G.R. No.
164273 March 28, 2007 the signature of one Victrina Elnado Nubi (Nubi)11 which shows that his card in
EMMANUEL B. AZNAR, Petitioner,
vs.
CITIBANK, N.A., (Philippines), Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review assailing the Decision 1 of the Court of
Appeals (CA) in CA-G.R. CV No. 62554 dated January 30, 2004 which set aside
the November 25, 1998 Order of the Regional Trial Court (RTC) Branch 10, Cebu
City and reinstated the Decision of RTC Branch 20 of Cebu City dated May 29,
1998 in Civil Case No. CEB-16474; and the CA Resolution dated May 26, 2004
denying petitioner’s motion for reconsideration.
The facts are as follows:
Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of a
Preferred Master Credit Card (Mastercard) bearing number 5423-3920-0786-7012
issued by Citibank with a credit limit of ₱150,000.00. As he and his wife, Zoraida,
planned to take their two grandchildren, Melissa and Richard Beane, on an Asian
tour, Aznar made a total advance deposit of ₱485,000.00 with Citibank with the
intention of increasing his credit limit to ₱635,000.00.3
With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for
his group worth ₱237,000.00. On July 17, 1994, Aznar, his wife and grandchildren
left Cebu for the said destination.4
Aznar claims that when he presented his Mastercard in some establishments in
Malaysia, Singapore and Indonesia, the same was not honored.5 And when he tried
to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to
purchase plane tickets to Bali, it was again dishonored for the reason that his card
was blacklisted by Citibank. Such dishonor forced him to buy the tickets in
cash.6 He further claims that his humiliation caused by the denial of his card was
aggravated when Ingtan Agency spoke of swindlers trying to use blacklisted
cards.7 Aznar and his group returned to the Philippines on August 10, 1994.8
On August 26, 1994, Aznar filed a complaint for damages against Citibank,
docketed as Civil Case No. CEB-16474 and raffled to RTC Branch 20, Cebu City,
claiming that Citibank fraudulently or with gross negligence blacklisted his
Mastercard which forced him, his wife and grandchildren to abort important tour
destinations and prevented them from buying certain items in their tour.9 He further
claimed that he suffered mental anguish, serious anxiety, wounded feelings,
besmirched reputation and social humiliation due to the wrongful blacklisting of his
card.10 To prove that Citibank blacklisted his Mastercard, Aznar presented a
computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN
ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with
question was "DECL OVERLIMIT" or declared over the limit.12
Citibank denied the allegation that it blacklisted Aznar’s card. It also contended that
under the terms and conditions governing the issuance and use of its credit cards,
Citibank is exempt from any liability for the dishonor of its cards by any merchant
affiliate, and that its liability for any action or incident which may be brought against
it in relation to the issuance and use of its credit cards is limited to ₱1,000.00 or the
actual damage proven whichever is lesser.13
To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Department
Head, Dennis Flores, presented Warning Cancellation Bulletins which contained
the list of its canceled cards covering the period of Aznar’s trip. 14
On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos,
rendered its decision dismissing Aznar’s complaint for lack of merit.15 The trial court
held that as between the computer print-out16 presented by Aznar and the Warning
Cancellation Bulletins17 presented by Citibank, the latter had more weight as their
due execution and authenticity were duly established by Citibank. 18 The trial court
also held that even if it was shown that Aznar’s credit card was dishonored by a
merchant establishment, Citibank was not shown to have acted with malice or bad
faith when the same was dishonored.19
Aznar filed a motion for reconsideration with motion to re-raffle the case saying that
Judge Marcos could not be impartial as he himself is a holder of a Citibank credit
card.20 The case was re-raffled21 and on November 25, 1998, the RTC, this time
through Judge Jesus S. De la Peña of Branch 10 of Cebu City, issued an Order
granting Aznar’s motion for reconsideration, as follows:
WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The
DECISION dated May 29, 1998 is hereby reconsidered, and consequently, the
defendant is hereby condemned liable to pay the following sums of money:
a) ₱10,000,000.00 as moral damages;
b) ₱5,000,000.00 as exemplary damages;
c) ₱1,000,000.00 as attorney’s fees; and
d) ₱200,000.00 as litigation expenses.22
Judge De la Peña ruled that: it is improbable that a man of Aznar’s stature would
fabricate Exh. "G" or the computer print-out which shows that Aznar’s Mastercard
was dishonored for the reason that it was declared over the limit; Exh. "G" was
printed out by Nubi in the ordinary or regular course of business in the modern
credit card industry and Nubi was not able to testify as she was in a foreign country
and cannot be reached by subpoena; taking judicial notice of the practice of
automated teller machines (ATMs) and credit card facilities which readily print out
bank account status, Exh. "G" can be received as prima facie evidence of the
dishonor of Aznar’s Mastercard; no rebutting evidence was presented by Citibank
to prove that Aznar’s Mastercard was not dishonored, as all it proved was that said
credit card was not included in the blacklisted cards; when Citibank accepted the
additional deposit of ₱485,000.00 from Aznar, there was an implied novation and
Citibank was obligated to increase Aznar’s credit limit and ensure that Aznar will
not encounter any embarrassing situation with the use of his Mastercard; Citibank’s
failure to comply with its obligation constitutes gross negligence as it caused Aznar
inconvenience, mental anguish and social humiliation; the fine prints in the flyer of
the credit card limiting the liability of the bank to ₱1,000.00 or the actual damage
proven, whichever is lower, is a contract of adhesion which must be interpreted
against Citibank.23
Citibank filed an appeal with the CA and its counsel filed an administrative case
against Judge De la Peña for grave misconduct, gross ignorance of the law and
incompetence, claiming among others that said judge rendered his decision without
having read the transcripts. The administrative case was held in abeyance pending
the outcome of the appeal filed by Citibank with the CA.24lawphi1.net
On January 30, 2004, the CA rendered its Decision granting Citibank’s appeal thus:
WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional
Trial Court, 7th Judicial Region, Branch 10, Cebu City, in Civil Case No. CEB-
16474, is hereby SET ASIDE and the decision, dated 29 May 1998 of the Regional
Trial Court, 7th Judicial Region, Branch 20, Cebu City in this case is REINSTATED.
SO ORDERED.25
The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card
and only presumed the same when it was dishonored in certain establishments;
such dishonor is not sufficient to prove that his card was blacklisted by Citibank;
Exh. "G" is an electronic document which must be authenticated pursuant to
Section 2, Rule 5 of the Rules on Electronic Evidence 26 or under Section 20 of Rule
132 of the Rules of Court27 by anyone who saw the document executed or written;
Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be
excluded; the unrefuted testimony of Aznar that his credit card was dishonored by
Ingtan Agency and certain establishments abroad is not sufficient to justify the
award of damages in his favor, absent any showing that Citibank had anything to
do with the said dishonor; Citibank had no absolute control over the actions of its
merchant affiliates, thus it should not be held liable for the dishonor of Aznar’s
credit card by said establishments.28
Aznar filed a motion for reconsideration which the CA dismissed in its Resolution
dated May 26, 2004.29
Parenthetically, the administrative case against Judge De la Peña was activated
and on April 29, 2005, the Court’s Third Division30 found respondent judge guilty of
knowingly rendering an unjust judgment and ordered his suspension for six months.
The Court held that Judge De la Peña erred in basing his Order on a manifestation
submitted by Aznar to support his Motion for Reconsideration, when no copy of
such manifestation was served on the adverse party and it was filed beyond office
hours. The Court also noted that Judge De la Peña made an egregiously large
award of damages in favor of Aznar which opened himself to suspicion. 31
Aznar now comes before this Court on a petition for review alleging that: the CA
erroneously made its own factual finding that his Mastercard was not blacklisted
when the matter of blacklisting was already a non-issue in the November 25, 1998
Order of the RTC; the RTC found that Aznar’s Mastercard was dishonored for the
reason that it was declared over the credit limit; this factual finding is supported by
Exh. "G" and by his (Aznar’s) testimony; the issue of dishonor on the ground of
‘DECL OVERLIMIT’, although not alleged in the complaint, was tried with the
implied consent of the parties and should be treated as if raised in the pleadings
pursuant to Section 5, Rule 10 of the Rules of Civil Procedure; 32 Exh. "G" cannot be
excluded as it qualifies as an electronic evidence following the Rules on Electronic
Evidence which provides that print-outs are also originals for purposes of the Best
Evidence Rule; Exh. "G" has remained complete and unaltered, apart from the
signature of Nubi, thus the same is reliable for the purpose for which it was
generated; the RTC judge correctly credited the testimony of Aznar on the issuance
of the computer print-out as Aznar saw that it was signed by Nubi; said testimony
constitutes the "other evidence showing the integrity and reliability of the print-out to
the satisfaction of the judge" which is required under the Rules on Electronic
Evidence; the trial court was also correct in finding that Citibank was grossly
negligent in failing to credit the additional deposit and make the necessary entries
in its systems to prevent Aznar from encountering any embarrassing situation with
the use of his Mastercard.33
Citibank, in its Comment, contends that: Aznar never had personal knowledge that
his credit card was blacklisted as he only presumed such fact; the issue of dishonor
on the ground that the card was declared over the limit was also never tried with
the implied consent of both parties; Aznar’s self-serving testimony is not sufficient
to prove the integrity and reliability of Exh. "G"; Aznar did not declare that it was
Nubi who printed the document and that said document was printed in his presence
as he merely said that the print-out was provided him; there is also no annotation
on Exh. "G" to establish that it was Nubi who printed the same; assuming further
that Exh. "G" is admissible and Aznar’s credit card was dishonored, Citibank still
cannot be held liable for damages as it only shows that Aznar’s credit card was
dishonored for having been declared over the limit; Aznar’s cause of action against
Citibank hinged on the alleged blacklisting of his card which purportedly caused its
dishonor; dishonor alone, however, is not sufficient to award Aznar damages as he
must prove that the dishonor was caused by a grossly negligent act of Citibank; the
award of damages in favor of Aznar was based on Article 1170 34 of the Civil
Code, i.e., there was fraud, negligence or delay in the performance of its obligation;
there was no proof, however that Citibank committed fraud or delay or that it
contravened its obligations towards Aznar; the terms and conditions of the credit
card cannot be considered as a contract of adhesion since Aznar was entirely free
to reject the card if he did not want the conditions stipulated therein; a person
whose stature is such that he is expected to be more prudent with respect to his
transactions cannot later on be heard to complain for being ignorant or having been
forced into merely consenting to the contract.35
In his Reply, Aznar contended that to a layman, the term "blacklisting" is
synonymous with the words "hot list" or "declared overlimit"; and whether his card
was blacklisted or declared over the limit, the same was dishonored due to the fault
or gross negligence of Citibank.36
Aznar also filed a Memorandum raising as issues the following:
I. Whether or not the augmentation deposit in the amount of ₱485,000.00
of the Petitioner constitutes relative extinctive novation;
II. Whether or not the purchases made by Petitioner were beyond his
credit limit;
III. Whether or not the issues of dishonor by reason of overlimit was tried
with the consent of the parties;
IV. Whether or not the "On Line Authorization Report" is an electronic
document."
V. Whether or not the "On Line Authorization Report" constitutes
electronic evidence;
VI. Whether or not the agreement between the parties is a contract of
adhesion;
VII. Whether or not the Respondent is negligent in not crediting the
deposits of the Respondent.37
Aznar further averred in his Memorandum that Citibank assured him that with the
use of his Mastercard, he would never be turned down by any merchant store, and
that under Section 43, Rule 130 of the Rules of Court, Exh. "G" is admissible in
evidence.38
Citibank also filed a Memorandum reiterating its earlier arguments. 39
Stripped to its essentials, the only question that needs to be answered is: whether
Aznar has established his claim against Citibank.
The answer is no.
It is basic that in civil cases, the burden of proof rests on the plaintiff to establish his
case based on a preponderance of evidence. The party that alleges a fact also has
the burden of proving it.40
In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his
Mastercard which caused its dishonor in several establishments in Malaysia,
Singapore, and Indonesia, particularly in Ingtan Agency in Indonesia where he was
humiliated when its staff insinuated that he could be a swindler trying to use a
blacklisted card.
As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to prove
with a preponderance of evidence that Citibank blacklisted his Mastercard or
placed the same on the "hot list."41
Aznar in his testimony admitted that he had no personal knowledge that his
Mastercard was blacklisted by Citibank and only presumed such fact from the
dishonor of his card.
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was
confirmed to be authentic".
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was
authentic?
A. Okey. When I presented this Mastercard, my card rather, at the Merchant’s
store, I do not know, they called up somebody for verification then later they told
me that "your card is being denied". So, I am not in a position to answer that. I do
not know whom they called up; where they verified. So, when it is denied that’s
presumed to be blacklisted.
Q. So the word that was used was denied?
A. Denied.
Q. And after you were told that your card was denied you presumed that it
was blacklisted?
A. Definitely.
Q. So your statement that your card was allegedly blacklisted is only your
presumption drawn from the fact, from your allegations, that it was denied at
the merchandise store?
A. Yes, sir.42 (Emphasis supplied)
The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that
said credit card was blacklisted by Citibank, especially in view of Aznar’s own
admission that in other merchant establishments in Kuala Lumpur and Singapore,
his Mastercard was accepted and honored.43
Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT
ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency,
marked as Exh. "G", to prove that his Mastercard was dishonored for being
blacklisted. On said print-out appears the words "DECL OVERLIMIT" opposite
Account No. 5423-3920-0786-7012.
As correctly pointed out by the RTC and the CA, however, such exhibit cannot be
considered admissible as its authenticity and due execution were not sufficiently
established by petitioner.
The prevailing rule at the time of the promulgation of the RTC Decision is Section
20 of Rule 132 of the Rules of Court. It provides that whenever any private
document offered as authentic is received in evidence, its due execution and
authenticity must be proved either by (a) anyone who saw the document executed
or written; or (b) by evidence of the genuineness of the signature or handwriting of
the maker.
Aznar, who testified on the authenticity of Exh. "G," did not actually see the
document executed or written, neither was he able to provide evidence on the
genuineness of the signature or handwriting of Nubi, who handed to him said
computer print-out. Indeed, all he was able to allege in his testimony are the
following:
Q I show to you a Computer Print Out captioned as On Line Authorization Activity
Report where it is shown that the Preferred Master Card Number
5423392007867012 was denied as per notation on the margin of this Computer
Print Out, is this the document evidencing the dishonor of your Preferred Master
Card?
xxxx
A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and
on the left hand side you will be able to see the name of the person in-charged [sic]
there certifying that really my card is being blacklisted and there is the signature
there of the agency.
ATTY. NAVARRO:
The witness, your honor, is pointing to the signature over the handwritten name of
Victrina Elnado Nubi which I pray, your honor, that the Computer Print Out be
marked as our Exhibit "G" and the remarks at the left hand bottom portion of
Victorina Elnado Nubi with her signature thereon be encircled and be marked as
our Exhibit "G-1".
xxxx
Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit
"G"?
A This is provided by that Agency, your honor. They were the ones who
provided me with this. So what the lady did, she gave me the Statement and I
requested her to sign to show proof that my Preferred Master Card has been
rejected.44 (Emphasis supplied).
Even if examined under the Rules on Electronic Evidence, which took effect on
August 1, 2001, and which is being invoked by Aznar in this case, the
authentication of Exh. "G" would still be found wanting.
Pertinent sections of Rule 5 read:
Section 1. Burden of proving authenticity. – The person seeking to introduce an
electronic document in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. – Before any private electronic document
offered as authentic is received in evidence, its authenticity must be proved by any
of the following means:
(a) by evidence that it had been digitally signed by the person purported to
have signed the same;
(b) by evidence that other appropriate security procedures or devices as
may be authorized by the Supreme Court or by law for authentication of
electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction
of the judge.
Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other
evidence showing integrity and reliability of Exh. "G" to the satisfaction of the
judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan
Agency merely handed him the computer print-out and that he thereafter asked
said person to sign the same cannot be considered as sufficient to show said print-
out’s integrity and reliability. As correctly pointed out by Judge Marcos in his May
29, 1998 Decision, Exh. "G" does not show on its face that it was issued by Ingtan
Agency as Aznar merely mentioned in passing how he was able to secure the print-
out from the agency; Aznar also failed to show the specific business address of the
source of the computer print-out because while the name of Ingtan Agency was
mentioned by Aznar, its business address was not reflected in the print-out.45
Indeed, Aznar failed to demonstrate how the information reflected on the print-out
was generated and how the said information could be relied upon as true. In fact,
Aznar to repeat, testified as follows:
ATTY. NERI
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was
confirmed to be authentic"
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was
authentic?
A Okey. When I presented this Mastercard, my card rather, at the Merchant’s store,
I do not know, they called up somebody for verification then later they told me that
"your card is being denied". So, I am not in a position to answer that. I do not
know whom they called up; where they verified. So, when it is denied that’s
presumed to be blacklisted.46 (Emphasis supplied)
Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to
entries in the course of business, to support Exh. "G". Said provision reads:
Sec. 43. Entries in the course of business. – Entries made at, or near the time of
the transactions to which they refer, by a person deceased or unable to testify, who
was in a position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional capacity or in
the performance of duty and in the ordinary or regular course of business or duty.
Under this rule, however, the following conditions are required:
1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which
they refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or religious; and
5. the entries were made in the ordinary or regular course of business or
duty.47
As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on
the computer print-out the name of a certain "Victrina Elnado Nubi" and a signature
purportedly belonging to her, and at the left dorsal side were handwritten the words
"Sorry for the delay since the records had to be retrieved. Regards. Darryl Mario." It
is not clear therefore if it was Nubi who encoded the information stated in the print-
out and was the one who printed the same. The handwritten annotation signed by a
certain Darryl Mario even suggests that it was Mario who printed the same and only
handed the print-out to Nubi. The identity of the entrant, required by the provision
above mentioned, was therefore not established. Neither did petitioner establish in
what professional capacity did Mario or Nubi make the entries, or whether the
entries were made in the performance of their duty in the ordinary or regular course
of business or duty.
And even if Exh. "G" is admitted as evidence, it only shows that the use of the
credit card of petitioner was denied because it was already over the limit. There is
no allegation in the Complaint or evidence to show that there was gross negligence
on the part of Citibank in declaring that the credit card has been used over the limit.
The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10"
opposite petitioner's account number, which data, petitioner did not clarify. 48 As
plaintiff in this case, it was incumbent on him to prove that he did not actually incur
the said amount which is above his credit limit. As it is, the Court cannot see how
Exh. "G" could help petitioner's claim for damages.
The claim of petitioner that Citibank blacklisted his card through fraud or gross
negligence is likewise effectively negated by the evidence of Citibank which was
correctly upheld by the RTC and the CA, to wit:
xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank,
presented documents known as Warning Cancellation Bulletin for July 10, 17, 24,
and 31, 1994 (Exhibits ‘3’, ‘3-1’ to ‘3-38’, ‘4’, ‘4-1’ to ‘4-38’ ‘5’, ‘5-1’ to ‘5-39’ and ‘6’,
‘6-1’ to ‘6-39’), for August 7, 1994 (Exhibit[s] ‘7’, ‘7-1’ to ‘7-37’), for August 8, 1994
(Exhibit[s] ‘8’, ‘8-1’ to ‘8-20’) which show that plaintiff’s Citibank preferred
mastercard was not placed in a hot list or was not blacklisted.
The Warning Cancellation Bulletins (WCB) (Exhibits ‘3’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’ and their
submarkings) which covered the period of four (4) days in July 1994 (from July 10,
17, 24 and 31, 1994), and two (2) days in August 1994, (August 7 and 8, 1994),
when plaintiff traveled in the aforementioned Asian countries showed that said
Citibank preferred mastercard had never been placed in a ‘hot list’ or the same was
blacklisted, let alone the fact that all the credit cards which had been cancelled by
the defendant bank were all contained, reported and listed in said Warning
Cancellation Bulletin which were issued and released on a regular basis.
These three hundred (300) Warning Cancellation Bulletins pieces of documentary
proofs, all in all, adduced by defendant pointed to the fact that said plaintiff’s credit
car (sic) was not among those found in said bulletins as having been cancelled for
the period for which the said bulletins had been issued.
Between said computer print out (Exhibit ‘G’) and the Warning Cancellation
Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings) the latter documents adduced by
defendant are entitled to greater weight than that said computer print out presented
by plaintiff that bears on the issue of whether the plaintiff’s preferred master card
was actually placed in the ‘hot list’ or blacklisted for the following reasons:
The first reason is that the due execution and authentication of these Warning
Cancellation Bulletins (or WCB) have been duly established and identified by
defendant’s own witness, Dennis Flores, one of the bank’s officers, who is the head
of its credit card department, and, therefore, competent to testify on the said
bulletins as having been issued by the defendant bank showing that plaintiff’s
preferred master credit card was never blacklisted or placed in the Bank’s ‘hot list’.
But on the other hand, plaintiff’s computer print out (Exhibit ‘G’) was never
authenticated or its due execution had never been duly established. Thus, between
a set of duly authenticated commercial documents, the Warning Cancellation
Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings), presented by defendants (sic)
and an unauthenticated private document, plaintiff’s computer print out (Exhibit ‘G’),
the former deserves greater evidentiary weight supporting the findings of this Court
that plaintiff’s preferred master card (Exhibit ‘1’) had never been blacklisted at all or
placed in a so-called ‘hot list’ by defendant.49
Petitioner next argues that with the additional deposit he made in his account which
was accepted by Citibank, there was an implied novation and Citibank was under
the obligation to increase his credit limit and make the necessary entries in its
computerized systems in order that petitioner may not encounter any embarrassing
situation with the use of his credit card. Again, the Court finds that petitioner's
argument on this point has no leg to stand on.
Citibank never denied that it received petitioner’s additional deposit. 50 It even
claimed that petitioner was able to purchase plane tickets from Cebu to Kuala
Lumpur in the amount of ₱237,170.00, which amount was beyond his ₱150,000.00
limit, because it was able to credit petitioner’s additional deposit to his account.
Flores of Citibank testified:
COURT:
Q When was this ticket purchased, after the account was augmented
or before?
A After the account was augmented, Your Honor, because there is no way we can
approve a P250,000.00 purchase with a P150,000.00 credit limit. 51
xxx
ATTY. NERI:
For the record, your honor, the deposit of P450,000.00 was made as per
exhibit of the plaintiff on June 28. The purchase of the tickets amount to
P237,000.00 was approved and debited on the account of Mr. Aznar on July
20, your honor. The deposit was made about a month before the purchase of
the tickets as per documentary exhibits, your honor.
COURT:
So, Atty. Navarro, what do you say to that explanation?
ATTY. NAVARRO [counsel of petitioner]:
That is correct, your honor, that is borne out by the records, your
honor. (Emphasis supplied)
COURT: (to witness)
Q So, I think Atty. Navarro is only after whether a credit line could be extended?
A Yes, your honor.
Q Even if there is no augmenting?
A No, sir, it is not possible. So, the only way the ₱237,000.00 transaction could
be approved was by way of advance payment which actually happened in this
case because there is no way that the ₱237,000.00 can be approved with the
₱150,000.00 credit limit.52 (Emphasis supplied)
The allegations of blacklisting not having been proved, is Citibank liable for
damages for the dishonor of Aznar’s Mastercard?
Again, the answer is no.
Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms
and conditions governing the issuance of its Mastercard which read:
7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored
by any merchant affiliate for any reason. Furthermore, [the cardholder] will not hold
[Citibank] responsible for any defective product or service purchased through the
Card.
xxxx
15. LIMITATION OF LIABILITY. In any action arising from this agreement or any
incident thereto which [the cardholder] or any other party may file against [Citibank],
[Citibank’s] liability shall not exceed One Thousand Pesos [₱1,000.00] or the actual
damages proven, whichever is lesser.53
On this point, the Court agrees with Aznar that the terms and conditions of
Citibank’s Mastercard constitute a contract of adhesion. It is settled that contracts
between cardholders and the credit card companies are contracts of adhesion, so-
called, because their terms are prepared by only one party while the other merely
affixes his signature signifying his adhesion thereto. 54
In this case, paragraph 7 of the terms and conditions states that "[Citibank is] not
responsible if the Card is not honored by any merchant affiliate for any reason x x
x". While it is true that Citibank may have no control of all the actions of its
merchant affiliates, and should not be held liable therefor, it is incorrect, however,
to give it blanket freedom from liability if its card is dishonored by any merchant
affiliate for any reason. Such phrase renders the statement vague and as the said
terms and conditions constitute a contract of adhesion, any ambiguity in its
provisions must be construed against the party who prepared the contract, 55 in this
case Citibank.
Citibank also invokes paragraph 15 of its terms and conditions which limits its
liability to ₱1,000.00 or the actual damage proven, whichever is lesser.
Again, such stipulation cannot be considered as valid for being unconscionable as
it precludes payment of a larger amount even though damage may be clearly
proven. This Court is not precluded from ruling out blind adherence to the terms of
a contract if the attendant facts and circumstances show that they should be
ignored for being obviously too one-sided.56
damages are the recompense or compensation awarded for the damage suffered.
Thus, there can be damage without injury to those instances in which the loss or
harm was not the result of a violation of a legal duty. In such cases, the
consequences must be borne by the injured person alone, the law affords no
remedy for damages resulting from an act which does not amount to a legal injury
or wrong. These situations are often called damnum absque injuria.63
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.

