TORTS

CASES

B. Kinds of Tort Liabilities

GASHEM V CA
G.R. No. 97336 February 19, 1993
Laws Applicable: Art. 21, Art. 23 and Art. 2176 of the Civil Code
Lessons Applicable: Quasi-delict (Torts and Damages)

FACTS:
§ Gashem Shookat Baksh (Gashem), a medical student in Lyceum Northwestern
Dagupan City, courted and proposed to marry 22 years old, single, Filipino and a
pretty lass of good moral character and reputation duly respected in her community
§ she accepted his love on the condition that they would get married after the end of
the school semester (October that year)
§ Gashem visited her parents in Pangasinan for approval for marriage
§ August 20 1987: Gashem forced her to live with him when she was still a virgin then
he started to maltreat and threatened to kill her resulting into injuries
§ would tie plaintiff's hands and feet while he went to school, and he even gave her
medicine at 4 o'clock in the morning that made her sleep the whole day and night
until the following day
§ she became pregnant, but Gashem gave her some medicine to abort the fetus
§ Gashem continued to live with defendant and kept reminding him of his promise to
marry her until he asked her not to live with him anymore as he is already married
to someone living in Bacolod City
§ he lived with another woman in Bacolod City but did not marry that woman, just like
what he did to plaintiff
§ resigned from her job at the restaurant after she had accepted defendant's
proposal
§ Plaintiff's father, a tricycle driver, already looked for sponsors for the wedding,
started preparing for the reception by looking for pigs and chickens, and even
already invited many relatives and friends to the forthcoming wedding.
§ prayed for judgment ordering Gashem to pay her damages
§ Gashem: never proposed marriage to or agreed to be married; he did not maltreat
her, but only told her to stop coming to his place because he discovered that she
had deceived him by stealing his money and passport
§ RTC: favored private respondent and against Gashem
§ gave full credit to the private respondent's testimony because, inter alia, she would
not have had the temerity and courage to come to court and expose her honor and
reputation to public scrutiny and ridicule if her claim was false
§ CA: affirmed RTC
§ Gashem's acts are palpably and undoubtedly against morals, good customs, and
public policy, and are even gravely and deeply derogatory and insulting to our
women, coming as they do from a foreigner who has been enjoying the hospitality
of our people and taking advantage of the opportunity to study in one of our
institutions of learning
§ Gashem criticizes the trial court for liberally invoking Filipino customs, traditions and
culture, and ignoring the fact that since he is a foreigner, he is not conversant with
 such Filipino customs, traditions and culture. As an Iranian Moslem, he is not
familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable
because of his Moslem upbringing; he then alludes to the Muslim Code which
purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now his legal wife as their marriage
had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility
could be pinned on him for the live-in relationship, the private respondent should
also be faulted for consenting to an illicit arrangement
§ promised to marry her would not be actionable since mere breach of promise is not
actionable
ISSUE: W/N damages may be recovered for a breach of promise to marry on the basis
of Article 21 of the Civil Code of the Philippines

HELD: YES. Petition is denied.

§ existing rule is that a breach of promise to marry per se is not an actionable wrong
§ Under the present laws, there is no crime, as the girl is above nineteen years of age
§ Art. 23. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
§ Article 2176 of the Civil Code, which defines a quasi-delict thus:

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

§ Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law

concept while torts is an Anglo-American or common law concept. Torts is much
broader than culpa aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and battery, false imprisonment
and deceit.
§ intentional and malicious acts, with certain exceptions, are to be governed by the
Revised Penal Code while negligent acts or omissions are to be covered by Article
2176 of the Civil Code
§ Article 21 fills that vacuum and has greatly broadened the scope of the law on civil
wrongs; it has become much more supple and adaptable than the Anglo-American
law on torts
§ acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21
§ It is essential, however, that such injury should have been committed in a manner
contrary to morals, good customs or public policy.
§ In fact, it is apparent that she had qualms of conscience about the entire episode for
as soon as she found out that the petitioner was not going to marry her after all,
she left him. She is not, therefore, in pari delicto with the petitioner. Pari
delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal
fault."
§ let it not be said that this Court condones the deplorable behavior of her parents in
letting her and the petitioner stay together in the same room in their house after
giving approval to their marriage. It is the solemn duty of parents to protect the
honor of their daughters and infuse upon them the higher values of morality and
dignity.
 QUASI-DELICT (NCC: ARTICLE 2176)

ANDAMO V IAC
FACTS:
§ Missionaries of Our Lady of La Salette, Inc., a religious corporation, built through its
agents, waterpaths, water conductors and contrivances including an artificial lake
within its land
§ inundated and eroded the spouses Emmanuel and Natividad Andamo's land, caused
a young man to drown, damaged petitioners' crops and plants, washed away costly
fences, endangered the lives of petitioners and their laborers during rainy and
stormy seasons, and exposed plants and other improvements to destruction
§ July 1982:spouses instituted a criminal action
§ February 22, 1983: spouses filed a civil case for damages
§ CA affirmed trial court issued an order suspending further hearings in Civil Case
until after judgment in the related Criminal Case
§ spouses contend that the trial court and the Appellate Court erred in dismissing Civil
Case since it is predicated on a quasi-delict
ISSUE: W/N there is quasi-delict even if done in private propety

HELD: YES. REVERSED and SET ASIDE

§ All the elements of a quasi-delict are present, to wit:
§ (a) damages suffered by the plaintiff
§ (b) fault or negligence of the defendant, or some other person for whose acts he
must respond
§ (c) the connection of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff
§ While the property involved in the cited case belonged to the public domain and the
property subject of the instant case is privately owned, the fact remains that
petitioners' complaint sufficiently alleges that petitioners have sustained and will
continue to sustain damage due to the waterpaths and contrivances built by
respondent corporation
§ It must be stressed that the use of one's property is not without limitations. Article
431 of the Civil Code provides that "the owner of a thing cannot make use thereof in
such a manner as to injure the rights of a third person." SIC UTERE TUO UT
ALIENUM NON LAEDAS. Moreover, adjoining landowners have mutual and
reciprocal duties which require that each must use his own land in a reasonable
manner so as not to infringe upon the rights and interests of others. Although we
recognize the right of an owner to build structures on his land, such structures must
be so constructed and maintained using all reasonable care so that they cannot be
dangerous to adjoining landowners and can withstand the usual and expected forces
of nature. If the structures cause injury or damage to an adjoining landowner or a
third person, the latter can claim indemnification for the injury or damage suffered.
§ Article 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant.
§ whether it be conviction or acquittal would render meaningless the independent
character of the civil action and the clear injunction in Article 31, that his action may
proceed independently of the criminal proceedings and regardless of the result of
the latter
 CHILD LEARNING V IAC

This petition started with a tort case filed with the Regional Trial Court of
Makati by Timothy Tagorio and his parents, Basilio R. Tagorio and Herminia
Tagorio, docketed as Civil Case No. 91-1389. The complaint[1] alleged that
during the school year 1990-1991, Timothy was a Grade IV student at
Marymount School, an academic institution operated and maintained by
Child Learning Center, Inc. (CLC). In the afternoon of March 5, 1991,
between 1 and 2 p.m., Timothy entered the boys comfort room at the third
floor of the Marymount building to answer the call of nature. He, however,
found himself locked inside and unable to get out. Timothy started to panic
and so he banged and kicked the door and yelled several times for help.
When no help arrived he decided to open the window to call for help. In the
process of opening the window, Timothy went right through and fell down
three stories. Timothy was hospitalized and given medical treatment for
serious multiple physical injuries.

An action under Article 2176 of the Civil Code was filed by respondents
against the CLC, the members of its Board of Directors, namely Spouses
Edgardo and Sylvia Limon, Alfonso Cruz, Carmelo Narciso and Luningning
Salvador, and the Administrative Officer of Marymount School, Ricardo
Pilao. In its defense,[2]CLC maintained that there was nothing defective
about the locking mechanism of the door and that the fall of Timothy was
not due to its fault or negligence. CLC further maintained that it had
exercised the due care and diligence of a good father of a family to ensure
the safety, well-being and convenience of its students.
After trial, the court a quo found in favor of respondents and ordered
petitioners CLC and Spouses Limon to pay respondents, jointly and
severally, P200,253.12 as actual and compensatory damages, P200,000 as
moral damages, P50,000 as exemplary damages, P100,000 as attorneys fees
and the costs of the suit. The trial court disregarded the corporate fiction of
CLC and held the Spouses Limon personally liable because they were the
ones who actually managed the affairs of the CLC.

Petitioners CLC and the Spouses Limon appealed the decision to the Court
of Appeals.
 On September 28, 2001, the Court of Appeals[3] affirmed the decision in
toto. Petitioners elevated the case to this Court under Rule 45 of the Rules of
Court, after their motion for reconsideration was denied by Resolution of
November 23, 2001.[4]

Petitioners question several factual findings of the trial court, which were
affirmed by the Court of Appeals, namely:[5]

1. That respondent was allegedly trapped inside the boys

comfort room located at the third floor of the school building on
March 5, 1991;

2. That respondent allegedly banged and kicked the door

of said comfort room several times to attract attention and that he
allegedly yelled thereat for help which never came;

3. That respondent was allegedly forced to open the

window of said comfort room to seek help;

4. That the lock set installed at the boys comfort room

located in the third floor of the school building on March 5, 1991
was allegedly defective and that the same lock set was involved in
previous incidents of alleged malfunctioning;

5. That petitioner Child Learning Center, Inc. allegedly

failed to install iron grills in the window of the boys comfort room
at the third floor of the school building;

6. That petitioner Child Learning Center, Inc. allegedly

failed to exercise the due care of a good father of a family in the
selection and supervision of its employees;

7. That the proximate cause of respondents accident was

allegedly not due to his own contributory negligence;

8. That there was an alleged basis to apply the legal

principle of piercing the veil of corporate entity in resolving the
 issue of alleged liability of petitioners Edgardo L. Limon and Sylvia
S. Limon;

9. That there was alleged basis for petitioners to pay

respondent actual, moral and exemplary damages, plus attorneys
fees;

10. That there was an alleged basis in not awarding

petitioners prayer for moral and exemplary damages, including
attorneys fees.

Generally, factual findings of the trial court, affirmed by the Court of

Appeals, are final and conclusive and may not be reviewed on appeal. The
established exceptions are: (1) when the inference made is manifestly
mistaken, absurd or impossible; (2) when there is grave abuse of discretion;
(3) when the findings are grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact are conflicting; (6)
when the Court of Appeals, in making its findings, went beyond the issues
of the case and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of fact are conclusions without citation of
specific evidence on which they are based; (8) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion; and (9)
when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.[6]

On the basis of the records of this case, this Court finds no justification
to reverse the factual findings and consider this case as an exception to the
general rule.

In every tort case filed under Article 2176 of the Civil Code, plaintiff
has to prove by a preponderance of evidence: (1) the damages suffered by
the plaintiff; (2) the fault or negligence of the defendant or some other person
for whose act he must respond; and (3) the connection of cause and effect
between the fault or negligence and the damages incurred.[7]
 Fault, in general, signifies a voluntary act or omission which causes
damage to the right of another giving rise to an obligation on the part of the
actor to repair such damage. Negligence is the failure to observe for the
protection of the interest of another person that degree of care, precaution
and vigilance which the circumstances justly demand. Fault requires the
execution of a positive act which causes damage to another while negligence
consists of the omission to do acts which result in damage to another.[8]

In this tort case, respondents contend that CLC failed to provide

precautionary measures to avoid harm and injury to its students in two
instances: (1) failure to fix a defective door knob despite having been notified
of the problem; and (2) failure to install safety grills on the window where
Timothy fell from.

The trial court found that the lock was defective on March 5, 1991:[9]

The door knob was defective. After the incident of March 5,

1991, said door knob was taken off the door of the toilet where
Timothy was in. The architect who testified during the trial
declared that although there were standard specifications for door
knobs for comfort room[s], and he designed them according to that
requirement, he did not investigate whether the door knob
specified in his plans during the construction [was] actually put in
place. This is so because he did not verify whether the door knob
he specified w[as] actually put in place at the particular comfort
room where Timothy was barred from getting outside. (TSN, pp.
19-20, December 8, 1994).

The Court of Appeals held that there was no reason to disturb the
factual assessment:[10]

After having perused the records, We fail to see any

indication of whim or arbitrariness on the part of the trial
magistrate in his assessment of the facts of the case. That said, We
deem it not to be within Our business to recast the factual
conclusions reached by the court below.
 Petitioners would make much of the point that no direct evidence was
presented to prove that the door knob was indeed defective on the date in
question.

The fact, however, that Timothy fell out through the window shows
that the door could not be opened from the inside. That sufficiently points
to the fact that something was wrong with the door, if not the door knob,
under the principle of res ipsa loquitor. The doctrine of res ipsa loquitor applies
where (1) the accident was of such character as to warrant an inference that
it would not have happened except for the defendants negligence; (2) the
accident must have been caused by an agency or instrumentality within the
exclusive management or control of the person charged with the negligence
complained of; and (3) the accident must not have been due to any voluntary
action or contribution on the part of the person injured.[11] Petitioners are
clearly answerable for failure to see to it that the doors of their school toilets
are at all times in working condition. The fact that a student had to go
through the window, instead of the door, shows that something was wrong
with the door.

As to the absence of grills on the window, petitioners contend that

there was no such requirement under the Building Code. Nevertheless, the
fact is that such window, as petitioners themselves point out, was
approximately 1.5 meters from the floor, so that it was within reach of a
student who finds the regular exit, the door, not functioning. Petitioners,
with the due diligence of a good father of the family, should have anticipated
that a student, locked in the toilet by a non-working door, would attempt to
use the window to call for help or even to get out. Considering all the
circumstances, therefore, there is sufficient basis to sustain a finding of
liability on petitioners part.

Petitioners argument that CLC exercised the due diligence of a good

father of a family in the selection and supervision of its employees is not
decisive. Due diligence in the selection and supervision of employees is
applicable where the employer is being held responsible for the acts or
omissions of others under Article 2180 of the Civil Code.[12] In this case, CLCs
liability is under Article 2176 of the Civil Code, premised on the fact of its
own negligence in not ensuring that all its doors are properly maintained.

Our pronouncement that Timothy climbed out of the window because

he could not get out using the door, negates petitioners other contention that
the proximate cause of the accident was Timothys own negligence. The
injuries he sustained from the fall were the product of a natural and
continuous sequence, unbroken by any intervening cause, that originated
from CLCs own negligence.

We, however, agree with petitioners that there was no basis to pierce
CLCs separate corporate personality. To disregard the corporate existence,
the plaintiff must prove: (1) Control by the individual owners, not mere
majority or complete stock ownership, resulting in complete domination not
only of finances but of policy and business practice in respect to a transaction
so that the corporate entity as to this transaction had at the time no separate
mind, will or existence of its own; (2) such control must have been used by
the defendant to commit fraud or wrong, to perpetuate the violation of a
statutory or other positive legal duty, or a dishonest and unjust act in
contravention of the plaintiffs legal right; and (3) the control and breach of
duty must proximately cause the injury or unjust loss complained of. The
absence of these elements prevents piercing the corporate veil.[13] The
evidence on record fails to show that these elements are present, especially
given the fact that plaintiffs complaint had pleaded that CLC is a corporation
duly organized and existing under the laws of the Philippines.

On 9th and 10th points raised concerning the award of damages, the
resolution would rest on factual determinations by the trial court, affirmed
by the Court of Appeals, and no legal issue warrants our intervention.

WHEREFORE, the petition is partly granted and the Decision and

Resolution of the Court of Appeals in CA-G.R. CV No. 50961 dated
September 28, 2001 and November 23, 2001, respectively, are MODIFIED in
that petitioners Spouses Edgardo and Sylvia Limon are absolved from
personal liability. The Decision and Resolution are AFFIRMED in all other
respects. No pronouncement as to costs.
 HUANG V PHIL. HOTELIERS

For this Court’s resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the Decision1 of the Court of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007,
affirming the Decision2 of Branch 56 of the Regional Trial Court (RTC) of Makati City in Civil Case
No. 96-1367 dated 21 February 2006, dismissing for lack of merit herein petitioner Dr. Genevieve L.
Huang’s Complaint for Damages. Assailed as well is the Court of Appeals’ Resolution3 dated 5
November 2007 denying for lack of merit petitioner’s Motion for Reconsideration.

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

Petitioner’s version of the antecedents of this case is as follows:

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

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

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

Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and introduced herself
as the hotel physician. However, instead of immediately providing the needed medical assistance,
Dr. Dalumpines presented a "Waiver" and demanded that it be signed by petitioner, otherwise, the
hotel management will not render her any assistance. Petitioner refused to do so.12
After eating her dinner and having rested for a while, petitioner left the hotel’s coffee shop and went
home. Thereupon, petitioner started to feel extraordinary dizziness accompanied by an
uncomfortable feeling in her stomach, which lasted until the following day. Petitioner was
constrained to stay at home, thus, missing all her important appointments with her patients. She also
began experiencing "on" and "off" severe headaches that caused her three (3) sleepless nights.13

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

CONSULTATION REPORT:

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

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

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

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

The brainstem is unremarkable.

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

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

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

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

By reason of the unfortunate 11 June 1995 incident inside the hotel’s swimming pool area, petitioner
also started to feel losing her memory, which greatly affected and disrupted the practice of her
chosen profession.23 Thus, on 25 October 1995, petitioner, through counsel, sent a demand letter24 to
respondents PHI and DTPCI seeking payment of an amount not less than P100,000,000.00
representing loss of earnings on her remaining life span. But, petitioner’s demand was unheeded.
In November 1995, petitioner went to the United States of America (USA) for further medical
treatment. She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson25 from Mount
Sinai Hospital who both found that she has "post traumatic-post concussion/contusion cephalgias-
vascular and neuralgia."26 She was then prescribed to take some medications for severe pain and to
undergo physical therapy. Her condition did not improve so she returned to the Philippines.27

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

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

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

DIAGNOSIS AND OPINION:

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

1. Cerebral Concussion and Contusion

2. Post-traumatic Epilepsy

3. Post-concussional Syndrome

4. Minimal Brain Dysfunction

5. Cervical Sprain, chronic recurrent

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

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

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

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

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

In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of Dr.
Martesio Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs; difficulty in
concentration; and warm sensation of the legs, which symptoms also occurred after the 11 June
1995 incident. Upon examination, Dr. Perez observed that petitioner has been experiencing severe
pains and she has a slight difficulty in concentration. He likewise noted that there was a slight spasm
of petitioner’s neck muscle but, otherwise, there was no objective neurologic finding. The rest of
petitioner’s neurologic examination was essentially normal.39

Dr. Perez’s neurologic evaluation40 of petitioner reflected, among others: (1) petitioner’s past medical
history, which includes, among others, mitral valve stenosis; (2) an interpretation of petitioner’s EEG
results in October 1995 and in January 1999, i.e., the first EEG showed sharp waves seen bilaterally
more on the left while the second one was normal; and (3) interpretation of petitioner’s second MRI
result, i.e., petitioner has a permanent damage in the brain, which can happen either after a head
injury or after a stroke. Dr. Perez concluded that petitioner has post-traumatic or post concussion
syndrome.41

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

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

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

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

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

Afterwards, Dr. Dalumpines went back to petitioner and checked the latter’s condition. Petitioner
insisted that she was fine and that the hirudoid cream was enough. Having been assured that
everything was fine, Dr. Dalumpines requested petitioner to execute a handwritten
certification47 regarding the incident that occurred that night. Dr. Dalumpines then suggested to
petitioner to have an X-ray test. Petitioner replied that it was not necessary. Petitioner also refused
further medical attention.48

On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do with the
11 June 1995 incident. Instead, petitioner merely engaged in small talk with Dr. Dalumpines while
having her daily massage. The two talked about petitioner’s personal matters, i.e., past medical
history, differences with siblings and family over inheritance and difficulty in practice. Petitioner even
disclosed to Dr. Dalumpines that she once fell from a horse; that she had a stroke; had hysterectomy
and is incapable of having children for her uterus had already been removed; that she had blood
disorder, particularly lack of platelets, that can cause bleeding; and she had an "on" and "off"
headaches. Petitioner oftentimes called Dr. Dalumpines at the hotel clinic to discuss topics similar to
those discussed during their 13 June 1995 conversation.49

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

CERTIFICATION

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

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

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

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

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

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

After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioner’s Complaint
for lack of merit.
The trial court found petitioner’s testimony self-serving, thus, devoid of credibility. Petitioner failed to
present any evidence to substantiate her allegation that the lights in the hotel’s swimming pool area
were shut off at the time of the incident. She did not even present her friend, Delia, to corroborate
her testimony. More so, petitioner’s testimony was contradicted by one of the witnesses presented
by the respondents who positively declared that it has been a normal practice of the hotel
management not to put off the lights until 10:00 p.m. to allow the housekeepers to do the cleaning of
the swimming pool surroundings, including the toilets and counters. Also, the lights were kept on for
security reasons and for the people in the nearby gym to have a good view of the swimming pool
while doing their exercise routine. Besides, there was a remote possibility that the hotel’s swimming
pool area was in complete darkness as the aforesaid gym was then open until 10:00 p.m., and the
lights radiate to the hotel’s swimming pool area. As such, petitioner would not have met the accident
had she only acted with care and caution.54

The trial court further struck down petitioner’s contention that the hotel management did not extend
medical assistance to her in the aftermath of the accident. Records showed that the hotel
management immediately responded after being notified of the accident. The hotel nurse and the
two chambermaids placed an ice pack on petitioner’s head. They were willing to extend further
emergency assistance but petitioner refused and merely asked for a hirudoid cream. Petitioner even
told them she is a doctor and she was fine. Even the medical services offered by the hotel physician
were turned down by petitioner. Emphatically, petitioner cannot fault the hotel for the injury she
sustained as she herself did not heed the warning that the swimming pool area is open only from
7:00 a.m. to 7:00 p.m. As such, since petitioner’s own negligence was the immediate and proximate
cause of her injury, she cannot recover damages.55

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

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

With regard to respondent First Lepanto’s liability, the trial court ruled that under the contract of
insurance, suffice it to state that absent any cause for any liability against respondents PHI and
DTPCI, respondent First Lepanto cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following assignment of
errors: (1) the trial court erred in finding that the testimony of petitioner is self-serving and thus void
of credibility; (2) the trial court erred in applying the doctrine of proximate cause in cases of breach of
contract and even assuming arguendo that the doctrine is applicable, petitioner was able to prove by
sufficient evidence the causal connection between her injuries and respondents PHI and DTPCI’s
negligent act; and (3) the trial court erred in holding that petitioner is not entitled to damages.58

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

The Court of Appeals ratiocinated in this wise:

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

xxxx

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

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

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

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

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

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

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

xxxx

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

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

xxxx

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

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

Hence, this Petition raising the following issues:

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

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

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

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

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

(6) Whether or not the petitioner is entitled to the payment of damages, attorney’s fees,
interest, and the costs of suit.
 (7) Whether or not the respondent insurance company is liable, even directly, to the
petitioner.

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

Petitioner argues that the rule that "findings of fact of the lower courts are conclusive and must be
respected on appeal" finds no application herein because this case falls under the jurisprudentially
established exceptions. Moreover, since the rationale behind the afore-mentioned rule is that "the
trial judge is in a vantage point to appreciate the conduct and behavior of the witnesses and has the
unexcelled opportunity to evaluate their testimony," one logical exception to the rule that can be
deduced therefrom is when the judge who decided the case is not the same judge who heard and
tried the case.

Petitioner further faults the Court of Appeals in ruling that no contractual relationship existed
between her and respondents PHI and DTPCI since her use of the hotel’s swimming pool facility
was only upon the invitation of the hotel’s registered guest. On the contrary, petitioner maintains that
an implied contract existed between them in view of the fact that the hotel guest status extends to all
those who avail of its services—its patrons and invitees. It follows then that all those who patronize
the hotel and its facilities, including those who are invited to partake of those facilities, like petitioner,
are generally regarded as guests of the hotel. As such, respondents PHI and DTPCI are responsible
by implied contract for the safety and welfare of petitioner while the latter was inside their premises
by exercising due care, which they failed to do.

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

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

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

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

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

The instant Petition is devoid of merit.

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

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

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

(c) When there is grave abuse of discretion;

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

(e) When the findings of facts are conflicting;

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

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

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

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

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

(k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, would justify a different conclusion.64
Upon meticulous perusal of the records, however, this Court finds that none of these exceptions is
obtaining in this case. No such justifiable or compelling reasons exist for this Court to depart from
the general rule. This Court will not disturb the factual findings of the trial court as affirmed by the
Court of Appeals and adequately supported by the evidence on record.

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

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

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

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

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

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

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

6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00 o’clock, after
herein petitioner and her friend from New York, Delia, the latter being then a Hotel guest,
were taking their shower after having a dip in the hotel’s swimming pool, without any notice
or warning, the Hotel’s staff put off all the lights within the pool area including the lights on
the hallway and also locked the main entrance door of the pool area, x x x;
7. THAT, Hotel guest Delia started to panic while petitioner pacified her by telling her not to
worry as they would both find their way out. Petitioner knowing that within the area there is a
house phone, started to look around while Delia was following her, eventually petitioner saw
a phone behind the counter x x x, that while slowly moving on towards the phone on a
stooping manner due to the darkness CAUSED BY UNTIMELY AND NEGLIGENTLY
PUTTING OFF WITH THE LIGHTS BY THE HEREIN RESPONDENTS PHI AND DTPCI’S
EMPLOYEE while passing through the open counter door with its Folding Counter Top also
opened, x x x, a hard and heavy object fell onto the head of the petitioner that knocked her
down almost unconscious which hard and heavy object turned out to be the Folding Counter
Top;

8. THAT, Delia immediately got hold of the house phone and notified the Hotel Telephone
Operator about the incident, immediately the hotel staffs (sic) arrived but they were stranded
behind the main door of the pool entrance and it too (sic) them more than twenty (20)
minutes to locate the hotel maintenance employee who holds the key of the said main
entrance door;

9. THAT, when the door was opened, two Hotel Chamber Maids assisted the petitioner to get
out of the counter door. Petitioner being a Physician tried to control her feelings although
groggy and requested for a HURIDOID, a medicine for HEMATOMA, as a huge lump
developed on her head while the two Chamber Maids assisted petitioner by holding the bag
of ice on her head and applying the medicine on the huge lump;

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

xxxx

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

xxxx

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

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

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

It is evident from petitioner’s Complaint and from her open court testimony that the reliance was on
the alleged tortious acts committed against her by respondents PHI and DTPCI, through their
management and staff. It is now too late in the day to raise the said argument for the first time before
this Court.71

Petitioner’s belated reliance on breach of contract as her cause of action cannot be sanctioned by
this Court. Well-settled is the rule that a party is not allowed to change the theory of the case or the
cause of action on appeal. Matters, theories or arguments not submitted before the trial court cannot
be considered for the first time on appeal or certiorari.72 When a party adopts a certain theory in the
court below, he will not be permitted to change his theory on appeal for to permit him to do so would
not only be unfair to the other party but it would also be offensive to the basic rules of fair play,
justice and due process.73 Hence, a party is bound by the theory he adopts and by the cause of
action he stands on and cannot be permitted after having lost thereon to repudiate his theory and
cause of action and adopt another and seek to re-litigate the matter anew either in the same forum
or on appeal.74

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

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

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

In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner utterly failed
to prove the alleged negligence of respondents PHI and DTPCI. Other than petitioner’s self-serving
testimony that all the lights in the hotel’s swimming pool area were shut off and the door was locked,
which allegedly prompted her to find a way out and in doing so a folding wooden counter top fell on
her head causing her injury, no other evidence was presented to substantiate the same. Even her
own companion during the night of the accident inside the hotel’s swimming pool area was never
presented to corroborate her allegations. Moreover, petitioner’s aforesaid allegations were
successfully rebutted by respondents PHI and DTPCI. Here, we quote with conformity the
observation of the trial court, thus:

x x x Besides not being backed up by other supporting evidence, said statement is being
contradicted by the testimony of Engineer Dante L. Costas,81 who positively declared that it has been
a normal practice of the Hotel management not to put off the lights until 10:00P.M. in order to allow
the housekeepers to do the cleaning of the pool’s surrounding, the toilets and the counters. It was
also confirmed that the lights were kept on for security reasons and so that the people exercising in
the nearby gym may be able to have a good view of the swimming pool. This Court also takes note
that the nearby gymnasium was normally open until 10:00 P.M. so that there was a remote
possibility the pool area was in complete darkness as was alleged by herein petitioner, considering
that the illumination which reflected from the gym. Ergo, considering that the area were sufficient
(sic) illuminated when the alleged incident occurred, there could have been no reason for the
petitioner to have met said accident, much less to have been injured as a consequence thereof, if
she only acted with care and caution, which every ordinary person is expected to do.82

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

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

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

Two. She admitted, through her certification, that she lifted the wooden bar countertop, which then
fell on to her head. The admission in her certificate proves the circumstances surrounding the
occurrence that transpired on the night of 11 June 1995. This is contrary to her assertion in the
complaint and testimony that, while she was passing through the counter door, she was suddenly
knocked out by a hard and heavy object. In view of the fact that she admitted having lifted the
countertop, it was her own doing, therefore, that made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioner’s assertion that the pool area was totally dark in
that she herself admitted that she saw a telephone at the counter after searching for one. It must be
noted that petitioner and Delia had walked around the pool area with ease since they were able to
proceed to the glass entrance door from the shower room, and back to the counter area where the
telephone was located without encountering any untoward incident. Otherwise, she could have
easily stumbled over, or slid, or bumped into something while searching for the telephone. This
negates her assertion that the pool area was completely dark, thereby, totally impairing her vision.

xxxx

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

Even petitioner’s assertion of negligence on the part of respondents PHI and DTPCI in not rendering
medical assistance to her is preposterous. Her own Complaint affirmed that respondents PHI and
DTPCI afforded medical assistance to her after she met the unfortunate accident inside the hotel’s
swimming pool facility. Below is the portion of petitioner’s Complaint that would contradict her very
own statement, thus:

14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCI’s gross
negligence despite medical assistance, petitioner started to feel losing her memory that greatly
affected and disrupted the practice of her chosen profession. x x x.84 (Emphasis supplied).

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

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

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

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

Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such character as to
warrant an inference that it would not have happened except for the defendant’s negligence; (2) the
accident must have been caused by an agency or instrumentality within the exclusive management
or control of the person charged with the negligence complained of; and (3) the accident must not
have been due to any voluntary action or contribution on the part of the person injured.89

In the case at bench, even granting that respondents PHI and DTPCI’s staff negligently turned off
the lights and locked the door, the folding wooden counter top would still not fall on petitioner’s head
had she not lifted the same. Although the folding wooden counter top is within the exclusive
management or control of respondents PHI and DTPCI, the falling of the same and hitting the head
of petitioner was not due to the negligence of the former. As found by both lower courts, the folding
wooden counter top did not fall on petitioner’s head without any human intervention. Records
showed that petitioner lifted the said folding wooden counter top that eventually fell and hit her head.
The same was evidenced by the, (1) 11 June 1995 handwritten certification of petitioner herself; (2)
her Letter dated 30 August 1995 addressed to Mr. Yoshikazu Masuda (Mr. Masuda), General
Manager of Dusit Hotel; and, (3) Certification dated 7 September 1995 issued to her by Dr.
Dalumpines upon her request, which contents she never questioned.

