[G.R. No. 143819.

January 29, 2002]

PEOPLE OF THE PHILIPPINES, appellee, vs. GERRY CUENCA y MEDRANO, JACKSON CUENCA (at
large), CRISANTO AGON y MAGPANTAY, and BERNIE AGON (at large), accused,
GERRY CUENCA y MEDRANO and CRISANTO AGON y MAGPANTAY, appellants.

DECISION

PANGANIBAN, J.:

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

The Case

Gerry Cuenca and Crisanto Agoni[1] appeal the February 7, 2000 Decisionii[2] of the Regional Trial Court
(RTC) of Lipa City (Branch 12) in Criminal Case No. 0132-98, which found them guilty of murder beyond
reasonable doubt.

The RTC disposed of the case as follows:

WHEREFORE, the Court finds the accused GERRY CUENCA and CRISANTO AGON, guilty beyond reasonable
doubt, both as principals by direct participation for having conspired and confederated with one another in
the commission of the crime of [m]urder, as alleged in the Information dated March 27, 1998, and defined
and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act 7659 and
sentences each of them to suffer the penalty of RECLUSION PERPETUA, to pay the heirs of Wilfredo
Castillo the sum of P50,000.00 as indemnity for his death, the sum of P38,800.00, as actual damages, the
sum of P4,800,000.00 for loss of earning capacity, the sum of P20,000.00, as moral damages and to pay
their proportionate share of the costs.

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

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

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

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

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

The Facts
Version of the Prosecution

In its Brief,vi[6] the Office of the Solicitor General summarized the prosecutions version of the facts as
follows:

On February 14, 1998, around 9:30 in the evening, while lying down with his wife and family in his house
at Module Subdivision, Barangay Tambo, Lipa City, Batangas, Marcial Morillovii[7] heard a commotion
taking place outside his house. Dogs were barking loudly, so he decided to go out of the house to see
what was happening outside. He then saw a man being mauled and beaten by four (4) persons. Upon
seeing the incident, he hid himself behind a PLDT telephone post. From a distance of about ten (10)
meters, he recognized the four (4) assailants as Gerry Cuenca, Jackson Cuenca, Crisanto Agon and Bernie
Agon, while the person being mauled was Wilfredo Edok Castillo. Marcial knew the four assailants and the
victim for eight (8) years since they were all neighbors, Gerry and Jackson being brothers and Crisanto
and Bernie being father and son. He witnessed Crisanto hold Edoks left hand while Bernie held his right
hand. Gerry was at Edoks front and to the right while Jackson was at Edoks front and to the left and both
were beating Edok continuously. Gerry and Jackson each used a piece of wood in hitting Edok several
times on the face, head, chest and other parts of his body. Edok tried to struggle but his efforts proved
futile. Edok then gave in, stooped down and eventually lost consciousness (Lumug[m]ok na po siya). The
four (4) assailants then carried Edoks body with one holding on to his right arm, the other one x x x his
left arm and the other two each held the right and left leg[s] of Edok towards the direction of Calabarzon
Highway.

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

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

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

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

Around 4:30 in the afternoon of February 15, 1998, Feliciano reported to the Desk Officer, SPO2 Alberto
Libao of the Lipa Police Satation, that the body of his brother, Wilfredo Castillo, had been found in the
forested area in Barangay Tambo. Thereafter, Police Inspector Romeo Mitra, PO2 Enrico Tapalla, SPO4
Renaldo Saludo and SPO3 Pablo de Luna were dispatched to the crime scene to investigate the incident.
Feliciano went with them. When Edoks body was retrieved, SPO4 Saludo noticed the presence of stab
wounds, blows and hematomas on his body. The cadaver was then taken to Funeraria San Sebastian at
Balagbag, Lipa City.
About 7:30 in the evening of February 15, 1998, Dr. Corazon Sabile, Health Officer of Lipa City, conducted
an autopsy on Edoks body. The physical examniation yielded the following results: there were nine (9)
injuries on the head, two (2) of which were stab wounds, one stab wound on the right frontal area of the
right ear which reached the skull and the second stab wound also at his right ear; one (1) lacerated
gaping wound on the head; there were several contusions and hematoma on both eyes which could have
been caused by mauling, and hematomas on the middle mandibular area and the lateral mandibular area
(chin) which could have been caused by mauling or the dumping of the cadaver in to the well; there are
also linear abrasions on the right lateral neck area that could have been caused by forcible contact; there
were nine (9) wounds on the body, that is, four (4) stab wounds and five (5) abrasions; the first stab
wound was on the third intercostal space midelavicular area, the second on the fifth intercostal space,
right midelavicular area, the third on the 8th intercostal space midelavicular area, and the fourth [was] on
the right lumbar area; the said wounds were almost of the same depth, that is 5 cms; all of the said
wounds could have been caused by a sharp pointed instrument; she also found five (5) abrasion on the
body, i.e., in the left midscapular area, left infrascapular area, on the vertebral line, on the right
midscapular area and on the vertebral line; that the abrasions are called gasgas and could have been
caused by forcible contact; she also found in the extrem[i]ties of the cadaver two (2) stab wounds on the
right anterior thigh 4 to 5 cms. deep; she also found three (3) abrasions on the right forearm, left
posterior arm and left posterior hand which could have been caused by forcible contact. The internal
examination on the victims body revealed that 200 ml. of blood were found in the fleural cavity which
could have come from the perforations of the right ventricle of the heart; the liver and upper lobe of the
right lung were perforated; there were complete fractures on the 2nd, 3rd, 4th, 5th, 6th, 7th of both ribs
which alone were sufficient to cause death. The mauling was aggravated by the dumping of the Edoks
body in the well. Considering the nature and number of injuries Edok sustained, no medical attention and
assistance could have saved his life. The cause of Edoks death was Hypovolemia secondary to multiple
stab wounds.

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

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

Version of the Defense

Appellants gave the following narration of the facts:ix[9]

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

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

The Trial Courts Ruling

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

The court a quo held that conspiracy attended the killing:

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

It disbelieved the defenses of denial and alibi.

Hence, this appeal.xiii[13]

Issues

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

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

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

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

This Courts Ruling

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

First Issue: Credibility of Lone Prosecution Witness

Appellants assail the credibility of Marcial Morcillo, the lone prosecution witness. They contend that the
trial court erred in giving full credence to Morcillos testimony, because it was not in accordance with
common experience and observation of mankind.xv[15] We disagree.
We carefully reviewed the testimonies of both the prosecution and the defense witnesses, as well as the
other pieces of evidence on record. We are convinced that the trial court did not err in giving full faith and
credence to Morcillos testimony, which we reproduce in part as follows:

Q On February 14, 1998, around 9:30 oclock in the evening, do you remember where you were?

A I was inside my house sir.

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

A At Module Subdivision, Tambo, Lipa City sir.

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

A We were already lying down sir.

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

A My wife and my family sir.

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

A Yes sir.

Q What was that unusual incident that transpired?

A There was a commotion of people sir.

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

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

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

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

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

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

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

A In the street sir.

Q How far is that place from your own house?

A About ten (10) meters sir.

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

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

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

A 10 meters sir.

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

A Yes, sir.

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

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

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

A Yes sir.

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

A Yes, sir. I recognized him.

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

A Edok Castillo sir.

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

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

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

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

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

A Crisanto Agon and Bernie Agon sir.

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

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

Q What hand was Crisanto Agon holding?

A Left hand sir.

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

A The right hand sir.

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

A Right front portion of Edok Castillo sir.

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

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

xxx xxx xxx

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

A He lost consciousness sir.

Q Why do say that he lost consciousness?

A Lumugmok na po siya.

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

A He could not do anything anymore sir.

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

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

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

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

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

xxx xxx xxx

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

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

A The highway going to Batangas sir.

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

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

Q How did they carry actually this Edok Castillo?