The invalidity of the terms and conditions being invoked by Citibank,

notwithstanding, the Court still cannot award damages in favor of petitioner.

It is settled that in order that a plaintiff may maintain an action for the injuries of
which he complains, he must establish that such injuries resulted from a breach of
duty which the defendant owed to the plaintiff – a concurrence of injury to the
plaintiff and legal responsibility by the person causing it. The underlying basis for
the award of tort damages is the premise that an individual was injured in
contemplation of law; thus there must first be a breach before damages may be
awarded and the breach of such duty should be the proximate cause of the injury. 57

It is not enough that one merely suffered sleepless nights, mental anguish or
serious anxiety as a result of the actuations of the other party. It is also required
that a culpable act or omission was factually established, that proof that the
wrongful act or omission of the defendant is shown as the proximate cause of the
damage sustained by the claimant and that the case is predicated on any of the
instances expressed or envisioned by Arts. 221958 and 222059 of the Civil Code.60

In culpa contractual or breach of contract, moral damages are recoverable only if

the defendant has acted fraudulently or in bad faith, or is found guilty of gross
negligence amounting to bad faith, or in wanton disregard of his contractual
obligations. The breach must be wanton, reckless, malicious or in bad faith,
oppressive or abusive.61

While the Court commiserates with Aznar for whatever undue embarrassment he
suffered when his credit card was dishonored by Ingtan Agency, especially when
the agency’s personnel insinuated that he could be a swindler trying to use
blacklisted cards, the Court cannot grant his present petition as he failed to show
by preponderance of evidence that Citibank breached any obligation that would
make it answerable for said suffering.

As the Court pronounced in BPI Express Card Corporation v. Court of Appeals,62

We do not dispute the findings of the lower court that private respondent suffered
damages as a result of the cancellation of his credit card. However, there is a
material distinction between damages and injury. Injury is the illegal invasion of a
legal right; damage is the loss, hurt, or harm which results from the injury; and
 SECOND DIVISION

In connection with the employment contract, Jose, Jr. signed a declaration [10] dated
BERNARDO B. JOSE, JR., G.R. No. 169606 10 June 2002 stating that:
Petitioner,
Present: In order to implement the Drug and Alcohol Policy on board the
managed vessels the following with [sic] apply:
CARPIO, J., Chairperson,
LEONARDO-DE CASTRO,* All alcoholic beverages, banned substances and unprescribed
- versus - BRION, drugs including but not limited to the following: Marijuana Cocaine
DEL CASTILLO, and Phencyclidine Amphetamines Heroin Opiates are banned from
ABAD, JJ. Stelmar Tankers (Management) Ltd. managed vessels.
Disciplinary action up to and including dismissal will be taken against any employee
MICHAELMAR PHILS., INC. found to be in possession of or impaired by the use of any of the above mentioned
and MICHAELMAR SHIPPING Promulgated: substances.
SERVICES, INC.,
Respondents. November 27, 2009 A system of random testing for any of the above banned substances will be used to
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x enforce this policy. Any refusal to submit to such tests shall be deemed as a
serious breach of the employment contract and shall result to the seamans
dismissal due to his own offense.
DECISION
Therefore any seaman will be instantly dismissed if:
CARPIO, J.: xxx
They are found to have positive trace of alcohol or any of the banned substances in
The Case any random testing sample.

This is a petition[1] for review on certiorari under Rule 45 of the Rules of

Court. The petition challenges the 11 May 2005 Decision [2] and 5 August 2005
Resolution[3] of the Court of Appeals in CA-G.R. SP No. 83272. The Court of
Appeals set aside the 19 January[4] and 22 March[5] 2004 Resolutions of the
National Labor Relations Commission (NLRC) in NLRC NCR CA No. 036666-03
and reinstated the 18 June 2003 Decision[6] of the Labor Arbiter in NLRC NCR
OFW Case No. (M)02-12-3137-00.
The Facts
Michaelmar Philippines, Inc. (MPI) is the Philippine agent of Michaelmar Shipping
Services, Inc. (MSSI). In an undertaking[7] dated 2 July 2002 and an employment
contract[8]dated 4 July 2002, MSSI through MPI engaged the services of Bernardo B.
Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment contract stated:
That the employee shall be employed on board under the following
terms and conditions:
1.1 Duration of Contract EIGHT (8) MONTHS
Position OILER
Basic Monthly Salary US$ 450.00 & US$ 39.00 TANKER ALLOWANCE
Hours of Work 48 HOURS/WEEK
Overtime US$ 386.00 FIXED OT. 105 HRS/ MOS.
Vacation Leave with Pay US$ 190.00 & US$ 150 OWNERS BONUS
Point of Hire MANILA, PHILIPPINES[9]
Jose, Jr. began performing his duties on board the M/T Limar on 21 August 2002. On
8 October 2002, a random drug test was conducted on all officers and crew members
of M/T Limar at the port of Curacao. Jose, Jr. was found positive for marijuana. Jose,
Jr. was informed about the result of his drug test and was asked if he was taking any
medication. Jose, Jr. said that he was taking Centrum vitamins.
Jose, Jr. was allowed to continue performing his duties on board the M/T Limar
from 8 October to 29 November 2002. In the Sea Going Staff Appraisal
Report[11] on Jose Jr.s work performance for the period of 1 August to 28 November
2002, Jose, Jr. received a 96% total rating and was described as very hardworking,
trustworthy, and reliable.
On 29 December 2002, M/T Limar reached the next port after the random drug test
and Jose, Jr. was repatriated to the Philippines. When Jose, Jr. arrived in the
Philippines, he asked MPI that a drug test be conducted on him. MPI ignored his
request. On his own, Jose, Jr. procured drug tests from Manila Doctors
Hospital,[12] S.M. Lazo Medical Clinic, Inc.,[13] and Maritime Clinic for International
Services, Inc.[14] He was found negative for marijuana.
Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal dismissal
with claim for his salaries for the unexpired portion of the employment contract.
The Labor Arbiters Ruling
In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint for lack of
merit. The Labor Arbiter held that:
Based from the facts and evidence, this office inclined [sic] to
rule in favor of the respondents: we find that complainants
termination from employment was valid and lawful. It is
established that complainant, after an unannounced drug test
conducted by the respondent principal on the officers and
crew on board the vessel, was found positive of marijuana, a
prohibited drug. It is a universally known fact the menace that
drugs bring on the user as well as to others who may have got
on his way. It is noted too that complainant worked on board
a tanker vessel which carries toxic materials such as fuels,
gasoline and other combustible materials which require
delicate and careful handling and being an oiler, complainant
is expected to be in a proper disposition.Thus, we agree with
respondents that immediate repatriation of complainant is
warranted for the safety of the vessel as well as to
complainants co-workers on board. It is therefore a risk that
should be avoided at all cost. Moreover, under the POEA
Standard Employment Contract as cited by the respondents
(supra), violation of the drug and alcohol policy of the
company carries with it the penalty of dismissal to be effected
by the master of the vessel. It is also noted that complainant
was made aware of the results of the drug test as per Drug
Test Certificate dated October 29, 2002. He was not dismissed
right there and then but it was only on December 29, 2002 that
he was repatriated for cause.
As to the complainants contention that the ship doctors report can not be relied
upon in the absence of other evidence supporting the doctors findings for the
simple reason that the ship doctor is under the control of the principal employer, the
same is untenable. On the contrary, the findings of the doctor on board should be
given credence as he would not make a false clarification. Dr. A.R.A Heath could
not be said to have outrageously contrived the results of the complainants drug
test. We are therefore more inclined to believe the original results of the
unannounced drug test as it was officially conducted on board the vessel rather
than the subsequent testing procured by complainant on his own initiative. The
result of the original drug test is evidence in itself and does not require additional
supporting evidence except if it was shown that the drug test was conducted not in
accordance with the drug testing procedure which is not obtaining in this particular
case. [H]ence, the first test prevails.
We can not also say that respondents were motivated by ill will against the
complainant considering that he was appraised to be a good worker. For this
reason that respondents would not terminate [sic] the services of complainant were
it not for the fact that he violated the drug and alcohol policy of the
company. [T]hus, we find that just cause exist [sic] to justify the termination of
complainant.[15]
Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to the NLRC. Jose, Jr.
claimed that the Labor Arbiter committed grave abuse of discretion in ruling that he
was dismissed for just cause.
The NLRCs Ruling
In its 19 January 2004 Resolution, the NLRC set aside the Labor Arbiters 18
June 2003 Decision. The NLRC held that Jose, Jr.s dismissal was illegal and
ordered MPI and MSSI to pay Jose, Jr. his salaries for the unexpired portion of
the employment contract. The NLRC held that:
Here, a copy of the purported drug test result for Complainant
indicates, among others, the following typewritten words
Hoofd: Drs. R.R.L. Petronia Apotheker and THC-COOH POS.;
the handwritten word Marihuana; and the stamped words Dr.
A.R.A. Heath, MD, SHIPS DOCTOR and 29 OKT.
2002.However, said test result does not contain any
signature, much less the signature of any of the doctors
whose names were printed therein (Page 45, Records). Verily,
the veracity of this purported drug test result is questionable,
hence, it cannot be deemed as substantial proof that
Complainant violated his employers no alcohol, no drug
policy. In fact, in his November 14, 2002 message to Stelmar
Tanker Group, the Master of the vessel where Complainant
worked, suggested that another drug test for complainant
should be taken when the vessel arrived [sic] in Curacao next
call for final findings (Page 33, Records), which is an
indication that the Master, himself, was in doubt with the
purported drug test result. Indeed there is reason for the
Master of the vessel to doubt that Complainant was taking in
the prohibited drug marihuana. The Sea Going Staff Appraisal
Report signed by Appraiser David A. Amaro, Jr. and reviewed
by the Master of the vessel himself on complainants work
performance as Wiper from August 1, 2002 to November 28,
2002 which included a two-month period after the purported
drug test, indicates that out of a total score of 100% on Safety
Consciousness (30%), Ability (30%), Reliability (20%) and
Behavior & Attitude (20%), Complainant was assessed a
score of 96% (Pages 30-31, Records). Truly, a worker who had
been taking in prohibited drug could not have given such an
excellent job performance. Significantly, under the category
Behavior & Attitude (20%), referring to his personal
relationship and his interactions with the rest of the ships
staff and his attitude towards his job and how the rest of the
crew regard him, Complainant was assessed the full score of
20% (Page 31, Records), which belies Respondents
insinuation that his alleged offense directly affected the
safety of the vessel, its officers and crew members. Indeed, if
Complainant had been a threat to the safety of the vessel,
officers and crew members, he would not be been [sic]
allowed to continue working almost three (3) months after his
alleged offense until his repatriation on December 29,
 2002. Clearly, Respondents failed to present substantial proof
that Complainants dismissal was with just or authorized
cause.
Moreover, Respondents failed to accord Complainant due process prior to his
dismissal. There is no showing that Complainants employer furnished him with a
written notice apprising him of the particular act or omission for which his dismissal
was sought and a subsequent written notice informing him of the decision to
dismiss him, much less any proof that Complainant was given an opportunity to
answer and rebut the charges against him prior to his dismissal. Worse,
Respondents invoke the provision in the employment contract which allows
summary dismissal for cases provided therein. Consequently, Respondents argue
that there was no need for him to be notified of his dismissal. Such blatant violation
of basic labor law principles cannot be permitted by this Office. Although a contract
is law between the parties, the provisions of positive law which regulate such
contracts are deemed included and shall limit and govern the relations between the
parties (Asia World Recruitment, Inc. vs. NLRC, G.R. No. 113363, August 24,
1999).
Relative thereto, it is worth noting Section 10 of Republic Act No. 8042, which
provides that In cases of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, the worker shall be entitled to the
full reimbursement of his placement fee with interest of twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term, whichever is less.[16]
MPI and MSSI filed a motion for reconsideration. In its 22 March 2004
Resolution, the NLRC denied the motion for lack of merit. MPI and MSSI filed
with the Court of Appeals a petition[17] for certiorari under Rule 65 of the Rules
of Court. MPI and MSSI claimed that the NLRC gravely abused its discretion
when it (1) reversed the Labor Arbiters factual finding that Jose, Jr. was legally
dismissed; (2) awarded Jose, Jr. his salaries for the unexpired portion of the
employment contract; (3) awarded Jose, Jr. $386 overtime pay; and (4) ruled
that Jose, Jr. perfected his appeal within the reglementary period.
The Court of Appeals Ruling
In its 11 May 2005 Decision, the Court of Appeals set aside the 19 January and 22
March 2004 Resolutions of the NLRC and reinstated the 18 June 2003 Decision of
the Labor Arbiter. The Court of Appeals held that:
The POEA standard employment contract adverted to in the labor
arbiters decision to which all seamens contracts must adhere
explicitly provides that the failure of a seaman to obey the policy
warrants a penalty of dismissal which may be carried out by the
master even without a notice of dismissal if there is a clear and
existing danger to the safety of the vessel or the crew. That the
petitioners were implementing a no-alcohol, no drug policy that
was communicated to the respondent when he embarked is not in
question. He had signed a document entitled Drug and Alcohol
Declaration in which he acknowledged that alcohol beverages and
unprescribed drugs such as marijuana were banned on the vessel
and that any employee found possessing or using these
substances would be subject to instant dismissal. He undertook to
comply with the policy and abide by all the relevant rules and
guidelines, including the system of random testing that would be
employed to enforce it.
We can hardly belabor the reasons and justification for this
policy. The safety of the vessel on the high seas is a matter of
supreme and unavoidable concern to all the owners, the crew and
the riding public. In the ultimate analysis, a vessel is only as
seaworthy as the men who sail it, so that it is necessary to maintain
at every moment the efficiency and competence of the
crew.Without an effective no alcohol, no drug policy on board the
ship, the vessels safety will be seriously compromised. The policy
is, therefore, a reasonable and lawful order or regulation that, once
made known to the employee, must be observed by him, and the
failure or refusal of a seaman to comply with it should
constitute serious misconduct or willful disobedience that is a just
cause for the termination of employment under the Labor Code
(Aparente vs. National Labor Relations Commission, 331 SCRA
82). As the labor arbiter has discerned, the seriousness and
earnestness in the enforcement of the ban is highlighted by the
provision of the POEA Standard Employment Contract allowing
the ship master to forego the notice of dismissal requirement in
effecting the repatriation of the seaman violating it.
xxxx
Under legal rules of evidence, not all unsigned documents
or papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from him
because of necessity and under circumstances that safeguard the
trustworthiness of the paper. A number of evidence of this sort are
called entries in the course of business, which are transactions
made by persons in the regular course of their duty or
business. We agree with the labor arbiter that the drug test result
constitutes entries made in the ordinary or regular course of duty
of a responsible officer of the vessel. The tests administered to the
crew were routine measures of the vessel conducted to enforce its
stated policy, and it was a matter of course for medical reports to
be issued and released by the medical officer. The ships physician
at Curacao under whom the tests were conducted was admittedly
Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and there
is no basis to suspect that these results were issued other than in
the ordinary course of his duty. As the labor arbiter points out, the
drug test report is evidence in itself and does not require additional
supporting evidence except if it appears that the drug test was
conducted not in accordance with drug testing
procedures. Nothing of the sort, he says, has even been
suggested in this particular case.

