performed on Erlinda. Thus, upon
all these initial determination a case is
made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa
loquitur is available to the present case
we are not saying that the doctrine is
applicable in any and all cases where
injury occurs to a patient while under
anesthesia, or to any and all anesthesia
cases. Each case must be viewed in its
own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of the res
ipsa loquitur doctrine and the
presumption of negligence allowed
therein, the Court now comes to the
issue of whether the Court of Appeals
erred in finding that private respondents
were not negligent in the care of Erlinda
during the anesthesia phase of the
operation and, if in the affirmative,
whether the alleged negligence was the
proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also
determine if the Court of Appeals erred in
relying on the testimonies of the
witnesses for the private respondents.
In sustaining the position of private
respondents, the Court of Appeals relied
on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving
weight to the testimony of Dra. Gutierrez,
the Court of Appeals rationalized that she
was candid enough to admit that she
experienced some difficulty in the
endotracheal intubation 45 of the patient
and thus, cannot be said to be covering
her negligence with falsehood. The
appellate court likewise opined that
private respondents were able to show
that the brain damage sustained by
Erlinda was not caused by the alleged
faulty intubation but was due to the
allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-
acting barbiturate, as testified on by their
expert witness, Dr. Jamora. On the other
hand, the appellate court rejected the
testimony of Dean Herminda Cruz
offered in favor of petitioners that the
cause of the brain injury was traceable to
the wrongful insertion of the tube since
the latter, being a nurse, was allegedly
not knowledgeable in the process of
intubation. In so holding, the appellate
court returned a verdict in favor of
respondents physicians and hospital and
absolved them of any liability towards
Erlinda and her family.
We disagree with the findings of the
Court of Appeals. We hold that private
respondents were unable to disprove the
presumption of negligence on their part
in the care of Erlinda and their
negligence was the proximate cause of
her piteous condition.
In the instant case, the records are
helpful in furnishing not only the logical
scientific evidence of the pathogenesis of
the injury but also in providing the Court
the legal nexus upon which liability is
based. As will be shown hereinafter,
private respondents' own testimonies
which are reflected in the transcript of
stenographic notes are replete of
signposts indicative of their negligence in
the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her
negligent in the care of Erlinda during the
anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed
to properly intubate the patient. This fact
was attested to by Prof. Herminda Cruz,
Dean of the Capitol Medical Center
School of Nursing and petitioner's sister-
in-law, who was in the operating room
right beside the patient when the tragic
event occurred. Witness Cruz testified to
this effect:
ATTY. PAJARES:
Q: In particular, what did Dra.
Perfecta Gutierrez do, if any on the
patient?
A: In particular, I could see that
she was intubating the patient.
Q: Do you know what happened
to that intubation process administered
by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the A: When Dr. Calderon try (sic) to We do not agree with the above
patient, I was beside the stretcher intubate the patient, after a while the reasoning of the appellate court.
holding the left hand of the patient and all patient's nailbed became bluish and I Although witness Cruz is not an
of a sudden heard some remarks coming saw the patient was placed in anesthesiologist, she can very well testify
from Dra. Perfecta Gutierrez herself. She trendelenburg position. upon matters on which she is capable of
was saying "Ang hirap ma-intubate nito, observing such as, the statements and
mali yata ang pagkakapasok. O lumalaki xxx xxx xxx acts of the physician and surgeon,
ang tiyan. external appearances, and manifest
Q: Do you know the reason why conditions which are observable by any
xxx xxx xxx the patient was placed in that one. 48 This is precisely allowed under
trendelenburg position? the doctrine of res ipsa loquitur where the
ATTY. PAJARES: testimony of expert witnesses is not
A: As far as I know, when a required. It is the accepted rule that
Q: From whom did you hear patient is in that position, there is a expert testimony is not necessary for the
those words "lumalaki ang tiyan"? decrease of blood supply to the brain. 46 proof of negligence in non-technical
matters or those of which an ordinary
A: From Dra. Perfecta Gutierrez. xxx xxx xxx person may be expected to have
knowledge, or where the lack of skill or
xxx xxx xxx The appellate court, however, want of care is so obvious as to render
disbelieved Dean Cruz's testimony in the expert testimony unnecessary. 49 We
Q: After hearing the phrase trial court by declaring that: take judicial notice of the fact that
"lumalaki ang tiyan," what did you notice anesthesia procedures have become so
on the person of the patient? A perusal of the standard nursing common, that even an ordinary person
curriculum in our country will show that can tell if it was administered properly. As
A: I notice (sic) some bluish intubation is not taught as part of nursing such, it would not be too difficult to tell if
discoloration on the nailbeds of the left procedures and techniques. Indeed, we the tube was properly inserted. This kind
hand where I was at. take judicial notice of the fact that nurses of observation, we believe, does not
do not, and cannot, intubate. Even on the require a medical degree to be
Q: Where was Dr. Orlino assumption that she is fully capable of acceptable.
Ho[s]aka then at that particular time? determining whether or not a patient is
properly intubated, witness Herminda At any rate, without doubt, petitioner's
A: I saw him approaching the Cruz, admittedly, did not peep into the witness, an experienced clinical nurse
patient during that time. throat of the patient. (TSN, July 25, 1991, whose long experience and scholarship
p. 13). More importantly, there is no led to her appointment as Dean of the
Q: When he approached the evidence that she ever auscultated the Capitol Medical Center School at
patient, what did he do, if any? patient or that she conducted any type of Nursing, was fully capable of determining
examination to check if the endotracheal whether or not the intubation was a
A: He made an order to call on tube was in its proper place, and to success. She had extensive clinical
the anesthesiologist in the person of Dr. determine the condition of the heart, experience starting as a staff nurse in
Calderon. lungs, and other organs. Thus, witness Chicago, Illinois; staff nurse and clinical
Cruz's categorical statements that instructor in a teaching hospital, the FEU-
Q: Did Dr. Calderon, upon being appellant Dra. Gutierrez failed to intubate NRMF; Dean of the Laguna College of
called, arrive inside the operating room? the appellee Erlinda Ramos and that it Nursing in San Pablo City; and then
was Dra. Calderon who succeeded in Dean of the Capitol Medical Center
A: Yes sir. doing so clearly suffer from lack of School of Nursing. 50 Reviewing witness
sufficient factual bases. 47 Cruz' statements, we find that the same
Q: What did [s]he do, if any? were delivered in a straightforward
In other words, what the Court of Appeals manner, with the kind of detail, clarity,
A: [S]he tried to intubate the is trying to impress is that being a nurse, consistency and spontaneity which
patient. and considered a layman in the process would have been difficult to fabricate.
of intubation, witness Cruz is not With her clinical background as a nurse,
Q: What happened to the competent to testify on whether or not the the Court is satisfied that she was able to
patient? intubation was a success. demonstrate through her testimony what
truly transpired on that fateful day.
Most of all, her testimony was affirmed by
no less than respondent Dra. Gutierrez
who admitted that she experienced
difficulty in inserting the tube into
Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case,
Doctora, while you were intubating at
your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube
immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata
ito," what were you referring to?
A: "Mahirap yata itong i-
intubate," that was the patient.
Q: So, you found some difficulty
in inserting the tube?
A: Yes, because of (sic) my first
attempt, I did not see right away. 51
Curiously in the case at bar, respondent
Dra. Gutierrez made the haphazard
defense that she encountered hardship
in the insertion of the tube in the trachea
of Erlinda because it was positioned
more anteriorly (slightly deviated from
the normal anatomy of a person) 52
making it harder to locate and, since
Erlinda is obese and has a short neck
and protruding teeth, it made intubation
even more difficult.
The argument does not convince us. If
this was indeed observed, private
respondents adduced no evidence
demonstrating that they proceeded to
make a thorough assessment of
Erlinda's airway, prior to the induction of
anesthesia, even if this would mean
postponing the procedure. From their
testimonies, it appears that the
observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient
prior to the administration of anesthesia
is universally observed to lessen the
possibility of anesthetic accidents. Pre-
operative evaluation and preparation for
anesthesia begins when the
anesthesiologist reviews the patient's
medical records and visits with the
patient, traditionally, the day before
elective surgery. 53 It includes taking the
patient's medical history, review of
current drug therapy, physical
examination and interpretation of
laboratory data. 54 The physical
examination performed by the
anesthesiologist is directed primarily
toward the central nervous system,
cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the
patient's airway normally involves
investigating the following: cervical spine
mobility, temporomandibular mobility,
prominent central incisors, diseased or
artificial teeth, ability to visualize uvula
and the thyromental distance. 56 Thus,
physical characteristics of the patient's
upper airway that could make tracheal
intubation difficult should be studied. 57
Where the need arises, as when initial
assessment indicates possible problems
(such as the alleged short neck and
protruding teeth of Erlinda) a thorough
examination of the patient's airway would
go a long way towards decreasing
patient morbidity and mortality.
In the case at bar, respondent Dra.
Gutierrez admitted that she saw Erlinda
for the first time on the day of the
operation itself, on 17 June 1985. Before
this date, no prior consultations with, or
pre-operative evaluation of Erlinda was
done by her. Until the day of the
operation, respondent Dra. Gutierrez
was unaware of the physiological make-
up and needs of Erlinda. She was
likewise not properly informed of the
possible difficulties she would face
during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez' act
of seeing her patient for the first time only
an hour before the scheduled operative
procedure was, therefore, an act of
exceptional negligence and professional
irresponsibility. The measures cautioning
prudence and vigilance in dealing with
human lives lie at the core of the
physician's centuries-old Hippocratic
Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of
her negligence.
Respondent Dra. Gutierrez, however,
attempts to gloss over this omission by
playing around with the trial court's
ignorance of clinical procedure, hoping
that she could get away with it.
Respondent Dra. Gutierrez tried to
muddle the difference between an
elective surgery and an emergency
surgery just so her failure to perform the
required pre-operative evaluation would
escape unnoticed. In her testimony she
asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that
it is good medical practice to see the
patient a day before so you can introduce
yourself to establish good doctor-patient
relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous
statement, it depends on the operative
procedure of the anesthesiologist and in
my case, with elective cases and normal
cardio-pulmonary clearance like that, I
usually don't do it except on emergency
and on cases that have an abnormalities
(sic). 58
However, the exact opposite is true. In an
emergency procedure, there is hardly
enough time available for the fastidious
demands of pre-operative procedure so
that an anesthesiologist is able to see the
patient only a few minutes before
surgery, if at all. Elective procedures, on
the other hand, are operative procedures
that can wait for days, weeks or even
months. Hence, in these cases, the
anesthesiologist possesses the luxury of
time to be at the patient's beside to do a
proper interview and clinical evaluation.
There is ample time to explain the
method of anesthesia, the drugs to be
used, and their possible hazards for
purposes of informed consent. Usually,
the pre-operative assessment is
conducted at least one day before the
intended surgery, when the patient is
relaxed and cooperative.
Erlinda's case was elective and this was
known to respondent Dra. Gutierrez.
Thus, she had all the time to make a
thorough evaluation of Erlinda's case
prior to the operation and prepare her for
anesthesia. However, she never saw the
patient at the bedside. She herself
admitted that she had seen petitioner
only in the operating room, and only on
the actual date of the cholecystectomy.
She negligently failed to take advantage
of this important opportunity. As such,
her attempt to exculpate herself must fail.
Having established that respondent Dra.
Gutierrez failed to perform pre-operative
evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now
determine if the faulty intubation is truly
the proximate cause of Erlinda's
comatose condition.
Private respondents repeatedly
hammered the view that the cerebral
anoxia which led to Erlinda's coma was
due to bronchospasm 59 mediated by
her allergic response to the drug,
Thiopental Sodium, introduced into her
system. Towards this end, they
presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and
Diplomate of the Philippine Specialty
Board of Internal Medicine, who
advanced private respondents' theory
that the oxygen deprivation which led to
anoxic encephalopathy, 60 was due to
an unpredictable drug reaction to the
short-acting barbiturate. We find the
theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be
considered an authority in the field of
anesthesiology simply because he is not
an anesthesiologist. Since Dr. Jamora is
a pulmonologist, he could not have been
capable of properly enlightening the
court about anesthesia practice and
procedure and their complications. Dr.
Jamora is likewise not an allergologist
and could not therefore properly advance
expert opinion on allergic-mediated
processes. Moreover, he is not a
pharmacologist and, as such, could not
have been capable, as an expert would,
of explaining to the court the
pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of
accepting Dr. Jamora's testimony as an
expert witness in the anesthetic practice
of Pentothal administration is further
supported by his own admission that he
formulated his opinions on the drug not
from the practical experience gained by
a specialist or expert in the
administration and use of Sodium
Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any occasion
to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with
the anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you
practice pulmonology?
A: No.
Q: In other words, your
knowledge about pentothal is based only
on what you have read from books and
not by your own personal application of
the medicine pentothal?
A: Based on my personal
experience also on pentothal.
Q: How many times have you
used pentothal?
A: They used it on me. I went
into bronchospasm during my
appendectomy.
Q: And because they have used
it on you and on account of your own
personal experience you feel that you
can testify on pentothal here with medical
authority?
A: No. That is why I used
references to support my claims. 61
An anesthetic accident caused by a rare
drug-induced bronchospasm properly
falls within the fields of anesthesia,
internal medicine-allergy, and clinical
pharmacology. The resulting anoxic
encephalopathy belongs to the field of
neurology. While admittedly, many
bronchospastic-mediated pulmonary
diseases are within the expertise of
pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this
case is within the disciplines of
anesthesiology, allergology and
pharmacology. On the basis of the
foregoing transcript, in which the
pulmonologist himself admitted that he
could not testify about the drug with
medical authority, it is clear that the
appellate court erred in giving weight to
Dr. Jamora's testimony as an expert in
the administration of Thiopental Sodium.
The provision in the rules of evidence 62
regarding expert witnesses states:
Sec. 49. Opinion of expert witness. —
The opinion of a witness on a matter
requiring special knowledge, skill,
experience or training which he is shown
to possess, may be received in evidence.
Generally, to qualify as an expert
witness, one must have acquired special
knowledge of the subject matter about
which he or she is to testify, either by the
study of recognized authorities on the
subject or by practical experience. 63
Clearly, Dr. Jamora does not qualify as
an expert witness based on the above
standard since he lacks the necessary
knowledge, skill, and training in the field
of anesthesiology. Oddly, apart from
submitting testimony from a specialist in
the wrong field, private respondents'
intentionally avoided providing testimony
by competent and independent experts
in the proper areas.
Moreover, private respondents' theory,
that Thiopental Sodium may have
produced Erlinda's coma by triggering an
allergic mediated response, has no
support in evidence. No evidence of
stridor, skin reactions, or wheezing —
some of the more common
accompanying signs of an allergic
reaction — appears on record. No
laboratory data were ever presented to
the court.
In any case, private respondents
themselves admit that Thiopental
induced, allergic-mediated
bronchospasm happens only very rarely.
If courts were to accept private
respondents' hypothesis without
supporting medical proof, and against
the weight of available evidence, then
every anesthetic accident would be an
act of God. Evidently, the Thiopental-
allergy theory vigorously asserted by
private respondents was a mere
afterthought. Such an explanation was
advanced in order to advanced in order
to absolve them of any and all
responsibility for the patient's condition.
In view of the evidence at hand, we are
inclined to believe petitioners' stand that
it was the faulty intubation which was the
proximate cause of Erlinda's comatose
condition.
Proximate cause has been defined as
that which, in natural and continuous
sequence, unbroken by any efficient
intervening cause, produces injury, and
without which the result would not have
occurred. 64 An injury or damage is
proximately caused by an act or a failure
to act, whenever it appears from the
evidence in the case, that the act or
omission played a substantial part in
bringing about or actually causing the
injury or damage; and that the injury or
damage was either a direct result or a
reasonably probable consequence of the
act or omission. 65 It is the dominant,
moving or producing cause.
Applying the above definition in relation
to the evidence at hand, faulty intubation
is undeniably the proximate cause which
triggered the chain of events leading to
Erlinda's brain damage and, ultimately,
her comatosed condition.
Private respondents themselves
admitted in their testimony that the first
intubation was a failure. This fact was
likewise observed by witness Cruz when
she heard respondent Dra. Gutierrez
remarked, "Ang hirap ma-intubate nito,
mali yata ang pagkakapasok. O lumalaki
ang tiyan." Thereafter, witness Cruz
noticed abdominal distention on the body
of Erlinda. The development of
abdominal distention, together with
respiratory embarrassment indicates that
the endotracheal tube entered the
esophagus instead of the respiratory
tree. In other words, instead of the
intended endotracheal intubation what
actually took place was an esophageal
intubation. During intubation, such
distention indicates that air has entered
the gastrointestinal tract through the
esophagus instead of the lungs through
the trachea. Entry into the esophagus
would certainly cause some delay in
oxygen delivery into the lungs as the tube
which carries oxygen is in the wrong
place. That abdominal distention had
been observed during the first intubation
suggests that the length of time utilized
in inserting the endotracheal tube (up to
the time the tube was withdrawn for the
second attempt) was fairly significant.
Due to the delay in the delivery of oxygen
in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony
of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed
that the nailbeds of Erlinda were already
blue. 67 However, private respondents
contend that a second intubation was
executed on Erlinda and this one was
successfully done. We do not think so.
No evidence exists on record, beyond
private respondents' bare claims, which
supports the contention that the second
intubation was successful. Assuming
that the endotracheal tube finally found
its way into the proper orifice of the
trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a
successful intubation. In fact, cyanosis
was again observed immediately after
the second intubation. Proceeding from
this event (cyanosis), it could not be
claimed, as private respondents insist,
that the second intubation was
accomplished. Even granting that the
tube was successfully inserted during the
second attempt, it was obviously too late.
As aptly explained by the trial court,
Erlinda already suffered brain damage as
a result of the inadequate oxygenation of
her brain for about four to five minutes.
68
The above conclusion is not without
basis. Scientific studies point out that
intubation problems are responsible for
one-third (1/3) of deaths and serious
injuries associated with anesthesia. 69
Nevertheless, ninety-eight percent (98%)
or the vast majority of difficult intubations
may be anticipated by performing a
thorough evaluation of the patient's
airway prior to the operation. 70 As
stated beforehand, respondent Dra.
Gutierrez failed to observe the proper
pre-operative protocol which could have
prevented this unfortunate incident. Had
appropriate diligence and reasonable
care been used in the pre-operative
evaluation, respondent physician could
have been much more prepared to meet
the contingency brought about by the
perceived anatomic variations in the
patient's neck and oral area, defects
which would have been easily overcome
by a prior knowledge of those variations
together with a change in technique. 71
In other words, an experienced
anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would
have had little difficulty going around the
short neck and protruding teeth. 72
Having failed to observe common
medical standards in pre-operative
management and intubation, respondent
Dra. Gutierrez' negligence resulted in
cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of
respondent Dr. Orlino Hosaka as the
head of the surgical team. As the so-
called "captain of the ship," 73 it is the
surgeon's responsibility to see to it that
those under him perform their task in the
proper manner. Respondent Dr.
Hosaka's negligence can be found in his
failure to exercise the proper authority
(as the "captain" of the operative team) in
not determining if his anesthesiologist
observed proper anesthesia protocols. In
fact, no evidence on record exists to
show that respondent Dr. Hosaka
verified if respondent Dra. Gutierrez
properly intubated the patient.
Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled
another procedure in a different hospital
at the same time as Erlinda's
cholecystectomy, and was in fact over
three hours late for the latter's operation.
Because of this, he had little or no time
to confer with his anesthesiologist
regarding the anesthesia delivery. This
indicates that he was remiss in his
professional duties towards his patient.
Thus, he shares equal responsibility for
the events which resulted in Erlinda's
condition.
We now discuss the responsibility of the
hospital in this particular incident. The
unique practice (among private
hospitals) of filling up specialist staff with
attending and visiting "consultants," 74
who are allegedly not hospital
employees, presents problems in
apportioning responsibility for negligence
in medical malpractice cases. However,
the difficulty is only more apparent than
real.
In the first place, hospitals exercise
significant control in the hiring and firing
of consultants and in the conduct of their
work within the hospital premises.
Doctors who apply for "consultant" slots,
visiting or attending, are required to
submit proof of completion of residency,
their educational qualifications;
generally, evidence of accreditation by
the appropriate board (diplomate),
evidence of fellowship in most cases,
and references. These requirements are
carefully scrutinized by members of the
hospital administration or by a review
committee set up by the hospital who
either accept or reject the application. 75
This is particularly true with respondent
hospital.
After a physician is accepted, either as a
visiting or attending consultant, he is
normally required to attend clinico-
pathological conferences, conduct
bedside rounds for clerks, interns and
residents, moderate grand rounds and
patient audits and perform other tasks
and responsibilities, for the privilege of
being able to maintain a clinic in the
hospital, and/or for the privilege of
admitting patients into the hospital. In
addition to these, the physician's
performance as a specialist is generally
evaluated by a peer review committee on
the basis of mortality and morbidity
statistics, and feedback from patients,
nurses, interns and residents. A
consultant remiss in his duties, or a
consultant who regularly falls short of the
minimum standards acceptable to the
hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire
and exercise real control over their
attending and visiting "consultant" staff.
While "consultants" are not, technically
employees, a point which respondent
hospital asserts in denying all
responsibility for the patient's condition,
the control exercised, the hiring, and the
right to terminate consultants all fulfill the
important hallmarks of an employer-
employee relationship, with the
exception of the payment of wages. In
assessing whether such a relationship in
fact exists, the control test is determining.
Accordingly, on the basis of the
foregoing, we rule that for the purpose of
allocating responsibility in medical
negligence cases, an employer-
employee relationship in effect exists
between hospitals and their attending
and visiting physicians. This being the
case, the question now arises as to
whether or not respondent hospital is
solidarily liable with respondent doctors
for petitioner's condition. 76
The basis for holding an employer
solidarily responsible for the negligence
of its employee is found in Article 2180 of
the Civil Code which considers a person
accountable not only for his own acts but
also for those of others based on the
former's responsibility under a
relationship of patria potestas. 77 Such
responsibility ceases when the persons
or entity concerned prove that they have
observed the diligence of a good father
of the family to prevent damage. 78 In
other words, while the burden of proving
negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to
the respondents (parent, guardian,
teacher or employer) who should prove
that they observed the diligence of a
good father of a family to prevent
damage.
In the instant case, respondent hospital,
apart from a general denial of its
responsibility over respondent
physicians, failed to adduce evidence
showing that it exercised the diligence of
a good father of a family in the hiring and
supervision of the latter. It failed to
adduce evidence with regard to the
degree of supervision which it exercised
over its physicians. In neglecting to offer
such proof, or proof of a similar nature,
respondent hospital thereby failed to
discharge its burden under the last
paragraph of Article 2180. Having failed
to do this, respondent hospital is
consequently solidarily responsible with
its physicians for Erlinda's condition.
Based on the foregoing, we hold that the
Court of Appeals erred in accepting and
relying on the testimonies of the
witnesses for the private respondents.
Indeed, as shown by the above
discussions, private respondents were
unable to rebut the presumption of
negligence. Upon these disquisitions we
hold that private respondents are
solidarily liable for damages under Article
2176 79 of the Civil Code.
We now come to the amount of damages
due petitioners. The trial court awarded a
total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages
to the plaintiff, "subject to its being
updated" covering the period from 15
November 1985 up to 15 April 1992,
based on monthly expenses for the care
of the patient estimated at P8,000.00.
At current levels, the P8000/monthly
amount established by the trial court at
the time of its decision would be grossly
inadequate to cover the actual costs of
home-based care for a comatose
individual. The calculated amount was
not even arrived at by looking at the
actual cost of proper hospice care for the
patient. What it reflected were the actual
expenses incurred and proved by the
petitioners after they were forced to bring
home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient
should remain in a hospital or be
transferred to a hospice specializing in
the care of the chronically ill for the
purpose of providing a proper milieu
adequate to meet minimum standards of
care. In the instant case for instance,
Erlinda has to be constantly turned from
side to side to prevent bedsores and
hypostatic pneumonia. Feeding is done
by nasogastric tube. Food preparation
should be normally made by a dietitian to
provide her with the correct daily caloric
requirements and vitamin supplements.
Furthermore, she has to be seen on a
regular basis by a physical therapist to
avoid muscle atrophy, and by a
pulmonary therapist to prevent the
accumulation of secretions which can
lead to respiratory complications.
Given these considerations, the amount
of actual damages recoverable in suits
arising from negligence should at least
reflect the correct minimum cost of
proper care, not the cost of the care the
family is usually compelled to undertake
at home to avoid bankruptcy. However,
the provisions of the Civil Code on actual
or compensatory damages present us
with some difficulties.
Well-settled is the rule that actual
damages which may be claimed by the
plaintiff are those suffered by him as he
has duly proved. The Civil Code
provides:
Art. 2199. — Except as provided by law
or by stipulation, one is entitled to an
adequate compensation only for such
pecuniary loss suffered by him as he has
duly proved. Such compensation is
referred to as actual or compensatory
damages.
Our rules on actual or compensatory
damages generally assume that at the
time of litigation, the injury suffered as a
consequence of an act of negligence has
been completed and that the cost can be
liquidated. However, these provisions
neglect to take into account those
situations, as in this case, where the
resulting injury might be continuing and
possible future complications directly
arising from the injury, while certain to
occur, are difficult to predict.
In these cases, the amount of damages
which should be awarded, if they are to
adequately and correctly respond to the
injury caused, should be one which
compensates for pecuniary loss incurred
and proved, up to the time of trial; and
one which would meet pecuniary loss
certain to be suffered but which could
not, from the nature of the case, be made
with certainty. 80 In other words,
temperate damages can and should be
awarded on top of actual or
compensatory damages in instances
where the injury is chronic and
continuing. And because of the unique
nature of such cases, no incompatibility
arises when both actual and temperate
damages are provided for. The reason is
that these damages cover two distinct
phases.
As it would not be equitable — and
certainly not in the best interests of the
administration of justice — for the victim
in such cases to constantly come before
the courts and invoke their aid in seeking
adjustments to the compensatory
damages previously awarded —
temperate damages are appropriate.
The amount given as temperate
damages, though to a certain extent
speculative, should take into account the
cost of proper care.
In the instant case, petitioners were able
to provide only home-based nursing care
for a comatose patient who has remained
in that condition for over a decade.
Having premised our award for
compensatory damages on the amount
provided by petitioners at the onset of
litigation, it would be now much more in
step with the interests of justice if the
value awarded for temperate damages
would allow petitioners to provide optimal
care for their loved one in a facility which
generally specializes in such care. They
should not be compelled by dire
circumstances to provide substandard
care at home without the aid of
professionals, for anything less would be
grossly inadequate. Under the
circumstances, an award of
P1,500,000.00 in temperate damages
would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82
this Court was confronted with a situation
where the injury suffered by the plaintiff
would have led to expenses which were
difficult to estimate because while they
would have been a direct result of the
injury (amputation), and were certain to
be incurred by the plaintiff, they were
likely to arise only in the future. We
awarded P1,000,000.00 in moral
damages in that case.
Describing the nature of the injury, the
Court therein stated:
As a result of the accident, Ma. Lourdes
Valenzuela underwent a traumatic
amputation of her left lower extremity at
the distal left thigh just above the knee.
Because of this, Valenzuela will forever
be deprived of the full ambulatory
functions of her left extremity, even with
the use of state of the art prosthetic
technology. Well beyond the period of
hospitalization (which was paid for by Li),
she will be required to undergo
adjustments in her prosthetic devise due
to the shrinkage of the stump from the
process of healing.
These adjustments entail costs,
prosthetic replacements and months of
physical and occupational rehabilitation
and therapy. During the lifetime, the
prosthetic devise will have to be replaced
and readjusted to changes in the size of
her lower limb effected by the biological
changes of middle-age, menopause and
aging. Assuming she reaches
menopause, for example, the prosthetic
will have to be adjusted to respond to the
changes in bone resulting from a
precipitate decrease in calcium levels
observed in the bones of all post-
menopausal women. In other words, the
damage done to her would not only be
permanent and lasting, it would also be
permanently changing and adjusting to
the physiologic changes which her body
would normally undergo through the
years. The replacements, changes, and
adjustments will require corresponding
adjustive physical and occupational
therapy. All of these adjustments, it has
been documented, are painful.
xxx xxx xxx
A prosthetic devise, however
technologically advanced, will only allow
a reasonable amount of functional
restoration of the motor functions of the
lower limb. The sensory functions are
forever lost. The resultant anxiety,
sleeplessness, psychological injury,
mental and physical pain are
inestimable. 83
The injury suffered by Erlinda as a
consequence of private respondents'
negligence is certainly much more
serious than the amputation in the
Valenzuela case.
Petitioner Erlinda Ramos was in her mid-
forties when the incident occurred. She
has been in a comatose state for over
fourteen years now. The burden of care
has so far been heroically shouldered by
her husband and children, who, in the
intervening years have been deprived of
the love of a wife and a mother.
Meanwhile, the actual physical,
emotional and financial cost of the care
of petitioner would be virtually impossible
to quantify. Even the temperate damages
herein awarded would be inadequate if
petitioner's condition remains unchanged
for the next ten years.
We recognized, in Valenzuela that a
discussion of the victim's actual injury
would not even scratch the surface of the
resulting moral damage because it would
be highly speculative to estimate the
amount of emotional and moral pain,
psychological damage and injury
suffered by the victim or those actually
affected by the victim's condition. 84 The
husband and the children, all petitioners
in this case, will have to live with the day
to day uncertainty of the patient's illness,
knowing any hope of recovery is close to
nil. They have fashioned their daily lives
around the nursing care of petitioner,
altering their long term goals to take into
account their life with a comatose patient.
They, not the respondents, are charged
with the moral responsibility of the care
of the victim. The family's moral injury
and suffering in this case is clearly a real
one. For the foregoing reasons, an award
of P2,000,000.00 in moral damages
would be appropriate.
Finally, by way of example, exemplary
damages in the amount of P100,000.00
are hereby awarded. Considering the
length and nature of the instant suit we
are of the opinion that attorney's fees
valued at P100,000.00 are likewise
proper.
Our courts face unique difficulty in
adjudicating medical negligence cases
because physicians are not insurers of
life and, they rarely set out to intentionally
cause injury or death to their patients.
However, intent is immaterial in
negligence cases because where
negligence exists and is proven, the
same automatically gives the injured a
right to reparation for the damage
caused.
Established medical procedures and
practices, though in constant flux are
devised for the purpose of preventing
complications. A physician's experience
with his patients would sometimes tempt
him to deviate from established
community practices, and he may end a
distinguished career using unorthodox
methods without incident. However,
when failure to follow established
procedure results in the evil precisely
sought to be averted by observance of
the procedure and a nexus is made
between the deviation and the injury or
damage, the physician would necessarily
be called to account for it. In the case at
bar, the failure to observe pre-operative
assessment protocol which would have
influenced the intubation in a salutary
way was fatal to private respondents'
case.
WHEREFORE, the decision and
resolution of the appellate court
appealed from are hereby modified so as
to award in favor of petitioners, and
solidarily against private respondents the
following: 1) P1,352,000.00 as actual
damages computed as of the date of
promulgation of this decision plus a
monthly payment of P8,000.00 up to the
time that petitioner Erlinda Ramos
expires or miraculously survives; 2)
P2,000,000.00 as moral damages, 3)
P1,500,000.00 as temperate damages;
4) P100,000.00 each as exemplary
damages and attorney's fees; and, 5) the
costs of the suit.
SO ORDERED.
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-
appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart,
seeks to recover of the defendant, Frank
Smith, jr., the sum of P31,000, as
damages alleged to have been caused
by an automobile driven by the
defendant. From a judgment of the Court
of First Instance of the Province of La
Union absolving the defendant from
liability the plaintiff has appealed.
The occurrence which gave rise to the
institution of this action took place on
December 12, 1912, on the Carlatan
Bridge, at San Fernando, La Union. It
appears that upon the occasion in
question the plaintiff was riding on his
pony over said bridge. Before he had
gotten half way across, the defendant
approached from the opposite direction
in an automobile, going at the rate of
about ten or twelve miles per hour. As the
defendant neared the bridge he saw a
horseman on it and blew his horn to give
warning of his approach. He continued
his course and after he had taken the
bridge he gave two more successive
blasts, as it appeared to him that the man
on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the
automobile coming and heard the
warning signals. However, being
perturbed by the novelty of the apparition
or the rapidity of the approach, he pulled
the pony closely up against the railing on
the right side of the bridge instead of
going to the left. He says that the reason
he did this was that he thought he did not
have sufficient time to get over to the
other side. The bridge is shown to have
a length of about 75 meters and a width
of 4.80 meters. As the automobile
approached, the defendant guided it
toward his left, that being the proper side
of the road for the machine. In so doing
the defendant assumed that the
horseman would move to the other side.
The pony had not as yet exhibited fright,
and the rider had made no sign for the
automobile to stop. Seeing that the pony
was apparently quiet, the defendant,
instead of veering to the right while yet
some distance away or slowing down,
continued to approach directly toward the
horse without diminution of speed. When
he had gotten quite near, there being
then no possibility of the horse getting
across to the other side, the defendant
quickly turned his car sufficiently to the
right to escape hitting the horse
alongside of the railing where it as then
standing; but in so doing the automobile
passed in such close proximity to the
animal that it became frightened and
turned its body across the bridge with its
head toward the railing. In so doing, it as
struck on the hock of the left hind leg by
the flange of the car and the limb was
broken. The horse fell and its rider was
thrown off with some violence. From the
evidence adduced in the case we believe
that when the accident occurred the free
space where the pony stood between the
automobile and the railing of the bridge
was probably less than one and one half
meters. As a result of its injuries the
horse died. The plaintiff received
contusions which caused temporary
unconsciousness and required medical
attention for several days.
The question presented for decision is
whether or not the defendant in
maneuvering his car in the manner
above described was guilty of negligence
such as gives rise to a civil obligation to
repair the damage done; and we are of
the opinion that he is so liable. As the
defendant started across the bridge, he
had the right to assume that the horse
and the rider would pass over to the
proper side; but as he moved toward the
center of the bridge it was demonstrated
to his eyes that this would not be done;
and he must in a moment have perceived
that it was too late for the horse to cross
with safety in front of the moving vehicle.
In the nature of things this change of
situation occurred while the automobile
was yet some distance away; and from
this moment it was not longer within the
power of the plaintiff to escape being run
down by going to a place of greater
safety. The control of the situation had
then passed entirely to the defendant;
and it was his duty either to bring his car
to an immediate stop or, seeing that
there were no other persons on the
bridge, to take the other side and pass
sufficiently far away from the horse to
avoid the danger of collision. Instead of
doing this, the defendant ran straight on
until he was almost upon the horse. He
was, we think, deceived into doing this by
the fact that the horse had not yet
exhibited fright. But in view of the known
nature of horses, there was an
appreciable risk that, if the animal in
question was unacquainted with
automobiles, he might get exited and
jump under the conditions which here
confronted him. When the defendant
exposed the horse and rider to this
danger he was, in our opinion, negligent
in the eye of the law.
The test by which to determine the
existence of negligence in a particular
case may be stated as follows: Did the
defendant in doing the alleged negligent
act use that person would have used in
the same situation? If not, then he is
guilty of negligence. The law here in
effect adopts the standard supposed to
be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman
law. The existence of negligence in a
given case is not determined by
reference to the personal judgment of the
actor in the situation before him. The law
considers what would be reckless,
blameworthy, or negligent in the man of
ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute
the conduct of a prudent man in a given
situation must of course be always
determined in the light of human
experience and in view of the facts
involved in the particular case. Abstract
speculations cannot here be of much
value but this much can be profitably
said: Reasonable men govern their
conduct by the circumstances which are
before them or known to them. They are
not, and are not supposed to be,
omniscient of the future. Hence they can
be expected to take care only when there
is something before them to suggest or
warn of danger. Could a prudent man, in
the case under consideration, foresee
harm as a result of the course actually
pursued? If so, it was the duty of the actor
to take precautions to guard against that
harm. Reasonable foresight of harm,
followed by ignoring of the suggestion
born of this prevision, is always
necessary before negligence can be held
to exist. Stated in these terms, the proper
criterion for determining the existence of
negligence in a given case is this:
Conduct is said to be negligent when a
prudent man in the position of the
tortfeasor would have foreseen that an
effect harmful to another was sufficiently
probable to warrant his foregoing
conduct or guarding against its
consequences.
Applying this test to the conduct of the
defendant in the present case we think
that negligence is clearly established. A
prudent man, placed in the position of the
defendant, would in our opinion, have
recognized that the course which he was
pursuing was fraught with risk, and would
therefore have foreseen harm to the
horse and the rider as reasonable
consequence of that course. Under these
circumstances the law imposed on the
defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff
himself was not free from fault, for he
was guilty of antecedent negligence in
planting himself on 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 the person
who has the last fair 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.
The decision in the case of Rkes vs.
Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) should perhaps be mentioned
in this connection. This Court there held
that while contributory negligence on the
part of the person injured did not
constitute a bar to recovery, it could be
received in evidence to reduce the
damages which would otherwise have
been assessed wholly against the other
party. The defendant company had there
employed the plaintiff, as a laborer, to
assist in transporting iron rails from a
barge in Manila harbor to the company's
yards located not far away. The rails
were conveyed upon cars which were
hauled along a narrow track. At certain
spot near the water's edge the track gave
way by reason of the combined effect of
the weight of the car and the insecurity of
the road bed. The car was in
consequence upset; the rails slid off; and
the plaintiff's leg was caught and broken.
It appeared in evidence that the accident
was due to the effects of the typhoon
which had dislodged one of the supports
of the track. The court found that the
defendant company was negligent in
having failed to repair the bed of the track
and also that the plaintiff was, at the
moment of the accident, guilty of
contributory negligence in walking at the
side of the car instead of being in front or
behind. It was held that while the
defendant was liable to the plaintiff by
reason of its negligence in having failed
to keep the track in proper repair
nevertheless the amount of the damages
should be reduced on account of the
contributory negligence in the plaintiff. As
will be seen the defendant's negligence
in that case consisted in an omission
only. The liability of the company arose
from its responsibility for the dangerous
condition of its track. In a case like the
one now before us, where the defendant
was actually present and operating the
automobile which caused the damage,
we do not feel constrained to attempt to
weigh the negligence of the respective
parties in order to apportion the damage
according to the degree of their relative
fault. It is enough to say that the
negligence of the defendant was in this
case the immediate and determining
cause of the accident and that the
antecedent negligence of the plaintiff
was a more remote factor in the case.
A point of minor importance in the case
is indicated in the special defense
pleaded in the defendant's answer, to the
effect that the subject matter of the action
had been previously adjudicated in the
court of a justice of the peace. In this
connection it appears that soon after the
accident in question occurred, the
plaintiff caused criminal proceedings to
be instituted before a justice of the peace
charging the defendant with the infliction
of serious injuries (lesiones graves). At
the preliminary investigation the
defendant was discharged by the
magistrate and the proceedings were
dismissed. Conceding that the acquittal
of the defendant at the trial upon the
merits in a criminal prosecution for the
offense mentioned would be res
adjudicata upon the question of his civil
liability arising from negligence -- a point
upon which it is unnecessary to express
an opinion -- the action of the justice of
the peace in dismissing the criminal
proceeding upon the preliminary hearing
can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep.,
564.)
From what has been said it results that
the judgment of the lower court must be
reversed, and judgment is her rendered
that the plaintiff recover of the defendant
the sum of two hundred pesos (P200),
with costs of other instances. The sum
here awarded is estimated to include the
value of the horse, medical expenses of
the plaintiff, the loss or damage
occasioned to articles of his apparel, and
lawful interest on the whole to the date of
this recovery. The other damages
claimed by the plaintiff are remote or
otherwise of such character as not to be
recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo,
Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
G.R. No. L-23052 January 29, 1968
CITY OF MANILA, petitioner,
vs.
GENARO N. TEOTICO and COURT OF
APPEALS, respondents.
City Fiscal Manuel T. Reyes for
petitioner.
Sevilla, Daza and Associates for
respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of
the Court of Appeals.