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

Petitioner’s 11 June 1995 Handwritten Certification:

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

Petitioner’s Letter addressed to Mr. Masuda dated 30 August 1995:

Dear Mr. Masuda,

xxxx

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

Dr. Dalumpines’ Certification dated 7 September 1995:

 CERTIFICATION

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

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

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

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

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

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

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

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

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

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

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

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

sought for examination or treatment were neither identified nor testified to by those who issued them.
Being deemed as hearsay, they cannot be given probative value. 1âwphi1

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

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

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

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

SO ORDERED.
 LUCAS V TUANO

In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of
Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas seek the reversal of the 27 September 2006 Decision[2] and 3 July
2007 Resolution,[3] both of the Court of Appeals in CA-G.R. CV No. 68666, entitled
“Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas
v. Prospero Ma. C. Tuaño.”
In the questioned decision and resolution, the Court of Appeals affirmed
the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch
150, MakatiCity, dismissing the complaint filed by petitioners in a civil case
entitled, “Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas v. Prospero Ma. C. Tuaño,” docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of the present
petition are:

Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter)

contracted “sore eyes” in his right eye.

On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter
made use of his health care insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca,
M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño),
an ophthalmologist at St. Luke’s Medical Center, for an eye consult.

Upon consultation with Dr. Tuaño, Peter narrated that it had been nine (9)
days since the problem with his right eye began; and that he was already
taking Maxitrol to address the problem in his eye. According to Dr. Tuaño, he
performed “ocular routine examination” on Peter’s eyes, wherein: (1) a gross
examination of Peter’s eyes and their surrounding area was made; (2) Peter’s visual
acuity were taken; (3) Peter’s eyes were palpated to check the intraocular pressure
of each; (4) the motility of Peter’s eyes was observed; and (5) the
ophthalmoscopy[4] on Peter’s eyes was used. On that particular consultation, Dr.
Tuaño diagnosed that Peter was suffering from conjunctivitis[5] or “sore eyes.” Dr.
Tuaño then prescribed Spersacet-C[6] eye drops for Peter and told the latter to return
for follow-up after one week.

As instructed, Peter went back to Dr. Tuaño on 9 September 1988. Upon

examination, Dr. Tuaño told Peter that the “sore eyes” in the latter’s right eye had
already cleared up and he could discontinue the Spersacet-C. However, the same
eye developed Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To address
the new problem with Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-
based eye drop called Maxitrol,[8] a dosage of six (6) drops per day.[9]To recall, Peter
had already been using Maxitrol prior to his consult with Dr. Tuaño.

On 21 September 1988, Peter saw Dr. Tuaño for a follow-up consultation.

After examining both of Peter’s eyes, Dr. Tuaño instructed the former to taper
down[10] the dosage of Maxitrol, because the EKC in his right eye had already
resolved. Dr. Tuaño specifically cautioned Peter that, being a steroid, Maxitrol had
to be withdrawn gradually; otherwise, the EKC might recur.[11]

Complaining of feeling as if there was something in his eyes, Peter returned

to Dr. Tuaño for another check-up on 6 October 1988. Dr. Tuaño examined Peter’s
eyes and found that the right eye had once more developed EKC. So, Dr. Tuaño
instructed Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of
stock. Consequently, Peter was told by Dr. Tuano to take,
instead, Blephamide[12] another steroid-based medication, but with a lower
concentration, as substitute for the unavailable Maxitrol, to be used three (3) times
a day for five (5) days; two (2) times a day for five (5) days; and then just once a
day.[13]

Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at his
clinic, alleging severe eye pain, feeling as if his eyes were about to “pop-out,” a
headache and blurred vision. Dr. Tuaño examined Peter’s eyes and discovered that
the EKC was again present in his right eye. As a result, Dr. Tuaño told Peter to
resume the maximum dosage of Blephamide.
 Dr. Tuaño saw Peter once more at the former’s clinic on 4 November 1988.
Dr. Tuaño’s examination showed that only the periphery of Peter’s right eye was
positive for EKC; hence, Dr. Tuaño prescribed a lower dosage of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peter’s spouse,
read the accompanying literature of Maxitrol and found therein the following
warning against the prolonged use of such steroids:
WARNING:

Prolonged use may result in glaucoma, with damage to the optic

nerve, defects in visual acuity and fields of vision, and posterior,
subcapsular cataract formation. Prolonged use may suppress the host
response and thus increase the hazard of secondary ocular infractions, in
those diseases causing thinning of the cornea or sclera, perforations have
been known to occur with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or enhance existing
infection. If these products are used for 10 days or longer, intraocular
pressure should be routinely monitored even though it may be difficult in
children and uncooperative patients.

Employment of steroid medication in the treatment of herpes

simplex requires great caution.

xxxx

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective

combination drugs which can be attributed to the steroid component, the
anti-infective component, or the combination. Exact incidence figures are
not available since no denominator of treated patients is available.
Reactions occurring most often from the presence of the anti-
infective ingredients are allergic sensitizations. The reactions due to the
steroid component in decreasing order to frequency are elevation of intra-
ocular pressure (IOP) with possible development of glaucoma, infrequent
optic nerve damage; posterior subcapsular cataract formation; and delayed
wound healing.
Secondary infection: The development of secondary has occurred
after use of combination containing steroids and antimicrobials. Fungal
infections of the correa are particularly prone to develop coincidentally
 with long-term applications of steroid. The possibility of fungal invasion
must be considered in any persistent corneal ulceration where steroid
treatment has been used.
Secondary bacterial ocular infection following suppression of
host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaño’s clinic, complaining of

“feeling worse.”[14] It appeared that the EKC had spread to the whole of Peter’s right
eye yet again. Thus, Dr. Tuaño instructed Peter to resume the use of Maxitrol.
Petitioners averred that Peter already made mention to Dr. Tuaño during said visit
of the above-quoted warning against the prolonged use of steroids, but Dr. Tuaño
supposedly brushed aside Peter’s concern as mere paranoia, even assuring him that
the former was taking care of him (Peter).

Petitioners further alleged that after Peter’s 26 November 1988 visit to Dr.
Tuaño, Peter continued to suffer pain in his right eye, which seemed to “progress,”
with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no vision in his
right eye. Fatima observed that Peter’s right eye appeared to be bloody and
swollen.[15] Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuaño. Peter
reported to Dr. Tuaño that he had been suffering from constant headache in the
afternoon and blurring of vision.

Upon examination, Dr. Tuaño noted the hardness of Peter’s right eye. With
the use of a tonometer[16] to verify the exact intraocular pressure[17] (IOP) of Peter’s
eyes, Dr. Tuaño discovered that the tension in Peter’s right eye was 39.0 Hg, while
that of his left was 17.0 Hg.[18] Since the tension in Peter’s right eye was way over
the normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuaño
ordered[20] him to immediately discontinue the use of Maxitrol and prescribed to the
latter Diamox[21] and Normoglaucon, instead.[22] Dr. Tuaño also required Peter to go
for daily check-up in order for the former to closely monitor the pressure of the
latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right eye yielded
a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuaño told Peter to continue
using Diamox and Normoglaucon. But upon Peter’s complaint of “stomach pains
and tingling sensation in his fingers,”[23] Dr. Tuaño discontinued Peter’s use
of Diamox.[24]

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr.

Batungbacal), on 21 December 1988, who allegedly conducted a complete
ophthalmological examination of Peter’s eyes. Dr. Batungbacal’s diagnosis
was Glaucoma[25] O.D.[26] He recommended Laser Trabeculoplasty[27] for Peter’s
right eye.

When Peter returned to Dr. Tuaño on 23 December 1988,[28] the tonometer

measured the IOP of Peter’s right eye to be 41.0 Hg,[29] again, way above normal.
Dr. Tuaño addressed the problem by advising Peter to resume taking Diamox along
with Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most of the
time and was not able to celebrate the season with his family because of the
debilitating effects of Diamox.[30]

On 28 December 1988, during one of Peter’s regular follow-ups with Dr.

Tuaño, the doctor conducted another ocular routine examination of Peter’s eyes. Dr.
Tuaño noted the recurrence of EKC in Peter’s right eye. Considering, however, that
the IOP of Peter’s right eye was still quite high at 41.0 Hg, Dr. Tuaño was at a loss
as to how to balance the treatment of Peter’s EKC vis-à-vis the presence
of glaucoma in the same eye. Dr. Tuaño, thus, referred Peter to Dr. Manuel B.
Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the treatment of
glaucoma.[31] Dr. Tuaño’s letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible

management. I initially saw him Sept. 2, 1988 because of conjunctivitis.
The latter resolved and he developed EKC for which I gave Maxitrol. The
EKC was recurrent after stopping steroid drops. Around 1 month of
steroid treatment, he noted blurring of vision & pain on the R. however, I
continued the steroids for the sake of the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was definitely elevated. I stopped the
steroids immediately and has (sic) been treating him medically.
 It seems that the IOP can be controlled only with oral Diamox, and
at the moment, the EKC has recurred and I’m in a fix whether to resume
the steroid or not considering that the IOP is still uncontrolled.[32]

On 29 December 1988, Peter went to see Dr. Agulto at the latter’s clinic.
Several tests were conducted thereat to evaluate the extent of Peter’s condition. Dr.
Agulto wrote Dr. Tuaño a letter containing the following findings and
recommendations:

Thanks for sending Peter Lucas. On examination conducted vision

was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while
on Normoglaucon BID OD & Diamox ½ tab every 6h po.

Slit lamp evaluation[33] disclosed subepithelial corneal defect outer

OD. There was circumferential peripheral iris atrophy, OD. The lenses
were clear.
Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with
temporal slope R>L.

Zeiss gonioscopy[35] revealed basically open angles both eyes with

occasional PAS,[36] OD.

Rolly, I feel that Peter Lucas has really sustained significant

glaucoma damage. I suggest that we do a baseline visual fields and push
medication to lowest possible levels. If I may suggest further, I think we
should prescribe Timolol[37] BID[38] OD in lieu of Normoglaucon. If the
IOP is still inadequate, we may try D’epifrin[39] BID OD (despite low
PAS). I’m in favor of retaining Diamox or similar CAI.[40]

If fields show further loss in say – 3 mos. then we should consider

trabeculoplasty.

I trust that this approach will prove reasonable for you and Peter.[41]

Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. Agulto’s
aforementioned letter. Though Peter’s right and left eyes then had normal IOP
of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still gave him a prescription
for Timolol B.I.D. so Peter could immediately start using said medication.
Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuaño instructed Peter to just
continue using Diamox and Normoglaucon in the meantime.

Just two days later, on 2 January 1989, the IOP of Peter’s right eye remained
elevated at 21.0 Hg,[42] as he had been without Diamox for the past three (3) days.

On 4 January 1989, Dr. Tuaño conducted a visual field study[43] of Peter’s

eyes, which revealed that the latter had tubular vision[44] in his right eye, while that
of his left eye remained normal. Dr. Tuaño directed Peter to religiously use
the Diamox and Normoglaucon, as the tension of the latter’s right eye went up even
further to 41.0 Hg in just a matter of two (2) days, in the meantime
that Timolol B.I.D. and D’epifrin were still not available in the market. Again, Dr.
Tuaño advised Peter to come for regular check-up so his IOP could be monitored.

Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and 20th of
January 1989 for check-up and IOP monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a

second medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz,
M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V.
Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the
treatment of glaucoma and who could undertake the long term care of Peter’s eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation

of Peter’s eyes, the said doctor informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum borderline tension. Dr.
Aquino also confirmed Dr. Tuaño’s diagnosis of tubular vision in Peter’s right eye.
Petitioners claimed that Dr. Aquino essentially told Peter that the latter’s condition
would require lifetime medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser
trabeculoplasty to attempt to control the high IOP of his right eye.

Claiming to have steroid-induced glaucoma[45] and blaming Dr. Tuaño for the
same, Peter, joined by: (1) Fatima, his spouse[46]; (2) Abbeygail, his natural child[47];
and (3) Gillian, his legitimate child[48] with Fatima, instituted on 1 September 1992,
a civil complaint for damages against Dr. Tuaño, before the RTC, Branch 150,
Quezon City. The case was docketed as Civil Case No. 92-2482.

In their Complaint, petitioners specifically averred that as the “direct

consequence of [Peter’s] prolonged use of Maxitrol, [he] suffered from steroid
induced glaucoma which caused the elevation of his intra-ocular pressure. The
elevation of the intra-ocular pressure of [Peter’s right eye] caused the impairment of
his vision which impairment is not curable and may even lead to total blindness.”[49]

Petitioners additionally alleged that the visual impairment of Peter’s right eye
caused him and his family so much grief. Because of his present condition, Peter
now needed close medical supervision forever; he had already undergone two (2)
laser surgeries, with the possibility that more surgeries were still needed in the
future; his career in sports casting had suffered and was continuing to suffer;[50] his
anticipated income had been greatly reduced as a result of his “limited” capacity; he
continually suffered from “headaches, nausea, dizziness, heart palpitations, rashes,
chronic rhinitis, sinusitis,”[51] etc.; Peter’s relationships with his spouse and children
continued to be strained, as his condition made him highly irritable and sensitive;
his mobility and social life had suffered; his spouse, Fatima, became the breadwinner
in the family;[52] and his two children had been deprived of the opportunity for a
better life and educational prospects. Collectively, petitioners lived in constant fear
of Peter becoming completely blind.[53]

In the end, petitioners sought pecuniary award for their supposed pain and
suffering, which were ultimately brought about by Dr. Tuaño’s grossly negligent
conduct in prescribing to Peter the medicine Maxitrol for a period of three (3)
months, without monitoring Peter’s IOP, as required in cases of prolonged use of
said medicine, and notwithstanding Peter’s constant complaint of intense eye pain
while using the same. Petitioners particularly prayed that Dr. Tuaño be adjudged
liable for the following amounts:

1. The amount of P2,000,000.00 to plaintiff Peter Lucas

as and by way of compensation for his impaired vision.
 2. The amount of P300,000.00 to spouses Lucas as and
by way of actual damages plus such additional amounts
that may be proven during trial.

3. The amount of P1,000,000.00 as and by way of

moral damages.

4. The amount of P500,000.00 as and by way of

exemplary damages.

5. The amount of P200,000.00 as and by way of

attorney’s fees plus costs of suit.[54]

In rebutting petitioners’ complaint, Dr. Tuaño asserted that the “treatment

made by [him] more than three years ago has no causal connection to [Peter’s]
present glaucoma or condition.”[55] Dr. Tuaño explained that “[d]rug-induced
glaucoma is temporary and curable, steroids have the side effect of increasing
intraocular pressure. Steroids are prescribed to treat Epidemic Kerato Conjunctivitis
or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore
eyes.”[56] Dr. Tuaño also clarified that (1) “[c]ontrary to [petitioners’] fallacious
claim, [he] did NOT continually prescribe the drug Maxitrol which contained
steroids for any prolonged period”[57] and “[t]he truth was the Maxitrol was
discontinued x x x as soon as EKC disappeared and was resumed only when EKC
reappeared”[58]; (2) the entire time he was treating Peter, he “continually monitored
the intraocular pressure of [Peter’s eyes] by palpating the eyes and by putting
pressure on the eyeballs,” and no hardening of the same could be detected, which
meant that there was no increase in the tension or IOP, a possible side reaction to the
use of steroid medications; and (3) it was only on 13 December 1988 that Peter
complained of a headache and blurred vision in his right eye, and upon
measuring the IOP of said eye, it was determined for the first time that the IOP of
the right eye had an elevated value.

But granting for the sake of argument that the “steroid treatment of [Peter’s]
EKC caused the steroid induced glaucoma,”[59] Dr. Tuaño argued that:
 [S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon
as the intake of steroids is discontinued, the intraocular pressure
automatically is reduced. Thus, [Peter’s] glaucoma can only be due to
other causes not attributable to steroids, certainly not attributable to [his]
treatment of more than three years ago x x x.

From a medical point of view, as revealed by more current

examination of [Peter], the latter’s glaucoma can only be long standing
glaucoma, open angle glaucoma, because of the large C:D ratio. The
steroids provoked the latest glaucoma to be revealed earlier as [Peter]
remained asymptomatic prior to steroid application. Hence, the steroid
treatment was in fact beneficial to [Peter] as it revealed the incipient open
angle glaucoma of [Peter] to allow earlier treatment of the same.[60]

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482
“for insufficiency of evidence.”[61] The decretal part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed

for insufficiency of evidence. The counter claim (sic) is likewise
dismissed in the absence of bad faith or malice on the part of plaintiff in
filing the suit.[62]

The RTC opined that petitioners failed to prove by preponderance of evidence

that Dr. Tuaño was negligent in his treatment of Peter’s condition. In particular, the
record of the case was bereft of any evidence to establish that the steroid medication
and its dosage, as prescribed by Dr. Tuaño, caused Peter’s glaucoma. The trial court
reasoned that the “recognized standards of the medical community has not been
established in this case, much less has causation been established to render [Tuaño]
liable.”[63] According to the RTC:

[Petitioners] failed to establish the duty required of a medical

practitioner against which Peter Paul’s treatment by defendant can be
compared with. They did not present any medical expert or even a medical
doctor to convince and expertly explain to the court the established norm
or duty required of a physician treating a patient, or whether the non taking
(sic) by Dr. Tuaño of Peter Paul’s pressure a deviation from the norm or
his non-discovery of the glaucoma in the course of treatment constitutes
negligence. It is important and indispensable to establish such a standard
 because once it is established, a medical practitioner who departed thereof
breaches his duty and commits negligence rendering him liable. Without
such testimony or enlightenment from an expert, the court is at a loss as
to what is then the established norm of duty of a physician against which
defendant’s conduct can be compared with to determine negligence.[64]

The RTC added that in the absence of “any medical evidence to the contrary,
this court cannot accept [petitioners’] claim that the use of steroid is the proximate
cause of the damage sustained by [Peter’s] eye.”[65]

Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion that “Peter
Paul must have been suffering from normal tension glaucoma, meaning, optic nerve
damage was happening but no elevation of the eye pressure is manifested, that the
steroid treatment actually unmasked the condition that resulted in the earlier
treatment of the glaucoma. There is nothing in the record to contradict such
testimony. In fact, plaintiff’s Exhibit ‘S’ even tends to support them.”

Undaunted, petitioners appealed the foregoing RTC decision to the Court of

Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R.

CV No. 68666 denying petitioners’ recourse and affirming the appealed
RTC Decision. The fallo of the judgment of the appellate court states:

WHEREFORE, the Decision appealed from is AFFIRMED.[66]

The Court of Appeals faulted petitioners because they –

[D]id not present any medical expert to testify that Dr. Tuano’s
prescription of Maxitrol and Blephamide for the treatment of EKC on
Peter’s right eye was not proper and that his palpation of Peter’s right eye
was not enough to detect adverse reaction to steroid. Peter testified that
Dr. Manuel Agulto told him that he should not have used steroid for the
treatment of EKC or that he should have used it only for two (2) weeks,
as EKC is only a viral infection which will cure by itself. However, Dr.
Agulto was not presented by [petitioners] as a witness to confirm what he
allegedly told Peter and, therefore, the latter’s testimony is hearsay. Under
 Rule 130, Section 36 of the Rules of Court, a witness can testify only to
those facts which he knows of his own personal knowledge, x x x. Familiar
and fundamental is the rule that hearsay testimony is inadmissible as
evidence.[67]

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaño’s medical
judgment, specifically the latter’s explanation that:

[W]hen a doctor sees a patient, he cannot determine whether or not the

latter would react adversely to the use of steroids, that it was only on
December 13, 1989, when Peter complained for the first time of headache
and blurred vision that he observed that the pressure of the eye of Peter
was elevated, and it was only then that he suspected that Peter belongs to
the 5% of the population who reacts adversely to steroids.[68]

Petitioners’ Motion for Reconsideration was denied by the Court of Appeals

in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised
Rules of Court premised on the following assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT
DISMISSING THE PETITIONERS’ COMPLAINT FOR DAMAGES
AGAINST THE RESPONDENT ON THE GROUND OF
INSUFFICIENCY OF EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

ERROR IN DISMISSING THE PETITIONERS’ COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT ON THE GROUND
THAT NO MEDICAL EXPERT WAS PRESENTED BY THE
PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE RESPONDENT; AND
 III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE
PETITIONERS’ FOR ACTUAL, MORAL AND EXEMPLARY
DAMAGES, ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT,
AS A RESULT OF HIS GROSS NEGLIGENCE.[69]

A reading of the afore-quoted reversible errors supposedly committed by the

Court of Appeals in its Decision and Resolution would reveal that petitioners are
fundamentally assailing the finding of the Court of Appeals that the evidence on
record is insufficient to establish petitioners’ entitlement to any kind of damage.
Therefore, it could be said that the sole issue for our resolution in the Petition at bar
is whether the Court of Appeals committed reversible error in affirming the
judgment of the RTC that petitioners failed to prove, by preponderance of evidence,
their claim for damages against Dr. Tuaño.

Evidently, said issue constitutes a question of fact, as we are asked to revisit

anew the factual findings of the Court of Appeals, as well as of the RTC. In effect,
petitioners would have us sift through the evidence on record and pass upon whether
there is sufficient basis to establish Dr. Tuaño’s negligence in his treatment of Peter’s
eye condition. This question clearly involves a factual inquiry, the determination of
which is not within the ambit of this Court’s power of review under Rule 45 of the
1997 Rules Civil Procedure, as amended.[70]

Elementary is the principle that this Court is not a trier of facts; only errors of
law are generally reviewed in petitions for review on certiorari criticizing decisions
of the Court of Appeals. Questions of fact are not entertained.[71]

Nonetheless, the general rule that only questions of law may be raised on
appeal in a petition for review under Rule 45 of the Rules of Court admits of certain
exceptions, including the circumstance when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence, but is contradicted by the
evidence on record. Although petitioners may not explicitly invoke said exception,
it may be gleaned from their allegations and arguments in the instant Petition.
 Petitioners contend, that “[c]ontrary to the findings of the Honorable Court of
Appeals, [they] were more than able to establish that: Dr. Tuaño ignored the standard
medical procedure for ophthalmologists, administered medication with recklessness,
and exhibited an absence of competence and skills expected from
him.”[72] Petitioners reject the necessity of presenting expert and/or medical
testimony to establish (1) the standard of care respecting the treatment of the disorder
affecting Peter’s eye; and (2) whether or not negligence attended Dr. Tuaño’s
treatment of Peter, because, in their words –

That Dr. Tuaño was grossly negligent in the treatment of Peter’s

simple eye ailment is a simple case of cause and effect. With mere
documentary evidence and based on the facts presented by the petitioners,
respondent can readily be held liable for damages even without any expert
testimony. In any case, however, and contrary to the finding of the trial
court and the Court of Appeals, there was a medical expert presented by
the petitioner showing the recklessness committed by [Dr. Tuaño] – Dr.
Tuaño himself. [Emphasis supplied.]

They insist that Dr. Tuaño himself gave sufficient evidence to establish his
gross negligence that ultimately caused the impairment of the vision of Peter’s right
eye,[73] i.e., that “[d]espite [Dr. Tuaño’s] knowledge that 5% of the population reacts
adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to
Peter without first determining whether or not the (sic) Peter belongs to the 5%.”[74]

We are not convinced. The judgments of both the Court of Appeals and the
RTC are in accord with the evidence on record, and we are accordingly bound by
the findings of fact made therein.

Petitioners’ position, in sum, is that Peter’s glaucoma is the direct result of Dr.
Tuaño’s negligence in his improper administration of the drug Maxitrol; “thus, [the
latter] should be liable for all the damages suffered and to be suffered by
[petitioners].”[75] Clearly, the present controversy is a classic illustration of a medical
negligence case against a physician based on the latter’s professional negligence. In
this type of suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that degree of skill,
care, and learning possessed by other persons in the same profession; and that as a
proximate result of such failure, the patient or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence committed
by members of the medical profession, such claim for damages is almost always
anchored on the alleged violation of Article 2176 of the Civil Code, which states
that:

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

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

In medical negligence cases, also called medical malpractice suits, there exist
a physician-patient relationship between the doctor and the victim. But just like any
other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach;
(3) injury; and (4) proximate causation,[76] must be established by the plaintiff/s. All
the four (4) elements must co-exist in order to find the physician negligent and, thus,
liable for damages.

When a patient engages the services of a physician, a physician-patient

relationship is generated. And in accepting a case, the physician, for all intents and
purposes, represents that he has the needed training and skill possessed by physicians
and surgeons practicing in the same field; and that he will employ such training,
care, and skill in the treatment of the patient.[77] Thus, in treating his patient, a
physician is under a duty to [the former] to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and in the same
general line of practice ordinarily possess and exercise in like cases.[78]Stated
otherwise, the physician has the duty to use at least the same level of care that any
other reasonably competent physician would use to treat the condition under similar
circumstances.
 This standard level of care, skill and diligence is a matter best addressed by
expert medical testimony, because the standard of care in a medical malpractice case
is a matter peculiarly within the knowledge of experts in the field.[79]

There is breach of duty of care, skill and diligence, or the improper

performance of such duty, by the attending physician when the patient is injured in
body or in health [and this] constitutes the actionable malpractice.[80] Proof of such
breach must likewise rest upon the testimony of an expert witness that the treatment
accorded to the patient failed to meet the standard level of care, skill and diligence
which physicians in the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is
insufficient, for there must be a causal connection between said breach and the
resulting injury sustained by the patient. Put in another way, in order that there may
be a recovery for an injury, it must be shown that the “injury for which recovery is
sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes”;[81] that is, the negligence must be
the proximate cause of the injury. And the proximate cause of an injury is that cause,
which, in the natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have
occurred.[82]

Just as with the elements of duty and breach of the same, in order to establish
the proximate cause [of the injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use expert testimony, because the
question of whether the alleged professional negligence caused [the patient’s] injury
is generally one for specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his field, the expert’s role
is to present to the [court] a realistic assessment of the likelihood that [the
physician’s] alleged negligence caused [the patient’s] injury.[83]

From the foregoing, it is apparent that medical negligence cases are best
proved by opinions of expert witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified physicians [or surgeons] stems
from the former’s realization that the latter possess unusual technical skills which
laymen in most instances are incapable of intelligently evaluating;[84] hence, the
indispensability of expert testimonies.

In the case at bar, there is no question that a physician-patient relationship

developed between Dr. Tuaño and Peter when Peter went to see the doctor on 2
September 1988, seeking a consult for the treatment of his sore eyes. Admittedly,
Dr. Tuaño, an ophthalmologist, prescribed Maxitrol when Peter developed and had
recurrent EKC. Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective
steroid combination in sterile form for topical application.[85] It is the drug which
petitioners claim to have caused Peter’s glaucoma.

However, as correctly pointed out by the Court of Appeals, “[t]he onus

probandi was on the patient to establish before the trial court that the physicians
ignored standard medical procedure, prescribed and administered medication with
recklessness and exhibited an absence of the competence and skills expected of
general practitioners similarly situated.”[86] Unfortunately, in this case, there was
absolute failure on the part of petitioners to present any expert testimony to establish:
(1) the standard of care to be implemented by competent physicians in treating the
same condition as Peter’s under similar circumstances; (2) that, in his treatment of
Peter, Dr. Tuaño failed in his duty to exercise said standard of care that any other
competent physician would use in treating the same condition as Peter’s under
similar circumstances; and (3) that the injury or damage to Peter’s right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as prescribed by Dr.
Tuaño. Petitioners’ failure to prove the first element alone is already fatal to their
cause.

Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case the
required procedure for the prolonged use of Maxitrol. But what is actually the
required procedure in situations such as in the case at bar? To be precise, what is
the standard operating procedure when ophthalmologists prescribe steroid
medications which, admittedly, carry some modicum of risk?
 Absent a definitive standard of care or diligence required of Dr. Tuaño under
the circumstances, we have no means to determine whether he was able to comply
with the same in his diagnosis and treatment of Peter. This Court has no yardstick
upon which to evaluate or weigh the attendant facts of this case to be able to state
with confidence that the acts complained of, indeed, constituted negligence and,
thus, should be the subject of pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should have
determined first whether Peter was a “steroid responder.”[87] Yet again, petitioners
did not present any convincing proof that such determination is actually part of the
standard operating procedure which ophthalmologists should unerringly follow prior
to prescribing steroid medications.

In contrast, Dr. Tuaño was able to clearly explain that what is only required
of ophthalmologists, in cases such as Peter’s, is the conduct of standard
tests/procedures known as “ocular routine examination,”[88] composed of five (5)
tests/procedures – specifically, gross examination of the eyes and the surrounding
area; taking of the visual acuity of the patient; checking the intraocular pressure of
the patient; checking the motility of the eyes; and using ophthalmoscopy on the
patient’s eye – and he did all those tests/procedures every time Peter went to see him
for follow-up consultation and/or check-up.

We cannot but agree with Dr. Tuaño’s assertion that when a doctor sees a
patient, he cannot determine immediately whether the latter would react adversely
to the use of steroids; all the doctor can do is map out a course of treatment
recognized as correct by the standards of the medical profession. It must be
remembered that a physician is not an insurer of the good result of treatment. The
mere fact that the patient does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care.[89] The result is not determinative of the
performance [of the physician] and he is not required to be infallible.[90]

Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was justified
by the fact that the latter was already using the same medication when he first came
to see Dr. Tuaño on 2 September 1988 and had exhibited no previous untoward
reaction to that particular drug. [91]
 Also, Dr. Tuaño categorically denied petitioners’ claim that he never
monitored the tension of Peter’s eyes while the latter was on Maxitrol. Dr. Tuaño
testified that he palpated Peter’s eyes every time the latter came for a check-up as
part of the doctor’s ocular routine examination, a fact which petitioners failed to
rebut. Dr. Tuaño’s regular conduct of examinations and tests to ascertain the state
of Peter’s eyes negate the very basis of petitioners’ complaint for damages. As to
whether Dr. Tuaño’s actuations conformed to the standard of care and diligence
required in like circumstances, it is presumed to have so conformed in the absence
of evidence to the contrary.

Even if we are to assume that Dr. Tuaño committed negligent acts in his
treatment of Peter’s condition, the causal connection between Dr. Tuaño’s supposed
negligence and Peter’s injury still needed to be established. The critical and
clinching factor in a medical negligence case is proof of the causal connection
between the negligence which the evidence established and the plaintiff’s
injuries.[92] The plaintiff must plead and prove not only that he has been injured and
defendant has been at fault, but also that the defendant’s fault caused the injury. A
verdict in a malpractice action cannot be based on speculation or conjecture.
Causation must be proven within a reasonable medical probability based upon
competent expert testimony.[93]

The causation between the physician’s negligence and the patient’s injury
may only be established by the presentation of proof that Peter’s glaucoma would
not have occurred but for Dr. Tuaño’s supposed negligent conduct. Once more,
petitioners failed in this regard.

Dr. Tuaño does not deny that the use of Maxitrol involves the risk of
increasing a patient’s IOP. In fact, this was the reason why he made it a point to
palpate Peter’s eyes every time the latter went to see him -- so he could monitor the
tension of Peter’s eyes. But to say that said medication conclusively caused Peter’s
glaucoma is purely speculative. Peter was diagnosed with open-angle glaucoma.
This kind of glaucoma is characterized by an almost complete absence of symptoms
and a chronic, insidious course.[94] In open-angle glaucoma, halos around lights and
blurring of vision do not occur unless there has been a sudden increase in the
intraocular vision.[95] Visual acuity remains good until late in the course of the
disease.[96] Hence, Dr. Tuaño claims that Peter’s glaucoma “can only be long
standing x x x because of the large C:D[97] ratio,” and that “[t]he steroids provoked
the latest glaucoma to be revealed earlier” was a blessing in disguise “as [Peter]
remained asymptomatic prior to steroid application.”

Who between petitioners and Dr. Tuaño is in a better position to determine

and evaluate the necessity of using Maxitrol to cure Peter’s EKC vis-à-vis the
attendant risks of using the same?