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

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

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

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

This Court has ruled in a number of casesxx[20] that the testimony of a single witness, if credible and
positive, is sufficient for conviction because truth is established not by the quantity, but by the quality of
the evidence.

Second Issue: Cause of the Victims Death

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

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

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

To require direct eyewitness testimony when circumstantial evidence is sufficiently established would, in
many cases, expose society to felons who would be unreasonably set free.xxiv[24]
In the present case, the postmortem examination shows that the victim sustained multiple lacerations and
abrasions plus eight stab wounds.xxv[25] The following pieces of circumstantial evidence show beyond
reasonable doubt that appellants are responsible for the killing:

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

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

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

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

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

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

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

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

Third Issue: Defense of Alibi

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

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

Alibi and denial are inherently weak and easily contrived. This is why the accused must prove with clear
and convincing evidence that it was physically impossible for him to have been present at the place and
time the felony was committed. This the accused failed to do. The distance between the house of Roger
Dimaculangan, where both accused claimed to be at the time the f[e]lony was committed and the locus
criminis is just a few kilometers away. It can be travelled in a few minutes by bicycle. Thus, it was not
impossible for Gerry Cuenca and Crisanto Agon to leave and, after killing Wilfredo Castillo, return to the
house of Dimaculangan without anybody noticing their absence. In any event, alibi and denial cannot
overcome the categorical and credible testimony of Marcial Morcillo identifying both accused as among
those whom he saw helping each other in holding and beating Wilfredo Castillo and thereafter carrying
him towards [C]alabarzon Highway going to the direction of Batangas City. Basic is the rule that positive
identification prevails over denial and alibi.xxvii[27]
Thus, it was not physically impossible for appellants to have been at the scene of the crime on the evening
of February 14, 1998, notwithstanding their friends testimonies that they were also at the Dimaculangan
residence.

Conspiracy and Treachery

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

On this point, the trial court aptly explained:

Article 14 (16) of the Revised Penal Code provides that there is treachery when the offender commits any
of the crimes against persons, employing means, methods o[r] forms in the execution thereof which tend
directly and specifically to insure its execution without risk to himself arising from the defense which the
offended party might make. In the instant case, Crisanto and Bernie Agon were holding both hands of
Wilfredo Castillo, while Gerry and Jackson Cuenca were beating him with a piece of wood on the different
parts of his body. Wilfredo Castillo was unarmed and defenseless. Hence, treachery was present.xxviii[28]

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

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

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

The award of P50,000 as indemnity ex delicto for the loss of the victims life is in accord with prevailing
jurisprudence.xxxi[31] Likewise, the award of P20,000 as moral damages is reasonable. However, the
actual damages granted is improper and should be reduced from P38,800 to P7,300 considering that only
the latter amount, representing burial expenses, was duly supported by receipts. The unsubstantiated
balance of P31,500 should be deleted.xxxii[32]

We also find the court a quos award of P4,800,000 for loss of earning capacity to be improper. True, in
People v. Verde,xxxiii[33] we granted an award for the loss of earning capacity to the heirs of the
deceased despite the absence of documentary evidence to substantiate such claim. We deemed the
testimony of the victims wife sufficient to establish the basis for the grant. However, the new ruling in
People v. Panabangxxxiv[34] modifies this principle and now precludes an award for loss of earning
capacity without adequate proof. The bare testimony of the brother of the deceased Felicisimo Castillo
that, at the time of his death, Wilfredo Castillo was earning P250.00 daily as carpenterxxxv[35] is not
sufficient proof.

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

Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly
proven. A self-serving statement, being unreliable, is not enough. The father of the victim has testified on
the latters monthly income of P12,000.00. But for lost income to be recovered, there must likewise be an
unbiased proof of the deceaseds average, not just gross, income. An award for lost of earning capacity
refers to the net income of the deceased, i.e., his total income net of expenses. x x x.xxxvi[36] (Emphasis
in the original, citations omitted)

WHEREFORE, the assailed Decision is AFFIRMED but the actual damages awarded by the RTC is
REDUCED from P35,850 to P7,300 while the grant of P4,800,000 for loss of earning capacity is DELETED.

SO ORDERED.

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

EDGARDO CARIAGA, ET AL., plaintiffs-appellants,
vs.
LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
MANILA RAILROAD COMPANY, defendant-appellee.

Ozaeta, Lichauco and Picazo for defendant and appellant.

E.A. Fernandez and L.H. Fernandez for plaintiffs and appellants.
Gov't. Corp. Counsel A. Padilla and Atty. F.A. Umali for appellee.

DIZON, J.:

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

Appellant LTB admits that under Art. 2201 of the Civil Code the damages for which the obligor, guilty of a
breach of contract but who acted in good faith, is liable shall be those that are the natural and probable
consequences of the breach and which the parties had forseen or could have reasonably forseen at the
time the obligation was constituted, provided such damages, according to Art. 2199 of the same Code,
have been duly proved. Upon this premise it claims that only the actual damages suffered by Edgardo
Cariaga consisting of medical, hospital and other expenses in the total sum of P17,719.75 are within this
category. We are of the opinion, however, that the income which Edgardo Cariaga could earn if he should
finish the medical course and pass the corresponding board examinations must be deemed to be within
the same category because they could have reasonably been foreseen by the parties at the time he
boarded the bus No. 133 owned and operated by the LTB. At that time he was already a fourth-year
student in medicine in a reputable university. While his scholastic may not be first rate (Exhibits 4, 4-A to
4-C), it is, nevertheless, sufficient to justify the assumption that he could have passed the board test in
due time. As regards the income that he could possibly earn as a medical practitioner, it appears that,
according to Dr. Amado Doria, a witness for the LTB, the amount of P300.00 could easily be expected as
the minimum monthly income of Edgardo had he finished his studies.

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

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

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

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

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

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

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

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

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

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

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

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

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

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

xxx xxx xxx

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

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

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

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

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

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

The decisions in the cases of Castro vs. Acro Taxicab Co., (82 Phil., 359; 46 Off. Gaz., No. 5, p.
2023); Lilius, et al. vs. Manila Railroad, 59 Phil., 758) and others, wherein moral damages were
awarded to the plaintiffs, are not applicable to the case at bar because said decision were rendered
before the effectivity of the new Civil Code (August 30, 1950) and for the further reason that the
complaints filed therein were based on different causes of action.
 In view of the foregoing the sum of P2,000 was awarded as moral damages by the trial court has
to be eliminated, for under the law it is not a compensation awardable in a case like the one at bar.

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

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

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

G.R. No. 89684 September 18, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GERARDO SAZON, alias "INSIK," accused-appellant.

The Solicitor General for plaintiff-appellee.

Benjamin P. Sorongon for accused-appellant.

REGALADO, J.:

For the death of Wilfredo Longno, alias, "Inday," on September 17, 1983 at Barangay Progreso, Lapuz, La
Paz, Iloilo City, herein accused-appellant Gerardo Sazon, alias "Insik," and Cornelio Altejos, alias "Toto,"
were charged with murder before the Regional Trial Court of Iloilo, 1 in an amended information dated
October 18, 1983.2 However, only herein accused was arraigned, and pleaded not guilty, since Cornelio
Altejos was not apprehended and has since remained at large.

After trial, appellant was found guilty and sentenced to serve the penalty of reclusion perpetua. He was
further ordered to pay the heirs of the deceased the amount of P16,628.40 representing hospital bills,
expenses for the coffin, tomb, wake and attorney's fees, and P30,000.00 as indemnity for the death of the
victim.

The antecedental facts which led to the filing of the criminal action below are herein under set forth as
synthesized by the court a quo from the testimonies of the witnesses, 3 and as clarified and amplified by
us from the transcripts of the notes of the hearings.