On January 27, 1958, at about 8:00 p.m.,
Genaro N. Teotico was at the corner of
the Old Luneta and P. Burgos Avenue,
Manila, within a "loading and unloading"
zone, waiting for a jeepney to take him
down town. After waiting for about five
minutes, he managed to hail a jeepney
that came along to a stop. As he stepped
down from the curb to board the jeepney,
and took a few steps, he fell inside an
uncovered and unlighted catch basin or
manhole on P. Burgos Avenue. Due to
the fall, his head hit the rim of the
manhole breaking his eyeglasses and
causing broken pieces thereof to pierce
his left eyelid. As blood flowed therefrom,
impairing his vision, several persons
came to his assistance and pulled him
out of the manhole. One of them brought
Teotico to the Philippine General
Hospital, where his injuries were treated,
after which he was taken home. In
addition to the lacerated wound in his left
upper eyelid, Teotico suffered
contusions on the left thigh, the left upper
arm, the right leg and the upper lip apart
from an abrasion on the right infra-patella
region. These injuries and the allergic
eruption caused by anti-tetanus
injections administered to him in the
hospital, required further medical
treatment by a private practitioner who
charged therefor P1,400.00.
As a consequence of the foregoing
occurrence, Teotico filed, with the Court
of First Instance of Manila, a complaint —
which was, subsequently, amended —
for damages against the City of Manila,
its mayor, city engineer, city health
officer, city treasurer and chief of police.
As stated in the decision of the trial court,
and quoted with approval by the Court of
Appeals,
At the time of the incident, plaintiff was a
practicing public accountant, a
businessman and a professor at the
University of the East. He held
responsible positions in various business
firms like the Philippine Merchandising
Co., the A.U. Valencia and Co., the Silver
Swan Manufacturing Company and the
Sincere Packing Corporation. He was
also associated with several civic
organizations such as the Wack Wack
Golf Club, the Chamber of Commerce of
the Philippines, Y's Men Club of Manila
and the Knights of Rizal. As a result of
the incident, plaintiff was prevented from
engaging in his customary occupation for
twenty days. Plaintiff has lost a daily
income of about P50.00 during his
incapacity to work. Because of the
incident, he was subjected to humiliation
and ridicule by his business associates
and friends. During the period of his
treatment, plaintiff was under constant
fear and anxiety for the welfare of his
minor children since he was their only
support. Due to the filing of this case,
plaintiff has obligated himself to pay his
counsel the sum of P2,000.00.
On the other hand, the defense
presented evidence, oral and
documentary, to prove that the Storm
Drain Section, Office of the City Engineer
of Manila, received a report of the
uncovered condition of a catchbasin at
the corner of P. Burgos and Old Luneta
Streets, Manila, on January 24, 1958, but
the same was covered on the same day
(Exhibit 4); that again the iron cover of
the same catch basin was reported
missing on January 30, 1958, but the
said cover was replaced the next day
(Exhibit 5); that the Office of the City
Engineer never received any report to
the effect that the catchbasin in question
was not covered between January 25
and 29, 1968; that it has always been a
policy of the said office, which is charged
with the duty of installation, repair and
care of storm drains in the City of Manila,
that whenever a report is received from
whatever source of the loss of a
catchbasin cover, the matter is
immediately attended to, either by
immediately replacing the missing cover
or covering the catchbasin with steel
matting that because of the lucrative
scrap iron business then prevailing,
stealing of iron catchbasin covers was
rampant; that the Office of the City
Engineer has filed complaints in court
resulting from theft of said iron covers;
that in order to prevent such thefts, the
city government has changed the
position and layout of catchbasins in the
City by constructing them under the
sidewalks with concrete cement covers
and openings on the side of the gutter;
and that these changes had been
undertaken by the city from time to time
whenever funds were available.
After appropriate proceedings the Court
of First Instance of Manila rendered the
aforementioned decision sustaining the
theory of the defendants and dismissing
the amended complaint, without costs.
On appeal taken by plaintiff, this decision
was affirmed by the Court of Appeals,
except insofar as the City of Manila is
concerned, which was sentenced to pay
damages in the aggregate sum of
P6,750.00. 1 Hence, this appeal by the
City of Manila.
The first issue raised by the latter is
whether the present case is governed by
Section 4 of Republic Act No. 409
(Charter of the City of Manila) reading:
The city shall not be liable or held for
damages or injuries to persons or
property arising from the failure of the
Mayor, the Municipal Board, or any other
city officer, to enforce the provisions of
this chapter, or any other law or
ordinance, or from negligence of said
Mayor, Municipal Board, or other officers
while enforcing or attempting to enforce
said provisions.
or by Article 2189 of the Civil Code of the
Philippines which provides:
Provinces, cities and municipalities shall
be liable for damages for the death of, or
injuries suffered by, any person by
reason of defective conditions of road,
streets, bridges, public buildings, and
other public works under their control or
supervision.
Manila maintains that the former
provision should prevail over the latter,
because Republic Act 409, is a special
law, intended exclusively for the City of
Manila, whereas the Civil Code is a
general law, applicable to the entire
Philippines.
The Court of Appeals, however, applied
the Civil Code, and, we think, correctly. It
is true that, insofar as its territorial
application is concerned, Republic Act
No. 409 is a special law and the Civil
Code a general legislation; but, as
regards the subject-matter of the
provisions above quoted, Section 4 of
Republic Act 409 establishes a general
rule regulating the liability of the City of
Manila for: "damages or injury to persons
or property arising from the failure of" city
officers "to enforce the provisions of" said
Act "or any other law or ordinance, or
from negligence" of the city "Mayor,
Municipal Board, or other officers while
enforcing or attempting to enforce said
provisions." Upon the other hand, Article
2189 of the Civil Code constitutes a
particular prescription making
"provinces, cities and municipalities . . .
liable for damages for the death of, or
injury suffered by any person by reason"
— specifically — "of the defective
condition of roads, streets, bridges,
public buildings, and other-public works
under their control or supervision." In
other words, said section 4 refers to
liability arising from negligence, in
general, regardless of the object thereof,
whereas Article 2189 governs liability
due to "defective streets," in particular.
Since the present action is based upon
the alleged defective condition of a road,
said Article 2189 is decisive thereon.
It is urged that the City of Manila cannot
be held liable to Teotico for damages: 1)
because the accident involving him took
place in a national highway; and 2)
because the City of Manila has not been
negligent in connection therewith.
As regards the first issue, we note that it
is based upon an allegation of fact not
made in the answer of the City.
Moreover, Teotico alleged in his
complaint, as well as in his amended
complaint, that his injuries were due to
the defective condition of a street which
is "under the supervision and control" of
the City. In its answer to the amended
complaint, the City, in turn, alleged that
"the streets aforementioned were and
have been constantly kept in good
condition and regularly inspected and the
storm drains and manholes thereof
covered by the defendant City and the
officers concerned" who "have been ever
vigilant and zealous in the performance
of their respective functions and duties
as imposed upon them by law." Thus, the
City had, in effect, admitted that P.
Burgos Avenue was and is under its
control and supervision.
Moreover, the assertion to the effect that
said Avenue is a national highway was
made, for the first time, in its motion for
reconsideration of the decision of the
Court of Appeals. Such assertion raised,
therefore, a question of fact, which had
not been put in issue in the trial court, and
cannot be set up, for the first time, on
appeal, much less after the rendition of
the decision of the appellate court, in a
motion for the reconsideration thereof.
At any rate, under Article 2189 of the Civil
Code, it is not necessary for the liability
therein established to attach that the
defective roads or streets belong to the
province, city or municipality from which
responsibility is exacted. What said
article requires is that the province, city
or municipality have either "control or
supervision" over said street or road.
Even if P. Burgos Avenue were,
therefore, a national highway, this
circumstance would not necessarily
detract from its "control or supervision"
by the City of Manila, under Republic Act
409. In fact Section 18(x) thereof
provides:
Sec. 18. Legislative powers. — The
Municipal Board shall have the following
legislative powers:
xxx xxx xxx
(x) Subject to the provisions of existing
law to provide for the laying out,
construction and improvement, and to
regulate the use of streets, avenues,
alleys, sidewalks, wharves, piers, parks,
cemeteries, and other public places; to
provide for lighting, cleaning, and
sprinkling of streets and public places; . .
. to provide for the inspection of, fix the
license fees for and regulate the
openings in the same for the laying of
gas, water, sewer and other pipes, the
building and repair of tunnels, sewers,
and drains, and all structures in and
under the same and the erecting of poles
and the stringing of wires therein; to
provide for and regulate cross-works,
curbs, and gutters therein, . . . to regulate
traffic and sales upon the streets and
other public places; to provide for the
abatement of nuisances in the same and
punish the authors or owners thereof; to
provide for the construction and
maintenance, and regulate the use, of
bridges, viaducts and culverts; to prohibit
and regulate ball playing, kite-flying,
hoop rolling, and other amusements
which may annoy persons using the
streets and public places, or frighten
horses or other animals; to regulate the
speed of horses and other animals,
motor and other vehicles, cars, and
locomotives within the limits of the city; to
regulate the lights used on all vehicles,
cars, and locomotives; . . . to provide for
and change the location, grade, and
crossing of railroads, and compel any
such railroad to raise or lower its tracks
to conform to such provisions or
changes; and to require railroad
companies to fence their property, or any
part thereof, to provide suitable
protection against injury to persons or
property, and to construct and repair
ditches, drains, sewers, and culverts
along and under their tracks, so that the
natural drainage of the streets and
adjacent property shall not be
obstructed.
This authority has been neither
withdrawn nor restricted by Republic Act
No. 917 and Executive Order No. 113,
dated May 2, 1955, upon which the City
relies. Said Act governs the disposition or
appropriation of the highway funds and
the giving of aid to provinces, chartered
cities and municipalities in the
construction of roads and streets within
their respective boundaries, and
Executive Order No. 113 merely
implements the provisions of said
Republic Act No. 917, concerning the
disposition and appropriation of the
highway funds. Moreover, it provides that
"the construction, maintenance and
improvement of national primary,
national secondary and national aid
provincial and city roads shall be
accomplished by the Highway District
Engineers and Highway City Engineers
under the supervision of the
Commissioner of Public Highways and
shall be financed from such
appropriations as may be authorized by
the Republic of the Philippines in annual
or special appropriation Acts."
Then, again, the determination of
whether or not P. Burgos Avenue is
under the control or supervision of the
City of Manila and whether the latter is
guilty of negligence, in connection with
the maintenance of said road, which
were decided by the Court of Appeals in
the affirmative, is one of fact, and the
findings of said Court thereon are not
subject to our review.
WHEREFORE, the decision appealed
from should be as it is hereby affirmed,
with costs against the City of Manila. It is
so ordered.
QUEZON CITY GOVERNMENT G.R.
No. 150304 and Engineer RAMIR J.
TIAMZON,
Petitioners, Present:
Panganiban, J.,
Chairman,
Sandoval-Gutierrez,
- versus - Corona,
Carpio Morales, and
Garcia, JJ
Promulgated:
FULGENCIO DACARA,*
Respondent. June 15, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -
- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
The review of cases under Rule 45 of the
Rules of Court is limited to errors of law.
Unless there is a showing that the
findings of the lower court are totally
devoid of support or are glaringly
erroneous, this Court will not analyze or
weigh evidence all over again. Under the
circumstance, the factual findings and
conclusions of the Court of Appeals
affirming those of the trial courts will be
conclusive upon the Supreme Court.
Furthermore, well-entrenched is the rule
that points of law, theories, issues and
arguments not brought to the attention of
the trial court cannot be raised for the first
time on appeal or certiorari. Finally, this
Court reiterates the principle that moral
damages are designed to compensate
the claimant for actual injury suffered, not
to impose a penalty on the wrongdoer.
Hence, absent any definite finding as to
what they consist of, the alleged moral
damages suffered would become a
penalty rather than a compensation for
actual injury suffered.
The Case
Before us is a Petition for Review[1]
under Rule 45 of the Rules of Court,
assailing the February 21, 2001
Decision[2] and the October 9, 2001
Resolution[3] of the Court of Appeals
(CA) in CA-GR CV No. 29392. The
challenged Decision disposed as follows:
WHEREFORE, premises considered,
the Decision dated June 29, 1990 in Civil
Case No. Q-88-233 should be
AFFIRMED, with costs against the
appellants.[4]
The assailed Resolution denied
petitioners Motion for Reconsideration.
The Facts
The CA summarized the facts in this
manner:
Sometime on February 28, 1988 at about
1:00 A.M., Fulgencio Dacara, Jr., son of
Fulgencio P. Dacara, Sr. and owner of 87
Toyota Corolla 4-door Sedan with Plate
No. 877 (sic), while driving the said
vehicle, rammed into a pile of earth/street
diggings found at Matahimik St., Quezon
City, which was then being repaired by
the Quezon City government. As a result,
Dacarra (sic), Jr. allegedly sustained
bodily injuries and the vehicle suffered
extensive damage for it turned turtle
when it hit the pile of earth.
Indemnification was sought from the city
government (Record, p. 22), which
however, yielded negative results.
Consequently, Fulgencio P. Dacara
(hereinafter referred to as FULGENCIO),
for and in behalf of his minor son, Jr., filed
a Complaint (Record, p. 1) for damages
against the Quezon City and Engr. Ramir
Tiamzon, as defendants, before the
Regional Trial Court, National Capital
Judicial Region, Branch 101, Quezon
City, docketed as Civil Case No. Q-88-
233. FULGENCIO prayed that the
amount of not less than P20,000.00
actual or compensatory damages,
P150,000.00 moral damages,
P30,000.00 exemplary damages, and
P20,000.00 attorneys fees and costs of
the suit be awarded to him.
In an Answer with Affirmative and/or
Special Defenses (Record, p. 11),
defendants admitted the occurrence of
the incident but alleged that the subject
diggings was provided with a moun[d] of
soil and barricaded with reflectorized
traffic paint with sticks placed before or
after it which was visible during the
incident on February 28, 1988 at 1:00
A.M. In short, defendants claimed that
they exercised due care by providing the
area of the diggings all necessary
measures to avoid accident. Hence, the
reason why Fulgencio Dacara, Jr. fell into
the diggings was precisely because of
the latters negligence and failure to
exercise due care.[5]
After trial on the merits, the Regional
Trial Court (RTC), Branch 101, Quezon
City, rendered its Decision[6] dated June
29, 1990. The evidence proffered by the
complainant (herein respondent) was
found to be sufficient proof of the
negligence of herein petitioners. Under
Article 2189 of the Civil Code,[7] the
latter were held liable as follows:
WHEREFORE, premises above
considered, based on the quantum of
evidence presented by the plaintiff which
tilts in their favor elucidating the negligent
acts of the city government together with
its employees when considered in the
light of Article 2189, judgment is hereby
rendered ordering the defendants to
indemnify the plaintiff the sum of twenty
thousand pesos as actual/compensatory
damages, P10,000.00 as moral
damages, P5,000.00 as exemplary
damages, P10,000.00 as attorneys fees
and other costs of suit.[8]
In their appeal to the CA, petitioners
maintained that they had observed due
diligence and care in installing preventive
warning devices, and that it was in fact
the plaintiff who had failed to exercise
prudence by driving too fast to avoid the
diggings. Moreover, the lower court
allegedly erred in using Article 2189 of
the Civil Code, which supposedly applied
only to liability for the death or injuries
suffered by a person, not for damage to
property.
Ruling of the Court of Appeals
The CA agreed with the RTCs finding
that petitioners negligence was the
proximate cause of the damage suffered
by respondent.[9] Noting the failure of
petitioners to present evidence to
support their contention that
precautionary measures had indeed
been observed, it ruled thus:
x x x. Sadly, the evidence indicates that
[petitioners] failed to show that they
placed sufficient and adequate
precautionary signs at Matahimik Street
to minimize or prevent the dangers to life
and limb under the circumstances.
Contrary to the testimony of the
witnesses for the [petitioners], namely
Engr. Ramir Tiamzon, Ernesto Landrito
and Eduardo Castillo, that there were
signs, gasera which was buried so that
its light could not be blown off by the wind
and barricade, none was ever presented
to stress and prove the sufficiency and
adequacy of said contention.[10]
Further upholding the trial courts finding
of negligence on the part of herein
petitioners, the CA gave this opinion:
x x x. As observed by the trial court, the
negligence of [petitioners] was clear
based on the investigation report of Pfc.
William P. Villafranca stating to the effect
that the subject vehicle rammed into a
pile of earth from a deep excavation
thereat without any warning devi[c]e
whatsoever and as a consequence
thereof, Dacara, Jr. lost control of his
driven car and finally turned-turtle
causing substantial damage to the same.
As a defense against liability on the basis
of quasi-delict, one must have exercised
the diligence of a good father of a family
which [petitioners] failed to establish in
the instant case.[11]
Whether Article 2189 is applicable to
cases in which there has been no death
or physical injury, the CA ruled in the
affirmative:
x x x. More importantly, we find it illogical
to limit the liability to death or personal
injury only as argued by appellants in the
case at bar applying the foregoing
provisions. For, injury is an act that
damages, harms or hurts and mean in
common as the act or result of inflicting
on a person or thing something that
causes loss, pain, distress, or
impairment. Injury is the most
comprehensive, applying to an act or
result involving an impairment or
destruction of right, health, freedom,
soundness, or loss of something of
value.[12]
Hence, this Petition.[13]
Issues
Petitioners raise the following issues for
our consideration:
1. The Honorable Court of Appeals
decided a question of law/substance
contrary to applicable law and
jurisprudence when it affirmed the award
of moral damage suit (sic) the amount of
P10,000.00.
2. The Honorable Court of Appeals
decided a question of law/substance
contrary to applicable law and
jurisprudence when it affirmed the award
of exemplary damage sin (sic) the
amount of P5,000.00 and attorneys fee
in the [a]mount of P10,000.00.
3. The Honorable Court of Appeals
gravely erred and/;or (sic) had acted with
grave abuse of discretion amounting to
lack and/or excess of jurisdiction when it
refused to hold that respondents son in
the person of Fulgencio Dacara, Jr. was
negligent at the time of incident.[14]
Because the issues regarding the liability
of petitioners for moral and exemplary
damages presuppose that their
negligence caused the vehicular
accident, we first resolve the question of
negligence or the proximate cause of the
incident.
The Courts Ruling
The Petition is partly meritorious.
First Issue: Negligence
Maintaining that they were not negligent,
petitioners insist that they placed all the
necessary precautionary signs to alert
the public of a roadside construction.
They argue that the driver (Fulgencio
Dacara Jr.) of respondents car was
overspeeding, and that his own
negligence was therefore the sole cause
of the incident.
Proximate cause is defined as any cause
that produces injury in a natural and
continuous sequence, unbroken by any
efficient intervening cause, such that the
result would not have occurred
otherwise.[15] Proximate cause is
determined from the facts of each case,
upon a combined consideration of logic,
common sense, policy and
precedent.[16]
What really caused the subject vehicle to
turn turtle is a factual issue that this Court
cannot pass upon, absent any whimsical
or capricious exercise of judgment by the
lower courts or an ample showing that
they lacked any basis for their
conclusions.[17] The unanimity of the CA
and the trial court in their factual
ascertainment that petitioners
negligence was the proximate cause of
the accident bars us from supplanting
their findings and substituting these with
our own. The function of this Court is
limited to the review of the appellate
courts alleged errors of law. It is not
required to weigh all over again the
factual evidence already considered in
the proceedings below.[18] Petitioners
have not shown that they are entitled to
an exception to this rule.[19] They have
not sufficiently demonstrated any special
circumstances to justify a factual review.
That the negligence of petitioners was
the proximate cause of the accident was
aptly discussed in the lower courts
finding, which we quote:
Facts obtaining in this case are crystal
clear that the accident of February 28,
1988 which caused almost the life and
limb of Fulgencio Dacara, Jr. when his
car turned turtle was the existence of a
pile of earth from a digging done relative
to the base failure at Matahimik Street
nary a lighting device or a reflectorized
barricade or sign perhaps which could
have served as an adequate warning to
motorist especially during the thick of the
night where darkness is pervasive.
Contrary to the testimony of the
witnesses for the defense that there were
signs, gasera which was buried so that
its light could not be blown off by the wind
and barricade, none was ever presented
to stress the point that sufficient and
adequate precautionary signs were
placed at Matahimik Street. If indeed
signs were placed thereat, how then
could it be explained that according to
the report even of the policeman which
for clarity is quoted again, none was
found at the scene of the accident.
Negligence of a person whether natural
or juridical over a particular set of events
is transfixed by the attending
circumstances so that the greater the
danger known or reasonably anticipated,
the greater is the degree of care required
to be observed.
The provisions of Article 2189 of the New
Civil Code capsulizes the responsibility
of the city government relative to the
maintenance of roads and bridges since
it exercises the control and supervision
over the same. Failure of the defendant
to comply with the statutory provision
found in the subject-article is tantamount
to negligence per se which renders the
City government liable. Harsh application
of the law ensues as a result thereof but
the state assumed the responsibility for
the maintenance and repair of the roads
and bridges and neither exception nor
exculpation from liability would deem just
and equitable.[20] (Emphasis supplied)
Petitioners belatedly point out that
Fulgencio Jr. was driving at the speed of
60 kilometers per hour (kph) when he
met the accident. This speed was
allegedly well above the maximum limit
of 30 kph allowed on city streets with light
traffic, when not designated through
streets, as provided under the Land
Transportation and Traffic Code
(Republic Act 4136). Thus, petitioners
assert that Fulgencio Jr., having violated
a traffic regulation, should be presumed
negligent pursuant to Article 2185[21] of
the Civil Code.[22]
These matters were, however, not raised
by petitioners at any time during the trial.
It is evident from the records that they
brought up for the first time the matter of
violation of RA 4136 in their Motion for
Reconsideration[23] of the CA Decision
dated February 21, 2001. It is too late in
the day for them to raise this new issue.
It is well-settled that points of law,
theories or arguments not brought out in
the original proceedings cannot be
considered on review or appeal.[24] To
consider their belatedly raised
arguments at this stage of the
proceedings would trample on the basic
principles of fair play, justice, and due
process.[25]
Indeed, both the trial and the appellate
courts findings, which are amply
substantiated by the evidence on record,
clearly point to petitioners negligence as
the proximate cause of the damages
suffered by respondents car. No
adequate reason has been given to
overturn this factual conclusion.
Second Issue:
Moral Damages
Petitioners argue that moral damages
are recoverable only in the instances
specified in Article 2219[26] of the Civil
Code. Although the instant case is an
action for quasi-delict, petitioners
contend that moral damages are not
recoverable, because no evidence of
physical injury were presented before the
trial court.[27]
To award moral damages, a court must
be satisfied with proof of the following
requisites: (1) an injury -- whether
physical, mental, or psychological --
clearly sustained by the claimant; (2) a
culpable act or omission factually
established; (3) a wrongful act or
omission of the defendant as the
proximate cause of the injury sustained
by the claimant; and (4) the award of
damages predicated on any of the cases
stated in Article 2219.[28]
Article 2219(2) specifically allows moral
damages to be recovered for quasi-
delicts, provided that the act or omission
caused physical injuries. There can be
no recovery of moral damages unless the
quasi-delict resulted in physical
injury.[29] This rule was enunciated in
Malonzo v. Galang[30] as follows:
x x x. Besides, Article 2219 specifically
mentions quasi-delicts causing physical
injuries, as an instance when moral
damages may be allowed, thereby
implying that all other quasi-delicts not
resulting in physical injuries are
excluded, excepting of course, the
special torts referred to in Art. 309 (par.
9, Art. 2219) and in Arts. 21, 26, 27, 28,
29, 30, 32, 34 and 35 on the chapter on
human relations (par. 10, Art. 2219).
In the present case, the Complaint
alleged that respondents son Fulgencio
Jr. sustained physical injuries. The son
testified that he suffered a deep cut on
his left arm when the car overturned after
hitting a pile of earth that had been left in
the open without any warning device
whatsoever.
It is apparent from the Decisions of the
trial and the appellate courts, however,
that no other evidence (such as a
medical certificate or proof of medical
expenses) was presented to prove
Fulgencio Jr.s bare assertion of physical
injury. Thus, there was no credible proof
that would justify an award of moral
damages based on Article 2219(2) of the
Civil Code.
Moreover, the Decisions are
conspicuously silent with respect to the
claim of respondent that his moral
sufferings were due to the negligence of
petitioners. The Decision of the trial
court, which summarizes the testimony
of respondents four witnesses, makes no
mention of any statement regarding
moral suffering, such as mental anguish,
besmirched reputation, wounded
feelings, social humiliation and the like.
Moral damages are not punitive in
nature, but are designed to compensate
and alleviate in some way the physical
suffering, mental anguish, fright, serious
anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, and similar injury unjustly
inflicted on a person.[31] Intended for the
restoration of the psychological or
emotional status quo ante, the award of
moral damages is designed to
compensate emotional injury suffered,
not to impose a penalty on the
wrongdoer.
For the court to arrive upon a judicious
approximation of emotional or moral
injury, competent and substantial proof of
the
suffering experienced must be laid
before it. Essential to this approximation
are definite findings as to what the
supposed moral damages suffered
consisted of; otherwise, such damages
would become a penalty rather than a
compensation for actual injury
suffered.[32]
Furthermore, well-settled is the rule that
moral damages cannot be awarded --
whether in a civil[33] or a criminal
case[34] -- in the absence of proof of
physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, or similar injury.[35] The
award of moral damages must be solidly
anchored on a definite showing that
respondent actually experienced
emotional and mental sufferings. Mere
allegations do not suffice; they must be
substantiated by clear and convincing
proof.[36]
Third Issue:
Exemplary Damages
Petitioners argue that exemplary
damages and attorneys fees are not
recoverable. Allegedly, the RTC and the
CA did not find that petitioners were
guilty of gross negligence in the
performance of their duty and
responsibilities.[37]
Exemplary damages cannot be
recovered as a matter of right.[38] While
granting them is subject to the discretion
of the court, they can be awarded only
after claimants have shown their
entitlement to moral, temperate or
compensatory damages.[39] In the case
before us, respondent sufficiently proved
before the courts a quo that petitioners
negligence was the proximate cause of
the incident, thereby establishing his
right to actual or compensatory
damages. He has adduced adequate
proof to justify his claim for the damages
caused his car. The question that
remains, therefore, is whether exemplary
damages may be awarded in addition to
compensatory damages.
Article 2231 of the Civil Code mandates
that in cases of quasi-delicts, exemplary
damages may be recovered if the
defendant acted with gross
negligence.[40] Gross negligence means
such utter want of care as to raise a
presumption that the persons at fault
must have been conscious of the
probable consequences of their
carelessness, and that they must have
nevertheless been indifferent (or worse)
to the danger of injury to the person or
property of others.[41] The negligence
must amount to a reckless disregard for
the safety of persons or property. Such a
circumstance obtains in the instant case.
A finding of gross negligence can be
discerned from the Decisions of both the
CA and the trial court. We quote from the
RTC Decision:
Sad to state that the City Government
through its instrumentalities have (sic)
failed to show the modicum of
responsibility, much less, care expected
of them (sic) by the constituents of this
City. It is even more deplorable that it
was a case of a street digging in a side
street which caused the accident in the
so-called premier city.[42]
The CA reiterated the finding of the trial
court that petitioners negligence was
clear, considering that there was no
warning device whatsoever[43] at the
excavation site.
The facts of the case show a complete
disregard by petitioners of any adverse
consequence of their failure to install
even a single warning device at the area
under renovation. Considering further
that the street was dimly lit,[44] the need
for adequate precautionary measures
was even greater. By carrying on the
road diggings without any warning or
barricade, petitioners demonstrated a
wanton disregard for public safety.
Indeed, the February 28, 1988 incident
was bound to happen due to their gross
negligence. It is clear that under the
circumstances, there is sufficient factual
basis for a finding of gross negligence on
their part.
Article 2229 of the Civil Code provides
that exemplary damages may be
imposed by way of example or correction
for the public good. The award of these
damages is meant to be a deterrent to
socially deleterious actions.[45] Public
policy requires such imposition to
suppress wanton acts of an offender.[46]
It must be emphasized that local
governments and their employees
should be responsible not only for the
maintenance of roads and streets, but
also for the safety of the public. Thus,
they must secure construction areas with
adequate precautionary measures.
Not only is the work of petitioners
impressed with public interest; their very
existence is justified only by public
service. Hence, local governments have
the paramount responsibility of keeping
the interests of the public foremost in
their agenda. For these reasons, it is
most disturbing to note that the present
petitioners are the very parties
responsible for endangering the public
through such a rash and reckless act.
WHEREFORE, the Petition is hereby
PARTLY GRANTED. The Decision of the
Court of Appeals is AFFIRMED, with the
MODIFICATION that the award of moral
damages is DELETED. No costs.
SO ORDERED.
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE
ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avanceña for
defendant..
TRENT, J.:
This is an appeal by both parties from a
judgment of the Court of First Instance of
the city of Manila in favor of the plaintiff
for the sum of P14,741, together with the
costs of the cause.
Counsel for the plaintiff insist that the trial
court erred (1) "in limiting the general
damages which the plaintiff suffered to
P5,000, instead of P25,000 as claimed in
the complaint," and (2) "in limiting the
time when plaintiff was entirely disabled
to two months and twenty-one days and
fixing the damage accordingly in the sum
of P2,666, instead of P6,000 as claimed
by plaintiff in his complaint."
The Attorney-General on behalf of the
defendant urges that the trial court erred:
(a) in finding that the collision between
the plaintiff's motorcycle and the
ambulance of the General Hospital was
due to the negligence of the chauffeur;
(b) in holding that the Government of the
Philippine Islands is liable for the
damages sustained by the plaintiff as a
result of the collision, even if it be true
that the collision was due to the
negligence of the chauffeur; and (c) in
rendering judgment against the
defendant for the sum of P14,741.
The trial court's findings of fact, which are
fully supported by the record, are as
follows:
It is a fact not disputed by counsel for the
defendant that when the plaintiff, riding
on a motorcycle, was going toward the
western part of Calle Padre Faura,
passing along the west side thereof at a
speed of ten to twelve miles an hour,
upon crossing Taft Avenue and when he
was ten feet from the southwestern
intersection of said streets, the General
Hospital ambulance, upon reaching said
avenue, instead of turning toward the
south, after passing the center thereof,
so that it would be on the left side of said
avenue, as is prescribed by the
ordinance and the Motor Vehicle Act,
turned suddenly and unexpectedly and
long before reaching the center of the
street, into the right side of Taft Avenue,
without having sounded any whistle or
horn, by which movement it struck the
plaintiff, who was already six feet from
the southwestern point or from the post
place there.
By reason of the resulting collision, the
plaintiff was so severely injured that,
according to Dr. Saleeby, who examined
him on the very same day that he was
taken to the General Hospital, he was
suffering from a depression in the left
parietal region, a would in the same
place and in the back part of his head,
while blood issued from his nose and he
was entirely unconscious.
The marks revealed that he had one or
more fractures of the skull and that the
grey matter and brain was had suffered
material injury. At ten o'clock of the night
in question, which was the time set for
performing the operation, his pulse was
so weak and so irregular that, in his
opinion, there was little hope that he
would live. His right leg was broken in
such a way that the fracture extended to
the outer skin in such manner that it
might be regarded as double and the
would be exposed to infection, for which
reason it was of the most serious nature.
At another examination six days before
the day of the trial, Dr. Saleeby noticed
that the plaintiff's leg showed a
contraction of an inch and a half and a
curvature that made his leg very weak
and painful at the point of the fracture.
Examination of his head revealed a
notable readjustment of the functions of
the brain and nerves. The patient
apparently was slightly deaf, had a light
weakness in his eyes and in his mental
condition. This latter weakness was
always noticed when the plaintiff had to
do any difficult mental labor, especially
when he attempted to use his money for
mathematical calculations.
According to the various merchants who
testified as witnesses, the plaintiff's
mental and physical condition prior to the
accident was excellent, and that after
having received the injuries that have
been discussed, his physical condition
had undergone a noticeable
depreciation, for he had lost the agility,
energy, and ability that he had constantly
displayed before the accident as one of
the best constructors of wooden
buildings and he could not now earn
even a half of the income that he had
secured for his work because he had lost
50 per cent of his efficiency. As a
contractor, he could no longer, as he had
before done, climb up ladders and
scaffoldings to reach the highest parts of
the building.
As a consequence of the loss the plaintiff
suffered in the efficiency of his work as a
contractor, he had to dissolved the
partnership he had formed with the
engineer. Wilson, because he was
incapacitated from making mathematical
calculations on account of the condition
of his leg and of his mental faculties, and
he had to give up a contract he had for
the construction of the Uy Chaco
building."
We may say at the outset that we are in
full accord with the trial court to the effect
that the collision between the plaintiff's
motorcycle and the ambulance of the
General Hospital was due solely to the
negligence of the chauffeur.
The two items which constitute a part of
the P14,741 and which are drawn in
question by the plaintiff are (a) P5,000,
the award awarded for permanent
injuries, and (b) the P2,666, the amount
allowed for the loss of wages during the
time the plaintiff was incapacitated from
pursuing his occupation. We find nothing
in the record which would justify us in
increasing the amount of the first. As to
the second, the record shows, and the
trial court so found, that the plaintiff's
services as a contractor were worth
P1,000 per month. The court, however,
limited the time to two months and
twenty-one days, which the plaintiff was
actually confined in the hospital. In this
we think there was error, because it was
clearly established that the plaintiff was
wholly incapacitated for a period of six
months. The mere fact that he remained
in the hospital only two months and
twenty-one days while the remainder of
the six months was spent in his home,
would not prevent recovery for the whole
time. We, therefore, find that the amount
of damages sustained by the plaintiff,
without any fault on his part, is P18,075.
As the negligence which caused the
collision is a tort committed by an agent
or employee of the Government, the
inquiry at once arises whether the
Government is legally-liable for the
damages resulting therefrom.
Act No. 2457, effective February 3, 1915,
reads:
An Act authorizing E. Merritt to bring suit
against the Government of the Philippine
Islands and authorizing the Attorney-
General of said Islands to appear in said
suit.
Whereas a claim has been filed against
the Government of the Philippine Islands
by Mr. E. Merritt, of Manila, for damages
resulting from a collision between his
motorcycle and the ambulance of the
General Hospital on March twenty-fifth,
nineteen hundred and thirteen;
Whereas it is not known who is
responsible for the accident nor is it
possible to determine the amount of
damages, if any, to which the claimant is
entitled; and
Whereas the Director of Public Works
and the Attorney-General recommended
that an Act be passed by the Legislature
authorizing Mr. E. Merritt to bring suit in
the courts against the Government, in
order that said questions may be
decided: Now, therefore,
By authority of the United States, be it
enacted by the Philippine Legislature,
that:
SECTION 1. E. Merritt is hereby
authorized to bring suit in the Court of
First Instance of the city of Manila against
the Government of the Philippine Islands
in order to fix the responsibility for the
collision between his motorcycle and the
ambulance of the General Hospital, and
to determine the amount of the damages,
if any, to which Mr. E. Merritt is entitled
on account of said collision, and the
Attorney-General of the Philippine
Islands is hereby authorized and directed
to appear at the trial on the behalf of the
Government of said Islands, to defendant
said Government at the same.
SEC. 2. This Act shall take effect on
its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above
quoted Act, simply waive its immunity
from suit or did it also concede its liability
to the plaintiff? If only the former, then it
cannot be held that the Act created any
new cause of action in favor of the
plaintiff or extended the defendant's
liability to any case not previously
recognized.
All admit that the Insular Government
(the defendant) cannot be sued by an
individual without its consent. It is also
admitted that the instant case is one
against the Government. As the consent
of the Government to be sued by the
plaintiff was entirely voluntary on its part,
it is our duty to look carefully into the
terms of the consent, and render
judgment accordingly.
The plaintiff was authorized to bring this
action against the Government "in order
to fix the responsibility for the collision
between his motorcycle and the
ambulance of the General Hospital and
to determine the amount of the damages,
if any, to which Mr. E. Merritt is entitled
on account of said collision, . . . ." These
were the two questions submitted to the
court for determination. The Act was
passed "in order that said questions may
be decided." We have "decided" that the
accident was due solely to the
negligence of the chauffeur, who was at
the time an employee of the defendant,
and we have also fixed the amount of
damages sustained by the plaintiff as a
result of the collision. Does the Act
authorize us to hold that the Government
is legally liable for that amount? If not, we
must look elsewhere for such authority, if
it exists.
The Government of the Philippine
Islands having been "modeled after the
Federal and State Governments in the
United States," we may look to the
decisions of the high courts of that
country for aid in determining the
purpose and scope of Act No. 2457.
In the United States the rule that the state
is not liable for the torts committed by its
officers or agents whom it employs,
except when expressly made so by
legislative enactment, is well settled.
"The Government," says Justice Story,
"does not undertake to guarantee to any
person the fidelity of the officers or
agents whom it employs, since that
would involve it in all its operations in
endless embarrassments, difficulties and
losses, which would be subversive of the
public interest." (Claussen vs. City of
Luverne, 103 Minn., 491, citing U. S. vs.
Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199;
and Beers vs. States, 20 How., 527; 15
L. Ed., 991.)
In the case of Melvin vs. State (121 Cal.,
16), the plaintiff sought to recover
damages from the state for personal
injuries received on account of the
negligence of the state officers at the
state fair, a state institution created by
the legislature for the purpose of
improving agricultural and kindred
industries; to disseminate information
calculated to educate and benefit the
industrial classes; and to advance by
such means the material interests of the
state, being objects similar to those
sought by the public school system. In
passing upon the question of the state's
liability for the negligent acts of its
officers or agents, the court said:
No claim arises against any government
is favor of an individual, by reason of the
misfeasance, laches, or unauthorized
exercise of powers by its officers or
agents. (Citing Gibbons vs. U. S., 8 Wall.,
269; Clodfelter vs. State, 86 N. C., 51,
53; 41 Am. Rep., 440; Chapman vs.
State, 104 Cal., 690; 43 Am. St. Rep.,
158; Green vs. State, 73 Cal., 29; Bourn
vs. Hart, 93 Cal., 321; 27 Am. St. Rep.,
203; Story on Agency, sec. 319.)
As to the scope of legislative enactments
permitting individuals to sue the state
where the cause of action arises out of
either fort or contract, the rule is stated in
36 Cyc., 915, thus:
By consenting to be sued a state simply
waives its immunity from suit. It does not
thereby concede its liability to plaintiff, or
create any cause of action in his favor, or
extend its liability to any cause not
previously recognized. It merely gives a
remedy to enforce a preexisting liability
and submits itself to the jurisdiction of the
court, subject to its right to interpose any
lawful defense.
In Apfelbacher vs. State (152 N. W., 144,
advanced sheets), decided April 16,
1915, the Act of 1913, which authorized
the bringing of this suit, read:
SECTION 1. Authority is hereby
given to George Apfelbacher, of the town
of Summit, Waukesha County,
Wisconsin, to bring suit in such court or
courts and in such form or forms as he
may be advised for the purpose of
settling and determining all controversies
which he may now have with the State of
Wisconsin, or its duly authorized officers
and agents, relative to the mill property of
said George Apfelbacher, the fish
hatchery of the State of Wisconsin on the
Bark River, and the mill property of Evan
Humphrey at the lower end of Nagawicka
Lake, and relative to the use of the
waters of said Bark River and Nagawicka
Lake, all in the county of Waukesha,
Wisconsin.
In determining the scope of this act, the
court said:
Plaintiff claims that by the enactment of
this law the legislature admitted liability
on the part of the state for the acts of its
officers, and that the suit now stands just
as it would stand between private parties.
It is difficult to see how the act does, or
was intended to do, more than remove
the state's immunity from suit. It simply
gives authority to commence suit for the
purpose of settling plaintiff's
controversies with the estate. Nowhere in
the act is there a whisper or suggestion
that the court or courts in the disposition
of the suit shall depart from well
established principles of law, or that the
amount of damages is the only question
to be settled. The act opened the door of
the court to the plaintiff. It did not pass
upon the question of liability, but left the
suit just where it would be in the absence
of the state's immunity from suit. If the
Legislature had intended to change the
rule that obtained in this state so long
and to declare liability on the part of the
state, it would not have left so important
a matter to mere inference, but would
have done so in express terms. (Murdock
Grate Co. vs. Commonwealth, 152
Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the
provisions of the Act of 1893, relied upon
and considered, are as follows:
All persons who have, or shall hereafter
have, claims on contract or for
negligence against the state not allowed
by the state board of examiners, are
hereby authorized, on the terms and
conditions herein contained, to bring suit
thereon against the state in any of the
courts of this state of competent
jurisdiction, and prosecute the same to
final judgment. The rules of practice in
civil cases shall apply to such suits,
except as herein otherwise provided.