The regularity of the procedure observed in the administration and reporting of the
tests is the very assurance of the reports admissibility and credibility under the laws
of the evidence. We see no reason why it cannot be considered substantial
evidence, which, parenthetically, is the lowest rung in the ladder of evidence. It is
from the fact that a report or entry is a part of the regular routine work of a business
or profession that it derives its value as legal evidence.
Then the respondent was notified of the results and allowed to explain himself. He
could not show any history of medication that could account for the traces of drugs
in his system. Despite his lack of plausible excuses, the ship captain came out in
support of him and asked his superiors to give him another chance. These
developments prove that the respondent was afforded due process consistent with
the exigencies of his service at sea. For the NLRC to annul the process because he
was somehow not furnished with written notice is already being pedantic. What is
the importance to the respondent of the difference between a written and verbal
notice when he was actually given the opportunity to be heard? x x x
The working environment in a seagoing vessel is sui generis which amply justifies
the difference in treatment of seamen found guilty of serious infractions at sea. The
POEA Standard Employment Contract allows the ship master to implement a
repatriation for just cause without a notice of dismissal if this is necessary to avoid
a clear and existing danger to the vessel. The petitioners have explained that that
[sic] it is usually at the next port of call where the offending crewman is made to
disembark. In this case, a month had passed by after the date of the medical report
before they reached the next port. We may not second-guess the judgment of the
master in allowing him to remain at his post in the meantime. It is still reasonable to
believe that the proper safeguards were taken and proper limitations observed
during the period when the respondent remained on board.
Finally, the fact that the respondent obtained negative results in subsequent drug
tests in the Philippines does not negate the findings made of his condition on board
the vessel. A drug test can be negative if the user undergoes a sufficient period of
abstinence before taking the test. Unlike the tests made at his instance, the drug
test on the vessel was unannounced. The credibility of the first test is, therefore,
greater than the subsequent ones.[18]
Jose, Jr. filed a motion[19] for reconsideration. In its 5 August 2005 Resolution, the
Court of Appeals denied the motion for lack of merit. Hence, the present petition.
In a motion[20] dated 1 August 2007, MPI and MSSI prayed that they be substituted
by OSG Ship Management Manila, Inc. as respondent in the present case. In a
Resolution[21]dated 14 November 2007, the Court noted the motion.
The Issues
In his petition dated 13 September 2005, Jose, Jr. claims that he was illegally
dismissed from employment for two reasons: (1) there is no just cause for his
dismissal because the drug test result is unsigned by the doctor, and (2) he was not
afforded due process. He stated that:
2. The purported drug test result conducted to petitioner indicates,
among others, the following: [sic] typwritten words Hool: Drs.
R.R.L.. [sic] Petronia Apotheker [sic] and :THC-COOH POS. [sic];
the handwritten word Marihuana; and the stamped words Dr.
A.R.A Heath, MD, SHIPS DOCTOR and 29 OKT. 2002. However,
said test result does not contain any signature, much less the
signature of any of the doctors whose name [sic] were printed
therein. This omission is fatal as it goes to the veracity of the said
purported drug test result. Consequently, the purported drug test
result cannot be deemed as substantial proof that petitioner
violated his employers no alcohol, no drug policy [sic].
xxxx
Even assuming arguendo that there was just cause,
respondents miserably failed to show that the presence of the
petitioner in the vessel constitutes a clear and existing danger
to the safety of the crew or the vessel. x x x
xxxx
It is a basic principle in Labor Law that in termination disputes, the burden is on the
employer to show that the dismissal was for a just and valid cause. x x x
xxxx
x x x [T]he Honorable Labor Arbiter as well as the Honorable Court of Appeals
clearly erred in ruling that there was just cause for the termination of petitioners
employment. Petitioners employment was terminated on the basis only of a mere
allegation that is unsubstantiated, unfounded and on the basis of the drug test
report that was not even signed by the doctor who purportedly conducted such test.
5. Moreover, respondents failed to observe due process in terminating petitioners
employment. There is no evidence on record that petitioner was furnished by his
employer with a written notice apprising him of the particular act or omission which
is the basis for his dismissal. Furthermore, there is also no evidence on record that
the second notice, informing petitioner of the decision to dismiss, was served to the
petitioner. There is also no proof on record that petitioner was given an opportunity
to answer and rebut the charges against him prior to the dismissal. [22]

The Courts Ruling
In its 11 May 2005 Decision, the Court of Appeals held that there was just cause for
Jose, Jr.s dismissal. The Court of Appeals gave credence to the drug test result
showing that Jose, Jr. was positive for marijuana. The Court of Appeals considered
the drug test result as part of entries in the course of business. The Court of Appeals
held that:
Under legal rules of evidence, not all unsigned documents or
papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from him
because of necessity and under circumstances that safeguard the
trustworthiness of the paper. A number of evidence of this sort are
called entries in the course of business, which are transactions
made by persons in the regular course of their duty or
business. We agree with the labor arbiter that the drug test result
constitutes entries made in the ordinary or regular course of
duty of a responsible officer of the vessel. The tests
administered to the crew were routine measures of the vessel
conducted to enforce its stated policy, and it was a matter of
course for medical reports to be issued and released by the
medical officer. The ships physician at Curacao under whom
the tests were conducted was admittedly Dr. Heath. It was
under his name and with his handwritten comments that the
report on the respondent came out, and there is no basis to
suspect that these results were issued other than in the
ordinary course of his duty. As the labor arbiter points out,
the drug test report is evidence in itself and does not require
additional supporting evidence except if it appears that the
drug test was conducted not in accordance with drug testing
procedures. Nothing of the sort, he says, has even been
suggested in this particular case.[23] (Emphasis supplied)
Jose, Jr. claims that the Court of Appeals erred when it ruled that there was just
cause for his dismissal. The Court is not impressed. In a petition for review on
certiorari under Rule 45 of the Rules of Court, a mere statement that the Court of
Appeals erred is insufficient. The petition must state the law or jurisprudence and the
particular ruling of the appellate court violative of such law or
jurisprudence. In Encarnacion v. Court of Appeals,[24] the Court held that:
Petitioner asserts that there is a question of law involved in this
appeal. We do not think so. The appeal involves an appreciation
of facts, i.e., whether the questioned decision is supported by the
evidence and the records of the case. In other words, did the Court
of Appeals commit a reversible error in considering the trouble
record of the subject telephone? Or is this within the province of
the appellate court to consider? Absent grave abuse of discretion,
this Court will not reverse the appellate courts findings of fact.
In a petition for review under Rule 45, Rules of Court, invoking
the usual reason, i.e., that the Court of Appeals has decided a
question of substance not in accord with law or with
applicable decisions of the Supreme Court, a mere statement
of the ceremonial phrase is not sufficient to confer merit on
the petition. The petition must specify the law or prevailing
jurisprudence on the matter and the particular ruling of the
appellate court violative of such law or previous doctrine laid
down by the Supreme Court. (Emphasis supplied)
In the present case, Jose, Jr. did not show that the Court of Appeals ruling is violative
of any law or jurisprudence. Section 43, Rule 130, of the Rules of Court states:
SEC. 43. Entries in the course of business. Entries made at, or
near the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the
facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of
business or duty.
In Canque v. Court of Appeals,[25] the Court laid down the requisites for admission in
evidence of entries in the course of business: (1) the person who made the entry is
dead, outside the country, or unable to testify; (2) the entries were made at or near
the time of the transactions to which they refer; (3) the person who made the entry
was in a position to know the facts stated in the entries; (4) the entries were made in
a professional capacity or in the performance of a duty; and (5) the entries were made
in the ordinary or regular course of business or duty.
Here, all the requisites are present: (1) Dr. Heath is outside the country; (2) the
entries were made near the time the random drug test was conducted; (3) Dr.
Heath was in a position to know the facts made in the entries; (4) Dr. Heath made
the entries in his professional capacity and in the performance of his duty; and (5)
the entries were made in the ordinary or regular course of business or duty.
The fact that the drug test result is unsigned does not necessarily lead to the
conclusion that Jose, Jr. was not found positive for marijuana. In KAR ASIA, Inc. v.
Corona,[26] the Court admitted in evidence unsigned payrolls. In that case, the Court
held that:
Entries in the payroll, being entries in the course of business, enjoy
the presumption of regularity under Rule 130, Section 43 of the
Rules of Court. It is therefore incumbent upon the respondents to
adduce clear and convincing evidence in support of their
claim. Unfortunately, respondents naked assertions without proof
in corroboration will not suffice to overcome the disputable
presumption.
In disputing the probative value of the payrolls for December 1994, the appellate
court observed that the same contain only the signatures of Ermina Daray and
Celestino Barreto, the paymaster and the president, respectively. It further opined
that the payrolls presented were only copies of the approved payment, and not
copies disclosing actual payment.
The December 1994 payrolls contain a computation of the amounts payable to the
employees for the given period, including a breakdown of the allowances and
deductions on the amount due, but the signatures of the respondents are
conspicuously missing. Ideally, the signatures of the respondents should
appear in the payroll as evidence of actual payment. However, the absence of
such signatures does not necessarily lead to the conclusion that the
December 1994 COLA was not received. (Emphasis supplied)
In the present case, the following facts are established (1) random drug tests are
regularly conducted on all officers and crew members of M/T Limar; (2) a random
drug test was conducted at the port of Curacao on 8 October 2002; (3) Dr. Heath
was the authorized physician of M/T Limar; (4) the drug test result of Jose, Jr. showed
that he was positive for marijuana; (5) the drug test result was issued under Dr.
Heaths name and contained his handwritten comments. The Court of Appeals found
that:
The tests administered to the crew were routine measures of the
vessel conducted to enforce its stated policy, and it was a matter
of course for medical reports to be issued and released by the
medical officer. The ships physician at Curacao under whom the
tests were conducted was admittedly Dr. Heath. It was under his
name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these
results were issued other than in the ordinary course of his
duty. As the labor arbiter points out, the drug test report is
evidence in itself and does not require additional supporting
evidence except if it appears that the drug test was conducted not
in accordance with drug testing procedures. Nothing of the sort,
he says, has even been suggested in this particular case. [27]
Factual findings of the Court of Appeals are binding on the Court. Absent grave
abuse of discretion, the Court will not disturb the Court of Appeals factual
findings.[28] In Encarnacion,[29] the Court held that, unless there is a clearly grave or
whimsical abuse on its part, findings of fact of the appellate court will not be
disturbed. The Supreme Court will only exercise its power of review in known
exceptions such as gross misappreciation of evidence or a total void of
evidence. Jose, Jr. failed to show that the Court of Appeals gravely abused its
discretion.
Article 282(a) of the Labor Code states that the employer may terminate an
employment for serious misconduct. Drug use in the premises of the employer
constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial
Corporation,[30] the Court held that:
The charge of drug use inside the companys premises and
during working hours against petitioner constitutes serious
misconduct, which is one of the just causes for
termination. Misconduct is improper or wrong conduct. It is the
transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies
wrongful intent and not merely an error in judgment. The
misconduct to be serious within the meaning of the Act must be of
such a grave and aggravated character and not merely trivial or
unimportant. Such misconduct, however serious, must
nevertheless, in connection with the work of the employee,
constitute just cause for his separation. This Court took judicial
notice of scientific findings that drug abuse can damage the
mental faculties of the user. It is beyond question therefore
that any employee under the influence of drugs cannot
possibly continue doing his duties without posing a serious
threat to the lives and property of his co-workers and even
his employer. (Emphasis supplied)
Jose, Jr. claims that he was not afforded due process. The Court agrees. There are
two requisites for a valid dismissal: (1) there must be just cause, and (2) the
employee must be afforded due process. [31] To meet the requirements of due
process, the employer must furnish the employee with two written notices a notice
apprising the employee of the particular act or omission for which the dismissal is
sought and another notice informing the employee of the employers decision to
dismiss. In Talidano v. Falcon Maritime & Allied Services, Inc.,[32] the Court held that:
[R]espondent failed to comply with the procedural due process
required for terminating the employment of the employee. Such
requirement is not a mere formality that may be dispensed with at
will. Its disregard is a matter of serious concern since it constitutes
a safeguard of the highest order in response to mans innate sense
of justice. The Labor Code does not, of course, require a formal or
trial type proceeding before an erring employee may be
dismissed. This is especially true in the case of a vessel on the
ocean or in a foreign port. The minimum requirement of due
process termination proceedings, which must be complied
with even with respect to seamen on board a vessel, consists
of notice to the employees intended to be dismissed and the
grant to them of an opportunity to present their own side of
the alleged offense or misconduct, which led to the
managements decision to terminate. To meet the
requirements of due process, the employer must furnish the
worker sought to be dismissed with two written notices
before termination of employment can be legally effected, i.e.,
(1) a notice which apprises the employee of the particular acts
or omissions for which his dismissal is sought; and (2) the
subsequent notice after due hearing which informs the
employee of the employers decision to dismiss
him. (Emphasis supplied)
In the present case, Jose, Jr. was not given any written notice about his
dismissal. However, the propriety of Jose, Jr.s dismissal is not affected by the lack
of written notices.When the dismissal is for just cause, the lack of due process does
not render the dismissal ineffectual but merely gives rise to the payment of P30,000
in nominal damages.[33]