On September 15, 1983, in the barangay aforementioned, a certain Ernesto Romualdez was accosted by
appellant near the barangay hall for allegedly circulating the rumor that appellant and his companions
were engaged in stealing. Upon confrontation, appellant boxed Romualdez which caused the latter to fall.
Wilfredo Longo, who was then present at the scene, approached and helped the fallen Romualdez and
pushed appellant away. This apparently angered appellant who, in his native dialect said "Andam ka lang
Inday kay patyon ta guid," ("Watch out Inday for I will kill you") to which Longno retorted, "Just do it."
Two days later, or on September 17, 1983, at about 8:00 o'clock P.M., appellant and his cousin, Cornelio
Altejos, were drinking softdrinks at the shire of Gloria Aposaga when Longno passed by. Thereupon,
appellant and Altejos left their softdrinks half-assumed and followed Longno.

Longno eventually reached the bench near the public faucet where the group of Massulini Dullete, Samuel
Canoso and Nathaniel Ramos were sitting. He joined the group in their conversation by saying, "Upon ako
dira." ("I'll go with what you say."). Shortly thereafter, appellant and Altejos arrived and appellant
accosted and pointed a gun at Longno, saying, "Maano ka?" ("What are you going to do?"). Longno then
faced appellant and said, "Brod, tiruha lang." ("Brod, just shoot.")

Apparently irked by the response, appellant fired the gun, hitting Longno in the left forearm. Dullete,
Canoso and Ramos then scampered for safety as appellant and the wounded Longno grappled for the gun.
It was while the two were thus struggling that Altejos stabbed Longno in the chest, after which both
appellant and Altejos ran away.

Longno then came out of the footwalk shouting, "Tay tiniro ako ni Insik, binuno ako ni Toto." ("Father, I
was shot by Insik and stabbed by Toto."). He was able to run about thirty (30) meters before he fell. His
father, Julio Longno, ran to his son who was then lying sprawled on the ground. Rushed to the St. Paul's
Hospital, Wilfredo Longno died. Later, it was established that the cause of death was hemorrhage,
secondary to stab wound.

Appellant's version of the incident, however, differs. He admits having shot Longno but pleads self-
defense. He claims that on September 17, 1983, he left the house of his father-in-law at about 8:00
o'clock P.M. with his cousin, Altejos. The latter had asked for help to have a .22 caliber revolver repaired
and appellant was taking the revolver to a policeman friend of his. On their way, appellant saw Longno
from a distance. Upon his approach, Longno allegedly said, "Insik, I heard that you are not afraid of me.
Maybe you want to be taught a lesson." 4

Appellant claims that the deceased had a revolver tucked in his waist and was about to draw the same.
He, therefore, parried the gun but it fired hitting one of appellant's left fingers which was later amputated.
It was then that appellant pulled out his gun and shot Longno in the forearm. Appellant and Longno
afterwards grappled for the gun. Altejos allegedly tried to separate appellant and Longno but he was
brushed aside by the latter. In the course of their struggle, Altejos then shouted to appellant, "I stabbed
Inday, run," and so he and Altejos ran away. 5

Appellant, in his brief, makes the following assignment of errors:

1. The trial court erred in not acquitting the accused-appellant for having acted in complete
self-defense.

2. The trial court erred in convicting the accused-appellant of the crime of murder and in
imposing the penalty of reclusion perpetua when the prosecution has not established by
competent evidence the existence of conspiracy and the presence of the aggravating
circumstances of evident premeditation and abuse of superior strength. 6

Appellant's version does not inspire credence. Well-entrenched is the rule that where the accused invokes
self-defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in
defense of himself. He must rely on the strength of his own evidence and not on the weakness of the
prosecution. For, even if the prosecution evidence is weak, it could not be disbelieved after the accused
himself had admitted the killing. 7

It is a statutory and doctrinal requirement that for the justifying circumstance of self-defense, the
presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or
incomplete, unless the victim has committed an unlawful aggression against the person defending
himself.8

In the present case, the burden of evidence having been shifted, we hold that the defense failed to
establish the primary element of unlawful aggression on the part of the victim and, therefore, the plea of
self-defense must fail. The narrations of the sequence of events by the accused, and by the lone alleged
eyewitness for the defense, Jose Randera, are unconvincing primarily on account of their inherent
inconsistency and conflict with each other.

Appellant on cross-examination testified as follows:

Q How far were you from Inday Longno when he allegedly fired a shot at you?

A One (1) meter.

Q At one (1) meter distance did (sic) you not able to recognize what kind of a
gun was that allegedly used by Inday Longno?

A No, sir, at first I only saw the handle of the gun and I did not see the body
of the gun.

Q But you can recognize between a pistol and a revolver?

A Yes, sir.

Q What was that allegedly used by Inday Longno, was that a pistol or a
revolver?

A Because immediately after he said those words 'Maybe you want to learn a
lesson he immediately drew his gun and I was able to parry.

xxx xxx xxx

Q When you fired at Inday Longno hitting him on his left arm near the elbow,
was he still holding that gun he used in shooting you hitting you at the left
palm?

A No, sir, because of too much force the gun fell.

Q Did you not pick up the gun?

A No, sir.9

On the other hand, defense eyewitness Jose Randera stated in his testimony:

ATTY. SORONGON: (To the witness)

Q While Wilfredo Longno alias Inday was pointing a gun at Gerardo Sazon
alias Insik, what was Gerardo Sazon doing?

WITNESS JOSE RANDERA:

 A When Inday said something, Insik Sazon brushed aside the gun and the
gun fired.

xxx xxx xxx

Q You said, that Wilfredo Longno alias Inday pointed a gun at Gerardo Sazon
alias Insik, with what hand was he holding that gun when he was pointing
that gun to Gerardo Sazon?

WITNESS JOSE RANDERA:

A His right hand.

ATTY. SORONGON (To the witness)

Q You said that Gerardo Sazon brushed aside the gun which was being
pointed to him, what hand did Gerardo Sazon used (sic) in brushing that gun?

A His left hand.

Q When Gerardo Sazon brushed aside the gun pointed to him, what else if
any did he do?

A Insik also drew a gun and shot Inday,

COURT: (To the witness)

Q What hand?

A Right hand. He drew a gun with his right hand and shot Inday.

xxx xxx xxx

ATTY. SORONGON (To the witness)

Q You said that there was a brushing, who was brushing aside and who was
brushed aside?

WITNESS JOSE RANDERA:

Q Inday parried Cornelio Artejos (sic).

COURT: (To the witness)

Q And, what happened next?

Cornelio Artejos (sic) pulled out a knife and stabbed Inday.

Q This happened when Inday was already hit by Sazon?

A Yes, sir.
 ATTY. SORONGON (To the witness)

Q When Cornelio Artejos (sic) stabbed Wilfredo Longno alias Inday, what was
Gerardo Sazon and Wilfredo Longno doing if they were doing anything.?

A They were graffling of (sic) the weapon.

Q You are referring to whose weapon they were graffling (sic) at that time?

A Inday's weapon.10

The testimonies aforequoted reveal an inconsistency on the matter of the gun for which appellant and the
victim supposedly grappled. While appellant claimed that the victim's weapon fell to the ground, witness
Randera stated that appellant and the victim still grappled for the latter's gun. The latter statement is
itself difficult to imagine since appellant at that precise moment was also allegedly holding with his right
hand the gun which he used in shooting Longno.

It is necessary to stress that such inconsistency cannot be considered a minor detail since the
homogeneity of the answers to the inquiry could very well have established the existence of not only a
single gun. Had this prevarication not been exposed, said testimonies could have bolstered the defense
theory that the victim himself carried a gun which he used to assault the appellant and thus establish the
element of unlawful aggression contrived by the defense.