And the court said:
This statute has been considered by this
court in at least two cases, arising under
different facts, and in both it was held that
said statute did not create any liability or
cause of action against the state where
none existed before, but merely gave an
additional remedy to enforce such liability
as would have existed if the statute had
not been enacted. (Chapman vs. State,
104 Cal., 690; 43 Am. St. Rep., 158;
Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in
1887 gave to the superior court
"jurisdiction of all claims against the
commonwealth, whether at law or in
equity," with an exception not necessary
to be here mentioned. In construing this
statute the court, in Murdock Grate Co.
vs. Commonwealth (152 Mass., 28),
said:
The statute we are discussing disclose
no intention to create against the state a
new and heretofore unrecognized class
of liabilities, but only an intention to
provide a judicial tribunal where well
recognized existing liabilities can be
adjudicated.
In Sipple vs. State (99 N. Y., 284), where
the board of the canal claims had, by the
terms of the statute of New York,
jurisdiction of claims for damages for
injuries in the management of the canals
such as the plaintiff had sustained, Chief
Justice Ruger remarks: "It must be
conceded that the state can be made
liable for injuries arising from the
negligence of its agents or servants, only
by force of some positive statute
assuming such liability."
It being quite clear that Act No. 2457
does not operate to extend the
Government's liability to any cause not
previously recognized, we will now
examine the substantive law touching the
defendant's liability for the negligent acts
of its officers, agents, and employees.
Paragraph 5 of article 1903 of the Civil
Code reads:
The state is liable in this sense when it
acts through a special agent, but not
when the damage should have been
caused by the official to whom properly it
pertained to do the act performed, in
which case the provisions of the
preceding article shall be applicable.
The supreme court of Spain in defining
the scope of this paragraph said:
That the obligation to indemnify for
damages which a third person causes to
another by his fault or negligence is
based, as is evidenced by the same Law
3, Title 15, Partida 7, on that the person
obligated, by his own fault or negligence,
takes part in the act or omission of the
third party who caused the damage. It
follows therefrom that the state, by virtue
of such provisions of law, is not
responsible for the damages suffered by
private individuals in consequence of
acts performed by its employees in the
discharge of the functions pertaining to
their office, because neither fault nor
even negligence can be presumed on the
part of the state in the organization of
branches of public service and in the
appointment of its agents; on the
contrary, we must presuppose all
foresight humanly possible on its part in
order that each branch of service serves
the general weal an that of private
persons interested in its operation.
Between these latter and the state,
therefore, no relations of a private nature
governed by the civil law can arise
except in a case where the state acts as
a judicial person capable of acquiring
rights and contracting obligations.
(Supreme Court of Spain, January 7,
1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16,
book 4, regulates the obligations which
arise out of fault or negligence; and
whereas in the first article thereof. No.
1902, where the general principle is laid
down that where a person who by an act
or omission causes damage to another
through fault or negligence, shall be
obliged to repair the damage so done,
reference is made to acts or omissions of
the persons who directly or indirectly
cause the damage, the following articles
refers to this persons and imposes an
identical obligation upon those who
maintain fixed relations of authority and
superiority over the authors of the
damage, because the law presumes that
in consequence of such relations the evil
caused by their own fault or negligence
is imputable to them. This legal
presumption gives way to proof,
however, because, as held in the last
paragraph of article 1903, responsibility
for acts of third persons ceases when the
persons mentioned in said article prove
that they employed all the diligence of a
good father of a family to avoid the
damage, and among these persons,
called upon to answer in a direct and not
a subsidiary manner, are found, in
addition to the mother or the father in a
proper case, guardians and owners or
directors of an establishment or
enterprise, the state, but not always,
except when it acts through the agency
of a special agent, doubtless because
and only in this case, the fault or
negligence, which is the original basis of
this kind of objections, must be
presumed to lie with the state.
That although in some cases the state
might by virtue of the general principle
set forth in article 1902 respond for all the
damage that is occasioned to private
parties by orders or resolutions which by
fault or negligence are made by
branches of the central administration
acting in the name and representation of
the state itself and as an external
expression of its sovereignty in the
exercise of its executive powers, yet said
article is not applicable in the case of
damages said to have been occasioned
to the petitioners by an executive official,
acting in the exercise of his powers, in
proceedings to enforce the collections of
certain property taxes owing by the
owner of the property which they hold in
sublease.
That the responsibility of the state is
limited by article 1903 to the case
wherein it acts through a special agent
(and a special agent, in the sense in
which these words are employed, is one
who receives a definite and fixed order or
commission, foreign to the exercise of
the duties of his office if he is a special
official) so that in representation of the
state and being bound to act as an agent
thereof, he executes the trust confided to
him. This concept does not apply to any
executive agent who is an employee of
the acting administration and who on his
own responsibility performs the functions
which are inherent in and naturally
pertain to his office and which are
regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904;
98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article
1903 of the Civil Code and the principle
laid down in a decision, among others, of
the 18th of May, 1904, in a damage case,
the responsibility of the state is limited to
that which it contracts through a special
agent, duly empowered by a definite
order or commission to perform some act
or charged with some definite purpose
which gives rise to the claim, and not
where the claim is based on acts or
omissions imputable to a public official
charged with some administrative or
technical office who can be held to the
proper responsibility in the manner laid
down by the law of civil responsibility.
Consequently, the trial court in not so
deciding and in sentencing the said entity
to the payment of damages, caused by
an official of the second class referred to,
has by erroneous interpretation infringed
the provisions of articles 1902 and 1903
of the Civil Code. (Supreme Court of
Spain, July 30, 1911; 122 Jur. Civ., 146.)
It is, therefore, evidence that the State
(the Government of the Philippine
Islands) is only liable, according to the
above quoted decisions of the Supreme
Court of Spain, for the acts of its agents,
officers and employees when they act as
special agents within the meaning of
paragraph 5 of article 1903, supra, and
that the chauffeur of the ambulance of
the General Hospital was not such an
agent.
For the foregoing reasons, the judgment
appealed from must be reversed, without
costs in this instance. Whether the
Government intends to make itself legally
liable for the amount of damages above
set forth, which the plaintiff has sustained
by reason of the negligent acts of one of
its employees, by legislative enactment
and by appropriating sufficient funds
therefor, we are not called upon to
determine. This matter rests solely with
the Legislature and not with the courts.
RAFAEL REYES TRUCKING
CORPORATION, petitioner, vs.
PEOPLE OF THE PHILIPPINES and
ROSARIO P. DY (for herself and on
behalf of the minors Maria Luisa, Francis
Edward, Francis Mark and Francis
Rafael, all surnamed Dy), respondents.
DECISION
PARDO, J.:
The case is an appeal via certiorari from
the amended decision[1] of the Court of
Appeals[2] affirming the decision and
supplemental decision of the trial
court,[3] as follows:
"IN VIEW OF THE FOREGOING,
judgment is hereby rendered dismissing
the appeals interposed by both accused
and Reyes Trucking Corporation and
affirming the Decision and Supplemental
Decision dated June 6, 1992 and
October 26, 1992 respectively.
"SO ORDERED."[4]
The facts are as follows:
On October 10, 1989, Provincial
Prosecutor Patricio T. Durian of Isabela
filed with the Regional Trial Court,
Isabela, Branch 19, Cauayan an
amended information charging Romeo
Dunca y de Tumol with reckless
imprudence resulting in double homicide
and damage to property, reading as
follows:
"That on or about the 20th day of June,
1989, in the Municipality of Cauayan,
Province of Isabela, Philippines, and
within the jurisdiction of this Honorable
Court, the said accused being the driver
and person-in-charge of a Trailer Truck
Tractor bearing Plate No. N2A-867
registered in the name of Rafael Reyes
Trucking Corporation, with a load of
2,000 cases of empty bottles of beer
grande, willfully, unlawfully and
feloniously drove and operated the same
while along the National Highway of
Barangay Tagaran, in said Municipality,
in a negligent, careless and imprudent
manner, without due regard to traffic
laws, rules and ordinances and without
taking the necessary precautions to
prevent injuries to persons and damage
to property, causing by such negligence,
carelessness and imprudence the said
trailer truck to hit and bump a Nissan
Pick-up bearing Plate No. BBG-957
driven by Feliciano Balcita and Francisco
Dy, Jr., @ Pacquing, due to irreversible
shock, internal and external hemorrhage
and multiple injuries, open wounds,
abrasions, and further causing damages
to the heirs of Feliciano Balcita in the
amount of P100,000.00 and to the death
of Francisco Dy, Jr.; @ Pacquing and
damages to his Nissan Pick-Up bearing
Plate No. BBG-957 in the total amount of
P2,000,000.00.
"CONTRARY TO LAW.
"Cauayan, Isabela, October 10, 1989.
"(Sgd.) FAUSTO C. CABANTAC
"Third Assistant Provincial Prosecutor"
Upon arraignment on October 23, 1989,
the accused entered a plea of not guilty.
On the same occasion, the offended
parties (Rosario P. Dy and minor children
and Angelina M. Balcita and minor son
Paolo) made a reservation to file a
separate civil action against the accused
arising from the offense charged.[5] On
November 29, 1989, the offended parties
actually filed with the Regional Trial
Court, Isabela, Branch 19, Cauayan a
complaint against petitioner Rafael
Reyes Trucking Corporation, as
employer of driver Romeo Dunca y de
Tumol, based on quasi delict. The
petitioner settled the claim of the heirs of
Feliciano Balcita (the driver of the other
vehicle involved in the accident). The
private respondents opted to pursue the
criminal action but did not withdraw the
civil case quasi ex delicto they filed
against petitioner. On December 15,
1989, private respondents withdrew the
reservation to file a separate civil action
against the accused and manifested that
they would prosecute the civil aspect ex
delicto in the criminal action.[6] However,
they did not withdraw the separate civil
action based on quasi delict against
petitioner as employer arising from the
same act or omission of the accused
driver.[7]
Upon agreement of the parties, the trial
court consolidated both criminal and civil
cases and conducted a joint trial of the
same.
The facts, as found by the trial court,
which appear to be undisputed, are as
follows:
"The defendant Rafael Reyes Trucking
Corporation is a domestic corporation
engaged in the business of transporting
beer products for the San Miguel
Corporation (SMC for short) from the
latters San Fernando, Pampanga plant to
its various sales outlets in Luzon. Among
its fleets of vehicles for hire is the white
truck trailer described above driven by
Romeo Dunca y Tumol, a duly licensed
driver. Aside from the Corporations
memorandum to all its drivers and
helpers to physically inspect their
vehicles before each trip (Exh. 15, pars.
4 & 5), the SMCs Traffic Investigator-
Inspector certified the roadworthiness of
this White Truck trailer prior to June 20,
1989 (Exh. 17). In addition to a
professional drivers license, it also
conducts a rigid examination of all driver
applicants before they are hired.
"In the early morning of June 20, 1989,
the White Truck driven by Dunca left
Tuguegarao, Cagayan bound to San
Fernando, Pampanga loaded with 2,000
cases of empty beer "Grande" bottles.
Seated at the front right seat beside him
was Ferdinand Domingo, his truck helper
("pahinante" in Pilipino). At around 4:00
oclock that same morning while the truck
was descending at a slight downgrade
along the national road at Tagaran,
Cauayan, Isabela, it approached a
damaged portion of the road covering the
full width of the trucks right lane going
south and about six meters in length.
These made the surface of the road
uneven because the potholes were about
five to six inches deep. The left lane
parallel to this damaged portion is
smooth. As narrated by Ferdinand
Domingo, before approaching the
potholes, he and Dunca saw the Nissan
with its headlights on coming from the
opposite direction. They used to evade
this damaged road by taking the left
lance but at that particular moment,
because of the incoming vehicle, they
had to run over it. This caused the truck
to bounce wildly. Dunca lost control of
the wheels and the truck swerved to the
left invading the lane of the Nissan. As a
result, Duncas vehicle rammed the
incoming Nissan dragging it to the left
shoulder of the road and climbed a ridge
above said shoulder where it finally
stopped. (see Exh. A-5, p. 8, record). The
Nissan was severely damaged (Exhs. A-
7, A-8, A-9 and A-14, pp. 9-11, record),
and its two passengers, namely:
Feliciano Balcita and Francisco Dy, Jr.
died instantly (Exh. A-19) from external
and internal hemorrhage and multiple
fractures (pp. 15 and 16, record).
"For the funeral expenses of Francisco
Dy, Jr. her widow spent P651,360.00
(Exh. I-3). At the time of his death he was
45 years old. He was the President and
Chairman of the Board of the Dynamic
Wood Products and Development
Corporation (DWPC), a wood processing
establishment, from which he was
receiving an income of P10,000.00 a
month (Exh. D). In the Articles of
Incorporation of the DWPC, the spouses
Francisco Dy, Jr. and Rosario Perez Dy
appear to be stockholders of 10,000
shares each with par value of P100.00
per share out of its outstanding and
subscribed capital stock of 60,000
shares valued at P6,000,000.00 (Exhs.
K-1 & 10-B). Under its 1988 Income Tax
Returns (Exh. J) the DWPC had a
taxable net income of P78,499.30 (Exh.
J). Francisco Dy, Jr. was a La Salle
University graduate in Business
Administration, past president of the
Pasay Jaycees, National Treasurer and
President of the Philippine Jaycees in
1971 and 1976, respectively, and World
Vice-President of Jaycees International
in 1979. He was also the recipient of
numerous awards as a civic leader (Exh.
C). His children were all studying in
prestigious schools and spent about
P180,000.00 for their education in 1988
alone (Exh. H-4).
"As stated earlier, the plaintiffs
procurement of a writ of attachment of
the properties of the Corporation was
declared illegal by the Court of Appeals.
It was shown that on December 26,
1989, Deputy Sheriff Edgardo Zabat of
the RTC at San Fernando, Pampanga,
attached six units of Truck Tractors and
trailers of the Corporation at its garage at
San Fernando, Pampanga. These
vehicles were kept under PC guard by
the plaintiffs in said garage thus
preventing the Corporation to operate
them. However, on December 28, 1989,
the Court of Appeals dissolved the writ
(p. 30, record) and on December 29,
1989, said Sheriff reported to this Court
that the attached vehicles were taken by
the defendants representative, Melita
Manapil (Exh. O, p. 31, record). The
defendants general Manager declared
that it lost P21,000.00 per day for the
non-operation of the six units during their
attachment (p. 31, t.s.n., Natividad C.
Babaran, proceedings on December 10,
1990)."[8]
On June 6, 1992, the trial court rendered
a joint decision, the dispositive portion of
which reads as follows:
"WHEREFORE, in view of the foregoing
considerations judgment is hereby
rendered:
"1. Finding the accused Romeo Dunca y
de Tumol guilty beyond reasonable
doubt of the crime of Double Homicide
through Reckless Imprudence with
violation of the Motor Vehicle Law (Rep.
Act No. 4136), and appreciating in his
favor the mitigating circumstance of
voluntary surrender without any
aggravating circumstance to offset the
same, the Court hereby sentences him to
suffer two (2) indeterminate penalties of
four months and one day of arresto
mayor as minimum to three years, six
months and twenty days as maximum; to
indemnify the Heirs of Francisco Dy. Jr.
in the amount of P3,000,000.00 as
compensatory damages, P1,000,000.00
as moral damages, and P1,030,000.00
as funeral expenses;
"2. Ordering the plaintiff in Civil Case No.
Br. 19-424 to pay the defendant therein
actual damages in the amount of
P84,000.00; and
"3. Ordering the dismissal of the
complaint in Civil Case No. Br. 19-424.
"No pronouncement as to costs.
"SO ORDERED.
"Cauayan, Isabela, June 6, 1992.
"(Sgd.) ARTEMIO R. ALIVIA
"Regional Trial Judge"[9]
On September 3, 1992, petitioner and
the accused filed a notice of appeal from
the joint decision.[10]
On the other hand, private respondents
moved for amendment of the dispositive
portion of the joint decision so as to hold
petitioner subsidiarily liable for the
damages awarded to the private
respondents in the event of insolvency of
the accused.[11]
On October 26, 1992, the trial court
rendered a supplemental decision
amending the dispositive portion by
inserting an additional paragraph reading
as follows:
"2:A Ordering the defendant Reyes
Trucking Corporation subsidiarily liable
for all the damages awarded to the heirs
of Francisco Dy, Jr., in the event of
insolvency of the accused but deducting
therefrom the damages of P84,000.00
awarded to said defendant in the next
preceding paragraph; and x x x"[12]
On November 12, 1992, petitioner filed
with the trial court a supplemental notice
of appeal from the supplemental
decision.[13]
During the pendency of the appeal, the
accused jumped bail and fled to a foreign
country. By resolution dated December
29, 1994, the Court of Appeals dismissed
the appeal of the accused in the criminal
case.[14]
On January 6, 1997, the Court of
Appeals rendered an amended decision
affirming that of the trial court, as set out
in the opening paragraph of this
decision.[15]
On January 31, 1997, petitioner filed a
motion for reconsideration of the
amended decision.[16]
On April 21, 1997, the Court of Appeals
denied petitioners motion for
reconsideration for lack of merit.[17]
Hence, this petition for review.[18]
On July 21, 1997, the Court required
respondents to comment on the petition
within ten (10) days from notice.[19]
On January 27, 1998, the Solicitor
General filed his comment.[20] On April
13, 1998, the Court granted leave to
petitioner to file a reply and noted the
reply it filed on March 11, 1998.[21]
We now resolve to give due course to the
petition and decide the case.
Petitioner raises three (3) grounds for
allowance of the petition, which,
however, boil down to two (2) basic
issues, namely:
1.....May petitioner as owner of the truck
involved in the accident be held
subsidiarily liable for the damages
awarded to the offended parties in the
criminal action against the truck driver
despite the filing of a separate civil action
by the offended parties against the
employer of the truck driver?
2.....May the Court award damages to
the offended parties in the criminal case
despite the filing of a civil action against
the employer of the truck driver; and in
amounts exceeding that alleged in the
information for reckless imprudence
resulting in homicide and damage to
property?[22]
We grant the petition, resolving under the
circumstances pro hac vice to remand
the cases to the trial court for
determination of the civil liability of
petitioner as employer of the accused
driver in the civil action quasi ex delicto
re-opened for the purpose.
In negligence cases, the aggrieved party
has the choice between (1) an action to
enforce civil liability arising from crime
under Article 100 of the Revised Penal
Code; and (2) a separate action for quasi
delict under Article 2176 of the Civil Code
of the Philippines. Once the choice is
made, the injured party can not avail
himself of any other remedy because he
may not recover damages twice for the
same negligent act or omission of the
accused.[23] This is the rule against
double recovery.
In other words, "the same act or omission
can create two kinds of liability on the
part of the offender, that is, civil liability
ex delicto, and civil liability quasi delicto"
either of which "may be enforced against
the culprit, subject to the caveat under
Article 2177 of the Civil Code that the
offended party can not recover damages
under both types of liability."[24]
In the instant case, the offended parties
elected to file a separate civil action for
damages against petitioner as employer
of the accused, based on quasi delict,
under Article 2176 of the Civil Code of
the Philippines. Private respondents
sued petitioner Rafael Reyes Trucking
Corporation, as the employer of the
accused, to be vicariously liable for the
fault or negligence of the latter. Under the
law, this vicarious liability of the employer
is founded on at least two specific
provisions of law.
The first is expressed in Article 2176 in
relation to Article 2180 of the Civil Code,
which would allow an action predicated
on quasi-delict to be instituted by the
injured party against the employer for an
act or omission of the employee and
would necessitate only a preponderance
of evidence to prevail. Here, the liability
of the employer for the negligent conduct
of the subordinate is direct and primary,
subject to the defense of due diligence in
the selection and supervision of the
employee. The enforcement of the
judgment against the employer in an
action based on Article 2176 does not
require the employee to be insolvent
since the nature of the liability of the
employer with that of the employee, the
two being statutorily considered joint
tortfeasors, is solidary.[25] The second,
predicated on Article 103 of the Revised
Penal Code, provides that an employer
may be held subsidiarily civilly liable for a
felony committed by his employee in the
discharge of his duty. This liability
attaches when the employee is convicted
of a crime done in the performance of his
work and is found to be insolvent that
renders him unable to properly respond
to the civil liability adjudged.[26]
As regards the first issue, the answer is
in the negative. Rafael Reyes Trucking
Corporation, as employer of the accused
who has been adjudged guilty in the
criminal case for reckless imprudence,
can not be held subsidiarily liable
because of the filing of the separate civil
action based on quasi delict against it. In
view of the reservation to file, and the
subsequent filing of the civil action for
recovery of civil liability, the same was
not instituted with the criminal action.
Such separate civil action was for
recovery of damages under Article 2176
of the Civil Code, arising from the same
act or omission of the accused.[27]
Pursuant to the provision of Rule 111,
Section 1, paragraph 3 of the 1985 Rules
of Criminal Procedure, when private
respondents, as complainants in the
criminal action, reserved the right to file
the separate civil action, they waived
other available civil actions predicated on
the same act or omission of the accused-
driver. Such civil action includes the
recovery of indemnity under the Revised
Penal Code, and damages under Articles
32, 33, and 34 of the Civil Code of the
Philippines arising from the same act or
omission of the accused.[28]
The intention of private respondents to
proceed primarily and directly against
petitioner as employer of accused truck
driver became clearer when they did not
ask for the dismissal of the civil action
against the latter based on quasi delict.
Consequently, the Court of Appeals and
the trial court erred in holding the
accused civilly liable, and petitioner-
employer of the accused subsidiarily
liable for damages arising from crime (ex
delicto) in the criminal action as the
offended parties in fact filed a separate
civil action against the employer based
on quasi delict resulting in the waiver of
the civil action ex delicto.
It might be argued that private
respondents as complainants in the
criminal case withdrew the reservation to
file a civil action against the driver
(accused) and manifested that they
would pursue the civil liability of the driver
in the criminal action. However, the
withdrawal is ineffective to reverse the
effect of the reservation earlier made
because private respondents did not
withdraw the civil action against
petitioner based on quasi delict. In such
a case, the provision of Rule 111,
Section 1, paragraph 3 of the 1985 Rules
on Criminal Procedure is clear that the
reservation to file or the filing of a
separate civil action results in a waiver of
other available civil actions arising from
the same act or omission of the accused.
Rule 111, Section 1, paragraph 2
enumerated what are the civil actions
deemed waived upon such reservation or
filing, and one of which is the civil
indemnity under the Revised Penal
Code. Rule 111, Section 1, paragraph 3
of the 1985 Rules on Criminal Procedure
specifically provides:
"A waiver of any of the civil actions
extinguishes the others. The institution
of, or the reservation of the right to file,
any of said civil actions separately
waives the others."
The rationale behind this rule is the
avoidance of multiple suits between the
same litigants arising out of the same act
or omission of the offender. The
restrictive phraseology of the section
under consideration is meant to cover all
kinds of civil actions, regardless of their
source in law, provided that the action
has for its basis the same act or omission
of the offender.[29]
However, petitioner as defendant in the
separate civil action for damages filed
against it, based on quasi delict, may be
held liable thereon. Thus, the trial court
grievously erred in dismissing plaintiffs
civil complaint. And the Court of Appeals
erred in affirming the trial courts decision.
Unfortunately private respondents did
not appeal from such dismissal and could
not be granted affirmative relief.[30]
The Court, however, in exceptional
cases has relaxed the rules "in order to
promote their objectives and assist the
parties in obtaining just, speedy, and
inexpensive determination of every
action or proceeding"[31] or exempted "a
particular case from the operation of the
rules."[32]
Invoking this principle, we rule that the
trial court erred in awarding civil
damages in the criminal case and in
dismissing the civil action. Apparently
satisfied with such award, private
respondent did not appeal from the
dismissal of the civil case. However,
petitioner did appeal. Hence, this case
should be remanded to the trial court so
that it may render decision in the civil
case awarding damages as may be
warranted by the evidence.[33]
With regard to the second issue, the
award of damages in the criminal case
was improper because the civil action for
the recovery of civil liability was waived
in the criminal action by the filing of a
separate civil action against the
employer. As enunciated in Ramos vs.
Gonong,[34] "civil indemnity is not part of
the penalty for the crime committed." The
only issue brought before the trial court
in the criminal action is whether accused
Romeo Dunca y de Tumol is guilty of
reckless imprudence resulting in
homicide and damage to property. The
action for recovery of civil liability is not
included therein, but is covered by the
separate civil action filed against the
petitioner as employer of the accused
truck-driver.
In this case, accused-driver jumped bail
pending his appeal from his conviction.
Thus, the judgment convicting the
accused became final and executory, but
only insofar as the penalty in the criminal
action is concerned. The damages
awarded in the criminal action was
invalid because of its effective waiver.
The pronouncement was void because
the action for recovery of the civil liability
arising from the crime has been waived
in said criminal action.
With respect to the issue that the award
of damages in the criminal action
exceeded the amount of damages
alleged in the amended information, the
issue is de minimis. At any rate, the trial
court erred in awarding damages in the
criminal case because by virtue of the
reservation of the right to bring a
separate civil action or the filing thereof,
"there would be no possibility that the
employer would be held liable because in
such a case there would be no
pronouncement as to the civil liability of
the accused.[35]
As a final note, we reiterate that "the
policy against double recovery requires
that only one action be maintained for the
same act or omission whether the action
is brought against the employee or
against his employer.[36] The injured
party must choose which of the available
causes of action for damages he will
bring.[37]
Parenthetically, the trial court found the
accused "guilty beyond reasonable
doubt of the crime of Double Homicide
Through Reckless Imprudence with
violation of the Motor Vehicle Law (Rep.
Act No. 4136)." There is no such
nomenclature of an offense under the
Revised Penal Code. Thus, the trial court
was misled to sentence the accused "to
suffer two (2) indeterminate penalties of
four (4) months and one (1) day of
arresto mayor, as minimum, to three (3)
years, six (6) months and twenty (20)
days of prision correccional, as
maximum." This is erroneous because in
reckless imprudence cases, the actual
penalty for criminal negligence bears no
relation to the individual willful crime or
crimes committed, but is set in relation to
a whole class, or series of crimes.[38]
Unfortunately, we can no longer correct
this judgment even if erroneous, as it is,
because it has become final and
executory.
Under Article 365 of the Revised Penal
Code, criminal negligence "is treated as
a mere quasi offense, and dealt with
separately from willful offenses. It is not
a question of classification or
terminology. In intentional crimes, the act
itself is punished; in negligence or
imprudence, what is principally penalized
is the mental attitude or condition behind
the act, the dangerous recklessness,
lack of care or foresight, the imprudencia
punible. Much of the confusion has
arisen from the common use of such
descriptive phrase as homicide through
reckless imprudence, and the like; when
the strict technical sense is, more
accurately, reckless imprudence
resulting in homicide; or simple
imprudence causing damages to
property."[39]
There is need, therefore, to rectify the
designation of the offense without
disturbing the imposed penalty for the
guidance of bench and bar in strict
adherence to precedent.
WHEREFORE, the Court GRANTS the
petition and SETS ASIDE the amended
decision and resolution of the Court of
Appeals in CA-G. R. CR No. 14448,
promulgated on January 6, 1997, and the
joint decision of the Regional Trial Court,
Isabela, Branch 19, Cauayan, in Criminal
Case No. Br. 19-311 and Civil Case No.
Br. 19-424, dated June 6, 1992.
IN LIEU THEREOF, the Court renders
judgment as follows:
(1) In Criminal Case No. Br. 19-311, the
Court declares the accused Romeo
Dunca y de Tumol guilty beyond
reasonable doubt of reckless
imprudence resulting in homicide and
damage to property, defined and
penalized under Article 365, paragraph 2
of the Revised Penal Code, with violation
of the automobile law (R. A. No. 4136, as
amended), and sentences him to suffer
two (2) indeterminate penalties of four (4)
months and one (1) day of arresto mayor,
as minimum, to three (3) years, six (6)
months and twenty (20) days of prision
correccional, as maximum,[40] without
indemnity, and to pay the costs, and
(2) In Civil Case No. Br. 19-424, the
Court orders the case re-opened to
determine the liability of the defendant
Rafael Reyes Trucking Corporation to
plaintiffs and that of plaintiffs on
defendants counterclaim.
No costs in this instance.
SO ORDERED.
OSCAR DEL CARMEN, JR.,
G.R. No. 173870
Petitioner,
- versus -
Present:
GERONIMO BACOY, Guardian and
CORONA, C.J., Chairperson,
representing the children, namely:
LEONARDO-DE CASTRO,
MARY MARJORIE B. MONSALUD,
BERSAMIN,
ERIC B. MONSALUD, METZIE ANN
DEL CASTILLO, and
B. MONSALUD, KAREEN B.
VILLARAMA, JR., JJ.
MONSALUD, LEONARDO B.
MONSALUD, JR., and CRISTINA B.
MONSALUD,
Respondents.
Promulgated:
April 25, 2012
DECISION
DEL CASTILLO, J.:
In this Petition for Review on
Certiorari,[1] the registered owner of a
motor vehicle challenges the Decision[2]
dated July 11, 2006 of the Court of
Appeals (CA) in CA-G.R. CV No. 67764
which held him liable for damages to the
heirs of the victims who were run over by
the said vehicle.
Factual Antecedents
At dawn on New Years Day of 1993,
Emilia Bacoy Monsalud (Emilia), along
with her spouse Leonardo Monsalud, Sr.
and their daughter Glenda Monsalud,
were on their way home from a
Christmas party they attended in
Poblacion, Sominot, Zamboanga Del
Sur. Upon reaching Purok Paglaom in
Sominot, they were run over by a Fuso
passenger jeep bearing plate number
UV-PEK-600 that was being driven by
Allan Maglasang (Allan). The jeep was
registered in the name of petitioner
Oscar del Carmen, Jr. (Oscar Jr.) and
used as a public utility vehicle plying the
Molave, Zamboanga del Sur to Sominot,
Zamboanga del Sur and vice versa route.
Because of the unfortunate incident,
Criminal Case No. 93-10347[3] for
Reckless Imprudence Resulting in
Multiple Homicide was filed against Allan
before the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23.
In a Decision dated March 13, 1997, said
court declared Allan guilty beyond
reasonable doubt of the crime
charged.[4]
During the pendency of said criminal
case, Emilias father, Geronimo Bacoy
(Geronimo), in behalf of the six minor
children[5] of the Monsaluds, filed Civil
Case No. 96-20219,[6] an independent
civil action for damages based on culpa
aquiliana. Aside from Allan, also
impleaded therein were his alleged
employers, namely, the spouses Oscar
del Carmen, Sr. (Oscar Sr.) and Norma
del Carmen (Spouses del Carmen) and
the registered owner of the jeep, their
son Oscar Jr. Geronimo prayed for the
reimbursement of funeral and burial
expenses, as well as the award of
attorneys fees, moral and exemplary
damages resulting from the death of the
three victims, and loss of net income
earnings of Emilia who was employed as
a public school teacher at the time of her
death.[7]
Defendants refused to assume civil
liability for the victims deaths. Oscar Sr.
averred that the Monsaluds have no
cause of action against them because he
and his wife do not own the jeep and that
they were never the employers of
Allan.[8] For his part, Oscar Jr. claimed
to be a victim himself. He alleged that
Allan and his friends[9] stole his jeep
while it was parked beside his drivers
rented house to take it for a joyride. Both
he and a vehicle mechanic testified that
the subject jeep can easily be started by
mere pushing sans the ignition key. The
vehicles engine shall then run but without
any headlights on.[10] And implying that
this was the manner by which the vehicle
was illegally taken, Oscar Jr. submitted
as part of his documentary evidence the
statements[11] of Jemar Alarcon (Jemar)
and Benjamin Andujar (Benjamin). The
two, who were with Allan in the jeep at
the time of the accident, declared before
the investigating officer that during said
time, the vehicles headlights were off.
Because of this allegation, Oscar Jr.
even filed before the same trial court a
carnapping case against Allan and his
companions docketed as Criminal Case
No. 93-10380.[12] The case was,
however, dismissed for insufficiency of
evidence.[13]
Oscar Jr. clarified that Allan was his jeep
conductor and that it was the latters
brother, Rodrigo Maglasang (Rodrigo),
who was employed as the driver.[14] In
any event, Allans employment as
conductor was already severed before
the mishap occurred on January 1, 1993
since he served as such conductor only
from the first week of December until
December 14, 1992.[15] In support of
this, Oscar Jr. presented as witnesses
Faustino Sismundo (Faustino) and
Cresencio Junior Baobao (Cresencio).
Faustino, a resident of Molave, testified
that when he boarded the jeep heading
to Sominot on December 31, 1992, it was
Cresencio who was the conductor. He
also believed that Crecencio started to
work as such at around December 15 or
16, 1992.[16] Cresencio, for his part,
testified that he worked as Oscar Jr.s
conductor from December 15, 1992 to
January 1, 1993 and that Rodrigo was
his driver.[17] He stated that upon
learning that the jeep figured in an
accident, he never bothered to verify the
news. Instead, he went to Midsalip to
work there as a conductor for his
brothers vehicle, thereby terminating his
employment with Oscar Jr.[18]
Oscar Jr. likewise testified that it was
routinary that after a days trip, the jeep
would be parked beside Rodrigos rented
house[19] for the next early-morning
operation.
Geronimo, on the other hand, averred
that Allan was still Oscar Jr.s employee
subsequent to December 14, 1992. To
prove this, he presented as witnesses
Saturnino Jumawan (Saturnino) and
Jose Navarro (Jose). Saturnino testified
that he would pay his fare to Allan every
time he would board the jeep in going to
Molave and that the last time he rode the
subject vehicle was on December 23,
1992. He also claimed that immediately
before January 1, 1993, Rodrigo and
Allan used to park the jeep at the yard of
his house.[20] Jose likewise attested that
Allan was still the jeep conductor during
the said period as he had ridden the jeep
many times in mid-December of
1992.[21]
Ruling of the Regional Trial Court
In its Decision[22] dated April 17, 2000,
the RTC exculpated the spouses del
Carmen from civil liability for insufficiency
of evidence. However, their son Oscar Jr.
was held civilly liable in a subsidiary
capacity. The RTC anchored its ruling
primarily on the principle of res ipsa
loquitur, i.e., that a presumption of
negligence on the part of a defendant
may be inferred if the thing that caused
an injury is shown to be under his
management and that in the ordinary
course of things, the accident would not
have happened had there been an
exercise of care. Said court ratiocinated
that Oscar Jr., as the registered owner of
the jeep, managed and controlled the
same through his driver Rodrigo, in
whose house the jeep was usually
parked. Since both Oscar Jr. and
Rodrigo were well aware that the jeep
could easily be started by a mere push
even without the ignition key, they should
have taken the necessary precaution to
prevent the vehicle from being used by
unauthorized persons like Allan. The
RTC thus concluded that such lack of
proper precaution, due care and
foresight constitute negligence making
the registered owner of the vehicle civilly
liable for the damage caused by the
same.
The RTC disposed of the case as
follows:
Wherefore, judgment is hereby entered
in favor of the plaintiffs and against the
defendants Allan Maglasang and Oscar
del Carmen, Jr. ordering
1. Defendant ALLAN
MAGLASANG to pay the plaintiffs, and in
case of insolvency, for defendant
OSCAR DEL CARMEN, JR., to pay the
plaintiffs, the following sums:
a. P73,112.00 for their funeral
and burial expenses;
b. P1,000,000.00 moral damages
for the death of the late Emilia Monsalud;
c. P250,000.00 moral damages
for the death of the late Leonardo
Monsalud, Sr.;
d. P250,000.00 moral damages
for the death of the late Glenda
Monsalud;
e. P40, 000.00, for exemplary
damages;
f. P20,000.00 attorneys fees;
and
g. The cost of this proceedings.
2. The dismissal of the complaint
as against the spouses OSCAR DEL
CARMEN SR. and NORMA DEL
CARMEN.
SO ORDERED.[23]
Oscar Jr. moved for reconsideration[24]
contending that the provision on
vicarious liability of the employer under
Article 2180 of the Civil Code[25]
requires the existence of employer-
employee relationship and that the
employee was acting within the scope of
his employment when the tort occurred.
He stressed that even assuming that
Allan was his employee, he was hired not
as a driver but as a conductor. Hence,
Allan acted beyond the scope of his
employment when he drove the jeep.
Oscar Jr. also stressed that the fact that
the jeep was running without its
headlights on at the time of the accident
indubitably shows that the same was
stolen. He further alleged that the jeep
could not have been taken by only one
person. As Rodrigo declared in Criminal
Case No. 93-10380 (carnapping case),
based on his experience, the jeep cannot
be pushed by only one person but by at
least five people in order for it to start.
This was due to the vehicles mass and
the deep canal which separates the
parking area from the curved road that
was obstructed by a house.[26]
Setting aside its earlier decision, the
lower court in its Order[27] dated June
21, 2000 granted the Motion for
Reconsideration and absolved Oscar Jr.
from civil liability. It cited Article 103 of
the Revised Penal Code which provides
that for an employer to be subsidiarily
liable for the criminal acts of his
employee, the latter should have
committed the same in the discharge of
his duties. The court agreed with Oscar
Jr. that this condition is wanting in Allans
case as he was not acting in the
discharge of his duties as a conductor
when he drove the jeep.
The court also declared the doctrine of
res ipsa loquitur inapplicable since the
property owner cannot be made
responsible for the damages caused by
his property by reason of the criminal
acts of another. It then adjudged that only
Allan should bear the consequences of
his criminal acts. Thus:
WHEREFORE, premises considered,
the MOTION FOR
RECONSIDERATION is granted, and
defendant OSCAR DEL CARMEN JR. is
hereby absolved from all civil liability
arising from the felonious acts of
convicted accused ALLAN
MAGLASANG.
IT IS SO ORDERED.[28]
Geronimo appealed.
Ruling of the Court of Appeals
In its July 11, 2006 Decision,[29] the CA
granted the appeal.
In resolving the case, the CA first
determined the preliminary issue of
whether there was an employer-
employee relationship between Oscar Jr.
and Allan at the time of the accident. It
ruled in the affirmative and gave more
credence to the testimonies of
Geronimos witnesses than to those of
Oscar Jr.s witnesses, Faustino and
Cresencio. The CA ratiocinated that
unlike the witness presented by
Geronimo, Faustino never resided in
Poblacion and thus has limited
knowledge of the place. His testimony
was also unreliable considering that he
only rode the subject jeep twice[30]
during the last two weeks of December
1992. As regards Cresencios testimony,
the appellate court found it puzzling why
he appeared to have acted uninterested
upon learning that the jeep was the
subject of an accident when it was his
bread and butter. Said court likewise
considered questionable Oscar Jr.s
asseveration that Cresencio replaced
Allan as conductor when Cresencio
testified that he replaced a certain
Sumagang Jr.[31]
With regard to the main issue, the CA
adjudged Oscar Jr. liable to the heirs of
the victims based on the principle that the
registered owner of a vehicle is directly
and primarily responsible for the injuries
or death of third parties caused by the
operation of such vehicle. It disbelieved
Oscar Jr.s defense that the jeep was
stolen not only because the carnapping
case filed against Allan and his
companions was dismissed but also
because, given the circumstances,
Oscar Jr. is deemed to have given Allan
the implied permission to use the subject
vehicle. To support its conclusion, the CA
cited the following circumstances:
siblings Rodrigo and Allan were both
employees assigned to the said jeep;
after a days work, said vehicle would be
parked just beside Rodrigos house
where Allan also lived; the jeep could
easily be started even without the use of
an ignition key; the said parking area was
not fenced or secured to prevent the
unauthorized use of the vehicle which
can be started even without the ignition
key.