That Dr. Tuaño has the necessary training and skill to practice his chosen field
is beyond cavil. Petitioners do not dispute Dr. Tuaño’s qualifications – that he has
been a physician for close to a decade and a half at the time Peter first came to see
him; that he has had various medical training; that he has authored numerous papers
in the field of ophthalmology, here and abroad; that he is a Diplomate of the
Philippine Board of Ophthalmology; that he occupies various teaching posts (at the
time of the filing of the present complaint, he was the Chair of the Department of
Ophthalmology and an Associate Professor at the University of the Philippines-
Philippine General Hospital and St. Luke’s Medical Center, respectively); and that
he held an assortment of positions in numerous medical organizations like the
Philippine Medical Association, Philippine Academy of Ophthalmology, Philippine
Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and
Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of
Philippine Ophthalmology Professors, et al.

It must be remembered that when the qualifications of a physician are

admitted, as in the instant case, there is an inevitable presumption that in proper
cases, he takes the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently established.[98] In
making the judgment call of treating Peter’s EKC with Maxitrol, Dr. Tuaño took the
necessary precaution by palpating Peter’s eyes to monitor their IOP every time the
latter went for a check-up, and he employed the best of his knowledge and skill
earned from years of training and practice.

In contrast, without supporting expert medical opinions, petitioners’ bare

assertions of negligence on Dr. Tuaño’s part, which resulted in Peter’s glaucoma,
deserve scant credit.
 Our disposition of the present controversy might have been vastly different
had petitioners presented a medical expert to establish their theory respecting Dr.
Tuaño’s so-called negligence. In fact, the record of the case reveals that petitioners’
counsel recognized the necessity of presenting such evidence. Petitioners even gave
an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be
presented. Alas, no follow-through on said undertaking was made.

The plaintiff in a civil case has the burden of proof as he alleges the affirmative
of the issue. However, in the course of trial in a civil case, once plaintiff makes out
a prima facie case in his favor, the duty or the burden of evidence shifts to defendant
to controvert plaintiff’s prima facie case; otherwise, a verdict must be returned in
favor of plaintiff.[99] The party having the burden of proof must establish his case by
a preponderance of evidence.[100] The concept of “preponderance of evidence” refers
to evidence which is of greater weight or more convincing than that which is offered
in opposition to it;[101] in the last analysis, it means probability of truth. It is evidence
which is more convincing to the court as worthy of belief than that which is offered
in opposition thereto.[102] Rule 133, Section 1 of the Revised Rules of Court provides
the guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish
his case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved lies
the court may consider all the facts and circumstances of the case, the
witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature
of the facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and also their personal
credibility so far as the same legitimately appear upon the trial. The court
may also consider the number of witnesses, though the preponderance is
not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the
lower court, to establish their case by a preponderance of evidence showing a
reasonable connection between Dr. Tuaño’s alleged breach of duty and the damage
sustained by Peter’s right eye. This, they did not do. In reality, petitioners’ complaint
for damages is merely anchored on a statement in the literature
of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto
– another doctor not presented as witness before the RTC – concerning the prolonged
use of Maxitrol for the treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical

question that should have been presented to experts. If no standard is established
through expert medical witnesses, then courts have no standard by which to gauge
the basic issue of breach thereof by the physician or surgeon. The RTC and Court of
Appeals, and even this Court, could not be expected to determine on its own what
medical technique should have been utilized for a certain disease or injury. Absent
expert medical opinion, the courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuaño liable for any medical
negligence or malpractice where there is no evidence, in the nature of expert
testimony, to establish that in treating Peter, Dr. Tuaño failed to exercise reasonable
care, diligence and skill generally required in medical practice. Dr. Tuaño’s
testimony, that his treatment of Peter conformed in all respects to standard medical
practice in this locality, stands unrefuted. Consequently, the RTC and the Court of
Appeals correctly held that they had no basis at all to rule that petitioners were
deserving of the various damages prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for

lack of merit. The assailed Decision dated 27 September 2006 and Resolution dated
3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are
hereby AFFIRMED. No cost.
 QUASI-DELICT V BREACH OF CONTRACT

AIR FRANCE V CARRASCO

The Court of First Instance of Manila [1] sentenced petitioner to pay
respondent Rafael Carrascoso P25,000.00 by way of moral damages;
P10,000.00 as exemplary damages; P393.20 representing the difference in
fare between first class and tourist class for the portion of the trip Bangkok-
Rome, these various amounts with interest at the legal rate, from the date
of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees;
and the costs of suit.
On appeal, [2] the Court of Appeals slightly reduced the amount of refund on
Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the
appealed decision "in all other respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as "fully supported by the evidence
of record", are:
"Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims
that left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a 'first class' round trip airplane
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in
'first class', but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the 'first class' seat that he was occupying because, in the
words of the witness Ernesto G. Cuento, there was a 'white man', who, the
Manager alleged, had a 'better right' to the seat. When asked to vacate his
'first class' seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a
commotion ensued, and, according to said Ernesto G. Cuento, 'many of the
Filipino passengers got nervous in the tourist class; when they found out that
Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give
his seat to the white man' (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his 'first class' seat in the plane." [3]
1. The thrust of the relief petitioner now seeks is that we review "all the
findings" [4] of respondent Court of Appeals. Petitioner charges that
respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner,
and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be
rendered by any court of record without expressing therein clearly and
distinctly the facts and the law on which it is based". [5] This is echoed in the
statutory demand that a judgment determining the merits of the case shall
state "clearly and distinctly the facts and the law on which it is based"; [6] and
that "Every decision of the Court of Appeals shall contain complete findings
of fact on all issues properly raised before it". [7]
A decision with absolutely nothing to support it is a nullity. It is open to direct
attack. [8] The law, however, solely insists that a decision state the "essential
ultimate facts" upon which the court's conclusion is drawn. [9] A court of
justice is not hidebound to write in its decision every bit and piece of
evidence [10] presented by one party and the other upon the issues raised.
Neither is it to be burdened with the obligation "to specify in the sentence
the facts" which a party "considered as proved". [11] This is but a part of the
mental process from which the Court draws the essential ultimate facts. A
decision is not to be so clogged with details such that prolixity, if not
confusion, may result. So long as the decision of the Court of Appeals
contains the necessary facts to warrant its conclusions, it is no error for said
court to withhold therefrom "any specific finding of facts with respect to the
evidence for the defense". Because, as this Court well observed, "There is no
law that so requires". [12]] Indeed, "the mere failure to specify (in the decision)
the contentions of the appellant and the reasons for refusing to believe them
is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque,
it was held that the mere fact that the findings "were based entirely on the
evidence for the prosecution without taking into consideration or even
mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. [13] If the court did not recite in
the decision the testimony of each witness for, or each item of evidence
presented by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. [14] At any rate, the legal
presumptions are that official duty has been regularly performed, and that
all the matters within an issue in a case were laid before the court and passed
upon by it. [15]
Findings of fact, which the Court of Appeals is required to make, maybe
defined as "the written statement of the ultimate facts as found by the court
x x x and essential to support the decision and judgment rendered
thereon". [16] They consist of the court's "conclusionswith respect to
the determinative facts in issue". [17] A question of law, upon the other hand,
has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." [18]
2. By statute, "only questions of law may be raised" in an appeal by certiorari
from a judgment of the Court of Appeals. [19] That judgment is conclusive as
to the facts. It is not appropriately the business of this Court to alter the facts
or to review the questions of fact. [20]
With these guideposts, we now face the problem of whether the findings of
fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received
from petitioner a first class ticket. But petitioner asserts that said ticket did
not represent the true and complete intent and agreement of the parties; that
said respondent knew that he did not have confirmed reservations for first
class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would
have a first class ride, but that such would depend upon the availability of
first class seats.
These are matters which petitioner has thoroughly presented and discussed
in its brief before the Court of Appeals under its third assignment of error,
which reads: "The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the 'definite' segments of
his journey, particularly that from Saigon to Beirut". [21]
And, the Court of Appeals disposed of this contention thus:
"Defendant seems to capitalize on the argument that the issuance of a first-
class ticket was no guarantee that the passenger to whom the same had been
issued, would be accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by
such a reasoning. We cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in payment of
first-class tickets and yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of business that
the company should know whether or not the tickets it issues are to be
honored or not." [22]
Not that the Court of Appeals is alone. The trial court similarly disposed of
petitioner's contention, thus:
"On the fact that plaintiff paid for, and was issued a 'First class' ticket, there
can be no question. Apart from his testimony, see plaintiff's Exhibits 'A', 'A-
1', 'B', 'B-1', 'B-2', 'C' and 'C-1', and defendant's own witness, Rafael Altonaga,
confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks 'O.K.' From what you know, what does
this O.K. mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, 'first class'. (Transcript, p. 169)
xxxx
"Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga
and Rafael Altonaga that although plaintiff paid for, and was issued a 'first
class' airplane ticket, the ticket was subject to confirmation in Hongkong.
The court cannot give credit to the testimony of said witnesses. Oral evidence
cannot prevail over written evidence, and plaintiff's Exhibits 'A', 'A-1', 'B', 'B-
1', 'C' and 'C-1' belie the testimony of said witnesses, and clearly show that
the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael
Altonaga testified that the reservation for a 'first class' accommodation for
the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the
'first class' ticket issued to him by defendant would be subject to
confirmation in Hongkong." [23]
We have heretofore adverted to the fact that except for a slight difference of
a few pesos in the amount refunded on Carrascoso's ticket, the decision of
the Court of First Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of affirmance has merged
the judgment of the lower court. [24] Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of
First Instance was free from prejudicial error and that "all questions raised
by the assignments of error and all questions that might have been so raised
are to be regarded as finally adjudicated against the appellant". So also, the
judgment affirmed "must be regarded as free from all error". [25] We reached
this policy construction because nothing in the decision of the Court of
Appeals on this point would suggest that its findings of fact are in any way at
war with those of the trial court. Nor was said affirmance by the Court of
Appeals upon a ground or grounds different from those which were made the
basis of the conclusions of the trial court. [26]
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first
class seat, notwithstanding the fact that seat availability in specific flights is
therein confirmed, then an air passenger is placed in the hollow of the hands
of an airline. What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the
contrary. What if the passenger had a schedule to fulfill? We have long
learned that, as a rule, a written document speaks a uniform language; that
spoken word could be notoriously unreliable. If only to achieve stability in
the relations between passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower courts refused to believe
the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there
are facts upon which the Court of Appeals predicated the finding that
respondent Carrascoso had a first class ticket and was entitled to a first class
seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. [27] We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. [28] Nor do we
subscribe to petitioner's accusation that respondent Carrascoso
"surreptitiously took a first class seat to provoke an issue". [29] And this
because, as petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was told again to
see the Manager". [30] Why, then, was he allowed to take a first class seat in
the plane at Bangkok, if he had no seat? Or, if another had a better right to
the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's
trenchant claim is that Carrascoso's action is planted upon breach of
contract; that to authorize an award for moral damages there must be an
averment of fraud or bad faith; [31] and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the
complaint bearing on this issue are:
"3. That x x x plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting as general
agents for and in behalf of the defendant, under which said contract, plaintiff
was entitled to, as defendant agreed to furnish plaintiff, First Class passage
on defendant's plane during the entire duration of plaintiff's tour of Europe
with Hongkong as starting point up to and until plaintiff's return trip to
Manila, x x x
4. That, during the first two legs of the trip from Hongkong to Saigon and
from Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead
furnished plaintiff only Tourist Class accommodations from Bangkok to
Teheran and/or Casablanca, x x x the plaintiff has been compelled by
defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the
inconvenience and embarrassments brought by defendant's breach of
contract was forced to take a Pan American World Airways plane on his
return trip from Madrid to Manila. [32]
xxxx
2. That likewise, as a result of defendant's failure to furnish First Class
accommodations aforesaid, plaintiff suffered inconveniences,
embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and the like
injury, resulting in moral damages in the amount of P30,000.00." [33]
The foregoing, in our opinion, substantially aver: First, That there was a
contract to furnish plaintiff a first class passage covering, amongst others,
the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third,
That there was bad faith when petitioner's employee compelled Carrascoso
to leave his first class accommodation berth "after he was already seated"
and to take a seat in the tourist class, by reason of which he suffered
inconvenience, embarrassments and humiliations, thereby causing him
mental anguish, serious anxiety, wounded feelings and social humiliation,
resulting in moral damages. It is true that there is no specific mention of the
term bad faith in the complaint. But, the inference of bad faith is there; it
may be drawn from the facts and circumstances set forth therein. [34] The
contract was averred to establish the relation between the parties. But the
stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right at the start of the trial,
respondent's counsel placed petitioner on guard on what Carrascoso
intended to prove: That while sitting in the plane in Bangkok, Carrascoso
was ousted by petitioner's manager who gave his seat to a white man; [35] and
(b) evidence of bad faith in the fulfillment of the contract was presented
without objection on the part of the petitioner. It is, therefore, unnecessary
to inquire as to whether or not there is sufficient averment in the complaint
to justify an award for moral damages. Deficiency in the complaint, if any,
was cured by the evidence. An amendment thereof to conform to the
evidence is not even required. [36] On the question of bad faith, the Court of
Appeals declared:
"That the plaintiff was forced out of his seat in the first class compartment of
the plane belonging to the defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his consent but against his
will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:
'First-class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene', *** and by the testimony of an eye-
witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane
who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of
defendant ever contradicted or denied this evidence for the plaintiff. It could
have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his deposition; but defendant did
neither. [37]
The Court of Appeals further stated -
"Neither is there evidence as to whether or not a prior reservation was made
by the white man. Hence, if the employees of the defendant at Bangkok sold
a first-class ticket to him when all the seats had already been taken, surely
the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being
ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who was then
safely ensconsced in his rightful seat. We are strengthened in our belief that
this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the
letters 'O.K.' appearing on the tickets of plaintiff, said 'that the space is
confirmed' for first class. Likewise, Zenaida Faustino, another witness for
defendant, who was the chief of the Reservation Office of defendant, testified
as follows:
'Q. How does the person in the ticket-issuing office know what reservation
the passenger has arranged with you?
A. They call us up by phone and ask for the confirmation,' (t.s.n., p. 247, June
19, 1959)
In this connection, we quote with approval what the trial Judge has said on
this point:
'Why did the, using the words of the witness Ernesto G. Cuento, 'white man'
have a 'better right' to the seat occupied by Mr. Carrascoso? The record is
silent. The defendant airline did not prove 'any better', nay, any right on the
part of the 'white man' to the 'First class' seat that the plaintiff was occupying
and for which he paid and was issued a corresponding 'first class' ticket.
'If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so;
the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par. (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but threatened the plaintiff
to throw him out of the plane if he did not give up his 'first class' seat because
the said Manager wanted to accommodate, using the words of the witness
Ernesto G. Cuento, the 'white man'" [38]
It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the
recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give way
to another passenger whose right thereto has not been established. Certainly,
this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of
mind affirmatively operating with furtive design or with some motive of self-
interest or ill will or for ulterior purpose." [39]
And if the foregoing were not yet sufficient, there is the express finding of bad
faith in the judgment of the Court of First Instance, thus:
"The evidence shows that defendant violated its contract of transportation
with plaintiff in bad faith, with the aggravating circumstances that
defendant's Manager in Bangkok went to the extent of threatening the
plaintiff in the presence of many passengers to have him thrown out of the
airplane to give the 'first class' seat that he was occupying to, again using the
words of the witness Ernesto G. Cuento, a 'white man' whom he (defendant's
Manager) wished to accommodate, and the defendant has not proven that
this 'white man' had any 'better right' to occupy the 'first class' seat that the
plaintiff was occupying, duly paid for, and for which the corresponding 'first
class' ticket was issued by the defendant to him." [40]
5. The responsibility of an employer for the tortious act of its employees need
not be essayed. It is well settled in law. [41] For the willful malevolent act of
petitioner's manager, petitioner, his employer, must answer. Article 21 of the
Civil Code says:
"ART. 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage."
In parallel circumstances, we applied the foregoing legal precept; and, we
held that upon the provisions of Article 2219 (10), Civil Code, moral damages
are recoverable. [42]
6. A contract to transport passengers is quite different in kind and degree
from any other contractual relation. [43] And this, because of the relation
which an air-carrier sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the comforts and advantages it
offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be
treated by the carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against personal
misconduct, injurious language, indignities and abuses from such
employees. So it is, that any rude or discourteous conduct on the part of
employees towards a passenger gives the latter an action for damages against
the carrier. [44]
Thus, "Where a steamship company [45] had accepted a passenger's check, it
was a breach of contract and a tort, giving a right of action for its agent in the
presence of third persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the language used was
not insulting and she was not ejected. [46] And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort". [47] And in
another case, "Where a passenger on a railroad train, when the conductor
came to collect his fare, tendered him the cash fare to a point where the train
was scheduled not to stop, and told him that as soon as the train reached
such point he would pay the cash fare from that point to destination, there
was nothing in the conduct of the passenger which justified the conductor in
using insulting language to him, as by calling him a lunatic," and the
Supreme Court of South Carolina there held the carrier liable for the mental
suffering of said passenger. [48]
Petitioner's contract with Carrascoso is one attended with public duty. The
stress of Carrascoso's action as we have said, is placed upon his wrongful
expulsion. This is a violation of public duty by the petitioner-air carrier - a
case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
-
"Q. You mentioned about an attendant. Who is that attendant and purser?
A. When we left already - that was already in the trip - I could not help it. So
one of the flight attendants approached me and requested from me my ticket
and I said, What for? and she said, 'We will note that you were transferred to
the tourist class'. I said, 'Nothing of that kind. That is tantamount to
accepting my transfer.' And I also said, 'You are not going to note anything
there because I am protesting to this transfer'.
Q. Was she able to note it?
A. No, because I did not give my ticket.
Q. About that purser?
A. Well, the seats there are so close that you feel uncomfortable and you don't
have enough leg room, I stood up and I went to the pantry that was next to
me and the purser was there. He told me, 'I have recorded the incident in my
notebook.' He read it and translated it to me - because it was recorded in
French - 'First class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene.'
MR. VALTE -
I move to strike out the last part of the testimony of the witness because the
best evidence would be the notes. Your Honor.
COURT -
I will allow that as part of his testimony." [49]
Petitioner charges that the finding of the Court of Appeals that the purser
made an entry in his notebook reading "First class passenger was forced to
go to the tourist class against his will, and that the captain refused to
intervene" is predicated upon evidence [Carrascoso's testimony above]
which is incompetent. We do not think so. The subject of inquiry is not the
entry, but the ouster incident. Testimony on the entry does not come within
the proscription of the best evidence rule. Such testimony is admissible.
[49A]
Besides, from a reading of the transcript just quoted, when the dialogue
happened, the impact of the startling occurrence was still fresh and
continued to be felt. The excitement had not as yet died down. Statements
then, in this environment, are admissible as part of theres gestae. [50] For,
they grow "out of the nervous excitement and mental and physical condition
of the declarant". [51] The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. [52] It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an
employee of petitioner. It would have been an easy matter for petitioner to
have contradicted Carrascoso's testimony. If it were really true that no such
entry was made, the deposition of the purser could have cleared up the
matter.
We, therefore, hold that the transcribed testimony of Carrascoso is
admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court
ample power to grant exemplary damages - in contracts and quasi-contracts.
The only condition is that defendant should have "acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner". [53] The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal
precept. And this, in addition to moral damages. [54]
9. The right to attorneys' fees is fully established. The grant of exemplary
damages justifies a similar judgment for attorneys' fees. The least that can be
said is that the courts below felt that it is but just and equitable that attorneys'
fees be given. [55] We do not intend to break faith with the tradition that
discretion well exercised - as it was here - should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court
and the Court of Appeals, thus: P25,000.00, as moral damages; P10,000.00,
by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of
fixing these amounts is primarily with the trial court. [56] The Court of
Appeals did not interfere with the same. The dictates of good sense suggest
that we give our imprimatur thereto. Because, the facts and circumstances
point to the reasonableness thereof. [57]
On balance, we say that the judgment of the Court of Appeals does not suffer
from reversible error. We accordingly vote to affirm the same. Costs against
petitioner.
 PHIL. SCHOOL OF BUSINESS AD V CA

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the
second-floor premises of the Philippine School of Business Administration (PSBA) prompted the
parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47) presided over
by Judge (now Court of Appeals justice) Regina Ordoñez-Benitez, for damages against the said
PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year
commerce course at the PSBA. It was established that his assailants were not members of the
school's academic community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim
(President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col.
Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially, the
plaintiffs (now private respondents) sought to adjudge them liable for the victim's untimely demise
due to their alleged negligence, recklessness and lack of security precautions, means and methods
before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano
terminated his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are
presumably sued under Article 2180 of the Civil Code, the complaint states no cause of action
against them, as jurisprudence on the subject is to the effect that academic institutions, such as the
PSBA, are beyond the ambit of the rule in the afore-stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8
December 1987, denied their motion to dismiss. A subsequent motion for reconsideration was
similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's
disposition before the respondent appellate court which, in a decision * promulgated on 10 June
1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court resolved
to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision
on the law of quasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent
portions of the appellate court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old
Spanish Civil Code. The comments of Manresa and learned authorities on its
meaning should give way to present day changes. The law is not fixed and flexible
(sic); it must be dynamic. In fact, the greatest value and significance of law as a rule
of conduct in (sic) its flexibility to adopt to changing social conditions and its capacity
to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be
construed in its narrow concept as held in the old case of Exconde
vs. Capuno 2 and Mercado vs. Court of Appeals; 3hence, the ruling in
the Palisoc 4 case that it should apply to all kinds of educational institutions,
academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless
they relieve themselves of such liability pursuant to the last paragraph of Article 2180
by "proving that they observed all the diligence to prevent damage." This can only be
done at a trial on the merits of the case. 5
While we agree with the respondent appellate court that the motion to dismiss the complaint was
correctly denied and the complaint should be tried on the merits, we do not however agree with the
premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco
parentis. This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza,
Palisoc and, more recently, in Amadora vs.Court of Appeals. 6 In all such cases, it had been stressed
that the law (Article 2180) plainly provides that the damage should have been caused or inflicted
by pupils or students of he educational institution sought to be held liable for the acts of its pupils or
students while in its custody. However, this material situation does not exist in the present case for,
as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the
school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of
the petitioners from liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established

a contract between them, resulting in bilateral obligations which both parties are bound to comply
with. 7 For its part, the school undertakes to provide the student with an education that would
presumably suffice to equip him with the necessary tools and skills to pursue higher education or a
profession. On the other hand, the student covenants to abide by the school's academic
requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students
with an atmosphere that promotes or assists in attaining its primary undertaking of imparting
knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or
explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the
air or where there looms around the school premises a constant threat to life and limb. Necessarily,
the school must ensure that adequate steps are taken to maintain peace and order within the
campus premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and
Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations
arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract,
whether express or implied. However, this impression has not prevented this Court from determining the existence of a tort even when there
obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded damages for his unwarranted expulsion
from a first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's liability as one arising
from tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there
is a contract, for the act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar
mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual

obligation, comprising, as it does, the whole extent of juridical human relations.
These two fields, figuratively speaking, concentric; that is to say, the mere fact that a
person is bound to another by contract does not relieve him from extra-contractual
liability to such person. When such a contractual relation exists the obligor may break
the contract under such conditions that the same act which constitutes a breach of
the contract would have constituted the source of an extra-contractual obligation had
no contract existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly
Article 21, which provides:
 Any person who wilfully causes loss or injury to another in a manner that is contrary
to morals, good custom or public policy shall compensate the latter for the damage.
(emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to
forcibly oust the private respondent to cater to the comfort of a white man who allegedly "had a
better right to the seat." In Austro-American, supra, the public embarrassment caused to the
passenger was the justification for the Circuit Court of Appeals, (Second Circuit), to award damages
to the latter. From the foregoing, it can be concluded that should the act which breaches a contract
be done in bad faith and be violative of Article 21, then there is a cause to view the act as
constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the
contract between the school and Bautista had been breached thru the former's negligence in
providing proper security measures. This would be for the trial court to determine. And, even if there
be a finding of negligence, the same could give rise generally to a breach of contractual obligation
only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a
contract. In fact, that negligence becomes material only because of the contractual relation between
PSBA and Bautista. In other words, a contractual relation is a condition sine qua non to the school's
liability. The negligence of the school cannot exist independently of the contract, unless the
negligence occurs under the circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-
mentioned, for conceptually a school, like a common carrier, cannot be an insurer of its students
against all risks. This is specially true in the populous student communities of the so-called
"university belt" in Manila where there have been reported several incidents ranging from gang wars
to other forms of hooliganism. It would not be equitable to expect of schools to anticipate all types of
violent trespass upon their premises, for notwithstanding the security measures installed, the same
may still fail against an individual or group determined to carry out a nefarious deed inside school
premises and environs. Should this be the case, the school may still avoid liability by proving that the
breach of its contractual obligation to the students was not due to its negligence, here statutorily
defined to be the omission of that degree of diligence which is required by the nature of the
obligation and corresponding to the circumstances of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents'
complaint, the record is bereft of all the material facts. Obviously, at this stage, only the trial court
can make such a determination from the evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC,
Manila, Br. 47) is hereby ordered to continue proceedings consistent with this ruling of the Court.
Costs against the petitioners.