Furthermore, the credibility of witness Randera is shattered by this finding of the trial court which is
sustained by the evidence:

The testimony of security guard Jose Randera deserves scant consideration not only
because he admitted that he was one of those threatened by the deceased Wilfredo Longno
but also because he wilfully falsified the truth when he testified that the deceased was shot
and hit by the accused on the body and that he saw blood come out just below the right
breast of the deceased. The physical evidence in this case showed that there was no wound
on the right breast of the deceased nor on any part of his body. The gunshot wound
sustained by the deceased was only on his left forearm. Considering that he testified that
there were no other persons there during the incident except the accused, the deceased and
Cornelio Altejos when the overwhelming weight of evidence is that there were a lot of other
people during the incident (this) showed that this witness had small regard for the truth. 11

Coming back to appellant's representations in court, his vacillation as to what he allegedly did after Altejos
stabbed the victim is another instance which renders his version highly suspect. While stating on direct
examination that he ran to the main road, 12 he claimed on cross-examination that he only walked a
short distance and then went to the hospital upon seeing that his hand was wounded. 13 The latter
statement is itself inconsistent with his earlier declaration during the same proceeding that he was
brought by a policeman to the hospital. 14 This irresolution on the part of the appellant was obviously to
avoid any imputation of guilt against him arising from his flight. 15

At any rate, unlawful aggression on the part of the victim is further negated by the physical evidence in
the case. Again, we quote the trial court with approval:

The testimony of the accused Gerardo Sazon that the deceased was armed with a gun and
fired at him is not borne out by the physical evidence in this case. The paraffin test
conducted on the cadaver of the deceased showed that the hands of the deceased were
negative for gunpowder residues indicating that he did not fire a gun during the incident.
The other parts of his body like his forearm and his abdomen bore strong traces of
gunpowder residues because of the burst of the gun of the accused. The court is convinced
 beyond reasonable doubt that there was only one gun during the incident and that the gun
belonged to and/or was used by the accused Gerardo Sazon. That a part of one of his
fingers was blown off at very close range, according to Dr. Ely Canja strongly indicated that
the accused accidentally hit his finger when he and the deceased grappled for the
possession of the gun. 16

In contrast, appellant was found positive for the presence of gunpowder residues (nitrates). While the
presence or absence of nitrates cannot indeed be considered conclusive proof that one has or has not fired
a gun, the following testimony on direct examination by prosecution witness Zenaida Sinfuego a forensic
chemist whose expertise on the matter was sufficiently established, yields this verification:

Atty. E. Original:

Q Now, have you conducted also a paraffin examination on the person of

Wilfredo Longno?

COURT:

Q On the cadaver?

Atty. E. Original:

Q On the cadaver?

A Yes, Sir.

Q Have you brought with you the result of that examination?

A Yes, Sir.

Q Now I have here a carbon original of Chemistry Report No. C-200-83, result
of the paraffin test on the cadaver of Wilfredo Longno, please compare this
carbon original to the original copy in your possession whether it is the same?

A The same.

xxx xxx xxx

Q This report says specimen submitted, one pair of paraffin casts taken from
the left and right hands of the cadaver of one Wilfredo Longno, one piece of
paraffin cast taken from left forearm of same subject and one piece paraffin
last taken from the left side of the abdomen. Purpose of laboratory
examination: to determine the presence of gunpowder residues (nitrates) on
the above-mentioned specimens. Findings, cast from hands-negative for the
presence of gunpowder residues (nitrates). Cast from forearm-positive for the
presence of gunpowder residues (nitrates) in the 1 1/2 in, 2 1/2 in, 3 in, and
4 in radius. Cast from the left side of the abdomen-positive for the presence
of gunpowder residues (nitrates) in the center and in the 1 and 2 in radius. In
the layman's language Mrs. Sinfuego, will you please explain to the Honorable
Court these findings 1, 2 and 3?

A Casts from the hands, negative for the presence of gunpowder residues that
means that, no blue specks were found in the hands of the cadaver.
 COURT:

Q Before we go on, what is the implication when the finding is negative?

A Probably, the subject never fired a gun.

Q Within what time-span?

A The gunpowder will stay only within three days.

Q When was this examination conducted?

A Last September 18,1983.

Q Now before we go on, on that Chemistry Report which has been marked as
Exhibit 'D' regarding the paraffin test conducted on the right hand of the
accused Gerardo Sazon, your finding there states, positive for gunpowder
residues, what is the implication?

A The implication states positive, that Sazon have (sic) fired a gun.

Q Within what time-span?

A Within three days.

Q Within three days?

A Within three days.

Q From the examination?

A Three days from the subject firing of a gun.

Q And when was the examination conducted?

A Last September 19,1983, Your Honor.

Q September?

A Nineteen.

Q So he could have fired a gun on September 17,1983?

A I think that depends, Your Honor on the requesting party.

Q I am asking you if it was possible that he fired a gun which left the powder
burns, was it possible that he fired a gun on September 17?

A Yes, Your Honor. 17

On cross-examination, Sinfuego further testified as follows:

 Q Is it possible for a person who has not fired a firearm and could be (sic)
positive for nitrates?

A Yes, Sir.

Q In what instance?

A For example, if he is near to the person firing a gun it is possible that it was
carried by the wind.

Q So that is the only case wherein you find nitrates on the person who has
not fired a gun?

A Also from the fertilizer.

Q You mean, a person handling fertilizers could also be positive for nitrates?

A Yes, Sir but we have to consider also the time of reaction, from
contaminance (sic) for the nitrates will take effect between two to three
minutes.

COURT:

Q Can you determine on your examination whether the nitrates found was
(sic) the nitrates left by gunpowder residues or by fertilizer can you
distinguish that?

A Yes, Sir.

Q And this (sic) nitrates found on the hands of the accused, could you
determine where did it (sic) come from?

A Gunpowder residues. 18

Parenthetically, it is true that the bad moral character of the offended party may be proven in evidence to
establish in any reasonable degree the probability of the offense charged, 19 e.g., the quarrelsome nature
of the victim may tend to establish that he started the unlawful aggression. Nonetheless, such evidence,
seeking to establish as it does only a probability, cannot prevail over facts sufficiently proven by the
prosecution during the trial belying such aggression. These observations find application in the instant
case where the defense presented and now argue on character evidence consisting of criminal charges
involving minor offenses which had been filed against the deceased, but not one of which resulted in
conviction and were in fact dismissed except for one case which was sent to the archives. 20

Obviously, whether or not appellant acted in self-defense is essentially a question of fact. Being so and in
the absence of any showing that the Court a quo failed to appreciate facts or circumstances of weight and
substance that would have altered its conclusion, the court below, having seen and heard the witnesses
during the trial, is in a better position to evaluate their testimonies. No compelling reason, therefore, lies
for this Court to disturb the trial court's finding that appellant did not act in self-defense. 21

The Court, however, holds that appellant, albeit guilty, can only be convicted of homicide and not murder.
The trial court correctly held that the killing was not accompanied by treachery. It, however, ruled that
there was evident premeditation on the part of appellant. We find the records sorely wanting in evidence
to support the latter conclusion.
The fact that appellant told the deceased that he would kill him and that two days later, after the
deceased passed by the store where appellant and Altejos were drinking softdrinks the latter followed the
former and inflicted the fatal blows, cannot adequately sustain a conclusion of premeditated killing.

To justify its attendance, the prosecution must prove (1) the time when the offender determined to
commit the crime, (2) an act manifestly indicating that the culprit has clung to his determination, and (3)
a sufficient lapse of time between the determination and the execution to allow him to reflect upon the
consequences of his act. 22

In the case at bar, the first and second elements are lacking. The angry outburst of appellant in that
incident of September 15, 1983, warning the victim that the former would kill him, does not convince us
that, under the circumstances therein, appellant as of that time had already decided to kill the victim. A
homicidal premeditation is studiedly conceived and not impulsively adopted just like that and, worse,
publicly announced. It was more of a spontaneous expression of resentment or bravado on the part of
appellant.