WHEREFORE, the petition is DENIED. The 11 May 2005 Decision and 5 August
2005 Resolution of the Court of Appeals in CA-G.R. SP No. 83272
are AFFIRMED with the MODIFICATION that OSG Ship Management Manila, Inc.
is ordered to pay Bernardo B. Jose, Jr. P30,000 in nominal damages.
 [G.R. No. 107735. February 1, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SAN
GABRIEL y ORTIZ, defendant-appellant.
DECISION
BELLOSILLO, J.:
RICARDO O. SAN GABRIEL was charged with murder in an Information
alleging that on 26 November 1989, armed with a bladed weapon, in conspiracy with
Ramon Doe, with treachery, evident premeditation and intent to kill, he assaulted and
stabbed to death Jaime A. Tonog.[1] The trial court convicted the accused as charged
and sentenced him to life imprisonment and to pay the heirs of Jaime Tonog the sum
of P30,000, plus costs.[2]
The accused is now before us on appeal.
The evidence shows that at around seven oclock in the evening of 26
November 1989, within the vicinity of Pier 14 at North Harbor along Marcos
Road, Manila, a fistfight ensued between Jaime Tonog on one hand and the accused
Ricardo San Gabriel together with Ramon Doe on the other. The fight was eventually
broken up when onlookers pacified the protagonists. Ricardo and Ramon then
hastened towards Marcos Road but in no time were back with bladed weapons. They
approached Tonog surreptitiously, surrounded him and simultaneously stabbed him
in the stomach and at the back, after which the assailants ran towards the highway
leaving Tonog behind on the ground. He was then brought
to Mary JohnstonHospital where he was pronounced dead on arrival.
Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District,
autopsied the cadaver of the victim and reported that it sustained two (2) penetrating
stab wounds each caused by a single-bladed instrument. He opined that both
wounds were fatal.[3]
The accused has a different version. He testified that he saw Tonog drunk;
Tonog even attempted to box him but he parried his blow; Tonog continued walking
but when he chanced upon Ramon he suddenly and without provocation boxed and
kicked Ramon; Ramon fought back but was subdued by his bigger assailant so the
former ran towards the highway; when Tonog met a certain Mando he boxed the
latter who however fought back despite his (accused) warning not to; at this moment
he saw Ramon return with a bolo on hand; he warned Ramon not to fight but his
advice went unheeded; instead, with bolo on hand Ramon struck Tonog on the belly;
when Mando saw what happened he (Mando) pulled out his knife and also stabbed
Tonog at the back; Ramon and Mando then fled towards the highway.
The accused further claimed that he even stayed with the victim and called out
the latters companions to bring him to the hospital; that prosecution witness Brenda
Gonzales only arrived at the crime scene after Tonog was already taken to the
hospital; that Brenda even inquired from him what happened and then prodded him
to testify; that his refusal coupled with the fact that he owed Gonzales some money
earned him the ire of the latter and that was why he was charged for the death of
Tonog.
Accused-appellant claims in this appeal that the trial court erred: (a) in giving
credence to the testimonies of prosecution witnesses Brenda Gonzales and Pio
Ochobillo, and for discrediting his; (b) in finding that the killing was attended with
evident premeditation; (c) in ruling that he committed treachery and, (d) in convicting
him of murder.[4]
We sustain the conviction of the accused for murder. It is settled that findings
of fact of the trial court are accorded greatest respect by the appellate court absent
any abuse of discretion,[5] and none is perceivable in the case at bench; hence we
affirm the factual findings of the trial court.
The accused contends that the testimonies of the prosecution witnesses are
incredible and conflicting. We however find otherwise. Gonzales and Ochobillo, as
observed by the trial court, testified in a direct and candid manner. No evil motive is
attributed to them as to testify falsely against the accused. That Gonzales harbored
a grudge against the accused because he owed her some money, and even enticed
her customers into patronizing another carinderia, can hardly be believed. We are
not convinced that Brenda Gonzales would testify against accused-appellant for a
crime so grave simply because he owed her a measly sum of P300.00. That he
enticed the customers of Gonzales into patronizing another carinderia is belied by
the fact that on the night of the incident he was, as he claimed, eating at
the carinderia of Gonzales. If there be any testimony that should be considered
incredible and illogical it must be that of the accused. His assertion that Mando
stabbed the victim should not receive any evidentiary value when weighed against
the positive assertion of the prosecution witnesses that the accused was the
assailant of Jaime Tonog.
Quite interestingly, the accused did not offer any information regarding the
person and circumstances of Mando. Up to this date Mando remains a myth. Not a
single witness was presented by the defense to prove who Mando was, nor even a
hint of his personal circumstances. During the entire proceedings in the court below
Mando was never mentioned by the prosecution witnesses. Nobody ever implicated
him except the accused. In fact, there should have been no difficulty procuring
witnesses to testify on the part of the accused as the incident was viewed openly by
a multitude of bystanders. His failure to present any witness pointing to Mando as
the perpetrator of the crime convinces us that Mando in fact existed only as a figment
of the mind.
The accused also asserts that Gonzales arrived at the crime scene only after
the victim was brought to the hospital and that she even inquired from him about
what happened. Again we are not persuaded. The statement contradicts the earlier
version of the accused that Gonzales was prejudiced against him as he owed her
some money. For, granting that Gonzales had a grudge against him it was not likely
that she would inquire from him about the incident as there were other persons then
present who could shed light on the startling occurrence. Equally dubious is the
avowal of the accused that Gonzales arrived at the crime scene only after the victim
was rushed to the hospital considering that the incident took place just in front of her
store. Besides, this claim was easily demolished by Gonzales detailed account of the
fight.
The fact that the witnesses did not immediately report the incident to the police
does not necessarily discredit them. After all, reports were made albeit by different
persons. The accused banks on the apparent inconsistency as to why Gonzales
failed to give immediately her account of the killing to the authorities. But the
discrepancy is so minor that it cannot undermine her credibility nor detract from the
truth that she personally witnessed the incident and positively identified the accused.
The accused leans heavily on the Advance Information Sheet[6] prepared by
Pat. Steve Casimiro which did not mention him at all and named only Ramon Doe as
the principal suspect.Unfortunately this cannot defeat the positive and candid
testimonies of the prosecution witnesses. Entries in official records, as in the case of
a police blotter, are only prima facie evidence of the facts therein stated. They are
not conclusive. The entry in the police blotter is not necessarily entitled to full credit
for it could be incomplete and inaccurate, sometimes from either partial suggestions
or for want of suggestions or inquiries, without the aid of which the witness may be
unable to recall the connected collateral circumstances necessary for the correction
of the first suggestion of his memory and for his accurate recollection of all that
pertain to the subject. It is understandable that the testimony during the trial would
be more lengthy and detailed than the matters stated in the police
blotter.[7] Significantly, the Advance Information Sheet was never formally offered by
the defense during the proceedings in the court below.Hence any reliance by the
accused on the document must fail since the court cannot consider any evidence
which has not been formally offered.[8]
Parenthetically, the Advance Information Sheet was prepared by the police
officer only after interviewing Camba, an alleged eyewitness. The accused then
could have compelled the attendance of Camba as a witness. The failure to exert the
slightest effort to present Camba on the part of the accused should militate against
his cause. Entries in official records made in the performance of his duty by a public
officer or by a person in the performance of a duty specially enjoined by law are prima
facie evidence of the facts therein stated.[9] But to be admissible in evidence three
(3) requisites must concur: (a) The entry was made by a police officer or by another
person specially enjoined by law to do so; (b) It was made by the public officer in the
performance of his duties or by such other person in the performance of a duty
specially enjoined by law; and, (c) The public officer or other person had sufficient
knowledge of the facts by him stated, which must have been acquired by him
personally or through official information.[10]
The Advance Information Sheet does not constitute an exception to the
hearsay rule, hence, inadmissible. The public officer who prepared the document had
no sufficient and personal knowledge of the stabbing incident. Any information
possessed by him was acquired from Camba which therefore could not be
categorized as official information because in order to be classified as such the
persons who made the statements not only must have personal knowledge of the
facts stated but must have the duty to give such statements for the record. [11] In the
case of Camba, he was not legally so obliged to give such statements.
The accused enumerates discrepancies in the testimonies of the prosecution
witnesses. Thus, according to him, it was testified that the victim was stabbed by the
accused at the back but failed to point out its precise location. The stabbing
admittedly occurred at around seven oclock in the evening but the Advance
Information Sheet reported 6:30 p.m. One witness testified that the fistfight was only
between the victim and Ramon Doe, while another reported that it involved the victim,
Ramon Doe and the accused. Further, it was not accurately determined whether
Ramon and the accused returned to the scene of the crime within five (5) minutes or
after the lapse thereof.
As previously stated, the discrepancies do not militate against the fact firmly
established by the prosecution that Tonog was stabbed at the back by the accused
and by Ramon Doe in the abdomen. Any discordance noted is so minor and
insignificant that no further consideration is essential. The most honest witnesses
make mistakes sometimes, but such innocent lapses do not necessarily impair their
credibility. The testimony of a witness must be considered and calibrated in its
entirety and not by truncated portions thereof or isolated passages therein.[12] The
presence of the accused in the vicinity even after the commission of the crime does
not in any way extricate him from his dilemma. Certainly, it is no proof of his
innocence.
The court a quo properly considered the aggravating circumstance of treachery
in convicting the accused of murder. Treachery is present when the offender commits
any of the crimes against person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might
make.[13] Alevosia or treachery presumes an attack that is deliberate and
unexpected. There is no treachery when the victim is placed on guard, as when a
heated argument preceded the attack, especially when the victim was standing face
to face with his assailants, and the initial assault could not have been unforeseen. [14]
It is true that in the case at bench the attack was preceded by a fistfight. It was
however established that they were already pacified by onlookers when the accused
and Ramon returned. Lulled into complacency the victim simply stayed where he was
before the fistfight when after a brief moment the accused together with Ramon
returned with bladed weapons.Both approached the victim and circled him
surreptitiously. The attack was sudden and simultaneous that the victim was never
given a chance to defend himself. As we have held in People v. Balisteros,[15] where
a victim was totally unprepared for the unexpected attack from behind and had no
weapon to resist it, the stabbing could not but be considered as treacherous. The
evidence proved that the victim was caught unaware by the sudden assault. No
weapon was found, nor even intimated to be, in his possession.
Conversely the court a quo should have disregarded evident
premeditation. Evident premeditation requires a showing that the execution of the
criminal act was preceded by cool thought and reflection upon the resolution to carry
out the criminal intent during a space of time sufficient to arrive at a calm
judgment.[16] Evidence for the prosecution showed that after the fight was broken up
the accused and Ramon Doe proceeded towards the highway. They returned only
after a lapse of approximately five (5) minutes. From the foregoing we cannot
conclude that the accused had sufficient time within which to meditate on the
consequences of his acts. Meditation necessitates that it be evident and proven. Be
that as it may, treachery as a qualifying circumstance having attended the killing, the
conviction of the accused for murder still holds.
WHEREFORE,. the decision of the court a quo in Crim. Case No. 90-81744
dated 25 July 1991 convicting accused-appellant RICARDO SAN GABRIEL Y
ORTIZ of murder is AFFIRMED. The penalty of life imprisonment however is
MODIFIED to reclusion perpetua,[17] while the award of P30,000.00 as indemnity is
INCREASED to P50,000.00 conformably with existing jurisprudence. Costs against
accused-appellant.
SO ORDERED.
G.R. No. 103292 January 27, 1993
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MODESTO CABUANG y FLORES, NARDO MATABANG y SALVADOR, JOHN
DOE and RICHARD DOE, defendants-appellants.
FELICIANO, J.:
Accused Modesto Cabuang and Nardo Matabang appeal from the judgment of the
Regional Trial Court, Branch 57 of San Carlos City, Pangasinan finding them guilty
of robbery with rape and homicide, and imposing upon each of them a prison term
of reclusion perpetua. They were also ordered to pay, jointly and severally, to the
mother of the victim an indemnity of P50,000.00; the sum of P400.00 as the
amount of money taken by the accused from the victim; the amount of P10,000.00
as moral damages; the sum of P46,495.00 as funeral expenses; and the costs of
the suit.
The facts as found by the trial court may be summarized as follows.
On 14 October 1988, at around 11 o'clock at night, Evelyn De Vera and her cousin
Maria Victoria Parana, both 19 years of age, having come from a house of a
common friend, one Mia Colisao, were walking home along an uninhabited place in
Barangay Buenlag I of Bayambang, Pangasinan. Suddenly, from out of the rice
paddies along the road, Modesto Cabuang emerged with a flashlight and asked
them where they were going. Evelyn became very anxious and started walking
faster. Upon the other hand, Maria Victoria started talking to Modesto. When
Evelyn was about ten (10) feet ahead of the two, she looked back and saw
Modesto turn and shift his flashlight to the rear, illuminating the figure of Nardo
Matabang, who had also suddenly appeared behind them from the rice fields
alongside the road. Modesto then put off and pocketed his flashlight, grabbed Maria
Victoria and covered her mouth. Nardo Matabang in turn pursued Evelyn, who had
started to run away. She ran and ran until she entered the yard of a house along
the road and hid in the shadows of the plants and shrubs inside the yard where she
could not seen by Nardo, but from where she could see him. After some time,
having lost sight of Evelyn, Nardo went back and rejoined Modesto.
Sometime later, Evelyn from her hiding place saw a tricycle pass by with her cousin
Maria Victoria, and Modesto Cabuang, Nardo Matabang, the tricycle driver and
another person who was seated at the back of the tricycle. Evelyn heard her cousin
crying and pleading for help. After the tricycle had passed by, Evelyn emerged from
her hiding place and proceeded to the house of her sister. There she was scolded
by her sister for coming home late. Evelyn, confused by the scolding and frightened
by what she had just seen and experienced, was not able to tell her sister what had
just occurred. She stayed in the sala and there tried to go to sleep, without
success.
The following morning, Maria Victoria was found dead along the road, naked, with
stab wounds in different parts of her body including the pubic area. In the course of
their investigation, the police interrogated Evelyn de Vera. Evelyn executed a sworn
statement where she identified two (2) of the suspects as Modesto Cabuang and
Nardo Matabang. She stated that she could readily identify them because the latter
were her barangay mates and hence knew them well. Moreover, when Modesto
Cabuang suddenly emerged from the rice paddies, he was only about two (2)
meters away from her. Nardo Matabang was clearly seen by Evelyn from behind
the plants in the yard where she crouched in concealment, there being lights
illuminating the road in front of the yard.1 Later, Evelyn was again able positively to
identify and point out Cabuang and Matabang from a police line-up. However, the
two (2) other suspects, i.e., the tricycle driver and the person who rode at the rear
of the tricycle remained unknown and at large.
On 17 October 1988, the third day after the tragic night, the police found a book
("Laboratory Manual in Organic Chemistry") and some articles of feminine
underwear and other personal belongings of a woman scattered some 50 to 100
meters away from where they had first found Maria Victoria's body. Evelyn viewed
these belongings and identified them as owned by her cousin Maria Victoria who
was a student at the Philippine Women's University (PWU). Examination of the
personal belongings so found also showed that cash in the amount of P400.00, in
Maria Victoria's possession the night before, was missing.
Dr. Nario Ferrer, a physician resident in Bayambang, Pangasinan, conducted an
autopsy on the body of the victim. He rendered an autopsy report which show the
following findings:
Incised wound, 4.0 cm superficial, antero-lateral aspect neck (R);
Contusion hematoma, 1 x 1 cm. mid clavicular area (L);
Stab wound, 1.5 cm. 5th ICS, parasternal line (L), penetrating,
perforating the heart at the ventricular level, lacerating the
lingular part of the (L) lung;
Hematoma, mediastinum;
Hemopericardium, 300 cc;
Hemothorax (L) — 2 liters;
Stab wound, 1.5 cm. 7th ICS, para-vertebral line (R), penetrating
and lacerating the posterior basal part of (R) lung;
Hemothorax (R) 1 liter;
Incised wound, 3.0 cm. 2 points, parallel to each other, mons
pubis;
 Incised wound, 3.0 cm. posterior fourchet of the vagina,
transecting the perineum down to the anal canal;
Vagina with blood clots with fecaloid material;
Hymen — carunculated.
The report also noted the stab wounds in the pubic region including the area
between the vagina and the anal canal, as well as the presence of lacerations and
spermatozoa in the victim's vagina, indicating that Maria Victoria had been raped
and mutilated. Dr. Ferrer identified four (4) of the wounds as mortal in character,
which wounds were produced by a sharp edge and a pointed object. The cause of
the death was listed as "hypovolemic shock" resulting from severe decrease in the
volume of blood supply, producing death about six (6) hours before the autopsy. 2
On the basis of the foregoing evidence, and primarily on Evelyn de Vera's sworn
statement which she later repeated in substantially identical terms before the trial
court, Modesto Cabuang and Nardo Matabang were convicted of the crime of
robbery with rape and homicide.
In the present appeal, appellants principally urge that the trial court had erred in
finding that prosecution witness Evelyn de Vera had positively identified Modesto
Cabuang and Nardo Matabang as the assailants of Maria Victoria. Appellants point
to the entry in the Bayambang police blotter found on page 483, Entry No. 4436,
Volume IV, Series of 86 (Exhibit "I") which stated that the assailants were "still
unidentified" although the entry was made after prosecution witness Evelyn de Vera
was questioned by the police. Accused accordingly argue that Evelyn de Vera had
never identified the appellants as the assailants of Maria Victoria, who in fact had
later to identify them from a police line-up.
We consider this contention bereft of merit. Upon receiving the report that a dead
body was found in Barangay Buenlag I, members of the Bayambang Police Station
immediately proceeded to the reported crime scene on the morning of 15 October
1988. The police investigator, Pfc. Elegio Lopez, who initially questioned witness
De Vera that morning, noticed that she was in a state of shock. 3 He accordingly
chose to defer further questioning until the afternoon of the same day when Evelyn
had calmed down sufficiently to be able to give a sworn statement to the police.
Thus, there was the initial report prepared and recorded in the police blotter 4 at
around 11 o'clock in the morning, stating that the assailants were still unidentified;
there was, upon the other hand, Evelyn de Vera's sworn statement 5 made and
completed in the afternoon of the same day, where she revealed the identifies of
the men she had seen the night before and who she believed were responsible for
the rape and death of her cousin Maria Victoria.
The failure of Evelyn to specify the accused-appellants as the doers of the horrific
rape, killing and robbery of Maria Victoria the first time she was questioned by the
police, does not adversely affect her credibility. It is firmly settled case law that the
delay of a witness in revealing to the police authority what he or she may know
about a crime does not, by itself, render the witness' testimony unworthy of belief. 6
In People v. Savellano, 7 appellant Savellano argued that since the complaining
witness had reported to the police authorities the matter of her husband's death and
identified the Savellanos' as her husband's killers only after the lapse of two (2)
days, rather than immediately when she had the very first opportunity to do so while
the police was conducting an "on the spot" investigation, the credibility of her
testimony was greatly weakened. This Court rejected this argument stating that:
It is quite understandable when the witnesses do not immediately
report the identity of the offender after a startling occurrence
more especially when they are related to the victim as they just
had a traumatic experience. . . . [A] delay of about a few hours
before the identification of the offender by the prosecution
witnesses does not thereby affect their credibility. 8
In People v. de Guzman,9 the accused-appellant sought to capitalize upon the fact
that the prosecution witness did not volunteer the information covered by her
testimony to the policeman who had investigated the crime immediately after the
murder was committed. Disposing of this contention, this Court ruled that:
The initial reluctance of witnesses to volunteer information about
a criminal case and unwillingness to be involved in criminal
investigations due to fear of reprisal [are] common occurrence(s)
and [have] been judicially declared as not affecting their
credibility, . . . .
xxx xxx xxx
The testimony of Gloria should be given full weight and credit.
Her failure to give a sworn statement to the police should not be
taken against her. There is no law which requires that the
testimony of a prospective witness should first be reduced into
writing in order that her declaration in Court at a later date may