The dispositive portion of the CA
Decision reads:
WHEREFORE, premises considered,
the instant appeal is GRANTED. The
assailed Order dated 21 June 2000 of the
Regional Trial Court (Branch 23),
Molave, Zamboanga del Sur, in Civil
Case No. 96-20,219 is SET ASIDE and a
new one is hereby entered. OSCAR DEL
CARMEN, Jr. and ALLAN MAGLASANG
are held primarily liable, jointly and
severally, to pay plaintiffs-appellants:
1. Civil indemnity for the death of Emilia
Bacoy Monsalud, Leonardo Monsalud
Sr., and Glenda Monsalud in the amount
of Fifty thousand pesos (P50,000.00)
each or for the total amount of One
hundred fifty thousand pesos
(P150,000.00);
2. Temperate damages in the amount of
Twenty-five Thousand Pesos
(P25,000.00) each for the death of Emilia
Monsalud, Leonardo Monsalud Sr., and
Glenda Monsalud (collectively the
Monsaluds) or for the total amount of
Seventy-five thousand pesos
(P75,000.00);
3. Moral damages in the amount
of Fifty Thousand Pesos (P50,000.00)
each for the death of the Monsaluds or
for a total amount of One Hundred Fifty
Thousand Pesos (P150,000.00);
4. Exemplary damages of Forty
Thousand Pesos (P40,000.00).
No pronouncement as to costs.
SO ORDERED. [32]
Issues
As a result of the adverse judgment,
Oscar Jr. filed this Petition for Review on
Certiorari alleging that the CA erred in:
1. x x x basing its conclusions
and findings on speculations, surmises
and conjectures; misapprehension of
facts which are in conflict with the
findings of the trial court;
2. x x x declaring a question of
substance not in accord with law and with
the applicable decisions of the Supreme
Court;
3. x x x departing from the regular
course of the judicial proceedings in the
disposition of the appeal and [in going]
beyond the issues of the case.[33]
Oscar Jr. points out that the CA failed to
consider the RTCs ruling in its June 21,
2000 Order which was in accord with
Article 2180 of the Civil Code, i.e., that
the tort committed by an employee
should have been done within the scope
of his assigned tasks for an employer to
be held liable under culpa aquiliana.
However, the CA never touched upon
this matter even if it was glaring that
Allans driving the subject vehicle was not
within the scope of his previous
employment as conductor. Moreover,
Oscar Jr. insists that his jeep was stolen
and stresses that the liability of a
registered owner of a vehicle as to third
persons, as well as the doctrine of res
ipsa loquitur, should not apply to him. He
asserts that although Allan and his
companions were not found to have
committed the crime of carnapping
beyond reasonable doubt, it was
nevertheless established that the jeep
was illicitly taken by them from a well
secured area. This is considering that the
vehicle was running without its
headlights on at the time of the accident,
a proof that it was started without the
ignition key.
Our Ruling
Petitioners own evidence casts doubt on
his claim that his jeep was stolen by Allan
and his alleged cohorts. Negligence is
presumed under the doctrine of res ipsa
loquitur.
Oscar Jr.s core defense to release him
from responsibility for the death of the
Monsaluds is that his jeep was stolen. He
highlights that the unauthorized taking of
the jeep from the parking area was
indeed carried out by the clandestine and
concerted efforts of Allan and his five
companions, notwithstanding the
obstacles surrounding the parking area
and the weight of the jeep.
Notably, the carnapping case filed
against Allan and his group was already
dismissed by the RTC for insufficiency of
evidence. But even in this civil case and
as correctly concluded by the CA, the
evidentiary standard of preponderance
of evidence required was likewise not
met to support Oscar Jr.s claim that his
jeep was unlawfully taken.
Two of Allans co-accused in the
carnapping case, Jemar and Benjamin,
declared before the police that when
Allan invited them to ride with him, he
was already driving the jeep:
04. Q- On that night, on or about 11:30
oclock on December 31, 1992, where
were you?
A- I went to the disco near [the] Public
Market[,] Sominot, Zamboanga del Sur.
05. Q- While you were in disco place, do
you know if there was an incident [that]
happened?
A- No sir but when I was in the disco
place, at about 3:30 at dawn more or
less[,] January 1, 1993, Allan Maglasang
arrived driving the jeep and he invited me
to ride together with Benjamin Andujar,
Dioscoro Sol, Arniel Rezada and Joven
Orot.[34]
xxxx
04. Q- On that night, on or about 9:00
oclock in the evening more or less on
December 31, 1992, where were you?
A- I went to the disco at [the] Public
Market[,] Sominot, Zamboanga del Sur.
05. Q- While you were in the disco place,
do you know if there was an incident
[that] happened?
A- No, sir, but when I was in the disco
place, at about 3:30 at dawn more or
less[,] January 1, 1993, Allan Maglasang
arrive[d] driving the jeep and he invited
me to ride together with Jemar Alarcon,
Dioscoro Sol, Arniel Rizada and Joven
Orot.[35]
There were six accused in the
carnapping case. If Jemar and Benjamin
were fetched by Allan who was driving
the jeep, this would mean that only three
men pushed the jeep contrary to
Rodrigos testimony in Criminal Case No.
93-10380 that it has to be pushed by at
least five people so that it could start
without the ignition key.
On direct examination,[36] Oscar Jr. was
asked as to what Rodrigo, his driver who
had informed him about the accident on
January 1, 1993 at around 7:00 a.m.,
turned over to him after the incident, viz:
Q: When Rodrigo Maglasang, your driver
informed you about the accident, what
did he carry with him if any and turned
over to you?
A: The OR (Official Receipt) and the CR
(Certificate of Registration) Sir.
Q: How about the key of the vehicle?
A: It was not turned over, Sir.[37]
Assuming arguendo that Allan stole the
jeep by having the same pushed by a
group, the ignition key should then be
with Rodrigo as he was entrusted with
the jeeps possession. Thus, at the time
Rodrigo faced his employer hours after
the incident, it is reasonable to expect
that the driver should have also returned
the key to the operator together with the
Official Receipt and Certificate of
Registration. Notably, Rodrigo did not do
so and instead, the key was allegedly
handed over to the police for reasons
unexplained and not available from the
records. Interestingly, Oscar Jr. never
presented Rodrigo as his witness.
Neither was he able to attest on cross-
examination that Allan really stole the
jeep by pushing or that the key was
handed over to him by Rodrigo:
Q: On December 31, 1992, you did not
know that it was Rodrigo Maglasang who
gave the key to Allan Maglasang. Is that
correct?
A: I was not there. So, I do not know but
he had an affidavit to show that he turned
it over to the police.
Q: What I was asking you is that, [o]n the
night of December 31, 1992, when it was
driven by Allan Maglasang, you did not
know that the key was voluntarily given
by Rodrigo Maglasang to Allan
Maglasang?
A: I was not there.
Q: So, you could not testify on that, is that
correct?
A: Yes Sir, I was not there.[38]
Furthermore, Oscar Jr. acknowledged
the dismissal of the carnapping case,
thus:

Q: Now, there was a case filed against
Allan Maglasang and [his] x x x co-
accused x x x [n]amely: Benjamin
Andojar, Dioscoro Sol, Joven Orot,
[Jemar Azarcon] and [Arniel] Rizada, for
carnapping. Is that correct?
A: Yes Sir.
Q: That case was filed by you because
you alleged that on December 31, 1992,
your jeep was carnapped by Allan
Maglasang and his co-accused, the said
mentioned, is that correct?
A: Yes Sir.
Q: You testified on the case in Aurora, is
that correct?
A: Yes, Sir.
Q: And you could well remember that this
representation is the counsel of the co-
accused of Allan Maglasang, is that
correct?
A: Yes Sir.
Q: And that case for carnapping was
dismissed, is that correct?
A: Yes Sir.
Q: Even the case of Allan Maglasang,
was also dismissed, is that correct
A: Yes Sir.
Q: Because there was no sufficient
evidence to establish that the jeep was
carnapped, is that correct?
A: Yes Sir.[39]
While Oscar Jr. highlights that the
headlights were not on to support his
claim that his jeep was stolen, this
circumstance by itself will not prove that
it really was stolen. The reason why the
headlights were not on at the time of the
accident was not sufficiently established
during the trial. Besides, the fact that the
headlights were not on cannot be
exclusively attributed to the lack of
ignition key in starting the jeep as there
may be other possibilities such as
electrical problems, broken headlights,
or that they were simply turned off.
Hence, sans the testimony of witnesses
and other relevant evidence to support
the defense of unauthorized taking, we
cannot subscribe to Oscar Jr.s claim that
his jeep was stolen. The evidence on
record brings forth more questions than
clear-cut answers.
Oscar Jr. alleges that the presumption of
negligence under the doctrine of res ipsa
loquitur (literally, the thing speaks for
itself) should not have been applied
because he was vigilant in securing his
vehicle. He claims that the jeep was
parked in a well secured area not remote
to the watchful senses of its driver
Rodrigo.
Under the doctrine of res ipsa loquitur,
[w]here the thing that caused the injury
complained of is shown to be under the
management of the defendant or his
servants; and the accident, in the
ordinary course of things, would not
happen if those who had management or
control used proper care, it affords
reasonable evidence in the absence of a
sufficient, reasonable and logical
explanation by defendant that the
accident arose from or was caused by
the defendants want of care.[40] Res
ipsa loquitur is merely evidentiary, a
mode of proof, or a mere procedural
convenience, since it furnishes a
substitute for, and relieves a plaintiff of,
the burden of producing a specific proof
of negligence.[41] It recognizes that
parties may establish prima facie
negligence without direct proof, thus, it
allows the principle to substitute for
specific proof of negligence. It permits
the plaintiff to present along with proof of
the accident, enough of the attending
circumstances to invoke the doctrine,
create an inference or presumption of
negligence and thereby place on the
defendant the burden of proving that
there was no negligence on his part.[42]
The doctrine is based partly on the theory
that the defendant in charge of the
instrumentality which causes the injury
either knows the cause of the accident or
has the best opportunity of ascertaining it
while the plaintiff has no such
knowledge, and is therefore compelled to
allege negligence in general terms.[43]
The requisites of the doctrine of res ipsa
loquitur as established by jurisprudence
are as follows:
1) the accident is of a kind which does
not ordinarily occur unless someone is
negligent;
2) the cause of the injury was under the
exclusive control of the person in charge
and
3) the injury suffered must not have been
due to any voluntary action or
contribution on the part of the person
injured.[44]
The above requisites are all present in
this case. First, no person just walking
along the road would suddenly be
sideswiped and run over by an on-
rushing vehicle unless the one in charge
of the said vehicle had been negligent.
Second, the jeep which caused the injury
was under the exclusive control of Oscar
Jr. as its owner. When Oscar Jr.
entrusted the ignition key to Rodrigo, he
had the power to instruct him with regard
to the specific restrictions of the jeeps
use, including who or who may not drive
it. As he is aware that the jeep may run
without the ignition key, he also has the
responsibility to park it safely and
securely and to instruct his driver
Rodrigo to observe the same precaution.
Lastly, there was no showing that the
death of the victims was due to any
voluntary action or contribution on their
part.
The aforementioned requisites having
been met, there now arises a
presumption of negligence against Oscar
Jr. which he could have overcome by
evidence that he exercised due care and
diligence in preventing strangers from
using his jeep. Unfortunately, he failed to
do so.
What this Court instead finds worthy of
credence is the CAs conclusion that
Oscar Jr. gave his implied permission for
Allan to use the jeep. This is in view of
Oscar Jr.s failure to provide solid proof
that he ensured that the parking area is
well secured and that he had expressly
imposed restrictions as to the use of the
jeep when he entrusted the same to his
driver Rodrigo. As fittingly inferred by the
CA, the jeep could have been endorsed
to Allan by his brother Rodrigo since as
already mentioned, Oscar Jr. did not give
Rodrigo any specific and strict
instructions on matters regarding its use.
Rodrigo therefore is deemed to have
been given the absolute discretion as to
the vehicles operation, including the
discretion to allow his brother Allan to
use it.
The operator on record of a vehicle is
primarily responsible to third persons for
the deaths or injuries consequent to its
operation, regardless of whether the
employee drove the registered owners
vehicle in connection with his
employment.
Without disputing the factual finding of
the CA that Allan was still his
employee at the time of the accident, a
finding which we see no reason to
disturb, Oscar Jr. contends that Allan
drove the jeep in his private capacity and
thus, an employers vicarious liability for
the employees fault under Article 2180 of
the Civil Code cannot apply to him.
The contention is no longer novel. In
Aguilar Sr. v. Commercial Savings
Bank,[45] the car of therein respondent
bank caused the death of Conrado
Aguilar, Jr. while being driven by its
assistant vice president. Despite Article
2180, we still held the bank liable for
damages for the accident as said
provision should defer to the settled
doctrine concerning accidents involving
registered motor vehicles, i.e., that the
registered owner of any vehicle, even if
not used for public service, would
primarily be responsible to the public or
to third persons for injuries caused the
latter while the vehicle was being driven
on the highways or streets.[46] We have
already ratiocinated that:
The main aim of motor vehicle
registration is to identify the owner so
that if any accident happens, or that any
damage or injury is caused by the vehicle
on the public highways, responsibility
therefor can be fixed on a definite
individual, the registered owner.
Instances are numerous where vehicles
running on public highways caused
accidents or injuries to pedestrians or
other vehicles without positive
identification of the owner or drivers, or
with very scant means of identification. It
is to forestall these circumstances, so
inconvenient or prejudicial to the public,
that the motor vehicle registration is
primarily ordained, in the interest of the
determination of persons responsible for
damages or injuries caused on public
highways.[47]
Absent the circumstance of unauthorized
use[48] or that the subject vehicle was
stolen[49] which are valid defenses
available to a registered owner, Oscar Jr.
cannot escape liability for quasi-delict
resulting from his jeeps use.
All told and considering that the amounts
of damages awarded are in accordance
with prevailing jurisprudence, the Court
concurs with the findings of the CA and
sustains the awards made. In addition,
pursuant to Eastern Shipping Lines, Inc.
v. Court of Appeals,[50] an interest of six
percent (6%) per annum on the amounts
awarded shall be imposed, computed
from the time the judgment of the RTC is
rendered on April 17, 2000 and twelve
percent (12%) per annum on such
amount upon finality of this Decision until
the payment thereof.
WHEREFORE, premises considered,
the instant petition is DENIED. The
Decision dated July 11, 2006 of the Court
of Appeals in CA-G.R. CV No. 67764 is
hereby AFFIRMED with further
MODIFICATION that an interest of six
percent (6%) per annum on the amounts
awarded shall be imposed, computed
from the time the judgment of the
Regional Trial Court, Branch 23, Molave,
Zamboanga del Sur is rendered on April
17, 2000 and twelve percent (12%) per
annum on such amount upon finality of
this Decision until the payment thereof.
SO ORDERED.
EQUITABLE LEASING
CORPORATION, petitioner, vs. LUCITA
SUYOM, MARISSA ENANO, MYRNA
TAMAYO and FELIX OLEDAN,
respondents.
DECISION
PANGANIBAN, J.:
In an action based on quasi delict, the
registered owner of a motor vehicle is
solidarily liable for the injuries and
damages caused by the negligence of
the driver, in spite of the fact that the
vehicle may have already been the
subject of an unregistered Deed of Sale
in favor of another person. Unless
registered with the Land Transportation
Office, the sale -- while valid and binding
between the parties -- does not affect
third parties, especially the victims of
accidents involving the said transport
equipment. Thus, in the present case,
petitioner, which is the registered owner,
is liable for the acts of the driver
employed by its former lessee who has
become the owner of that vehicle by
virtue of an unregistered Deed of Sale.
Statement of the Case
Before us is a Petition for Review under
Rule 45 of the Rules of Court, assailing
the May 12, 2000 Decision[1] of the
Court of Appeals[2] (CA) in CA-GR CV
No. 55474. The decretal portion of the
Decision reads as follows:
WHEREFORE, premises considered,
the instant appeal is hereby DISMISSED
for lack of merit. The assailed decision,
dated May 5, 1997, of the Regional Trial
Court of Manila, Branch 14, in Civil Case
No. 95-73522, is hereby AFFIRMED with
MODIFICATION that the award of
attorneys fees is DELETED.[3]
On the other hand, in Civil Case No. 95-
73522, the Regional Trial Court (RTC) of
Manila (Branch 14) had earlier disposed
in this wise:
WHEREFORE, judgment is hereby
rendered in favor of the plaintiffs and
against the defendant Equitable Leasing
Corporation ordering said defendant to
pay to the plaintiffs the following:
A. TO MYRNA TAMAYO
1. the sum of P50,000.00 for the death of
Reniel Tamayo;
2. P50,000.00 as moral damages; and
3. P56,000.00 for the damage to the
store and its contents, and funeral
expenses.
B. TO FELIX OLEDAN
1. the sum of P50,000.00 for the death of
Felmarie Oledan;
2. P50,000.00 as moral damages; and
3. P30,000.00 for medical expenses, and
funeral expenses.
C. TO MARISSA ENANO
1. P7,000.00 as actual damages
D. TO LUCITA SUYOM
1. The sum of P5,000.00 for the medical
treatment of her two sons.
The sum of P120,000.00 as and for
attorneys fees.[4]
The Facts
On July 17, 1994, a Fuso Road Tractor
driven by Raul Tutor rammed into the
house cum store of Myrna Tamayo
located at Pier 18, Vitas, Tondo, Manila.
A portion of the house was destroyed.
Pinned to death under the engine of the
tractor were Respondent Myrna
Tamayos son, Reniel Tamayo, and
Respondent Felix Oledans daughter,
Felmarie Oledan. Injured were
Respondent Oledan himself,
Respondent Marissa Enano, and two
sons of Respondent Lucita Suyom.
Tutor was charged with and later
convicted of reckless imprudence
resulting in multiple homicide and
multiple physical injuries in Criminal
Case No. 296094-SA, Metropolitan Trial
Court of Manila, Branch 12.[5]
Upon verification with the Land
Transportation Office, respondents were
furnished a copy of Official Receipt No.
62204139[6] and Certificate of
Registration No. 08262797,[7] showing
that the registered owner of the tractor
was Equitable Leasing
Corporation/leased to Edwin Lim. On
April 15, 1995, respondents filed against
Raul Tutor, Ecatine Corporation
(Ecatine) and Equitable Leasing
Corporation (Equitable) a Complaint[8]
for damages docketed as Civil Case No.
95-73522 in the RTC of Manila, Branch
14.
The trial court, upon motion of plaintiffs
counsel, issued an Order dropping Raul
Tutor, Ecatine and Edwin Lim from the
Complaint, because they could not be
located and served with summonses.[9]
On the other hand, in its Answer with
Counterclaim,[10] petitioner alleged that
the vehicle had already been sold to
Ecatine and that the former was no
longer in possession and control thereof
at the time of the incident. It also claimed
that Tutor was an employee, not of
Equitable, but of Ecatine.
After trial on the merits, the RTC
rendered its Decision ordering petitioner
to pay actual and moral damages and
attorneys fees to respondents. It held
that since the Deed of Sale between
petitioner and Ecatine had not been
registered with the Land Transportation
Office (LTO), the legal owner was still
Equitable.[11] Thus, petitioner was liable
to respondents.[12]
Ruling of the Court of Appeals
Sustaining the RTC, the CA held that
petitioner was still to be legally deemed
the owner/operator of the tractor, even if
that vehicle had been the subject of a
Deed of Sale in favor of Ecatine on
December 9, 1992. The reason cited by
the CA was that the Certificate of
Registration on file with the LTO still
remained in petitioners name.[13] In
order that a transfer of ownership of a
motor vehicle can bind third persons, it
must be duly recorded in the LTO.[14]
The CA likewise upheld respondents
claim for moral damages against
petitioner because the appellate court
considered Tutor, the driver of the
tractor, to be an agent of the registered
owner/operator.[15]
Hence, this Petition.[16]
Issues
In its Memorandum, petitioner raises the
following issues for the Courts
consideration:
I satisfy the civil liability adjudged.[23]
Whether or not the Court of Appeals and
the trial court gravely erred when they
decided and held that petitioner [was]
liable for damages suffered by private
respondents in an action based on quasi
delict for the negligent acts of a driver
who [was] not the employee of the
petitioner.
II
Whether or not the Court of Appeals and
the trial court gravely erred when they
awarded moral damages to private
respondents despite their failure to prove
that the injuries they suffered were
brought by petitioners wrongful act.[17]
This Courts Ruling
The Petition has no merit.
First Issue:
Liability for Wrongful Acts
Petitioner contends that it should not be
held liable for the damages sustained by
respondents and that arose from the
negligence of the driver of the Fuso Road
Tractor, which it had already sold to
Ecatine at the time of the accident. Not
having employed Raul Tutor, the driver of
the vehicle, it could not have controlled
or supervised him.[18]
We are not persuaded. In negligence
cases, the aggrieved party may sue the
negligent party under (1) Article 100[19]
of the Revised Penal Code, for civil
liability ex delicto; or (2) under Article
2176[20] of the Civil Code, for civil
liability ex quasi delicto.[21]
Furthermore, under Article 103 of the
Revised Penal Code, employers may be
held subsidiarily liable for felonies
committed by their employees in the
discharge of the latters duties.[22] This
liability attaches when the employees
who are convicted of crimes committed in
the performance of their work are found
to be insolvent and are thus unable to
On the other hand, under Article 2176 in
relation to Article 2180[24] of the Civil
Code, an action predicated on quasi
delict may be instituted against the
employer for an employees act or
omission. The liability for the negligent
conduct of the subordinate is direct and
primary, but is subject to the defense of
due diligence in the selection and
supervision of the employee.[25] The
enforcement of the judgment against the
employer for an action based on Article
2176 does not require the employee to
be insolvent, since the liability of the
former is solidary -- the latter being
statutorily considered a joint
tortfeasor.[26] To sustain a claim based
on quasi delict, the following requisites
must be proven: (a) damage suffered by
the plaintiff, (b) fault or negligence of the
defendant, and (c) connection of cause
and effect between the fault or
negligence of the defendant and the
damage incurred by the plaintiff.[27]
These two causes of action (ex delicto or
ex quasi delicto) may be availed of,
subject to the caveat[28] that the
offended party cannot recover damages
twice for the same act or omission or
under both causes.[29] Since these two
civil liabilities are distinct and
independent of each other, the failure to
recover in one will not necessarily
preclude recovery in the other.[30]
In the instant case, respondents -- having
failed to recover anything in the criminal
case -- elected to file a separate civil
action for damages, based on quasi
delict under Article 2176 of the Civil
Code.[31] The evidence is clear that the
deaths and the injuries suffered by
respondents and their kins were due to
the fault of the driver of the Fuso tractor.
Dated June 4, 1991, the Lease
Agreement[32] between petitioner and
Edwin Lim stipulated that it is the
intention of the parties to enter into a
FINANCE LEASE AGREEMENT.[33]
Under such scheme, ownership of the
subject tractor was to be registered in the
name of petitioner, until the value of the
vehicle has been fully paid by Edwin
Lim.[34] Further, in the Lease
Schedule,[35] the monthly rental for the
tractor was stipulated, and the term of the
Lease was scheduled to expire on
December 4, 1992. After a few months,
Lim completed the payments to cover the
full price of the tractor.[36] Thus, on
December 9, 1992, a Deed of Sale[37]
over the tractor was executed by
petitioner in favor of Ecatine represented
by Edwin Lim. However, the Deed was
not registered with the LTO.
We hold petitioner liable for the deaths
and the injuries complained of, because
it was the registered owner of the tractor
at the time of the accident on July 17,
1994.[38] The Court has consistently
ruled that, regardless of sales made of a
motor vehicle, the registered owner is the
lawful operator insofar as the public and
third persons are concerned;
consequently, it is directly and primarily
responsible for the consequences of its
operation.[39] In contemplation of law,
the owner/operator of record is the
employer of the driver, the actual
operator and employer being considered
as merely its agent.[40] The same
principle applies even if the registered
owner of any vehicle does not use it for
public service.[41]
Since Equitable remained the registered
owner of the tractor, it could not escape
primary liability for the deaths and the
injuries arising from the negligence of the
driver.[42]
The finance-lease agreement between
Equitable on the one hand and Lim or
Ecatine on the other has already been
superseded by the sale. In any event, it
does not bind third persons. The
rationale for this rule has been aptly
explained in Erezo v. Jepte,[43] which we
quote hereunder:
x x x. The main aim of motor vehicle
registration is to identify the owner so
that if any accident happens, or that any
damage or injury is caused by the vehicle
on the public highways, responsibility
therefor can be fixed on a definite
individual, the registered owner.
Instances are numerous where vehicles
running on public highways caused
accidents or injuries to pedestrians or
other vehicles without positive
identification of the owner or drivers, or
with very scant means of identification. It
is to forestall these circumstances, so
inconvenient or prejudicial to the public,
that the motor vehicle registration is
primarily ordained, in the interest of the
determination of persons responsible for
damages or injuries caused on public
highways.[44]
Further, petitioners insistence on FGU
Insurance Corp. v. Court of Appeals is
misplaced.[45] First, in FGU Insurance,
the registered vehicle owner, which was
engaged in a rent-a-car business, rented
out the car. In this case, the registered
owner of the truck, which is engaged in
the business of financing motor vehicle
acquisitions, has actually sold the truck
to Ecatine, which in turn employed Tutor.
Second, in FGU Insurance, the
registered owner of the vehicle was not
held responsible for the negligent acts of
the person who rented one of its cars,
because Article 2180 of the Civil Code
was not applicable. We held that no
vinculum juris as employer and
employee existed between the owner
and the driver.[46] In this case, the
registered owner of the tractor is
considered under the law to be the
employer of the driver, while the actual
operator is deemed to be its agent.[47]
Thus, Equitable, the registered owner of
the tractor, is -- for purposes of the law
on quasi delict -- the employer of Raul
Tutor, the driver of the tractor. Ecatine,
Tutors actual employer, is deemed as
merely an agent of Equitable.[48]
True, the LTO Certificate of Registration,
dated 5/31/91, qualifies the name of the
registered owner as EQUITABLE
LEASING CORPORATION/Leased to
Edwin Lim. But the lease agreement
between Equitable and Lim has been
overtaken by the Deed of Sale on
December 9, 1992, between petitioner
and Ecatine. While this Deed does not
affect respondents in this quasi delict
suit, it definitely binds petitioner because,
unlike them, it is a party to it.
We must stress that the failure of
Equitable and/or Ecatine to register the
sale with the LTO should not prejudice
respondents, who have the legal right to
rely on the legal principle that the
registered vehicle owner is liable for the
damages caused by the negligence of
the driver. Petitioner cannot hide behind
its allegation that Tutor was the
employee of Ecatine. This will effectively
prevent respondents from recovering
their losses on the basis of the inaction
or fault of petitioner in failing to register
the sale. The non-registration is the fault
of petitioner, which should thus face the
legal consequences thereof.
Second Issue:
Moral Damages
Petitioner further claims that it is not
liable for moral damages, because
respondents failed to establish or show
the causal connection or relation
between the factual basis of their claim
and their wrongful act or omission, if any.
[49]
Moral damages are not punitive in
nature, but are designed to
compensate[50] and alleviate in some
way the physical suffering, mental
anguish, fright, serious anxiety,
besmirched reputation, wounded
feelings, moral shock, social humiliation,
and similar injury unjustly caused a
person.[51] Although incapable of
pecuniary computation, moral damages
must nevertheless be somehow
proportional to and in approximation of
the suffering inflicted.[52] This is so
because moral damages are in the
category of an award designed to
compensate the claimant for actual injury
suffered, not to impose a penalty on the
wrongdoer.[53]
Viewed as an action for quasi delict, the
present case falls squarely within the
purview of Article 2219 (2),[54] which
provides for the payment of moral
damages in cases of quasi delict.[55]
Having established the liability of
petitioner as the registered owner of the
vehicle,[56] respondents have
satisfactorily shown the existence of the
factual basis for the award[57] and its
causal connection to the acts of Raul
Tutor, who is deemed as petitioners
employee.[58] Indeed, the damages and
injuries suffered by respondents were the
proximate result of petitioners tortious act
or omission.[59]
Further, no proof of pecuniary loss is
necessary in order that moral damages
may be awarded, the amount of
indemnity being left to the discretion of
the court.[60] The evidence gives no
ground for doubt that such discretion was
properly and judiciously exercised by the
trial court.[61] The award is in fact
consistent with the rule that moral
damages are not intended to enrich the
injured party, but to alleviate the moral
suffering undergone by that party by
reason of the defendants culpable
action.[62]
WHEREFORE, the Petition is DENIED
and the assailed Decision AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 147791 September 8,
2006
CONSTRUCTION DEVELOPMENT
CORPORATION OF THE PHILIPPINES,
petitioner,
vs.
REBECCA G. ESTRELLA, RACHEL E.
FLETCHER, PHILIPPINE PHOENIX
SURETY & INSURANCE INC.,
BATANGAS LAGUNA TAYABAS BUS
CO., and WILFREDO DATINGUINOO,
respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review assails the March
29, 2001 Decision1 of the Court of
Appeals in CA-G.R. CV No. 46896,
which affirmed with modification the
February 9, 1993 Decision2 of the
Regional Trial Court of Manila, Branch
13, in Civil Case No. R-82-2137, finding
Batangas Laguna Tayabas Bus Co.
(BLTB) and Construction Development
Corporation of the Philippines (CDCP)
liable for damages.
The antecedent facts are as follows:
On December 29, 1978, respondents
Rebecca G. Estrella and her
granddaughter, Rachel E. Fletcher,
boarded in San Pablo City, a BLTB bus
bound for Pasay City. However, they
never reached their destination because
their bus was rammed from behind by a
tractor-truck of CDCP in the South
Expressway. The strong impact pushed
forward their seats and pinned their
knees to the seats in front of them. They
regained consciousness only when
rescuers created a hole in the bus and
extricated their legs from under the
seats. They were brought to the Makati
Medical Center where the doctors
diagnosed their injuries to be as follows:
Medical Certificate of Rebecca Estrella
Fracture, left tibia mid 3rd
Lacerated wound, chin
Contusions with abrasions, left lower leg
Fracture, 6th and 7th ribs, right3
Medical Certificate of Rachel Fletcher
Extensive lacerated wounds, right leg
posterior aspect popliteal area
and antero-lateral aspect mid lower leg
with severance of muscles.
Partial amputation BK left leg with
severance of gastro-soleus and
antero-lateral compartment of lower leg.
Fracture, open comminuted, both tibial4
Thereafter, respondents filed a
Complaint5 for damages against CDCP,
BLTB, Espiridion Payunan, Jr. and
Wilfredo Datinguinoo before the
Regional Trial Court of Manila, Branch
13. They alleged (1) that Payunan, Jr.
and Datinguinoo, who were the drivers of
CDCP and BLTB buses, respectively,
were negligent and did not obey traffic
laws; (2) that BLTB and CDCP did not
exercise the diligence of a good father of
a family in the selection and supervision
of their employees; (3) that BLTB allowed
its bus to operate knowing that it lacked
proper maintenance thus exposing its
passengers to grave danger; (4) that they
suffered actual damages amounting to
P250,000.00 for Estrella and
P300,000.00 for Fletcher; (5) that they
suffered physical discomfort, serious
anxiety, fright and mental anguish,
besmirched reputation and wounded
feelings, moral shock, and lifelong social
humiliation; (6) that defendants failed to
act with justice, give respondents their
due, observe honesty and good faith
which entitles them to claim for
exemplary damage; and (7) that they are
entitled to a reasonable amount of
attorney's fees and litigation expenses.
CDCP filed its Answer6 which was later
amended to include a third-party
complaint against Philippine Phoenix
Surety and Insurance, Inc. (Phoenix).7
On February 9, 1993, the trial court
rendered a decision finding CDCP and
BLTB and their employees liable for
damages, the dispositive portion of
which, states:
WHEREFORE, judgment is rendered:
In the Complaint –
1. In favor of the plaintiffs and against the
defendants BLTB, Wilfredo Datinguinoo,
Construction and Development
Corporation of the Philippines (now
PNCC) and Espiridion Payunan, Jr.,
ordering said defendants, jointly and
severally to pay the plaintiffs the sum of
P79,254.43 as actual damages and to
pay the sum of P10,000.00 as attorney's
fees or a total of P89,254.43;
2. In addition, defendant Construction
and Development Corporation of the
Philippines and defendant Espiridion
Payunan, Jr., shall pay the plaintiffs the
amount of Fifty Thousand (P50,000.00)
Pesos to plaintiff Rachel Fletcher and
Twenty Five Thousand (P25,000.00)
Pesos to plaintiff Rebecca Estrella;
3. On the counterclaim of BLTB Co. and
Wilfredo Datinguinoo –
Dismissing the counterclaim;
4. On the crossclaim against
Construction and Development
Corporation of the Philippines (now
PNCC) and Espiridion Payunan, Jr. –
Dismissing the crossclaim;
5. On the counterclaim of Construction
and Development Corporation of the
Philippines (now PNCC) –
Dismissing the counterclaim;
6. On the crossclaim against BLTB –
Dismissing the crossclaim;
7. On the Third Party Complaint by
Construction and Development
Corporation of the Philippines against
Philippine Phoenix Surety and
Insurance, Incorporated –
Dismissing the Third Party Complaint.
SO ORDERED.8
The trial court held that BLTB, as a
common carrier, was bound to observe
extraordinary diligence in the vigilance
over the safety of its passengers. It must
carry the passengers safely as far as
human care and foresight provide, using
the utmost diligence of very cautious
persons, with a due regard for all the
circumstances. Thus, where a Fletcher the amount of Twenty Thousand
passenger dies or is injured, the carrier is
presumed to have been at fault or has
acted negligently. BLTB's inability to
carry respondents to their destination
gave rise to an action for breach of
contract of carriage while its failure to
rebut the presumption of negligence
made it liable to respondents for the
breach.9
Regarding CDCP, the trial court found
that the tractor-truck it owned bumped
the BLTB bus from behind. Evidence
showed that CDCP's driver was reckless
and driving very fast at the time of the
incident. The gross negligence of its
driver raised the presumption that CDCP
was negligent either in the selection or in
the supervision of its employees which it
failed to rebut thus making it and its
driver liable to respondents.10
Unsatisfied with the award of damages
and attorney's fees by the trial court,
respondents moved that the decision be
reconsidered but was denied.
Respondents elevated the case11 to the
Court of Appeals which affirmed the
decision of the trial court but modified the
amount of damages, the dispositive
portion of which provides:
WHEREFORE, the assailed decision
dated October 7, 1993 of the Regional
Trial Court, Branch 13, Manila is hereby
AFFIRMED with the following
MODIFICATION:
1. The interest of six (6) percent per
annum on the actual damages of
P79,354.43 should commence to run
from the time the judicial demand was
made or from the filing of the complaint
on February 4, 1980;
2. Thirty (30) percent of the total amount
recovered is hereby awarded as
attorney's fees;
3. Defendants-appellants Construction
and Development Corporation of the
Philippines (now PNCC) and Espiridion
Payunan, Jr. are ordered to pay plaintiff-
appellants Rebecca Estrella and Rachel
(P20,000.00) each as exemplary
damages and P80,000.00 by way of
moral damages to Rachel Fletcher.
SO ORDERED.12
The Court of Appeals held that the actual
or compensatory damage sought by
respondents for the injuries they
sustained in the form of hospital bills
were already liquidated and were
ascertained. Accordingly, the 6% interest
per annum should commence to run from
the time the judicial demand was made
or from the filing of the complaint and not
from the date of judgment. The Court of
Appeals also awarded attorney's fees
equivalent to 30% of the total amount
recovered based on the retainer
agreement of the parties. The appellate
court also held that respondents are
entitled to exemplary and moral
damages. Finally, it affirmed the ruling of
the trial court that the claim of CDCP
against Phoenix had already prescribed.
Hence, this petition raising the following
issues:
I
WHETHER OR NOT THE COURT OF
APPEALS GRAVELY ERRED IN NOT
HOLDING RESPONDENTS BLTB
AND/OR ITS DRIVER WILFREDO
DATINGUINOO SOLELY LIABLE FOR
THE DAMAGES SUSTAINED BY
HEREIN RESPONDENTS FLETCHER
AND ESTRELLA.
II
WHETHER OR NOT THE COURT OF
APPEALS GRAVELY ERRED IN
AWARDING EXCESSIVE OR
UNFOUNDED DAMAGES,
ATTORNEY'S FEES AND LEGAL
INTEREST TO RESPONDENTS
FLETCHER AND ESTRELLA.
III
WHETHER OR NOT THE COURT OF
APPEALS GRAVELY ERRED IN NOT
HOLDING RESPONDENT PHOENIX
LIABLE UNDER ITS INSURANCE
POLICY ON THE GROUND OF
PRESCRIPTION.
The issues for resolution are as follows:
(1) whether BLTB and its driver Wilfredo
Datinguinoo are solely liable for the
damages sustained by respondents; (2)
whether the damages, attorney's fees
and legal interest awarded by the CA are
excessive and unfounded; (3) whether
CDCP can recover under its insurance
policy from Phoenix.
Petitioner contends that since it was
made solidarily liable with BLTB for
actual damages and attorney's fees in
paragraph 1 of the trial court's decision,
then it should no longer be held liable to
pay the amounts stated in paragraph 2 of
the same decision. Petitioner claims that
the liability for actual damages and
attorney's fees is based on culpa
contractual, thus, only BLTB should be
held liable. As regards paragraph 2 of the
trial court's decision, petitioner claims
that it is ambiguous and arbitrary
because the dispositive portion did not
state the basis and nature of such award.
Respondents, on the other hand, argue
that petitioner is also at fault, hence, it
was properly joined as a party. There
may be an action arising out of one
incident where questions of fact are
common to all. Thus, the cause of action
based on culpa aquiliana in the civil suit
they filed against it was valid.
The petition lacks merit.
The case filed by respondents against
petitioner is an action for culpa aquiliana
or quasi-delict under Article 2176 of the
Civil Code.13 In this regard, Article 2180
provides that the obligation imposed by
Article 2176 is demandable for the acts
or omissions of those persons for whom
one is responsible. Consequently, an
action based on quasi-delict may be
instituted against the employer for an
employee's act or omission. The liability
for the negligent conduct of the
subordinate is direct and primary, but is
subject to the defense of due diligence in
the selection and supervision of the
employee.14 In the instant case, the trial
court found that petitioner failed to prove
that it exercised the diligence of a good
father of a family in the selection and
supervision of Payunan, Jr.
The trial court and the Court of Appeals
found petitioner solidarily liable with
BLTB for the actual damages suffered by
respondents because of the injuries they
sustained. It was established that
Payunan, Jr. was driving recklessly
because of the skid marks as shown in
the sketch of the police investigator.
It is well-settled in Fabre, Jr. v. Court of
Appeals,15 that the owner of the other
vehicle which collided with a common
carrier is solidarily liable to the injured
passenger of the same. We held, thus:
The same rule of liability was applied in
situations where the negligence of the
driver of the bus on which plaintiff was
riding concurred with the negligence of a
third party who was the driver of another
vehicle, thus causing an accident. In
Anuran v. Buño, Batangas Laguna
Tayabas Bus Co. v. Intermediate
Appellate Court, and Metro Manila
Transit Corporation v. Court of Appeals,
the bus company, its driver, the operator
of the other vehicle and the driver of the
vehicle were jointly and severally held
liable to the injured passenger or the
latter's heirs. The basis of this allocation
of liability was explained in Viluan v.
Court of Appeals, thus:
Nor should it make any difference that
the liability of petitioner [bus owner]
springs from contract while that of
respondents [owner and driver of other
vehicle] arises from quasi-delict. As early
as 1913, we already ruled in Gutierrez
vs. Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the
negligence of the driver of the bus on
which he was riding and of the driver of
another vehicle, the drivers as well as the
owners of the two vehicles are jointly and
severally liable for damages. x x x
xxxx
As in the case of BLTB, private
respondents in this case and her co-
plaintiffs did not stake out their claim
against the carrier and the driver
exclusively on one theory, much less on
that of breach of contract alone. After all,
it was permitted for them to allege
alternative causes of action and join as
many parties as may be liable on such
causes of action so long as private
respondent and her co-plaintiffs do not
recover twice for the same injury. What is
clear from the cases is the intent of the
plaintiff there to recover from both the
carrier and the driver, thus justifying the
holding that the carrier and the driver
were jointly and severally liable because
their separate and distinct acts concurred
to produce the same injury.16 (Emphasis
supplied)
In a "joint" obligation, each obligor
answers only for a part of the whole
liability; in a "solidary" or "joint and
several" obligation, the relationship
between the active and the passive
subjects is so close that each of them
must comply with or demand the
fulfillment of the whole obligation. In
Lafarge Cement v. Continental Cement
Corporation,17 we reiterated that joint
tort feasors are jointly and severally liable
for the tort which they commit. Citing
Worcester v. Ocampo,18 we held that:
x x x The difficulty in the contention of the
appellants is that they fail to recognize
that the basis of the present action is tort.