Again, the circumstance that appellant and Altejos were by chance at the store when the victim passed by
cannot be taken as manifestly indicating that appellant had clung to his determination to kill the victim. No
evidence was presented to show that appellant purposely waited there for the deceased. Nor was there
any showing that the deceased frequently passed by the same route as to warrant and explain appellant's
waiting for the former at that place. Indeed, that the meeting may have been purely accidental is not a
remote possibility. We are more inclined to believe that it was the belligerent and defiant demeanor of the
victim when confronted by appellant near the public faucet that precipitated assault.

Under such considerations and there being no other evidence to prove that the death of the victim was the
result of meditation, calculation or reflection, evident premeditation cannot be appreciated to qualify the
killing to murder. 23 The circumstances qualifying or aggravating the act must be proved in an evident
and incontestable manner. They must be proved as conclusively as the acts constituting the offense.24
Thus, for the same reason, the aggravating circumstance of abuse of superior strength cannot be
appreciated in this case. Superior strength may aggravate or qualify a crime, only if it is clearly shown
that there was deliberate intent to take advantage of it.25 In the absence of any evidence to show that
the accused purposely sought to use their superior strength to their advantage in the present case, a
finding to that effect by the trial court cannot be sustained.

Finally, the fact that appellant did not inflict the mortal wound upon the deceased is of no moment, since
the existence of conspiracy was satisfactorily shown by the evidence. The coordinated acts of appellant
and Altejos of immediately following the victim and jointly confronting him thereafter reveal a concordance
and unity of thought which resulted in the encounter. The circumstances that after the accused shot the
victim in the forearm and, while he and the victim were grappling for appellant's gun, Altejos stabbed the
victim to death, indicate closeness and coordination of their action geared towards a common purpose,
that is, to kill the victim. 26 Proof of a previous agreement to commit the crime is not absolutely essential
to establish a conspiracy. It is sufficient that the accused be shown to have acted in concert pursuant to
the same objective, 27 as such circumstance is invariably indicative of a conspiratorial agreement.

It bears mention, at this point, that while we have ruled out evident premeditation in the case, this does
not negate the existence of a conspiracy. True, conspiracy generally involves evident premeditation, but
this circumstance requires for its raison d' etre a sufficient time in a juridical sense for the accused to
meditate and reflect on the consequences of his intended action. Such time element is not an
indispensable requirement for a conspiracy to exist. 28 Consequently, we find that there was a conspiracy
between appellant and Altejos although, for lack of conclusive showing, we cannot consider evident
premeditation against appellant.

The rule is that where a conspiracy is proven, a showing as to who inflicted the fatal wound is not required
to sustain a conviction. 29 The act of one in killing the victim becomes the act of all the accused. Insofar
as Cornelio Altejos is concerned, however, the trial court never acquired jurisdiction over him and he can
neither be convicted nor exculpated herein. References in this judgment to him are, therefore, obiter and
with no binding effect on him. 30

WHEREFORE, the judgment of the trial court is MODIFIED. Accused-appellant Gerardo Sazon is declared
GUILTY beyond reasonable doubt of the crime of homicide and is hereby sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision mayor to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal.

The award by the lower court of the items of civil liability to be paid by accused-appellant to the heirs of
the deceased is hereby MODIFIED by disallowing the grant of attorney's fees for lack of basis, and
increasing the death indemnity to P50,000.00 in accordance with the policy adopted by the Court en banc
on August 30,1990.

SO ORDERED.

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

HEIRS OF RAYMUNDO CASTRO, petitioners,

vs.
APOLONIO BUSTOS, respondent.

Sotto, Consengco and Dizon for petitioners.

Sipin, Abarcar and Baluyot for respondent.

BARREDO, J.:

Appeal from the Court of Appeals.

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

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

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

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

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

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

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

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

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

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

In crimes, the damages to be adjudicated may be respectively increased or lessened according to

the aggravating or mitigating circumstances.

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

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

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

The general rule in the Civil Code is that:

In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and
probable consequences of the act or omission complained of. It is not necessary that such damages
have been foreseen or could have reasonably been foreseen by the defendant. (Art. 2202)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Interests in the proper cases.

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

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

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

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

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

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

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

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

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

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

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

WHEREFORE, the amended decision of the Court of Appeals is modified as hereinabove indicated, in so far
as the civil liability of respondent is concerned, with costs against him in this instance.
G.R. No. L-25499 February 18, 1970

VILLA REY TRANSIT, INC., petitioner,

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

Laurea and Pison for petitioner.

Bonifacio M. Abad, Jr. for respondents.

CONCEPCION, C.J.:

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

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

The private respondents, Trinidad, Prima and Julita, all surnamed Quintos, are the sisters and only
surviving heirs of Policronio Quintos Jr., who died single, leaving no descendants nor ascendants. Said
respondents herein brought this action against herein petitioner, Villa Rey Transit, Inc., as owner and
operator of said passenger bus, bearing Plate No. TPU-14871-Bulacan, for breach of the contract of
carriage between said petitioner and the deceased Policronio Quintos, Jr., to recover the aggregate sum of
P63,750.00 as damages, including attorney's fees. Said petitioner defendant in the court of first
instance contended that the mishap was due to a fortuitous event, but this pretense was rejected by
the trial court and the Court of Appeals, both of which found that the accident and the death of Policronio
had been due to the negligence of the bus driver, for whom petitioner was liable under its contract of
carriage with the deceased. In the language of His Honor, the trial Judge:
 The mishap was not the result of any unforeseeable fortuitous event or emergency but was
the direct result of the negligence of the driver of the defendant. The defendant must,
therefore, respond for damages resulting from its breach of contract for carriage. As the
complaint alleged a total damage of only P63,750.00 although as elsewhere shown in this
decision the damages for wake and burial expenses, loss of income, death of the victim, and
attorneys fee reach the aggregate of P79,615.95, this Court finds it just that said damages
be assessed at total of only P63,750.00 as prayed for in plaintiffs' amended complaint.

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

WHEREFORE, judgment is hereby rendered ordering the defendant to pay to the plaintiffs
the amount of P63,750.00 as damages for breach of contract of carriage resulting from the
death of Policronio Quintos, Jr.

which, as above indicated, was affirmed by the Court of Appeals. Hence, the present petition for review on
certiorari, filed by Villa Rey Transit, Inc.

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

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

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

The determination of the indemnity to be awarded to the heirs of a deceased person has
therefore no fixed basis. Much is left to the discretion of the court considering the moral and
material damages involved, and so it has been said that "(t)here can be no exact or uniform
rule for measuring the value of a human life and the measure of damages cannot be arrived
at by precise mathematical calculation, but the amount recoverable depends on the
particular facts and circumstances of each case. The life expectancy of the deceased or of
the beneficiary, whichever is shorter, is an important factor.' (25 C.J.S. 1241.) Other factors
that are usually considered are: (1) pecuniary loss to plaintiff or beneficiary (25 C.J.S.
1243-1250) ; (2) loss of support (25 C.J.S., 1250-1251); (3) loss of service (25 C.J.S.
1251-1254); (4) loss of society (25 C.J.S. 1254-1255); (5) mental suffering of beneficiaries
(25 C.J.S., 1258-1259) ; and (6) medical and funeral expenses (26 C.J.S., 1254-1260)."2
Thus, life expectancy is, not only relevant, but, also, an important element in fixing the amount
recoverable by private respondents herein. Although it is not the sole element determinative of said
amount, no cogent reason has been given to warrant its disregard and the adoption, in the case at bar, of
a purely arbitrary standard, such as a four-year rule. In short, the Court of Appeals has not erred in
basing the computation of petitioner's liability upon the life expectancy of Policronio Quintos, Jr.