be believed by the Judge.10
The above rulings apply squarely to the case at bar. Evelyn de Vera was clearly
traumatized, in a state of shock, upon finding out that her cousin who had been with
her just the night before, was brutally raped and killed. She could not then and
there clearly and calmly recount the events she had experienced and witnessed
that dreadful night in a logical sequence. The few hours delay which lapsed from
the time the entry in the police blotter was made, up to the time Evelyn gave her
sworn statement on the afternoon of the same day, did not have the effect of
eroding the intrinsic credibility and strength of that statement. It may be noted that
significantly longer delays in informing investigating officers of what witnesses had
seen, have been held understandable by this Court and as not, in themselves,
destructive of the otherwise credible character of such testimony, especially where
the witnesses' fear of possible retaliation from the accused could not be dismissed
as merely fanciful. 11
It remains only to note that entries in a police blotter, though regularly done in the
course of performance of official duty are not conclusive proof of the truth of such
entries. In People v. Santito, Jr.,12 this Court held that entries in official records like
a police blotter are only prima facie evidence of the facts therein set out, since the
entries in the police blotter could well be incomplete or inaccurate. Testimony given
in open court during the trial is commonly much more lengthy and detailed than the
brief entries made in the police blotter and the trial court cannot base its findings on
a police report merely, but must necessarily consider all other evidence gathered in
the course of the police investigation and presented in court. 13 In the case at bar,
we conclude that prosecution witness Evelyn de Vera did positively and clearly
identify Modesto Cabuang and Nardo Matabang as among those who had raped
and killed and robbed the hapless Maria Victoria Parana.
Appellants also set up the defenses of denial and alibi. Cabuang denied having had
anything to do with the rape and killing of Mari Victoria. He said that he was at the
wake of the daughter of one Ben Juinio of Barangay Buenlag I, the whole night of
14 October 1988 and until 6:30 in the morning of the following day. Cabuang was,
however, unable to offer any details in elaboration or corroboration of his claim of
alibi. Matabang, for his part, testified that on 14 October 1988, he was in his house
in Karanglaan, Dagupan City, with his wife, his sister-in-law, and his child and had
never left his house. He testified further that he left his home for Bayambang only
on the next day 15 October 1988. His testimony was, however, found by the trial
court to be flawed by discrepancies and inconsistencies and by lack of sufficient
corroboration.
The firmly settled doctrine is that the defense of alibi cannot prosper, unless the
accused is able to prove that he was at some other place during the commission of
the crime and that it was impossible for him to have been at the scene of the crime
at the time of its commission.14 Clearly, neither of the appellants was able to do so
in the case at bar. Modesto Cabuang was supposedly attending the wake held in
the same barangay where Maria Victoria was ravished and killed and robbed.
Nardo Matabang, upon the other hand, was allegedly at home in a town no more
than an hour or so by bus from Bayambang.
It is equally settled doctrine that positive identification must prevail over simple
denials and unacceptable alibis. Appellants have not even tried to suggest that
Evelyn de Vera might have had some ill motive to testify falsely against them. To
the contrary, she had all the reasons to speak the truth with respect to her cousin's
ravishers and killers. When there is no evidence to indicate that the principal
witness for the prosecution was moved by improper motives, the presumption is
that such witness was not so moved, and that her testimony is entitled to full faith
and credit. 15
It is, of course, true that Evelyn de Vera did not witness the actual sexual assault
and slaying of Maria Victoria nor the talking of the P400.00 missing from Maria
Victoria's belongings. The evidence presented by the prosecution witness was
circumstantial in nature. But circumstantial evidence can be and often is entirely
sufficient to support a conviction, where the multiple circumstances are proven and
are consistent with the hypothesis that the accused is guilty and at the same time
inconsistent with the hypothesis that the accused is innocent, as well as
incompatible with every rational hypothesis except that of guilt on the part of the
accused.16 In brief, the circumstances must produce conviction of guilt beyond
reasonable doubt.17
In the case at bar, the circumstances forming an unbroken chain and leading to the
conviction beyond reasonable doubt that Cabuang and Matabang, among others,
were guilty of robbery with rape and homicide, were the following:
1. While Evelyn de Vera and Maria Victoria Parana were walking
home through an uninhabited place at about 11 o'clock at night
on 14 October 1988, accused Cabuang and Matabang suddenly
appeared from the surrounding rice fields. Cabuang grabbed
Maria Victoria and covered her mouth. Evelyn ran away because
she became terribly frightened and Matabang followed in pursuit.
Matabang lost sight of Evelyn along the road.
2. From her hiding place in the front yard of a house along the
road, Evelyn saw Maria Victoria pass by in a tricycle with the
accused Cabuang, Matabang and two (2) other men and heard
Maria Victoria crying and pleading for help. Evelyn clearly
recognized Cabuang and Matabang, but not the other two (2).
3. Early the next morning, on 15 October 1988, the body of Mario
Victoria was found in the barangay traversed by the road on
which Maria Victoria were walking the night before.
4. The claims of alibi by Cabuang and Matabang were not
successfully established. Cabuang acknowledged that he was in
the same barangay where Maria Victoria had been assaulted and
killed, while Matabang asserted that he was in his house in
Dagupan City which was no more than an hour or so by bus from
the scene of the crime. Neither Cabuang nor Matabang offered
and presented independent and reliable corroboration of their
presence far away from the scene of the crime at the time of
occurrence of the crime.
The trial court found the circumstances, considered together, as adequate to prove
appellants' guilt beyond reasonable doubt. This Court agrees, having been unable
to find any reason for overturning this conclusion of the trial court.
WHEREFORE, the decision of the trial court finding the accused-appellants
Modesto Cabuang and Nardo Matabang guilty beyond reasonable doubt of robbery
with rape and homicide and sentencing the accused to reclusion perpetua is hereby
AFFIRMED in toto except that the indemnity is hereby INCREASED from
P50,000.00 to P100,000.00 considering that Maria Victoria Parana was not only
raped but also brutally mutilated and killed by the accused. Costs against
appellants.
SO ORDERED.
 SECOND DIVISION
MA. LIZA FRANCO-CRUZ, G.R. No. 172238
Petitioner,
Present:
- versus - QUISUMBING, J., Chairperson,
TINGA,
CARPIO MORALES,
THE COURT OF APPEALS, VICTORY LINER, INC., VELASCO, JR., and
MARITES M. GANELO, CATHERINE C. SANTOS, BRION, JJ.
and MA. THERESA Q. FABIAN,
Respondents.
Promulgated:
September 17, 2008
x--------------------------------------------------x
DECISION
CARPIO MORALES, J.:
On January 4, 1998, a Franco Transit bus bearing license plate number AVC
228 collided with the rear portions of a bus and truck wrecker both owned by
respondent Victory Liner, Inc. (Victory Liner) which were stalled along kilometer 63,
North Expressway, San Felipe, San Fernando, Pampanga. The collision damaged
both vehicles of Victory Liner and killed Manuel Fabian, Rodel Ganelo, Caesar
Santos, and Michael Figueroa. The driver of the Franco Transit bus likewise died in
the accident.
On February 11, 1998, Victory Liner and respondents Marites M. Ganelo,
Catherine C. Santos, and Ma. Theresa Q. Fabian (Ma. Theresa) the surviving
spouses of Rodel Ganelo, Caesar Santos, and Manuel Fabian, respectively filed
before the Regional Trial Court (RTC) of Caloocan City a complaint (Civil Case No.
[1] [2]
C-18212), for damages against Maria Liza Franco-Cruz (petitioner), alleged to be
the registered owner and operator of public transportation utilities and whose bus is
known as and by the name of FRANCO TRANSIT and which she has been operating
prior to January 4, 1998.[3]
Respondents claimed that petitioner failed to exercise the diligence of a good
father of a family in the selection and supervision of the driver of the Franco Transit
[4]
bus.
In her Answer,[5] petitioner, after denying the material allegations of the
Complaint, alleged as among her Affirmative Defenses that she is not the real party-
in-interestand, therefore, the complaint stated no cause of action against her, hence,
must be dismissed; that the owner and the management of the bus involved in the
case have always exercised the due diligence of a good father of a family in the
selection and supervision of their employees; and that the proximate cause of the
collision was the negligence and recklessness of a third party, the driver of a Philippine
Rabbit bus.[6]
Petitioner and her counsel failed to appear during the pre-trial scheduled
on June 5, 1998 despite due notice thereof, albeit her counsel filed on even date an
urgent motion to postpone. The motion was denied, however, and petitioner was
declared as in default [sic]. Respondents at once started presenting evidence ex-
parte.[7]
On June 23, 1998, petitioner filed a Motion for Reconsideration[8] of the
June 5, 1998 order declaring her as in default, alleging that, inter alia, she had
meritorious defenses that included her not being the real party-in-interest as she
is not the registered owner of the Franco Transit bus [9] but Felicisima R. Franco, in
support of which she attached a Certificate of Registration issued on October 28, 1988
in the name of Felicisima R. Franco.[10]
Petitioners Motion for Reconsideration was denied by the trial court by
Order[11] of July 20, 1998 in this wise:
Indeed, a cursory examination of the instant motion will
readily show that it was filed in patent violation of the provision of
the rules.
While the movant alleged that [she] has a meritorious
defense which would justify the granting of [her] motion, [she]
nevertheless failed to submit an Affidavit of Merit. Worst, the
motion was not even verified.[12] (Emphasis and underscoring
supplied)
Petitioner thereafter filed an Omnibus Motion [13] alleging that it was error to
declare her as in default for the declaration as in default of a defendant who fails to
attend pre-trial had been eliminated in the 1997 Rules of Civil Procedure. She thus
prayed that she be allowed to participate in the proceedings and to present evidence
on her affirmative defenses. The Omnibus Motion was denied for failure of
petitioners counsel to appear at the hearing thereon.[14]
After respondents rested their case, Branch 121 of the Caloocan City RTC,
by Decision[15] dated March 30, 1999, found that, inter alia, the negligence of the
driver of the Franco Transit bus resulted in the accident which the defendant [-herein
petitioner] failed to rebut and that, moreover, the defendant [-herein petitioner]
totally failed to present evidence to overthrow the presumption of
negligence against her pursuant to Article 2180 of the Civil Code.[16] It thus rendered
judgment in favor of respondents, disposing as follows:
WHEREFORE, premises considered, judgment is hereby
rendered against MARIA LIZA FRANCO-CRUZ, operator of
FRANCO TRANSIT, ordering her:
1) To pay P50,000.00 each by way of actual
damages and lost income to plaintiffs Marites M.
Ganelo, Catherine C. Santos and Ma. Theresa Q.
Fabian;
 2) To pay moral damages to the above-named
plaintiffs in the amount of P100,000.00;
3) To pay actual damages in the amount of
P515,631.00 to plaintiff Victory Liner, Inc., and lost
income in the amount of P50,000.00;
4) To pay attorneys fees of P50,000.00 and the
costs of the suit.
SO ORDERED.[17]
Respondent Ma. Theresa filed a Motion for Partial Reconsideration and
Clarification.[18] Petitioner filed a Motion for Reconsideration[19] of the trial courts
decisionreiterating her plea that she is not the real party-in-interest against whom the
action should be brought, she again submitting the Certification of Registration of the
bus in the name of Felicisima R. Franco, together with an Official Receipt of payment
as Annex A to the motion.
By Order[20] dated June 25, 1999, the trial court denied Ma. Theresas partial
motion for reconsideration but clarified that the attorneys fees should be divided
according to the following proportion: three-fourths (3/4) for Atty. Atilano Huaben B.
Lim who represented three of the plaintiffs and one-fourth (1/4) for Atty. Roberto A.
Unciano who represented plaintiff Ma. Theresa Q. Fabian.[21]
Respecting petitioners Motion for Reconsideration of the decision, the trial
court denied the same for having been filed beyond the 15-day reglementary
period, it having been filed only on the 18th day (May 17, 1999) following the receipt
by petitioners counsel of a copy of the decision on April 29, 1999.[22]
On petitioners appeal,[23] the Court of Appeals, by Decision[24] of September
22, 2005, dismissed the same after noting that her motion for reconsideration of the
trial courts decision was filed only on the 18th day following receipt by her counsel of
a copy of the decision. The appellate court thus held that the trial courts decision had
become final and executory.[25]
Her Motion for Reconsideration[26] of the appellate courts Decision having
been denied,[27] petitioner filed the present Petition for Certiorari.[28]
One of the requirements for certiorari to lie is that there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law. [29] Any judgment
which finally disposes of a case, leaving nothing more for the court to do in respect
thereto such as the judgment of the Court of Appeals dismissing petitioners appeal
as she had lost the right thereto is appealable. [30] Petitioners remedy is, therefore,
appeal, not certiorari.
As a general rule, the requirements for perfecting an appeal within the
reglementary period specified in law must be strictly followed, [31] appeal not being a
constitutional right but a mere statutory privilege.[32] The perfection of an appeal in
the manner and within the period permitted by law is thus not only mandatory, but
also jurisdictional.[33]
Petitioner argues, however, that:
The ruling of the respondent Court of Appeals contained
in its questioned Decision dated March 30, 1999 that the Petitioner
had lost her right to appeal is a patent nullity. What the respondent
Court of Appeals missed is the fact that before the period to appeal
or file a Motion for Reconsideration expire[d], respondent Ma.
Theresa Q. Fabian filed a Partial Motion for Reconsideration of the
Decision of the lower court dated March 30, 1999, which motion
asserted that the lower court erred in not awarding indemnity for
the death of each victims [sic] to the plaintiffs and that it failed to
clarify the award of attorneys fees of P50,000.00 as to its
awardees and its division. With the filing of such Partial Motion for
Reconsideration by respondent Ma. Theresa Q. Fabian which
prayed for the modification and clarification of the Decision
dated March 30, 1999, then, the said decision did not become
final.[34] (Underscoring supplied)
In the case at bar, the records show that petitioners counsel indeed received
notice of the trial courts decision on April 29, 1999.[35] Following Rule 37, Section
1 vis--vis Rule 41, Section 3 of the Rules of Court, petitioner had 15 days or until May
14, 1999 to file a motion for reconsideration or notice of appeal. She filed a motion
for reconsideration on May 17, 1999, thus rendering the trial courts decision as to
her final and executory. Testate Estate of Manuel v. Biascan[36] so teaches:
It is well-settled that judgments or orders become final
and executory by operation of law and not by judicial
declaration. Thus, finality of a judgment becomes a fact upon the
lapse of the reglementary period of appeal if no appeal is perfected
or [no] motion for reconsideration or new trial is filed. The trial court
need not even pronounce the finality of the order as the same
becomes final by operation of law. In fact, the trial court could not
even validly entertain a motion for reconsideration after the lapse
of the period for taking an appeal. x x x The subsequent filing of
a motion for reconsideration cannot disturb the finality of the
judgment or order.[37] (Emphasis and underscoring supplied)
The filing of a motion for reconsideration by respondent Ma. Theresa within
the reglementary period prevented, with respect to her, the decision from becoming
final, but not with respect to petitioner.
In Bank of the Philippine Islands v. Far East Molasses Corporation,[38] this
Court, passing on Section 3, Rule 41 of the Rules of Court which provides that [t]he
appeal shall be taken within fifteen (15) days from notice of the judgment or final order
appealed from (underscoring supplied), held:
x x x the commencement of the period to appeal x x x
should x x x be reckoned x x x from the respective dates each of
the parties received a copy of the decision. Therefore, each party
has a different period within which to appeal, unless, of course,
 all of them received their copies on the same date and none filed
a motion for reconsideration.[39] (Emphasis and underscoring
supplied)
Since each party has a different period within which to appeal,
the timely filing of a motion for reconsideration by one party does not interrupt the
other or another partys period of appeal.
In petitioners case, her Motion for Reconsideration of the trial courts decision
was filed three days after the expiration of the reglementary period for the purpose,
hence, the Court of Appeals dismissal of her appeal was in order.
The faux pas or negligence of petitioners counsel, however, in failing to file
a timely motion for reconsideration should not be taken against her. Ordinarily, the
negligence of counsel binds the client.[40] However, this Court has recognized the
following exceptions to this rule: (1) where reckless or gross negligence of counsel
deprives the client of due process of law; (2) when its application will result in outright
deprivation of the clients liberty or property; or (3) where the interests of justice
require.[41] In the case at bar, the application of the rule would result in petitioner being
held liable for the damages suffered by respondents even without them having
established the basis of her liability, thus depriving her of due process of law.
Compounding petitioners plight is the trial courts procedural error which
precluded petitioner from presenting evidence in her behalf. [42] The trial court denied
her motion for reconsideration of its order declaring her as in default on the ground
that she failed to submit an affidavit of merit respecting her claim that she had
meritorious defenses. This ratio is, of course, erroneous, for an affidavit of merit is not
required to support a motion for reconsideration of an order allowing the ex-
parte presentation of evidence by the plaintiff, the defenses having already been laid
down in the answer[43] as in petitioners case.
Petitioner, early on in the Affirmative Defenses segment of her Answer,
already disclaimed the allegation in respondents complaint that she is the registered
owner of the bus, hence, not a real party-in-interest-ground to dismiss the complaint
for lack of cause of action. She raised it again in her Motion for Reconsideration from
the order declaring her as in default, to which motion she in fact attached the
Certificate of Registration showing that the bus was registered in the name of
Felicisima R. Franco. Thus, petitioner had alleged and shown her meritorious
defense by submitting the Certificate of Registration of the bus, which is evidence
that she is not the registered owner of the bus, or that something would be gained
by setting aside the order declaring her as in default. [44]
On the merits of the case, a review of the evidence for respondents shows
that individual respondents took the witness stand to testify on the damages they
suffered.[45]And they presented the Victory Liner bus inspector;[46] SPO2 Edgardo F.
Balajadia (Balajadia) who investigated the site of the accident right after it
happened;[47] the Victory Liner maintenance foreman regarding the damage sustained
by the Victory Liner vehicles;[48] the death certificates of Rodel Ganelo and Caesar
Santos;[49] the marriage certificate of respondent Marites Ganelo;[50] Balajadias Traffic
Accident Report;[51] photographs of the damaged vehicles;[52] and the damage report
showing the expenses incurred in repairing both damaged vehicles. [53]
There was no attempt, however, on the part of any of the witnesses for
respondents, to controvert petitioners affirmative defense that there is no cause of
action against her, she not being the registered owner of the Franco Transit bus,
even despite her submission of the bus Certificate of Registration in the name
of Felicisima R. Franco which is conclusive proof of ownership.
Respondents, in maintaining their cause of action against petitioner, relied
on the January 4, 1998 Traffic Accident Report[54] of Balajadia, who conducted a spot
investigation after the occurrence of the accident, [55] wherein he stated that the Franco
Transit bus was [r]egistered under the name of Marializa Franco-Cruz of Batac,
Ilocos Norte. (Emphasis supplied) How Balajadia arrived at such statement, he did
not indicate in his Report. Neither did he pass on it when he took the witness stand
on February 11, 1999.[56]
Rule 130, Section 44 of the Rules of Court, provides:
SEC. 44. Entries in official records. Entries in official
records made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated. (Italics in the original)
For the entries in Balajadias Report to qualify as prima facie evidence of the
facts therein stated, the following conditions must be present:
x x x (a) that the entry was made by a public officer, or by
another person specially enjoined by the law to do so; (b) that it
was made by the public officer in the performance of his duties or
by such other person in the performance of a duty enjoined by law;
and (c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have been
acquired by him personally or through official
information.[57] (Underscoring supplied)
Balajadias statement that the Franco Transit bus was [r]egistered under the
name of Marializa Franco-Cruz of Batac, Ilocos Norte was not shown, however, to
have been based on his personal knowledge or that he had sufficient knowledge
thereof acquired by him personally or officially.
It bears emphasis that the presentation by respondents of evidence ex-
parte did not relieve them of the burden of proving their claims against petitioner.
As in other civil cases, the burden of proof rests upon the
party who, as determined by the pleadings or nature of the case,
asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength of
the partys own evidence and not upon the weakness of the
opponents defense. This applies with more vigor where, as in
the instant case, the plaintiff was allowed to present
evidence ex parte. The plaintiff is not automatically entitled to the
 relief prayed for. The law gives the defendant some measure of
protection as the plaintiff must still prove the allegations in the
complaint. Favorable relief can be granted only after the court is
convinced that the facts proven by the plaintiff warrant such
relief. Indeed, the party alleging a fact has the burden of proving it
and a mere allegation is not evidence.[58] (Emphasis and
underscoring supplied)