SO ORDERED.
 MANILA RAILROAD V LA COMPANIA
In March, 1914, the steamship Alicante, belonging to the Compañia
Trasatlantica de Barcelona, arrived at Manila with two locomotive boilers
aboard, the property of The Manila Railroad Company. The equipment of
the ship for discharging heavy cargo was not sufficiently strong to handle
these boilers, and it was therefore necessary for the Steamship Company to
procure assistance in the port of Manila.
The Atlantic, Gulf and Pacific Company (hereafter called the Atlantic
Company) was accordingly employed by the Steamship Company, as having
probably the best equipment for this purpose of any contracting company in
the city. The service to be performed by the Atlantic Company consisted in
bringing its floating crane alongside the Alicante, lifting the boilers out of the
ship's hold, and transferring them to a barge which would be placed ready to
receive them.
Upon the arrival of the Alicante, the Atlantic Company sent out its crane in
charge of one Leyden. In preparing to hoist the first boiler the sling was
unfortunately adjusted near the middle of the boiler, and it was thus raised
nearly in an horizontal position. The boiler was too long to clear the hatch in
this position, and after one end of the boiler had emerged on one side of the
hatch, the other still remained below on the other side. When the boiler had
been gotten into this position and was being hoisted still further, a rivet near
the head of the boiler was caught under the edge of the hatch. The weight on
the crane was thus increased by a strain estimated at fifteen tons with the
result that the cable of the sling parted and the boiler fell to the bottom of the
ship's hold. The sling was again id justed to the boiler but instead of being
placed near the niddle it was now slung nearer one of the ends, as should lave
been done at first. The boiler was again lifted; but is it was being brought up,
the bolt at the end of the lerrick boom broke, and again the boiler fell.
The crane was repaired and the boiler discharged, but t was found to be so
badly damaged that it had to be rehipped to England where it was rebuilt,
and afterwards vas returned to Manila. The Railroad Company's damage by
reason of the cost of repairs, expenses, and loss of he use of the boiler proved
to be P22,343.29; and as to the amount of the damage so resulting there is
practically io dispute. To recover these damages the present action was
instituted by the Railroad Company against the Steamship Company. The
latter caused the Atlantic Company to be brought in as a codefendant, and
insisted that whatever liability existed should be fixed upon the Atlantic
Company as an independent contractor who had underaken to discharge the
boilers and had become responsible or such damage as had been done.
The judge of the Court of First Instance gave judgment in favor of the plaintiff
against the Atlantic Company, but absolved the Steamship Company from
the complaint. The plaintiff has appealed from the action of the court in
failing to give judgment against the Steamship Company, while the Atlantic
Company has appealed from the judgment against it.
The mishap was undoubtedly due, as the lower court found, to the negligence
of one Leyden, the foreman in charge; and we may add that the evidence
tends to show that his negligence was of a type which may without
exaggeration be denominated gross. The sling was in the first place
improperly adjusted, and the attention of Leyden was at once called to this
by the man in charge of the stevedores. Nevertheless he proceeded and,
instead of lowering the boiler when it was seen that it could not readily pass
through the hatch, he attempted to force it through; and the ship's tackle was
brought into use to assist in this maneuver. The second fall was, it appears,
caused by the weakening of the bolt at the head of the derrick boom, due to
the shock incident to the first accident. This defect was possibly such as not
to be patent to external observation but we are of the opinion that a person
of sufficient skill to be trusted with the operation of machinery of this
character should have known that the crane had possibly been weakr ened
by the jar received in the first accident. The foreman was therefore guilty of
negligence in attempting to hoist the boiler the second time under the
conditions that had thus developed. It should be noted that the operation
was at all its stages entirely under Leyden's control; and, although in the first
lift he utilized the ship's tackle to aid in hoisting the boiler, everything was
done under his immediate supervision. There is no evidence tending to show
that the first fall of the boiler might hatfe been due to any hidden defect in
the lifting apparatus; and if it had not been for the additional strain caused
by one end of the boiler catching under the hatch, the operation would
doubtless have been accomplished without difficulty. The accident is
therefore to be attributed to the failure of Leyden to exercise the degree of
care which an ordinarily competent and prudent person would have
exhibited under the circumstances which then confronted him. This
conclusion of fact cannot be refuted; and, indeed, no attempt is here made
by the appellant to reverse this finding of the trial court.
Three questions are involved in the case, namely: (1) Is the Steamship
Company liable to the plaintiff by reason of having delivered the boiler in
question in a damaged condition? (2) Is the Atlantic Company liable to be
made to respond to the steamship company for the amount the latter may be
required to pay to the plaintiff for the damage done? (3) Is the Atlantic
Company directly liable to the plaintiff, as the trial court held?
It will be observed that a contractual relation existed between the Railroad
Company and the Steamship Company; and the duties of the latter with
respect to the carrying and delivery of the boilers are to be discovered by
considering the terms and legal effect of that contract. A contractual relation
also existed between the Steamship Company and the Atlantic Company; and
the duties owing by the latter to the former with respect to the lifting and the
transferring of the boilers are likewise to be discovered by considering the
terms and legal effect of the contract between these parties. On the other
hand, no contractual relation existed directly between the Railroad Company
and the Atlantic Company.
We are all agreed, that, under the contract for transportation from England
to Manila, the Steamship Company is liable to the plaintiff for the injury done
to the boiler while it was being discharged from the ship. The obligation to
transport the boiler necessarily involves the duty to convey and deliver it in
a proper condition according to its nature, and conformably with good faith,
custom, and the law (art. 1258, Civ. Code). The contract to convey imports
the duty to convey and deliver safely and securely with reference to the
degree of care which, under the circumstances, are required by law and
custom applicable to the case. The duty to carry and to carry safely is all one.
Such being the contract of the Steamship Company, said company is
necessarily liable, under articles 1103 and 1104 of the Civil Code, for the
consequences of the omission of the care necessary to the proper
performance of its obligation. The contract to transport and deliver at the
port of Manila a locomotive boiler, which was received by it in proper
condition, is not complied with by delivery at the port of destination of a
mass of iron the utility of which had been destroyed.
Nor does the Steamship Company escape liability by reason of the fact that
it employed a competent independent contractor to discharge the boilers.
The law applicable to this feature of the case will be more fully discussed
further on in this opinion. At this point we merely observe that in the
performance of this service the Atlantic Company was no more than a servant
or employee of the Steamship Company, and it has never yet been held that
the failure to comply with a contractual obligation can be excused by showing
that such delinquency was due to the negligence of one to whom the
contracting party had committed the performance of the contract.
Coming to the question of the liability of the Atlantic Company to respond to
the Steamship Company for the damages which the latter will be compelled
to pay to the plaintiff, we observe that the defense of the Atlantic Company
comprises two contentions, to-wit, first, that by the terms of the engagement
in accordance with which the Atlantic Company agreed to render the service,
all risk incident to the discharge of the boilers was assumed by the Steamship
Company; and secondly, that the Atlantic Company should be absolved
under the last paragraph of article 1903 of the Civil Code, inasmuch as it had
used due care in the selection of the employee whose negligent act caused the
damage in question.
At the hearing in first instance the Atlantic Company introduced four
witnesses to prove that at the time said company agreed to lift the boilers out
of the Alicante, as upon other later occasions, the Steamship Company was
notified that the service would only be rendered upon the distinct
understanding that the Atlantic Company would not be responsible for
damage. In this connection the president of the company testified that he
stipulated that the company would assume no responsibility for any damage
which might be done to the lifts or to the steamer or to its contents or to
individuals during the progress of making these lifts, from any source
whatever in connection with the breaking of the lifting equipment. The vice-
president of the Atlantic Company testified that he was present upon the
occasion when the agent .of the Steamship Company made arrangements for
the discharge of the boilers and he heard the conversation between the
president and said agent. According to this witness the substance of the
agreement was that, while the Atlantic Company would use all due care in
getting the boilers out, no responsibility was assumed for damage done
either to ship or cargo. The intermediary who acted as agent for the
Steamship Company in arranging for the performance of this service stoutly
denied that any such terms were announced by the officials or anybody else
connected with the Atlantic Company at any time while the arrangements
were pending.
In the conflict of the evidence, we recognize that, by a preponderance of the
evidence, some reservation or other was made as to tlie responsibility of the
Atlantic Company; and though the agent who acted on behalf of the
Steamship Company possibly never communicated this reservation to his
principal, the latter should nevertheless be held bound thereby. It thus
becomes necessary to discover what the exact terms of this supposed
reservation were.
We think that we must put aside at once the words of studied precision with
which the president of the Atlantic Company would exclude the possibility of
any liability attaching to his company, though we may accept his statement
as showing that the excepted risk contemplated breakage of the lifting
equipment. There is undoubtedly a larger element of truth in the more
reasonable statement by the vice-president of the company. According to this
witness the contract combined two features, namely, an undertaking on the
part of the Atlantic Company to use all due care, combined with a reservation
concerning the company's liability for damage.
The Atlantic Company offered in evidence a. number of letters which had
been written by it at different times, extending over a period of years, in
response to inquiries made by other firms and persons in Manila concerning
the terms upon which the Atlantic Company would make heavy lifts. These
letters tend to show that the Atlantic Company was not accustomed to
assume the risk incident to such work and required the parties for whom the
service might be rendered either to carry the risk or insure against it. One
such letter, dated nearly four years prior to the occurrence which gave rise to
this lawsuit, was addressed to the Compañia Trasatlantica de Barcelonaone
of the defendants in this case. It was stated in this communication that the
company's derrick would be subject to inspection prior to making the lift but
that the Atlantic Company would not assume responsibility for any damage
that might occur either to ship or cargo from any cause whatsoever. The
Steamship Company rejected the services of the Atlantic Company in that
instance as being too onerous.
The letters directed to third parties, it may be observed, would not, generally
speaking, be admissible as against the plaintiff for the purpose of proving
that a similar reservation was inserted in the contract with it on this
occasion; but if knowledge of such custom is brought home to the Steamship
Company, the fact that such reservation was commonly made is of some
probative force. Reference to a number of these letters will show that no
particular formula was used by the Atlantic Company in defining its
exemption, and the tenor of these various communications differs
materially. We think, however, that some of the letters are of value as an aid
in interpreting the reservation which the Atlantic Company may have
intended to make. We therefore quote from some of these letters as follows:
"We will use our best endeavors to carry out the work successfully and will
ask you to inspect our plant but we wish it distinctly understood that we
cannot assume responsibility for damage which may occur * * * while the lift
is being made." (To Rear Admiral, U. S. N., Oct. 4, 1909.)
"Our quotation is based on the understanding that we assume no
responsibility whatever from any accident which may happen during our
operations. We always insert this clause as a precautionary measure, but we
have never had to avail ourselves of it as yet and do not expect to now." (To
"El Varadero de Manila," Nov. 1, 1913.)
"As is customary in these cases, we will use all precautions necessary to
handle the gun in a proper manner. Our equipment has been tested and will
be again, before making the lift, but we do not assume any responsibility for
damage to the gun ship, or cargo." (To Warner, Barnes & Co., June 7, 1909.)
The idea expressed in these letters is, we think, entirely consonant with the
interpretation which the vice-president of the company placed upon the
contract which was made with the Steamship Company upon this occasion,
that is, the company recognized its duty to exercise due supervisory care; and
the exemption from liability, whatever may have been its precise words, had
reference to disasters which might result from some inherent hidden defect
in the lifting apparatus or other unforeseen occurrence not directly
attributable to negligence of the company in the lifting operations. Neither
party could have supposed for a moment that it was intended to absolve the
Atlantic Company from its duty to use due care in the work.
It is not pretended that negligence on the part of the Atlantic Company or its
employees was expressly included in the excepted risk, and we are of the
opinion that the contract should not be understood as covering such an
exemption. It is a rudimentary principle that the contractor is responsible for
the work executed by persons whom he employs in its performance, and this
is expressed in the Civil Code in the form of a positive rule of law (art. 1596).
It is also expressly declared by law that liability arising from negligence is
demandable in the fulfillment of all kinds of obligations (art. 1103, Civil
Code). Every contract for the prestation of service therefore has annexed to
it, as an inseparable implicit obligation, the. duty to exercise due care in the
accomplishment of the work; and no reservation whereby the person
rendering the services seeks to escape from the consequences of a violation
of this obligation can be viewed with favor.
"Contracts against liability for negligence are not favored by the law. In some
instances, such as common carriers, they are prohibited as against public
policy. In all cases such contracts should be construed strictly, with every
intendment against the party seeking its protection." (Crew vs. Bradstreet
Company, 134 Pa. St., 161; 7 L. R. A., 661; 19 Am. St. Rep., 681.)
The strictness with which contracts conferring such an unusual exemption
are construed is illustrated in Bryan vs. Eastern & Australian S. S. Co. (28
Phil. Rep., 310). The decision in that case is not precisely applicable to the
case at bar, since the court was there applying the law of a foreign
jurisdiction, and the question at issue involved a doctrine peculiar to
contracts of common carriers. Nevertheless the case is instructive as
illustrating the universal attitude of courts upon the right of a contracting
party to stipulate against the consequences of his own negligence. It there
appeared that the plaintiff had purchased from the defendant company a
ticket for the transportation of himself and baggage from Hongkong to
Manila. By the terms of the contract printed in legible type upon the back of
the ticket it was provided that the company would not hold itself responsible
for any loss or damage to luggage, under any circumstances whatsoever,
unless it had been paid for as freight. It was held that this limitation upon
the liability of the defendant company did not relieve it from liability for
negligence of its servants by which the baggage of the passenger was lost.
Said the court: "Ordinarily this language would seem to be broad enough to
cover every possible contingency, including the negligent act of the
defendant's servants. To so hold, however, would run counter to the
established law of England and the United States on that subject. The court
then quoted the following proposition from the decision of the King's Bench
Division in Price & Co. vs. Union Lighterage Co. ([1903], 1 K. B. D., 750, 754)
:
" 'An exemption in general words not expressly relating to negligence, even
though the words are wide enough to include loss by negligence or default of
carriers' servants, must be construed as limiting the liability of the carrier as
assurer, and not as relieving him from the duty of exercising reasonable skill
and care.' "
Even admitting that, generally speaking, a person may stipulate against
liability for the consequences of negligence, at least in those cases where the
negligence is not gross or wilful, the contract conferring such exemption
must be so clear as to leave no room for the operation of the ordinary rules
of liability consecrated by experience and sanctioned by the express
provisions of law.
If the exemption should be understood in the sense which counsel for the
Atlantic Company now insists it should bear, that is, as an absolute
exemption from all responsibility for negligence, it is evident that the
agreement was a most inequitable and unfair one, and hence it is one that
the Steamship Company can not be lightly assumed to have made.
Understood in that sense it is the equivalent of licensing the Atlantic
Company to perform its tasks in any manner and fashion that it might please,
and to hold it harmless from the consequences.
It is true that, in these days, insurance can usually be obtained in the
principal ports of commerce by parties circumstanced as was the steamship
company in the case now before us. But the best insurance against disasters
of this kind is found in the exercise of due care; and the chief incentive to the
exercise of care is a feeling of responsibility on the part of him who
undertakes the work. Naturally the courts are little inclined to aid in the
efforts of contractors to evade this responsibility.
There may have been in the minds of the officials of the Atlantic Company an
idea that the promise to use due care in the lifting operations was not
accompanied by a legal obligation, such promise being intended merely for
its moral effect as an assurance to the steamship company that the latter
might rely upon the competence and diligence of the employees of the
Atlantic Company to accomplish the work in a proper way. The contract can
not be permitted to operate in this onesided manner. The two features of the
engagement, namely, the promise to use due care and the exemption from
liability for damage should be so construed as to give some legal effect to
both. The result is, as already indicated, that the Atlantic Company was
bound by its undertaking to use due care and that the exemption was
intended to cover accidents due to hidden defects in the apparatus or other
unforeseeable occurrences not having their origin in the immediate personal
negligence of the party in charge of the operations.
We now proceed to consider the contention that the Atlantic Company
should be absolved from liability to the Steamship Company under the last
paragraph of article 1903 of the Civil Code, which declares that the liability
there referred to shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the
damage. In this connection the conclusion of fact must be conceded in favor
of the Atlantic Company that it had used proper care in the selection of
Leyden and that, so far as the company was aware, he was a person to whom
might properly be committed the task of discharging the boilers. The answer
to the contention, however, is that the obligation of the Atlantic Company
was created by contract, and article 1903 is not applicable to negligence
arising in the course of the performance of a contractual obligation. Article
1903 is exclusively concerned with cases where the negligence arises in the
absence of agreement.
In discussing the liability of the Steamship Company to the plaintiff Railroad
Company we have already shown that a party is bound to the full
performance of his contractual engagements under articles 1101 et seq. of the
Civil Code, and other special provisions of the Code relative to contractual
obligations; and if he falls short of complete performance by reason of his
own negligence or that of any person to whom he may commit the work, he
is liable for the damages resulting therefrom. What was there said is also
applicable with reference to the liability of the Atlantic Company upon its
contract with the Steamship Company, and the same need not be here
repeated. It is desirable, however, in this connection, to bring out somewhat
more fully the distinction between negligence in the performance of a
contractual obligation (culpa contractual) and negligence considered as an
independent source of obligation between parties not previously bound
(culpa aquiliana).
This distinction is well established in legal jurisprudence and is fully
recognized in the provisions of the Civil Code. As illustrative of this, we quote
the following passage from the opinion of this Court in the well-known case
of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil. Rep., 359, 365), and in this
quotation we reproduce the first paragraph of the passage from Manresa
chiefly for the purpose of here presenting a more correct English version of
said passage.
"The acts to which these articles are applicable are understood to be those
not growing out of preexisting duties of the parties to one another. But where
relations already formed give rise to duties, whether springing from contract
or quasi contract, then breaches of those duties are subject to articles 1101,
1103, and 1104 of the same code. A typical application of this distinction may
be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liabilty to his employee would arise
out of the contract of employment, that to the passengers out of the contract
for passage, while that to the injured by-stander would originate in the
negligent act itself. This distinction is thus clearly set forth by Manresa in his
commentary on article 1093:
" 'We see with reference to such obligations, that culpa, or negligence, may
be understood in two different senses, either
as culpa, substantive and independent, which of itself constitutes the source
of an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation which
already existed, which can not be presumed to exist without the other, and
which increases the liability arising from the already existing obligation.1"
Justice Tracey, the author of the opinion from which we have quoted,
proceeds to observe that Manresa, in commenting on articles 1102 and 1104,
has described these two species of negligence as contractual and extra-
contractual, the latter being the culpa aquiliana of the Roman law. "This
terminology is unreservedly accepted by Sanchez Roman (Derecho Civil,
fourth section, chapter XI, article II, No. 12), and the principle stated is
supported by decisions of the supreme court of Spain, among them those of
November 20, 1896 (80Jurisprudencia Civil, No. 151), and June 27, 1894
(75 Jurisprudencia Civil, No. 182.)"
The principle that negligence in the performance of a contract is not
governed by article 1903 of the Civil Code but rather by article 1104 of the
same Code was directly applied by this court in the case of Baer Senior &
Co.'s Successors vs. Compañia Maritima (6 Phil. Rep., 215); and the same
idea has been impliedly if not expressly recognized in other cases (N. T.
Hashim & Co. vs. Rocha & Co., 18 Phil. Rep., 315; Tan Chiong Sian vs.
Inchausti & Co., 22 Phil. Rep., 152).
What has been said suffices in our opinion to demonstrate that the Atlantic
Company is liable to the Steamship Company for the damages brought upon
the latter by the failure of the Atlantic Company to use due care in
discharging the boiler, regardless of the fact that the damage was caused by
the negligence of an employee who was qualified for the work and who had
been chosen by the Atlantic Company with due care.
This brings us to the last question here to be answered, which is; Can the
Atlantic Company be held directly liable to the Railroad Company? In other
words, can the judgment entered in the trial court directly in favor of the
plaintiff against the Atlantic Company be sustained? To answer this it is
necessary to examine carefully the legal relations existing between the
Atlantic Company and the Railroad Company with reference to this affair;
and we shall for a moment ignore the existence of the contract between the
Steamship Company and the Atlantic Company, to which the railroad
company was not a party.
Having regard then to the bare fact that the Atlantic Company undertook to
remove the boiler from the ship's hold and for this purpose took the property
into its power and control, there arose a duty to the owner to use due care in
the performance of that service and to avoid damaging the property in the
course of such operation. This duty was obviously in existence before the
negligent act was done which resulted in damage, and said negligent act may,
if we still ignore the existence of the express contract, be considered as an act
done in violation of this duty.
The duty thus to use due care is an implied obligation, of a quasi contractual
nature, since it is created by implication of law in the absence of express
agreement. The conception of liability with which we are here confronted is
somewhat similar to that which is revealed in the case of the depositary, or
commodatary, whose legal duty with respect to the property committed to
their care is defined by law even in the absence of express contract; and it
can not be doubted that a person who takes possession of the property of
another for the purpose of moving or conveying it from one place to another,
or for the purpose of performing any other service in connection therewith
(locatio operis faciendi), owes to the owner a positive duty to refrain from
damaging it, to the same extent as if an agreement for the performance of
such service had been expressly made with the owner. The obligation here is
really a species of contract re, and it has its source and explanation in the
vital fact that the active party has taken upon himself to do something with
or to the property and has taken it into his power and control for the purpose
of performing such service. (Compare art. 1889, Civil Code.)
In the passage which we have already quoted from the decision in the Rakes
case this Court recognized the fact that the violation of a quasi contractual
duty is subject to articles 1101, 1103, and 1104 of the Civil Code and not within
the purview of article 1903. Manresa also, in the paragraph reproduced
above, is of the opinion that negligence, considered as a substantive and
independent source of liability, does not include cases where the parties are
previously bound by any other obligation. Again, it is instructive in this
connection to refer to the contents of article 1103 of the Civil Code, where it
is declared that the liability proceeding from negligence is demandable in the
fulfillment of all kinds of obligations. These words evidently comprehend
both forms of positive obligations, whether arising from express contract or
from implied contract (quasi contract).
In this connection it is instructive to recall the celebrated case of Coggs vs.
Bernard (2 Ld. Raym, 909), decided in the court of the King's Bench of
England in the year 1703. The action was brought by the owner of certain
casks of brandy to recover damages from a person who had undertaken to
transport them from one place to another. It was alleged that in so doing the
defendant so negligently and improvidently put them down that one of the
casks was staved and the brandy lost. The complaint did not allege that the
defendant was a common carrier or that he was to be paid for his services. It
was therefore considered that the complaint did not state facts sufficient to
support an action for breach of any express contract. This made it necessary
for the court to go back to fundamental principles and to place liability on
the ground of a violation of the legal duty incident to the mere fact of carriage.
Said Powell, J.: "An action indeed will not lie for not doing the thing, for want
of a sufficient consideration ; but yet if the bailee will take the goods into his
custody, he shall be answerable for them; for the taking of the goods into his
custody is his own act." So Gould, J.: "* * * any man that undertakes to carry
goods is liable to an action, be he a common carrier or whatever he is, if
through his neglect they are lost or come to any damage: * * *." Behind these
expressions was an unbroken line of ancient English precedents holding
persons liable for damage inflicted by reason of a misfeasance in carrying out
an undertaking. The principle determined by the court in the case cited is
expressed in the syllabus in these words: "If a man undertakes to carry goods
safely and securely, he is responsible for any damage they may sustain in the
carriage through his neglect, though he was not a common carrier and was
to have nothing for the carriage." Though not stated in so many words, this
decision recognizes that from the mere fact that a person takes the property
of another into his possession and control there arises an obligation in the
nature of an assumpsit that he will use due care with respect thereto. This
must be considered a principle of universal jurisprudence, for it is consonant
with justice and common sense and as we have already seen harmonizes with
the doctrine above deduced from the provisions of the Civil Code.
The conclusion must therefore be that if there had been no contract of any
sort between the Atlantic Company and the Steamship Company, an action,
could have been main tained by the Railroad Company, as owner, against the
Atlantic Company to recover the damages sustained by the former. Such
damages would have been demandable under article 1103 of the Civil Code
and the action would not have been subject to the qualification expressed in
the last paragraph of article 1903.
The circumstance that a contract was made between the Atlantic Company
and the Steamship Company introduces, however, an important, and in our
opinion, controlling factor into this branch of the case. It cannot be denied
that the Steamship Company had possession of this .boiler in the capacity of
carrier and that, as such, it was authorized to make a contract with the
Atlantic Company to discharge the same from the ship. Indeed, it appears in
evidence that even before the contract of affreightment was made the
Railroad Company was informed that it would be necessary for the
Steamship Company to procure the services of some contractor in the port of
Manila to effect the discharge, as the ship's tackle was inadequate to handle
heavy cargo. It is therefore to be assumed that the Railroad Company had in
fact assented to the employment of a contractor to perform this service.
Now, it cannot be admitted that a person who contracts to do a service like
that rendered by the Atlantic Company in this case incurs a double
responsibility upon entering upon performance, namely, a responsibility to
the party with whom he contracted, and another entirely different
responsibility to the owner, based on an implied contract. The two liabilities
can not in our opinion coexist. It is a general rule that an implied contract
never arises where an express contract has been made.
If double responsibility existed in such a case as this, it would result that a
person who had limited his liability by express stipulation might find himself
liable to the owner without regard to the limitation which he had seen fit to
impose by contract. There appears to be no possibility of reconciling the
conflict that would be developed in attempting to give effect to those
inconsistent liabilities. The contract which was in fact made, in our opinion,
determines not only the character and extent of the liability of the Atlantic
Company but also the person or entity by whom the obligation is exigible. It
is of course quite clear that if the Atlantic Company had refused to carry out
its agreement to discharge the cargo, the plaintiff could not have enforced
specific performance and could not have recovered damages for non-
performance. (Art. 1257, Civil Code; Donaldson, Sim & Co. vs. Smith, Bell &
Co., 2 Phil. Rep., 766; Uy Tarn and Uy Yet vs. Leonard, 30 Phil. Rep., 471.)
In view of the preceding discussion it is equally obvious that, for lack of
privity with the contract, the Railroad Company can have no right of action
to recover damages from the Atlantic Company for the wrongful act which
constituted the violation of said contract. The rights of the plaintiff can only
be made effective through the Compania Trasatldntica de Barcelona with
whom the contract of affreightment was made.
The judgment entered in the Court of First Instance must, therefore, be
reversed not only with respect to the judgment entered in favor of the
plaintiff directly against the Atlantic Company but also with respect to the
absolution of the Steamship Company and the further failure of the court to
enter judgment in favor of the latter against the Atlantic Company.
The Compañia Trasatlantica de Barcelonashould be and is hereby adjudged
to pay to the Manila Railroad Company the sum of twenty two thousand
three hundred forty three pesos and twenty nine centavos (P22,343.29), with
interest from May 11, 1914, until paid; and when this judgment is satisfied,
the Compañia Trasatlantica de Barcelona is declared to be entitled to
recover the same amount from the Atlantic Gulf & Pacific Company, against
whom judgment is to this end hereby rendered in favor of the Compañia
Trasatlantica de Barcelona. No express adjudication of costs of either
instance will be made. So ordered.
 LIGHT RAIL TRANSIT V NAVIDAD

The case before the Court is an appeal from the decision and resolution of
the Court of Appeals, promulgated on 27 April 2000 and 10 October 2000,
respectively, in CA-G.R. CV No. 60720, entitled Marjorie Navidad and Heirs of
the Late Nicanor Navidad vs. Rodolfo Roman, et. al., which has modified the
decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from liability and finding Light
Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on
account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven oclock in the evening,
Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing
a token (representing payment of the fare). While Navidad was standing on the
platform near the LRT tracks, Junelito Escartin, the security guard assigned to
the area approached Navidad. A misunderstanding or an altercation between
the two apparently ensued that led to a fist fight. No evidence, however, was
adduced to indicate how the fight started or who, between the two, delivered
the first blow or how Navidad later fell on the LRT tracks. At the exact moment
that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was
coming in. Navidad was struck by the moving train, and he was killed
instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie
Navidad, along with her children, filed a complaint for damages against Junelito
Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro
Transit), and Prudent for the death of her husband. LRTA and Roman filed a
counterclaim against Navidad and a cross-claim against Escartin and
Prudent. Prudent, in its answer, denied liability and averred that it had exercised
due diligence in the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin,
instead of presenting evidence, filed a demurrer contending that Navidad had
failed to prove that Escartin was negligent in his assigned task. On 11 August
1998, the trial court rendered its decision; it adjudged:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the
plaintiffs the following:

a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;

3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;

b) Moral damages of P50,000.00;

c) Attorneys fees of P20,000;

d) Costs of suit.

The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.

The compulsory counterclaim of LRTA and Roman are likewise dismissed. [1]

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate

court promulgated its now assailed decision exonerating Prudent from any
liability for the death of Nicanor Navidad and, instead, holding the LRTA and
Roman jointly and severally liable thusly:

WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants

from any liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and
the Light Rail Transit Authority (LRTA) are held liable for his death and are hereby directed to
pay jointly and severally to the plaintiffs-appellees, the following amounts:

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the death of the deceased; and

e) P20,000.00 as and for attorneys fees. [2]

The appellate court ratiocinated that while the deceased might not have
then as yet boarded the train, a contract of carriage theretofore had already
existed when the victim entered the place where passengers were supposed to
be after paying the fare and getting the corresponding token therefor. In
exempting Prudent from liability, the court stressed that there was nothing to
link the security agency to the death of Navidad. It said that Navidad failed to
show that Escartin inflicted fist blows upon the victim and the evidence merely
established the fact of death of Navidad by reason of his having been hit by the
train owned and managed by the LRTA and operated at the time by Roman.The
appellate court faulted petitioners for their failure to present expert evidence to
establish the fact that the application of emergency brakes could not have
stopped the train.
The appellate court denied petitioners motion for reconsideration in its
resolution of 10 October 2000.
 In their present recourse, petitioners recite alleged errors on the part of the
appellate court; viz:
I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE

FINDINGS OF FACTS BY THE TRIAL COURT

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

RODOLFO ROMAN IS AN EMPLOYEE OF LRTA. [3]

Petitioners would contend that the appellate court ignored the evidence and
the factual findings of the trial court by holding them liable on the basis of a
sweeping conclusion that the presumption of negligence on the part of a
common carrier was not overcome. Petitioners would insist that Escartins
assault upon Navidad, which caused the latter to fall on the tracks, was an act
of a stranger that could not have been foreseen or prevented. The LRTA would
add that the appellate courts conclusion on the existence of an employer-
employee relationship between Roman and LRTA lacked basis because
Roman himself had testified being an employee of Metro Transit and not of the
LRTA.
Respondents, supporting the decision of the appellate court, contended that
a contract of carriage was deemed created from the moment Navidad paid the
fare at the LRT station and entered the premises of the latter, entitling Navidad
to all the rights and protection under a contractual relation, and that the
appellate court had correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence imposed upon a common
carrier.
Law and jurisprudence dictate that a common carrier, both from the nature
of its business and for reasons of public policy, is burdened with the duty of
exercising utmost diligence in ensuring the safety of passengers. The Civil
[4]

Code, governing the liability of a common carrier for death of or injury to its
passengers, provides:
Article 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
all the circumstances.

Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755.

Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the formers employees, although such employees may have acted
beyond the scope of their authority or in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carriers
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

The law requires common carriers to carry passengers safely using the
utmost diligence of very cautious persons with due regard for all
circumstances. Such duty of a common carrier to provide safety to its
[5]

passengers so obligates it not only during the course of the trip but for so long
as the passengers are within its premises and where they ought to be in
pursuance to the contract of carriage. The statutory provisions render a
[6]

common carrier liable for death of or injury to passengers (a) through

the negligence or wilful acts of its employees or b) on account of wilful
acts or negligence of other passengers or of strangers if the common
carriers employees through the exercise of due diligence could have
prevented or stopped the act or omission. In case of such death or injury,
[7]

a carrier is presumed to have been at fault or been negligent, and by simple [8]

proof of injury, the passenger is relieved of the duty to still establish the fault or
negligence of the carrier or of its employees and the burden shifts upon the
carrier to prove that the injury is due to an unforeseen event or to force
majeure. In the absence of satisfactory explanation by the carrier on how the
[9]

accident occurred, which petitioners, according to the appellate court, have

failed to show, the presumption would be that it has been at fault, an exception[10]

from the general rule that negligence must be proved. [11]

The foundation of LRTAs liability is the contract of carriage and its obligation
to indemnify the victim arises from the breach of that contract by reason of its
failure to exercise the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety of passengers, a carrier may
choose to hire its own employees or avail itself of the services of an outsider or
an independent firm to undertake the task. In either case, the common carrier
is not relieved of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be
for tort under the provisions of Article 2176 and related provisions, in
[12]

conjunction with Article 2180, of the Civil Code. The premise, however, for the
[13]

employers liability is negligence or fault on the part of the employee. Once such
fault is established, the employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to exercise diligentissimi
patris families in the selection and supervision of its employees. The liability is
primary and can only be negated by showing due diligence in the selection and
supervision of the employee, a factual matter that has not been shown. Absent
such a showing, one might ask further, how then must the liability of the
common carrier, on the one hand, and an independent contractor, on the other
hand, be described? It would be solidary. A contractual obligation can be
breached by tort and when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa aquiliana, Article 2194 of
[14]

the Civil Code can well apply. In fine, a liability for tort may arise even under
[15]

a contract, where tort is that which breaches the contract. Stated differently,
[16]

when an act which constitutes a breach of contract would have itself constituted
the source of a quasi-delictual liability had no contract existed between the
parties, the contract can be said to have been breached by tort, thereby allowing
the rules on tort to apply.
[17]

Regrettably for LRT, as well as perhaps the surviving spouse and heirs of
the late Nicanor Navidad, this Court is concluded by the factual finding of the
Court of Appeals that there is nothing to link (Prudent) to the death of Nicanor
(Navidad), for the reason that the negligence of its employee, Escartin, has not
been duly proven x x x. This finding of the appellate court is not without
substantial justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is
guilty of any culpable act or omission, he must also be absolved from
liability. Needless to say, the contractual tie between the LRT and Navidad is
not itself a juridical relation between the latter and Roman; thus, Roman can be
made liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is
untenable. Nominal damages are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him. It is an established rule that nominal damages cannot co-
[18]

exist with compensatory damages. [19]

WHEREFORE, the assailed decision of the appellate court is AFFIRMED

with MODIFICATION but only in that (a) the award of nominal damages is
DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs.
 QUASI-DELICT V DELICTS/CULPA CONTRACTUAL

BARREDO V GARCIA AND ALMARIO

This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo,
liable in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one
of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days
later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was
convicted and sentenced to an indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the petition that the right to bring a
separate civil action be reserved. The Court of Appeals affirmed the sentence of the lower court in
the criminal case. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939,
brought an action in the Court of First Instance of Manila against Fausto Barredo as the sole
proprietor of the Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of
First Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest from
the date of the complaint. This decision was modified by the Court of Appeals by reducing the
damages to P1,000 with legal interest from the time the action was instituted. It is undisputed that
Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of the
road, and at high speed. As to Barredo's responsibility, the Court of Appeals found:

... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact
it is shown he was careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) — violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:

... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all
the diligence of a good father of a family in the selection and supervision of Pedro Fontanilla
to prevent damages suffered by the respondents. In other words, The Court of Appeals
insists on applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is
found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil
liability arising from a crime as in the case at bar simply because Chapter II of Title 16 of
Book IV of the Civil Code, in the precise words of article 1903 of the Civil Code itself, is
applicable only to "those (obligations) arising from wrongful or negligent acts or commission
not punishable by law.

The gist of the decision of the Court of Appeals is expressed thus:

... We cannot agree to the defendant's contention. The liability sought to be imposed upon
him in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of
 Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of
his negligence in the selection or supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence
being punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary,
according to said Penal code, but Fontanilla has not been sued in a civil action and his property has
not been exhausted. To decide the main issue, we must cut through the tangle that has, in the minds
of many confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code
and fault or negligence under articles 1902-1910 of the Civil Code. This should be done, because
justice may be lost in a labyrinth, unless principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous presentation of the perplexing subject by
renown jurists and we are likewise guided by the decisions of this Court in previous cases as well as
by the solemn clarity of the consideration in several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart
and independent from delict or crime. Upon this principle and on the wording and spirit article 1903
of the Civil Code, the primary and direct responsibility of employers may be safely anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

CIVIL CODE

ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any kind of fault or negligence intervenes.

xxx xxx xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the
provisions of the Penal Code.

ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this
book.

xxx xxx xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault or
negligence shall be liable for the damage so done.

ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for
personal acts and omissions, but also for those of persons for whom another is responsible.

The father and in, case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.
 Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which employed, or
on occasion of the performance of their duties.

The State is subject to the same liability when it acts through a special agent, but not if the
damage shall have been caused by the official upon whom properly devolved the duty of
doing the act performed, in which case the provisions of the next preceding article shall be
applicable.

Finally, teachers or directors of arts trades are liable for any damages caused by their pupils
or apprentices while they are under their custody.

The liability imposed by this article shall cease in case the persons mentioned therein prove
that they are exercised all the diligence of a good father of a family to prevent the damage.

ART. 1904. Any person who pays for damage caused by his employees may recover from
the latter what he may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a
felony is also civilly liable.

ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article
11 of this Code does not include exemption from civil liability, which shall be enforced to the
following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by
any imbecile or insane person, and by a person under nine years of age, or by one over nine
but under fifteen years of age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it appears that there was no
fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt from execution, in accordance
with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may
have received.

The courts shall determine, in their sound discretion, the proportionate amount for which each one
shall be liable.

When the respective shares can not be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing
the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. — In default of persons criminally liable, innkeepers, tavern keepers, and any
other persons or corporation shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses lodging therein, or the person, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in
the next preceding article shall also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

xxx xxx xxx

ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer
the penalty of arresto mayor in its maximum period to prision correccional in its minimum
period; if it would have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium
and maximum periods; if it would have constituted a less serious felony, the penalty
of arresto mayor in its minimum period shall be imposed."