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

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

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

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

G.R. No. 141011 July 19, 2001

CITYTRUST BANKING CORPORATION (now Bank of the Philippine Islands), petitioner,
vs.
ISAGANI C. VILLANUEVA, respondent.

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

G.R. No. 141028 July 19, 2001

ISAGANI C. VILLANUEVA, petitioner,

vs.
CITYTRUST BANKING CORPORATION, respondent.

DAVIDE, JR., C.J.:

In these consolidated cases, the Court is called upon to determine whether the repeated dishonor of a
check drawn against a well-funded account but bearing the account number of another depositor with the
same name and surname as the drawer would entitle the drawer to compensatory and moral damages
and to attorneys fees.

The antecedent facts are as follows:

Sometime in February 1984, Isagani C. Villanueva (hereafter VILLANUEVA) opened a savings account and
a current account with Citytrust Banking Corporation (hereafter the BANK), which were assigned account
numbers 1-033-02337-1 and 33-00977-5, respectively, with an automatic transfer arrangement.

On 21 May 1986, VILLANUEVA deposited some money in his savings account with the BANKs Legaspi
Village Branch in Makati, Metro Manila. Realizing that he had run out of blank checks, VILLANUEVA
requested a new checkbook from one of the BANKs customer service representatives. He then filled up a
checkbook requisition slip with the obligatory particulars, except for his current account number which he
could not remember. He expressed his predicament to a lady customer service representative of the
BANK, who in turn assured him that she could supply the information from the BANKs account records.
After signing the requisition slip, he gave it to her.1

Pia Rempillo, another customer service representative of the BANK, saw VILLANUEVAs checkbook
requisition slip. She took it and proceeded to check the BANKs checkbook register which contained all the
names and account numbers of the BANKs clients who were issued checkbooks. Upon seeing the name
"Isagani Villanueva -- Account No. 33-00446-3" in the checkbook register, Rempillo copied the aforesaid
account number on the space intended for it in VILLANUEVAs requisition slip. 2

On 17 June 1986, VILLANUEVA received from the BANK his requested checkbook. On the same day, he
immediately signed Check No. 396701 bearing the amount of P50,000 payable to the order of Kingly
Commodities Traders and Multi Resources, Inc. (hereafter Kingly Commodities). VILLANUEVA thereafter
delivered the check to Helen Chu, his investment consultant at Kingly Commodities, with his express
instruction to use said check in placing a trading order at Kingly Commodities future trading business as
soon as a favorable opportunity presented itself.3

Two days later, or on 19 June 1986, VILLANUEVA received a call from Helen Chu, informing him that she
had already placed a trading order in his behalf and delivered the check to Kingly Commodities. The check
was deposited with the China Banking Corporation. The next day, he deposited P31,600 in cash to his
savings account to cover the full amount of the check he issued. His deposits in both accounts totalled
P51,304.91.4
However, on 23 June 1986, VILLANUEVAs Check No. 396701 was dishonored due to insufficiency of funds
and disparity in the signature. VILLANUEVA called Kingly Commodities and explained that there was a
mistake in the dishonor of the check because he had sufficient funds. Forthwith on the same day,
VILLANUEVA called up the BANKs Legaspi Village Branch Operations Manager, Maritess Gamboa, and
inquired about the dishonor of his well-funded check. Gamboa promised to look into the matter and
instructed VILLANUEVA to advise his payee, Kingly Commodities, to re-deposit the check. Gamboa
assured VILLANUEVA that the check would be honored after the sufficiency of the funds was ascertained.5

On 26 June 1986 at about 4:00 p.m., VILLANUEVA learned that his check was again dishonored due to
insufficiency of funds and a stop- payment order he allegedly issued. Dismayed by the turn of events,
VILLANUEVA called up the BANK and inquired from Gamboa the reason for the dishonor of his well-funded
check and the alleged stop-payment order which he never issued. Gamboa promised to investigate the
matter and to call VILLANUEVA in fifteen (15) minutes.6 In the meantime, she advised VILLANUEVA to re-
deposit the check.

VILLANUEVA then requested Lawrence Chin of Kingly Commodities to give him until 5:30 p.m. that same
day to make good his P50,000 check. He then proceeded to the BANKs Legaspi Village Branch Office,
together with his investment consultant and his trading partner, to personally inquire into the matter.
They were met by Marilou Genuino, the BANKs Branch Manager. There he complained that his trading
order was rejected because of the dishonor of the check and that Kingly Commodities threatened to close
his trading account unless his check payment would be made good before 5:30 p.m. that day. After
making the necessary investigation, Genuino related to VILLANUEVA that the reason for the dishonor of
the check was that the account number assigned to his new checkbook was the account number of
another depositor also named "Isagani Villanueva" but with a different middle initial. 7

To resolve the matter, Genuino promised to send to Kingly Commodities a managers check for P50,000
before 5:30 p.m., the deadline given to VILLANUEVA. She also personally called Kingly Commodities and
explained the reason for the dishonor of the check.8

On 30 June 1986, VILLANUEVA sent a letter9 to the BANK addressed to the President, Jose Facundo,
demanding indemnification for alleged losses and damages suffered by him as a result of the dishonor of
his well-funded check. He demanded the amount of P70,000 as indemnification for actual damages in the
form of lost profits and P2 Million for moral and other damages.

On 10 July 1986, in answer to VILLANUEVAs letter, Gregorio Anonas III, the BANKs Senior Vice-
President, apologized for the unfortunate oversight, but reminded VILLANUEVA that the dishonor of his
check was due to his failure to state his current account number in his requisition slip. Anonas further
stated that as soon as the mistake was discovered, the BANK promptly sent a managers check to Kingly
Commodities before 5:30 p.m. on 26 June 1986 to avoid any damage the dishonor of the check might
have caused.10

Failing to obtain from the BANK a favorable action on his demand for indemnification, VILLANUEVA filed on
27 August 1986 a complaint for damages based on breach of contract and/or quasi-delict before the
Regional Trial Court of Makati City. The case was docketed as Civil Case No. 14749 and was raffled to
Branch 63 thereof.

VILLANUEVA alleged in his complaint that the BANK breached its contractual obligation to him as a
depositor because of its repeated dishonor of his valid and well-funded check. The breach arose from the
BANKs gross negligence and culpable recklessness in supplying the wrong account number. As a
consequence, he suffered and sustained (1) actual damages consisting of loss of profits in the amount of
at least P240,000, for he was not allowed to trade by Kingly Commodities; and (2) P2 Million as moral
damages because of the intolerable physical inconvenience, discomfort, extreme humiliation, indignities,
etc., that he had borne before his peers and colleagues in the firm, his trading partners, and the officers of
Kingly Commodities. He prayed for an additional award of P500,000 for exemplary damages, attorneys
fees, litigation expenses and costs of the suit.11

In its answer, the BANK alleged that VILLANUEVA suffered no actionable injury, much less damages,
considering his blatant irresponsibility in not remembering his current account number and in failing to
bring his checkbook re-order slip form on which his account number was inscribed when he requested a
new set of checks. His negligence in verifying the account number of the new set of checks issued to him
also contributed to the dishonor of his check. The BANK claimed that it acted in good faith when it twice
dishonored the check. It further asserted that VILLANUEVAs negligence was the proximate cause of his
self-proclaimed injury; and the alleged losses and damages could not likewise be deemed the natural and
probable consequences of the BANKs breach of obligation, had there been any. Finally, it claimed that
VILLANUEVA acted with malice in filing the case, and interposed counterclaims of P500,000 as exemplary
damages; P250,000 as attorneys fees; and actual damages as may be determined by the court. 12

After due proceedings, the trial court rendered on 3 July 1992 a decision 13 dismissing the complaint and
the compulsory counterclaim for lack of merit. To the trial court, the basic issue was whether it was
VILLANUEVAs or the BANKs negligence which was the proximate cause of the formers alleged injury.
After an evaluation of the respective allegations and evidence of the parties, the trial court found that
VILLANUEVAs negligence set the chain of events which resulted in his alleged losses and damages. His
negligence consisted in his failure to (a) indicate his current account number when he filled up his
requisition slip for a new set of checks; (b) remember his account number; (c) bring the used checkbook
to which was attached the pre-order requisition slip on which the account number was pre-indicated; (d)
give the requisition slip to the care and custody of a BANK officer or employee instead of leaving the
requisition slip on top of one of the tables of the BANK; and (e) verify the account number of the new set
of checks when it was delivered to him. These omissions directly resulted in the dishonor of his check
drawn from an account bearing the account number of another BANK client whose name and surname
were similar to his. VILLANUEVA then must bear the consequent damages and losses he allegedly
suffered.