Respondents having failed to discharge the onus of proving that petitioner

was, at the time of the accident, the registered owner of the bus, it was error for the
trial court to credit respondents evidence.

Just as it was error for it to hold that the defendant [-herein

petitioner] failed 1) to rebut the evidence showing the accident was the result of the
negligence of the Franco Transit bus driver and 2) to present evidence to overthrow
the presumption of negligence against her pursuant to Article 2180 of the Civil Code
in light of its order allowing respondents to present evidence ex-parte and denying
petitioners pleas to be allowed to participate in the proceedings and present evidence
on her affirmative defenses.

The trial courts decision in favor of respondents must thus be set aside.

Given the attendant facts and circumstances, in the interest of justice, this
Court resolves to remand the case to the trial court to afford petitioner her right to
due process.

WHEREFORE, the petition is GRANTED. The decision of the Court of

Appeals dated September 22, 2005 dismissing petitioners appeal from the decision
of Branch 121 of the Caloocan City Regional Trial Court is SET
ASIDE. The decision of the trial court is vacated. Civil Case No. C-18212
is REMANDED to Branch 121 of the RegionalTrial Court of Caloocan City which is
hereby directed to allow petitioner to present evidence on her affirmative defenses
and/or rebut respondents evidence and to allow respondents to submit additional
evidence if necessary and/or they so desire.
 [G.R. No. 107518. October 8, 1998]
PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner,
vs. HONORABLE COURT OF APPEALS and MARIA EFIGENIA
FISHING CORPORATION, respondents.
DECISION
ROMERO, J.:
A party is entitled to adequate compensation only for such pecuniary loss
actually suffered and duly proved.[1] Indeed, basic is the rule that to recover actual
damages, the amount of loss must not only be capable of proof but must actually be
proven with a reasonable degree of certainty, premised upon competent proof or best
evidence obtainable of the actual amount thereof.[2] The claimant is duty-bound to
point out specific facts that afford a basis for measuring whatever compensatory
damages are borne.[3] A court cannot merely rely on speculations, conjectures, or
guesswork as to the fact and amount of damages [4] as well as hearsay[5] or
uncorroborated testimony whose truth is suspect. [6] Such are the jurisprudential
precepts that the Court now applies in resolving the instant petition.
The records disclose that in the early morning of September 21, 1977, the M/V
Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation,
was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to
Navotas, Metro Manila when it collided with the vessel Petroparcel which at the time
was owned by the Luzon Stevedoring Corporation (LSC).
After investigation was conducted by the Board of Marine Inquiry, Philippine
Coast Guard Commandant Simeon N. Alejandro rendered a decision finding
the Petroparcel at fault. Based on this finding by the Board and after unsuccessful
demands on petitioner,[7] private respondent sued the LSC and
the Petroparcel captain, Edgardo Doruelo, before the then Court of First Instance of
Caloocan City, paying thereto the docket fee of one thousand two hundred fifty-two
pesos (P1,252.00) and the legal research fee of two pesos (P2.00).[8] In particular,
private respondent prayed for an award of P692,680.00, allegedly representing the
value of the fishing nets, boat equipment and cargoes of M/V Maria Efigenia XV, with
interest at the legal rate plus 25% thereof as attorneys fees. Meanwhile, during the
pendency of the case, petitioner PNOC Shipping and Transport Corporation sought
to be substituted in place of LSC as it had already acquired ownership of
the Petroparcel.[9]
For its part, private respondent later sought the amendment of its complaint on
the ground that the original complaint failed to plead for the recovery of the lost value
of the hull of M/V Maria Efigenia XV.[10] Accordingly, in the amended complaint,
private respondent averred that M/V Maria Efigenia XV had an actual value
of P800,000.00 and that, after deducting the insurance payment of P200,000.00, the
amount of P600,000.00 should likewise be claimed. The amended complaint also
alleged that inflation resulting from the devaluation of the Philippine peso had
affected the replacement value of the hull of the vessel, its equipment and its lost
cargoes, such that there should be a reasonable determination thereof. Furthermore,
on account of the sinking of the vessel, private respondent supposedly incurred
unrealized profits and lost business opportunities that would thereafter be proven. [11]
Subsequently, the complaint was further amended to include petitioner as a
defendant[12] which the lower court granted in its order of September 16,
1985.[13] After petitioner had filed its answer to the second amended complaint, on
February 5, 1987, the lower court issued a pre-trial order[14] containing, among other
things, a stipulations of facts, to wit:
1. On 21 September 1977, while the fishing boat `M/V MARIA EFIGENIA
owned by plaintiff was navigating in the vicinity of Fortune Island in
Nasugbu, Batangas, on its way to Navotas, Metro Manila, said fishing
boat was hit by the LSCO tanker Petroparcel causing the former to sink.
2. The Board of Marine Inquiry conducted an investigation of this marine
accident and on 21 November 1978, the Commandant of the Philippine
Coast Guard, the Honorable Simeon N. Alejandro, rendered a decision
finding the cause of the accident to be the reckless and imprudent
manner in which Edgardo Doruelo navigated the LSCO Petroparcel and
declared the latter vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring Corporation
(LUSTEVECO), executed in favor of PNOC Shipping and Transport
Corporation a Deed of Transfer involving several tankers, tugboats,
barges and pumping stations, among which was the LSCO Petroparcel.
4. On the same date on 2 April 1979 (sic), defendant PNOC STC again
entered into an Agreement of Transfer with co-defendant Lusteveco
whereby all the business properties and other assets appertaining to the
tanker and bulk oil departments including the motor tanker LSCO
Petroparcel of defendant Lusteveco were sold to PNOC STC.
5. The aforesaid agreement stipulates, among others, that PNOC-STC
assumes, without qualifications, all obligations arising from and by virtue
of all rights it obtained over the LSCO `Petroparcel.
6. On 6 July 1979, another agreement between defendant LUSTEVECO
and PNOC-STC was executed wherein Board of Marine Inquiry Case
No. 332 (involving the sea accident of 21 September 1977) was
specifically identified and assumed by the latter.
7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed
by the Ministry of National Defense, in its decision dismissing the appeal
of Capt. Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO
`Petroparcel.
8. LSCO `Petroparcel is presently owned and operated by PNOC-STC
and likewise Capt. Edgardo Doruelo is still in their employ.
9. As a result of the sinking of M/V Maria Efigenia caused by the reckless
and imprudent manner in which LSCO Petroparcel was navigated by
defendant Doruelo, plaintiff suffered actual damages by the loss of its
fishing nets, boat equipments (sic) and cargoes, which went down with
the ship when it sank the replacement value of which should be left to the
sound discretion of this Honorable Court.
After trial, the lower court[15] rendered on November 18, 1989 its decision
disposing of Civil Case No. C-9457 as follows:
 WHEREFORE, and in view of the foregoing, judgment is hereby
rendered in favor of the plaintiff and against the defendant PNOC
Shipping & Transport Corporation, to pay the plaintiff:
a. The sum of P6,438,048.00 representing the value of the fishing boat
with interest from the date of the filing of the complaint at the rate of 6%
per annum;
b. The sum of P50,000.00 as and for attorneys fees; and
c. The costs of suit.
The counterclaim is hereby DISMISSED for lack of merit. Likewise, the
case against defendant Edgardo Doruelo is hereby DISMISSED, for lack
of jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court cited the evidence presented
by private respondent consisting of the testimony of its general manager and sole
witness, Edilberto del Rosario. Private respondents witness testified that M/V Maria
Efigenia XV was owned by private respondent per Exhibit A, a certificate of
ownership issued by the Philippine Coast Guard showing that M/V Maria Efigenia
XV was a wooden motor boat constructed in 1965 with 128.23 gross
tonnage. According to him, at the time the vessel sank, it was then carrying 1,060
tubs (baeras) of assorted fish the value of which was never recovered. Also lost with
the vessel were two cummins engines (250 horsepower), radar, pathometer and
compass. He further added that with the loss of his flagship vessel in his fishing fleet
of fourteen (14) vessels, he was constrained to hire the services of counsel whom he
paid P10,000 to handle the case at the Board of Marine Inquiry and P50,000.00 for
commencing suit for damages in the lower court.
As to the award of P6,438,048.00 in actual damages, the lower court took into
account the following pieces of documentary evidence that private respondent
proffered during trial:
(a) Exhibit A certified xerox copy of the certificate of ownership
of M/V Maria Efigenia XV;
(b) Exhibit B a document titled Marine Protest executed by Delfin
Villarosa, Jr. on September 22, 1977 stating that as a result
of the collision, the M/V Maria Efigenia XV sustained a hole
at its left side that caused it to sink with its cargo of
1,050 baeras valued at P170,000.00;
(c) Exhibit C a quotation for the construction of a 95-footer trawler
issued by Isidoro A. Magalong of I. A. Magalong Engineering
and Construction on January 26, 1987 to Del Rosario
showing that construction of such trawler would
cost P2,250,000.00;
(d) Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by E.D.
Daclan of Power Systems, Incorporated on January 20,
1987 to Del Rosario showing that two (2) units of CUMMINS
Marine Engine model N855-M, 195 bhp. at 1800 rpm. would
cost P1,160,000.00;
(e) Exhibit E quotation of prices issued by Scan Marine Inc. on
January 20, 1987 to Del Rosario showing that a unit of
Furuno Compact Daylight Radar, Model FR-604D, would
cost P100,000.00 while a unit of Furuno Color Video
Sounder, Model FCV-501 would cost P45,000.00 so that the
two units would cost P145,000.00;
(f) Exhibit F quotation of prices issued by Seafgear Sales, Inc. on
January 21, 1987 to Del Rosario showing that two (2) rolls of
nylon rope (5 cir. X 300fl.) would cost P140,000.00; two (2)
rolls of nylon rope (3 cir. X 240fl.), P42,750.00; one (1)
binocular (7 x 50), P1,400.00, one (1) compass
(6), P4,000.00 and 50 pcs. of floats, P9,000.00 or a total
of P197, 150.00;
(g) Exhibit G retainer agreement between Del Rosario and F.
Sumulong Associates Law Offices stipulating an acceptance
fee of P5,000.00, per appearance fee of P400.00, monthly
retainer of P500.00, contingent fee of 20% of the total
amount recovered and that attorneys fee to be awarded by
the court should be given to Del Rosario; and
(h) Exhibit H price quotation issued by Seafgear Sales, Inc. dated
April 10, 1987 to Del Rosario showing the cost of poly
nettings as: 50 rolls of 400/18 3kts. 100md x
100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md x
100mtrs., P81,500.00; 50 rolls of 400/18 8kts. 100md x
100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md
x 100mtrs., P146,500 and banera (tub) at P65.00 per piece
or a total of P414,065.00
The lower court held that the prevailing replacement value of P6,438,048.00 of
the fishing boat and all its equipment would regularly increase at 30% every year
from the date the quotations were given.
On the other hand, the lower court noted that petitioner only presented Lorenzo
Lazaro, senior estimator at PNOC Dockyard & Engineering Corporation, as sole
witness and it did not bother at all to offer any documentary evidence to support its
position. Lazaro testified that the price quotations submitted by private respondent
were excessive and that as an expert witness, he used the quotations of his suppliers
in making his estimates. However, he failed to present such quotations of prices from
his suppliers, saying that he could not produce a breakdown of the costs of his
estimates as it was a sort of secret scheme. For this reason, the lower court
concluded:
Evidently, the quotation of prices submitted by the plaintiff relative to the
replacement value of the fishing boat and its equipments in the tune
of P6,438,048.00 which were lost due to the recklessness and
 imprudence of the herein defendants were not rebutted by the latter with
sufficient evidence. The defendants through their sole witness Lorenzo
Lazaro relied heavily on said witness bare claim that the amount afore-
said is excessive or bloated, but they did not bother at all to present any
documentary evidence to substantiate such claim. Evidence to be
believed, must not only proceed from the mouth of the credible witness,
but it must be credible in itself. (Vda. de Bonifacio vs. B. L. T. Bus Co.,
Inc. L-26810, August 31, 1970).
Aggrieved, petitioner filed a motion for the reconsideration of the lower courts
decision contending that: (1) the lower court erred in holding it liable for damages;
that the lower court did not acquire jurisdiction over the case by paying
only P1,252.00 as docket fee; (2) assuming that plaintiff was entitled to damages,
the lower court erred in awarding an amount greater than that prayed for in the
second amended complaint; and (3) the lower court erred when it failed to resolve
the issues it had raised in its memorandum.[16] Petitioner likewise filed a
supplemental motion for reconsideration expounding on whether the lower court
acquired jurisdiction over the subject matter of the case despite therein plaintiffs
failure to pay the prescribed docket fee.[17]
On January 25, 1990, the lower court declined reconsideration for lack of
merit.[18] Apparently not having received the order denying its motion for
reconsideration, petitioner still filed a motion for leave to file a reply to private
respondents opposition to said motion.[19] Hence, on February 12, 1990, the lower
court denied said motion for leave to file a reply on the ground that by the issuance
of the order of January 25, 1990, said motion had become moot and academic. [20]
Unsatisfied with the lower courts decision, petitioner elevated the matter to the
Court of Appeals which, however, affirmed the same in toto on October 14,
1992.[21] On petitioners assertion that the award of P6,438,048.00 was not
convincingly proved by competent and admissible evidence, the Court of Appeals
ruled that it was not necessary to qualify Del Rosario as an expert witness because
as the owner of the lost vessel, it was well within his knowledge and competency to
identify and determine the equipment installed and the cargoes loaded on the
vessel. Considering the documentary evidence presented as in the nature of market
reports or quotations, trade journals, trade circulars and price lists, the Court of
Appeals held, thus:
Consequently, until such time as the Supreme Court categorically rules
on the admissibility or inadmissibility of this class of evidence, the
reception of these documentary exhibits (price quotations) as evidence
rests on the sound discretion of the trial court. In fact, where the lower
court is confronted with evidence which appears to be of doubtful
admissibility, the judge should declare in favor of admissibility rather than
of non-admissibility (The Collector of Palakadhari, 124 [1899], p. 43,
cited in Francisco, Revised Rules of Court, Evidence, Volume VII, Part I,
1990 Edition, p. 18). Trial courts are enjoined to observe the strict
enforcement of the rules of evidence which crystallized through constant
use and practice and are very useful and effective aids in the search for
truth and for the effective administration of justice. But in connection with
evidence which may appear to be of doubtful relevancy or incompetency
or admissibility, it is the safest policy to be liberal, not rejecting them on
doubtful or technical grounds, but admitting them unless plainly
irrelevant, immaterial or incompetent, for the reason that their rejection
places them beyond the consideration of the court. If they are thereafter
found relevant or competent, can easily be remedied by completely
discarding or ignoring them. (Banaria vs. Banaria, et al., C.A. No. 4142,
May 31, 1950; cited in Francisco, Supra). [Underscoring supplied].
Stressing that the alleged inadmissible documentary exhibits were never
satisfactorily rebutted by appellants own sole witness in the person of Lorenzo
Lazaro, the appellate court found that petitioner ironically situated itself in an
inconsistent posture by the fact that its own witness, admittedly an expert one,
heavily relies on the very same pieces of evidence (price quotations) appellant has
so vigorously objected to as inadmissible evidence. Hence, it concluded:
x x x. The amount of P6,438,048.00 was duly established at the trial on
the basis of appellees documentary exhibits (price quotations) which
stood uncontroverted, and which already included the amount by way of
adjustment as prayed for in the amended complaint. There was therefore
no need for appellee to amend the second amended complaint in so far
as to the claim for damages is concerned to conform with the evidence
presented at the trial. The amount of P6,438,048.00 awarded is clearly
within the relief prayed for in appellees second amended complaint.
On the issue of lack of jurisdiction, the respondent court held that following the
ruling in Sun Insurance Ltd. v. Asuncion,[22] the additional docket fee that may later
on be declared as still owing the court may be enforced as a lien on the judgment.
Hence, the instant recourse.
In assailing the Court of Appeals decision, petitioner posits the view that the
award of P6,438,048 as actual damages should have been in light of these
considerations, namely: (1) the trial court did not base such award on the actual value
of the vessel and its equipment at the time of loss in 1977; (2) there was no evidence
on extraordinary inflation that would warrant an adjustment of the replacement cost
of the lost vessel, equipment and cargo; (3) the value of the lost cargo and the prices
quoted in respondents documentary evidence only amount to P4,336,215.00; (4)
private respondents failure to adduce evidence to support its claim for unrealized
profit and business opportunities; and (5) private respondents failure to prove the
extent and actual value of damages sustained as a result of the 1977 collision of the
vessels.[23]
Under Article 2199 of the Civil Code, actual or compensatory damages are
those awarded in satisfaction of, or in recompense for, loss or injury sustained. They
proceed from a sense of natural justice and are designed to repair the wrong that
has been done, to compensate for the injury inflicted and not to impose a
penalty.[24] In actions based on torts or quasi-delicts, actual damages include all the
natural and probable consequences of the act or omission complained of. [25] There
are two kinds of actual or compensatory damages: one is the loss of what a person
already possesses (dao emergente), and the other is the failure to receive as a
benefit that which would have pertained to him (lucro cesante).[26] Thus:
Where goods are destroyed by the wrongful act of the defendant the
plaintiff is entitled to their value at the time of destruction, that is,
normally, the sum of money which he would have to pay in the market for
identical or essentially similar goods, plus in a proper case damages for
 the loss of use during the period before replacement. In other words, in
the case of profit-earning chattels, what has to be assessed is the value
of the chattel to its owner as a going concern at the time and place of the
loss, and this means, at least in the case of ships, that regard must be
had to existing and pending engagements.x x x.
x x x. If the market value of the ship reflects the fact that it is in any case
virtually certain of profitable employment, then nothing can be added to
that value in respect of charters actually lost, for to do so would be pro
tanto to compensate the plaintiff twice over. On the other hand, if the ship
is valued without reference to its actual future engagements and only in
the light of its profit-earning potentiality, then it may be necessary to add
to the value thus assessed the anticipated profit on a charter or other
engagement which it was unable to fulfill. What the court has to ascertain
in each case is the `capitalised value of the vessel as a profit-earning
machine not in the abstract but in view of the actual circumstances,
without, of course, taking into account considerations which were too
remote at the time of the loss.[27] [Underscoring supplied].
As stated at the outset, to enable an injured party to recover actual or
compensatory damages, he is required to prove the actual amount of loss with
reasonable degree of certainty premised upon competent proof and on the best
evidence available.[28] The burden of proof is on the party who would be defeated if
no evidence would be presented on either side. He must establish his case by a
preponderance of evidence which means that the evidence, as a whole, adduced by
one side is superior to that of the other.[29] In other words, damages cannot be
presumed and courts, in making an award must point out specific facts that could
afford a basis for measuring whatever compensatory or actual damages are borne. [30]
In this case, actual damages were proven through the sole testimony of private
respondents general manager and certain pieces of documentary evidence. Except
for Exhibit B where the value of the 1,050 baeras of fish were pegged at their
September 1977 value when the collision happened, the pieces of documentary
evidence proffered by private respondent with respect to items and equipment lost
show similar items and equipment with corresponding prices in early 1987 or
approximately ten (10) years after the collision. Noticeably, petitioner did not object
to the exhibits in terms of the time index for valuation of the lost goods and
equipment. In objecting to the same pieces of evidence, petitioner commented that
these were not duly authenticated and that the witness (Del Rosario) did not have
personal knowledge on the contents of the writings and neither was he an expert on
the subjects thereof.[31] Clearly ignoring petitioners objections to the exhibits, the
lower court admitted these pieces of evidence and gave them due weight to arrive at
the award of P6,438,048.00 as actual damages.
The exhibits were presented ostensibly in the course of Del Rosarios
testimony. Private respondent did not present any other witnesses especially those
whose signatures appear in the price quotations that became the bases of the award.
We hold, however, that the price quotations are ordinary private writings which under
the Revised Rules of Court should have been proffered along with the testimony of
the authors thereof. Del Rosario could not have testified on the veracity of the
contents of the writings even though he was the seasoned owner of a fishing fleet
because he was not the one who issued the price quotations. Section 36, Rule 130
of the Revised Rules of Court provides that a witness can testify only to those facts
that he knows of his personal knowledge.
For this reason, Del Rosarios claim that private respondent incurred losses in
the total amount of P6,438,048.00 should be admitted with extreme caution
considering that, because it was a bare assertion, it should be supported by
independent evidence. Moreover, because he was the owner of private respondent
corporation[32] whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest
therein. We agree with the Court of Appeals that his testimony as to the equipment
installed and the cargoes loaded on the vessel should be given
credence[33] considering his familiarity thereto. However, we do not subscribe to the
conclusion that his valuationof such equipment, cargo and the vessel itself should
be accepted as gospel truth.[34] We must, therefore, examine the documentary
evidence presented to support Del Rosarios claim as regards the amount of losses.
The price quotations presented as exhibits partake of the nature of hearsay
evidence considering that the persons who issued them were not presented as
witnesses.[35] Any evidence, whether oral or documentary, is hearsay if its probative
value is not based on the personal knowledge of the witness but on the knowledge
of another person who is not on the witness stand. Hearsay evidence, whether
objected to or not, has no probative value unless the proponent can show that the
evidence falls within the exceptions to the hearsay evidence rule. [36] On this point,
we believe that the exhibits do not fall under any of the exceptions provided under
Sections 37 to 47 of Rule 130.[37]
It is true that one of the exceptions to the hearsay rule pertains to commercial
lists and the like under Section 45, Rule 130 of the Revised Rules on Evidence. In
this respect, the Court of Appeals considered private respondents exhibits as
commercial lists. It added, however, that these exhibits should be admitted in
evidence until such time as the Supreme Court categorically rules on the admissibility
or inadmissibility of this class of evidence because the reception of these
documentary exhibits (price quotations) as evidence rests on the sound discretion of
the trial court.[38] Reference to Section 45, Rule 130, however, would show that the
conclusion of the Court of Appeals on the matter was arbitrarily arrived at. This rule
states:
Commercial lists and the like. Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register,
periodical, or other published compilation is admissible as tending to
prove the truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation and is generally
used and relied upon by them there.
Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1)
it is a statement of matters of interest to persons engaged in an occupation; (2) such
statement is contained in a list, register, periodical or other published compilation; (3)
said compilation is published for the use of persons engaged in that occupation, and
(4) it is generally used and relied upon by persons in the same occupation.
Based on the above requisites, it is our considered view that Exhibits B, C, D,
E, F and H[39] are not commercial lists for these do not belong to the category of other
published compilations under Section 45 aforequoted. Under the principle
of ejusdem generis, (w)here general words follow an enumeration of persons or
things, by words of a particular and specific meaning, such general words are not to
be construed in their widest extent, but are to be held as applying only to persons or
things of the same kind or class as those specifically mentioned. [40] The exhibits
mentioned are mere price quotations issued personally to Del Rosario who requested
for them from dealers of equipment similar to the ones lost at the collision of the two
vessels. These are not published in any list, register, periodical or other compilation
on the relevant subject matter. Neither are these market reports or quotations within
the purview of commercial lists as these are not standard handbooks or periodicals,
containing data of everyday professional need and relied upon in the work of the
occupation.[41] These are simply letters responding to the queries of Del
Rosario. Thus, take for example Exhibit D which reads:
January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV
MARIA EFIGINIA FISHING CORPORATION
Navotas, Metro Manila
Attention: MR. EDDIE DEL ROSARIO
Gentlemen:
In accordance to your request, we are pleased to quote our Cummins Marine
Engine, to wit.
Two (2) units CUMMINS Marine Engine model N855-M, 195
bhp.
at 1800 rpm., 6-cylinder in-line, 4-stroke cycle,
natural aspirated, 5 in. x 6 in. bore and stroke,
855 cu. In. displacement, keel-cooled, electric
starting coupled with Twin-Disc Marine gearbox
model MG-509, 4.5:1 reduction ratio, includes oil
cooler, companion flange, manual and standard
accessories as per attached sheet.
Price FOB Manila - - - - - - - - - - - - - -
- P 580,000.00/unit
Total FOB Manila - - - - - - - - - - - - - -
- P 1,160,000.00
vvvvvvvvv
T E R M S : CASH
DELIVERY : 60-90 days from date of order.
VALIDITY : Subject to our final confirmation.
WARRANTY : One (1) full year against factory defect.
Very truly yours,
POWER SYSTEMS, INC.
(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in evidence but these are,
however, subject to the general principles of evidence and to various rules relating
to documentary evidence.[42] Hence, in one case, it was held that a letter from an
automobile dealer offering an allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a price current or commercial
list within the statute which made such items presumptive evidence of the value of
the article specified therein. The letter was not admissible in evidence as a
commercial list even though the clerk of the dealer testified that he had written the
letter in due course of business upon instructions of the dealer. [43]
But even on the theory that the Court of Appeals correctly ruled on
the admissibility of those letters or communications when it held that unless plainly
irrelevant, immaterial or incompetent, evidence should better be admitted rather than
rejected on doubtful or technical grounds,[44] the same pieces of evidence, however,
should not have been given probative weight. This is a distinction we wish to point
out. Admissibility of evidence refers to the question of whether or not the
circumstance (or evidence) is to considered at all.[45] On the other hand, the probative
value of evidence refers to the question of whether or not it proves an issue. [46] Thus,
a letter may be offered in evidence and admitted as such but its evidentiary weight
depends upon the observance of the rules on evidence. Accordingly, the author of
the letter should be presented as witness to provide the other party to the litigation
the opportunity to question him on the contents of the letter. Being mere hearsay
evidence, failure to present the author of the letter renders its contents suspect. As
earlier stated, hearsay evidence, whether objected to or not, has no probative
value. Thus:
The courts differ as to the weight to be given to hearsay evidence
admitted without objection. Some hold that when hearsay has been
admitted without objection, the same may be considered as any other
properly admitted testimony. Others maintain that it is entitled to no more
consideration than if it had been excluded.
The rule prevailing in this jurisdiction is the latter one. Our Supreme
Court held that although the question of admissibility of evidence can not
be raised for the first time on appeal, yet if the evidence is hearsay it has
no probative value and should be disregarded whether objected to or
not. `If no objection is made quoting Jones on Evidence - `it (hearsay)
becomes evidence by reason of the want of such objection even though
its admission does not confer upon it any new attribute in point of
weight. Its nature and quality remain the same, so far as its intrinsic
weakness and incompetency to satisfy the mind are concerned, and as
opposed to direct primary evidence, the latter always prevails.
 The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates
the rules of res inter alios acta, or his failure to ask for the striking out of
the same does not give such evidence any probative value. But
admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not has no probative
value.[47]
Accordingly, as stated at the outset, damages may not be awarded on the basis of
hearsay evidence.[48]
Nonetheless, the non-admissibility of said exhibits does not mean that it totally
deprives private respondent of any redress for the loss of its vessel. This is because
in Lufthansa German Airlines v. Court of Appeals,[49] the Court said:
In the absence of competent proof on the actual damage suffered,
private respondent is `entitled to nominal damages which, as the law
says, is adjudicated in order that a right of the plaintiff, which has been
violated or invaded by defendant, may be vindicated and recognized, and
not for the purpose of indemnifying the plaintiff for any loss suffered.
[Underscoring supplied].
Nominal damages are awarded in every obligation arising from law, contracts,
quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every
case where property right has been invaded.[50] Under Article 2223 of the Civil Code,
(t)he adjudication of nominal damages shall preclude further contest upon the right
involved and all accessory questions, as between the parties to the suit, or their
respective heirs and assigns.
Actually, nominal damages are damages in name only and not in fact. Where
these are allowed, they are not treated as an equivalent of a wrong inflicted but simply
in recognition of the existence of a technical injury. [51] However, the amount to be
awarded as nominal damages shall be equal or at least commensurate to the injury
sustained by private respondent considering the concept and purpose of such
damages.[52] The amount of nominal damages to be awarded may also depend on
certain special reasons extant in the case.[53]
Applying now such principles to the instant case, we have on record the fact
that petitioners vessel Petroparcel was at fault as well as private respondents
complaint claiming the amount of P692,680.00 representing the fishing nets, boat
equipment and cargoes that sunk with the M/V Maria Efigenia XV. In its amended
complaint, private respondent alleged that the vessel had an actual value
of P800,000.00 but it had been paid insurance in the amount of P200,000.00 and,
therefore, it claimed only the amount of P600,000.00. Ordinarily, the receipt of
insurance payments should diminish the total value of the vessel quoted by private
respondent in his complaint considering that such payment is causally related to the
loss for which it claimed compensation. This Court believes that such allegations in
the original and amended complaints can be the basis for determination of a fair
amount of nominal damages inasmuch as a complaint alleges the ultimate facts
constituting the plaintiff's cause of action.[54] Private respondent should be bound by
its allegations on the amount of its claims.
With respect to petitioners contention that the lower court did not acquire
jurisdiction over the amended complaint increasing the amount of damages claimed
to P600,000.00, we agree with the Court of Appeals that the lower court acquired
jurisdiction over the case when private respondent paid the docket fee corresponding
to its claim in its original complaint. Its failure to pay the docket fee corresponding to
its increased claim for damages under the amended complaint should not be
considered as having curtailed the lower courts jurisdiction. Pursuant to the ruling
in Sun Insurance Office, Ltd. (SIOL) v. Asuncion,[55] the unpaid docket fee should
be considered as a lien on the judgment even though private respondent specified
the amount of P600,000.00 as its claim for damages in its amended complaint.
Moreover, we note that petitioner did not question at all the jurisdiction of the
lower court on the ground of insufficient docket fees in its answers to both the
amended complaint and the second amended complaint. It did so only in its motion
for reconsideration of the decision of the lower court after it had received an adverse
decision. As this Court held in Pantranco North Express, Inc. v. Court of
Appeals,[56] participation in all stages of the case before the trial court, that included
invoking its authority in asking for affirmative relief, effectively barred petitioner by
estoppel from challenging the courts jurisdiction. Notably, from the time it filed its
answer to the second amended complaint on April 16, 1985, [57] petitioner did not
question the lower courts jurisdiction. It was only on December 29, 1989[58] when it
filed its motion for reconsideration of the lower courts decision that petitioner raised
the question of the lower courts lack of jurisdiction. Petitioner thus foreclosed its right
to raise the issue of jurisdiction by its own inaction.
WHEREFORE, the challenged decision of the Court of Appeals dated October
14, 1992 in CA-G. R. CV No. 26680 affirming that of the Regional Trial Court of
Caloocan City, Branch 121, is hereby MODIFIED insofar as it awarded actual
damages to private respondent Maria Efigenia Fishing Corporation in the amount
of P6,438,048.00 for lack of evidentiary bases therefor. Considering the fact,
however, that: (1) technically petitioner sustained injury but which, unfortunately, was
not adequately and properly proved, and (2) this case has dragged on for almost two
decades, we believe that an award of Two Million (P2,000,000.00)[59] in favor of
private respondent as and for nominal damages is in order.
No pronouncement as to costs.