It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough
to cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to
acts or omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code
punishes not only reckless but even simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between the civil liability arising from a crime
and the responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing
damages may produce civil liability arising from a crime under article 100 of the Revised Penal
Code, or create an action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In
fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code;
for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier
que el non fizo a sabiendas en daño al otro, pero acaescio por su culpa."

The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the
five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos
. . . en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this
kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-
0910. This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the damage.

3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a
penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of
fault or negligence intervenes." However, it should be noted that not all violations of the penal law
produce civil responsibility, such as begging in contravention of ordinances, violation of the game
laws, infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental
de Derecho Civil," Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol.
XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a

diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun
casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different
persons. Thus, there is a civil responsibility, properly speaking, which in no case carries with
it any criminal responsibility, and another which is a necessary consequence of the penal
liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte.
An employee of the latter had been prosecuted in a criminal case, in which the company had been
made a party as subsidiarily responsible in civil damages. The employee had been acquitted in the
criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question
asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol.
6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia
menos parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar
los quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda
la accion para demandar el resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de
notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion
causada por delito o falta en los derechos civiles, requiere restituciones, reparaciones o
indemnizaciones, que cual la pena misma atañen al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido
desagravio; pero esta eventual coincidencia de los efectos, no borra la diversidad originaria
de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento
y que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u
omision, causante de daños o perjuicios, en que intervenga culpa o negligencia. Es trivial
que acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin
que la Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al
128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo,
desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en
terminos separados del regimen por ley comun de la culpa que se denomina aquiliana, por
alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene
al caso y es necesaria una de las diferenciaciones que en el tal paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las

responsabilidades civiles, entre los que sean por diversos conceptos culpables del delito o
falta, las hacen extensivas a las empresas y los establecimientos al servicio de los cuales
estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto
de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los
actos y omisiones propios, sino por los de aquellas personas de quienes se debe responder;
personas en la enumeracion de las cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones.
Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de
intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de
la obligacion, ante los tribunales civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos
de proceder, habiendose, por añadidura, abstenido de asistir al juicio criminal la Compañia
del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub judice ante
el Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el
fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose
mas arriba, que tal accion quedaba legitimamente reservada para despues del proceso;
pero al declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la
obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento
permanece incolume, extraña a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that
there should be res judicata with regard to the civil obligation for damages on account of the
losses caused by the collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a crime, because there exists
in the latter, whatever each nature, a culpa surrounded with aggravating aspects which give
rise to penal measures that are more or less severe. The injury caused by a felony or
misdemeanor upon civil rights requires restitutions, reparations, or indemnifications which,
like the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the
office of the prosecuting attorney; and it is clear that if by this means the losses and
damages are repaired, the injured party no longer desires to seek another relief; but this
coincidence of effects does not eliminate the peculiar nature of civil actions to ask for
indemnity.

Such civil actions in the present case (without referring to contractual faults which are not
pertinent and belong to another scope) are derived, according to article 1902 of the Civil
Code, from every act or omission causing losses and damages in which culpa or negligence
intervenes. It is unimportant that such actions are every day filed before the civil courts
without the criminal courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
Code, bearing in mind the spirit and the social and political purposes of that Code, develop
and regulate the matter of civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana, in accordance with
legislative precedent of the Corpus Juris. It would be unwarranted to make a detailed
comparison between the former provisions and that regarding the obligation to indemnify on
account of civil culpa; but it is pertinent and necessary to point out to one of such differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil
responsibilities among those who, for different reasons, are guilty of felony or misdemeanor,
make such civil responsibilities applicable to enterprises and establishments for which the
guilty parties render service, but with subsidiary character, that is to say, according to the
wording of the Penal Code, in default of those who are criminally responsible. In this regard,
the Civil Code does not coincide because article 1903 says: "The obligation imposed by the
next preceding article is demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the persons enumerated are the
subordinates and employees of establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in the
criminal cases because of their subsidiary civil responsibility by reason of the crime, are sued
and sentenced directly and separately with regard to the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive justice
and the civil courts being a true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of procedure, and
inasmuch as the Compaña del Ferrocarril Cantabrico has abstained from taking part in the
criminal case and has reserved the right to exercise its actions, it seems undeniable that the
action for indemnification for the losses and damages caused to it by the collision was
not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it
remained intact when the decision of March 21 was rendered. Even if the verdict had not
been that of acquittal, it has already been shown that such action had been legitimately
reserved till after the criminal prosecution; but because of the declaration of the non-
existence of the felony and the non-existence of the responsibility arising from the crime,
which was the sole subject matter upon which the Tribunal del Jurado had jurisdiction, there
is greater reason for the civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish
Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are
similar to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code
which corresponds to article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for another), without
including the author of the act. The action against the principal is accessory in the sense that
it implies the existence of a prejudicial act committed by the employee, but it is not subsidiary
in the sense that it can not be instituted till after the judgment against the author of the act or
at least, that it is subsidiary to the principal action; the action for responsibility (of the
employer) is in itself a principal action. (Laurent, Principles of French Civil Law, Spanish
translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones

de aquellas personas por las que se debe responder, es subsidiaria? es principal? Para
contestar a esta pregunta es necesario saber, en primer lugar, en que se funda el precepto
legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi parece a
primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno responde de aquellas que le son
imputables. La responsabilidad de que tratamos se impone con ocasion de un delito o culpa,
pero no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de
la negligencia del padre, del tutor, del dueño o director del establecimiento, del maestro, etc.
Cuando cualquiera de las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un daño, la ley presume que el padre, el
tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o evitar el daño.
Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino
en la apariencia; en realidad la responsabilidad se exige por un hecho propio. La idea de
que esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of
those persons for who one is responsible, subsidiary or principal? In order to answer this
question it is necessary to know, in the first place, on what the legal provision is based. Is it
true that there is a responsibility for the fault of another person? It seems so at first sight; but
such assertion would be contrary to justice and to the universal maxim that all faults are
personal, and that everyone is liable for those faults that can be imputed to him. The
responsibility in question is imposed on the occasion of a crime or fault, but not because of
the same, but because of the cuasi-delito, that is to say, the imprudence or negligence of the
father, guardian, proprietor or manager of the establishment, of the teacher, etc. Whenever
anyone of the persons enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the father, guardian,
teacher, etc. have committed an act of negligence in not preventing or avoiding the damage.
It is this fault that is condemned by the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the responsibility exacted is for one's own act.
The idea that such responsibility is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español,"
says in Vol. VII, p. 743:
 Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,
doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas
personas con las que media algun nexo o vinculo, que motiva o razona la responsabilidad.
Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo
1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for his
own faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts
of those persons with whom there is a bond or tie which gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of the penal law, the Penal Code
distinguishes between minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the former is direct (article 19), and
for the latter, subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case of
article 1903, the responsibility should be understood as direct, according to the tenor of that
articles, for precisely it imposes responsibility "for the acts of those persons for whom one
should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles
above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal
institution, independent from the civil responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily and directly responsible for the negligent
acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case,
Ramon Lafuente died as the result of having been run over by a street car owned by the "compañia
Electric Madrileña de Traccion." The conductor was prosecuted in a criminal case but he was
acquitted. Thereupon, the widow filed a civil action against the street car company, paying for
damages in the amount of 15,000 pesetas. The lower court awarded damages; so the company
appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code
because by final judgment the non-existence of fault or negligence had been declared. The Supreme
Court of Spain dismissed the appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que
el Tribunal a quo, al condonar a la compañia Electrica Madrileña al pago del daño causado
con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as
pectos, y como la de lo criminal declrao dentro de los limites de su competencia que el
hecho de que se trata no era constitutivo de delito por no haber mediado descuido o
negligencia graves, lo que no excluye, siendo este el unico fundamento del fallo absolutorio,
el concurso de la culpa o negligencia no califacadas, fuente de obligaciones civiles segun el
articulo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los
Directores de establecimientos o empresas por los daños causados por sus dependientes
en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco
baho este ultimo aspecto y al condenar a la compañia recurrente a la indemnizacion del
daño causado por uno de sus empleados, lejos de infringer los mencionados textos, en
relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente
a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas
minimo el fallo recaido en la causa.
 Considering that the first ground of the appeal is based on the mistaken supposition that the
trial court, in sentencing the Compañia Madrileña to the payment of the damage caused by
the death of Ramon Lafuente Izquierdo, disregards the value and juridical effects of the
sentence of acquittal rendered in the criminal case instituted on account of the same act,
when it is a fact that the two jurisdictions had taken cognizance of the same act in its
different aspects, and as the criminal jurisdiction declared within the limits of its authority that
the act in question did not constitute a felony because there was no grave carelessness or
negligence, and this being the only basis of acquittal, it does no exclude the co-existence of
fault or negligence which is not qualified, and is a source of civil obligations according to
article 1902 of the Civil Code, affecting, in accordance with article 1903, among other
persons, the managers of establishments or enterprises by reason of the damages caused
by employees under certain conditions, it is manifest that the civil jurisdiccion in taking
cognizance of the same act in this latter aspect and in ordering the company, appellant
herein, to pay an indemnity for the damage caused by one of its employees, far from
violating said legal provisions, in relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading attributes which are beyond its own
jurisdiction, and without in any way contradicting the decision in that cause. (Emphasis
supplied.)

It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or with the street car
company. This is precisely what happens in the present case: the driver, Fontanilla, has not been
sued in a civil action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme
Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is not
qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present case, the
taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been held primarily liable for civil damages, and
Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing
Barredo, on his primary responsibility because of his own presumed negligence — which he did not
overcome — under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one
because of the civil liability of the taxi driver arising from the latter's criminal negligence; and,
second, Barredo's primary liability as an employer under article 1903. The plaintiffs were free to
choose which course to take, and they preferred the second remedy. In so doing, they were acting
within their rights. It might be observed in passing, that the plaintiff choose the more expeditious and
effective method of relief, because Fontanilla was either in prison, or had just been released, and
besides, he was probably without property which might be seized in enforcing any judgment against
him for damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable
civilly, notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with
greater reason should Barredo, the employer in the case at bar, be held liable for damages in a civil
suit filed against him because his taxi driver had been convicted. The degree of negligence of the
conductor in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the
former was acquitted in the previous criminal case while the latter was found guilty of criminal
negligence and was sentenced to an indeterminate sentence of one year and one day to two years
of prision correccional.

(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought
against a railroad company for damages because the station agent, employed by the company, had
unjustly and fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme
Court of Spain held that this action was properly under article 1902 of the Civil Code, the court
saying:

Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna
con relacion a las pruebas del pleito: 1.º, que las expediciones facturadas por la compañia
ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan
tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que
llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le originaron daños y
perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de
vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los
pedidos que se le habian hecho por los remitentes en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que
integran este recurso, porque la demanda inicial del pleito a que se contrae no contiene
accion que nazca del incumplimiento del contrato de transporte, toda vez que no se funda
en el retraso de la llegada de las mercancias ni de ningun otro vinculo contractual entre las
partes contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de
Comercio, en que principalmente descansa el fallo recurrido, sino que se limita a pedir la
reparaction de los daños y perjuicios producidos en el patrimonio del actor por la
injustificada y dolosa negativa del porteador a la entrega de las mercancias a su nombre
consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta claramente
sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compañia
demandada como ligada con el causante de aquellos por relaciones de caracter economico
y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it declares,
in relation to the evidence in the case: (1) that the invoice issued by the railroad company in
favor of the plaintiff contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that when the said
merchandise reached their destination, their delivery to the consignee was refused by the
station agent without justification and with fraudulent intent, and (3) that the lack of delivery
of these goods when they were demanded by the plaintiff caused him losses and damages
of considerable importance, as he was a wholesale vendor of wines and liquors and he failed
to realize the profits when he was unable to fill the orders sent to him by the consignors of
the receptacles:

Considering that upon this basis there is need of upholding the four assignments of error, as
the original complaint did not contain any cause of action arising from non-fulfillment of a
contract of transportation, because the action was not based on the delay of the goods nor
on any contractual relation between the parties litigant and, therefore, article 371 of the Code
of Commerce, on which the decision appealed from is based, is not applicable; but it limits to
asking for reparation for losses and damages produced on the patrimony of the plaintiff on
account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned
to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in
article 1902 of the Civil Code which binds, in virtue of the next article, the defendant
company, because the latter is connected with the person who caused the damage by
relations of economic character and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal
Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the
trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway in consequence of which the rails slid off while iron was being
transported, and caught the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence lies
only in a criminal action in which the official criminally responsible must be made primarily
liable and his employer held only subsidiarily to him. According to this theory the plaintiff
should have procured the arrest of the representative of the company accountable for not
repairing the track, and on his prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of
the Civil Code makes obligations arising from faults or negligence not punished by the law,
subject to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:

"A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not
only for personal acts and omissions, but also for those of the persons for whom they
should be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.

xxx xxx xxx

"Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.

xxx xxx xxx

"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to avoid
the damage."

As an answer to the argument urged in this particular action it may be sufficient to point out
that nowhere in our general statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation therefore is one 'not punished by
the laws' and falls under civil rather than criminal jurisprudence. But the answer may be a
broader one. We should be reluctant, under any conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the defendant, that would rob some of these
articles of effect, would shut out litigants against their will from the civil courts, would make
the assertion of their rights dependent upon the selection for prosecution of the proper
criminal offender, and render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always stood alone, such a
construction would be unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal),
which, though never in actual force in these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was pending the civil
was suspended. According to article 112, the penal action once started, the civil remedy
should be sought therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was prosecuted,
arising out of a crime that could be enforced only on private complaint, the penal action
thereunder should be extinguished. These provisions are in harmony with those of articles 23
and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citation of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even
to be suspended thereby, except as expressly provided in the law. Where an individual is
civilly liable for a negligent act or omission, it is not required that the injured party should
seek out a third person criminally liable whose prosecution must be a condition precedent to
the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are in process
of prosecution, or in so far as they determine the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement in the civil courts is
not barred thereby unless by the election of the injured person. Inasmuch as no criminal
proceeding had been instituted, growing our of the accident in question, the provisions of the
Penal Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions has survived the laws
that fully regulated it or has been abrogated by the American civil and criminal procedure
now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as
derived from negligence punished by the law, within the meaning of articles 1902 and 1093.
More than this, however, it cannot be said to fall within the class of acts unpunished by the
law, the consequence of which are regulated by articles 1902 and 1903 of the Civil Code.
The acts to which these articles are applicable are understood to be those not growing out of
pre-existing duties of the parties to one another. But where relations already formed give rise
to duties, whether springing from contract or quasi contract, then breaches of those duties
are subject to articles 1101, 1103, and 1104 of the same code. A typical application of this
distinction may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out of the
contract of employment, that to the passengers out of the contract for passage, while that to
the injured bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador
Bona brought a civil action against Moreta to recover damages resulting from the death of the child,
who had been run over by an automobile driven and managed by the defendant. The trial court
rendered judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This
Court in affirming the judgment, said in part:

If it were true that the defendant, in coming from the southern part of Solana Street, had to
stop his auto before crossing Real Street, because he had met vehicles which were going
along the latter street or were coming from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto across said Real Street and to
continue its way along Solana Street northward, he should have adjusted the speed of the
auto which he was operating until he had fully crossed Real Street and had completely
reached a clear way on Solana Street. But, as the child was run over by the auto precisely at
the entrance of Solana Street, this accident could not have occurred if the auto had been
running at a slow speed, aside from the fact that the defendant, at the moment of crossing
Real Street and entering Solana Street, in a northward direction, could have seen the child in
the act of crossing the latter street from the sidewalk on the right to that on the left, and if the
accident had occurred in such a way that after the automobile had run over the body of the
child, and the child's body had already been stretched out on the ground, the automobile still
moved along a distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed without the defendant
having blown the horn. If these precautions had been taken by the defendant, the deplorable
accident which caused the death of the child would not have occurred.

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

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and
Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-
old child, Purificacion Bernal, brought a civil action to recover damages for the child's death as a
result of burns caused by the fault and negligence of the defendants. On the evening of April 10,
1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to attend the same. After the procession the
mother and the daughter with two others were passing along Gran Capitan Street in front of the
offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an
automobile appeared from the opposite direction. The little girl, who was slightly ahead of the rest,
was so frightened by the automobile that she turned to run, but unfortunately she fell into the street
gutter where hot water from the electric plant was flowing. The child died that same night from the
burns. The trial courts dismissed the action because of the contributory negligence of the plaintiffs.
But this Court held, on appeal, that there was no contributory negligence, and allowed the parents
P1,000 in damages from J. V. House who at the time of the tragic occurrence was the holder of the
franchise for the electric plant. This Court said in part:

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was
led to order the dismissal of the action because of the contributory negligence of the
plaintiffs. It is from this point that a majority of the court depart from the stand taken by the
 trial judge. The mother and her child had a perfect right to be on the principal street of
Tacloban, Leyte, on the evening when the religious procession was held. There was nothing
abnormal in allowing the child to run along a few paces in advance of the mother. No one
could foresee the coincidence of an automobile appearing and of a frightened child running
and falling into a ditch filled with hot water. The doctrine announced in the much debated
case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of
the Civil Code must again be enforced. The contributory negligence of the child and her
mother, if any, does not operate as a bar to recovery, but in its strictest sense could only
result in reduction of the damages.

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

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the
death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of the mishap was a defect in the
steering gear. The defendant Leynes had rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was
ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed
the judgment as to Leynes on the ground that he had shown that the exercised the care of a good
father of a family, thus overcoming the presumption of negligence under article 1903. This Court
said:

As to selection, the defendant has clearly shown that he exercised the care and diligence of
a good father of a family. He obtained the machine from a reputable garage and it was, so
far as appeared, in good condition. The workmen were likewise selected from a standard
garage, were duly licensed by the Government in their particular calling, and apparently
thoroughly competent. The machine had been used but a few hours when the accident
occurred and it is clear from the evidence that the defendant had no notice, either actual or
constructive, of the defective condition of the steering gear.

The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:

"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to avoid
the damage."

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the matter or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieve from liability.
 This theory bases the responsibility of the master ultimately on his own negligence and not
on that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year
1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently
driven an automobile, which was operated by defendant as a public vehicle, that said automobile
struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the
rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is the owner or director of
a business or enterprise and the negligent acts are committed while the servant is engaged
in his master's employment as such owner.

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton &
Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison
for the death of his seven-year-old son Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an
employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through
reckless negligence and were sentenced accordingly. This Court, applying articles 1902 and 1903,
held:

The basis of civil law liability is not respondent superior but the relationship of pater familias.
This theory bases the liability of the master ultimately on his own negligence and not on that
of his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila
Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff
brought an action for damages for the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):

The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the
appellee contracted his services because of his reputation as a captain, according to F. C.
Cadwallader. This being so, we are of the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance with the doctrines laid down by this court in
the cases cited above, and the defendant is therefore absolved from all liability.

It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six
cases above set forth. He is, on the authority of these cases, primarily and directly responsible in
damages under article 1903, in relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of
Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime
of damage to property and slight injuries through reckless imprudence. He was found guilty and
sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio, the City of
Manila filed an action against the Manila Electric Company to obtain payment, claiming that the
defendant was subsidiarily liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower court rendered judgment in
favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil Code negatives its application by
providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was not a wrongful or
negligent act or omission not punishable by law. Accordingly, the civil obligation connected
up with the Penal Code and not with article 1903 of the Civil Code. In other words, the Penal
Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of
criminal negligence out of which civil liability arises and not a case of civil negligence.

xxx xxx xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil
Code. Indeed, as pointed out by the trial judge, any different ruling would permit the master
to escape scot-free by simply alleging and proving that the master had exercised all diligence
in the selection and training of its servants to prevent the damage. That would be a good
defense to a strictly civil action, but might or might not be to a civil action either as a part of
or predicated on conviction for a crime or misdemeanor. (By way of parenthesis, it may be
said further that the statements here made are offered to meet the argument advanced
during our deliberations to the effect that article 0902 of the Civil Code should be disregarded
and codal articles 1093 and 1903 applied.)

It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence.
In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by simple
negligence and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000.
An action was then brought to enforce the subsidiary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had exercised the diligence of a good father of
a family in selecting the motorman, and therefore claimed exemption from civil liability. But this Court
held:

In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption
from civil liability established in article 1903 of the Civil Code for all who have acted with the
diligence of a good father of a family, is not applicable to the subsidiary civil liability provided
in article 20 of the Penal Code.

The above case is also extraneous to the theory of the defendant in the instant case, because the
action there had for its purpose the enforcement of the defendant's subsidiary liability under the
Penal Code, while in the case at bar, the plaintiff's cause of action is based on the defendant's
primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case
destroys the defendant's contention because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the Civil Code is different in character from
his subsidiary liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set
forth. Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it
is as inapplicable as the two cases above discussed.

The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability
arising from criminal negligence (governed by the Penal Code) and responsibility for fault or
negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may
produce either a civil liability arising from a crime under the Penal Code, or a separate responsibility
for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the
authorities above cited render it inescapable to conclude that the employer — in this case the
defendant-petitioner — is primarily and directly liable under article 1903 of the Civil Code.

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of
this case. But inasmuch as we are announcing doctrines that have been little understood in the past,
it might not be inappropriate to indicate their foundations.

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

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

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

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

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

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with
costs against the defendant-petitioner.
 ELCANO V HILL

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

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

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

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

3. The complaint had no cause of action against defendant Marvin Hill, because he
was relieved as guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

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

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

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

by ordering the dismissal of the above entitled case.

SO ORDERED.

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

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

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE

CLAIM OF DEFENDANTS THAT -

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

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

II
 THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR
RES-ADJUDICTA;

III

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

CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT

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

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

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

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

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

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

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

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

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

The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines that
have been little understood, in the past, it might not he inappropriate to indicate their
foundations.

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

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

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

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

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

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana" or
quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence and "culpa extracontractual" or
"cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable
doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal
negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a
double recovery.", (Report of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same
argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that
which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely
establishes the separability and independence of liability in a civil action for acts criminal in character
(under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the
Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice,
and more in harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs.
Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to
"fault or negligencia covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-
delict only and not as a crime is not estinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed by the accused. Briefly stated,
We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4

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

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

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

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

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

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

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.
 NEGLIGENCE (NCC ARTCICLE 1172-1174)

PICART V SMITH

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to
give warning of his approach. He continued his course and after he had taken the bridge he gave
two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper side of the
road for the machine. In so doing the defendant assumed that the horseman would move to the
other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of
the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right
to escape hitting the horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left
hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of the bridge
was probably less than one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and required medical
attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When
the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye
of the law.

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by reference to the personal judgment
of the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant the duty to guard against the threatened
harm.

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

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and
broken. It appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment
of the accident, guilty of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the amount of the
damages should be reduced on account of the contributory negligence in the plaintiff. As will be
seen the defendant's negligence in that case consisted in an omission only. The liability of the
company arose from its responsibility for the dangerous condition of its track. In a case like the one
now before us, where the defendant was actually present and operating the automobile which
caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective
parties in order to apportion the damage according to the degree of their relative fault. It is enough to
say that the negligence of the defendant was in this case the immediate and determining cause of
the accident and that the antecedent negligence of the plaintiff was a more remote factor in the
case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for
the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.
 CORLISS V MANILA RAILROAD

Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with
reason. The future, bright with promise, looms ahead. One's powers are still to be tested, but one
feels ready for whatever challenge may come his way. There is that heady atmosphere of self-
confidence, at times carried to excess. The temptation to take risks is there, ever so often, difficult, if
not impossible, to resist. There could be then a lessening of prudence and foresight, qualities usually
associated with age. For death seems so remote and contingent an event. Such is not always the
case though, and a slip may be attended with consequences at times unfortunate, even fatal.

Some such thought apparently was in the mind of the lower court when it dismissed the complaint
for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss whose husband, the late
Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim tragedy, when the jeep
he was driving collided with a locomotive of defendant-appellee Manila Railroad Company, close to
midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga,
in front of the Clark Air Force Base. In the decision appealed from, the lower court, after
summarizing the evidence, concluded that the deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he
became the victim of his own miscalculation." 1

The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory
proof to that effect, in its opinion, being lacking. Hence this appeal direct to us, the amount sought in
the concept of damages reaching the sum of P282,065.40. An examination of the evidence of record
fails to yield a basis for a reversal of the decision appealed from. We affirm.

According to the decision appealed from, there is no dispute as to the following: "In December
1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was
an air police of the Clark Air Force Base; that at the time of the accident, he was driving the fatal
jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and that
Corliss Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained
serious physical injuries and burns." 2

Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus:
"Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, ..., that at the time
of the accident, he also awaiting transportation at the entrance of Clark Field, which was about 40 to
50 yards away from the tracks and that while there he saw the jeep coming towards the Base. He
said that said jeep slowed down before reaching the crossing, that it made a brief stop but that it did
not stop — dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted
into first gear and that was what he meant by a brief stop. He also testified that he could see the
train coming from the direction of San Fernando and that he heard a warning but that it was not
sufficient enough to avoid the accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff,
testified that on the night of February 21, 1957, he was at the Balibago checkpoint and saw the train
coming from Angeles and a jeep going towards the direction of Clark Field. He stated that he heard
the whistle of the locomotive and saw the collision. The jeep, which caught fire, was pushed forward.
He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the tooting of the
horn. It did not stop at the railroad crossing, according to him." 4

After which reference was made to the testimony of the main witness for defendant-appellee,
Teodorico Capili, "who was at the engine at the time of the mishap," and who "testified that before
the locomotive, which had been previously inspected and found to be in good condition approached,
the crossing, that is, about 300 meters away, he blew the siren and repeated it in compliance with
the regulations until he saw the jeep suddenly spurt and that although the locomotive was running
between 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was caught
in the middle of the tracks." 5

1. The above finding as to the non-existence of negligence attributable to defendant-appellee

Manila Railroad Company comes to us encased in the armor of what admittedly appears to be a
careful judicial appraisal and scrutiny of the evidence of record. It is thus proof against any attack
unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand firm in the face
of even the most formidable barrage.

In the more traditional terminology, the lower court judgment has in its favor the presumption of
correctness. It is entitled to great respect. After all, the lower court had the opportunity of weighing
carefully what was testified to and apparently did not neglect it. There is no affront to justice then if
its finding be accorded acceptance subject of course the contingency of reversal if error or errors,
substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is exhausted when there is found to be a
rational basis for the result reached by the trial court.

As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is
the one at issue, the trial court's judgment as to their degree of credence deserves serious
consideration by this Court." 6 An earlier expression of the same view is found in Jai-Alai Corporation
v. Ching Kiat: "After going over the record, we find no reason for rejecting the findings of the court
below. The questions raised hinge on credibility and it is well-settled that in the absence of
compelling reasons, its determination is best left to the trial judge why had the advantage of hearing
the parties testify and observing their demeanor on the witness stand." 7

In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any
arbitrary or abusive conduct on the part of the trial judge in the formulation of the ruling. His
conclusion on the matter is sufficiently borne out by the evidence presented. We are denied,
therefore, the prerogative to disturb that finding, consonant to the time honored tradition of the
Tribunal to hold trial judges better situated to make conclusions on questions of fact'." 8 On this
ground alone we can rest the affirmance of the judgment appealed from. lâwphi1.ñet

2. Nor is the result different even if no such presumption were indulged in and the matter examined
as if we were exercising original and not appellate jurisdiction. The sad and deplorable situation in
which plaintiff-appellant now finds herself, to the contrary notwithstanding we find no reason for
reversing the judgment of the lower court.

This action is predicated on negligence, the Civil Code making clear that whoever by act or
omission causes damage to another, there being negligence, is under obligation to pay for the
damage done. 9 Unless it could be satisfactorily shown, therefore, that defendant-appellee was guilty
of negligence then it could not be held liable. The crucial question, therefore, is the existence of
negligence.

The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain,
formerly applicable in this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in Smith v.
Cadwallader Gibson Lumber Co., 11 Manresa was cited to the following effect "'Among the questions
most frequently raised and upon which the majority of cases have been decided with respect to the
application of this liability, are those referring to the determination of the damage or prejudice, and to
the fault or negligence of the person responsible therefor. These are the two indispensable factors in
the obligations under discussion, for without damage or prejudice there can be no liability, and
although this element is present no indemnity can be awarded unless arising from some person's
fault or negligence'."
 Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and United States
v. Barias. 13 Cooley' formulation was quoted with approval in both the Juanillo and Barias decisions.
Thus: "Judge Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure
to observe for the protection of the interests of another person that degree of care, precaution and
vigilance which the circumstance justly demand whereby such other person suffers injury." There
was likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus: "Negligence is want of the care
required by the circumstances. It is a relative or comparative, not an absolute term and its
application depends upon the situation of the parties and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary care under the circumstances."

To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of
plaintiff-appellee must necessary fail. The facts being what they are, compel the conclusion that the
liability sought to be fastened on defendant-appellee had not arisen.

3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on
the ground that there was a failure to appreciate the true situation. Thus the first three assigned
errors are factual in character. The third assigned error could be summarily disposed of. It would go
against the evidence to maintain the view that the whistle was not sounded and the brakes not
applied at a distance of 300 meters before reaching the crossing.

The first two assigned errors would make much of the failure of the lower court to hold that the
crossing bars not having been put down and there being no guard at the gate-house, there still was
a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who drove
the engine, was not qualified to do so at the time of the accident. For one cannot just single out
circumstance and then confidently assign to it decisive weight and significance. Considered
separately, neither of the two above errors assigned would call for a judgment different in character.
Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. The
quantum of proof required still not been met. The alleged errors fail of their said effect. The case for
plaintiff-appellant, such as it had not been improved. There is no justification for reversing the
judgment of the lower court.

It cannot be stressed too much that the decisive considerations are too variable, too dependent in
the lid analysis upon a common sense estimate of the situation as it presented itself to the parties for
us to be able to say that this or that element having been isolated, negligence is shown. The factors
that enter the judgment are too many and diverse for us to imprison them in a formula sufficient of
itself to yield the correct answer to the multi-faceted problems the question of negligence poses.
Every case must be dependent on its facts. The circumstances indicative of lack of due care must be
judged in the light of what could reasonably be expected of the parties. If the objective standard of
prudence be met, then negligence is ruled out.

In this particular case, it would be to show less than fidelity to the controlling facts to impute
negligence to defendant-appellee. The first three errors assigned certainly do not call for that
conclusion.

4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant

apparently had in mind this portion of the opinion of the lower court: "The weight of authorities is to
the effect that a railroad track is in itself a warning or a signal of danger to those who go upon it, and
that those who, for reasons of their own, ignore such warning, do so at their own risk and
responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint frequently, if not daily, must
have known that locomotive engines and trains usually pass at that particular crossing where the
accident had taken place." 15
 Her assignment of error, however, would single out not the above excerpt from the decision
appealed from but what to her is the apparent reliance of the lower court on Mestres v. Manila
Electric Railroad & Light Co. 16 and United States v. Manlabat & Pasibi. 17 In the Manabat case, the
doctrine announced by this Court follows: "A person in control of an automobile who crosses a
railroad, even at a regular road crossing, and who does not exercise that precaution and that control
over it as to be able to stop the same almost immediately upon the appearance of a train, is guilty of
criminal negligence, providing a collision occurs and injury results. Considering the purposes and the
general methods adopted for the management of railroads and railroad trains, we think it is
incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing.
He should approach a railroad crossing cautiously and carefully. He should look and listen and do
everything that a reasonably prudent man would do before he attempts to cross the track." The
Mestres doctrine in a suit arising from a collision between an automobile and a street car is
substantially similar. Thus: "It may be said, however, that, where a person is nearing a street
crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who
can most readily adjust himself to the exigencies of the case, and where such person can do so
more readily, the motorman has a right to presume that such duty will be performed."