The trial court conceded, however, that the BANK was negligent when it failed to supply VILLANUEVAs
correct account number despite its promise to do so; but its negligence was merely contributory, which
would have "reduced the damages recoverable" by VILLANUEVA had the latter proved his claims for
actual, moral and exemplary damages, and attorneys fees.

Likewise, the trial court doubted that VILLANUEVA sustained actual damages in the amount of P240,000
due to loss of profits as averred in the complaint considering that his initial claim against the BANK for
actual loss was merely P70, 00014 and the evidence presented in support thereof was hearsay, unreliable
and not the best evidence.

VILLANUEVA appealed to the Court of Appeals. The appeal was docketed as CA-G.R. CV No. 40931.

In his appeal, VILLANUEVA maintained that the BANK was guilty of gross or culpable negligence
amounting to bad faith when its customer service representative furnished an erroneous account number.
He further contended that the same was the proximate cause of the repeated dishonor of his check. He
should, therefore, be entitled to an award of actual, moral and exemplary damages, including attorneys
fees and costs of the suit.

The Court of Appeals, in its decision of 2 February 1999, 15 ruled that when the BANK voluntarily processed
the requisition slip without the requisite account number being supplied by the applicant, it in effect took
upon itself the obligation to supply the correct account number. Thus, when the new checkbook was
released to VILLANUEVA on 17 June 1986, the BANK was deemed to have waived any defect in the
requisition slip and estopped from putting the blame on VILLANUEVAs failure to indicate his account
number. VILLANUEVA had every right to assume that everything was in order in his application for a new
checkbook; for, after all, he was banking with a world class universal bank. The banking industry is
imbued with public interest and is mandated by law to serve its clients with extraordinary care and
diligence.

The Court of Appeals also considered the BANKs voluntary processing of the requisition slip as the "cause
which in the natural and continuous sequence, unbroken by any efficient intervening cause, produced the
injury and without which the result would not have occurred."16 However, although it conceded that the
BANKs negligence was not attended with malice and bad faith, it nonetheless awarded moral damages in
the amount of P100,000. It also awarded attorneys fees in the amount of P50,000, since VILLANUEVA
was compelled to incur expenses to protect his interests by reason of the unjustified act or omission of the
BANK. However, it rejected VILLANUEVAs claim for compensatory damages and affirmed the trial courts
finding thereon.

Upon the denial17 of their respective motions for reconsideration, both VILLANUEVA and the BANK
appealed to us by way of petition for review.

In its petition, the BANK ascribes to the Court of Appeals as reversible errors its (1) reversal of the court a
quos decision; (2) declaration that the proximate and efficient cause of the injury allegedly suffered by
VILLANUEVA was the BANKs processing of the checkbook and assigning an erroneous account number,
and not the negligent act of VILLANUEVA in leaving the checkbook requisition slip on top of one of the
desks with the account number entry blank; and (3) award of moral damages and attorneys fees despite
the absence of a finding of bad faith on the part of the BANK.

In his petition, VILLANUEVA asserts that the Court of Appeals erred in holding that his actual losses in the
amount of P234,059.04 was not sufficiently proved with reasonable certainty. Had his fully-funded check
not been dishonored twice, his four trading orders with Kingly Commodities consisting of two (2) open sell
positions on 17 and 18 of June 1986 and two (2) settle buy orders on 26 June 1986 would have earned
him profits in the amount he claimed. He emphatically maintains that the loss had been satisfactorily
proved by the testimony of Helen Chu, his investment consultant. Ms. Chus testimony was not
controverted; hence, it should have been considered and admitted as factually true. Considering that his
claim for actual damages has been adequately established and that the BANK committed gross negligence
amounting to bad faith, his concomitant demand for exemplary damages should likewise be awarded.

The issue of whether VILLANUEVA suffered actual or compensatory damages in the form of loss of profits
is factual. Both the Court of Appeals and the trial court have ascertained that VILLANUEVA was unable to
prove his demand for compensatory damages arising from loss. His evidence thereon was found
inadequate, uncorroborated, speculative, hearsay and not the best evidence. Basic is the jurisprudential
principle that in determining actual damages, the court cannot rely on mere assertions, speculations,
conjectures or guesswork but must depend on competent proof and on the best obtainable evidence of the
actual amount of the loss.18 Actual damages cannot be presumed but must be duly proved with reasonable
certainty.19

It must also be stressed that the unanimity on the factual ascertainment on this point by the trial court
and the Court of Appeals bars us from supplanting their finding and substituting it with our own
assessment. Well-entrenched in our jurisprudence is the doctrine that the factual determinations of the
lower courts are conclusive and binding upon appellate courts and hence should not be disturbed. None of
the recognized exceptions to said principle exists in this case to warrant a reexamination of such finding.
Besides, our jurisdiction in cases brought before us from the Court of Appeals is limited to the review of
errors of law.20

Nonetheless, is VILLANUEVA entitled to the moral damages and attorneys fees granted by the Court of
Appeals?

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury. 21 Although incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of the defendants
wrongful act or omission.22 Thus, case law establishes the requisites for the award of moral damages, viz:
(1) there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant;
(2) there must be a culpable act or omission factually established; (3) the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; and (4) the award of damages is
predicated on any of the cases stated in Article 2219 of the Civil Code.23

It is beyond cavil that VILLANUEVA had sufficient funds for the check. Had his account number been
correct, the check would not have been dishonored. Hence, we can say that VILLANUEVAs injury arose
from the dishonor of his well-funded check. We have already ruled that the dishonor of the check does not
entitle him to compensatory damages. But, could the dishonor result in his alleged "intolerable physical
inconvenience and discomfort, extreme humiliation, indignities, etc, which he had borne before his peers,
trading partners and officers of Kingly Commodities?" True, we find that under the circumstances of this
case, VILLANUEVA might have suffered some form of inconvenience and discomfort as a result of the
dishonor of his check. However, the same could not have been so grave or intolerable as he attempts to
portray or impress upon us.

Further, it is clear from the records that the BANK was able to remedy the caveat of Kingly Commodities
to VILLANUEVA that his trading account would be closed at 5:30 p.m. on 26 June 1986. The BANK was
able to issue a managers check in favor of Kingly Commodities before the deadline. It was able to likewise
explain to Kingly Commodities the circumstances surrounding the unfortunate situation. Verily, the alleged
embarrassment or inconvenience caused to VILLANUEVA as a result of the incident was timely and
adequately contained, corrected, mitigated, if not entirely eradicated. VILLANUEVA, thus, failed to support
his claim for moral damages. In short, none of the circumstances mentioned in Article 2219 of the Civil
Code exists to sanction the award for moral damages.