G.R. No. L-22793 May 16, 1967
CARMELITA TAN and RODOLFO TAN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO TAN (alias Tan Uh Bak and Tan Seng
Ka), respondents.
Amando Asis for petitioners.
Tañada, Teehankee and Carreon for respondents.
SANCHEZ, J.:
The present is a suit aimed at establishing a children-to-father, illegitimate
relationship between petitioners and the principal respondent Francisco Tan, and to
compel the latter to support petitioners.
The background facts follow:
On July 22, 1955, petitioners, thru their mother Celestina Daldo as guardian ad
litem, sued respondent Tan in the Court of First Instance of Manila for
acknowledgment and support (Civil Case 26909). 1äwphï1.ñët
On March 26, 1956, Celestina Daldo — after petitioners had already presented oral
and documentary evidence and were about to rest their case — moved to dismiss
the foregoing civil case upon the ground that the parties had come to an amicable
settlement, and prayed that the same be dismissed with prejudice and without
recourse of appeal.
On the same day, March 26, 1956, Celestina Daldo subscribed before the clerk of
the Court of First Instance of Manila to an affidavit categorically stating that
respondent Francisco Tan, defendant in Civil Case 26909, "is not the father of my
said minor children named Carmelita and Rodolfo (herein petitioners) but another
person whose name I cannot divulge"; and that she prepared said affidavit
precisely "to record what is true and to correct what misinterpretation may arise in
the future".
On March 26, 1956, the Court of First Instance of Manila issued the following order:
As prayed for by plaintiffs in their motion filed today for the dismissal of
their complaint, on the ground that the parties have already come to an
amicable settlement, with the conformity of counsel for defendant, the
Court hereby orders this case dismissed with prejudice and without
pronouncement as to costs.
On November 25, 1957 — one year and eight months after Civil Case 26909 was
dismissed — petitioners, this time thru their maternal grandfather Servillano Daldo
as guardian ad litem, commenced the present action before the Juvenile &
Domestic Relations Court (Civil Case 00855) for acknowledgment and support,
involving the same parties, cause of action and subject matter.
On September 10, 1960, then Judge Juan P. Enriquez (Judge of the Court of First
Instance of Manila detailed to preside over the Juvenile & Domestic Relations Court
in the absence of the presiding Judge thereof who was on leave rendered judgment
declaring that "the present case is res judicata by reason of the dismissal with
prejudice of Civil Case 26909 of the Court of First Instance of Manila; and that,
even on the merits, plaintiffs [the present petitioners] have not made out their case
with sufficient evidence," and dismissed the complaint, without costs.
On October 8, 1960, petitioners herein, plaintiffs below, moved to reconsider.
On January 31, 1961, then Judge Natividad Almeda Lopez reconsidered the
decision of Judge Enriquez of September 10, 1960, and rendered judgment, viz:
In view of the foregoing considerations, this Court reconsider its decision
of September 10, 1960, and declares the minors Carmelita and Rodolfo
Tan to be the illegitimate children of the defendant Francisco Tan alias
Tan Uh Bak and Tang Seng Ka; and hereby orders the defendant to
support said minors in the amount of P200.00 a month, said amount to be
paid within the first five (5) days of each month directly to Carmelita Tan,
for herself and for her younger brother Rodolfo; and to help them defray
their matriculation expenses, to pay semi-annually, on June and
November of such year, an additional sum of P300; to reimburse
Servillano Daldo his expenses in supporting plaintiff minors during the
pendency of this case in the amount of P2,000, or at the rate of P50 a
month from November 25, 1957; to pay plaintiff minors' attorney's fees of
P500; and to pay the costs of this proceedings.
Respondent Francisco Tan appealed to the Court of Appeals.
On February 21, 1964, the Court of Appeals in turn reversed the last-named
judgment of Judge Natividad Almeda Lopez, and dismissed the complaint with
costs against appellees in both instances.
Petitioners now come to this Court in forma pauperis on appeal by way of certiorari.
1. Threshold question is the admissibility of Exhibits H and I, testimony of
petitioners' witnesses in the former case. Petitioners balk at the ruling denying
admissibility.
The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court, now
Section 41, Rule 130, viz:
 SEC. 41. Testimony at a former trial. — The testimony of a witness
deceased or out of the Philippines, or unable to testify, given in a former
case between the same parties, relating to the same matter, the adverse
party having had an opportunity to cross-examine him, may be given in
evidence.
Concededly, the witnesses at the former trial were subpoenaed by the Juvenile &
Domestic Relations Court a number of times. These witnesses did not appear to
testify.
But are their testimonies in the former trial within the coverage of the rule of
admissibility set forth in Section 41, Rule 130? These witnesses are not dead. They
are not outside of the Philippines. Can they be categorized as witnesses of the
class unable to testify? The Court of Appeals, construing this term, held that
"subsequent failure or refusal to appear thereat [second trial] or hostility since
testifying at the first trial does not amount to inability to testify, but such inability
proceeding from a grave cause, almost amounting to death, as when the witness is
old and has lost the power of speech. (Griffith vs. Sauls, 77 Tex 630, 14 S.W. 230,
231; section 37 of Rule 123, Rules of Court)."
Here, the witnesses in question were available. Only, they refused to testify. No
other person that prevented them from testifying, is cited. Certainly, they do not
come within the legal purview of those unable to testify.
Besides in the situation here presented, petitioners are not at all bereft of remedy.
They could have urged the court to have said witnesses arrested, punished for
contempt.1 After all, these remedies are in the statute books to help litigants in the
prosecution of their cases. Petitioners failed to avail of these remedies, went ahead
and submitted their case.
We note petitioners' argument that to follow strictly the law of admissibility of
testimony in former trials, is to permit party litigants to buy witnesses to dissuade
them from testifying again. Nothing extant in the record will as much as intimate
that respondent was responsible for the non-appearance of these witnesses. The
danger of tampering with witnesses is a problem that attends trials in many a time
and in number of imaginable situations. And, petitioners argument works both
ways. Because, witnesses at the former trial can be bought not to testify at the
second trial, in just the same way that they could have been bought to give their
original testimony. Solution of this problem lies elsewhere, not in the non-
enforcement of Section 41, Rule 130 of the Rules of Court.
2. The procedural problem out of the way, we go direct to the merits.
Petitioners tried to prove that Celestina Daldo and respondent Francisco Tan lived
together as husband and wife for more than eight years commencing from 1936 to
1944. Petitioners Carmelita Tan and Rodolfo Tan are allegedly the fruits of such
cohabitation. Respondent stoutly denies this claim, avers that he is very much a
married man with children. Celestina Daldo, by her own admission, had been a
nursemaid (yaya) in respondent's residence but for l short period of not less than
one year in 1939. Carmelita was born on May 8, 1942 and Rodolfo, on September
11, 1944. The validity of the testimony of petitioners' witnesses in the present case
was considerably downgraded by the affidavit of Celestina Daldo, heretofore
adverted to, attached to the record of the former Case 26909. In that affidavit,
Celestina deposed that petitioners were not fathered by Francisco Tan, but, in
Celestina's own words, by "another person whose name I cannot divulge." Striking
is the fact that this affidavit was executed after petitioners in the former case had
finished with their oral and documentary evidence and were about to submit their
case. By then, their counsel had a grasp of the situation. Petitioners and their
guardian ad litem could have known whether they had reasonably made out a case
against respondent.
Correctly then did the Court of Appeals rule out the probative value of petitioners'
evidence and found for respondent. On this point the Court of Appeals said:
... we now come to the resolution of the second point; i.e., whether or not
the plaintiffs have sufficiently proved their case. We have gone over and
examined thoroughly the arguments and evidence of the parties, and we
find that the evidence for the plaintiffs-appellees fall short of the
requirement of clear strong and convincing evidence. Such evidence is
necessary whether to prove legitimate or illigitimate paternity and filiation,
considering the seriousness of the relationship and its far-reaching
consequences. As aptly expressed in the case of Serrano v. Aragon, (22
Phil. 10),
"Public policy, indeed public necessity, demands that before an illegitimate
child be admitted into a legitimate family, every requisite of the law be
completely and fully complied with. No one should ever be permitted upon
doubtful evidence to take from legitimate children the property which they
and their parents have, by industry, fidelity, and frugality, acquired. ..."
We agree with the findings of the trial court in its original correctly
appreciating the evidence of the plaintiffs as unsatisfactory and
insufficient, in view of the following considerations;
(1) That Exhibits H and I, former testimonies of witnesses in Civil Case
No. 26909, are inadmissible. ...
(2) That the baptismal certificates, Exhs. A and C are not admissible
proofs of filiation (Malonda vs. Malonda, 45 O.G. 5468; Pareja vs. Pareja,
G.R. L-3824, prom. May 31, 1954; Capistrano vs. Gabino, 8 Phil. 135;
Adriano vs. De Jesus, 23 Phil. 350; Madridejo vs. Leon, 55 Phil. 1) The
birth certificate Exhibit B is likewise inadmissible against the defendant
because it failed to comply with Section 5 of Act 3753. The alleged
illegitimate father did not sign under oath the said birth certificate (Roces
vs. Local Civil Registrar of Manila, G.R. L-10598, prom. February 14,
1958; Crisolo vs. Macadaeg, G.R. L-7017 prom. April 29, 1954).
 It should be noted that said baptismal certificates are also useless to
prove the dates of birth of the appellees-minors, considering that the
period of cohabitation or any intimate relations at all between their mother
and the appellant has been denied and that same has not been
satisfactorily proved. Stated in another way, the date of birth as appearing
in the birth certificate would be material only if it coincides with the period
of cohabitation as admitted or sufficiently proved. To reason otherwise
would be to put the cart before the horse, so to speak.

(3) The oral evidence for the plaintiffs, consisting principally of the
testimonies of the grandfather and of the mother of the minors, are
unsatisfactory, being inconsistent and contradictory on material points,
and unbelievable. The loose character of the mother of the minors who
admittedly had lived and begotten children with several men of different
nationalities, cannot also be overlooked. Weighed against each other, the
evidence for the plaintiffs do not tip the scales in their favor as against the
defendant-appellant. We are not convinced, by preponderance of
evidence, that appellant is the father of the minor appellees. ...

Section 2, Rule 45 of the Rules of Court, formerly Section 2, Rule 46 of the 1940
Rules, employs the commanding language that "[o]nly questions of law may be
raised" in an appeal by certiorari from a judgment of the Court of Appeals. That
judgment, jurisprudence teaches, is conclusive as to the facts. We are not to alter
said facts — they bind us, or to review the questions of fact.2

Having reached the conclusion that, on the merits, petitioners made no case, it is
unnecessary for us to pass upon the other questions raised on appeal.

For the reasons given, we vote to affirm the judgment of the Court of Appeals under
review. No costs in all instances. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P. Zaldivar
and Sanchez, JJ., concur.
Castro, J., took no part.
 G.R. No. L-35357 February 2, 1932
GUILLERMO B. GUEVARA, Plaintiff-Appellee, vs. ROSAURO ALMARIO,
MARCIANO ALMARIO, LA VANGUARDIA, INC., and MANUEL V.
VILLAREAL, defendants.
ROSAURO ALMARIO and MARCIANO ALMARIO, appellants.
Juan T. Santos, Francisco Arellano, Celestino L. de Dios, and Marciano Almario for
appellants.
Guevara, Francisco & Recto for appellee.
STREET,MALCOLM, J.:
The appeal taken in this case from a judgment of the Court of First Instance of the
City of Manila necessitates the scrutiny of the proceeding to determine their legality
and a decision as to the amount of the damages which should be allowed the
plaintiff.
On March 3, and March 16, 1927, La Vanguardia, a daily newspaper published in
the City of Manila, printed two articles which mentioned Guillermo B. Guevara, the
Fiscal of the City of Manila. The author of the articles was Rosauro Almario. They
were clearly and flagrantly libelous. In addition to casting aspersions on the plaintiff
in a manner which need not be described, the articles assailed his official integrity.
They passed beyond the bounds of legitimate criticism of a public official to attack
the individual and to indulge in personalities.
A criminal action was instituted, and after the evidence for the prosecution had
been received, the accused Rosauro Almario was permitted to acknowledge
authorship of the defamatory articles and to change a plea of not guilty to a plea of
guilty, with certain qualifying explanations on his part. Thereupon, he was
sentenced to pay a fine of P400. Subsequently, Guillermo B. Guevara instituted
civil proceedings to recover a total of P100,000 by way of damages. Defendant
Almario pleaded the truth and justifiable motives.
When the case was called for trial, the plaintiff submitted his evidence consisting
exclusively of the record, exhibits, and judgment in the criminal case. The
defendants produced no evidence and contended themselves with filing a motion
for the dismissal of the case, which was denied. The trial judge thereafter rendered
judgment against Rosauro Almario for P5,000 as general damages and an equal
sum of P5,000 as punitive damages. The defendants La Vanguardia Incorporated,
Marciano Almario, and Manuel V. Villareal were absolved from the complaint.
Certain minor points can be disposed of quickly. For example, the action of the trial
court in refusing to grant Marciano Almario legal costs, and in ordering on its own
initiative the amendment of the complaint so that it contained allegations relating to
the judgment of conviction in the criminal case, are matters which addressed
themselves to the discretion of the trial judge and should not be interfered with
here.
A major question has to do with the action of the trial court in admitting evidence,
over the objection of the defendants, consisting of proof filed in a previous criminal
case. On this point we find in our Code of Civil Procedure, section 298, number 8,
the provision that evidence may be received upon a trial of "The testimony of a
witness deceased or out of the jurisdiction, or unable to testify, given in a former
action between the same parties, relating to the same matter." We have also the
rule sanctioned by authoritative decisions that facts may be established by
evidence thereof given on a former trial, provided the court is satisfied: (1) That the
party against whom the evidence is offered, or his privy, was a party on the former
trial; (2) that the issue is substantially the same in the two cases; (3) that the
witness who proposes to testify to the former evidence is able to state it with
satisfactory correctness; and (4) that a sufficient reason is shown why the original
witness is not produced. In the same connection, it is well settled that a judgment of
conviction in a criminal proceeding cannot be admitted in evidence in a civil action.
But a record in a criminal case may be admitted by way of inducement, or to show
a collateral fact. (Ed. A. Keller & Co. vs. Ellerman & Bucknall Steamship Co. and
Collector of Customs [1918], 38 Phil., 514; Chantangco vs. Abaroa [1910], 218 U.
S., 476; City of Manilavs. Manila Electric Co. [1928], 52 Phil., 586.) Here, all other
consideration to one side, there has not been any sufficient reason, in truth no
reason at all, shown why the original witnesses in the criminal case could not be
produced in the civil case. A showing of this character is necessary to justify the
court in receiving evidence given on a former trial. However, the general rule is
qualified, and properly so, by permitting the fact of defendant's conviction to be
proved in the civil action. (Arambulo vs. Manila Electric Company [1930], 55 Phil.,
75.) We fell also that there would be no nullification of the rule to permit further the
record to disclose the express admission by the defendant in the criminal case of
his authorship of the libel.
The controlling facts to be deduced from all the foregoing are that an article which
grossly libeled Guillermo B. Guevara, Fiscal of the City of Manila, of which Rosauro
Alamario was the author, was published in the press; that on the criminal charge
Alamario plead guilty and was sentenced accordingly, and that neither the truth nor
justifiable motives were established. But all other portions of the record in the
criminal case, including the transcript of the testimony, are inadmissible in the civil
record. Discarding the personal equation, for the plaintiff and the defendant alike
are well known to the public, and considering the matter abstractly as we should,
what should be the measure of damages?
The Libel Law permits the person libeled to recover the actual pecuniary damages
sustained by him, damages for injury to this to his feelings and reputation, and
punitive damages. Otherwise stated, special damages have not been proved.
Nominal damages are not generally recognized under the civil law. Punitive
damages have been imposed in the criminal action. As to general or actual or
substantial damages, as variously described, these arise from legal inference and
need not be proved. So likewise is the good reputation of the plaintiff presumed
until the contrary is established by proper evidence.
The authorities offer little aid in solving our problem, except as disclosing a tolerant
attitude on the part of the appellate court - more likely to reduce damages for libel
than to increase them. The case of Worcester vs. Ocampo [1912], 22 Phil., 42),
which was taken as a model by the trial judge is hardly such, considering the
marked differences in the two cases and the vast amount of evidence to be found
in the Worcester case, which is not to be found in the Guevara case. In other cases
offended parties have been allowed all the way from P50 to P5,000. (See
Phee vs. La Vanguardia [1923], 45 Phil., 221, P50; Causin vs. Jakosalem [1905], 5
Phil., 155, P100; Montinola vs. Montalvo [1916], 34 Phil., 662, P200; Choa Tek
Hee vs. Philippine Publishing Co. [1916], 34 Phil., 447, P300; Jimenez vs. Reyes
[1914], 27 Phil., 52, P500; Sotelo Matti vs. Bulletin Publishing Co. [1918], 37 Phil.,
562, P500; Oliver and Chamblise Oliver vs. La Vanguardia, Inc. [1925], 48 Phil.,
429, P1,000; Perfecto vs. Contreras [1914], 28 Phil., 538, P2,500;
Macleod vs. Philippine Publishing Co. [1909], 12 Phil., 427, P5,000.) But for
comparative purpose, the decisions are of little value for the specific amount of
damages in a libel must depend upon the facts of the particular case and the sound
discretion of the court.

When we come to give direct application to the proven facts and the governing
legal principles, we are not surprised to find about as great a variety of opinions as
there are members participating in the discussion. The suggestions regarding the
amount of the damages have ranged all the way from P200 proposed by the writer
to P6,000 proposed by another member of the court. Eventually, after an exchange
of impressions, a majority of the court have reached the conclusion that the plaintiff
should be awarded damages in the sum of P1,000.

The various errors assigned will be overruled except as to the first and sixth on the
appeal of Rosauro Almario, which will be partially sustained, with the result that the
judgment appealed from will be modified by condemning the defendant Rosauro
Almario to pay the plaintiff the sum of P1,000 and the costs of both instances.
 Coronel versus Doroteo (Boy) Toledo y
Calipusan, Jr., respondent for Murder and
G.R. No. L-36603 September 30, 1978 taken and certified by the clerk-stenographer,
Jose P. de Guzman; the transcript of notes of
the hearing of the same case conducted on
DOROTEO TOLEDO, JR., petitioner, March 17, 1971 and appearing on pages 27 to
vs. 53 of the transcript of notes in the Fiscal's
THE PEOPLE OF THE PHILIPPINES and HON. RUPERTO KAPUNAN, Office and certified by the clerk-stenographer,
JR., respondents. Jose P. de Guzman, as Exhibit J-1, page 54,
which is a part of the proceedings held in the
BARREDO, J.: City Fiscal's Office on March 18, 1971 up to
that point where their respective adverse
counsel, Atty. Narvasa said: "After going over
Petition for certiorari against the ruling of respondent judge admitting as evidence
the testimony of the witness" — to be marked
for tile prosecution in the criminal case against petitioner the transcript of the
as Exhibit J-2. this page is a part of the
stenographic notes of the testimony of a witness given during the preliminary
proceedings of March 18, 1971, in the
investigation of the same murder charge against petitioner in the fiscal's office on
afternoon which in turn is certified to as correct
the ground that said witness could not despite several attempts be served with
by the clerk-stoneographer, Jose P. de
subpoena.
Guzman. We are offering that your Honor.