It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent
rigid and inflexible doctrine thus set forth in the two above cases evidenced by Lilius v. Manila
Railroad Co., 18 the controlling facts of which, however, are easily distinguishable from what had
been correctly ascertained in the present case. Such a deviation from the earlier principle
announced is not only true of this jurisdiction but also of the United States.

This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the
following to say: "Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in
Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,' which would require an
automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen,
and if he cannot be sure otherwise that no train is coming to get out of the car. The basic idea
behind this is sound enough: it is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will require looking, hearing,
and a stop, or at least slow speed, where the view is obstructed." 19

Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where, according to
Prosser, it being shown that "the only effective stop must be made upon the railway tracks
themselves, in a position of obligation danger, the court disregarded any such uniform rule, rejecting
the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile and sometimes
even dangerous,' and saying that the driver need not always stop. 'Illustrations such as these,' said
Mr. Justice Cardozo 'bear witness to the need for caution in framing standards of behavior that
amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or normal." 21

What Justice Cardozo announced would merely emphasize what was set forth earlier that each
and every, case on questions of negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and fast rule. There must be that
observance of that degree of care, precaution, and vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it.

What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated
on the testimonies of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity
with the setup of the checkpoint, the existence of the tracks; and on the further fact that the
locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that Corliss
Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to
avoid a possible accident — and this consisted simply in stopping his vehicle before the crossing
and allowing the train to move on. A prudent man under similar circumstances would have acted in
this manner. This, unfortunately, Corliss, Jr. failed to do." 22

WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is
affirmed. Without pronouncement as to costs.
 GAID V PEOPLE
Petitioner Norman A. Gaid was charged with the crime of reckless imprudence
resulting in homicide in an information which reads as follow:

That on or about 12:00 high noon of October 25, 2001, infront of the
Laguindingan National High School, Poblacion, Laguindingan, Misamis
Oriental, Philippines and within the jurisdiction of this Honorable Court,
the said accused mentioned above while driving a passengers jeepney
color white bearing plate no. KVG-771 owned by barangay captain Levy
Etom has no precautionary measure to preempt the accident, did then and
there willfully, unlawfully and feloniously ran [sic] over Michael Dayata
resulting of [sic] his untimely death as pronounced by the attending
physician of Northern Mindanao Medical Center Hospital, Cagayan de
Oro City.

CONTRARY TO LAW.[4]

Petitioner entered a not guilty plea. Thereafter, trial ensued.

The antecedent facts are undisputed.

At around 12:00 noon on 25 October 2001, petitioner was driving his

passenger jeepney along a two-lane road where the Laguindingan National High
School is located toward the direction of Moog in Misamis Oriental. His jeepney
was filled to seating capacity.[5] At the time several students were coming out of the
school premises.[6] Meanwhile, a fourteen year-old student, Michael Dayata
(Dayata), was seen by eyewitness Artman Bongolto (Bongolto) sitting near a store
on the left side of the road. From where he was at the left side of the road, Dayata
raised his left hand to flag down petitioners jeepney[7] which was traveling on the
right lane of the road.[8] However, neither did petitioner nor the conductor, Dennis
Mellalos (Mellalos), saw anybody flagging down the jeepney to ride at that point.[9]

The next thing Bongalto saw, Dayatas feet was pinned to the rear wheel of the
jeepney, after which, he laid flat on the ground behind the jeepney.[10]Another
prosecution witness, Usaffe Actub (Actub), who was also situated on the left side of
the street but directly in front of the school gate, heard a strong impact coming from
the jeep sounding as if the driver forced to accelerate in order to hurdle an
obstacle.[11] Dayata was then seen lying on the ground[12] and caught in between the
rear tires.[13] Petitioner felt that the left rear tire of the jeepney had bounced and the
vehicle tilted to the right side.[14]

Mellalos heard a shout that a boy was run over, prompting him to jump off
the jeepney to help the victim. Petitioner stopped and saw Mellalos carrying the body
of the victim.[15] Mellalos loaded the victim on a motorcycle and brought him to the
hospital. Dayata was first brought to the Laguindingan Health Center, but it was
closed. Mellalos then proceeded to the El Salvador Hospital. Upon advice of its
doctors, however, Dayata was brought to
[16]
the Northern Mindanao MedicalCenter where he was pronounced dead on arrival.

Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the

cause of death.[17] She testified that the head injuries of Dayata could have been
caused by having run over by the jeepney.[18]

The Municipal Circuit Trial Court (MCTC) of Laguindingan[19] found

petitioner guilty beyond reasonable doubt of the crime charged. The lower court held
petitioner negligent in his driving considering that the victim was dragged to a
distance of 5.70 meters from the point of impact. He was also scored for not stopping
his vehicle after noticing that the jeepneys left rear tire jolted causing the vehicle to
tilt towards the right.[20] On appeal, the Regional Trial Court (RTC)[21] affirmed in
toto the decision of the MCTC.

The Court of Appeals affirmed the trial courts judgment with modification in
that it found petitioner guilty only of simple negligence resulting in homicide.

The Court of Appeals exonerated petitioner from the charge of reckless

imprudence resulting to homicide on the ground that he was not driving recklessly
at the time of the accident. However, the appellate court still found him to be
negligent when he failed to promptly stop his vehicle to check what caused the
sudden jotting of its rear tire.[22]

In its 6 February 2006 Resolution, the Court of Appeals denied petitioners

motion for reconsideration.[23]

Hence, the instant petition.

 Petitioner submits that the Court of Appeals erred in finding that there is (sic)
absolutely lack of precaution on the part of the petitioner when he continued even
after he had noticed that the left rear tire and the jeep tilted to its right
side.[24] Petitioner stressed that he, in fact, stopped his jeep when its left rear tire
bounced and upon hearing that somebody had been ran over.

Moreover, petitioner asserts that the Court of Appeals committed a grave

abuse of discretion in convicting him of the offense of simple negligence resulting
in homicide. Assuming arguendo that he failed to promptly stop his vehicle,
petitioner maintains that no prudent man placed in the same situation could have
foreseen the vehicular accident or could have stopped his vehicle in time when its
left rear tire bounced due to the following reasons: (1) the victim was only a
trespasser; (2) petitioners attention was focused on the road and the students outside
the schools gate; and (3) the jeepney was fully loaded with passengers and cargoes
and it was impossible for the petitioner to promptly stop his vehicle.[25]

The Office of the Solicitor-General (OSG) maintained that petitioner was

negligent when he continued to run towards the direction of Moog, Laguindingan,
dragging the victim a few meters from the point of impact, despite hearing that a
child had been run over.[26]

The presence or absence of negligence on the part of petitioner is determined

by the operative events leading to the death of Dayata which actually comprised of
two phases or stages. The first stage began when Dayata flagged down the jeepney
while positioned on the left side of the road and ended when he was run over by the
jeepney. The second stage covered the span between the moment immediately after
the victim was run over and the point when petitioner put the jeepney to a halt.

During the first stage, petitioner was not shown to be negligent.

Reckless imprudence consists of voluntarily doing or failing to do, without

malice, an act from which material damage results by reason of an inexcusable lack
of precaution on the part of the person performing or failing to perform such act.[27]
 In Manzanares v. People,[28] this Court convicted petitioner of the crime of
reckless imprudence resulting in multiple homicide and serious physical injuries
when he was found driving the Isuzu truck very fast before it smashed into a
jeepney.[29] Likewise, in Pangonorom v. People,[30] a public utility driver, who was
driving very fast, failed to slow down and hit a swerving car. He was found negligent
by this Court.

In the instant case, petitioner was driving slowly at the time of the accident,
as testified to by two eyewitnesses. Prosecution witness Actub affirmed this fact on
cross-examination, thus:

ATTY. MACUA:

(to the witness)

Q Mr. Witness, when the passenger jeepney passed by the gate of
the Laguindingan National High School, is it running slowly, am I
correct?
A Yes, he was running slowly.[31]

The slow pace of the jeepney was seconded by Mellalos:

Q You testified that you heard somebody outside from the vehicle shouting
that a boy was ran over, am I correct?
A Yes, Sir.

Q Now, before you heard that shouting, did you observe any motion from
the vehicle?
A The jeep was moving slowly and I noticed that there was something that
[sic] the jeep a little bit bounced up as if a hump thats the time I
heard a shout from outside.[32]

Petitioner stated that he was driving at no more than 15 kilometers per hour.[33]

It appears from the evidence Dayata came from the left side of the
street. Petitioner, who was driving the jeepney on the right lane, did not see the
victim flag him down. He also failed to see him go near the jeepney at the left side.
Understandably, petitioner was focused on the road ahead. In Dayatas haste to board
the jeep which was then running, his feet somehow got pinned to the left rear tire, as
narrated by Bongolto. Actub only saw Dayata after he heard a strong impact coming
from the jeep.

With the foregoing facts, petitioner can not be held liable during the first
stage. Specifically, he cannot be held liable for reckless imprudence resulting in
homicide, as found by the trial court. The proximate cause of the accident and the
death of the victim was definitely his own negligence in trying to catch up with the
moving jeepney to get a ride.

In the instant case, petitioner had exercised extreme precaution as he drove

slowly upon reaching the vicinity of the school. He cannot be faulted for not having
seen the victim who came from behind on the left side.

However, the Court of Appeals found petitioner guilty of simple negligence

resulting in homicide for failing to stop driving at the time when he noticed the
bouncing of his vehicle. Verily, the appellate court was referring to the second stage
of the incident.

Negligence has been defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[34]

The elements of simple negligence: are (1) that there is lack of precaution on
the part of the offender; and (2) that the damage impending to be caused is not
immediate or the danger is not clearly manifest.[35]

The standard test in determining whether a person is negligent in doing an act

whereby injury or damage results to the person or property of another is this: could
a prudent man, in the position of the person to whom negligence is attributed, foresee
harm to the person injured as a reasonable consequence of the course actually
pursued? If so, the law imposes a duty on the actor to refrain from that course or to
take precautions to guard against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by the ignoring of
the admonition born of this provision, is always necessary before negligence can be
held to exist.[36]

In Philippine National Construction Corporation v. Court of Appeals,[37] the

petitioner was the franchisee that operates and maintains the toll facilities in the
North and South Luzon Toll Expressways. It failed to exercise the requisite diligence
in maintaining the NLEX safe for motorists. The lighted cans and lane dividers on
the highway were removed even as flattened sugarcanes lay scattered on the
ground. The highway was still wet from the juice and sap of the flattened sugarcanes.
The petitioner should have foreseen that the wet condition of the highway would
endanger motorists passing by at night or in the wee hours of the
morning.[38] Consequently, it was held liable for damages.

In an American case, Hernandez v. Lukas,[39] a motorist traveling within the

speed limit and did all was possible to avoid striking a child who was then six years
old only. The place of the incident was a neighborhood where children were playing
in the parkways on prior occasions. The court ruled that it must be still proven that
the driver did not exercise due care. The evidence showed that the driver was
proceeding in lawful manner within the speed limit when the child ran into the street
and was struck by the drivers vehicle. Clearly, this was an emergency situation thrust
upon the driver too suddenly to avoid.

In this case, the courts below zeroed in on the fact that petitioner did not stop
the jeepney when he felt the bouncing of his vehicle, a
circumstance which the appellate court equates with negligence. Petitioner contends
that he did not immediately stop because he did not see anybody go near his vehicle
at the time of the incident.[40]

Assuming arguendo that petitioner had been negligent, it must be shown that
his negligence was the proximate cause of the accident. Proximate cause is defined
as that which, in the natural and continuous sequence, unbroken by any efficient,
intervening cause, produces the injury, and without which the result would not have
occurred.[41] In order to establish a motorist's liability for the negligent operation of
a vehicle, it must be shown that there was a direct causal connection between such
negligence and the injuries or damages complained of. Thus, negligence that is not
a substantial contributing factor in the causation of the accident is not
the proximate cause of an injury.[42]

The head injuries sustained by Dayata at the point of impact proved to be the
immediate cause of his death, as indicated in the post-mortem findings.[43] His skull
was crushed as a result of the accident. Had petitioner immediately stopped the
jeepney, it would still not have saved the life of the victim as the injuries he suffered
were fatal.

The evidence on record do not show that the jeepney dragged the victim after
he was hit and run over by the jeepney. Quite the contrary, the evidence discloses
that the victim was not dragged at all. In fact, it is the other way around. Bongolto
narrated that after the impact, he saw Dayata left behind the jeepney.[44] Actub saw
Dayata in a prone position and bleeding within seconds after impact.[45] Right after
the impact, Mellalos immediately jumped out of the jeepney and saw the victim lying
on the ground.[46] The distance of 5.70 meters is the length of space between the spot
where the victim fell to the ground and the spot where the jeepney stopped as
observed by the trial judge during the ocular inspection at the scene of the
accident.[47]

Moreover, mere suspicions and speculations that the victim could have lived
had petitioner stopped can never be the basis of a conviction in a criminal
case.[48] The Court must be satisfied that the guilt of the accused had been proven
beyond reasonable doubt.[49] Conviction must rest on nothing less than a moral
certainty of the guilt of the accused. The overriding consideration is not whether the
court doubts the innocence of the accused but whether it entertains doubt as to his
guilt.[50]
 Clearly then, the prosecution was not able to establish that the proximate cause
of the victims death was petitioners alleged negligence, if at all, even during the
second stage of the incident.

If at all again, petitioners failure to render assistance to the victim would

constitute abandonment of ones victim punishable under Article 275 of the Revised
Penal Code. However, the omission is not covered by the information. Thus, to hold
petitioner criminally liable under the provision would be tantamount to a denial of
due process.

Therefore, petitioner must be acquitted at least on reasonable doubt. The

award of damages must also be deleted pursuant to Article 2179 of the Civil Code
which states that when the plaintiffs own negligence was the immediate and
proximate cause of his injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the Court of
Appeals dated 12 July 2005 is REVERSED and SET ASIDE. Petitioner Norman
A. Gaid is ACQUITTED of the crime of Simple Negligence Resulting in Homicide
as found by the Court of Appeals and of the charge of Reckless Imprudence
Resulting in Homicide in Criminal Case No. 1937 of the MCTC of Laguindingan,
Misamis Oriental.
 PACIS V MORALES
The Facts

On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners)

filed with the trial court a civil case for damages against respondent Jerome Jovanne
Morales (respondent). Petitioners are the parents of Alfred Dennis Pacis, Jr. (Alfred),
a 17-year old student who died in a shooting incident inside the Top Gun Firearms
and Ammunitions Store (gun store) in Baguio City. Respondent is the owner of the
gun store.

The facts as found by the trial court are as follows:

On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first
year student at the Baguio Colleges Foundation taking up BS Computer
Science, died due to a gunshot wound in the head which he sustained
while he was at the Top Gun Firearm[s] and Ammunition[s] Store
located at Upper Mabini Street, Baguio City. The gun store was owned
and operated by defendant Jerome Jovanne Morales.

With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason
Herbolario. They were sales agents of the defendant, and at that particular time, the
caretakers of the gun store.

The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a
customer of the gun store for repair.

The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194
(Exhibit Q), was left by defendant Morales in a drawer of a table located inside the gun
store.

Defendant Morales was in Manila at the time. His employee Armando Jarnague, who
was the regular caretaker of the gun store was also not around. He left earlier and
requested sales agents Matibag and Herbolario to look after the gun store while he and
defendant Morales were away. Jarnague entrusted to Matibag and Herbolario a bunch
of keys used in the gun store which included the key to the drawer where the fatal gun
was kept.

It appears that Matibag and Herbolario later brought out the gun from
the drawer and placed it on top of the table. Attracted by the sight of
the gun, the young Alfred Dennis Pacis got hold of the same.
 Matibag asked Alfred Dennis Pacis to return the gun. The latter
followed and handed the gun to Matibag. It went off, the bullet hitting
the young Alfred in the head.

A criminal case for homicide was filed against Matibag before branch VII of this Court.
Matibag, however, was acquitted of the charge against him because of the exempting
circumstance of accident under Art. 12, par. 4 of the Revised Penal Code.

By agreement of the parties, the evidence adduced in the criminal case

for homicide against Matibag was reproduced and adopted by them as
part of their evidence in the instant case.[3]

On 8 April 1998, the trial court rendered its decision in favor of petitioners. The
dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in

favor of the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis]
and against the defendant [Jerome Jovanne Morales] ordering the
defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial
expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.

SO ORDERED.[4]

Respondent appealed to the Court of Appeals. In its Decision[5] dated 11 May 2005,
the Court of Appeals reversed the trial courts Decision and absolved respondent
from civil liability under Article 2180 of the Civil Code.[6]

Petitioners filed a motion for reconsideration, which the Court of Appeals denied in
its Resolution dated 19 August 2005.

Hence, this petition.

 The Trial Courts Ruling

The trial court held respondent civilly liable for the death of Alfred under Article
2180 in relation to Article 2176 of the Civil Code.[7] The trial court held that the
accidental shooting of Alfred which caused his death was partly due to the
negligence of respondents employee Aristedes Matibag (Matibag). Matibag and
Jason Herbolario (Herbolario) were employees of respondent even if they were only
paid on a commission basis. Under the Civil Code, respondent is liable for the
damages caused by Matibag on the occasion of the performance of his duties, unless
respondent proved that he observed the diligence of a good father of a family to
prevent the damage. The trial court held that respondent failed to observe the
required diligence when he left the key to the drawer containing the loaded defective
gun without instructing his employees to be careful in handling the loaded gun.

The Court of Appeals Ruling

The Court of Appeals held that respondent cannot be held civilly liable since there
was no employer-employee relationship between respondent and Matibag. The
Court of Appeals found that Matibag was not under the control of respondent with
respect to the means and methods in the performance of his work. There can be no
employer-employee relationship where the element of control is absent. Thus,
Article 2180 of the Civil Code does not apply in this case and respondent cannot be
held liable.

Furthermore, the Court of Appeals ruled that even if respondent is considered an

employer of Matibag, still respondent cannot be held liable since no negligence can
be attributed to him. As explained by the Court of Appeals:

Granting arguendo that an employer-employee relationship existed

between Aristedes Matibag and the defendant-appellant, we find that no
negligence can be attributed to him.

Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test
of negligence is this:

x x x. Could a prudent man, in the position of the person to

whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course about to
be pursued? If so, the law imposes a duty on the actor to
refrain from that course or take precaution against its
 mischievous results, and the failure to do so constitutes
negligence. x x x.

Defendant-appellant maintains that he is not guilty of negligence and

lack of due care as he did not fail to observe the diligence of a good
father of a family. He submits that he kept the firearm in one of his table
drawers, which he locked and such is already an indication that he took
the necessary diligence and care that the said gun would not be
accessible to anyone. He puts [sic] that his store is engaged in selling
firearms and ammunitions. Such items which are per se dangerous are
kept in a place which is properly secured in order that the persons
coming into the gun store would not be able to take hold of it unless it
is done intentionally, such as when a customer is interested to purchase
any of the firearms, ammunitions and other related items, in which case,
he may be allowed to handle the same.

We agree. Much as We sympathize with the family of the deceased,

defendant-appellant is not to be blamed. He exercised due diligence in
keeping his loaded gun while he was on a business trip in Manila. He
placed it inside the drawer and locked it. It was taken away without his
knowledge and authority. Whatever happened to the deceased was
purely accidental.[8]
The Issues

Petitioners raise the following issues:

I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN

RENDERING THE DECISION AND RESOLUTION IN
QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE
BY REVERSING THE ORDER OF THE REGIONAL TRIAL
COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING
CLEAR, AUTHENTIC RECORDS AND TESTIMONIES
PRESENTED DURING THE TRIAL WHICH NEGATE AND
CONTRADICT ITS FINDINGS.

II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE

ERROR IN RENDERING THE DECISION AND RESOLUTION IN
QUESTION BY DEPARTING FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL PROCEEDINGS THEREBY
IGNORING THE FACTUAL FINDINGS OF THE REGIONAL
 TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
PETITIONERS CLEAR RIGHTS TO THE AWARD OF
DAMAGES.[9]

The Ruling of the Court

We find the petition meritorious.

This case for damages arose out of the accidental shooting of petitioners son. Under
Article 1161[10] of the Civil Code, petitioners may enforce their claim for damages
based on the civil liability arising from the crime under Article 100[11] of the Revised
Penal Code or they may opt to file an independent civil action for damages under
the Civil Code. In this case, instead of enforcing their claim for damages in the
homicide case filed against Matibag, petitioners opted to file an independent civil
action for damages against respondent whom they alleged was Matibags employer.
Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil
Code.

Unlike the subsidiary liability of the employer under Article 103[12] of the Revised
Penal Code,[13] the liability of the employer, or any person for that matter, under
Article 2176 of the Civil Code is primary and direct, based on a persons own
negligence. Article 2176 states:

Art. 2176. Whoever by act or omission causes damage to another, there

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

This case involves the accidental discharge of a firearm inside a gun store. Under
PNP Circular No. 9, entitled the Policy on Firearms and Ammunition
Dealership/Repair, a person who is in the business of purchasing and selling of
firearms and ammunition must maintain basic security and safety requirements of a
gun dealer, otherwise his License to Operate Dealership will be suspended or
canceled.[14]
Indeed, a higher degree of care is required of someone who has in his possession or
under his control an instrumentality extremely dangerous in character, such as
dangerous weapons or substances. Such person in possession or control of dangerous
instrumentalities has the duty to take exceptional precautions to prevent any injury
being done thereby.[15] Unlike the ordinary affairs of life or business which involve
little or no risk, a business dealing with dangerous weapons requires the exercise of
a higher degree of care.

As a gun store owner, respondent is presumed to be knowledgeable about firearms

safety and should have known never to keep a loaded weapon in his store to avoid
unreasonable risk of harm or injury to others. Respondent has the duty to ensure that
all the guns in his store are not loaded. Firearms should be stored unloaded and
separate from ammunition when the firearms are not needed for ready-access
defensive use.[16] With more reason, guns accepted by the store for repair should not
be loaded precisely because they are defective and may cause an accidental
discharge such as what happened in this case. Respondent was clearly negligent
when he accepted the gun for repair and placed it inside the drawer without ensuring
first that it was not loaded. In the first place, the defective gun should have been
stored in a vault. Before accepting the defective gun for repair, respondent should
have made sure that it was not loaded to prevent any untoward accident. Indeed,
respondent should never accept a firearm from another person, until the cylinder or
action is open and he has personally checked that the weapon is completely
unloaded.[17] For failing to insure that the gun was not loaded, respondent himself
was negligent. Furthermore, it was not shown in this case whether respondent had a
License to Repair which authorizes him to repair defective firearms to restore its
original composition or enhance or upgrade firearms.[18]
Clearly, respondent did not exercise the degree of care and diligence required of a
good father of a family, much less the degree of care required of someone dealing
with dangerous weapons, as would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005
Decision and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV
No. 60669. We REINSTATE the trial courts Decision dated 8 April 1998.
 CIVIL AERONAUTICS AD V CA

Assailed in this petition for review on certiorari is the decision of the Court of Appeals affirming the
trial court decision which reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the

amount of P15,589.55 as full reimbursement of his actual medical and hospital
expenses, with interest at the legal rate from the commencement of the suit; the
amount of P20,200.00 as consequential damages; the amount of P30,000.00 as
moral damages; the amount of P40,000.00 as exemplary damages; the further
amount of P20,000.00 as attorney's fees and the costs [Rollo, p. 24].

The facts of the case are as follows:

Private respondent is a naturalized Filipino citizen and at the time of the incident was the Honorary
Consul Geileral of Israel in the Philippines.

In the afternoon of December 13, 1968, private respondent with several other persons went to the
Manila International Airport to meet his future son-in-law. In order to get a better view of the
incoming passengers, he and his group proceeded to the viewing deck or terrace of the airport.

While walking on the terrace, then filled with other people, private respondent slipped over an
elevation about four (4) inches high at the far end of the terrace. As a result, private respondent fell
on his back and broke his thigh bone.

The next day, December 14, 1968, private respondent was operated on for about three hours.

Private respondent then filed an action for damages based on quasi-delict with the Court of First
Instance of Rizal, Branch VII against petitioner Civil Aeronautics Administration or CAA as the entity
empowered "to administer, operate, manage, control, maintain and develop the Manila International
Airport ... ." [Sec. 32 (24), R.A. 776].

Said claim for damages included, aside from the medical and hospital bills, consequential damages
for the expenses of two lawyers who had to go abroad in private respondent's stead to finalize
certain business transactions and for the publication of notices announcing the postponement of
private respondent's daughter's wedding which had to be cancelled because of his accident [Record
on Appeal, p. 5].

Judgment was rendered in private respondent's favor prompting petitioner to appeal to the Court of
Appeals. The latter affirmed the trial court's decision. Petitioner then filed with the same court a
Motion for, Reconsideration but this was denied.

Petitioner now comes before this Court raising the following assignment of errors:

1. The Court of Appeals gravely erred in not holding that the present the CAA is
really a suit against the Republic of the Philippines which cannot be sued without its
consent, which was not given in this case.

2. The Court of Appeals gravely erred in finding that the injuries of respondent Ernest
E. Simke were due to petitioner's negligence — although there was no substantial
evidence to support such finding; and that the inference that the hump or elevation
 the surface of the floor area of the terrace of the fold) MIA building is dangerous just
because said respondent tripped over it is manifestly mistaken — circumstances that
justify a review by this Honorable Court of the said finding of fact of respondent
appellate court (Garcia v. Court of Appeals, 33 SCRA 622; Ramos v. CA, 63 SCRA
331.)

3. The Court of Appeals gravely erred in ordering petitioner to pay actual,

consequential, moral and exemplary damages, as well as attorney's fees to
respondent Simke — although there was no substantial and competent proof to
support said awards I Rollo, pp. 93-94 1.

Invoking the rule that the State cannot be sued without its consent, petitioner contends that being an
agency of the government, it cannot be made a party-defendant in this case.

This Court has already held otherwise in the case of National Airports Corporation v. Teodoro, Sr.
[91 Phil. 203 (1952)]. Petitioner contends that the said ruling does not apply in this case because:
First, in the Teodoro case, the CAA was sued only in a substituted capacity, the National Airports
Corporation being the original party. Second, in the Teodoro case, the cause of action was
contractual in nature while here, the cause of action is based on a quasi-delict. Third, there is no
specific provision in Republic Act No. 776, the law governing the CAA, which would justify the
conclusion that petitioner was organized for business and not for governmental purposes. [Rollo, pp.
94-97].

Such arguments are untenable.

First, the Teodoro case, far from stressing the point that the CAA was only substituted for the
National Airports Corporation, in fact treated the CAA as the real party in interest when it stated that:

xxx xxx xxx

... To all legal intents and practical purposes, the National Airports Corporation is
dead and the Civil Aeronautics Administration is its heir or legal representative,
acting by the law of its creation upon its own rights and in its own name. The better
practice there should have been to make the Civil Aeronautics Administration the
third party defendant instead of the National Airports Corporation. [National Airports
Corp. v. Teodoro, supra, p. 208.]

xxx xxx xxx

Second, the Teodoro case did not make any qualification or limitation as to whether or not the CAA's
power to sue and be sued applies only to contractual obligations. The Court in the Teodoro case
ruled that Sections 3 and 4 of Executive Order 365 confer upon the CAA, without any qualification,
the power to sue and be sued, albeit only by implication. Accordingly, this Court's pronouncement
that where such power to sue and be sued has been granted without any qualification, it can include
a claim based on tort or quasi-delict [Rayo v. Court of First Instance of Bulacan, G.R. Nos. 55273-
83, December 19,1981, 1 1 0 SCRA 4561 finds relevance and applicability to the present case.

Third, it has already been settled in the Teodoro case that the CAA as an agency is not immune
from suit, it being engaged in functions pertaining to a private entity.
 xxx xxx xxx

The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation,
not to maintain a necessary function of government, but to run what is essentially a
business, even if revenues be not its prime objective but rather the promotion of
travel and the convenience of the travelling public. It is engaged in an enterprise
which, far from being the exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by private concerns. [National Airports
Corp. v. Teodoro, supra, p. 207.]

xxx xxx xxx

True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order 365
(Reorganizing the Civil Aeronautics Administration and Abolishing the National Airports Corporation).
Republic Act No. 776 (Civil Aeronautics Act of the Philippines), subsequently enacted on June 20,
1952, did not alter the character of the CAA's objectives under Exec, Order 365. The pertinent
provisions cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order 365, which led the
Court to consider the CAA in the category of a private entity were retained substantially in Republic
Act 776, Sec. 32 (24) and (25). Said Act provides:
<äre||anº•1àw>

Sec. 32. Powers and Duties of the Administrator. Subject to the general — control
and supervision of the Department Head, the Administrator shall have among others,
the following powers and duties:

xxx xxx xxx

(24) To administer, operate, manage, control, maintain and develop the Manila
International Airport and all government-owned aerodromes except those controlled
or operated by the Armed Forces of the Philippines including such powers and duties
as: (a) to plan, design, construct, equip, expand, improve, repair or alter aerodromes
or such structures, improvement or air navigation facilities; (b) to enter into, make
and execute contracts of any kind with any person, firm, or public or private
corporation or entity; ... .

(25) To determine, fix, impose, collect and receive landing fees, parking space fees,
royalties on sales or deliveries, direct or indirect, to any aircraft for its use of aviation
gasoline, oil and lubricants, spare parts, accessories and supplies, tools, other
royalties, fees or rentals for the use of any of the property under its management and
control.

xxx xxx xxx

From the foregoing, it can be seen that the CAA is tasked with private or non-governmental functions
which operate to remove it from the purview of the rule on State immunity from suit. For the correct
rule as set forth in the Tedoro case states:

xxx xxx xxx

 Not all government entities, whether corporate or non-corporate, are immune from
suits. Immunity functions suits is determined by the character of the objects for which
the entity was organized. The rule is thus stated in Corpus Juris:

Suits against State agencies with relation to matters in which they

have assumed to act in private or non-governmental capacity, and
various suits against certain corporations created by the state for
public purposes, but to engage in matters partaking more of the
nature of ordinary business rather than functions of a governmental
or political character, are not regarded as suits against the state. The
latter is true, although the state may own stock or property of such a
corporation for by engaging in business operations through a
corporation, the state divests itself so far of its sovereign character,
and by implication consents to suits against the corporation. (59 C.J.,
313) [National Airport Corporation v. Teodoro, supra, pp. 206-207;
Emphasis supplied.]

This doctrine has been reaffirmed in the recent case of Malong v. Philippine National Railways [G.R.
No. L-49930, August 7, 1985, 138 SCRA 631, where it was held that the Philippine National
Railways, although owned and operated by the government, was not immune from suit as it does not
exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA was
created to undertake the management of airport operations which primarily involve proprietary
functions, it cannot avail of the immunity from suit accorded to government agencies performing
strictly governmental functions.

II

Petitioner tries to escape liability on the ground that there was no basis for a finding of negligence.
There can be no negligence on its part, it alleged, because the elevation in question "had a
legitimate purpose for being on the terrace and was never intended to trip down people and injure
them. It was there for no other purpose but to drain water on the floor area of the terrace" [Rollo, P.
99].

To determine whether or not the construction of the elevation was done in a negligent manner, the
trial court conducted an ocular inspection of the premises.

xxx xxx xxx

... This Court after its ocular inspection found the elevation shown in Exhs. A or 6-A
where plaintiff slipped to be a step, a dangerous sliding step, and the proximate
cause of plaintiffs injury...

xxx xxx xxx

This Court during its ocular inspection also observed the dangerous and defective
condition of the open terrace which has remained unrepaired through the years. It
has observed the lack of maintenance and upkeep of the MIA terrace, typical of
many government buildings and offices. Aside from the litter allowed to accumulate
in the terrace, pot holes cause by missing tiles remained unrepaired and unattented.
The several elevations shown in the exhibits presented were verified by this Court
during the ocular inspection it undertook. Among these elevations is the one (Exh. A)
where plaintiff slipped. This Court also observed the other hazard, the slanting or
 sliding step (Exh. B) as one passes the entrance door leading to the terrace [Record
on Appeal, U.S., pp. 56 and 59; Emphasis supplied.]