They fail to recognize the universal
doctrine that each joint tort feasor is not
only individually liable for the tort in which
he participates, but is also jointly liable
with his tort feasors. x x x
It may be stated as a general rule that
joint tort feasors are all the persons who
command, instigate, promote,
encourage, advise, countenance,
cooperate in, aid or abet the commission
of a tort, or who approve of it after it is
done, if done for their benefit. They are
each liable as principals, to the same
extent and in the same manner as if they
had performed the wrongful act
themselves. x x x
Joint tort feasors are jointly and severally
liable for the tort which they commit. The
persons injured may sue all of them or
any number less than all. Each is liable
for the whole damages caused by all,
and all together are jointly liable for the
whole damage. It is no defense for one
sued alone, that the others who
participated in the wrongful act are not
joined with him as defendants; nor is it
any excuse for him that his participation
in the tort was insignificant as compared
to that of the others. x x x
Joint tort feasors are not liable pro rata.
The damages can not be apportioned
among them, except among themselves.
They cannot insist upon an
apportionment, for the purpose of each
paying an aliquot part. They are jointly
and severally liable for the whole
amount. x x x
A payment in full for the damage done,
by one of the joint tort feasors, of course
satisfies any claim which might exist
against the others. There can be but
satisfaction. The release of one of the
joint tort feasors by agreement generally
operates to discharge all. x x x
Of course the court during trial may find
that some of the alleged tort feasors are
liable and that others are not liable. The
courts may release some for lack of
evidence while condemning others of the
alleged tort feasors. And this is true even
though they are charged jointly and
severally.19
Petitioner's claim that paragraph 2 of the
dispositive portion of the trial court's
decision is ambiguous and arbitrary and
also entitles respondents to recover
twice is without basis. In the body of the
trial court's decision, it was clearly stated
that petitioner and its driver Payunan, Jr.,
are jointly and solidarily liable for moral
damages in the amount of P50,000.00 to
respondent Fletcher and P25,000.00 to
respondent Estrella.20 Moreover, there
could be no double recovery because the
award in paragraph 2 is for moral
damages while the award in paragraph 1
is for actual damages and attorney's
fees.
Petitioner next claims that the damages,
attorney's fees, and legal interest
awarded by the Court of Appeals are
excessive.
Moral damages may be recovered in
quasi-delicts causing physical injuries.21
The award of moral damages in favor of
Fletcher and Estrella in the amount of
P80,000.00 must be reduced since
prevailing jurisprudence fixed the same
at P50,000.00.22 While moral damages
are not intended to enrich the plaintiff at
the expense of the defendant, the award
should nonetheless be commensurate to
the suffering inflicted.23
The Court of Appeals correctly awarded
respondents exemplary damages in the
amount of P20,000.00 each. Exemplary
damages may be awarded in addition to
moral and compensatory damages.24
Article 2231 of the Civil Code also states
that in quasi-delicts, exemplary damages
may be granted if the defendant acted
with gross negligence.25 In this case,
petitioner's driver was driving recklessly
at the time its truck rammed the BLTB
bus. Petitioner, who has direct and
primary liability for the negligent conduct
of its subordinates, was also found
negligent in the selection and supervision
of its employees. In Del Rosario v. Court
of Appeals,26 we held, thus:
ART. 2229 of the Civil Code also
provides that such damages may be
imposed, by way of example or
correction for the public good. While
exemplary damages cannot be
recovered as a matter of right, they need
not be proved, although plaintiff must
show that he is entitled to moral,
temperate or compensatory damages
before the court may consider the
question of whether or not exemplary
damages should be awarded. Exemplary
Damages are imposed not to enrich one
party or impoverish another but to serve
as a deterrent against or as a negative
incentive to curb socially deleterious
actions.
Regarding attorney's fees, we held in
Traders Royal Bank Employees Union-
Independent v. National Labor Relations
Commission,27 that:
There are two commonly accepted
concepts of attorney's fees, the so-called
ordinary and extraordinary. In its ordinary
concept, an attorney's fee is the
reasonable compensation paid to a
lawyer by his client for the legal services
he has rendered to the latter. The basis
of this compensation is the fact of his
employment by and his agreement with
the client.
In its extraordinary concept, an attorney's
fee is an indemnity for damages ordered
by the court to be paid by the losing party
in a litigation. The basis of this is any of
the cases provided by law where such
award can be made, such as those
authorized in Article 2208, Civil Code,
and is payable not to the lawyer but to the
client, unless they have agreed that the
award shall pertain to the lawyer as
additional compensation or as part
thereof.28 (Emphasis supplied)
In the instant case, the Court of Appeals
correctly awarded attorney's fees and
other expenses of litigation as they may
be recovered as actual or compensatory
damages when exemplary damages are
awarded; when the defendant acted in
gross and evident bad faith in refusing to
satisfy the plaintiff's valid, just and
demandable claim; and in any other case
where the court deems it just and
equitable that attorney's fees and
expenses of litigation should be
recovered.29

Regarding the imposition of legal interest
at the rate of 6% from the time of the filing
of the complaint, we held in Eastern
Shipping Lines, Inc. v. Court of
Appeals,30 that when an obligation,
regardless of its source, i.e., law,
contracts, quasi-contracts, delicts or
quasi-delicts is breached, the
contravenor can be held liable for
payment of interest in the concept of
actual and compensatory damages,31
subject to the following rules, to wit –
1. When the obligation is breached, and
it consists in the payment of a sum of
money, i.e., a loan or forbearance of
money, the interest due should be that
which may have been stipulated in
writing. Furthermore, the interest due
shall itself earn legal interest from the
time it is judicially demanded. In the
absence of stipulation, the rate of interest
shall be 12% per annum to be computed
from default, i.e., from judicial or
extrajudicial demand under and subject
to the provisions of Article 1169 of the
Civil Code.
2. When an obligation, not constituting a
loan or forbearance of money, is
breached, an interest on the amount of
damages awarded may be imposed at
the discretion of the court at the rate of
6% per annum. No interest, however,
shall be adjudged on unliquidated claims
or damages except when or until the
demand can be established with
reasonable certainty. Accordingly, where
the demand is established with
reasonable certainty, the interest shall
begin to run from the time the claim is
made judicially or extrajudicially (Art.
1169, Civil Code) but when such
certainty cannot be so reasonably
established at the time the demand is
made, the interest shall begin to run only
from the date the judgment of the court is
made (at which time the quantification of
damages may be deemed to have been
reasonably ascertained). The actual
base for the computation of legal interest
shall, in any case, be on the amount
finally adjudged.
3. When the judgment of the court
awarding a sum of money becomes final
and executory, the rate of legal interest,
whether the case falls under paragraph 1
or paragraph 2, above, shall be 12% per
annum from such finality until its
satisfaction, this interim period being
deemed to be by then an equivalent to a
forbearance of credit.32 (Emphasis
supplied)
Accordingly, the legal interest of 6% shall
begin to run on February 9, 1993 when
the trial court rendered judgment and not
on February 4, 1980 when the complaint
was filed. This is because at the time of
the filing of the complaint, the amount of
the damages to which plaintiffs may be
entitled remains unliquidated and
unknown, until it is definitely ascertained,
assessed and determined by the court
and only upon presentation of proof
thereon.33 From the time the judgment
becomes final and executory, the interest
rate shall be 12% until its satisfaction.
Anent the last issue of whether petitioner
can recover under its insurance policy
from Phoenix, we affirm the findings of
both the trial court and the Court of
Appeals, thus:
As regards the liability of Phoenix, the
court a quo correctly ruled that
defendant-appellant CDCP's claim
against Phoenix already prescribed
pursuant to Section 384 of P.D. 612, as
amended, which provides:
Any person having any claim upon the
policy issued pursuant to this chapter
shall, without any unnecessary delay,
present to the insurance company
concerned a written notice of claim
setting forth the nature, extent and
duration of the injuries sustained as
certified by a duly licensed physician.
Notice of claim must be filed within six
months from date of the accident,
otherwise, the claim shall be deemed
waived. Action or suit for recovery of
damage due to loss or injury must be
brought in proper cases, with the
Commissioner or Courts within one year
from denial of the claim, otherwise, the
claimant's right of action shall prescribe.
(As amended by PD 1814, BP 874.)34
The law is clear and leaves no room for
interpretation. A written notice of claim
must be filed within six months from the
date of the accident. Since petitioner
never made any claim within six months
from the date of the accident, its claim
has already prescribed.
WHEREFORE, the instant petition is
DENIED. The Decision of the Court of
Appeals in CA-G.R. CV No. 46896 dated
March 29, 2001, which modified the
Decision of the Regional Trial Court of
Manila, Branch 13, in Civil Case No. R-
82-2137, is AFFIRMED with the
MODIFICATIONS that petitioner is held
jointly and severally liable to pay (1)
actual damages in the amount of
P79,354.43; (2) moral damages in the
amount of P50,000.00 each for Rachel
Fletcher and Rebecca Estrella; (3)
exemplary damages in the amount of
P20,000.00 each for Rebecca Estrella
and Rachel Fletcher; and (4) thirty
percent (30%) of the total amount
recovered as attorney's fees. The total
amount adjudged shall earn interest at
the rate of 6% per annum from the date
of judgment of the trial court until finality
of this judgment. From the time this
Decision becomes final and executory
and the judgment amount remains
unsatisfied, the same shall earn interest
at the rate of 12% per annum until its
satisfaction.
SO ORDERED. G.R. No. 61516 March
21, 1989
FLORENTINA A. GUILATCO, petitioner,
vs.
CITY OF DAGUPAN, and the
HONORABLE COURT OF APPEALS,
respondents.
Nolan R. Evangelista for petitioner.
The City Legal Officer for respondents.
SARMIENTO, J.:
In a civil action 1 for recovery of damages
filed by the petitioner Florentina A.
Guilatco, the following judgment was
rendered against the respondent City of
Dagupan:
xxx
(1) Ordering defendant City of
Dagupan to pay plaintiff actual damages
in the amount of P 15,924 (namely
P8,054.00 as hospital, medical and other
expenses [Exhs. H to H-60], P 7,420.00
as lost income for one (1) year [Exh. F]
and P 450.00 as bonus). P 150,000.00
as moral damages, P 50,000.00 as
exemplary damages, and P 3,000.00 as
attorney's fees, and litigation expenses,
plus costs and to appropriate through its
Sangguniang Panglunsod (City Council)
said amounts for said purpose;
(2) Dismissing plaintiffs
complaint as against defendant City
Engr. Alfredo G. Tangco; and
(3) Dismissing the counterclaims
of defendant City of Dagupan and
defendant City Engr. Alfredo G. Tangco,
for lack of merit. 2
The facts found by the trial court are as
follows: 3
It would appear from the evidences that
on July 25, 1978, herein plaintiff, a Court
Interpreter of Branch III, CFI--Dagupan
City, while she was about to board a
motorized tricycle at a sidewalk located
at Perez Blvd. (a National Road, under
the control and supervision of the City of
Dagupan) accidentally fell into a manhole
located on said sidewalk, thereby
causing her right leg to be fractured. As
a result thereof, she had to be
hospitalized, operated on, confined, at
first at the Pangasinan Provincial
Hospital, from July 25 to August 3, 1978
(or for a period of 16 days). She also
incurred hospitalization, medication and
other expenses to the tune of P 8,053.65
(Exh. H to H-60) or a total of P 10,000.00
in all, as other receipts were either lost or
misplaced; during the period of her
confinement in said two hospitals,
plaintiff suffered severe or excruciating
pain not only on her right leg which was
fractured but also on all parts of her body;
the pain has persisted even after her
discharge from the Medical City General
Hospital on October 9, 1978, to the
present. Despite her discharge from the
Hospital plaintiff is presently still wearing
crutches and the Court has actually
observed that she has difficulty in
locomotion. From the time of the mishap
on July 25, 1978 up to the present,
plaintiff has not yet reported for duty as
court interpreter, as she has difficulty of
locomotion in going up the stairs of her
office, located near the city hall in
Dagupan City. She earns at least P
720.00 a month consisting of her monthly
salary and other means of income, but
since July 25, 1978 up to the present she
has been deprived of said income as she
has already consumed her accrued
leaves in the government service. She
has lost several pounds as a result of the
accident and she is no longer her former
jovial self, she has been unable to
perform her religious, social, and other
activities which she used to do prior to
the incident.
Dr. Norberto Felix and Dr. Dominado
Manzano of the Provincial Hospital, as
well as Dr. Antonio Sison of the Medical
City General Hospital in Mandaluyong
Rizal (Exh. I; see also Exhs. F, G, G-1 to
G-19) have confirmed beyond shadow of
any doubt the extent of the fracture and
injuries sustained by the plaintiff as a
result of the mishap. On the other hand,
Patrolman Claveria, De Asis and Cerezo
corroborated the testimony of the plaintiff
regarding the mishap and they have
confirmed the existence of the manhole
(Exhs. A, B, C and sub-exhibits) on the
sidewalk along Perez Blvd., at the time of
the incident on July 25, 1978 which was
partially covered by a concrete flower pot
by leaving gaping hole about 2 ft. long by
1 1/2 feet wide or 42 cms. wide by 75
cms. long by 150 cms. deep (see Exhs.
D and D-1).
Defendant Alfredo Tangco, City
Engineer of Dagupan City and admittedly
ex-officio Highway Engineer, City
Engineer of the Public Works and
Building Official for Dagupan City,
admitted the existence of said manhole
along the sidewalk in Perez Blvd.,
admittedly a National Road in front of the
Luzon Colleges. He also admitted that
said manhole (there are at least 11 in all
in Perez Blvd.) is owned by the National
Government and the sidewalk on which
they are found along Perez Blvd. are also
owned by the National Government. But
as City Engineer of Dagupan City, he
supervises the maintenance of said
manholes or drainage system and sees
to it that they are properly covered, and
the job is specifically done by his
subordinates, Mr. Santiago de Vera
(Maintenance Foreman) and Engr.
Ernesto Solermo also a maintenance
Engineer. In his answer defendant
Tangco expressly admitted in par. 7-1
thereof, that in his capacity as ex-officio
Highway Engineer for Dagupan City he
exercises supervision and control over
National roads, including the Perez Blvd.
where the incident happened.
On appeal by the respondent City of
Dagupan, the appellate court 4 reversed
the lower court findings on the ground
that no evidence was presented by the
plaintiff- appellee to prove that the City of
Dagupan had "control or supervision"
over Perez Boulevard. 5
The city contends that Perez Boulevard,
where the fatal drainage hole is located,
is a national road that is not under the
control or supervision of the City of
Dagupan. Hence, no liability should
attach to the city. It submits that it is
actually the Ministry of Public Highways
that has control or supervision through
the Highway Engineer which, by mere
coincidence, is held concurrently by the
same person who is also the City
Engineer of Dagupan.
After examination of the findings and
conclusions of the trial court and those of
the appellate court, as well as the
arguments presented by the parties, we
agree with those of the trial court and of
the petitioner. Hence, we grant the
petition.
In this review on certiorari, we have
simplified the errors assigned by the
petitioner to a single issue: whether or
not control or supervision over a national
road by the City of Dagupan exists, in
effect binding the city to answer for
damages in accordance with article 2189
of the Civil Code.
The liability of public corporations for
damages arising from injuries suffered by
pedestrians from the defective condition
of roads is expressed in the Civil Code as
follows:
Article 2189. Provinces, cities and
municipalities shall be liable for damages
for the death of, or injuries suffered by,
any person by reason of the defective
condition of roads, streets, bridges,
public buildings, and other public works
under their control or supervision.
It is not even necessary for the defective
road or street to belong to the province,
city or municipality for liability to attach.
The article only requires that either
control or supervision is exercised over
the defective road or street. 6
In the case at bar, this control or
supervision is provided for in the charter
of Dagupan and is exercised through the
City Engineer who has the following
duties:
Sec. 22. The City Engineer--His powers,
duties and compensation-There shall be
a city engineer, who shall be in charge of
the department of Engineering and
Public Works. He shall receive a salary
of not exceeding three thousand pesos
per annum. He shall have the following
duties:
xxx
(j) He shall have the care and
custody of the public system of
waterworks and sewers, and all sources
of water supply, and shall control,
maintain and regulate the use of the
same, in accordance with the ordinance
relating thereto; shall inspect and
regulate the use of all private systems for
supplying water to the city and its
inhabitants, and all private sewers, and
their connection with the public sewer
system.
xxx
The same charter of Dagupan also
provides that the laying out, construction
and improvement of streets, avenues
and alleys and sidewalks, and regulation
of the use thereof, may be legislated by
the Municipal Board . 7 Thus the charter
clearly indicates that the city indeed has
supervision and control over the sidewalk
where the open drainage hole is located.
The express provision in the charter
holding the city not liable for damages or
injuries sustained by persons or property
due to the failure of any city officer to
enforce the provisions of the charter, can
not be used to exempt the city, as in the
case at bar.8
The charter only lays down general rules
regulating the liability of the city. On the
other hand article 2189 applies in
particular to the liability arising from
"defective streets, public buildings and
other public works." 9
The City Engineer, Mr. Alfredo G.
Tangco, admits that he exercises control
or supervision over the said road. But the
city can not be excused from liability by
the argument that the duty of the City
Engineer to supervise or control the said
provincial road belongs more to his
functions as an ex-officio Highway
Engineer of the Ministry of Public
Highway than as a city officer. This is
because while he is entitled to an
honorarium from the Ministry of Public
Highways, his salary from the city
government substantially exceeds the
honorarium.
We do not agree.
Alfredo G. Tangco "(i)n his official
capacity as City Engineer of Dagupan, as
Ex- Officio Highway Engineer, as Ex-
Officio City Engineer of the Bureau of
Public Works, and, last but not the least,
as Building Official for Dagupan City,
receives the following monthly
compensation: P 1,810.66 from
Dagupan City; P 200.00 from the Ministry
of Public Highways; P 100.00 from the
Bureau of Public Works and P 500.00 by
virtue of P.D. 1096, respectively." 10 This
function of supervision over streets,
public buildings, and other public works
pertaining to the City Engineer is coursed
through a Maintenance Foreman and a
Maintenance Engineer.11 Although
these last two officials are employees of
the National Government, they are
detailed with the City of Dagupan and
hence receive instruction and
supervision from the city through the City
Engineer.
There is, therefore, no doubt that the City
Engineer exercises control or
supervision over the public works in
question. Hence, the liability of the city to
the petitioner under article 2198 of the
Civil Code is clear.
Be all that as it may, the actual damages
awarded to the petitioner in the amount
of P 10,000.00 should be reduced to the
proven expenses of P 8,053.65 only. The
trial court should not have rounded off
the amount. In determining actual
damages, the court can not rely on
"speculation, conjecture or guess work"
as to the amount. Without the actual
proof of loss, the award of actual
damages becomes erroneous. 12
On the other hand, moral damages may
be awarded even without proof of
pecuniary loss, inasmuch as the
determination of the amount is
discretionary on the court.13 Though
incapable of pecuniary estimation, moral
damages are in the nature of an award to
compensate the claimant for actual injury
suffered but which for some reason can
not be proven. However, in awarding
moral damages, the following should be
taken into consideration:
(1) First, the proximate cause of
the injury must be the claimee's acts.14
(2) Second, there must be
compensatory or actual damages as
satisfactory proof of the factual basis for
damages.15
(3) Third, the award of moral
damages must be predicated on any of
the cases enumerated in the Civil Code.
16
In the case at bar, the physical suffering
and mental anguish suffered by the
petitioner were proven. Witnesses from
the petitioner's place of work testified to
the degeneration in her disposition-from
being jovial to depressed. She refrained
from attending social and civic
activities.17
Nevertheless the award of moral
damages at P 150,000.00 is excessive.
Her handicap was not permanent and
disabled her only during her treatment
which lasted for one year. Though
evidence of moral loss and anguish
existed to warrant the award of
damages,18 the moderating hand of the
law is called for. The Court has time and
again called attention to the
reprehensible propensity of trial judges to
award damages without basis,19
resulting in exhorbitant amounts.20
Although the assessment of the amount
is better left to the discretion of the trial
court 21 under preceding jurisprudence,
the amount of moral damages should be
reduced to P 20,000.00.
As for the award of exemplary damages,
the trial court correctly pointed out the
basis:
To serve as an example for the public
good, it is high time that the Court,
through this case, should serve warning
to the city or cities concerned to be more
conscious of their duty and responsibility
to their constituents, especially when
they are engaged in construction work or
when there are manholes on their
sidewalks or streets which are
uncovered, to immediately cover the
same, in order to minimize or prevent
accidents to the poor pedestrians.22

Too often in the zeal to put up "public
impact" projects such as beautification
drives, the end is more important than
the manner in which the work is carried
out. Because of this obsession for
showing off, such trivial details as
misplaced flower pots betray the
careless execution of the projects,
causing public inconvenience and
inviting accidents.
Pending appeal by the respondent City of
Dagupan from the trial court to the
appellate court, the petitioner was able to
secure an order for garnishment of the
funds of the City deposited with the
Philippine National Bank, from the then
presiding judge, Hon. Willelmo Fortun.
This order for garnishment was revoked
subsequently by the succeeding
presiding judge, Hon. Romeo D. Magat,
and became the basis for the petitioner's
motion for reconsideration which was
also denied. 23
We rule that the execution of the
judgment of the trial court pending
appeal was premature. We do not find
any good reason to justify the issuance
of an order of execution even before the
expiration of the time to appeal .24
WHEREFORE, the petition is
GRANTED. The assailed decision and
resolution of the respondent Court of
Appeals are hereby REVERSED and
SET ASIDE and the decision of the trial
court, dated March 12, 1979 and
amended on March 13, 1979, is hereby
REINSTATED with the indicated
modifications as regards the amounts
awarded:
(1) Ordering the defendant City
of Dagupan to pay the plaintiff actual
damages in the amount of P 15,924
(namely P 8,054.00 as hospital, medical
and other expenses; P 7,420.00 as lost
income for one (1) year and P 450.00 as
bonus); P 20,000.00 as moral damages
and P 10,000.00 as exemplary damages.
The attorney's fees of P 3,000.00 remain
the same.
SO ORDERED.
[G.R. No. 132266. December 21, 1999]
CASTILEX INDUSTRIAL
CORPORATION, petitioner, vs.
VICENTE VASQUEZ, JR. and LUISA SO
VASQUEZ, and CEBU DOCTORS
HOSPITAL, INC., respondents.
DECISION
DAVIDE, JR., C.J.:
The pivotal issue in this petition is
whether an employer may be held
vicariously liable for the death resulting
from the negligent operation by a
managerial employee of a company-
issued vehicle.
The antecedents, as succinctly
summarized by the Court of Appeals, are
as follows:
On 28 August 1988, at around 1:30 to
2:00 in the morning, Romeo So Vasquez,
was driving a Honda motorcycle around
Fuente Osmea Rotunda. He was
traveling counter-clockwise, (the normal
flow of traffic in a rotunda) but without
any protective helmet or goggles. He was
also only carrying a Students Permit to
Drive at the time. Upon the other hand,
Benjamin Abad [was a] manager of
Appellant Castilex Industrial Corporation,
registered owner [of] a Toyota Hi-Lux
Pick-up with plate no. GBW-794. On the
same date and time, Abad drove the said
company car out of a parking lot but
instead of going around the Osmea
rotunda he made a short cut against [the]
flow of the traffic in proceeding to his
route to General Maxilom St. or to Belvic
St.
In the process, the motorcycle of
Vasquez and the pick-up of Abad
collided with each other causing severe
injuries to the former. Abad stopped his
vehicle and brought Vasquez to the
Southern Islands Hospital and later to the
Cebu Doctors Hospital.
On September 5, 1988, Vasquez died at
the Cebu Doctors Hospital. It was there
that Abad signed an acknowledgment of
Responsible Party (Exhibit K) wherein he
agreed to pay whatever hospital bills,
professional fees and other incidental
charges Vasquez may incur.
After the police authorities had
conducted the investigation of the
accident, a Criminal Case was filed
against Abad but which was
subsequently dismissed for failure to
prosecute. So, the present action for
damages was commenced by Vicente
Vasquez, Jr. and Luisa So Vasquez,
parents of the deceased Romeo So
Vasquez, against Jose Benjamin Abad
and Castilex Industrial Corporation. In
the same action, Cebu Doctors Hospital
intervened to collect unpaid balance for
the medical expense given to Romeo So
Vasquez.[1]
The trial court ruled in favor of private
respondents Vicente and Luisa Vasquez
and ordered Jose Benjamin Abad
(hereafter ABAD) and petitioner Castilex
Industrial Corporation (hereafter
CASTILEX) to pay jointly and solidarily
(1) Spouses Vasquez, the amounts of
P8,000.00 for burial expenses;
P50,000.00 as moral damages;
P10,000.00 as attorneys fees; and
P778,752.00 for loss of earning capacity;
and (2) Cebu Doctors Hospital, the sum
of P50,927.83 for unpaid medical and
hospital bills at 3% monthly interest from
27 July 1989 until fully paid, plus the
costs of litigation.[2]
CASTILEX and ABAD separately
appealed the decision.
In its decision[3] of 21 May 1997, the
Court of Appeals affirmed the ruling of
the trial court holding ABAD and
CASTILEX liable but held that the liability
of the latter is only vicarious and not
solidary with the former. It reduced the
award of damages representing loss of
earning capacity from P778,752.00 to
P214,156.80; and the interest on the
hospital and medical bills, from 3% per
month to 12% per annum from 5
September 1988 until fully paid.
Upon CASTILEXs motion for
reconsideration, the Court of Appeals
modified its decision by (1) reducing the
award of moral damages from P50,000
to P30,000 in view of the deceaseds
contributory negligence; (b) deleting the
award of attorneys fees for lack of
evidence; and (c) reducing the interest
on hospital and medical bills to 6% per
annum from 5 September 1988 until fully
paid.[4]
Hence, CASTILEX filed the instant
petition contending that the Court of
Appeals erred in (1) applying to the case
the fifth paragraph of Article 2180 of the
Civil Code, instead of the fourth
paragraph thereof; (2) that as a
managerial employee, ABAD was
deemed to have been always acting
within the scope of his assigned task
even outside office hours because he
was using a vehicle issued to him by
petitioner; and (3) ruling that petitioner
had the burden to prove that the
employee was not acting within the
scope of his assigned task.
Jose Benjamin ABAD merely adopted
the statement of facts of petitioner which
holds fast on the theory of negligence on
the part of the deceased.
On the other hand, respondents Spouses
Vasquez argue that their sons death was
caused by the negligence of petitioners
employee who was driving a vehicle
issued by petitioner and who was on his
way home from overtime work for
petitioner; and that petitioner is thus
liable for the resulting injury and
subsequent death of their son on the
basis of the fifth paragraph of Article
2180. Even if the fourth paragraph of
Article 2180 were applied, petitioner
cannot escape liability therefor. They
moreover argue that the Court of
Appeals erred in reducing the amount of
compensatory damages when the award
made by the trial court was borne both by
evidence adduced during the trial
regarding deceaseds wages and by
jurisprudence on life expectancy.
Moreover, they point out that the petition
is procedurally not acceptable on the
following grounds: (1) lack of an
explanation for serving the petition upon
the Court of Appeals by registered mail,
as required under Section 11, Rule 13 of
the Rules of Civil Procedure; and (2) lack
of a statement of the dates of the
expiration of the original reglementary
period and of the filing of the motion for
extension of time to file a petition for
review.
For its part, respondent Cebu Doctors
Hospital maintains that petitioner
CASTILEX is indeed vicariously liable for
the injuries and subsequent death of
Romeo Vasquez caused by ABAD, who
was on his way home from taking snacks
after doing overtime work for petitioner.
Although the incident occurred when
ABAD was not working anymore the
inescapable fact remains that said
employee would not have been situated
at such time and place had he not been
required by petitioner to do overtime
work. Moreover, since petitioner adopted
the evidence adduced by ABAD, it
cannot, as the latters employer, inveigle
itself from the ambit of liability, and is
thus estopped by the records of the case,
which it failed to refute.
We shall first address the issue raised by
the private respondents regarding some
alleged procedural lapses in the petition.
Private respondents contention of
petitioners violation of Section 11 of Rule
13 and Section 4 of Rule 45 of the 1997
Rules of Civil Procedure holds no water.
Section 11 of Rule 13 provides:
SEC. 11. Priorities in modes of service
and filing. -- Whenever practicable, the
service and filing of pleadings and other
papers shall be done personally. Except
with respect to papers emanating from
the court, a resort to other modes must
be accompanied by a written explanation
why the service or filing was not done
personally. A violation of this Rule may
be cause to consider the paper as not
filed.
The explanation why service of a copy of
the petition upon the Court of Appeals
was done by registered mail is found on
Page 28 of the petition. Thus, there has
been compliance with the aforequoted
provision.
As regards the allegation of violation of
the material data rule under Section 4 of
Rule 45, the same is unfounded. The
material dates required to be stated in
the petition are the following: (1) the date
of receipt of the judgment or final order or
resolution subject of the petition; (2) the
date of filing of a motion for new trial or
reconsideration, if any; and (3) the date
of receipt of the notice of the denial of the
motion. Contrary to private respondents
claim, the petition need not indicate the
dates of the expiration of the original
reglementary period and the filing of a
motion for extension of time to file the
petition. At any rate, aside from the
material dates required under Section 4
of Rule 45, petitioner CASTILEX also
stated in the first page of the petition the
date it filed the motion for extension of
time to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue
at this instance. Petitioner CASTILEX
presumes said negligence but claims
that it is not vicariously liable for the
injuries and subsequent death caused by
ABAD.
Petitioner contends that the fifth
paragraph of Article 2180 of the Civil
Code should only apply to instances
where the employer is not engaged in
business or industry. Since it is engaged
in the business of manufacturing and
selling furniture it is therefore not covered
by said provision. Instead, the fourth
paragraph should apply.
Petitioners interpretation of the fifth
paragraph is not accurate. The phrase
even though the former are not engaged
in any business or industry found in the
fifth paragraph should be interpreted to
mean that it is not necessary for the
employer to be engaged in any business
or industry to be liable for the negligence
of his employee who is acting within the
scope of his assigned task.[5]
A distinction must be made between the
two provisions to determine what is
applicable. Both provisions apply to
employers: the fourth paragraph, to
owners and managers of an
establishment or enterprise; and the fifth
paragraph, to employers in general,
whether or not engaged in any business
or industry. The fourth paragraph covers
negligent acts of employees committed
either in the service of the branches or on
the occasion of their functions, while the
fifth paragraph encompasses negligent
acts of employees acting within the
scope of their assigned task. The latter is
an expansion of the former in both
employer coverage and acts included.
Negligent acts of employees, whether or
not the employer is engaged in a
business or industry, are covered so long
as they were acting within the scope of
their assigned task, even though
committed neither in the service of the
branches nor on the occasion of their
functions. For, admittedly, employees
oftentimes wear different hats. They
perform functions which are beyond their
office, title or designation but which,
nevertheless, are still within the call of
duty.
This court has applied the fifth paragraph
to cases where the employer was
engaged in a business or industry such
as truck operators[6] and banks.[7] The
Court of Appeals cannot, therefore, be
faulted in applying the said paragraph of
Article 2180 of the Civil Code to this
case.
Under the fifth paragraph of Article 2180,
whether or not engaged in any business
or industry, an employer is liable for the
torts committed by employees within the
scope of his assigned tasks. But it is
necessary to establish the employer-
employee relationship; once this is done,
the plaintiff must show, to hold the
employer liable, that the employee was
acting within the scope of his assigned
task when the tort complained of was
committed. It is only then that the
employer may find it necessary to
interpose the defense of due diligence in
the selection and supervision of the
employee.[8]
It is undisputed that ABAD was a
Production Manager of petitioner
CASTILEX at the time of the tort
occurrence. As to whether he was acting
within the scope of his assigned task is a
question of fact, which the court a quo
and the Court of Appeals resolved in the
affirmative.
Well-entrenched in our jurisprudence is
the rule that the factual findings of the
Court of Appeals are entitled to great
respect, and even finality at times. This
rule is, however, subject to exceptions
such as when the conclusion is grounded
on speculations, surmises, or
conjectures.[9] Such exception obtain in
the present case to warrant review by
this Court of the finding of the Court of
Appeals that since ABAD was driving
petitioners vehicle he was acting within
the scope of his duties as a manager.
Before we pass upon the issue of
whether ABAD was performing acts
within the range of his employment, we
shall first take up the other reason
invoked by the Court of Appeals in
holding petitioner CASTILEX vicariously
liable for ABADs negligence, i.e., that the
petitioner did not present evidence that
ABAD was not acting within the scope of
his assigned tasks at the time of the
motor vehicle mishap. Contrary to the
ruling of the Court of Appeals, it was not
incumbent upon the petitioner to prove
the same. It was enough for petitioner
CASTILEX to deny that ABAD was acting
within the scope of his duties; petitioner
was not under obligation to prove this
negative averment. Ei incumbit probatio
qui dicit, non qui negat (He who asserts,
not he who denies, must prove). The
Court has consistently applied the
ancient rule that if the plaintiff, upon
whom rests the burden of proving his
cause of action, fails to show in a
satisfactory manner facts which he bases
his claim, the defendant is under no
obligation to prove his exception or
defense.[10]
Now on the issue of whether the private
respondents have sufficiently
established that ABAD was acting within
the scope of his assigned tasks.
ABAD, who was presented as a hostile
witness, testified that at the time of the
incident, he was driving a company-
issued vehicle, registered under the
name of petitioner. He was then leaving
the restaurant where he had some
snacks and had a chat with his friends
after having done overtime work for the
petitioner.
No absolutely hard and fast rule can be
stated which will furnish the complete
answer to the problem of whether at a
given moment, an employee is engaged
in his employers business in the
operation of a motor vehicle, so as to fix
liability upon the employer because of
the employees action or inaction; but
rather, the result varies with each state of
facts.[11]
In Filamer Christian Institute v.
Intermediate Appellate Court,[12] this
Court had the occasion to hold that acts
done within the scope of the employees
assigned tasks includes any act done by
an employee in furtherance of the
interests of the employer or for the
account of the employer at the time of the
infliction of the injury or damages.
The court a quo and the Court of Appeals
were one in holding that the driving by a
manager of a company-issued vehicle is
within the scope of his assigned tasks
regardless of the time and
circumstances.
We do not agree. The mere fact that
ABAD was using a service vehicle at the
time of the injurious incident is not of
itself sufficient to charge petitioner with
liability for the negligent operation of said
vehicle unless it appears that he was
operating the vehicle within the course or
scope of his employment.
The following are principles in American
Jurisprudence on the employers liability
for the injuries inflicted by the negligence
of an employee in the use of an
employers motor vehicle:
I. Operation of Employers Motor Vehicle
in Going to or from Meals
It has been held that an employee who
uses his employers vehicle in going from
his work to a place where he intends to
eat or in returning to work from a meal is
not ordinarily acting within the scope of
his employment in the absence of
evidence of some special business
benefit to the employer. Evidence that by
using the employers vehicle to go to and
from meals, an employee is enabled to
reduce his time-off and so devote more
time to the performance of his duties
supports the finding that an employee is
acting within the scope of his
employment while so driving the
vehicle.[13]
II. Operation of Employers Vehicle in
Going to or from Work
In the same vein, traveling to and from
the place of work is ordinarily a personal
problem or concern of the employee, and
not a part of his services to his employer.
Hence, in the absence of some special
benefit to the employer other than the
mere performance of the services
available at the place where he is
needed, the employee is not acting within
the scope of his employment even
though he uses his employers motor
vehicle.[14]
The employer may, however, be liable
where he derives some special benefit
from having the employee drive home in
the employers vehicle as when the
employer benefits from having the
employee at work earlier and,
presumably, spending more time at his
actual duties. Where the employees
duties require him to circulate in a
general area with no fixed place or hours
of work, or to go to and from his home to
various outside places of work, and his
employer furnishes him with a vehicle to
use in his work, the courts have
frequently applied what has been called
the special errand or roving commission
rule, under which it can be found that the
employee continues in the service of his
employer until he actually reaches home.
However, even if the employee be
deemed to be acting within the scope of
his employment in going to or from work
in his employers vehicle, the employer is
not liable for his negligence where at the
time of the accident, the employee has
left the direct route to his work or back
home and is pursuing a personal errand
of his own.
III. Use of Employers Vehicle Outside
Regular Working Hours
An employer who loans his motor vehicle
to an employee for the latters personal
use outside of regular working hours is
generally not liable for the employees
negligent operation of the vehicle during
the period of permissive use, even where
the employer contemplates that a
regularly assigned motor vehicle will be
used by the employee for personal as
well as business purposes and there is
some incidental benefit to the employer.
Even where the employees personal
purpose in using the vehicle has been
accomplished and he has started the
return trip to his house where the vehicle
is normally kept, it has been held that he
has not resumed his employment, and
the employer is not liable for the
employees negligent operation of the
vehicle during the return trip.[15]
The foregoing principles and
jurisprudence are applicable in our
jurisdiction albeit based on the doctrine
of respondeat superior, not on the
principle of bonus pater familias as in
ours. Whether the fault or negligence of
the employee is conclusive on his
employer as in American law or
jurisprudence, or merely gives rise to the
presumption juris tantum of negligence
on the part of the employer as in ours, it
is indispensable that the employee was
acting in his employers business or
within the scope of his assigned task.[16]
In the case at bar, it is undisputed that
ABAD did some overtime work at the
petitioners office, which was located in
Cabangcalan, Mandaue City. Thereafter,
he went to Goldies Restaurant in Fuente
Osmea, Cebu City, which is about seven
kilometers away from petitioners place of
business.[17] A witness for the private
respondents, a sidewalk vendor, testified
that Fuente Osmea is a lively place even
at dawn because Goldies Restaurant
and Back Street were still open and
people were drinking thereat. Moreover,
prostitutes, pimps, and drug addicts
littered the place.[18]
At the Goldies Restaurant, ABAD took
some snacks and had a chat with friends.
It was when ABAD was leaving the
restaurant that the incident in question
occurred. That same witness for the
private respondents testified that at the
time of the vehicular accident, ABAD was
with a woman in his car, who then
shouted: Daddy, Daddy![19] This woman
could not have been ABADs daughter,
for ABAD was only 29 years old at the
time.
To the mind of this Court, ABAD was
engaged in affairs of his own or was
carrying out a personal purpose not in
line with his duties at the time he figured
in a vehicular accident. It was then about
2:00 a.m. of 28 August 1988, way
beyond the normal working hours.
ABADs working day had ended; his
overtime work had already been
completed. His being at a place which, as
petitioner put it, was known as a haven
for prostitutes, pimps, and drug pushers
and addicts, had no connection to
petitioners business; neither had it any
relation to his duties as a manager.
Rather, using his service vehicle even for
personal purposes was a form of a fringe
benefit or one of the perks attached to his
position.
Since there is paucity of evidence that
ABAD was acting within the scope of the
functions entrusted to him, petitioner
CASTILEX had no duty to show that it
exercised the diligence of a good father
of a family in providing ABAD with a
service vehicle. Thus, justice and equity
require that petitioner be relieved of
vicarious liability for the consequences of
the negligence of ABAD in driving its
vehicle.[20]
WHEREFORE, the petition is
GRANTED, and the appealed decision
and resolution of the Court of Appeals is
AFFIRMED with the modification that
petitioner Castilex Industrial Corporation
be absolved of any liability for the
damages caused by its employee, Jose
Benjamin Abad.
SO ORDERED. G.R. No. L-47745
April 15, 1988
JOSE S. AMADORA, LORETA A.
AMADORA, JOSE A. AMADORA JR.,
NORMA A. YLAYA PANTALEON A.
AMADORA, JOSE A. AMADORA III,
LUCY A. AMADORA, ROSALINDA A.
AMADORA, PERFECTO A. AMADORA,
SERREC A. AMADORA, VICENTE A.
AMADORA and MARIA TISCALINA A.
AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS,
COLEGIO DE SAN JOSE-
RECOLETOS, VICTOR LLUCH
SERGIO P. DLMASO JR., CELESTINO
DICON, ANIANO ABELLANA, PABLITO
DAFFON thru his parents and natural
guardians, MR. and MRS. NICANOR
GUMBAN, and ROLANDO VALENCIA,
thru his guardian, A. FRANCISCO
ALONSO, respondents.
Jose S. Amadora & Associates for
petitioners.
Padilla Law Office for respondents.
CRUZ, J.:
Like any prospective graduate, Alfredo
Amadora was looking forward to the
commencement exercises where he
would ascend the stage and in the
presence of his relatives and friends
receive his high school diploma. These
ceremonies were scheduled on April 16,
1972. As it turned out, though, fate would
intervene and deny him that awaited
experience. On April 13, 1972, while they
were in the auditorium of their school, the
Colegio de San Jose-Recoletos, a
classmate, Pablito Damon, fired a gun
that mortally hit Alfredo, ending all his
expectations and his life as well. The
victim was only seventeen years old. 1
Daffon was convicted of homicide thru
reckless imprudence . 2 Additionally, the
herein petitioners, as the victim's
parents, filed a civil action for damages
under Article 2180 of the Civil Code
against the Colegio de San Jose-
Recoletos, its rector the high school
principal, the dean of boys, and the
physics teacher, together with Daffon
and two other students, through their
respective parents. The complaint
against the students was later dropped.
After trial, the Court of First Instance of
Cebu held the remaining defendants
liable to the plaintiffs in the sum of
P294,984.00, representing death
compensation, loss of earning capacity,
costs of litigation, funeral expenses,
moral damages, exemplary damages,
and attorney's fees .3 On appeal to the
respondent court, however, the decision
was reversed and all the defendants
were completely absolved .4
In its decision, which is now the subject
of this petition for certiorari under Rule 45
of the Rules of Court, the respondent
court found that Article 2180 was not
applicable as the Colegio de San Jose-
Recoletos was not a school of arts and
trades but an academic institution of
learning. It also held that the students
were not in the custody of the school at
the time of the incident as the semester
had already ended, that there was no
clear identification of the fatal gun and
that in any event the defendant, had
exercised the necessary diligence in
preventing the injury. 5
The basic undisputed facts are that
Alfredo Amadora went to the San Jose-
Recoletos on April 13, 1972, and while in
its auditorium was shot to death by
Pablito Daffon, a classmate. On the
implications and consequences of these
facts, the parties sharply disagree.
The petitioners contend that their son
was in the school to show his physics
experiment as a prerequisite to his
graduation; hence, he was then under
the custody of the private respondents.
The private respondents submit that
Alfredo Amadora had gone to the school
only for the purpose of submitting his
physics report and that he was no longer
in their custody because the semester
had already ended.
There is also the question of the identity
of the gun used which the petitioners
consider important because of an earlier
incident which they claim underscores
the negligence of the school and at least
one of the private respondents. It is not
denied by the respondents that on April
7, 1972, Sergio Damaso, Jr., the dean of
boys, confiscated from Jose Gumban an
unlicensed pistol but later returned it to
him without making a report to the
principal or taking any further action .6 As
Gumban was one of the companions of
Daffon when the latter fired the gun that
killed Alfredo, the petitioners contend
that this was the same pistol that had
been confiscated from Gumban and that
their son would not have been killed if it
had not been returned by Damaso. The
respondents say, however, that there is
no proof that the gun was the same
firearm that killed Alfredo.
Resolution of all these disagreements
will depend on the interpretation of Article
2180 which, as it happens, is invoked by
both parties in support of their conflicting
positions. The pertinent part of this article
reads as follows:
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.
Three cases have so far been decided by
the Court in connection with the above-
quoted provision, to wit: Exconde v.
Capuno 7 Mercado v. Court of Appeals,
8 and Palisoc v. Brillantes. 9 These will
be briefly reviewed in this opinion for a
better resolution of the case at bar.
In the Exconde Case, Dante Capuno, a
student of the Balintawak Elementary
School and a Boy Scout, attended a
Rizal Day parade on instructions of the
city school supervisor. After the parade,
the boy boarded a jeep, took over its
wheel and drove it so recklessly that it
turned turtle, resulting in the death of two
of its passengers. Dante was found guilty
of double homicide with reckless
imprudence. In the separate civil action
flied against them, his father was held
solidarily liable with him in damages
under Article 1903 (now Article 2180) of
the Civil Code for the tort committed by
the 15-year old boy.
This decision, which was penned by
Justice Bautista Angelo on June
29,1957, exculpated the school in an
obiter dictum (as it was not a party to the
case) on the ground that it was riot a
school of arts and trades. Justice J.B.L.
Reyes, with whom Justices Sabino
Padilla and Alex Reyes concurred,
dissented, arguing that it was the school
authorities who should be held liable
Liability under this rule, he said, was
imposed on (1) teachers in general; and
(2) heads of schools of arts and trades in
particular. The modifying clause "of
establishments of arts and trades"
should apply only to "heads" and not
"teachers."
Exconde was reiterated in the Mercado
Case, and with an elaboration. A student
cut a classmate with a razor blade during
recess time at the Lourdes Catholic
School in Quezon City, and the parents
of the victim sued the culprits parents for
damages. Through Justice Labrador, the
Court declared in another obiter (as the
school itself had also not been sued that
the school was not liable because it was
not an establishment of arts and trades.
Moreover, the custody requirement had
not been proved as this "contemplates a
situation where the student lives and
boards with the teacher, such that the
control, direction and influences on the
pupil supersede those of the parents."
Justice J.B.L. Reyes did not take part but
the other members of the court
concurred in this decision promulgated
on May 30, 1960.
In Palisoc vs. Brillantes, decided on
October 4, 1971, a 16-year old student
was killed by a classmate with fist blows
in the laboratory of the Manila Technical
Institute. Although the wrongdoer — who
was already of age — was not boarding
in the school, the head thereof and the
teacher in charge were held solidarily
liable with him. The Court declared
through Justice Teehankee:
The phrase used in the cited article —
"so long as (the students) remain in their
custody" — means the protective and
supervisory custody that the school and
its heads and teachers exercise over the
pupils and students for as long as they
are at attendance in the school, including
recess time. There is nothing in the law
that requires that for such liability to
attach, the pupil or student who commits
the tortious act must live and board in the
school, as erroneously held by the lower
court, and the dicta in Mercado (as well
as in Exconde) on which it relied, must
now be deemed to have been set aside
by the present decision.
This decision was concurred in by five
other members, 10 including Justice
J.B.L. Reyes, who stressed, in answer to
the dissenting opinion, that even
students already of age were covered by
the provision since they were equally in
the custody of the school and subject to
its discipline. Dissenting with three
others,11 Justice Makalintal was for
retaining the custody interpretation in
Mercado and submitted that the rule
should apply only to torts committed by
students not yet of age as the school
would be acting only in loco parentis.
In a footnote, Justice Teehankee said he
agreed with Justice Reyes' dissent in the
Exconde Case but added that "since the
school involved at bar is a non-academic
school, the question as to the
applicability of the cited codal provision
to academic institutions will have to await
another case wherein it may properly be
raised."
This is the case.
Unlike in Exconde and Mercado, the
Colegio de San Jose-Recoletos has
been directly impleaded and is sought to
be held liable under Article 2180; and
unlike in Palisoc, it is not a school of arts
and trades but an academic institution of
learning. The parties herein have also
directly raised the question of whether or
not Article 2180 covers even
establishments which are technically not
schools of arts and trades, and, if so,
when the offending student is supposed
to be "in its custody."
After an exhaustive examination of the
problem, the Court has come to the
conclusion that the provision in question
should apply to all schools, academic as
well as non-academic. Where the school
is academic rather than technical or
vocational in nature, responsibility for the
tort committed by the student will attach
to the teacher in charge of such student,
following the first part of the provision.
This is the general rule. In the case of
establishments of arts and trades, it is
the head thereof, and only he, who shall
be held liable as an exception to the
general rule. In other words, teachers in
general shall be liable for the acts of their
students except where the school is
technical in nature, in which case it is the
head thereof who shall be answerable.
Following the canon of reddendo singula
singulis "teachers" should apply to the
words "pupils and students" and "heads
of establishments of arts and trades" to
the word "apprentices."
The Court thus conforms to the
dissenting opinion expressed by Justice
J.B.L. Reyes in Exconde where he said
in part:
I can see no sound reason for limiting Art.
1903 of the Old Civil Code to teachers of
arts and trades and not to academic
ones. What substantial difference is
there between them insofar as concerns
the proper supervision and vice over their
pupils? It cannot be seriously contended
that an academic teacher is exempt from
the duty of watching that his pupils do not
commit a tort to the detriment of third
Persons, so long as they are in a position
to exercise authority and Supervision
over the pupil. In my opinion, in the
phrase "teachers or heads of
establishments of arts and trades" used
in Art. 1903 of the old Civil Code, the
words "arts and trades" does not qualify
"teachers" but only "heads of
establishments." The phrase is only an
updated version of the equivalent terms
"preceptores y artesanos" used in the
Italian and French Civil Codes.
If, as conceded by all commentators, the
basis of the presumption of negligence of
Art. 1903 in some culpa in vigilando that
the parents, teachers, etc. are supposed
to have incurred in the exercise of their
authority, it would seem clear that where
the parent places the child under the
effective authority of the teacher, the
latter, and not the parent, should be the
one answerable for the torts committed
while under his custody, for the very
reason/that the parent is not supposed to
interfere with the discipline of the school
nor with the authority and supervision of
the teacher while the child is under
instruction. And if there is no authority,
there can be no responsibility.
There is really no substantial distinction
between the academic and the non-
academic schools insofar as torts
committed by their students are
concerned. The same vigilance is
expected from the teacher over the
students under his control and
supervision, whatever the nature of the
school where he is teaching. The
suggestion in the Exconde and Mercado
Cases is that the provision would make
the teacher or even the head of the
school of arts and trades liable for an
injury caused by any student in its
custody but if that same tort were
committed in an academic school, no
liability would attach to the teacher or the
school head. All other circumstances
being the same, the teacher or the head
of the academic school would be
absolved whereas the teacher and the
head of the non-academic school would
be held liable, and simply because the
latter is a school of arts and trades.
The Court cannot see why different
degrees of vigilance should be exercised
by the school authorities on the basis
only of the nature of their respective
schools. There does not seem to be any
plausible reason for relaxing that
vigilance simply because the school is
academic in nature and for increasing
such vigilance where the school is non-
academic. Notably, the injury subject of
liability is caused by the student and not
by the school itself nor is it a result of the
operations of the school or its equipment.
The injury contemplated may be caused
by any student regardless of the school
where he is registered. The teacher
certainly should not be able to excuse
himself by simply showing that he is
teaching in an academic school where,
on the other hand, the head would be
held liable if the school were non-
academic.
These questions, though, may be asked:
If the teacher of the academic school is
to be held answerable for the torts
committed by his students, why is it the
head of the school only who is held liable
where the injury is caused in a school of
arts and trades? And in the case of the
academic or non- technical school, why
not apply the rule also to the head thereof
instead of imposing the liability only on
the teacher?
The reason for the disparity can be
traced to the fact that historically the
head of the school of arts and trades
exercised a closer tutelage over his
pupils than the head of the academic
school. The old schools of arts and
trades were engaged in the training of
artisans apprenticed to their master who
personally and directly instructed them
on the technique and secrets of their
craft. The head of the school of arts and
trades was such a master and so was
personally involved in the task of
teaching his students, who usually even
boarded with him and so came under his
constant control, supervision and
influence. By contrast, the head of the
academic school was not as involved
with his students and exercised only
administrative duties over the teachers
who were the persons directly dealing
with the students. The head of the
academic school had then (as now) only
a vicarious relationship with the students.
Consequently, while he could not be
directly faulted for the acts of the
students, the head of the school of arts
and trades, because of his closer ties
with them, could be so blamed.
It is conceded that the distinction no
longer obtains at present in view of the
expansion of the schools of arts and
trades, the consequent increase in their
enrollment, and the corresponding
diminution of the direct and personal
contract of their heads with the students.
Article 2180, however, remains
unchanged. In its present state, the
provision must be interpreted by the
Court according to its clear and original
mandate until the legislature, taking into
account the charges in the situation
subject to be regulated, sees fit to enact
the necessary amendment.
The other matter to be resolved is the
duration of the responsibility of the
teacher or the head of the school of arts
and trades over the students. Is such
responsibility co-extensive with the
period when the student is actually
undergoing studies during the school
term, as contended by the respondents
and impliedly admitted by the petitioners
themselves?
From a reading of the provision under
examination, it is clear that while the
custody requirement, to repeat Palisoc v.
Brillantes, does not mean that the
student must be boarding with the school
authorities, it does signify that the
student should be within the control and
under the influence of the school
authorities at the time of the occurrence
of the injury. This does not necessarily
mean that such, custody be co-terminous
with the semester, beginning with the
start of classes and ending upon the
close thereof, and excluding the time
before or after such period, such as the
period of registration, and in the case of
graduating students, the period before
the commencement exercises. In the
view of the Court, the student is in the
custody of the school authorities as long
as he is under the control and influence
of the school and within its premises,
whether the semester has not yet begun
or has already ended.
It is too tenuous to argue that the student
comes under the discipline of the school
only upon the start of classes
notwithstanding that before that day he
has already registered and thus placed
himself under its rules. Neither should
such discipline be deemed ended upon
the last day of classes notwithstanding
that there may still be certain requisites
to be satisfied for completion of the
course, such as submission of reports,
term papers, clearances and the like.
During such periods, the student is still
subject to the disciplinary authority of the
school and cannot consider himself
released altogether from observance of
its rules.
As long as it can be shown that the
student is in the school premises in
pursuance of a legitimate student
objective, in the exercise of a legitimate
student right, and even in the enjoyment
of a legitimate student right, and even in
the enjoyment of a legitimate student
privilege, the responsibility of the school
authorities over the student continues.
Indeed, even if the student should be
doing nothing more than relaxing in the
campus in the company of his
classmates and friends and enjoying the
ambience and atmosphere of the school,
he is still within the custody and subject
to the discipline of the school authorities
under the provisions of Article 2180.
During all these occasions, it is obviously
the teacher-in-charge who must answer
for his students' torts, in practically the
same way that the parents are
responsible for the child when he is in
their custody. The teacher-in-charge is
the one designated by the dean,
principal, or other administrative superior
to exercise supervision over the pupils in
the specific classes or sections to which
they are assigned. It is not necessary
that at the time of the injury, the teacher
be physically present and in a position to
prevent it. Custody does not connote
immediate and actual physical control
but refers more to the influence exerted
on the child and the discipline instilled in
him as a result of such influence. Thus,
for the injuries caused by the student, the
teacher and not the parent shag be held
responsible if the tort was committed
within the premises of the school at any
time when its authority could be validly
exercised over him.
In any event, it should be noted that the
liability imposed by this article is
supposed to fall directly on the teacher or
the head of the school of arts and trades
and not on the school itself. If at all, the
school, whatever its nature, may be held
to answer for the acts of its teachers or
even of the head thereof under the
general principle of respondeat superior,
but then it may exculpate itself from
liability by proof that it had exercised the
diligence of a bonus paterfamilias.
Such defense is, of course, also
available to the teacher or the head of the
school of arts and trades directly held to
answer for the tort committed by the
student. As long as the defendant can
show that he had taken the necessary
precautions to prevent the injury
complained of, he can exonerate himself
from the liability imposed by Article 2180,
which also states that:
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 damages.
In this connection, it should be observed
that the teacher will be held liable not
only when he is acting in loco parentis for
the law does not require that the
offending student be of minority age.
Unlike the parent, who wig be liable only
if his child is still a minor, the teacher is
held answerable by the law for the act of
the student under him regardless of the
student's age. Thus, in the Palisoc Case,
liability attached to the teacher and the
head of the technical school although the
wrongdoer was already of age. In this
sense, Article 2180 treats the parent
more favorably than the teacher.
The Court is not unmindful of the
apprehensions expressed by Justice
Makalintal in his dissenting opinion in
Palisoc that the school may be unduly
exposed to liability under this article in
view of the increasing activism among
the students that is likely to cause
violence and resulting injuries in the
school premises. That is a valid fear, to
be sure. Nevertheless, it should be
repeated that, under the present ruling, it
is not the school that will be held directly
liable. Moreover, the defense of due
diligence is available to it in case it is
sought to be held answerable as
principal for the acts or omission of its
head or the teacher in its employ.
The school can show that it exercised
proper measures in selecting the head or
its teachers and the appropriate
supervision over them in the custody and
instruction of the pupils pursuant to its
rules and regulations for the
maintenance of discipline among them.
In almost all cases now, in fact, these
measures are effected through the
assistance of an adequate security force
to help the teacher physically enforce
those rules upon the students. Ms should
bolster the claim of the school that it has
taken adequate steps to prevent any
injury that may be committed by its
students.
A fortiori, the teacher himself may invoke
this defense as it would otherwise be
unfair to hold him directly answerable for
the damage caused by his students as
long as they are in the school premises
and presumably under his influence. In
this respect, the Court is disposed not to
expect from the teacher the same
measure of responsibility imposed on the
parent for their influence over the child is
not equal in degree. Obviously, the
parent can expect more obedience from
the child because the latter's
dependence on him is greater than on
the teacher. It need not be stressed that
such dependence includes the child's
support and sustenance whereas
submission to the teacher's influence,
besides being coterminous with the
period of custody is usually enforced only
because of the students' desire to pass
the course. The parent can instill more
las discipline on the child than the
teacher and so should be held to a
greater accountability than the teacher
for the tort committed by the child.
And if it is also considered that under the
article in question, the teacher or the
head of the school of arts and trades is
responsible for the damage caused by
the student or apprentice even if he is
already of age — and therefore less
tractable than the minor — then there
should all the more be justification to
require from the school authorities less
accountability as long as they can prove
reasonable diligence in preventing the
injury. After all, if the parent himself is no
longer liable for the student's acts
because he has reached majority age
and so is no longer under the former's
control, there is then all the more reason
for leniency in assessing the teacher's
responsibility for the acts of the student.
Applying the foregoing considerations,
the Court has arrived at the following
conclusions:
1. At the time Alfredo Amadora
was fatally shot, he was still in the
custody of the authorities of Colegio de
San Jose-Recoletos notwithstanding that
the fourth year classes had formally
ended. It was immaterial if he was in the
school auditorium to finish his physics
experiment or merely to submit his
physics report for what is important is
that he was there for a legitimate
purpose. As previously observed, even
the mere savoring of the company of his
friends in the premises of the school is a
legitimate purpose that would have also
brought him in the custody of the school
authorities.
2. The rector, the high school
principal and the dean of boys cannot be
held liable because none of them was the
teacher-in-charge as previously defined.
Each of them was exercising only a
general authority over the student body
and not the direct control and influence
exerted by the teacher placed in charge
of particular classes or sections and thus
immediately involved in its discipline. The
evidence of the parties does not disclose
who the teacher-in-charge of the
offending student was. The mere fact
that Alfredo Amadora had gone to school
that day in connection with his physics
report did not necessarily make the
physics teacher, respondent Celestino
Dicon, the teacher-in-charge of Alfredo's
killer.
3. At any rate, assuming that he
was the teacher-in-charge, there is no
showing that Dicon was negligent in
enforcing discipline upon Daffon or that
he had waived observance of the rules
and regulations of the school or
condoned their non-observance. His
absence when the tragedy happened
cannot be considered against him
because he was not supposed or
required to report to school on that day.
And while it is true that the offending
student was still in the custody of the
teacher-in-charge even if the latter was
physically absent when the tort was
committed, it has not been established
that it was caused by his laxness in
enforcing discipline upon the student. On
the contrary, the private respondents
have proved that they had exercised due
diligence, through the enforcement of the
school regulations, in maintaining that
discipline.
4. In the absence of a teacher-
in-charge, it is probably the dean of boys
who should be held liable especially in
view of the unrefuted evidence that he
had earlier confiscated an unlicensed
gun from one of the students and
returned the same later to him without
taking disciplinary action or reporting the
matter to higher authorities. While this
was clearly negligence on his part, for
which he deserves sanctions from the
school, it does not necessarily link him to
the shooting of Amador as it has not
been shown that he confiscated and
returned pistol was the gun that killed the
petitioners' son.
5. Finally, as previously
observed, the Colegio de San Jose-
Recoletos cannot be held directly liable
under the article because only the
teacher or the head of the school of arts
and trades is made responsible for the
damage caused by the student or
apprentice. Neither can it be held to
answer for the tort committed by any of
the other private respondents for none of
them has been found to have been
charged with the custody of the offending
student or has been remiss in the
discharge of his duties in connection with
such custody.
In sum, the Court finds under the facts as
disclosed by the record and in the light of
the principles herein announced that
none of the respondents is liable for the
injury inflicted by Pablito Damon on
Alfredo Amadora that resulted in the
latter's death at the auditorium of the
Colegio de San Jose-Recoletos on April
13, 1972. While we deeply sympathize
with the petitioners over the loss of their
son under the tragic circumstances here
related, we nevertheless are unable to
extend them the material relief they seek,
as a balm to their grief, under the law
they have invoked.
WHEREFORE, the petition is DENIED,
without any pronouncement as to costs.
It is so ordered.
ST. MARYS ACADEMY, petitioner, vs.
WILLIAM CARPITANOS and LUCIA S.
CARPITANOS, GUADA DANIEL,
JAMES DANIEL II, JAMES DANIEL,
SR., and VIVENCIO VILLANUEVA,
respondents.
DECISION
PARDO, J.:
The Case
The case is an appeal via certiorari from
the decision[1] of the Court of Appeals as
well as the resolution denying
reconsideration, holding petitioner liable
for damages arising from an accident
that resulted in the death of a student
who had joined a campaign to visit the
public schools in Dipolog City to solicit
enrollment.
The Facts
The facts, as found by the Court of
Appeals, are as follows:
Claiming damages for the death of their
only son, Sherwin Carpitanos, spouses
William Carpitanos and Lucia Carpitanos
filed on June 9, 1995 a case against
James Daniel II and his parents, James
Daniel Sr. and Guada Daniel, the vehicle
owner, Vivencio Villanueva and St.
Marys Academy before the Regional
Trial Court of Dipolog City.
On 20 February 1997, Branch 6 of the
Regional Trial Court of Dipolog City
rendered its decision the dispositive
portion of which reads as follows:
WHEREFORE, PREMISES
CONSIDERED, judgment is hereby
rendered in the following manner:
1. Defendant St. Marys Academy of
Dipolog City, is hereby ordered to pay
plaintiffs William Carpitanos and Luisa
Carpitanos, the following sums of money:
a. FIFTY THOUSAND PESOS
(P50,000.00) indemnity for the loss of life
of Sherwin S. Carpitanos;
b. FORTY THOUSAND PESOS
(P40,000.00) actual damages incurred
by plaintiffs for burial and related
expenses;
c. TEN THOUSAND PESOS
(P10,000.00) for attorneys fees;
d. FIVE HUNDRED THOUSAND PESOS
(P500,000.00) for moral damages; and to
pay costs.
2. Their liability being only subsidiary,
defendants James Daniel, Sr. and
Guada Daniel are hereby ordered to pay
herein plaintiffs the amount of damages
above-stated in the event of insolvency
of principal obligor St. Marys Academy of
Dipolog City;
3. Defendant James Daniel II, being a
minor at the time of the commission of
the tort and who was under special
parental authority of defendant St. Marys
Academy, is ABSOLVED from paying the
above-stated damages, same being
adjudged against defendants St. Marys
Academy, and subsidiarily, against his
parents;
4. Defendant Vivencio Villanueva is
hereby ABSOLVED of any liability. His
counterclaim not being in order as earlier
discussed in this decision, is hereby
DISMISSED.
IT IS SO ORDERED. (Decision, pp. 32-
33; Records, pp. 205-206).
From the records it appears that from 13
to 20 February 1995, defendant-
appellant St. Marys Academy of Dipolog
City conducted an enrollment drive for
the school year 1995-1996. A facet of the
enrollment campaign was the visitation of
schools from where prospective
enrollees were studying. As a student of
St. Marys Academy, Sherwin Carpitanos
was part of the campaigning group.
Accordingly, on the fateful day, Sherwin,
along with other high school students
were riding in a Mitsubishi jeep owned by
defendant Vivencio Villanueva on their
way to Larayan Elementary School,
Larayan, Dapitan City. The jeep was
driven by James Daniel II then 15 years
old and a student of the same school.
Allegedly, the latter drove the jeep in a
reckless manner and as a result the jeep
turned turtle.
Sherwin Carpitanos died as a result of
the injuries he sustained from the
accident.[2]
In due time, petitioner St. Marys
academy appealed the decision to the
Court of Appeals.[3]
On February 29, 2000, the Court of
Appeals promulgated a decision
reducing the actual damages to
P25,000.00 but otherwise affirming the
decision a quo, in toto.[4]
On February 29, 2000, petitioner St.
Marys Academy filed a motion for
reconsideration of the decision.
However, on May 22, 2000, the Court of
Appeals denied the motion.[5]
Hence, this appeal.[6]
The Issues
1) Whether the Court of Appeals erred in
holding the petitioner liable for damages
for the death of Sherwin Carpitanos.
2) Whether the Court of Appeals erred in
affirming the award of moral damages
against the petitioner.
The Courts Ruling
We reverse the decision of the Court of
Appeals.
The Court of Appeals held petitioner St.
Marys Academy liable for the death of
Sherwin Carpitanos under Articles 218[7]
and 219[8] of the Family Code, pointing
out that petitioner was negligent in
allowing a minor to drive and in not
having a teacher accompany the minor
students in the jeep.
Under Article 218 of the Family Code, the
following shall have special parental
authority over a minor child while under
their supervision, instruction or custody:
(1) the school, its administrators and
teachers; or (2) the individual, entity or
institution engaged in child care. This
special parental authority and
responsibility applies to all authorized
activities, whether inside or outside the
premises of the school, entity or
institution. Thus, such authority and
responsibility applies to field trips,
excursions and other affairs of the pupils
and students outside the school
premises whenever authorized by the
school or its teachers.[9]
Under Article 219 of the Family Code, if
the person under custody is a minor,
those exercising special parental
authority are principally and solidarily
liable for damages caused by the acts or
omissions of the unemancipated minor
while under their supervision, instruction,
or custody.[10]
However, for petitioner to be liable, there
must be a finding that the act or omission
considered as negligent was the
proximate cause of the injury caused
because the negligence must have a
causal connection to the accident.[11]
In order that there may be a recovery for
an injury, however, it must be shown that
the injury for which recovery is sought
must be the legitimate consequence of
the wrong done; the connection between
the negligence and the injury must be a
direct and natural sequence of events,
unbroken by intervening efficient causes.
In other words, the negligence must be
the proximate cause of the injury. For,
negligence, no matter in what it consists,
cannot create a right of action unless it is
the proximate cause of the injury
complained of. And the proximate cause
of an injury is that cause, which, in
natural and continuous sequence,
unbroken by any efficient intervening
cause, produces the injury, and without
which the result would not have
occurred.[12]
In this case, the respondents failed to
show that the negligence of petitioner
was the proximate cause of the death of
the victim.
Respondents Daniel spouses and
Villanueva admitted that the immediate
cause of the accident was not the
negligence of petitioner or the reckless
driving of James Daniel II, but the
detachment of the steering wheel guide
of the jeep.
In their comment to the petition,
respondents Daniel spouses and
Villanueva admitted the documentary
exhibits establishing that the cause of the
accident was the detachment of the
steering wheel guide of the jeep. Hence,
the cause of the accident was not the
recklessness of James Daniel II but the
mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the
spouses Carpitanos, parents of the
deceased Sherwin Carpitanos, did not
dispute the report and testimony of the
traffic investigator who stated that the
cause of the accident was the
detachment of the steering wheel guide
that caused the jeep to turn turtle.
Significantly, respondents did not
present any evidence to show that the
proximate cause of the accident was the
negligence of the school authorities, or
the reckless driving of James Daniel II.
Hence, the respondents reliance on
Article 219 of the Family Code that those
given the authority and responsibility
under the preceding Article shall be
principally and solidarily liable for
damages caused by acts or omissions of
the unemancipated minor was
unfounded.
Further, there was no evidence that
petitioner school allowed the minor
James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was
Ched Villanueva, grandson of
respondent Vivencio Villanueva, who
had possession and control of the jeep.
He was driving the vehicle and he
allowed James Daniel II, a minor, to drive
the jeep at the time of the accident.
Hence, liability for the accident, whether
caused by the negligence of the minor
driver or mechanical detachment of the
steering wheel guide of the jeep, must be
pinned on the minors parents primarily.
The negligence of petitioner St. Marys
Academy was only a remote cause of the
accident. Between the remote cause and
the injury, there intervened the
negligence of the minors parents or the
detachment of the steering wheel guide
of the jeep.
The proximate cause of an injury is that
cause, which, in natural and continuous
sequence, unbroken by any efficient
intervening cause, produces the injury,
and without which the result would not
have occurred.[13]
Considering that the negligence of the
minor driver or the detachment of the
steering wheel guide of the jeep owned
by respondent Villanueva was an event
over which petitioner St. Marys Academy
had no control, and which was the
proximate cause of the accident,
petitioner may not be held liable for the
death resulting from such accident.
Consequently, we find that petitioner
likewise cannot be held liable for moral
damages in the amount of P500,000.00
awarded by the trial court and affirmed by
the Court of Appeals.
Though incapable of pecuniary
computation, moral damages may be
recovered if they are the proximate result
of the defendants wrongful act or
omission.[14] In this case, the proximate
cause of the accident was not
attributable to petitioner.
For the reason that petitioner was not
directly liable for the accident, the
decision of the Court of Appeals ordering
petitioner to pay death indemnity to
respondent Carpitanos must be deleted.
Moreover, the grant of attorneys fees as
part of damages is the exception rather
than the rule.[15] The power of the court
to award attorneys fees under Article
2208 of the Civil Code demands factual,
legal and equitable justification.[16]
Thus, the grant of attorneys fees against
the petitioner is likewise deleted.
Incidentally, there was no question that
the registered owner of the vehicle was
respondent Villanueva. He never denied
and in fact admitted this fact. We have
held that the registered owner of any
vehicle, even if not used for public
service, would primarily be responsible to
the public or to third persons for injuries
caused the latter while the vehicle was
being driven on the highways or
streets.[17] Hence, with the
overwhelming evidence presented by
petitioner and the respondent Daniel
spouses that the accident occurred
because of the detachment of the
steering wheel guide of the jeep, it is not
the school, but the registered owner of
the vehicle who shall be held responsible
for damages for the death of Sherwin
Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES
and SETS ASIDE the decision of the
Court of Appeals[18] and that of the trial
court.[19] The Court remands the case to
the trial court for determination of the
liability of defendants, excluding
petitioner St. Marys Academy, Dipolog
City.
No costs.
SO ORDERED.
[G.R. No. 140420. February 15 , 2001]
SERGIO AMONOY, petitioner, vs.
Spouses JOSE GUTIERREZ and
ANGELA FORNILDA, respondents.
DECISION
PANGANIBAN, J.:
Damnum absque injuria. Under this
principle, the legitimate exercise of a
persons rights, even if it causes loss to
another, does not automatically result in
an actionable injury. The law does not
prescribe a remedy for the loss. This
principle does not, however, apply when
there is an abuse of a persons right, or
when the exercise of this right is
suspended or extinguished pursuant to a
court order. Indeed, in the availment of
ones rights, one must act with justice,
give others their due, and observe
honesty and good faith.
The Case
Before us is a Petition for Review under
Rule 45 of the Rules of Court, assailing
the April 21, 1999 Decision[1] of the
Court of Appeals (CA) in CA-GR CV No.
41451, which set aside the judgment[2]
of the Regional Trial Court (RTC) of
Tanay, Rizal. The RTC had earlier
dismissed the Complaint for damages
filed by herein respondents against
petitioner. The dispositive portion of the
challenged CA Decision reads as
follows:
WHEREFORE, the appealed Decision is
SET ASIDE, and in its stead judgment is
rendered ordering the defendant-
appellee Sergio Amonoy to pay the
plaintiffs-appellants Bruno and
Bernardina Gutierrez as actual damages
the sum of [t]wo [h]undred [f]ifty
[t]housand [p]esos (P250,000.00).[3]
Likewise assailed is the October 19,
1999 CA Resolution,[4] which denied the
Motion for Reconsideration.
The Facts
The appellate court narrated the factual
antecedents of this case as follows:
This case had its roots in Special
Proceedings No. 3103 of Branch I of the
CFI of Pasig, Rizal, for the settlement of
the estate of the deceased Julio
Cantolos, involving six (6) parcels of land
situated in Tanay, Rizal. Amonoy was the
counsel of therein Francisca Catolos,
Agnes Catolos, Asuncion Pasamba and
Alfonso Formilda. On 12 January 1965,
the Project of Partition submitted was
approved and x x x two (2) of the said lots
were adjudicated to Asuncion Pasamba
and Alfonso Formilda. The attorneys fees
charged by Amonoy was P27,600.00 and
on 20 January 1965 Asuncion Pasamba
and Alfonso Formilda executed a deed of
real estate mortgage on the said two (2)
lots adjudicated to them, in favor of
Amonoy to secure the payment of his
attorneys fees. But it was only on 6
August 1969 after the taxes had been
paid, the claims settled and the
properties adjudicated, that the estate
was declared closed and terminated.
Asuncion Pasamba died on 24 February
1969 while Alfonso Fornilda passed
away on 2 July 1969. Among the heirs of
the latter was his daughter, plaintiff-
appellant Angela Gutierrez.
Because his attorneys fees thus secured
by the two lots were not paid, on 21
January 1970 Amonoy filed for their
foreclosure in Civil Case No. 12726
entitled Sergio Amonoy vs. Heirs of
Asuncion Pasamba and Heirs of Alfonso
Fornilda before the CFI of Pasig, Rizal,
and this was assigned to Branch VIII.
The heirs opposed, contending that the
attorneys fees charged [were]
unconscionable and that the agreed sum
was only P11,695.92. But on 28
September 1972 judgment was rendered
in favor of Amonoy requiring the heirs to
pay within 90 days the P27,600.00
secured by the mortgage, P11,880.00 as
value of the harvests, and P9,645.00 as
another round of attorneys fees. Failing
in that, the two (2) lots would be sold at
public auction.
They failed to pay. On 6 February 1973,
the said lots were foreclosed and on 23
March 1973 the auction sale was held
where Amonoy was the highest bidder at
P23,760.00. On 2 May 1973 his bid was
judicially confirmed. A deficiency was
claimed and to satisfy it another
execution sale was conducted, and again
the highest bidder was Amonoy at
P12,137.50.
Included in those sold was the lot on
which the Gutierrez spouses had their
house.
More than a year after the Decision in
Civil Case No. 12726 was rendered, the
said decedents heirs filed on 19
December 1973 before the CFI of Pasig,
Rizal[,] Civil Case No. 18731 entitled
Maria Penano, et al vs. Sergio Amonoy,
et al, a suit for the annulment thereof.
The case was dismissed by the CFI on 7
November 1977, and this was affirmed
by the Court of Appeals on 22 July 1981.
Thereafter, the CFI on 25 July 1985
issued a Writ of Possession and
pursuant to which a notice to vacate was
made on 26 August 1985. On Amonoys
motion of 24 April 1986, the Orders of 25
April 1986 and 6 May 1986 were issued
for the demolition of structures in the said
lots, including the house of the Gutierrez
spouses.
On 27 September 1985 the petition
entitled David Fornilda, et al vs Branch
164 RTC IVth Pasig, Deputy Sheriff
Joaquin Antonil and Atty. Sergio
Amonoy, G.R. No. L-72306, was filed
before the Supreme Court. Among the
petitioners was the plaintiff-appellant
Angela Gutierrez. On a twin Musiyun
(Mahigpit na Musiyon Para Papanagutin
Kaugnay ng Paglalapastangan, and
Musiyung Makahingi ng Utos sa
Pagpapapigil ng Pagpapagiba at
Pananagutin sa Paglalapastangan) with
full titles as fanciful and elongated as
their Petisyung (Petisyung Makapagsuri
Taglay and Pagpigil ng Utos), a
temporary restraining order was granted
on 2 June 1986 enjoining the demolition
of the petitioners houses.
Then on 5 October 1988 a Decision was
rendered in the said G.R. No. L-72306
disposing that:
WHEREFORE, Certiorari is granted; the
Order of respondent Trial Court, dated 25
July 1985, granting a Writ of Possession,
as well as its Orders, dated 25 April 1986
and 16 May 1986, directing and
authorizing respondent Sheriff to
demolish the houses of petitioners
Angela and Leocadia Fornilda are
hereby set aside, and the Temporary
Restraining Order heretofore issued, is
made permanent. The six (6) parcels of
land herein controverted are hereby
ordered returned to petitioners unless
some of them have been conveyed to
innocent third persons.[5]
But by the time the Supreme Court
promulgated the above-mentioned
Decision, respondents house had
already been destroyed, supposedly in
accordance with a Writ of Demolition
ordered by the lower court.
Thus, a Complaint for damages in
connection with the destruction of their
house was filed by respondents against
petitioner before the RTC on December
15, 1989.
In its January 27, 1993 Decision, the
RTC dismissed respondents suit. On
appeal, the CA set aside the lower courts
ruling and ordered petitioner to pay
respondents P250,000 as actual
damages. Petitioner then filed a Motion
for Reconsideration, which was also
denied.
Hence, this recourse.[6]
The Issue
In his Memorandum,[7] petitioner
submits this lone issue for our
consideration:
Whether or not the Court of Appeals was
correct in deciding that the petitioner
[was] liable to the respondents for
damages[8]
The Courts Ruling
The Petition has no merit.
Main Issue: Petitioners Liability
Well-settled is the maxim that damage
resulting from the legitimate exercise of a
persons rights is a loss without injury --
damnum absque injuria -- for which the
law gives no remedy.[9] In other words,
one who merely exercises ones rights
does no actionable injury and cannot be
held liable for damages.
Petitioner invokes this legal precept in
arguing that he is not liable for the
demolition of respondents house. He
maintains that he was merely acting in
accordance with the Writ of Demolition
ordered by the RTC.
We reject this submission. Damnum
absque injuria finds no application to this
case.
True, petitioner commenced the
demolition of respondents house on May
30, 1986 under the authority of a Writ of
Demolition issued by the RTC. But the
records show that a Temporary
Restraining Order (TRO), enjoining the
demolition of respondents house, was
issued by the Supreme Court on June 2,
1986. The CA also found, based on the
Certificate of Service of the Supreme
Court process server, that a copy of the
TRO was served on petitioner himself on
June 4, 1986.
Petitioner, however, did not heed the
TRO of this Court. We agree with the CA
that he unlawfully pursued the demolition
of respondents house well until the
middle of 1987. This is clear from
Respondent Angela Gutierrezs
testimony. The appellate court quoted
the following pertinent portion
thereof:[10]
Q. On May 30, 1986, were they able to
destroy your house?
A. Not all, a certain portion only
xxxxxxxxx
Q. Was your house completely
demolished?
A. No, sir.
Q. How about the following day?
A. It was completely demolished
xxxxxxxxx
Q. Until when[,] Mrs. Witness?
A. Until 1987.
Q. About what month of 1987?
A. Middle of the year.
Q. Can you tell the Honorable Court who
completed the demolition?
A. The men of Fiscal Amonoy.[11]
The foregoing disproves the claim of
petitioner that the demolition, which
allegedly commenced only on May 30,
1986, was completed the following day.
It likewise belies his allegation that the
demolitions had already ceased when he
received notice of the TRO.
Although the acts of petitioner may have
been legally justified at the outset, their
continuation after the issuance of the
TRO amounted to an insidious abuse of
his right. Indubitably, his actions were
tainted with bad faith. Had he not insisted
on completing the demolition,
respondents would not have suffered the
loss that engendered the suit before the
RTC. Verily, his acts constituted not only
an abuse of a right, but an invalid
exercise of a right that had been
suspended when he received the TRO
from this Court on June 4, 1986. By then,
he was no longer entitled to proceed with
the demolition.