The award of attorneys fees should likewise be deleted. The general rule is that attorneys fees cannot be
recovered as part of damages because of the policy that no premium should be placed on the right to
litigate. They are not to be awarded every time a party wins a suit. The power of the court to award
attorneys fees under Article 2208 of the Civil Code demands factual, legal and equitable justification. Even
when a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still
attorneys fees may not be awarded where there is no sufficient showing of bad faith in the parties
persistence of a case other than an erroneous conviction of the righteousness of his cause. 24

In view of the foregoing discussion, we need not deliberate on the dispute as to whether it was the BANKs
or VILLANUEVAs negligence which was the proximate cause of the latters injury because, in the first
place, he did not sustain any compensable injury. If any damage had been suffered at all, it could be
equivalent to damnum absque injuria, i.e., damage without injury or damage or injury inflicted without
injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law
provides no remedy.25

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No. 40931 is hereby REVERSED, and the
judgment of the Regional Trial Court of Makati City, Branch 63, in Civil Case No. 14749 dismissing the
complaint and the counterclaim is hereby REINSTATED.

No costs.

SO ORDERED.

ANTONIO GELUZ vs. COURT OF APPEALS G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ vs. COURT OF APPEALS

G.R. No. L-16439, July 20, 1961
2 SCRA 801
FACTS:
Her present husband impregnated Nita Villanueva before they were legally married. Desiring to conceal
her pregnancy from the parent, she had herself aborted by petitioner Antonio Geluz. After her marriage,
she again became pregnant. As she was then employed in the COMELEC and her pregnancy proved to be
inconvenient, she had herself aborted again by Geluz. Less than 2 years later, Nita incurred a third
abortion of a two-month old fetus, in consideration of the sum of P50.00. Her husband did not know of,
nor consented to the abortion. Hence Oscar Lazo, private respondent, sued petitioner for damages based
on the third and last abortion.
The trial court rendered judgment ordering Antonio Geluz to pay P3,000.00 as damages, P700.00 as
attorneys fee and the cost of the suit. Court of Appeals affirmed the decision.

ISSUE:
Is an unborn child covered with personality so that if the unborn child incurs injury, his parents may
recover damages from the ones who caused the damage to the unborn child?

RULING:
Personality begins at conception. This personality is called presumptive personality. It is, of course,
essential that birth should occur later, otherwise the fetus will be considered as never having possessed
legal personality.
Since an action for pecuniary damages on account of injury or death pertains primarily to the one injured,
it is easy to see that if no action for damages could be instituted on behalf of the unborn child on account
of injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even
if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal
death, since no transmission to anyone can take place from one that lacked juridical personality.
It is no answer to invoke the presumptive personality of a conceived child under Article 40 of the Civil
Code because that same article expressly limits such provisional personality by imposing the condition
that the child should be subsequently born alive. In the present case, the child was dead when separated
from its mothers womb.
This is not to say that the parents are not entitled to damages. However, such damages must be those
inflicted directly upon them, as distinguished from injury or violation of the rights of the deceased child.

Francisco Hermosisima vs Court of Appeals

103 Phil 629 Civil Law Torts and Damages Breach of Promise to Marry Moral Damages

In 1950, Soledad Cagigas, 33 years old (then a school teacher, later she became an insurance
underwriter), and Francisco Hermosisima, 23 years old (apprentice ship pilot), fell in love with each other.
Since 1953, both had a refular intimate and sexual affair with each other. In 1954, Soledad got pregnant.
Francisco then promised to marry Soledad. In June 1954, Soledad gave birth to a baby girl. The next
month, Francisco got married but with a different woman named Romanita Perez.

Subsequently, Soledad filed an action against Francisco for the latter to recognize his daughter with
Soledad and for damages due to Franciscos breach of his promise to marry Soledad. The trial court ruled
in favor of Soledad. The Court of Appeals affirmed the decision of the trial court and even increased the
award of damages. The Court of Appeals reasoned that Francisco is liable for damages because he
seduced Soledad. He exploited the love of Soledad for him in order to satisfy his sexual desires that
being, the award of moral damages is proper.

ISSUE: Whether or not moral damages are recoverable under our laws for breach of promise to marry.
HELD: No. Breach of promise to marry is not an actionable wrong per se. The Court of Appeals based its
award of damages on Article 2219 of the Civil Code which says in part that Moral damages may be
recovered from (3) Seduction, xxx However, it must be noted that the Seduction being
contemplated in the said Civil Code provision is the same Seduction being contemplated in Article 337
and 338 of the Revised Penal Code. Such seduction is not present in this case.

Further, it cannot be said that Francisco morally seduced (in lieu of criminal seduction) Soledad given the
circumstances of this case. Soledad was 10 years older than Francisco. Soledad had a better job
experience and a better job overall than Francisco who was a mere apprentice. Further still, it was
admitted by Soledad herself that she surrendered herself to Francisco and that she wanted to bind by
having a fruit of their engagement even before they had the benefit of clergy.

Cachero v. Manila Yellow Taxi Club

Facts:

On December 13, 1952, Atty. Tranquilino Cachero boarded a Yellow Taxi driven by Gregorio Mira Abinion.
The taxicab bumped a Meralco post. The plaintiff fell out of the vehicle to the ground and sustained slight
physical injuries. On January 6, 1953, plaintiff wrote a letter to the defendant, demanding payment for the
sum of P79, 245.65 covering actual transportation and medical expenses, monetary loss, compensatory and
exemplary damages. Defendant offered to settle the case amicably, but the parties were not able to agree
on the settlement amount. Plaintiff instituted an action for damages on February 2, 1953. The Court of First
Instance awarded: (1) P700 for medical and transportation expenses, (2) P3,200 unearned professional
fees, and (3) P2,000 moral damages. The plaintiff filed this instant appeal.

Issue:

Whether moral damages can be awarded

Held:

A mere perusal of plaintiff complaint will show that his action against the defendant is predicated on an
alleged breach of contract of carriage, i.e., the failure of the defendant to bring him "safely and without
mishaps" to his destination, and it is to be noted that the chauffeur of defendant's taxicab that plaintiff used
when he received the injuries involved herein, Gregorio Mira, has not even been made a party defendant to
this case. The defendant herein has not committed in connection with this case any "criminal offense
resulting in physical injuries". The one that committed the offense against the plaintiff is Gregorio Mira, and
that is why he has been already prosecuted and punished therefor. We, therefore, hold that the case at bar
does not come within the exception of paragraph 1, Article 2219 of the Civil Code. In view of the foregoing
the sum of P2,000 awarded as moral damages by the trial Court has to be eliminated, for under the law it
is not a compensation awardable in a case like the one at bar.

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

PRECILLANO NECESITO, ETC., plaintiff-appellant,

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

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

GERMAN NECESITO, ET AL., plaintiffs-appellants,

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

Tomas Besa and Federico Agrava for appellants.

Jose W. Diokno for appellees.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Felix, J., concurs in the result.

RESOLUTION

September 11, 1958

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

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

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

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

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

It can be seen that while the courts of the United States are at variance on the question of a carrier's
liability for latent mechanical defects, the rule in this jurisdiction has been consistent in holding the carrier
responsible. This Court has quoted from American and English decisions, not because it felt bound to
follow the same, but merely in approval of the rationale of the rule as expressed therein, since the
previous Philippine cases did not enlarge on the ideas underlying the doctrine established thereby.
The new evidence sought to be introduced do not warrant the grant of a new trial, since the proposed
proof available when the original trial was held. Said evidence is not newly discovered.

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

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

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

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

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

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

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

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

Neither does the fact that the contract between the passengers and their counsel was on a contingent
basis affect the former's right to counsel fees. As pointed out for appellants, the Court's award is an party
and not to counsel. A litigant who improvidently stipulate higher counsel fees than those to which he is
lawfully entitled, does not for that reason earn the right to a larger indemnity; but, by parity of reasoning,
he should not be deprived of counsel fees if by law he is entitled to recover them.
We find no reason to alter the main decision heretofore rendered. Ultimately, the position taken by this
Court is that a common carrier's contract is not to be regarded as a game of chance wherein the
passenger stakes his limb and life against the carrier's property and profits.

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