The Court of Appeals further noted that:

The inclination itself is an architectural anomaly for as stated by the said witness, it is
neither a ramp because a ramp is an inclined surface in such a way that it will
prevent people or pedestrians from sliding. But if, it is a step then it will not serve its
purpose, for pedestrian purposes. (tsn, p. 35, Id.) [rollo, p. 29.]

These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot disclaim
its liability for the negligent construction of the elevation since under Republic Act No. 776, it was
charged with the duty of planning, designing, constructing, equipping, expanding, improving,
repairing or altering aerodromes or such structures, improvements or air navigation facilities [Section
32, supra, R.A. 776]. In the discharge of this obligation, the CAA is duty-bound to exercise due
diligence in overseeing the construction and maintenance of the viewing deck or terrace of the
airport.

It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or negligence of
the obligor consists in the omission of that diligence which is required by the nature of the obligation
and corresponds with the circumstances of the person, of the time and of the place." Here, the
obligation of the CAA in maintaining the viewing deck, a facility open to the public, requires that CAA
insure the safety of the viewers using it. As these people come to the viewing deck to watch the
planes and passengers, their tendency would be to look to where the planes and the incoming
passengers are and not to look down on the floor or pavement of the viewing deck. The CAA should
have thus made sure that no dangerous obstructions or elevations exist on the floor of the deck to
prevent any undue harm to the public.

The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the Civil Code
which provides that "(w)hoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done... As the CAA knew of the existence of the
dangerous elevation which it claims though, was made precisely in accordance with the plans and
specifications of the building for proper drainage of the open terrace [See Record on Appeal, pp. 13
and 57; Rollo, p. 391, its failure to have it repaired or altered in order to eliminate the existing hazard
constitutes such negligence as to warrant a finding of liability based on quasi-delict upon CAA.

The Court finds the contention that private respondent was, at the very least, guilty of contributory
negligence, thus reducing the damages that plaintiff may recover, unmeritorious. Contributory
negligence under Article 2179 of the Civil Code contemplates a negligent act or omission on the part
of the plaintiff, which although not the proximate cause of his injury, contributed to his own damage,
the proximate cause of the plaintiffs own injury being the defendant's lack of due care. In the instant
case, no contributory negligence can be imputed to the private respondent, considering the following
test formulated in the early case of Picart v. Smith, 37 Phil. 809 (1918):

The test by which to determine the existence of negligence in a particular case may
be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent man would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of the negligence in a given
case is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or
 negligent in the man of ordinary intelligence and prudence and determines liability by
that.

The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and
in view of the facts involved in the particular case. Abstract speculations cannot be
here of much value but this much can be profitably said: Reasonable men-overn their
conduct by the circumstances which are before them or known to them. They are
not, and are not supposed to be omniscient of the future. Hence they can be
expected to take care only when there is something before them to suggest or warn
of danger. Could a prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued' If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm, followed by
the ignoring of the suggestion born of this prevision, is always necessary before
negligence can be held to exist.... [Picart v. Smith, supra, p. 813; Emphasis
supplied.]

The private respondent, who was the plaintiff in the case before the lower court, could not have
reasonably foreseen the harm that would befall him, considering the attendant factual
circumstances. Even if the private respondent had been looking where he was going, the step in
question could not easily be noticed because of its construction. As the trial court found:

In connection with the incident testified to, a sketch, Exhibit O, shows a section of the
floorings oil which plaintiff had tripped, This sketch reveals two pavements adjoining
each other, one being elevated by four and one-fourth inches than the other. From
the architectural standpoint the higher, pavement is a step. However, unlike a step
commonly seen around, the edge of the elevated pavement slanted outward as one
walks to one interior of the terrace. The length of the inclination between the edges of
the two pavements is three inches. Obviously, plaintiff had stepped on the inclination
because had his foot landed on the lower pavement he would not have lost his
balance. The same sketch shows that both pavements including the inclined portion
are tiled in red cement, and as shown by the photograph Exhibit A, the lines of the
tilings are continuous. It would therefore be difficult for a pedestrian to see the
inclination especially where there are plenty of persons in the terrace as was the
situation when plaintiff fell down. There was no warning sign to direct one's attention
to the change in the elevation of the floorings. [Rollo, pp. 2829.]

III

Finally, petitioner appeals to this Court the award of damages to private respondent. The liability of
CAA to answer for damages, whether actual, moral or exemplary, cannot be seriously doubted in
view of one conferment of the power to sue and be sued upon it, which, as held in the case of Rayo
v. Court of First Instance, supra, includes liability on a claim for quasi-dilict. In the aforestated case,
the liability of the National Power Corporation to answer for damages resulting from its act of
sudden, precipitate and simultaneous opening of the Angat Dam, which caused the death of several
residents of the area and the destruction of properties, was upheld since the o,rant of the power to
sue and be sued upon it necessarily implies that it can be held answerable for its tortious acts or any
wrongful act for that matter.

With respect to actual or compensatory damages, the law mandates that the same be proven.
 Art. 2199. Except as provided by law or by stipulation, one are entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual on compensatory damages [New
Civil Code].

Private respondent claims P15,589.55 representing medical and hospitalization bills. This Court
finds the same to have been duly proven through the testimony of Dr. Ambrosio Tangco, the
physician who attended to private respondent (Rollo, p. 26) and who Identified Exh. "H" which was
his bill for professional services [Rollo, p. 31].

Concerning the P20,200.00 alleged to have been spent for other expenses such as the
transportation of the two lawyers who had to represent private respondent abroad and the
publication of the postponement notices of the wedding, the Court holds that the same had also
been duly proven. Private respondent had adequately shown the existence of such losses and the
amount thereof in the testimonies before the trial court [CA decision, p. 81. At any rate, the findings
of the Court of Appeals with respect to this are findings of facts [One Heart Sporting Club, Inc. v.
Court of Appeals, G.R. Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161 which, as had been held
time and again, are, as a general rule, conclusive before this Court [Sese v. Intermediate Appellate
Court, G.R. No. 66186, July 31, 1987,152 SCRA 585].

With respect to the P30,000.00 awarded as moral damages, the Court holds private respondent
entitled thereto because of the physical suffering and physical injuries caused by the negligence of
the CAA [Arts. 2217 and 2219 (2), New Civil Code].

With respect to the award of exemplary damages, the Civil Code explicitly, states:

Art. 2229. Exemplary or corrective damages, are imposed, by way of example or

correction for the public good, in addition to the moral, liquidated or compensatory

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant

acted with gross negligence.

Gross negligence which, according to the Court, is equivalent to the term "notorious negligence" and
consists in the failure to exercise even slight care [Caunan v. Compania General de Tabacos, 56
Phil. 542 (1932)] can be attributed to the CAA for its failure to remedy the dangerous condition of the
questioned elevation or to even post a warning sign directing the attention of the viewers to the
change in the elevation of the floorings notwithstanding its knowledge of the hazard posed by such
elevation [Rollo, pp. 28-29; Record oil Appeal, p. 57]. The wanton disregard by the CAA of the safety
of the people using the viewing deck, who are charged an admission fee, including the petitioner
who paid the entrance fees to get inside the vantage place [CA decision, p. 2; Rollo, p. 25] and are,
therefore, entitled to expect a facility that is properly and safely maintained — justifies the award of
exemplary damages against the CAA, as a deterrent and by way of example or correction for the
public good. The award of P40,000.00 by the trial court as exemplary damages appropriately
underscores the point that as an entity changed with providing service to the public, the CAA. like all
other entities serving the public. has the obligation to provide the public with reasonably safe service.

Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1) of the Civil
Code, the same may be awarded whenever exemplary damages are awarded, as in this case,
and,at any rate, under Art. 2208 (11), the Court has the discretion to grant the same when it is just
and equitable.
However, since the Manila International Airport Authority (MIAA) has taken over the management
and operations of the Manila International Airport [renamed Ninoy Aquino International Airport under
Republic Act No. 6639] pursuant to Executive Order No. 778 as amended by executive Orders Nos.
903 (1983), 909 (1983) and 298 (1987) and under Section 24 of the said Exec. Order 778, the MIAA
has assumed all the debts, liabilities and obligations of the now defunct Civil Aeronautics
Administration (CAA), the liabilities of the CAA have now been transferred to the MIAA.

WHEREFORE, finding no reversible error, the Petition for review on certiorari is DENIED and the
decision of the Court of Appeals in CA-G.R. No. 51172-R is AFFIRMED.
 MAKATI SHANGRI-LA V HARPER
FACTS:

In the first week of November 1999, Christian Harper (Harper) came to Manila on a business trip. He
checked in at the Makati Shangri-La Hotel and was billeted at Room 1428. He was due to check out on
November 6, 1999. In the early morning of that date, however, he was murdered inside his hotel room by
still unidentified malefactors.

Thus, the heirs of Christian Harper sued the hotel for damages. Col. Rodrigo de Guzman, the hotels
Security Manager, testified that the management practice prior to the murder of Harper had been to
deploy only one security or roving guard for every three or four floors of the building; that such ratio had
not been enough considering the L-shape configuration of the hotel that rendered the hallways not visible
from one or the other end; and that he had recommended to management to post a guard for each floor,
but his recommendation had been disapproved because the hotel "was not doing well" at that particular
time.

And to prove heirship of the plaintiffs-appellees, they presented several documents which were all kept in
Norway. The documents had been authenticated by the Royal Norwegian Ministry of Foreign Affairs and
also bore the official seal of the Ministry and signature of one, Tanja Sorlie. The documents were also
accompanied by an Authentication by the Consul, Embassy of the Republic of the Philippines in
Stockholm, Sweden to the effect that, Tanja Sorlie was duly authorized to legalize official documents for
the Ministry.

The RTC ruled in favor of Christian Harpers heirs and found the hotel negligent. On appeal, the CA
affirmed the RTC.

ISSUES:
I. Whether or not the heirs substantially complied with the rules on the authentication and proof of
documents set by Section 24 and Section 25 of Rule 132 of the Rules of Court?
II. Whether or not Makati Shangri-La Hotel is liable to pay damages?
HELD:

FIRST ISSUE: The requirements for authentication of documents establishing respondents legal
relationship with the victim as his heirs were complied with.

REMEDIAL LAW:

Although Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1 were not attested by the officer having the legal
custody of the record or by his deputy in the manner required in Section 25 of Rule 132, and said
documents did not comply with the requirement under Section 24 of Rule 132 to the effect that if the
record was not kept in the Philippines a certificate of the person having custody must accompany the
copy of the document that was duly attested stating that such person had custody of the documents, the
deviation was not enough reason to reject the utility of the documents for the purposes they were
intended to serve. The official participation in the authentication process of Tanja Sorlie of the Royal
Ministry of Foreign Affairs of Norway and the attachment of the official seal of that office on each
authentication indicated that Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 were documents of a public
nature in Norway, not merely private documents.

That rules of procedure may be mandatory in form and application does not forbid a showing of
substantial compliance under justifiable circumstances, because substantial compliance does not equate
to a disregard of basic rules. For sure, substantial compliance and strict adherence are not always
incompatible and do not always clash in discord.

SECOND ISSUE: Petitioner was liable due to its own negligence.

CIVIL LAW:
The CA resolved petitioners arguments thuswise: "negligence is defined as the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man would not do. It is a
relative or comparative, not an absolute, term and its application depends upon the situation of the parties
and the degree of care and vigilance which the circumstances reasonably require. In determining whether
or not there is negligence on the part of the parties in a given situation, jurisprudence has laid down the
following test:Did defendant, in doing the alleged negligent act, use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of
negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary conduct of
the discreet pater familias of the Roman law. Liability on the part of the defendant is based upon the fact
that he was in a better situation than the injured person to foresee and prevent the happening of the
injurious occurrence. Moreover, in applying the premises liability rule in the instant case as it is applied in
some jurisdiction in the United States, it is enough that guests are injured while inside the hotel premises
to make the hotelkeeper liable."

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces, the injury, and without which the result would not have occurred.
More comprehensively, proximate cause is that cause acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to
some person might probably result therefrom. To reiterate, defendant-appellant is engaged in a business
imbued with public interest, ergo, it is bound to provide adequate security to its guests.

CA AFFIRMED.
 DYTEBAN V JOSE CHING
Facts

On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo
Catamora, was driving a Nissan van owned by petitioner Dy Teban Trading, Inc.
along the National Highway in Barangay Sumilihon, Butuan City, going
to Surigao City. They were delivering commercial ice to nearby barangays and
municipalities. A Joana Paula passenger bus was cruising on the opposite lane
towards the van. In between the two vehicles was a parked prime mover with a
trailer, owned by private respondent Liberty Forest, Inc.[3]

The night before, at around 10:00 p.m., the prime mover with trailer suffered
a tire blowout. The driver, private respondent Cresilito Limbaga, parked the prime
mover askew occupying a substantial portion of the national highway, on the lane of
the passenger bus. He parked the prime mover with trailer at the shoulder of the road
with the left wheels still on the cemented highway and the right wheels on the sand
and gravel shoulder of the highway.[4] The prime mover was not equipped with
triangular, collapsible reflectorized plates, the early warning device required under
Letter of Instruction No. 229. As substitute, Limbaga placed a banana trunk with
leaves on the front and the rear portion of the prime mover to warn incoming
motorists. It is alleged that Limbaga likewise placed kerosene lighted tin cans on the
front and rear of the trailer.[5]

To avoid hitting the parked prime mover occupying its lane, the incoming
passenger bus swerved to the right, onto the lane of the approaching Nissan van.
Ortiz saw two bright and glaring headlights and the approaching passenger bus. He
pumped his break slowly, swerved to the left to avoid the oncoming bus but the van
hit the front of the stationary prime mover. The passenger bus hit the rear of the
prime mover.[6]

Ortiz and Catamora only suffered minor injuries. The Nissan van, however,
became inoperable as a result of the incident. After the collision, SPO4 Teofilo Pame
conducted an investigation and submitted a police traffic incident investigation
report.[7]
 On October 31, 1995, petitioner Nissan van owner filed a complaint for
damages[8] against private respondents prime mover owner and driver with
the RTCin Butuan City. The Joana Paula passenger bus was not impleaded as
defendant in the complaint.

RTC Disposition

On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban

Trading, Inc. with a fallo reading:

WHEREFORE, judgment is hereby rendered directing, ordaining and

ordering:

a) That defendants Liberty Forest, Inc. and Cresilito M.

Limbaga pay, jointly and solidarily, plaintiff Dy Teban
Trading, Inc. the amounts of P279,832.00 as actual and
compensatory damages, P30,000.00 as attorneys fees
and P5,000.00 as expenses of litigation;
b) That all money claims of plaintiff Rogelio C. Ortiz are
dismissed;
c) That defendant Jose Ching is absolved from any civil
liability or the case against him dismissed;
d) That the counterclaim of all the defendants is dismissed;
and
e) That defendants Liberty Forest, Inc. and Cresilito M.
Limbaga to pay, jointly and solidarily, the costs.

SO ORDERED.[9]

The RTC held that the proximate cause of the three-way vehicular collision
was improper parking of the prime mover on the national highway and the absence
of an early warning device on the vehicle, thus:

The court finds that the proximate cause of the incidents is the
negligence and carelessness attributable to the defendants. When the
trailer being pulled by the prime mover suffered two (2) flat tires at
Sumilihon, the prime mover and trailer were parked haphazardly, as the
right tires of the prime mover were the only ones on the sand and gravel
shoulder of the highway while the left tires and all the tires of the trailer
were on the cemented pavement of the highway, occupying almost the
whole of the right lane on the direction the prime mover and trailer were
traveling. The statement of Limbaga that he could not park the prime
mover and trailer deeper into the sand and gravel shoulder of the highway
to his right because there were banana plants is contradicted by the picture
marked Exhibit F. The picture shows that there was ample space on the
shoulder. If defendant Limbaga was careful and prudent enough, he
should have the prime mover and trailer traveled more distance forward
so that the bodies of the prime mover and trailer would be far more on the
shoulder rather than on the cemented highway when they were parked. x
x x The court has some doubts on the statement of witness-driver Limbaga
that there were banana trunks with leaves and lighted tin cans with crude
oil placed 3 strides in front of the prime mover and behind the trailer
because the testimonies of witnesses Rogelio C. Ortiz, driver of the ice
van, Romeo D. Catamora, helper of the ice van, and Police Traffic
Investigator SPO3 Teofilo M. Pame show that there were no banana
trunks with leaves and lighted tin cans at the scene of the incident. But
even assuming that there were banana trunks with leaves but they were
placed close to the prime mover and trailer as they were placed 3 strides
away which to the mind of the court is equivalent approximately to 3
meters and with this distance, approaching vehicles would have no
sufficient time and space to make a complete stop, especially if the
vehicles are heavy and loaded. If there were lighted tin cans, it was not
explained by the defendants why the driver, especially driver witness
Ortiz, did not see them.

xxxx

Defendant Liberty Forest, Inc. did not exercise the diligence of a good
father of a family in managing and running its business. The evidence on
record shows that it failed to provide its prime mover and trailer with the
required early warning devices with reflectors and it did not keep proper
maintenance and condition of the prime mover and the trailer. The
circumstances show that the trailer were provided with wornout tires and
with only one (1) piece of spare tire. The pictures marked Exhibit 3 and 4
show that two (2) flat tires suffered by the trailer and these two (2) tires
were attached to one of the two (2) I-beams or axles attached to the rear
of the trailer which axle is very near but behind the other axle and with
 the location of the 2 I-beams, it would have the other I-beam that would
have suffered the flat tires as it has to bear the brunt of weight of the D-8
bulldozer. The bulldozer was not loaded directly above the two (2) I-
beams as 2 I-beams, as a pair, were attached at the far rear end of the
trailer.

xxxx

However, defendant Jose Ching should be absolved of any liability as

there is no showing that he is the manager or CEO of defendant Liberty
Forest, Inc. Although in the answer, it is admitted that he is an officer of
the defendant corporation, but it is not clarified what kind of position he
is holding, as he could be an officer as one of the members of the Board
of Directors or a cashier and treasurer of the corporation. Witness
Limbaga in his testimony mentioned a certain Boy Ching as the Manager
but it was never clarified whether or not Boy Ching and defendant Jose
Ching is one and the same person.[10]

Private respondents appealed to the CA.

CA Disposition

On August 28, 2003, the CA reversed the RTC decision, disposing as follows:

WHEREFORE, premises considered, the decision dated August 7,

2001 of the Regional Trial Court, Branch 2, Butuan City in Civil Case No.
4360 is hereby PARTLY MODIFIED by absolving the defendants-
appellants/appellees of any liability to plaintiffs-appellants/appellees by
reason of the incident on July 4, 1995.

The dismissal of the case against Jose Ching, the counterclaim of

defendants-appellants/appellees and the money claim of Rogelio
Ortiz STANDS.

SO ORDERED.[11]

In partly reversing or partly modifying the RTC decision, the CA held that the
proximate cause of the vehicular collision was the failure of the Nissan van to give
way or yield to the right of way of the passenger bus, thus:
 It was stated that the Joana Paula bus in trying to avoid a head-on
collision with the truck, sideswept the parked trailer loaded with
bulldozer.

Evidently, the driver of the Joana Paula bus was aware of the presence on
its lane of the parked trailer with bulldozer. For this reason, it proceeded
to occupy what was left of its lane and part of the opposite lane. The truck
occupying the opposite lane failed to give way or yield the right of way to
the oncoming bus by proceeding with the same speed. The two vehicles
were, in effect, trying to beat each other in occupying a single lane. The
bus was the first to occupy the said lane but upon realizing that the truck
refused to give way or yield the right of way, the bus, as a precaution,
geared to its right where the trailer was parked. Unfortunately, the bus
miscalculated its distance from the parked trailer and its rear right side hit
the protruding blade of the bulldozer then on the top of the parked
trailer. The impact of the collision on its right rear side with the blade of
the bulldozer threw the bus further to the opposite lane, landing its rear
portion on the shoulder of the opposite lane.

xxxx

Facts of the case reveal that when Ortiz, the driver of the truck, failed to
give the Joana Paula bus the space on the road it needed, the latter vehicle
scraped its rear right side on the protruded bulldozer blade and the impact
threw the bus directly on the path of the oncoming truck. This made
plaintiffs-appellants/appellees conclude that the Joana Paula bus occupied
its lane which forced Ortiz, the driver of the truck, to swerve to its left and
ram the front of the parked trailer.

xxxx

The trailer was parked because its two (2) rear-left tires were blown
out. With a bulldozer on top of the trailer and two (2) busted tires, it would
be dangerous and quite impossible for the trailer to further park on the
graveled shoulder of the road. To do so will cause the flat car to tilt and
 may cause the bulldozer to fall from where it was mounted. In fact, it
appeared that the driver of the trailer tried its best to park on the graveled
shoulder since the right-front tires were on the graveled shoulder of the
road.

The lower court erred in stating that the Joana Paula bus swerved to the
left of the truck because it did not see the parked trailer due to lack of
warning sign of danger of any kind that can be seen from a distance. The
damage suffered by the Joana Paula bus belied this assessment. As stated
before, the Joana Paula bus, with the intention of passing first which it did,
first approached the space beside the parked trailer, veered too close to the
parked trailer thereby hitting its rear right side on the protruding bulldozer
blade. Since the damage was on the rear right most of the bus, it was
clearly on the space which was wide enough for a single passing vehicle
but not sufficient for two (2) passing vehicles. The bus was thrown right
to the path of the truck by the impact of the collision of its rear right side
with the bulldozer blade.[12]

The CA disagreed with the RTC that the prime mover did not have an early warning
device. The appellate court accepted the claim of private respondent that Limbaga
placed kerosene lighted tin cans on the front and rear of the trailer which, in Baliwag
Transit, Inc. v. Court of Appeals,[13] may act as substitute early warning device. The
CA stated:

Likewise, it was incorrect for the lower court to state that there was no
warning sign of danger of any kind, most probably referring to the absence
of the triangular reflectorized plates. The police sketch clearly indicated
the stack of banana leaves placed at the rear of the parked trailer. The
trailers driver testified that they placed kerosene lighted tin can at the back
of the parked trailer.

A pair of triangular reflectorized plates is not the only early warning

device allowed by law. The Supreme Court (in Baliwag Transit, Inc. v.
Court of Appeals) held that:

x x x Col. Dela Cruz and Romano testified that they did not
see any early warning device at the scene of the accident.
They were referring to the triangular reflectorized plates in
red and yellow issued by the Land Transportation
 Office. However, the evidence shows that Recontique and
Ecala placed a kerosene lamp or torch at the edge of the road,
near the rear portion of the truck to serve as an early warning
device. This substantially complies with Section 34(g) of the
Land Transportation and Traffic Code x x x

Baliwags argument that the kerosene lamp or torch does not

substantially comply with the law is untenable. The
aforequoted law clearly allows the use not only of an early
warning device of the triangular reflectorized plates variety
but also parking lights or flares visible one hundred meters
away. x x x.

This Court holds that the defendants-appellants/appellees were not

negligent in parking the trailer on the scene of the accident. It would have
been different if there was only one flat tire and defendant-
appellant/appellee Limbaga failed to change the same and left
immediately.

As such, defendants-appellants/appellees are not liable for the damages

suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-
appellants/appellees suffered, they alone must bear them.[14]

Issues

Petitioner raises two issues[15] for Our consideration, to wit:

I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY
AVAILABLE CONCRETE EVIDENCE, ERRONEOUSLY
DETERMINED THAT THERE WERE EARLY WARNING DEVICES
PLACED IN FRONT OF THE DEFENDANT-
APPELLANTS/APPELLEES TRUCK AND FLAT CAR TO WARN
PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR
PRESENCE.

II.
 WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE
LAW ON EARLY WARNING DEVICES IN THE PUBLIC INTEREST.

Our Ruling

The petition is meritorious.

The meat of the petition is whether or not the prime mover is liable for the
damages suffered by the Nissan van. The RTC ruled in the affirmative holding that
the proximate cause of the vehicular collision was the negligence of Limbaga in
parking the prime mover on the national highway without an early warning device
on the vehicle. The CA reversed the RTC decision, holding that the proximate cause
of the collision was the negligence of Ortiz in not yielding to the right of way of the
passenger bus.

Article 2176 of the Civil Code provides that whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict. To sustain a claim based on quasi-delict,
the following requisites must concur: (a) damage suffered by plaintiff; (b) fault or
negligence of defendant; and (c) connection of cause and effect between the fault or
negligence of defendant and the damage incurred by plaintiff.[16]

There is no dispute that the Nissan van suffered damage. That is borne by the records
and conceded by the parties. The outstanding issues are negligence and proximate
cause. Tersely put, the twin issues are: (a) whether or not prime mover driver
Limbaga was negligent in parking the vehicle; and (b) whether or not his negligence
was the proximate cause of the damage to the Nissan van.

Limbaga was negligent in parking the prime

mover on the national highway; he failed to
prevent or minimize the risk to oncoming
motorists.

Negligence is defined as the failure to observe for the protection of the

interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[17] The
Supreme Court stated the test of negligence in the landmark case Picart v.
Smith[18] as follows:

The test by which to determine the existence or negligence in a

particular case may be stated as follows: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an
ordinary person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed
to be supplied by the imaginary conduct of the discreet paterfamilias of
the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that. (Underscoring supplied)

The test of negligence is objective. We measure the act or omission of the

tortfeasor with that of an ordinary reasonable person in the same situation. The test,
as applied to this case, is whether Limbaga, in parking the prime mover, used that
reasonable care and caution which an ordinary reasonable person would have used
in the same situation.

We find that Limbaga was utterly negligent in parking the prime mover askew
on the right side of the national highway. The vehicle occupied a substantial portion
of the national road on the lane of the passenger bus. It was parked at the shoulder
of the road with its left wheels still on the cemented highway and the right wheels
on the sand and gravel shoulder of the highway. It is common sense that the skewed
parking of the prime mover on the national road posed a serious risk to oncoming
motorists. It was incumbent upon Limbaga to take some measures to prevent that
risk, or at least minimize it.

We are unable to agree with the CA conclusion it would have been dangerous and
quite impossible to further park the prime mover on the graveled shoulder of the
road because the prime mover may tilt and the bulldozer may fall off. The
photographs taken after the incident show that it could have been possible for
Limbaga to park the prime mover completely on the shoulder of the national road
without risk to oncoming motorists. We agree with the RTC observation on this
point, thus:

x x x The statement of Limbaga that he could not park the prime mover
and trailer deeper into the sand and gravel shoulder of the highway to his
right because there were banana plants is contradicted by the picture
marked Exhibit F. The picture shows that there was ample space on the
shoulder. If defendant Limbaga was careful and prudent enough, he
should have the prime mover and trailer traveled more distance forward
so that the bodies of the prime mover and trailer would be far more on the
shoulder rather than on the cemented highway when they were
parked. Although at the time of the incident, it was about 4:45 in the
morning and it was drizzling but there is showing that it was pitch dark
that whoever travels along the highway must be extra careful. If the Joana
Paula bus swerved to the lane on which the Nissan ice van was properly
traveling, as prescribed by Traffic Rules and Regulations, it is because the
driver of the bus did not see at a distance the parked prime mover and
trailer on the bus proper lane because there was no warning signs of danger
of any kind that can be seen from a distance.[19]

Limbaga also failed to take proper steps to minimize the risk posed by the improperly
parked prime mover. He did not immediately inform his employer, private
respondent Liberty Forest, Inc., that the prime mover suffered two tire blowouts and
that he could not have them fixed because he had only one spare tire. Instead of
calling for help, Limbaga took it upon himself to simply place banana leaves on the
front and rear of the prime mover to serve as warning to oncoming motorists. Worse,
Limbaga slept on the prime mover instead of standing guard beside the vehicle. By
his own account, Limbaga was sleeping on the prime mover at the time of the
collision and that he was only awakened by the impact of the Nissan van and the
passenger bus on the prime mover.[20]

Limbaga also admitted on cross-examination that it was his first time to drive
the prime mover with trailer loaded with a D-8 caterpillar bulldozer.[21] We find that
private respondent Liberty Forest, Inc. was utterly negligent in allowing a novice
driver, like Limbaga, to operate a vehicle, such as a truck loaded with a bulldozer,
which required highly specialized driving skills. Respondent employer clearly failed
to properly supervise Limbaga in driving the prime mover.
 The RTC noted that private respondent Liberty Forest, Inc. also failed to keep
the prime mover in proper condition at the time of the collision. The prime mover
had worn out tires. It was only equipped with one spare tire. It was for this reason
that Limbaga was unable to change the two blown out tires because he had only one
spare. The bulldozer was not even loaded properly on the prime mover, which caused
the tire blowouts.

All told, We agree with the RTC that private respondent Limbaga was
negligent in parking the prime mover on the national highway. Private respondent
Liberty Forest, Inc. was also negligent in failing to supervise Limbaga and in
ensuring that the prime mover was in proper condition.

The case of Baliwag Transit, Inc. v. Court

of Appeals is inapplicable; Limbaga did not
put lighted kerosene tin cans on the front
and rear of the prime mover.

Anent the absence of an early warning device on the prime mover, the CA
erred in accepting the bare testimony of Limbaga that he placed kerosene lighted tin
cans on the front and rear of the prime mover. The evidence on records belies such
claim. The CA reliance on Baliwag Transit, Inc. v. Court of Appeals[22] as authority
for the proposition that kerosene lighted tin cans may act as substitute early warning
device is misplaced.

First, the traffic incident report did not mention any lighted tin cans on the
prime mover or within the immediate vicinity of the accident. Only banana leaves
were placed on the prime mover. The report reads:

VIII RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No.

7788, with Plate No. LVA-137, driven by one Temestocles Relova v.
Antero, of legal age, married and a resident of San Roque, Kitcharao,
Agusan del Norte, while traveling along the National Highway, coming
from the east going to the west direction, as it moves along the way and
upon reaching Brgy. Sumilihon, Butuan City to evade bumping to the
approaching Nissan Ice Van with Plate No. PNT-247, driven by one
Rogelio Cortez y Ceneza. As the result, the Joana Paula Bus accidentally
busideswept (sic) to the parked Prime Mover with Trailer loaded with
 Bulldozer without early warning device, instead placing only dry banana
leaves three (3) meters at the rear portion of the Trailer, while failure to
place at the front portion, and the said vehicle occupied the whole lane. As
the result, the Joana Paula Bus hit to the left edge blade of the
Bulldozer. Thus, causing the said bus swept to the narrow shouldering,
removing the rear four (4) wheels including the differential and injuring
the above-stated twelve (12) passengers and damaged to the right side
fender above the rear wheel. Thus, causing damage on it. While the Nissan
Ice Van in evading, accidentally swerved to the left lane and accidentally
bumped to the front bumper of the parked Prime Mover with Trailer
loaded with Bulldozer. Thus, causing heavy damage to said Nissan Ice
Van including the cargoes of the said van.[23]

Second, SPO4 Pame, who investigated the collision, testified[24] that only
banana leaves were placed on the front and rear of the prime mover. He did not see
any lighted tin cans in the immediate vicinity of the collision.