A commentator on this topic explains:
The exercise of a right ends when the
right disappears, and it disappears when
it is abused, especially to the prejudice of
others. The mask of a right without the
spirit of justice which gives it life, is
repugnant to the modern concept of
social law. It cannot be said that a person
exercises a right when he unnecessarily
prejudices another x x x. Over and above
the specific precepts of positive law are
the supreme norms of justice x x x; and
he who violates them violates the law.
For this reason, it is not permissible to
abuse our rights to prejudice others.[12]
Likewise, in Albenson Enterprises Corp.
v. CA,[13] the Court discussed the
concept of abuse of rights as follows:
Article 19, known to contain what is
commonly referred to as the principle of
abuse of rights, sets certain standards
which may be observed not only in the
exercise of ones rights but also in the
performance of ones duties. These
standards are the following: to act with
justice; to give everyone his due; and to
observe honesty and good faith. The law,
therefore, recognizes the primordial
limitation on all rights: that in their
exercise, the norms of human conduct
set forth in Article 19 must be observed.
A right, though by itself legal because
recognized or granted by law as such,
may nevertheless become the source of
some illegality. When a right is exercised
in a manner which does not conform with
norms enshrined in Article 19 and results
in damage to another, a legal wrong is
thereby committed for which the
wrongdoer must be held responsible x x
x.
Clearly then, the demolition of
respondents house by petitioner, despite
his receipt of the TRO, was not only an
abuse but also an unlawful exercise of
such right. In insisting on his alleged
right, he wantonly violated this Courts
Order and wittingly caused the
destruction of respondents house.
Obviously, petitioner cannot invoke
damnum absque injuria, a principle
premised on the valid exercise of a
right.[14] Anything less or beyond such
exercise will not give rise to the legal
protection that the principle accords. And
when damage or prejudice to another is
occasioned thereby, liability cannot be
obscured, much less abated.
In the ultimate analysis, petitioners
liability is premised on the obligation to
repair or to make whole the damage
caused to another by reason of ones act
or omission, whether done intentionally
or negligently and whether or not
punishable by law.[15]
WHEREFORE, the Petition is DENIED
and the appealed Decision AFFIRMED.
Costs against petitioner.
SO ORDERED. G.R. No. 101749
REGALADO, J.:
Petitioner appeals for the reversal of the
decision[1] of respondent Court of
Appeals promulgated on May 17, 1991 in
CA-G.R. CV No. 07054, entitled
"Zenaida B. Cirilo vs. Conrado Bunag,
Sr. and Conrado Bunag, Jr.," which
affirmed in toto the decision of the
Regional Trial Court, Branch XI at
Bacoor, Cavite, and, implicitly,
respondent court's resolution of
September 3, 1991[2] denying
petitioner's motion for reconsideration.
Respondent court having assiduously
discussed the salient antecedents of this
case, vis-a-vis the factual findings of the
court below, the evidence of record and
the contentions of the parties, it is
appropriate that its findings, which we
approve and adopt, be extensively
reproduced hereunder:
"Based on the evidence on record, the
following facts are considered
indisputable. On the afternoon of
September 8, 1973, defendant-appellant
Bunag, Jr. brought plaintiff-appellant to a
motel or hotel where they had sexual
intercourse. Later that evening, said
defendant-appellant brought plaintiff-
appellant to the house of his
grandmother Juana de Leon in
Pamplona, Las Piñas, Metro Manila,
where they lived together as husband
and wife for 21 days, or until September
29, 1973. On September 10, 1973,
defendant-appellant Bunag, Jr. and
plaintiff-appellant filed their respective
applications for a marriage license with
the Office of the Local Civil Registrar of
Bacoor, Cavite. On October 1, 1973,
after leaving plaintiff-appellant,
defendant-appellant Bunag, Jr. filed an
affidavit withdrawing his application for a
marriage license.
"Plaintiff-appellant contends that on the
afternoon of September 8, 1973,
defendant-appellant Bunag, Jr., together
with an unidentified male companion,
abducted her in the vicinity of the San
Juan de Dios Hospital in Pasay City and
brought her to a motel where she was
raped. The court a quo, which adopted
her evidence, summarized the same
which we paraphrased as follows:
"Plaintiff was 26 years old on November
5, 1974 when she testified, single and
had finished a college course in
Commerce (t.s.n., p. 4, Nov. 5, 1974). It
appears that on September 8, 1973, at
about 4:00 o'clock in the afternoon, while
she was walking along Figueras Street,
Pasay City on her way to the San Juan
de Dios Canteen to take her snack,
defendant, Conrado Bunag, Jr., came
riding in a car driven by a male
companion. Plaintiff and defendant
Bunag, Jr. were sweethearts, but two
weeks before September 8, 1973, they
had a quarrel, and Bunag, Jr., wanted to
talk matters over with plaintiff, so that he
invited her to take their merienda at the
Aristocrat Restaurant in Manila instead of
at the San Juan de Dios Canteen, to
which plaintiff obliged, as she believed in
his sincerity (t.s.n., pp. 8-10, Nov. 5,
1974).
'Plaintiff rode in the car and took the front
seat beside the driver while Bunag, Jr.
seated himself by her right side. The car
travelled north on its way to the Aristocrat
Restaurant but upon reaching San Juan
Street in Pasay City, it turned abruptly to
the right, to which plaintiff protested, but
which the duo ignored and instead
threatened her not to make any noise as
they were ready to die and would bump
the car against the post if she persisted.
Frightened and silenced, the car
travelled its course thru F.B. Harrison
Boulevard until they reached a motel.
Plaintiff was then pulled and dragged
from the car against her will, and amidst
her cries and pleas. In spite of her
struggle she was no match to the joint
strength of the two male combatants
because of her natural weakness being a
woman and her small stature. Eventually,
she was brought inside the hotel where
the defendant Bunag, Jr. deflowered her
against her will and consent. She could
not fight back and repel the attack
because after Bunag, Jr. had forced her
to lie down and embraced her, his
companion held her two feet, removed
her panty, after which he left. Bunag, Jr.
threatened her that he would ask his
companion to come back and hold her
feet if she did not surrender her
womanhood to him, thus he succeeded
in feasting on her virginity. Plaintiff
described the pains she felt and how
blood came out of her private parts after
her vagina was penetrated by the penis
of the defendant Bunag, Jr. (t.s.n. pp. 17-
24, Nov. 5, 1974).
'After that outrage on her virginity,
plaintiff asked Bunag, Jr. once more to
allow her to go home but the latter would
not consent and stated that he would
only let her go after they were married as
he intended to marry her, so much so
that she promised not to make any
scandal and to marry him. Thereafter,
they took a taxi together after the car that
they used had already gone, and
proceeded to the house of Juana de
Leon, Bunag, Jr.'s grandmother in
Pamplona, Las Piñas, Metro Manila
where they arrived at 9:30 o'clock in the
evening (t.s.n., p. 26, Nov. 5, 1974). At
about ten (10) o'clock that same evening,
defendant Conrado Bunag, Sr., father of
Bunag, Jr. arrived and assured plaintiff
that the following day which was a
Monday, she and Bunag, Jr. would go to
Bacoor, to apply for a marriage license,
which they did. They filed their
applications for marriage license
(Exhibits 'A' and 'C') and after that
plaintiff and defendant Bunag, Jr.
returned to the house of Juana de Leon
and lived there as husband and wife from
September 8, 1973 to September 29,
1973.
'On September 29, 1973 defendant
Bunag, Jr. left and never returned,
humiliating plaintiff and compelled her to
go back to her parents on October 3,
1973. Plaintiff was ashamed when she
went home and could not sleep and eat
because of the deception done against
her by defendants-appellants (t.s.n., p.
35, Nov. 5, 1974).
'The testimony of plaintiff was
corroborated in toto by her uncle,
Vivencio Bansagan who declared that on
September 8, 1973 when plaintiff failed
to arrive home at 9:00 o'clock in the
evening, his sister who is the mother of
plaintiff asked him to look for her but his
efforts proved futile, and he told his sister
that plaintiff might have married (baka
nag-asawa, t.s.n., pp. 5-6, March 18,
1976). However, in the afternoon of the
next day (Sunday), his sister told him that
Francisco Cabrera, accompanied by
barrio captain Jacinto Manalili of Ligas,
Bacoor, Cavite, informed her that plaintiff
and Bunag, Jr. were in Cabrera's house,
so that her sister requested him to go and
see the plaintiff, which he did, and at the
house of Mrs. Juana de Leon in
Pamplona, Las Piñas, Metro Manila he
met defendant Conrado Bunag, Sr., who
told him, 'Pare, the children are here
already. Let us settle the matter and have
them married'.
'He conferred with plaintiff who told him
that as she had already lost her honor,
she would bear her sufferings as Boy
Bunag, Jr. and his father promised they
would be married.'
"Defendants-appellants, on the other
hand, deny that defendant-appellant
Conrado Bunag, Jr. abducted and raped
plaintiff-appellant on September 8, 1973.
On the contrary, plaintiff-appellant and
defendant-appellant Bunag, Jr. eloped
on that date because of the opposition of
the latter's father to their relationship.
"Defendants-appellants claim that
defendant-appellant Bunag, Jr. and
plaintiff-appellant had earlier made plans
to elope and get married, and this fact
was known to their friends, among them,
Architect Chito Rodriguez. The couple
made good their plans to elope on the
afternoon of September 8, 1973, when
defendants-appellant Bunag, Jr.,
accompanied by his friend Guillermo
Ramos, Jr., met plaintiff-appellant and
her officemate named Lydia in the vicinity
of the San Juan de Dios Hospital. The
foursome then proceeded to (the)
aforesaid hospital's canteen where they
had some snacks. Later, Guillermo
Ramos, Jr. took Lydia to Quirino Avenue
where she could get a ride home, thereby
leaving the defendant-appellant Bunag,
Jr. and plaintiff-appellant alone.
According to defendant-appellant Bunag,
Jr., after Guillermo Ramos, Jr., and Lydia
left, he and plaintiff-appellant took a taxi
to the Golden Gate and Flamingo Hotels
where they tried to get a room, but these
were full. They finally got a room at the
Holiday Hotel, where defendant-
appellant registered using his real name
and residence certificate number. Three
hours later, the couple checked out of the
hotel and proceeded to the house of
Juana de Leon at Pamplona, Las Piñas,
where they stayed until September 19,
1973. Defendant-appellant claims that
bitter disagreements with plaintiff-
appellant over money and the threats
made to his life prompted him to break off
their plan to get married.
"During this period, defendant-appellant
Bunag, Sr. denied having gone to the
house of Juan de Leon and telling
plaintiff-appellant that she would be wed
to defendant-appellant Bunag, Jr. In fact,
he phoned Atty. Conrado Adreneda,
member of the board of directors of
Mandala Corporation, defendant-
appellant Bunag, Jr.'s employer, three
times between the evening of September
8, 1973 and September 9, 1973 inquiring
as to the whereabouts of his son. He
came to know about his son's
whereabouts when he was told of the
couple's elopement late in the afternoon
of September 9, 1973 by his mother
Candida Gawaran. He likewise denied
having met relatives and emissaries of
plaintiff-appellant and agreeing to her
marriage to his son.[3]
A complaint for damages for alleged
breach of promise to marry was filed by
herein private respondent Zenaida B.
Cirilo against petitioner Conrado Bunag,
Jr. and his father, Conrado Bunag, Sr.,
as Civil Case No. N-2028 of the Regional
Trial Court, Branch XIX at Bacoor,
Cavite. On August 20, 1983, on a finding,
inter alia, that petitioner had forcibly
abducted and raped private respondent,
the trial court rendered a decision[4]
ordering petitioner Bunag, Jr. to pay
private respondent P80,000.00 as moral
damages, P20,000.00 as exemplary
damages, P20,000.00 by way of
temperate damages, and P10,000.00 for
and as attorney's fees, as well as the
costs of suit. Defendant Conrado Bunag,
Sr. was absolved from any and all
liability.
Private respondent appealed that portion
of the lower court's decision disculpating
Conrado Bunag, Sr. from civil liability in
this case. On the other hand, the
Bunags, as defendants-appellants,
assigned in their appeal several errors
allegedly committed by the trial court,
which were summarized by respondent
court as follows: (1) in finding that
defendant-appellant Conrado Bunag, Jr.
forcibly abducted and raped plaintiff-
appellant; (2) in finding that defendants-
appellants promised plaintiff-appellant
that she would be wed to defendant-
appellant Conrado Bunag, Jr.; and (3) in
awarding plaintiff-appellant damages for
the breach of defendants-appellants'
promise of marriage.[5]
As stated at the outset, on May 17, 1991
respondent Court of Appeals rendered
judgment dismissing both appeals and
affirming in toto the decision of the trial
court. His motion for reconsideration
having been denied, petitioner Bunag, Jr.
is before us on a petition for review,
contending that (1) respondent court
failed to consider vital exhibits,
testimonies and incidents for petitioner's
defense, resulting in the
misapprehension of facts and violative of
the law on preparation of judgments; and
(2) it erred in the application of the proper
law and jurisprudence by holding that
there was forcible abduction with rape,
not just a simple elopement and an
agreement to marry, and in the award of
excessive damages.[6]
Petitioner Bunag, Jr. first contends that
both the trial and appellate courts failed
to take into consideration the alleged fact
that he and private respondent had
agreed to marry, and that there was no
case of forcible abduction with rape, but
one of simple elopement and agreement
to marry. It is averred that the agreement
to marry has been sufficiently proven by
the testimonies of the witnesses for both
parties and the exhibits presented in
court.
This submission, therefore, clearly
hinges on the credibility of the witnesses
and evidence presented by the parties
and the weight accorded thereto in the
factual findings of the trial court and the
Court of Appeals. In effect, what
petitioner would want this Court to do is
to evaluate and analyze anew the
evidence, both testimonial and
documentary, presented before and
calibrated by the trial court, and as
further meticulously reviewed and
discussed by respondent court.
The issue raised primarily and
ineluctably involves questions of fact. We
are, therefore, once again constrained to
stress the well-entrenched statutory and
jurisprudential mandate that findings of
fact of the Court of Appeals are, as a rule,
conclusive upon this Court. Only
questions of law, distinctly set forth, may
be raised in a petition for review on
certiorari under Rule 45 of the Rules of
Court, subject to clearly settled
exceptions in case law.
Our jurisdiction in cases brought to us
from the Court of Appeals is limited to
reviewing and revising the errors of law
imputed to the latter, its findings of fact
being conclusive. This Court has
emphatically declared that it is not its
function to analyze or weigh such
evidence all over again, its jurisdiction
being limited to reviewing errors of law
that might have been committed by the
lower court. Barring, therefore, a showing
that the findings complained of are totally
devoid of support in the record, or that
they are so glaringly erroneous as to
constitute serious abuse of discretion,
such findings must stand, for this Court is
not expected or required to examine or
contrast the oral and documentary
evidence submitted by the parties.[7]
Neither does the instant case reveal any
feature falling within any of the
exceptions which under our decisional
rules may warrant a review of the factual
findings of the Court of Appeals. On the
foregoing considerations and our review
of the records, we sustain the holding of
respondent court in favor of private
respondent.
Petitioner likewise asserts that since the
action involves a breach of promise to
marry, the trial court erred in awarding
damages.
It is true that in this jurisdiction, we
adhere to the time-honored rule that an
action for breach of promise to marry has
no standing in the civil law, apart from the
right to recover money or property
advanced by the plaintiff upon the faith of
such promise.[8] Generally, therefore, a
breach of promise to marry per se is not
actionable, except where the plaintiff has
actually incurred expenses for the
wedding and the necessary incidents
thereof.
However, the award of moral damages is
allowed in cases specified in or
analogous to those provided in Article
2219 of the Civil Code. Correlatively,
under Article 21 of said Code, in relation
to paragraph 10 of said Article 2219, any
person who wilfully causes loss or injury
to another in a manner that is contrary to
morals, good customs or public policy
shall compensate the latter for moral
damages.[9] Article 21 was adopted to
remedy the countless gaps in the
statutes which leave so many victims of
moral wrongs helpless even though they
have actually suffered material and moral
injury, and is intended to vouchsafe
adequate legal remedy for that untold
number of moral wrongs which is
impossible for human foresight to
specifically provide for in the statutes.[10]
Under the circumstances obtaining in the
case at bar, the acts of petitioner in
forcibly abducting private respondent
and having carnal knowledge with her
against her will, and thereafter promising
to marry her in order to escape criminal
liability, only to thereafter renege on such
promise after cohabiting with her for
twenty-one days, irremissibly constitute
acts contrary to morals and good
customs. These are grossly insensate
and reprehensible transgressions which
indisputably warrant and abundantly
justify the award of moral and exemplary
damages, pursuant to Article 21 in
relation to paragraphs 3 and 10, Article
2219, and Articles 2229 and 2234 of the
Civil Code.
Petitioner would, however, belabor the
fact that said damages were awarded by
the trial court on the basis of a finding that
he is guilty of forcible abduction with
rape, despite the prior dismissal of the
complaint therefor filed by private
respondent with the Pasay City Fiscal's
Office.
Generally, the basis of civil liability from
crime is the fundamental postulate of our
law that every person criminally liable for
a felony is also civilly liable. In other
words, criminal liability will give rise to
civil liability ex delicto only if the same
felonious act or omission results in
damage or injury to another and is the
direct and proximate cause thereof.[11]
Hence, extinction of the penal action
does not carry with it the extinction of civil
liability unless the extinction proceeds
from a declaration in a final judgment that
the fast from which the civil might arise
did not exist.[12]
In the instant case, the dismissal of the
complaint for forcible abduction with rape
was by mere resolution of the fiscal at the
preliminary investigation stage. There is
no declaration in a final judgment that the
fact from which the civil case might arise
did not exist. Consequently, the
dismissal did not in any way affect the
right of herein private respondent to
institute a civil action arising from the
offense because such preliminary
dismissal of the penal action did not carry
with it the extinction of the civil action.
The reason most often given for this
holding is that the two proceedings
involved are not between the same
parties. Furthermore, it has long been
emphasized, with continuing validity up
to now, that there are different rules as to
the competency of witnesses and the
quantum of evidence in criminal and civil
proceedings. In a criminal action, the
State must prove its case by evidence
which shows the guilt of the accused
beyond reasonable doubt, while in a civil
action it is sufficient for the plaintiff to
sustain his cause by preponderance of
evidence only.[13] Thus, in Rillon, et al.
vs. Rillon,[14] we stressed that it is not
now necessary that a criminal
prosecution for rape be first instituted
and prosecuted to final judgment before
a civil action based on said offense in
favor of the offended woman can likewise
be instituted and prosecuted to final
judgment.
WHEREFORE, the petition is hereby
DENIED for lack of merit, and the
assailed judgment and resolution are
hereby AFFIRMED.
SO ORDERED.
G.R. No. L-20089 December 26, 1964
BEATRIZ P. WASSMER, plaintiff-
appellee,
vs.
FRANCISCO X. VELEZ, defendant-
appellant.
Jalandoni & Jamir for defendant-
appellant.
Samson S. Alcantara for plaintiff-
appellee.
BENGZON, J.P., J.:
The facts that culminated in this case
started with dreams and hopes, followed
by appropriate planning and serious
endeavors, but terminated in frustration
and, what is worse, complete public
humiliation.
Francisco X. Velez and Beatriz P.
Wassmer, following their mutual promise
of love, decided to get married and set
September 4, 1954 as the big day. On
September 2, 1954 Velez left this note for
his bride-to-be:
Dear Bet —
Will have to postpone wedding — My
mother opposes it. Am leaving on the
Convair today.
Please do not ask too many people about
the reason why — That would only create
a scandal.
Paquing
But the next day, September 3, he sent
her the following telegram:
NOTHING CHANGED REST ASSURED
RETURNING VERY SOON
APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was
he heard from again.
Sued by Beatriz for damages, Velez filed
no answer and was declared in default.
Plaintiff adduced evidence before the
clerk of court as commissioner, and on
April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff
P2,000.00 as actual damages;
P25,000.00 as moral and exemplary
damages; P2,500.00 as attorney's fees;
and the costs.
On June 21, 1955 defendant filed a
"petition for relief from orders, judgment
and proceedings and motion for new trial
and reconsideration." Plaintiff moved to
strike it cut. But the court, on August 2,
1955, ordered the parties and their
attorneys to appear before it on August
23, 1955 "to explore at this stage of the
proceedings the possibility of arriving at
an amicable settlement." It added that
should any of them fail to appear "the
petition for relief and the opposition
thereto will be deemed submitted for
resolution."
On August 23, 1955 defendant failed to
appear before court. Instead, on the
following day his counsel filed a motion
to defer for two weeks the resolution on
defendants petition for relief. The
counsel stated that he would confer with
defendant in Cagayan de Oro City — the
latter's residence — on the possibility of
an amicable element. The court granted
two weeks counted from August 25,
1955.
Plaintiff manifested on June 15, 1956
that the two weeks given by the court had
expired on September 8, 1955 but that
defendant and his counsel had failed to
appear.
Another chance for amicable settlement
was given by the court in its order of July
6, 1956 calling the parties and their
attorneys to appear on July 13, 1956.
This time. however, defendant's counsel
informed the court that chances of
settling the case amicably were nil.
On July 20, 1956 the court issued an
order denying defendant's aforesaid
petition. Defendant has appealed to this
Court. In his petition of June 21, 1955 in
the court a quo defendant alleged
excusable negligence as ground to set
aside the judgment by default.
Specifically, it was stated that defendant
filed no answer in the belief that an
amicable settlement was being
negotiated.
A petition for relief from judgment on
grounds of fraud, accident, mistake or
excusable negligence, must be duly
supported by an affidavit of merits stating
facts constituting a valid defense. (Sec.
3, Rule 38, Rules of Court.) Defendant's
affidavit of merits attached to his petition
of June 21, 1955 stated: "That he has a
good and valid defense against plaintiff's
cause of action, his failure to marry the
plaintiff as scheduled having been due to
fortuitous event and/or circumstances
beyond his control." An affidavit of merits
like this stating mere conclusions or
opinions instead of facts is not valid.
(Cortes vs. Co Bun Kim, L-3926, Oct. 10,
1951; Vaswani vs. P. Tarrachand Bros.,
L-15800, December 29, 1960.)
Defendant, however, would contend that
the affidavit of merits was in fact
unnecessary, or a mere surplusage,
because the judgment sought to be set
aside was null and void, it having been
based on evidence adduced before the
clerk of court. In Province of Pangasinan
vs. Palisoc, L-16519, October 30, 1962,
this Court pointed out that the procedure
of designating the clerk of court as
commissioner to receive evidence is
sanctioned by Rule 34 (now Rule 33) of
the Rules of Court. Now as to
defendant's consent to said procedure,
the same did not have to be obtained for
he was declared in default and thus had
no standing in court (Velez vs. Ramas,
40 Phil. 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).
In support of his "motion for new trial and
reconsideration," defendant asserts that
the judgment is contrary to law. The
reason given is that "there is no provision
of the Civil Code authorizing" an action
for breach of promise to marry. Indeed,
our ruling in Hermosisima vs. Court of
Appeals (L-14628, Sept. 30, 1960), as
reiterated in Estopa vs. Biansay (L-
14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an
actionable wrong. We pointed out that
Congress deliberately eliminated from
the draft of the new Civil Code the
provisions that would have it so.
It must not be overlooked, however, that
the extent to which acts not contrary to
law may be perpetrated with impunity, is
not limitless for Article 21 of said Code
provides that "any person who wilfully
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."
The record reveals that on August 23,
1954 plaintiff and defendant applied for a
license to contract marriage, which was
subsequently issued (Exhs. A, A-1).
Their wedding was set for September 4,
1954. Invitations were printed and
distributed to relatives, friends and
acquaintances (Tsn., 5; Exh. C). The
bride-to-be's trousseau, party drsrses
and other apparel for the important
occasion were purchased (Tsn., 7-8).
Dresses for the maid of honor and the
flower girl were prepared. A matrimonial
bed, with accessories, was bought.
Bridal showers were given and gifts
received (Tsn., 6; Exh. E). And then, with
but two days before the wedding,
defendant, who was then 28 years old,:
simply left a note for plaintiff stating: "Will
have to postpone wedding — My mother
opposes it ... " He enplaned to his home
city in Mindanao, and the next day, the
day before the wedding, he wired
plaintiff: "Nothing changed rest assured
returning soon." But he never returned
and was never heard from again.
Surely this is not a case of mere breach
of promise to marry. As stated, mere
breach of promise to marry is not an
actionable wrong. But to formally set a
wedding and go through all the above-
described preparation and publicity, only
to walk out of it when the matrimony is
about to be solemnized, is quite different.
This is palpably and unjustifiably contrary
to good customs for which defendant
must be held answerable in damages in
accordance with Article 21 aforesaid.
Defendant urges in his afore-stated
petition that the damages awarded were
excessive. No question is raised as to the
award of actual damages. What
defendant would really assert hereunder
is that the award of moral and exemplary
damages, in the amount of P25,000.00,
should be totally eliminated.
Per express provision of Article 2219 (10)
of the New Civil Code, moral damages
are recoverable in the cases mentioned
in Article 21 of said Code. As to
exemplary damages, defendant
contends that the same could not be
adjudged against him because under
Article 2232 of the New Civil Code the
condition precedent is that "the
defendant acted in a wanton, fraudulent,
reckless, oppressive, or malevolent
manner." The argument is devoid of
merit as under the above-narrated
circumstances of this case defendant
clearly acted in a "wanton ... , reckless
[and] oppressive manner." This Court's
opinion, however, is that considering the
particular circumstances of this case,
P15,000.00 as moral and exemplary
damages is deemed to be a reasonable
award.
PREMISES CONSIDERED, with the
above-indicated modification, the lower
court's judgment is hereby affirmed, with
costs.
[G.R. No. 119178. June 20, 1997]
LINA LIM LAO, petitioner, vs. COURT
OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
May an employee who, as part of her
regular duties, signs blank corporate
checks -- with the name of the payee and
the amount drawn to be filled later by
another signatory -- and, therefore, does
so without actual knowledge of whether
such checks are funded, be held
criminally liable for violation of Batas
Pambansa Bilang 22 (B.P. 22), when
checks so signed are dishonored due to
insufficiency of funds? Does a notice of
dishonor sent to the main office of the
corporation constitute a valid notice to
the said employee who holds office in a
separate branch and who had no actual
knowledge thereof? In other words, is
constructive knowledge of the
corporation, but not of the signatory-
employee, sufficient?
These are the questions raised in the
petition filed on March 21, 1995 assailing
the Decision[1] of Respondent Court of
Appeals[2] promulgated on December 9,
1994 in CA-G.R. CR No. 14240
dismissing the appeal of petitioner and
affirming the decision dated September
26, 1990 in Criminal Case Nos. 84-26967
to 84-26969 of the Regional Trial Court
of Manila, Branch 33. The dispositive
portion of the said RTC decision affirmed
by the respondent appellate court
reads:[3]
WHEREFORE, after a careful
consideration of the evidence presented
by the prosecution and that of the
defense, the Court renders judgment as
follows:
In Criminal Case No. 84-26969 where no
evidence was presented by the
prosecution notwithstanding the fact that
there was an agreement that the cases
be tried jointly and also the fact that the
accused Lina Lim Lao was already
arraigned, for failure of the prosecution to
adduce evidence against the accused,
the Court hereby declares her innocent
of the crime charged and she is hereby
acquitted with cost de oficio.
For Criminal Case No. 84-26967, the
Court finds the accused Lina Lim Lao
guilty beyond reasonable doubt of the
crime charged and is hereby sentenced
to suffer the penalty of ONE (1) YEAR
imprisonment and to pay a fine of
P150,000.00 without subsidiary
imprisonment in case of insolvency.
For Criminal Case No. 84-26968, the
Court finds the accused Lina Lim Lao
guilty beyond reasonable doubt of the
crime charged and is hereby sentenced
to suffer the penalty of ONE (1) YEAR
imprisonment and to pay a fine of
P150,000.00 without subsidiary
imprisonment in case of of (sic)
insolvency.
For the two cases the accused is ordered
to pay the cost of suit.
The cash bond put up by the accused for
her provisional liberty in Criminal Case
No. 84-26969 where she is declared
acquitted is hereby ordered cancelled
(sic).
With reference to the accused Teodulo
Asprec who has remained at large, in
order that the cases as against him may
not remain pending in the docket for an
indefinite period, let the same be
archived without prejudice to its
subsequent prosecution as soon as said
accused is finally apprehended.
Let a warrant issue for the arrest of the
accused Teodulo Asprec which warrant
need not be returned to this Court until
the accused is finally arrested.
SO ORDERED.
The Facts
Version of the Prosecution
The facts are not disputed. We thus lift
them from the assailed Decision, as
follows:
Appellant (and now Petitioner Lina Lim
Lao) was a junior officer of Premiere
Investment House (Premiere) in its
Binondo Branch. As such officer, she
was authorized to sign checks for and in
behalf of the corporation (TSN, August
16, 1990, p. 6). In the course of the
business, she met complainant Father
Artelijo Pelijo, the provincial treasurer of
the Society of the Divine Word through
Mrs. Rosemarie Lachenal, a trader for
Premiere. Father Palijo was authorized
to invest donations to the society and had
been investing the societys money with
Premiere (TSN, June 23, 1987, pp. 5, 9-
10). Father Palijo had invested a total of
P514,484.04, as evidenced by the
Confirmation of Sale No. 82-6994 (Exh
A) dated July 8, 1993. Father Palijo was
also issued Traders Royal Bank (TRB)
checks in payment of interest, as follows:
Check Date Amount
299961 Oct. 7, 1993 (sic) P150,000.00
(Exh. B)
299962 Oct. 7, 1983 P150,000.00 (Exh.
C)
323835 Oct. 7, 1983 P 26,010.73
All the checks were issued in favor of
Artelijo A. Palijo and signed by appellant
(herein petitioner) and Teodulo Asprec,
who was the head of operations. Further
evidence of the transaction was the
acknowledgment of postdated checks
dated July 8, 1983 (Exh . D) and the cash
disbursement voucher (Exh. F, TSN,
supra, at pp. 11-16).
When Father Palijo presented the checks
for encashment, the same were
dishonored for the reason Drawn Against
Insufficient Funds (DAIF). Father Palijo
immediately made demands on premiere
to pay him the necessary amounts. He
first went to the Binondo Branch but was
referred to the Cubao Main Branch
where he was able to talk with the
President, Mr. Cario. For his efforts, he
was paid P5,000.00. Since no other
payments followed, Father Palijo wrote
Premiere a formal letter of demand.
Subsequently, Premiere was placed
under receivership (TSN, supra, at pp.
16-19).[4]
Thereafter, on January 24, 1984, Private
Complainant Palijo filed an affidavit-
complaint against Petitioner Lina Lim Lao
and Teodulo Asprec for violation of B.P.
22. After preliminary investigation,[5]
three Informations charging Lao and
Asprec with the offense defined in the
first paragraph of Section 1, B.P. 22 were
filed by Assistant Fiscal Felix S. Caballes
before the trial court on May 11, 1984,[6]
worded as follows:
1. In Criminal Case No. 84-26967:
That on or about October 7, 1983 in the
City of Manila, Philippines, the said
accused did then and there wilfully and
unlawfully draw and issue to Artelijo A.
Palijo to apply on account or for value a
Traders Royal Bank Check No. 299962
for P150,000.00 payable to Fr. Artelijo A.
Palijo dated October 7, 1983 well
knowing that at the time of issue he/she
did not have sufficient funds in or credit
with the drawee bank for full payment of
the said check upon its presentment as
in fact the said check, when presented
within ninety (90) days from the date
thereof, was dishonored by the drawee
bank for the reason: Insufficient Funds;
that despite notice of such dishonor, said
accused failed to pay said Artelijo A.
Palijo the amount of the said check or to
make arrangement for full payment of the
same within five (5) banking days from
receipt of said notice.
CONTRARY TO LAW.
2. In Criminal Case No. 84-26968:
That on or about October 7, 1983 in the
City of Manila, Philippines, the said
accused did then and there wilfully and
unlawfully draw and issue to Artelijo A.
Palijo to apply on account or for value a
Traders Royal Bank Check No. 299961
for P150,000.00 payable to Fr. Artelijo A.
Palijo dated October 7, 83 well knowing
that at the time of issue he/she did not
have sufficient funds in or credit with the
drawee bank for full payment of the said
check upon its presentment as in fact the
said check, when presented within ninety
(90) days from the date thereof, was
dishonored by the drawee bank for the
reason: Insuficient Funds; that despite
notice of such dishonor, said accused
failed to pay said Artelijo A. Palijo the
amount of the said check or to make
arrangement for full payment of the same
within five (5) banking days from receipt
of said notice.
CONTRARY TO LAW.
3. And finally in Criminal Case No. 84-
26969:
That on or about July 8, 1983 in the City
of Manila, Philippines, the said accused
did then and there wilfully and unlawfully
draw and issue to Artelijo A. Palijo to
apply on account for value a Traders
Royal Bank Check No. 323835 for
P26,010.03 payable to Fr. Artelijo A.
Palijo dated October 7, 1983 well
knowing that at the time of issue he/she
did not have sufficient funds in or credit
with the drawee bank for full payment of
the said check upon its presentment as
in fact the said check, when presented
within ninety (90) days from the date
thereof, was dishonored by the drawee
bank for the reason: Insufficient Funds;
that despite notice of such dishonor, said
accused failed to pay said Artelijo A.
Palijo the amount of the said check or to
make arrangement for full payment of the
same within five (5) banking days from
receipt of said notice.
CONTRARY TO LAW.
Upon being arraigned, petitioner
assisted by counsel pleaded not guilty.
Asprec was not arrested; he has
remained at large since the trial, and
even now on appeal.

After due trial, the Regional Trial Court
convicted Petitioner Lina Lim Lao in
Criminal Case Nos. 84-26967 and 84-
26968 but acquitted her in Criminal Case
No. 84-26969.[7] On appeal, the Court of
Appeals affirmed the decision of the trial
court.
Version of the Defense
Petitioner aptly summarized her version
of the facts of the case thus:
Petitioner Lina Lim Lao was, in 1983, an
employee of Premiere Financing
Corporation (hereinafter referred to as
the Corporation), a corporation engaged
in investment management, with
principal business office at Miami,
Cubao, Quezon City. She was a junior
officer at the corporation who was,
however, assigned not at its main branch
but at the corporations extension office in
(Binondo) Manila. (Ocampo, T.S.N., 16
August 1990, p. 14)
In the regular course of her duties as a
junior officer, she was required to co-sign
checks drawn against the account of the
corporation. The other co-signor was her
head of office, Mr. Teodulo Asprec. Since
part of her duties required her to be
mostly in the field and out of the office, it
was normal procedure for her to sign the
checks in blank, that is, without the
names of the payees, the amounts and
the dates of maturity. It was likewise Mr.
Asprec, as head of office, who alone
decided to whom the checks were to be
ultimately issued and delivered. (Lao,
T.S.N., 28 September 1989, pp. 9-11, 17,
19.)
In signing the checks as part of her duties
as junior officer of the corporation,
petitioner had no knowledge of the actual
funds available in the corporate account.
(Lao, T.S.N., 28 September 1989, p. 21)
The power, duty and responsibility of
monitoring and assessing the balances
against the checks issued, and funding
the checks thus issued, devolved on the
corporations Treasury Department in its
main office in Cubao, Quezon City,
headed then by the Treasurer, Ms.
Veronilyn Ocampo. (Ocampo, T.S.N., 19
July 1990, p. 4; Lao, T.S.N., 28
September 1989, pp. 21-23) All bank
statements regarding the corporate
checking account were likewise sent to
the main branch in Cubao, Quezon City,
and not in Binondo, Manila, where
petitioner was holding office. (Ocampo,
T.S.N., 19 July 1990, p. 24; Marqueses,
T.S.N., 22 November 1988, p. 8)
The foregoing circumstances attended
the issuance of the checks subject of the
instant prosecution.
The checks were issued to guarantee
payment of investments placed by
private complainant Palijo with Premiere
Financing Corporation. In his
transactions with the corporation, private
complainant dealt exclusively with one
Rosemarie Lachenal, a trader connected
with the corporation, and he never knew
nor in any way dealt with petitioner Lina
Lim Lao at any time before or during the
issuance of the delivery of the checks.
(Palijo, T.S.N., 23 June 1987, pp. 28-29,
32-34; Lao, T.S.N., 15 May 1990, p. 6;
Ocampo, T.S.N., p. 5) Petitioner Lina Lim
Lao was not in any way involved in the
transaction which led to the issuance of
the checks.
When the checks were co-signed by
petitioner, they were signed in advance
and in blank, delivered to the Head of
Operations, Mr. Teodulo Asprec, who
subsequently filled in the names of the
payee, the amounts and the
corresponding dates of maturity. After
Mr. Asprec signed the checks, they were
delivered to private complainant Palijo.
(Lao, T.S.N., 28 September 1989, pp. 8-
11, 17, 19; note also that the trial court in
its decision fully accepted the testimony
of petitioner [Decision of the Regional
Trial Court, p. 12], and that the Court of
Appeals affirmed said decision in toto)
Petitioner Lina Lim Lao was not in any
way involved in the completion, and the
subsequent delivery of the check to
private complainant Palijo.
At the time petitioner signed the checks,
she had no knowledge of the sufficiency
or insufficiency of the funds of the
corporate account. (Lao, T.S.N., 28
September 1989, p. 21) It was not within
her powers, duties or responsibilities to
monitor and assess the balances against
the issuance; much less was it within her
(duties and responsibilities) to make sure
that the checks were funded. Premiere
Financing Corporation had a Treasury
Department headed by a Treasurer, Ms.
Veronilyn Ocampo, which alone had
access to information as to account
balances and which alone was
responsible for funding the issued
checks. (Ocampo, T.S.N., 19 July 1990,
p. 4; Lao, T.S.N., 28 September 1990, p.
23) All statements of account were sent
to the Treasury Department located at
the main office in Cubao, Quezon City.
Petitioner was holding office at the
extension in Binondo Manila. (Lao,
T.S.N., 28 September 1989, p. 24-25)
Petitioner Lina Lim Lao did not have
knowledge of the insufficiency of the
funds in the corporate account against
which the checks were drawn.
When the checks were subsequently
dishonored, private complainant sent a
notice of said dishonor to Premier
Financing Corporation at its head office
in Cubao, Quezon City. (Please refer to
Exh. E; Palijo, T.S.N., 23 June 1987, p.
51) Private complainant did not send
notice of dishonor to petitioner. (Palijo,
T.S.N., 24 July 1987, p. 10) He did not
follow up his investment with petitioner.
(Id.) Private complainant never
contacted, never informed, and never
talked with, petitioner after the checks
had bounced. (Id., at p. 29) Petitioner
never had notice of the dishonor of the
checks subject of the instant prosecution.
The Treasurer of Premiere Financing
Corporation, Ms. Veronilyn Ocampo
testified that it was the head office in
Cubao, Quezon City, which received
notice of dishonor of the bounced
checks. (Ocampo, T.S.N., 19 July 1990,
pp. 7-8) The dishonor of the check came
in the wake of the assassination of the
late Sen. Benigno Aquino, as a
consequence of which event a majority of
the corporations clients pre-terminated
their investments. A period of extreme
illiquidity and financial distress followed,
which ultimately led to the corporations
being placed under receivership by the
Securities and Exchange Commission.
(Ocampo, T.S.N., 16 August 1990, p. 8,
19; Lao, T.S.N., 28 September 1989, pp.
25-26; Please refer also to Exhibit 1, the
order of receivership issued by the
Securities and Exchange Commission)
Despite the Treasury Departments and
(Ms. Ocampos) knowledge of the
dishonor of the checks, however, the
main office in Cubao, Quezon City never
informed petitioner Lina Lim Lao or
anybody in the Binondo office for that
matter. (Ocampo, T.S.N., 16 August
1990, pp. 9-10) In her testimony, she
justified her omission by saying that the
checks were actually the responsibility of
the main office (Ocampo, T.S.N., 19 July
1990, p. 6) and that, at that time of panic
withdrawals and massive pre-termination
of clients investments, it was futile to
inform the Binondo office since the main
office was strapped for cash and in deep
financial distress. (Id., at pp. 7-9)
Moreover, the confusion which came in
the wake of the Aquino assassination
and the consequent panic withdrawals
caused them to lose direct
communication with the Binondo office.