In Criminal Case No. 4825 of the Court of First Instance of Manila, a case of
murder, in which the petitioner is the accused, to close the evidence for the
prosecution, the fiscal offered as documentary evidence, Exhibits J, J-1 and J-2,
consisting of the transcript of the testimony, on both direct and cross-examination,
of one Mrs. Lydia Fernandez Cruz, allegedly a witness to the crime charged, given
during the preliminary investigation of the case in the office of the City Fiscal of
Manila. The offer was predicated on the contention tht said transcript is admissible
in lieu of the testimony of said witness in open court inasmuch as she had
repeatedly ignored several notices or subpoenas seeking her appearance.
The pertinent portion of th transcrip of the stenographic notes of the proceedings
when the offer was made and ruled upon by the respondent court reads as follows:
ATTY. FAYLONA
... As our last exhibit we offer in evidence the
testimony of the witness Lydia F. Cruz who
testified during the preliminary investigation of
this case and who also was cross-examined,
as a matter of fact, the accused was
represented by the same counsel during the
preliminary investigation in the Fiscal's Office
of Manila, and shw was duly cross-examined
by the respective counsels of the accused, the
same attorneys on record for the accused. For
that purpose we are offering in evidence the
whole transcript of notes which covers her
testimony on March 16, 1971, consisting of 26
pages and which wer request to be marked as
Exhibit "J", her testimony in hte City Fiscal's
Office in the case of Florencia Chincuanco y
COURT
Objections?
ATTY. NARVASA
...Exhibits J-1, J-2, may I make some
preliminary inquiry from the personnel of the
Court before I make my manifestation. There
appears in the record, not yet paged, a
subpoena issued by this Hon- Court addressed
to Lydia Cruz Fernandez and at the back
thereof there is a return from the Sheriff of
Manila that the subpoena was served on Lydia
Cruz, personally to H. R. Bautista who is
working with subject Lydia Cruz . . . May we
know if there is a manifestation or notice from
this witness aside from this?
ATTY. FAYLONA
I think that in this offer of evidence whatever
manifestation made out of this Court would be
immaterial to the admission of the offer, As this
Honorable Court has been a witness to the
several notices sent to this witness seeking her
appearance But not, even once did she appear
in this Court. As a matter of fact it was even
made to appear that she was out of tile
country. And so, for that matter, we are merely
offering in evidence plaintiff-, testimony of the
witness taken in the Fiscal's Office of Manila,
the transcription (Exhibit J) for consideration of
this Court
COURT
The Court is aware of the attempts of the
prosecution to subpoena the witness, Lydia
Cruz.
ATTY. NARVASA
It appearing, however. that the witness is
present and maybe reached by subpoena
considering that the subpoena was duly served
on her.
COURT
But through another person.
ATTY. NARVASA
But the return would seem to indicate that the
person is authorized to receive the same. In
view of that I will object to the presentation of
Exhibit J-A as there is no sufficient basis and
as provided for by the rules, the witness is out
of the Philippines and cannot be reached by
subpoena, etc.
COURT
Remember, Mr. Counsel, that the Court has
subpoenaed this witness several times and
there was even an attempt to find out from the
Department of Foreign Affairs whether she has
left the country.
ATTY. NARVASA
If I remember correctly prior subpoenas were
not served personally or) "he witness nor was
there any person who received the same in her
behalf as now manifested in the return. So, I
therefore object to the admission of this Exhibit
J-3A for being hearsay and no basis for their
admission under the rules.
ATTY. FAYLONA
In the event, may we suggest that the witness
should she be found, that she be presented as
a witness?
COURT
The Court admits Exhibits J to J-2. (Pp. 15-21,
Record.)
Without waiting for the continuation of the trial, petitioner has come to this Court
thru the instant petition for certiorari. He contends that:
VI
In ruling for the admission of the questioned transcript over the
prompt and timely objection of petitioner's counsel, the
respondent Judge incurred in, and acted with, clear, grave and
serious abuse of discretion amounting to lack of jurisdiction,
because:
(a) the right of confrontation is one of the most
basic rights of an accused person under our
system of justice; it is guaranteed in both the
1935 and the new Constitutions in almost
exactly the same language, thus:
In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the
nature and cause of the accusation against
him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to
have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf. (Sec. 19 of Art. IV, Bill
of Rights, 1973 Constitution; see also sec. 17
of Art. III, 1935 Constitution).
(b) Section 1 (f) of Rule 115, Rules of Court,
echoes the same guarantee, providing that in
all criminal prosecutions the defendant shall
have the right '... To be confronted at the trial
by, and to cross-examine the witness against
him ... ,' and providing further that such right of
confrontation at trail may be traversed only
during the most exceptional circumstances,
namely (1) when the testimony of prosecution
witness has previously been taken doen in the
presence of the examine and (2) upon
sufficient proof that the witness is dead,
incapacitated to testify or cannot with due
diligence be found in the Philippines;
(c) from the workding of the cited rule, it is
clear that the burden of proving the
unavailability of the witness, whether by reason
of death, inacapacity or absence, rests upon
the prosecution; moreover, the phrase
'sufficient proof' used threin rules out invoking
any of the excepting cercumstances upon
mere assumption, conjecture or speculation;
(d) there has been no pretense here that the
witness whose testimony during preliminary
investigation has been offered in lieu of her
actual appearance on the stand i dead or
incapable of testiying; nor has it been charged,
except by the vaguest sort of speculation that
she is not in the Philippines; indeed, it is of
record that upon inquiries initiated by the
respondent Judge, the Bureau of Immigration
issued a certification (copy attached as Annex
"B") that their records covering the period from
January, 1970 to August, 1972 show no record
of either the departure or arrival of said Lydia
Fernandez Cruz, which considering that she is
supposedly a witness to the crime charged as
having been committed on March 3, 1971, can
only mean that she has been in this country all
that time; likewise, from the return written on
the face of the suboena issued for the hearing
of November 9, 1972 (copy attached as Annex
"C"), which relays information that she was at
that time in Mindanao on her honeymoon and
would be back by the end of December, and
the return of the subpoena for the hearing of
March 23, 1973, showing that the process was
served on another person at the witness given
address (copy attached as Annex "C-l"), attest
to her continued presence in the Philippines
even after the period stated in the certification
Annex "B";
(e) therefore it appears clear that, as
elsewhere in this Petition already alleged, the
only ground advanced by the prosecution for
admission of said witness' testimony during
preliminary investigation was her continued
failure to obey subpoenas requiring her
presence to appear and testify during the trial;
that is, in the first place, an unwarranted
broadening of the terms of the cited rule, which
lists only death, incapacity to testify and the
fact that a witness cannot be located within the
Philippines, due diligence notwithstanding, as
the only circumstances justifying admission of
testimony not given in actual trial; to extend it
to cover cases where a witness manages to
evade service for a time or is not served
without his or her fault can only lead to abuse
and a gradual erosion of the protection that the
right of confrontation was meant to give to
persons accused of crime;
(f) assailants. had presumably called and
presented all its other witnesses and had none
but Lydia Fernandez Cruz to offer, shows that
she was never personally served any such
process; hence, there is no reason to assume
a deliberate or with refusal on her part to
appeal and testify; attached to this Petition as
integral parts thereof are xerox copies of the
following subpoenas:
as Annex "D", subpoena for
hearings of February 3 and
March 9, 1972;
as Annex "E", subpoena for
hearing of April 12, 1972;
as Annex "F", subpoena for
hearing of May 15, 1972;
as Annex "G", subpoena for
hearing of June 28, 1972;
as Annex "H", subpoena for
hearing of July 26, 1972;
as Annex "I", subpoena for
hearing of August 30, 1974;
 and as Annex "J", subpoena
for hearing of October 2,
1972;
(g) even assuming an intention and active
efforts on the part of said witness to avoid
service and consequent legal necessity of
testifying, and assuming further that the rule
already cited can be stretched to cover a
witness who, though known to be in the
Philippines, successfully evades service of
process indefinitely, still it is clear that the
requisite 'due diligence' to make her amenable
to such process here has not been exercised; it
was at least incumbent upon the prosecution to
ask the respondent Judge to exercise the
appropriate coercive powers in the matter,
such as to arrest her and hold her liable for
contempt; not having done so, they have even
less reason for invoking said rule;
This contention was amplified in the Solicitor General's answer this wise:
(h) hence and in fine, the act of the respondent
Judge in admitting the questioned transcript
violates and puts to naught a basic,
fundamental right of petitioner, as a person
accused of crime, guaranteed to him by the
Constitution and the Rules of Court and this,
whimsically, capriciously and absolutely
without sanction in either law or precedent.
VII
Against said questioned act of the respondent Judge, petitioner
has no appeal, or any other plain, speedy and adequate remedy
in the ordinary course of law; and petitioner filed no motion for
reconsideration thereof because, as already averred and as is
clearly shown in the transcript of the proceedings in question
(Annex 'A' of this Petition) said respondent Judge announced in
no uncertain terms that he would not reconsider his ruling or
order. (Pp. 3-7, Record.)
Required to comment on the petition, the Solicitor General stated the position of the
People to be that:
1. In the light of the ruling of this Honorable Court in t e case of
Tan vs. Court of Appeals, L-22793, May 26, 1967, 20 SCRA 54,
regarding tile admission of testimony given, at a former trial
under Section 41, Rule to which is similar to Section 1 (f) Rule
115, Revised Rules of Court, we submit that the questioned
exhibits should not have been admitted by respondent Judge
because there is no showing that the prosecution has urged the
trial court to use its coercive power under Sections 11 and 12,
Rule 23, and Section 6, Rule 119 of the Rules of Court to secure,
the compulsory attendance of a witness. These remedies should
Be availed of in order to show that the witness whose previous
testimony is being offered in evidence 'can not with due diligence,
be found in the Philippines';
2. However, the ruling of respondent Judge admitting Exhibits 'J',
'J-I' and 'J-2' is an interlocutory order, hence, cannot be appealed
until after there is a decision on the merits of the case. Neither
can it be the subject of certiorari because the admission of said
exhibits is not a grave abuse of discretion amounting to lack of
jurisdiction, At most, it is merely an error of judgment and not an
error of Jurisdiction and can be corrected by appeal in due time,
after trial and judgment on the merits, and not through the special
civil action of certiorari (Palma & Ignacio vs. Q & S Inc., et al, L-
20366, May 19, 1966, 17 SCRA 97; Abig vs. Constantino, L-
12460, May 31, 1961, 2 SCRA 299). (Pp. 65-66, Rec.)
6. There is no dispute that the respondent lower court has
jurisdiction over the case, and the ruling of the respondent lower
court admitting the questioned exhibits was issued in the
exercise of such jurisdiction. This being so, then the
pronouncement of this Honorable Court in the case of Villa Rey
Transit Inc. vs. Bello, L-18957, Control 23, 1963, 7 SCRA 735, is
squarely in point:
If the Court has jurisdiction of the subject
matter and of the Person, orders or decisions
upon all questions pertaining to the cause are
orders or decisions within its jurisdiction
and, however irregular or erroneous they may
be, they cannot be corrected by certiorari (Gala
vs. Cusi and Rodriguez, 25 Phil. 522). Judicial
errors or mistakes of law, are proper subjects
of appeal (Macasieb Sison vs. CFI-
Pangasinan, 34 Phil. 404; Galang vs.
Endencia, 73 Phil. 399, emphasis supplied).
7. It is a legal truism that not every error in the proceeding, or
every erroneous conclusion of law or of fact, is abuse of
discretion (Villa Rey Transit Inc. vs. Bello, supra). Not every
abuse of discretion is sufficient by itself to justify the issuance of
a writ of certiorari. The abuse must be grave and patent, and it
must be shown that the discretion was exercised arbitrarily or
despotically. Grave abuse of discretion means such capricious
and arbitrary exercise of judgment as is equivalent, in the eyes of
the law, to lack of jurisdiction. An error of judgment committed by
a court in the exercise of its legitimate jurisdiction is not the same
as 'grave abuse of discretion' (Palma & Ignacio vs. Q & S Inc. et
al., L-20366, May 19, 1966, 17 SCRA 97).
The admission of the questioned exhibits, although perhaps
erroneous, cannot be characterized as 'capricious, arbitrary, and
despotic' to warrant the issuance of a writ of certiorari. Certainly,
respondent court has exercised no mean amount of diligence to
bring the witness before the court, This is borne out by the record
of the case, to wit:
Court:
The Court is aware of the attempts of the
prosecution to subpoena the witness, Lydia
Cruz (p. 10, Annex A, Petition)
xxx xxx xxx
Court:
Remember, Mr. Counsel, that the Court has
subpoenaed this witness several times and
there was even an attempt to find out from n
the Department of Foreign Affairs whether she
has left the country (p. 11, Annex A, Petition)
xxx xxx xxx
Atty. Faylona (Prosecution):
In the event, may we suggest that the witness
should she be found, that she be presented as
a witness (p. 12, Annex A, Petition)?
Even granting arguendo that respondent court erred in its
judgment respecting the exertion required by law to locate and
bring a witness before the court this would not support
petitioner's charge that 'the respondent Judge incurred in, and
acted with clear, grave and serious abuse of discretion
amounting to lack of jurisdiction'. If there was error at all, it was
simply an error of judgment in the appreciation of the facts and
tile law. The error being one of judgment, not of jurisdiction,
petitioner's remedy is appeal in due time, not certiorari (Fernando
vs. Vasquez, L-2641-1, January 30, 1970, 31 SCRA 288).
Finally, if every ruling on the admissibility of a certain evidence
were appealable by certiorari, this could well be the proverbial
bolt thrown into the machinery of justice. (Pp. 82-84, Record.)
On his part, private respondent, aside from also challenging the
propriety of certiorari as a remedy in this case, contends that:
Respondent's admission of Exhibits J,
J-1 and J-2 proper, right of petitioner,
as an accused, to confrontation amply
protected —
The records of Crim. Case No. 4825 would bear respondent out
that as early as March, 1972 efforts have been exerted by the
prosecution to subpoena witness Lydia Fernandez Cruz. Up to
March, 1973, notwithstanding the numerous subpoenas issued
by the respondent (some of which had been annexed to the
Petition herein), said witness has been unable to testify. There is,
therefore, satisfactory proof that the testimony of said witness
taken during the preliminary investigation in the City Fiscal's
Office of Manila (Exhs. J, J-1 and J-2) may be availed of by the
prosecution in lieu of said witness testimony in open court. An
examination, in fact, of said testimony would show that petitioner,
represented by the same counsel who are his defense counsel
and who represented him in the Fiscal's Office, was able to
extensively cross- examine and confront Lydia Fernandez Cruz
in no less than three hearings and after 60 pages more or less of
stenographic notes. Respondent is, therefore, of the opinion that
Exhs. J, J-1 and J-2 can be admitted as an exception to par. (f),
Rule 115 of the Rules of Court for after all there is substantial
compliance therewith and after due consideration of the fact that
the right to confrontation of petitioner as an accused has been
protected. (Page 47, Record.)
The provision invoked by the private respondent reads:
Section 1. Rights of the defendant at the Trial.—In all criminal
prosecutions the defendant shall be entitled:
(f) To be confronted at the trial by, and to cross-examine the
witness against him, where the testimony of a witness for the
prosecution has previously been taken down by question and
answer in the presence of the defendant or his attorney, the
defense having had an opportunity to cross-examine the witness,
the testimony or deposition of the latter may be read, upon
satisfactory proof to the court that lie is dead or incapacitated to
 testify, or can not with due diligence be found in the Philippines.
(Subsec. (f), sec. 1, Rule 115, Rules of Court.)
As can be seen, the second sentence of the foregoing provision is in pari
materia with Section 41 of Rule 130 which has already been construed by the
Supreme Court in the case of Tan vs. Court of Appeals, 20 SCRA 54, where We
heard
1. Threshold question in the admissibility of Exhibits H and 1,
testimony of petitioners' witnesses in the former case. Petitioners
balk at the ruling denying admissibility.
The controlling statute is Section 37, Rule 123 of the 1940 Rules
of Court, now Section 41, Rule 130, viz.
SEC. 41. Testimony at a former trial. — The
testimony of a witness deceased or out of the
Philippines, or unable to testify, given in a
former case between the same parties, relating
to the same matter, the adverse party having
had an opportunity to cross- examine him, may
be given in evidence.
Concededly, the witnesses at the former trial were subpoenaed
by the Juvenile & Domestic Relations Court a number of times.
These witnesses did not appear to testify.
But are their testimonies in the former trial within the coverage of
the rule of admissibility set forth in Section 41, Rule 130? These
witnesses are not dead. They are not outside of the Philippines.
Can they be categorized as witnesses of the class unable to
testify? The Court of Appeals, construing this term, held that
subsequent failure or refusal to appear thereat [second trial] or
hostility since testifying at the first trial does not amount to
inability to testify, but such inability proceeding from a grave
cause, almost amounting to death, as when the witness is old
and has lost the power of speech. (Griffith vs. Sauls, 77 Tex 630,
14 S.W. 230, 231; section 37 of Rule 123, Rules of Court).
Here, the witnesses in question were available. Only, they
refused to testify. No other person that prevented them from
testifying, is cited. Certainly, they do not come within the legal
purview of those unable to testify.
In other words, under Section 47 of Rule 130, the preconditions for the admission
of testimony given by a witness out of court must be strictly complied with. Indeed,
liberality in such respect is pregnant with undesirable possibilities affecting the
veracity of the evidence involved. And there is more reason to adopt such a strict
rule in case of the above-quoted Section 1 (f) of Rule 115, for apart from being a
rule of evidence with additional specific requisites to those prescribed by Section
47, more importantly, said provision is an implementing translation of the
constitutional right of an accused person "to meet the witnesses (against him) face
to face. (Sec. 19, Bill of Rights, Article IV, Constitution of the Philippines of 1973)
Actually, its first sentence accentuates the mandate that the accused shall be
entitled "to be confronted at the trial by, and to cross-examine the witness against
him." The second sentence only enumerates the instances when such
confrontation may be deemed substantially complied with, should it be impossible
to produce the witness at the trial, and applying the ruling in Tan, supra, none of
those instances has materialized in the case of petitioner herein. With reason,
therefore, the Solicitor General states in his Comment aforequoted that "the
questioned exhibits should not have been admitted by respondent Judge."
However, the Court cannot agree with respondents that certiorari is not available in
the situation of petitioner in this case. Such posture overlooks the all important
fundamental consideration that the portion of the rule in question which ordains that
in a criminal case, the defendant has the right "to be confronted at the trial by the
witness against him" is a constitutional mandate listed in the Bill of Rights which if
violated results in total nullity of the adverse action of the court. Indeed, as already
indicated, the part of the provision invoked by the People is the exempting clause
intended to remove the stigma of hearsay in declarations out of court, and unless
the same is strictly complied with, failure to present the witness at the trial cannot
be excused. (Tan vs. Court of Appeals, supra.) It is only in case of actual
impossibility of producing the witness at the trial that in order not to defeat the ends
of substantial justice, the law permits the admission of testimony in another
proceeding. For obvious reasons, testimony in open court in actual trial cannot be
equated with any out-of-court declaration, even when the witness has in fact been
confronted already by the defendant. The direct relevance of the trial to the ultimate
judgment as to the guilt or innocence of the accused is not present in any other
proceeding and is thus a factor that can influence materially the conduct and
demeanor of the witness as well as the respective efforts of the counsels of the
parties. Any lawyer with adequate experience knows that substantial difference. We
hold, therefore, that the admission of evidence against the accused in a criminal
case in violation of any explicit provision of the Bill of Rights in the Constitution
constitutes denial of due process and may be the ground for an immediate special
remedy of certiorari, which, under consistent doctrines of this Court, is not available
in regard to rulings on admissibility of ordinary evidence that can properly and
adequately be raised only on appeal.
PREMISES CONSIDERED, the petition is granted and the ruling of respondent
judge admitting Exhibits J, J-1 and J-2 above referred to is hereby set aside, and
the joint motion of the parties of August 18, 1978 Agreeing to the taking of the
testimony of Mrs. Lydia Fernandez Cruz at the resumption of the trial is hereby
granted. No costs.
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 charge 17 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,18Marcelo 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.