(Ocampo, T.S.N., 16 August 1990, p. 9-
10)
As a result of the financial crisis and
distress, the Securities and Exchange
Commission placed Premier Financing
Corporation under receivership,
appointing a rehabilitation receiver for
the purpose of settling claims against the
corporation. (Exh. 1) As he himself
admits, private complainant filed a claim
for the payment of the bounced check
before and even after the corporation
had been placed under receivership.
(Palijo, T.S.N., 24 July 1987, p. 10-17) A
check was prepared by the receiver in
favor of the private complainant but the
same was not claimed by him. (Lao,
T.S.N., 15 May 1990, p. 18)
Private complainant then filed the instant
criminal action. On 26 September 1990,
the Regional Trial Court of Manila,
Branch 33, rendered a decision
convicting petitioner, and sentencing the
latter to suffer the aggregate penalty of
two (2) years and to pay a fine in the total
amount of P300,000.00. On appeal, the
Court of Appeals affirmed said decision.
Hence, this petition for review.[8]
The Issue
In the main, petitioner contends that the
public respondent committed a
reversible error in concluding that lack of
actual knowledge of insufficiency of
funds was not a defense in a prosecution
for violation of B.P. 22. Additionally, the
petitioner argues that the notice of
dishonor sent to the main office of the
corporation, and not to petitioner herself
who holds office in that corporations
branch office, does not constitute the
notice mandated in Section 2 of BP 22;
thus, there can be no prima facie
presumption that she had knowledge of
the insufficiency of funds.
The Courts Ruling
The petition is meritorious.
Strict Interpretation of Penal Statutes
It is well-settled in this jurisdiction that
penal statutes are strictly construed
against the state and liberally for the
accused, so much so that the scope of a
penal statute cannot be extended by
good intention, implication, or even
equity consideration. Thus, for Petitioner
Lina Lim Laos acts to be penalized under
the Bouncing Checks Law or B.P. 22,
they must come clearly within both the
spirit and the letter of the statute.[9]
The salient portions of B.P. 22 read:
SECTION 1. Checks without sufficient
funds. -- Any person who makes or
draws and issues any check to apply on
account or for value, knowing at the time
of issue that he does not have sufficient
funds in or credit with the drawee bank
for the payment of such check in full upon
its presentment, which check is
subsequently dishonored by the drawee
bank for insufficiency of funds or credit or
would have been dishonored for the
same reason had not the drawer, without
any valid reason, ordered the bank to
stop payment, shall be punished by
imprisonment of not less than thirty days
but not more than one (1) year or by a
fine of not less than but not more than
double the amount of the check which
fine shall in no case exceed Two hundred
thousand pesos, or both such fine and
imprisonment at the discretion of the
court.
The same penalty shall be imposed upon
any person who having sufficient funds in
or credit with the drawee bank when he
makes or draws and issues a check,
shall fail to keep sufficient funds or to
maintain a credit or to cover the full
amount of the check if presented within a
period of ninety (90) days from the date
appearing thereon, for which reason it is
dishonored by the drawee bank.
Where the check is drawn by a
corporation, company or entity, the
person or persons who actually signed
the check in behalf of such drawer shall
be liable under this Act.
SECTION 2. Evidence of knowledge of
insufficient funds. -- The making, drawing
and issuance of a check payment of
which is refused by the drawee because
of insufficient funds in or credit with such
bank, when presented within ninety (90)
days from the date of the check, shall be
prima facie evidence of knowledge of
such insufficiency of funds or credit
unless such maker or drawer pays the
holder thereof the amount due thereon,
or makes arrangements for payment in
full by the drawee of such check within
five (5) banking days after receiving
notice that such check has not been paid
by the drawee.
This Court listed the elements of the
offense penalized under B.P. 22, as
follows: (1) the making, drawing and
issuance of any check to apply to
account or for value; (2) the knowledge
of the maker, drawer or issuer that at the
time of issue he does not have sufficient
funds in or credit with the drawee bank
for the payment of such check in full upon
its presentment; and (3) subsequent
dishonor of the check by the drawee
bank for insufficiency of funds or credit or
dishonor for the same reason had not the
drawer, without any valid cause, ordered
the bank to stop payment.[10]
Justice Luis B. Reyes, an eminent
authority in criminal law, also
enumerated the elements of the offense
defined in the first paragraph of Section
1 of B.P. 22, thus:
1. That a person makes or draws and
issues any check.
2. That the check is made or drawn and
issued to apply on account or for value.
3. That the person who makes or draws
and issues the check knows at the time
of issue that he does not have sufficient
funds in or credit with the drawee bank
for the payment of such check in full upon
its presentment.
4. That the check is subsequently
dishonored by the drawee bank for
insufficiency of funds or credit, or would
have been dishonored for the same
reason had not the drawer, without any
valid reason, ordered the bank to stop
payment.[11]
Crux of the Petition
Petitioner raised as defense before the
Court of Appeals her lack of actual
knowledge of the insufficiency of funds at
the time of the issuance of the checks,
and lack of personal notice of dishonor to
her. The respondent appellate court,
however, affirmed the RTC decision,
reasoning that the makers knowledge of
the insufficiency of funds is legally
presumed from the dishonor of his
checks for insufficiency of funds. (People
vs. Laggui, 171 SCRA 305; Nieras vs.
Hon. Auxencio C. Dacuycuy, 181 SCRA
1)[12] The Court of Appeals also stated
that her alleged lack of knowledge or
intent to issue a bum check would not
exculpate her from any responsibility
under B.P. Blg. 22, since the act of
making and issuing a worthless check is
a malum prohibitum.[13] In the words of
the Solicitor General, (s)uch alleged lack
of knowledge is not material for
petitioners liability under B.P.Blg. 22.[14]
Lack of Actual Knowledge of
Insufficiency of Funds
Knowledge of insufficiency of funds or
credit in the drawee bank for the payment
of a check upon its presentment is an
essential element of the offense.[15]
There is a prima facie presumption of the
existence of this element from the fact of
drawing, issuing or making a check, the
payment of which was subsequently
refused for insufficiency of funds. It is
important to stress, however, that this is
not a conclusive presumption that
forecloses or precludes the presentation
of evidence to the contrary.
In the present case, the fact alone that
petitioner was a signatory to the checks
that were subsequently dishonored
merely engenders the prima facie
presumption that she knew of the
insufficiency of funds, but it does not
render her automatically guilty under
B.P. 22. The prosecution has a duty to
prove all the elements of the crime,
including the acts that give rise to the
prima facie presumption; petitioner, on
the other hand, has a right to rebut the
prima facie presumption.[16] Therefore,
if such knowledge of insufficiency of
funds is proven to be actually absent or
non-existent, the accused should not be
held liable for the offense defined under
the first paragraph of Section 1 of B.P.
22. Although the offense charged is a
malum prohibitum, the prosecution is not
thereby excused from its responsibility of
proving beyond reasonable doubt all the
elements of the offense, one of which is
knowledge of the insufficiency of funds.
After a thorough review of the case at
bar, the Court finds that Petitioner Lina
Lim Lao did not have actual knowledge
of the insufficiency of funds in the
corporate accounts at the time she
affixed her signature to the checks
involved in this case, at the time the
same were issued, and even at the time
the checks were subsequently
dishonored by the drawee bank.
The scope of petitioners duties and
responsibilities did not encompass the
funding of the corporations checks; her
duties were limited to the marketing
department of the Binondo branch.[17]
Under the organizational structure of
Premiere Financing Corporation, funding
of checks was the sole responsibility of
the Treasury Department. Veronilyn
Ocampo, former Treasurer of Premiere,
testified thus:
Q Will you please tell us whose (sic)
responsible for the funding of checks in
Premiere?
A The one in charge is the Treasury
Division up to the Treasury
Disbursement and then they give it
directly to Jose Cabacan, President of
Premiere.[18]
Furthermore, the Regional Trial Court
itself found that, since Petitioner Lina Lim
Lao was often out in the field taking
charge of the marketing department of
the Binondo branch, she signed the
checks in blank as to name of the payee
and the amount to be drawn, and without
knowledge of the transaction for which
they were issued.[19] As a matter of
company practice, her signature was
required in addition to that of Teodulo
Asprec, who alone placed the name of
the payee and the amount to be drawn
thereon. This is clear from her testimony:
q x x x Will you please or will you be able
to tell us the condition of this check when
you signed this or when you first saw this
check?
Witness
a I signed the check in blank. There were
no payee. No amount, no date, sir.
q Why did you sign this check in blank
when there was no payee, no amount
and no date?
a It is in order to facilitate the transaction,
sir.
xxxxxxxxx
COURT
(to witness)
q Is that your practice?
Witness
a Procedure, Your Honor.
COURT
That is quiet (sic) unusual. That is why I
am asking that last question if that is a
practice of your office.
a As a co-signer, I sign first, sir.
q So the check cannot be encashed
without your signature, co-signature?
a Yes, sir.
Atty. Gonzales
(to witness)
q Now, you said that you sign first, after
you sign, who signs the check?
a Mr. Teodoro Asprec, sir.
q Is this Teodoro Asprec the same
Teodoro Asprec, one of the accused in
all these cases?
a Yes, sir.
q Now, in the distribution or issuance of
checks which according to you, as a co-
signee, you sign. Who determines to
whom to issue or to whom to pay the
check after Teodoro Asprec signs the
check?
Witness

a He is the one. Atty. Gonzales
Atty. Gonzales (to witness)
q Mr. Asprec is the one in-charge in . . . q Why is it necessary for you to sign?
are you telling the Honorable Court that
it was Teodoro Asprec who determines a Because most of the time I am out in
to whom to issue the check? Does he do the field in the afternoon, so, in order to
that all the time? facilitate the transaction I sign so if I am
not around they can issue the check.[20]
Court
Petitioner did not have any knowledge
q Does he all the time? either of the identity of the payee or the
transaction which gave rise to the
(to witness) issuance of the checks. It was her co-
signatory, Teodulo Asprec, who alone
a Yes, Your Honor. filled in the blanks, completed and issued
the checks. That Petitioner Lina Lim Lao
q So the check can be negotiated? So, did not have any knowledge or
the check can be good only upon his connection with the checks payee,
signing? Without his signing or signature Artelijo Palijo, is clearly evident even
the check cannot be good? from the latters testimony, viz.:
a Yes, Your Honor. ATTY. GONZALES:
Atty. Gonzales Q When did you come to know the
accused Lina Lim Lao?
(to witness)
A I cannot remember the exact date
q You made reference to a transaction because in their office Binondo, --
which according to you, you signed this
check in order to facilitate the transaction COURT: (before witness could finish)
. . . I withdraw that question. I will reform.
Q More or less?
COURT
(for clarification to witness) A It must have been late 1983.
Witness may answer.
q Only to facilitate your business ATTY. GONZALES:
transaction, so you signed the other
checks? Q And that must or that was after the
Witness transactions involving alleged checks
a Yes, Your Honor. marked in evidence as Exhibits B and C?
q So that when ever there is a transaction A After the transactions.
all is needed . . . all that is needed is for
the other co-signee to sign? Q And that was also before the
transaction involving that confirmation of
a Yes, Your Honor. sale marked in evidence as Exhibit A?
COURT A It was also.
(To counsel) Q And so you came to know the accused
Lina Lim Lao when all those transactions
Proceed. were already consummated?
A Yes, sir.
Q And there has never been any
occasion where you transacted with
accused Lina Lim Lao, is that correct?
A None, sir, there was no occasion.
Q And your coming to know Lina Lim Lao
the accused in these cases was by
chance when you happened to drop by in
the office at Binondo of the Premier
Finance Corporation, is that what you
mean?
A Yes, sir.
Q You indicated to the Court that you
were introduced to the accused Lina Lim
Lao, is that correct?
A I was introduced.
xxxxxxxxx
Q After that plain introduction there was
nothing which transpired between you
and the accused Lina Lim Lao?
A There was none.[21]
Since Petitioner Lina Lim Lao signed the
checks without knowledge of the
insufficiency of funds, knowledge she
was not expected or obliged to possess
under the organizational structure of the
corporation, she may not be held liable
under B.P. 22. For in the final analysis,
penal statutes such as B.P. 22 must be
construed with such strictness as to
carefully safeguard the rights of the
defendant x x x.[22] The element of
knowledge of insufficiency of funds
having been proven to be absent,
petitioner is therefore entitled to an
acquittal.
This position finds support in Dingle vs.
Intermediate Appellate Court[23] where
we stressed that knowledge of
insufficiency of funds at the time of the
issuance of the check was an essential
requisite for the offense penalized under
B.P. 22. In that case, the spouses Paz
and Nestor Dingle owned a family
business known as PMD Enterprises.
Nestor transacted the sale of 400 tons of
silica sand to the buyer Ernesto Ang who
paid for the same. Nestor failed to
deliver. Thus, he issued to Ernesto two
checks, signed by him and his wife as
authorized signatories for PMD
Enterprises, to represent the value of the
undelivered silica sand. These checks
were dishonored for having been drawn
against insufficient funds. Nestor
thereafter issued to Ernesto another
check, signed by him and his wife Paz,
which was likewise subsequently
dishonored. No payment was ever made;
hence, the spouses were charged with a
violation of B.P. 22 before the trial court
which found them both guilty. Paz
appealed the judgment to the then
Intermediate Appellate Court which
modified the same by reducing the
penalty of imprisonment to thirty days.
Not satisfied, Paz filed an appeal to this
Court insisting on her innocence and
contending that she did not incur any
criminal liability under B.P. 22 because
she had no knowledge of the dishonor of
the checks issued by her husband and,
for that matter, even the transaction of
her husband with Ang. The Court ruled in
Dingle as follows:
The Solicitor General in his
Memorandum recommended that
petitioner be acquitted of the instant
charge because from the testimony of
the sole prosecution witness Ernesto
Ang, it was established that he dealt
exclusively with Nestor Dingle. Nowhere
in his testimony is the name of Paz
Dingle ever mentioned in connection with
the transaction and with the issuance of
the check. In fact, Ang categorically
stated that it was Nestor Dingle who
received his two (2) letters of demand.
This lends credence to the testimony of
Paz Dingle that she signed the
questioned checks in blank together with
her husband without any knowledge of its
issuance, much less of the transaction
and the fact of dishonor.
In the case of Florentino Lozano vs. Hon.
Martinez, promulgated December 18,
1986, it was held that an essential
element of the offense is knowledge on
the part of the maker or drawer of the
check of the insufficiency of his funds.
WHEREFORE, on reasonable doubt, the
assailed decision of the Intermediate
Appellate Court (now the Court of
Appeals) is hereby SET ASIDE and a
new one is hereby rendered
ACQUITTING petitioner on reasonable
doubt."[24]
In rejecting the defense of herein
petitioner and ruling that knowledge of
the insufficiency of funds is legally
presumed from the dishonor of the
checks for insufficiency of funds,
Respondent Court of Appeals cited
People vs. Laggui[25] and Nierras vs.
Dacuycuy.[26] These, however, are
inapplicable here. The accused in both
cases issued personal -- not corporate --
checks and did not aver lack of
knowledge of insufficiency of funds or
absence of personal notice of the checks
dishonor. Furthermore, in People vs.
Laggui[27] the Court ruled mainly on the
adequacy of an information which
alleged lack of knowledge of insufficiency
of funds at the time the check was issued
and not at the time of its presentment. On
the other hand, the Court in Nierras vs.
Dacuycuy[28] held mainly that an
accused may be charged under B.P. 22
and Article 315 of the Revised Penal
Code for the same act of issuing a
bouncing check.
The statement in the two cases -- that
mere issuance of a dishonored check
gives rise to the presumption of
knowledge on the part of the drawer that
he issued the same without funds -- does
not support the CA Decision. As
observed earlier, there is here only a
prima facie presumption which does not
preclude the presentation of contrary
evidence. On the contrary, People vs.
Laggui clearly spells out as an element of
the offense the fact that the drawer must
have knowledge of the insufficiency of
funds in, or of credit with, the drawee
bank for the payment of the same in full
on presentment; hence, it even supports
the petitioners position.
Lack of Adequate Notice of Dishonor
There is another equally cogent reason
for the acquittal of the accused. There
can be no prima facie evidence of
knowledge of insufficiency of funds in the
instant case because no notice of
dishonor was actually sent to or received
by the petitioner.
The notice of dishonor may be sent by
the offended party or the drawee bank.
The trial court itself found absent a
personal notice of dishonor to Petitioner
Lina Lim Lao by the drawee bank based
on the unrebutted testimony of Ocampo
(t)hat the checks bounced when
presented with the drawee bank but she
did not inform anymore the Binondo
branch and Lina Lim Lao as there was no
need to inform them as the corporation
was in distress.[29] The Court of Appeals
affirmed this factual finding. Pursuant to
prevailing jurisprudence, this finding is
binding on this Court.[30]
Indeed, this factual matter is borne by the
records. The records show that the
notice of dishonor was addressed to
Premiere Financing Corporation and
sent to its main office in Cubao, Quezon
City. Furthermore, the same had not
been transmitted to Premieres Binondo
Office where petitioner had been holding
office.
Likewise no notice of dishonor from the
offended party was actually sent to or
received by Petitioner Lao. Her testimony
on this point is as follows:
Atty. Gonzales
q Will you please tell us if Father Artelejo
Palejo (sic) ever notified you of the
bouncing of the check or the two (2)
checks marked as Exhibit B or C for the
prosecution?
Witness
a No, sir.
q What do you mean no, sir?
a I was never given a notice. I was never
given notice from Father Palejo (sic).
COURT
(to witness)
q Notice of what?
a Of the bouncing check, Your
Honor.[31]
Because no notice of dishonor was
actually sent to and received by the
petitioner, the prima facie presumption
that she knew about the insufficiency of
funds cannot apply. Section 2 of B.P. 22
clearly provides that this presumption
arises not from the mere fact of drawing,
making and issuing a bum check; there
must also be a showing that, within five
banking days from receipt of the notice of
dishonor, such maker or drawer failed to
pay the holder of the check the amount
due thereon or to make arrangement for
its payment in full by the drawee of such
check.
It has been observed that the State,
under this statute, actually offers the
violator a compromise by allowing him to
perform some act which operates to
preempt the criminal action, and if he
opts to perform it the action is abated.
This was also compared to certain
laws[32] allowing illegal possessors of
firearms a certain period of time to
surrender the illegally possessed
firearms to the Government, without
incurring any criminal liability.[33] In this
light, the full payment of the amount
appearing in the check within five
banking days from notice of dishonor is a
complete defense.[34] The absence of a
notice of dishonor necessarily deprives
an accused an opportunity to preclude a
criminal prosecution. Accordingly,
procedural due process clearly enjoins
that a notice of dishonor be actually
served on petitioner. Petitioner has a
right to demand -- and the basic
postulates of fairness require -- that the
notice of dishonor be actually sent to and
received by her to afford her the
opportunity to avert prosecution under
B.P. 22.
In this light, the postulate of Respondent
Court of Appeals that (d)emand on the
Corporation constitutes demand on
appellant (herein petitioner),[35] is
erroneous. Premiere has no obligation to
forward the notice addressed to it to the
employee concerned, especially
because the corporation itself incurs no
criminal liability under B.P. 22 for the
issuance of a bouncing check.
Responsibility under B.P. 22 is personal
to the accused; hence, personal
knowledge of the notice of dishonor is
necessary. Consequently, constructive
notice to the corporation is not enough to
satisfy due process. Moreover, it is
petitioner, as an officer of the
corporation, who is the latters agent for
purposes of receiving notices and other
documents, and not the other way
around. It is but axiomatic that notice to
the corporation, which has a personality
distinct and separate from the petitioner,
does not constitute notice to the latter.
Epilogue
In granting this appeal, the Court is not
unaware of B.P. 22s intent to inculcate
public respect for and trust in checks
which, although not legal tender, are
deemed convenient substitutes for
currency. B.P. 22 was intended by the
legislature to enhance commercial and
financial transactions in the Philippines
by penalizing makers and issuers of
worthless checks. The public interest
behind B.P. 22 is thus clearly palpable
from its intended purpose.[36]
At the same time, this Court deeply
cherishes and is in fact bound by duty to
protect our peoples constitutional rights
to due process and to be presumed
innocent until the contrary is proven.[37]
These rights must be read into any
interpretation and application of B.P. 22.
Verily, the public policy to uphold civil
liberties embodied in the Bill of Rights
necessarily outweighs the public policy to
build confidence in the issuance of
checks. The first is a basic human right
while the second is only proprietary in
nature.[38] Important to remember also
is B.P. 22s requirements that the check
issuer must know at the time of issue that
he does not have sufficient funds in or
credit with the drawee bank and that he
must receive notice that such check has
not been paid by the drawee. Hence,
B.P. 22 must not be applied in a manner
which contravenes an accuseds
constitutional and statutory rights.
There is also a social justice dimension
in this case. Lina Lim Lao is only a minor
employee who had nothing to do with the
issuance, funding and delivery of checks.
Why she was required by her employer
to countersign checks escapes us. Her
signature is completely unnecessary for
it serves no fathomable purpose at all in
protecting the employer from
unauthorized disbursements. Because of
the pendency of this case, Lina Lim Lao
stood in jeopardy -- for over a decade --
of losing her liberty and suffering the
wrenching pain and loneliness of
imprisonment, not to mention the stigma
of prosecution on her career and family
life as a young mother, as well as the
expenses, effort and aches in defending
her innocence. Upon the other hand, the
senior official -- Teodulo Asprec -- who
appears responsible for the issuance,
funding and delivery of the worthless
checks has escaped criminal
prosecution simply because he could not
be located by the authorities. The case
against him has been archived while the
awesome prosecutory might of the
government and the knuckled ire of the
private complainant were all focused on
poor petitioner. Thus, this Court exhorts
the prosecutors and the police authorities
concerned to exert their best to arrest
and prosecute Asprec so that justice in
its pristine essence can be achieved in all
fairness to the complainant, Fr. Artelijo
Palijo, and the People of the Philippines.
By this Decision, the Court enjoins the
Secretary of Justice and the Secretary of
Interior and Local Government to see
that essential justice is done and the real
culprit(s) duly-prosecuted and punished.
WHEREFORE, the questioned Decision
of the Court of Appeals affirming that of
the Regional Trial Court, is hereby
REVERSED and SET ASIDE. Petitioner
Lina Lim Lao is ACQUITTED. The Clerk
of Court is hereby ORDERED to furnish
the Secretary of Justice and the
Secretary of Interior and Local
Government with copies of this Decision.
No costs.
SO ORDERED.
FRANKLIN M. DRILON, AURELIO C.
TRAMPE, GREGORIO A. ARIZALA,
CESAR M. SOLIS and FERDINAND R.
ABESAMIS, petitioners, vs. COURT OF
APPEALS, HON. GEORGE C. MACLI-
ING, in his capacity as Presiding Judge
of Branch 100 of the Regional Trial Court
of Quezon City, and HOMOBONO
ADAZA, respondents.
DECISION
HERMOSISIMA, JR., J.:
Petitioners seek the reversal of the
Resolutions of respondent Court of
Appeals in CA-G.R. SP No. 25080 dated
January 31, 1992 and September 2,
1992 affirming the Orders, dated
February 8, 1991 and May 14, 1991, of
respondent Judge George C. Macli-ing
which denied herein petitioners Motion to
Dismiss the complaint filed in Civil Case
No. Q-90-6073 by respondent
Homobono Adaza.
The facts are not in dispute.
In a letter-complaint to then Secretary of
Justice Franklin Drilon[1] dated March
20, 1990, General Renato de Villa,[2]
who was then the Chief of Staff of the
Armed Forces of the Philippines,
requested the Department of Justice to
order the investigation of several
individuals named therein, including
herein private respondent Homobono
Adaza, for their alleged participation in
the failed December 1989 coup detat.
The letter-complaint was based on the
affidavit of Brigadier General Alejandro
Galido, Captain Oscarlito Mapalo,
Colonel Juan Mamorno, Colonel Hernani
Figueroa and Major Eduardo Sebastian.
Gen. de Villas letter-complaint with its
annexes was referred for preliminary
inquiry to the Special Composite Team of
Prosecutors created pursuant to
Department of Justice Order No. 5 dated
January 10, 1990. Petitioner then
Assistant Chief State Prosecutor Aurelio
Trampe,[3] the Team Leader, finding
sufficient basis to continue the inquiry,
issued a subpoena to the individuals
named in the letter-complaint, Adaza
included, and assigned the case for
preliminary investigation to a panel of
investigators composed of prosecutors
George Arizala, as Chairman, and
Ferdinand Abesamis and Cesar Solis as
members. The case was docketed as I.S.
No. DOJ-SC-90-013.
On April 17, 1990, the panel released its
findings, thru a Resolution, which reads:
PREMISES CONSIDERED, we find and
so hold that there is probable cause to
hold herein respondents for trial for the
crime of REBELLION WITH MURDER
AND FRUSTRATED MURDER. Hence
we respectfully recommend the filing of
the corresponding information against
them in court.[4]
The above Resolution became the basis
for the filing of an Information,[5] dated
April 18, 1990, charging private
respondent with the crime of rebellion
with murder and frustrated murder before
the Regional Trial Court of Quezon City,
with no recommendation as to bail.[6]
Feeling aggrieved by the institution of
these proceedings against him, private
respondent Adaza filed a complaint for
damages,[7] dated July 11, 1990, before
Branch 100 of the Regional Trial Court of
Quezon City. The complaint was
docketed as Civil Case No. Q-90-6073
entitled, Homobono Adaza, plaintiff
versus Franklin Drilon, et al.,
respondents. In his complaint, Adaza
charged petitioners with engaging in a
deliberate, willful and malicious
experimentation by filing against him a
charge of rebellion complexed with
murder and frustrated murder when
petitioners, according to Adaza, were
fully aware of the non-existence of such
crime in the statute books.
On October 15, 1990, petitioners filed a
Motion to Dismiss Adazas complaint on
the ground that said complaint states no
actionable wrong constituting a valid
cause of action against petitioners.
On February 8, 1991, public respondent
judge issued an Order[8] denying
petitioners Motion to Dismiss. In the
same Order, petitioners were required to
file their answer to the complaint within
fifteen (15) days from receipt of the
Order.
Petitioners moved for a reconsideration
of the Order of denial, but the same was
likewise denied by respondent Judge in
another Order dated May 14, 1991.[9]
The subsequent Order reiterated that
petitioners file their responsive pleading
within the prescribed reglementary
period.
Instead of filing their answer as ordered,
petitioners filed on June 5, 1991 a
petition for certiorari under Rule 65
before the Court of Appeals, docketed as
CA-G.R. No. 25080, alleging grave
abuse of discretion on the part of the
respondent Judge in ruling that sufficient
cause of action exists to warrant a full-
blown hearing of the case filed by Adaza
and thus denying petitioners Motion to
Dismiss.
In its Resolution promulgated on January
31, 1992, the appellate court dismissed
the petition for lack of merit and ordered
respondent Judge to proceed with the
trial of Civil Case No. Q-90-6073.[10] A
Motion for Reconsideration having been
subsequently filed on February 28, 1992,
the court a quo denied the same in a
Resolution dated September 2,
1992.[11]
Hence, this petition, dated October 9,
1992, pleading this Court to exercise its
power of review under Rule 45 of the
Revised Rules of Court.
On January 13, 1993, however, this
Court, thru the Second Division,
dismissed the petition for failure to
comply with Revised Circular No. 1-88,
particularly the requirement on the
payment of the prescribed docketing
fees.[12]
On March 8, 1993,[13] we reinstated the
petition and required the respondents to
comment on the aforesaid petition. In the
same Resolution, a temporary
restraining order was issued by this
Court enjoining respondent Judge from
further proceeding with Civil Case No. Q-
90-6073 until further orders from this
Court.
The petition has merit.
In his Comment,[14] dated March 23,
1993, respondent Adaza maintains that
his claim before the trial court was merely
a suit for damages based on tort by
reason of petitioners various
malfeasance, misfeasance and
nonfeasance in office, as well as for
violation by the petitioners of Section 3
(e) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt
Practices Act. It was not a suit for
malicious prosecution.
Private respondent is taking us for a ride.
A cursory perusal of the complaint filed
by Adaza before respondent Judge
George Macli-ing reveals that it is one for
malicious prosecution against the
petitioners for the latters filing of the
charge against him of rebellion with
murder and frustrated murder. An
examination of the records would show
that this latest posture as to the nature of
his cause of action is only being raised
for the first time on appeal. Nowhere in
his complaint filed with the trial court did
respondent Adaza allege that his action
is one based on tort or on Section 3 (e)
of Republic Act No. 3019. Such a change
of theory cannot be allowed. 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.[15] Any member of the Bar,
even if not too schooled in the art of
litigation, would easily discern that
Adazas complaint is no doubt a suit for
damages for malicious prosecution
against the herein petitioners.
Unfortunately, however, his complaint
filed with the trial court suffers from a
fatal infirmity -- that of failure to state a
cause of action -- and should have been
dismissed right from the start. We shall
show why.
The term malicious prosecution has been
defined in various ways. In American
jurisdiction, it is defined as:
One begun in malice without probable
cause to believe the charges can be
sustained (Eustace v. Dechter, 28 Cal.
App. 2d. 706,83 P. 2d. 525). Instituted
with intention of injuring defendant and
without probable cause, and which
terminates in favor of the person
prosecuted. For this injury an action on
the case lies, called the action of
malicious prosecution (Hicks v. Brantley,
29 S.E. 459, 102 Ga. 264; Eggett v.
Allen, 96 N.W. 803, 119 Wis. 625).[16]
In Philippine jurisdiction, it has been
defined as:
An action for damages brought by one
against whom a criminal prosecution,
civil suit, or other legal proceeding has
been instituted maliciously and without
probable cause, after the termination of
such prosecution, suit, or other
proceeding in favor of the defendant
therein. The gist of the action is the
putting of legal process in force,
regularly, for the mere purpose of
vexation or injury (Cabasaan v. Anota,
14169-R, November 19, 1956).[17]
The statutory basis for a civil action for
damages for malicious prosecution are
found in the provisions of the New Civil
Code on Human Relations and on
damages particularly Articles 19, 20, 21,
26, 29, 32, 33, 35, 2217 and 2219 (8).[18]
To constitute malicious prosecution,
however, there must be proof that the
prosecution was prompted by a sinister
design to vex and humiliate a person,
and that it was initiated deliberately by
the defendant knowing that his charges
were false and groundless. Concededly,
the mere act of submitting a case to the
authorities for prosecution does not
make one liable for malicious
prosecution.[19] Thus, in order for a
malicious prosecution suit to prosper, the
plaintiff must prove three (3) elements:
(1) the fact of the prosecution and the
further fact that the defendant was
himself the prosecutor and that the action
finally terminated with an acquittal; (2)
that in bringing the action, the prosecutor
acted without probable cause; and (3)
that the prosecutor was actuated or
impelled by legal malice, that is by
improper or sinister motive.[20] All these
requisites must concur.
Judging from the face of the complaint
itself filed by Adaza against the herein
petitioners, none of the foregoing
requisites have been alleged therein,
thus rendering the complaint dismissible
on the ground of failure to state a cause
of action under Section 1 (g), Rule 16 of
the Revised Rules of Court.
There is nothing in the records which
shows, and the complaint does not
allege, that Criminal Case No. Q-90-
11855, filed by the petitioners against
respondent Adaza for Rebellion with
Murder and Frustrated Murder, has been
finally terminated and therein accused
Adaza acquitted of the charge. Not even
Adaza himself, thru counsel, makes any
positive asseveration on this aspect that
would establish his acquittal. Insofar as
Criminal Case No. Q-90-11855 is
concerned, what appears clear from the
records only is that respondent has been
discharged on a writ of habeas corpus
and granted bail.[21] This is not,
however, considered the termination of
the action contemplated under Philippine
jurisdiction to warrant the institution of a
malicious prosecution suit against those
responsible for the filing of the informaion
against him.
The complaint likewise does not make
any allegation that the prosecution acted
without probable cause in filing the
criminal information dated April 18, 1990
for rebellion with murder and frustrated
murder. Elementarily defined, probable
cause is the existence of such facts and
circumstances as would excite the belief,
in a reasonable mind, acting on the facts
within the knowledge of the prosecutor,
that the person charged was guilty of the
crime for which he was prosecuted. It is
well-settled that one cannot be held liable
for maliciously instituting a prosecution
where one has acted with probable
cause. Elsewise stated, a suit for
malicious prosecution will lie only in
cases where a legal prosecution has
been carried on without probable cause.
The reason for this rule is that it would be
a very great discouragement to public
justice, if prosecutors, who had tolerable
ground of suspicion, were liable to be
sued at law when their indictment
miscarried.[22]
In the case under consideration, the
decision of the Special Team of
Prosecutors to file the information for
rebellion with murder and frustrated
murder against respondent Adaza,
among others, cannot be dismissed as
the mere product of whim or caprice on
the part of the prosecutors who
conducted the preliminary investigation.
Said decision was fully justified in an
eighteen (18)-page Resolution dated
April 17, 1990.[23] While it is true that the
petitioners were fully aware of the
prevailing jurisprudence enunciated in
People v. Hernandez,[24] which
proscribes the complexing of murder and
other common crimes with rebellion,
petitioners were of the honest conviction
that the Hernandez Case can be
differentiated from the present case. The
petitioners thus argued:
Of course we are aware of the ruling in
People vs. Hernandez, 99 Phil. 515,
which held that common crimes like
murder, arson, etc. are absorbed by
rebellion. However, the Hernandez case
is different from the present case before
us. In the Hernandez case, the common
crimes of murder, arson, etc. were found
by the fiscal to have been committed as
a necessary means to commit rebellion,
or in furtherance thereof. Thus, the fiscal
filed an information for rebellion alleging
those common crimes as a necessary
means of committing the offense
charged under the second part of Article
48, RPC.
We, however, find no occasion to apply
the Hernandez ruling since as intimated
above, the crimes of murder and
frustrated murder in this case were
absolutely unnecessary to commit
rebellion although they were the natural
consequences of the unlawful bombing.
Hence, the applicable provision is the
first part of Article 48 of the RPC.[25]
While the Supreme Court in the case of
Enrile v. Salazar,[26] addressing the
issue of whether or not the Hernandez
doctrine is still good law, in a 10-3 vote,
did not sustain the position espoused by
the herein petitioners on the matter, three
justices[27] felt the need to re-study the
Hernandez ruling in light of present-day
developments, among whom was then
Chief Justice Marcelo Fernan who wrote
a dissenting opinion in this wise:
I am constrained to write this separate
opinion on what seems to be a rigid
adherence to the 1956 ruling of the
Court. The numerous challenges to the
doctrine enunciated in the case of People
vs. Hernandez, 99 Phil. 515 (1956),
should at once demonstrate the need to
redefine the applicability of said doctrine
so as to make it conformable with
accepted and well-settled principles of
criminal law and jurisprudence.
To my mind, the Hernandez doctrine
should not be interpreted as an all-
embracing authority for the rule that all
common crimes committed on the
occasion, or in furtherance of, or in
connection with, rebellion are absorbed
by the latter. To that extent, I cannot go
along with the view of the majority in the
instant case that Hernandez remains
binding doctrine operating to prohibit the
complexing of rebellion with any other
offense committed on the occasion
thereof, either as a means necessary to
its commission or as an unintended
effect of an activity that constitutes
rebellion (p. 9, Decision).
The Hernandez doctrine has served the
purpose for which it was applied by the
Court in 1956 during the communist-
inspired rebellion of the Huks. The
changes in our society in the span of 34
years since then have far-reaching
effects on the all-embracing applicability
of the doctrine considering the
emergence of alternative modes of
seizing the powers of the duly-
constituted Government not
contemplated in Articles 134 and 135 of
the Revised Penal Code and their
consequent effects on the lives of our
people. The doctrine was good law then,
but I believe that there is a certain aspect
of the Hernandez doctrine that needs
clarification.[28]
Apparently, not even the Supreme Court
then was of one mind in debunking the
theory being advanced by the petitioners
in this case, some of whom were also the
petitioners in the Enrile case.
Nevertheless, we held in Enrile that the
Information filed therein properly
charged an offense -- that of simple
rebellion --[29] and thereupon ordered
the remand of the case to the trial court
for the prosecution of the named
accused[30] in the Information therein.
Following this lead, the Information
against Adaza in Criminmal Case No. Q-
90-11855 was not quashed, but was
instead treated likewise as charging the
crime of simple rebellion.
A doubtful or difficult question of law may
become the basis of good faith and, in
this regard, the law always accords to
public officials the presumption of good
faith and regularity in the performance of
official duties.[31] Any person who seeks
to establish otherwise has the burden of
proving bad faith or ill-motive. Here,
since the petitioners were of the honest
conviction that there was probable cause
to hold respondent Adaza for trial for the
crime of rebellion with murder and
frustrated murder, and since Adaza
himself, through counsel, did not allege
in his complaint lack of probable cause,
we find that the petitioners cannot be
held liable for malicious prosecution.
Needless to say, probable cause was not
wanting in the institution of Criminal Case
No. Q-90-11855 against Adaza.
As to the requirement that the prosecutor
must be impelled by malice in bringing
the unfounded action, suffice it to state
that the presence of probable cause
signifies, as a legal consequence, the
absence of malice.[32] At the risk of
being repetitious, it is evident in this case
that petitioners were not motivated by
malicious intent or by a sinister design to
unduly harass private respondent, but
only by a well-founded belief that
respondent Adaza can be held for trial for
the crime alleged in the information.
All told, the complaint, dated July 11,
1990, filed by Adaza before Branch 100
of the Regional Trial Court against the
petitioners does not allege facts sufficient
to constitute a cause of action for
malicious prosecution. Lack of cause of
action, as a ground for a motion to
dismiss under Section 1 (g), Rule 16 of
the Revised Rules of Court, must appear
on the face of the complaint itself,
meaning that it must be determined from
the allegations of the complaint and from
none other.[33] The infirmity of the
complaint in this regard is only too
obvious to have escaped respondent
judges attention. Paragraph 14 of the
complaint which states:
xxxxxxxxx
14. The malicious prosecution, nay
persecution, of plaintiff for a non-existent
crime had severely injured and
besmirched plaintiffs name and
reputation and forever stigmatized his
stature as a public figure, thereby
causing him extreme physical suffering,
serious anxiety, mental anguish, moral
shock and social humiliation.[34]
is a mere conclusion of law and is not an
averment or allegation of ultimate facts.
It does not, therefore, aid in any wise the
complaint in setting forth a valid cause of
action against the petitioners.
It is worthy to note that this case was
elevated to the public respondent Court
of Appeals and now to this Court
because of respondent Judge Macli-ings
denial of petitioners motion to dismiss the
Adaza complaint. The ordinary
procedure, as a general rule, is that
petitioners should have filed an answer,
go to trial, and if the decision is adverse,
reiterate the issue on appeal.[35] This
general rule, however, is subject to
certain exceptions, among which are, if
the court denying the motion to dismiss
acts without or in excess of jurisdiction or
with grave abuse of discretion, in which
case certiorari under Rule 65 may be
availed of. The reason is that it would be
unfair to require the defendants
(petitioners in this case) to undergo the
ordeal and expense of trial under such
circumstances, because the remedy of
appeal then would then not be plain and
adequate.[36] Judge Macli-ing
committed grave abuse of discretion in
denying petitioners motion to dismiss the
Adaza complaint, and thus public
respondent Court of Appeals should
have issued the writ of certiorari prayed
for by the petitioners and annulled the
February 8, 1991 and May 14, 1991
Orders of respondent Judge. It was
grievous error on the part of the court a
quo not to have done so. This has to be
corrected. Respondent Adazas baseless
action cannot be sustained for this would
unjustly compel the petitioners to
needlessly go through a protracted trial
and thereby unduly burden the court with
one more futile and inconsequential
case.
WHEREFORE, the petition is
GRANTED. The Resolutions of
respondent Court of Appeals dated
January 31, 1992 and September 2,
1992 affirming the February 8, 1991 and
May 14, 1991 Orders of respondent
Judge George C. Macli-ing are all hereby
NULLIFIED AND SET ASIDE.
Respondent Judge is DIRECTED to take
no further action on Civil Case No. Q-90-
6073 except to DISMISS the same.
SO ORDERED.