Third, the claim of Limbaga that he placed lighted tin cans on the front and
rear of the prime mover belatedly surfaced only during his direct examination.No
allegation to this effect was made by private respondents in their Answer to the
complaint for damages. Petitioners counsel promptly objected to the testimony of
Limbaga, thus:

ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and at the
rear of the prime mover with trailer, will you please describe to us
what this word signs are?
A. We placed a piece of cloth on tin cans and filled them with crude
oil. And these tin cans were lighted and they are like torches. These
two lights or torches were placed in front and at the rear side of the
prime mover with trailer. After each torch, we placed banana
trunk. The banana trunk is placed between the two (2) torches and the
prime mover, both on the rear and on the front portion of the prime
mover.

Q. How far was the lighted tin cans with wick placed in front of the prime
mover.

ATTY. ASIS:
 At this point, we will be objecting to questions particularly referring to the
alleged tin cans as some of the warning-sign devices, considering that
there is no allegation to that effect in the answer of the defendants. The
answer was just limited to the numbers 4 & 5 of the answer. And,
therefore, if we follow the rule of the binding effect of an allegation
in the complaint, then the party will not be allowed to introduce
evidence to attack jointly or rather the same, paragraph 5 states,
warning device consisting of 3 banana trunks, banana items and leaves
were filed. He can be cross-examined in the point, Your Honor.

COURT:
Q. Put that on record that as far as this tin cans are concerned, the plaintiffs
are interposing continuing objections. But the Court will allow the
question.[25]

We thus agree with the RTC that Limbaga did not place lighted tin cans on
the front and rear of the prime mover. We give more credence to the traffic incident
report and the testimony of SPO4 Pame that only banana leaves were placed on the
vehicle. Baliwag Transit, Inc. v. Court of Appeals[26] thus finds no application to the
case at bar.

The skewed parking of the prime mover was

the proximate cause of the collision.

Proximate cause is defined as that cause, which, in natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred. More comprehensively,
proximate cause is that cause acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as natural
and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom.[27]
There is no exact mathematical formula to determine proximate cause. It is based
upon mixed considerations of logic, common sense, policy and precedent.[28]Plaintiff
must, however, establish a sufficient link between the act or omission and the
damage or injury. That link must not be remote or far-fetched; otherwise, no liability
will attach. The damage or injury must be a natural and probable result of the act or
omission. In the precedent-setting Vda. de Bataclan v. Medina,[29] this Court
discussed the necessary link that must be established between the act or omission
and the damage or injury, viz.:

It may be that ordinarily, when a passenger bus overturns, and pins

down a passenger, merely causing him physical injuries, if through some
event, unexpected and extraordinary, the overturned bus is set on fire, say,
by lightning, or if some highwaymen after looting the vehicle sets it on
fire, and the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the
vehicle. But in the present case and under the circumstances obtaining in
the same, we do not hesitate to hold that the proximate cause of the death
of Bataclan was the overturning of the bus, this for the reason that when
the vehicle turned not only on its side but completely on its back, the
leaking of the gasoline from the tank was not unnatural or unexpected;
that the coming of the men with a lighted torch was in response to the call
for help, made not only by the passengers, but most probably, by the driver
and the conductor themselves, and that because it was very dark (about
2:30 in the morning), the rescuers had to carry a light with them; and
coming as they did from a rural area where lanterns and flashlights were
not available, they had to use a torch, the most handy and available; and
what was more natural than that said rescuers should innocently approach
the overturned vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with the torch was to
be expected and was natural sequence of the overturning of the bus, the
trapping of some of its passengers bus, the trapping of some of its
passengers and the call for outside help.

The ruling in Bataclan has been repeatedly cited in subsequent cases as

authority for the proposition that the damage or injury must be a natural or probable
result of the act or omission. Here, We agree with the RTC that the damage caused
to the Nissan van was a natural and probable result of the improper parking of the
prime mover with trailer. As discussed, the skewed parking of the prime mover
posed a serious risk to oncoming motorists. Limbaga failed to prevent or minimize
that risk. The skewed parking of the prime mover triggered the series of events that
led to the collision, particularly the swerving of the passenger bus and the Nissan
van.

Private respondents Liberty Forest, Inc. and Limbaga are liable for all
damages that resulted from the skewed parking of the prime mover. Their liability
includes those damages resulting from precautionary measures taken by other
motorist in trying to avoid collision with the parked prime mover. As We see it, the
passenger bus swerved to the right, onto the lane
of the Nissan van, to avoid colliding with the improperly parked prime mover. The
driver of the Nissan van, Ortiz, reacted swiftly by swerving to the left, onto the lane
of the passenger bus, hitting the parked prime mover. Ortiz obviously would not
have swerved if not for the passenger bus abruptly occupying his vans lane. The
passenger bus, in turn, would not have swerved to the lane of the Nissan van if not
for the prime mover improperly parked on its lane. The skewed parking is the
proximate cause of the damage to the Nissan van.

In Phoenix Construction, Inc. v. Intermediate Appellate Court,[30] this Court

held that a similar vehicular collision was caused by the skewed parking of a dump
truck on the national road, thus:

The conclusion we draw from the factual circumstances outlined

above is that private respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and driving faster than he
should have been. Worse, he extinguished his headlights at or near the
intersection of General Lacuna and General Santos Streets and thus did
not see the dump truck that was parked askew and sticking out onto the
road lane.

Nonetheless, we agree with the Court of First Instance and the

Intermediate Appellate Court that the legal and proximate cause of the
accident and of Dionisios injuries was the wrongful or negligent manner
in which the dump truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable relationship between
petitioner Carbonels negligence on the one hand and the accident and
respondents injuries on the other hand, is quite clear. Put in a slightly
 different manner, the collision of Dionisios car with the dump truck was a
natural and foreseeable consequence of the truck drivers negligence.

xxxx

We believe, secondly, that the truck drivers negligence far from

being a passive and static condition was rather an indispensable and
efficient cause. The collision between the dump truck and the private
respondents car would in all probability not have occurred had the dump
truck not been parked askew without any warning lights or reflector
devices. The improper parking of the dump truck created an unreasonable
risk of injury for anyone driving down General Lacuna Street and for
having so created this risk, the truck driver must be held responsible. In
our view, Dionisios negligence, although later in point of time than the
truck drivers negligence and, therefore, closer to the accident, was not an
efficient intervening or independent cause. What the Petitioner describes
as an intervening cause was no more than a foreseeable consequence of
the risk created by the negligent manner in which the truck driver had
parked the dump truck. In other words, the petitioner truck driver owed a
duty to private respondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had created. Dionisios
negligence was not of an independent and overpowering nature as to cut,
as it were, the chain of causation in fact between the improper parking of
the dump truck and the accident, nor to sever the juris vinculum of
liability. x x x (Underscoring supplied)

We cannot rule on the proportionate or

contributory liability of the passenger bus, if
any, because it was not a party to the case;
joint tortfeasors are solidarily liable.

The CA also faults the passenger bus for the vehicular collision. The appellate
court noted that the passenger bus was aware of the presence of the prime mover on
its lane, but it still proceeded to occupy the lane of the Nissan van. The passenger
bus also miscalculated its distance from the prime mover when it hit the vehicle.

We cannot definitively rule on the proportionate or contributory liability of

the Joana Paula passenger bus vis--vis the prime mover because it was not a party to
the complaint for damages. Due process dictates that the passenger bus must be
given an opportunity to present its own version of events before it can be held liable.
Any contributory or proportionate liability of the passenger bus must be litigated in
a separate action, barring any defense of prescription or laches. Insofar as petitioner
is concerned, the proximate cause of the collision was the improper parking of the
prime mover. It was the improper parking of the prime mover which set in motion
the series of events that led to the vehicular collision.

Even granting that the passenger bus was at fault, its fault will not necessarily
absolve private respondents from liability. If at fault, the passenger bus will be a
joint tortfeasor along with private respondents. The liability of joint tortfeasors is
joint and solidary. This means that petitioner may hold either of them liable for
damages from the collision. In Philippine National Construction Corporation v.
Court of Appeals,[31] this Court held:

According to the great weight of authority, where the concurrent or

successive negligent acts or omission of two or more persons, although
acting independently of each other, are, in combination, the direct and
proximate cause of a single injury to a third person and it is impossible to
determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not have
caused the entire injury, or the same damage might have resulted from the
acts of the other tort-feasor x x x.

In Far Eastern Shipping Company v. Court of Appeals, the Court declared

that the liability of joint tortfeasors is joint and solidary, to wit:

It may be said, as a general rule, that negligence in order to render

a person liable need not be the sole cause of an injury. It is sufficient that
his negligence, concurring with one or more efficient causes other than
plaintiffs, is the proximate cause of the injury. Accordingly, where several
causes combine to produce injuries, a person is not relieved from liability
because he is responsible for only one of them, it being sufficient that the
negligence of the person charged with injury is an efficient cause without
which the injury would not have resulted to as great an extent, and that
such cause is not attributable to the person injured. It is no defense to one
of the concurrent tortfeasors that the injury would not have resulted from
his negligence alone, without the negligence or wrongful acts of the other
concurrent tortfeasors. Where several causes producing an injury are
 concurrent and each is an efficient cause without which the injury would
not have happened, the injury may be attributed to all or any of the causes
and recovery may be had against any or all of the responsible persons
although under the circumstances of the case, it may appear that one of
them was more culpable, and that the duty owed by them to the injured
person was not the same. No actors negligence ceases to be a proximate
cause merely because it does not exceed the negligence of other
actors. Each wrongdoer is responsible for the entire result and is liable as
though his acts were the sole cause of the injury.

There is no contribution between joint tortfeasors whose liability is

solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more
persons, although acting independently, are in combination with the direct
and proximate cause of a single injury to a third person, it is impossible to
determine in what proportion each contributed to the injury and either of
them is responsible for the whole injury. Where their concurring
negligence resulted in injury or damage to a third party, they become joint
tortfeasors and are solidarily liable for the resulting damage under Article
2194 of the Civil Code. (Underscoring supplied)

All told, all the elements of quasi delict have been proven by clear and convincing
evidence. The CA erred in absolving private respondents from liability for the
vehicular collision.

Final Note

It is lamentable that the vehicular collision in this case could have been easily
avoided by following basic traffic rules and regulations and road safety standards. In
hindsight, private respondent Limbaga could have prevented the three-way vehicular
collision if he had properly parked the prime mover on the shoulder of the national
road. The improper parking of vehicles, most especially along the national highways,
poses a serious and unnecessary risk to the lives and limbs of other motorists and
passengers. Drivers owe a duty of care to follow basic traffic rules and regulations
and to observe road safety standards. They owe that duty not only for their own
safety, but also for that of other motorists. We can prevent most vehicular accidents
by simply following basic traffic rules and regulations.

We also note a failure of implementation of basic safety standards, particularly

the law on early warning devices. This applies even more to trucks and big vehicles,
which are prone to mechanical breakdown on the national highway. The law, as
crafted, requires vehicles to be equipped with triangular reflectorized
plates.[32] Vehicles without the required early warning devices are ineligible for
registration.[33] Vehicle owners may also be arrested and fined for non-compliance
with the law.[34]

The Land Transportation Office (LTO) owes a duty to the public to ensure
that all vehicles on the road meet basic and minimum safety features, including that
of early warning devices. It is most unfortunate that We still see dilapidated and
rundown vehicles on the road with substandard safety features. These vehicles not
only pose a hazard to the safety of their occupants but that of other motorists. The
prime mover truck in this case should not have been granted registration because it
failed to comply with the minimum safety features required for vehicles on the road.

It is, indeed, time for traffic enforcement agencies and the LTO to strictly
enforce all pertinent laws and regulations within their mandate.

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

dated August 28, 2003 is hereby SET ASIDE. The RTC decision dated August 7,
2001 is REINSTATED IN FULL.
 ASSOCIATED BANK V TAN

The Facts

The CA narrated the antecedents as follows:

Vicente Henry Tan (hereafter TAN) is a businessman and a regular depositor-creditor

of the Associated Bank (hereinafter referred to as the BANK). Sometime in
September 1990, he deposited a postdated UCPB check with the said BANK in the
amount of P101,000.00 issued to him by a certain Willy Cheng from Tarlac. The
check was duly entered in his bank record thereby making his balance in the amount
of P297,000.00, as of October 1, 1990, from his original deposit
of P196,000.00. Allegedly, upon advice and instruction of the BANK that
the P101,000.00 check was already cleared and backed up by sufficient funds, TAN,
on the same date, withdrew the sum of P240,000.00, leaving a balance
of P57,793.45. A day after, TAN deposited the amount of P50,000.00 making his
existing balance in the amount of P107,793.45, because he has issued several checks
to his business partners, to wit:

CHECK NUMBERS DATE AMOUNT

a. 138814 Sept. 29, 1990 P9,000.00

b. 138804 Oct. 8, 1990 9,350.00
c. 138787 Sept. 30, 1990 6,360.00
d. 138847 Sept. 29, 1990 21,850.00
e. 167054 Sept. 29, 1990 4,093.40
f. 138792 ` Sept. 29, 1990 3,546.00
g. 138774 Oct. 2, 1990 6,600.00
h. 167072 Oct. 10, 1990 9,908.00
i. 168802 Oct. 10, 1990 3,650.00

However, his suppliers and business partners went back to him alleging that the
checks he issued bounced for insufficiency of funds. Thereafter, TAN, thru his
lawyer, informed the BANK to take positive steps regarding the matter for he has
adequate and sufficient funds to pay the amount of the subject checks. Nonetheless,
the BANK did not bother nor offer any apology regarding the incident. Consequently,
TAN, as plaintiff, filed a Complaint for Damages on December 19, 1990, with the
Regional Trial Court of Cabanatuan City, Third Judicial Region, docketed as Civil
Case No. 892-AF, against the BANK, as defendant.
In his [C]omplaint, [respondent] maintained that he ha[d] sufficient funds to pay the
subject checks and alleged that his suppliers decreased in number for lack of trust. As
he has been in the business community for quite a time and has established a good
record of reputation and probity, plaintiff claimed that he suffered embarrassment,
humiliation, besmirched reputation, mental anxieties and sleepless nights because of
the said unfortunate incident. [Respondent] further averred that he continuously lost
profits in the amount of P250,000.00. [Respondent] therefore prayed for exemplary
damages and that [petitioner] be ordered to pay him the sum of P1,000,000.00 by way
of moral damages, P250,000.00 as lost profits, P50,000.00 as attorneys fees plus 25%
of the amount claimed including P1,000.00 per court appearance.

Meanwhile, [petitioner] filed a Motion to Dismiss on February 7, 1991, but the same
was denied for lack of merit in an Order dated March 7, 1991. Thereafter, [petitioner]
BANK on March 20, 1991 filed its Answer denying, among others, the allegations of
[respondent] and alleged that no banking institution would give an assurance to any of
its client/depositor that the check deposited by him had already been cleared and
backed up by sufficient funds but it could only presume that the same has been
honored by the drawee bank in view of the lapse of time that ordinarily takes for a
check to be cleared. For its part, [petitioner] alleged that on October 2, 1990, it gave
notice to the [respondent] as to the return of his UCPB check deposit in the amount
of P101,000.00, hence, on even date, [respondent] deposited the amount
of P50,000.00 to cover the returned check.

By way of affirmative defense, [petitioner] averred that [respondent] had no cause of

action against it and argued that it has all the right to debit the account of the
[respondent] by reason of the dishonor of the check deposited by the [respondent]
which was withdrawn by him prior to its clearing. [Petitioner] further averred that it
has no liability with respect to the clearing of deposited checks as the clearing is being
undertaken by the Central Bank and in accepting [the] check deposit, it merely
obligates itself as depositors collecting agent subject to actual payment by the drawee
bank. [Petitioner] therefore prayed that [respondent] be ordered to pay it the amount
of P1,000,000.00 by way of loss of goodwill, P7,000.00 as acceptance fee
plus P500.00 per appearance and by way of attorneys fees.

Considering that Westmont Bank has taken over the management of the
affairs/properties of the BANK, [respondent] on October 10, 1996, filed an Amended
Complaint reiterating substantially his allegations in the original complaint, except
that the name of the previous defendant ASSOCIATED BANK is now WESTMONT
BANK.

Trial ensured and thereafter, the court rendered its Decision dated December 3, 1996
in favor of the [respondent] and against the [petitioner], ordering the latter to pay the
[respondent] the sum of P100,000.00 by way of moral damages, P75,000.00 as
exemplary damages, P25,000.00 as attorneys fees, plus the costs of this suit. In
making said ruling, it was shown that [respondent] was not officially informed about
the debiting of the P101,000.00 [from] his existing balance and that the BANK merely
allowed the [respondent] to use the fund prior to clearing merely for accommodation
because the BANK considered him as one of its valued clients. The trial court ruled
that the bank manager was negligent in handling the particular checking account of
the [respondent] stating that such lapses caused all the inconveniences to the
[respondent]. The trial court also took into consideration that [respondents] mother
was originally maintaining with the x x x BANK [a] current account as well as [a]
time deposit, but [o]n one occasion, although his mother made a deposit, the same was
not credited in her favor but in the name of another.
[4]

Petitioner appealed to the CA on the issues of whether it was within its

rights, as collecting bank, to debit the account of its client for a dishonored
check; and whether it had informed respondent about the dishonor prior to
debiting his account.

Ruling of the Court of Appeals

Affirming the trial court, the CA ruled that the bank should not have
authorized the withdrawal of the value of the deposited check prior to its
clearing. Having done so, contrary to its obligation to treat respondents account
with meticulous care, the bank violated its own policy. It thereby took upon itself
the obligation to officially inform respondent of the status of his account before
unilaterally debiting the amount of P101,000. Without such notice, it is estopped
from blaming him for failing to fund his account.
The CA opined that, had the P101,000 not been debited, respondent would
have had sufficient funds for the postdated checks he had issued. Thus, the
supposed accommodation accorded by petitioner to him is the proximate cause
of his business woes and shame, for which it is liable for damages.
Because of the banks negligence, the CA awarded respondent moral
damages of P100,000. It also granted him exemplary damages of P75,000 and
attorneys fees of P25,000.
Hence this Petition. [5]

Issue
 In its Memorandum, petitioner raises the sole issue of whether or not the
petitioner, which is acting as a collecting bank, has the right to debit the account
of its client for a check deposit which was dishonored by the drawee bank. [6]

The Courts Ruling

The Petition has no merit.

Sole Issue:
Debit of Depositors Account

Petitioner-bank contends that its rights and obligations under the present
set of facts were misappreciated by the CA. It insists that its right to debit the
amount of the dishonored check from the account of respondent is clear and
unmistakable. Even assuming that it did not give him notice that the check had
been dishonored, such right remains immediately enforceable.
In particular, petitioner argues that the check deposit slip accomplished by
respondent on September 17, 1990, expressly stipulated that the bank was
obligating itself merely as the depositors collecting agent and -- until such time
as actual payment would be made to it -- it was reserving the right to charge
against the depositors account any amount previously credited. Respondent
was allowed to withdraw the amount of the check prior to clearing, merely as
an act of accommodation, it added.
At the outset, we stress that the trial courts factual findings that were
affirmed by the CA are not subject to review by this Court. As petitioner itself
[7]

takes no issue with those findings, we need only to determine the legal
consequence, based on the established facts.

Right of Setoff

A bank generally has a right of setoff over the deposits therein for the
payment of any withdrawals on the part of a depositor. The right of a collecting
[8]

bank to debit a clients account for the value of a dishonored check that has
previously been credited has fairly been established by jurisprudence. To begin
with, Article 1980 of the Civil Code provides that [f]ixed, savings, and current
deposits of money in banks and similar institutions shall be governed by the
provisions concerning simple loan.
 Hence, the relationship between banks and depositors has been held to be
that of creditor and debtor. Thus, legal compensation under Article 1278 of
[9] [10]

the Civil Code may take place when all the requisites mentioned in Article 1279
are present, as follows:
[11]

(1) That each one of the obligors be bound principally, and that he be at the same time
a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are
consumable, they be of the same kind, and also of the same quality if the latter
has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy, commenced by
third persons and communicated in due time to the debtor. [12]

Nonetheless, the real issue here is not so much the right of petitioner to
debit respondents account but, rather, the manner in which it exercised such
right. The Court has held that even while the right of setoff is conceded,
separate is the question of whether that remedy has properly been exercised. [13]

The liability of petitioner in this case ultimately revolves around the issue of
whether it properly exercised its right of setoff. The determination thereof
hinges, in turn, on the banks role and obligations, first, as respondents
depositary bank; and second, as collecting agent for the check in question.

Obligation as
Depositary Bank

In BPI v. Casa Montessori, the Court has emphasized that the banking
[14]

business is impressed with public interest. Consequently, the highest degree of

diligence is expected, and high standards of integrity and performance are even
required of it. By the nature of its functions, a bank is under obligation to treat
the accounts of its depositors with meticulous care. [15]

Also affirming this long standing doctrine, Philippine Bank of Commerce v.

Court of Appeals has held that the degree of diligence required of banks is
[16]

more than that of a good father of a family where the fiduciary nature of their
relationship with their depositors is concerned. Indeed, the banking business
[17]

is vested with the trust and confidence of the public; hence the appropriate
standard of diligence must be very high, if not the highest, degree of
diligence. The standard applies, regardless of whether the account consists
[18]

of only a few hundred pesos or of millions. [19]

The fiduciary nature of banking, previously imposed by case law, is now [20]

enshrined in Republic Act No. 8791 or the General Banking Law of

2000. Section 2 of the law specifically says that the State recognizes the
fiduciary nature of banking that requires high standards of integrity and
performance.
Did petitioner treat respondents account with the highest degree of
care? From all indications, it did not.
It is undisputed -- nay, even admitted -- that purportedly as an act of
accommodation to a valued client, petitioner allowed the withdrawal of the face
value of the deposited check prior to its clearing. That act certainly disregarded
the clearance requirement of the banking system. Such a practice is unusual,
because a check is not legal tender or money; and its value can properly be
[21]

transferred to a depositors account only after the check has been cleared by
the drawee bank. [22]

Under ordinary banking practice, after receiving a check deposit, a

bank either immediately credit the amount to a depositors account; or infuse
value to that account only after the drawee bank shall have paid such
amount. Before the check shall have been cleared for deposit, the collecting
[23]

bank can only assume at its own risk -- as herein petitioner did -- that the check
would be cleared and paid out.
Reasonable business practice and prudence, moreover, dictated that
petitioner should not have authorized the withdrawal by respondent of P240,000
on October 1, 1990, as this amount was over and above his outstanding cleared
balance of P196,793.45. Hence, the lower courts correctly appreciated the
[24]

evidence in his favor.

Obligation as
Collecting Agent

Indeed, the bank deposit slip expressed this reservation:

In receiving items on deposit, this Bank obligates itself only as the Depositors
Collecting agent, assuming no responsibility beyond carefulness in selecting
correspondents, and until such time as actual payments shall have come to its
possession, this Bank reserves the right to charge back to the Depositors account any
amounts previously credited whether or not the deposited item is returned. x x x." [25]
 However, this reservation is not enough to insulate the bank from any
liability. In the past, we have expressed doubt about the binding force of such
conditions unilaterally imposed by a bank without the consent of the
depositor. It is indeed arguable that in signing the deposit slip, the depositor
[26]

does so only to identify himself and not to agree to the conditions set forth at
the back of the deposit slip. [27]

Further, by the express terms of the stipulation, petitioner took upon itself
certain obligations as respondents agent, consonant with the well-settled rule
that the relationship between the payee or holder of a commercial paper and
the collecting bank is that of principal and agent. Under Article 1909 of the
[28] [29]

Civil Code, such bank could be held liable not only for fraud, but also for
negligence.
As a general rule, a bank is liable for the wrongful or tortuous acts and
declarations of its officers or agents within the course and scope of their
employment. Due to the very nature of their business, banks are expected to
[30]

exercise the highest degree of diligence in the selection and supervision of their
employees. Jurisprudence has established that the lack of diligence of a
[31]

servant is imputed to the negligence of the employer, when the negligent or

wrongful act of the former proximately results in an injury to a third person; in
[32]

this case, the depositor.

The manager of the banks Cabanatuan branch, Consorcia Santiago,
categorically admitted that she and the employees under her control had
breached bank policies. They admittedly breached those policies when, without
clearance from the drawee bank in Baguio, they allowed respondent to
withdraw on October 1, 1990, the amount of the check
deposited. Santiago testified that respondent was not officially informed about
the debiting of the P101,000 from his existing balance of P170,000 on October
2, 1990 x x x. [33]

Being the branch manager, Santiago clearly acted within the scope of her
authority in authorizing the withdrawal and the subsequent debiting without
notice. Accordingly, what remains to be determined is whether her actions
proximately caused respondents injury. Proximate cause is that which -- in a
natural and continuous sequence, unbroken by any efficient intervening cause
--produces the injury, and without which the result would not have occurred. [34]

Let us go back to the facts as they unfolded. It is undeniable that the banks
premature authorization of the withdrawal by respondent on October 1, 1990,
triggered -- in rapid succession and in a natural sequence -- the debiting of his
account, the fall of his account balance to insufficient levels, and the
subsequent dishonor of his own checks for lack of funds. The CA correctly
noted thus:

x x x [T]he depositor x x x withdrew his money upon the advice by [petitioner] that
his money was already cleared. Without such advice, [respondent] would not have
withdrawn the sum of P240,000.00. Therefore, it cannot be denied that it was
[petitioners] fault which allowed [respondent] to withdraw a huge sum which he
believed was already his.

To emphasize, it is beyond cavil that [respondent] had sufficient funds for the
check. Had the P101,000.00 not [been] debited, the subject checks would not have
been dishonored. Hence, we can say that [respondents] injury arose from the dishonor
of his well-funded checks. x x x.[35]

Aggravating matters, petitioner failed to show that it had immediately and

duly informed respondent of the debiting of his account. Nonetheless, it argues
that the giving of notice was discernible from his act of depositing P50,000
on October 2, 1990, to augment his account and allow the debiting. This
argument deserves short shrift.
First, notice was proper and ought to be expected. By the bank managers
account, respondent was considered a valued client whose checks had always
been sufficiently funded from 1987 to 1990, until the October imbroglio. Thus,
[36]

he deserved nothing less than an official notice of the precarious condition of

his account.
Second, under the provisions of the Negotiable Instruments Law regarding
the liability of a general indorser and the procedure for a notice of dishonor, it
[37] [38]

was incumbent on the bank to give proper notice to respondent. In Gullas v.

National Bank, the Court emphasized:
[39]

x x x [A] general indorser of a negotiable instrument engages that if the instrument the
check in this case is dishonored and the necessary proceedings for its dishonor are
duly taken, he will pay the amount thereof to the holder (Sec. 66) It has been held by a
long line of authorities that notice of dishonor is necessary to charge an indorser and
that the right of action against him does not accrue until the notice is given.

x x x. The fact we believe is undeniable that prior to the mailing of notice of dishonor,
and without waiting for any action by Gullas, the bank made use of the money
standing in his account to make good for the treasury warrant. At this point recall that
Gullas was merely an indorser and had issued checks in good faith. As to a depositor
who has funds sufficient to meet payment of a check drawn by him in favor of a third
party, it has been held that he has a right of action against the bank for its refusal to
pay such a check in the absence of notice to him that the bank has applied the funds so
deposited in extinguishment of past due claims held against him. (Callahan vs. Bank
of Anderson [1904], 2 Ann. Cas., 203.) However this may be, as to an indorser the
situation is different, and notice should actually have been given him in order that he
might protect his interests.
[40]

Third, regarding the deposit of P50,000 made by respondent on October 2,

1990, we fully subscribe to the CAs observations that it was not unusual for a
well-reputed businessman like him, who ordinarily takes note of the amount of
money he takes and releases, to immediately deposit money in his current
account to answer for the postdated checks he had issued. [41]

Damages

Inasmuch as petitioner does not contest the basis for the award of damages
and attorneys fees, we will no longer address these matters.

WHEREFORE, the Petition is DENIED and the assailed

Decision AFFIRMED. Costs against petitioner.
 FRANCISCO V CHEMICAL

Since 1965, Francisco was the owner and manager of a Caltex station in Teresa, Rizal.
Sometime in March 1993, four persons, including Gregorio Bacsa (Bacsa), came to
Franciscos Caltex station and introduced themselves as employees of
CBCI. Bacsa offered to sell to Francisco a certain quantity of CBCIs diesel fuel.

After checking Bacsas identification card, Francisco agreed to purchase CBCIs diesel
fuel. Francisco imposed the following conditions for the purchase: (1) that Petron
Corporation (Petron) should deliver the diesel fuel to Francisco at his business address
which should be properly indicated in Petrons invoice; (2) that the delivery tank is
sealed; and (3) that Bacsa should issue a separate receipt to Francisco.

The deliveries started on 5 April 1993 and lasted for ten months, or up to 25 January
1994.5 There were 17 deliveries to Francisco and all his conditions were complied
with.

In February 1996, CBCI sent a demand letter to Francisco regarding the diesel fuel
delivered to him but which had been paid for by CBCI.6 CBCI demanded that
Francisco pay CBCI P1,053,527 for the diesel fuel or CBCI would file a complaint
against him in court. Francisco rejected CBCIs demand.

On 16 April 1996, CBCI filed a complaint for sum of money and damages against
Francisco and other unnamed defendants.7 According to CBCI, Petron, on various
dates, sold diesel fuel to CBCI but these were delivered to and received by Francisco.
Francisco then sold the diesel fuel to third persons from whom he received payment.
CBCI alleged that Francisco acquired possession of the diesel fuel without authority
from CBCI and deprived CBCI of the use of the diesel fuel it had paid for. CBCI
demanded payment from Francisco but he refused to pay. CBCI argued that Francisco
should have known that since only Petron, Shell and Caltex are authorized to sell and
distribute petroleum products in the Philippines, the diesel fuel came from
illegitimate, if not illegal or criminal, acts. CBCI asserted that Francisco violated
Articles 19,8 20,9 21,10and 2211 of the Civil Code and that he should be held liable. In
the alternative, CBCI claimed that Francisco, in receiving CBCIs diesel fuel, entered
into an innominatecontract of do ut des (I give and you give) with CBCI for which
Francisco is obligated to pay CBCI P1,119,905, the value of the diesel fuel. CBCI also
prayed for exemplary damages, attorneys fees and other expenses of litigation.

On 20 May 1996, Francisco filed a Motion to Dismiss on the ground of forum

shopping.12 CBCI filed its Opposition.13 In an Order dated 15 November 1996, the
trial court denied Franciscos motion.14

Thereafter, Francisco filed his Answer.15 Francisco explained that he operates the
Caltex station with the help of his family because, in February 1978, he completely
lost his eyesight due to sickness. Francisco claimed that he asked Jovito, his son, to
look into and verify the identity of Bacsa, who introduced himself as a radio operator
and confidential secretary of a certain Mr. Inawat (Inawat), CBCIs manager for
operations. Francisco said he was satisfied with the proof presented by Bacsa. When
asked to explain why CBCI was selling its fuel, Bacsa allegedly replied that CBCI
was in immediate need of cash for the salary of its daily paid workers and for petty
cash. Francisco maintained that Bacsa assured him that the diesel fuel was not stolen
property and that CBCI enjoyed a big credit line with Petron. Francisco agreed to
purchase the diesel fuel offered by Bacsa on the following conditions:

1) Defendant [Francisco] will not accept any delivery if it is not company

(Petron) delivered, with his name and address as shipping point properly
printed and indicated in the invoice of Petron, and that the product on the
delivery tank is sealed; [and]

2) Although the original invoice is sufficient evidence of delivery and payment,

under ordinary course of business, defendant still required Mr. Bacsa to issue a
separate receipt duly signed by him acknowledging receipt of the amount stated
in the invoice, for and in behalf of CBCI.16

During the first delivery on 5 April 1993, Francisco asked one of his sons to verify
whether the delivery trucks tank was properly sealed and whether Petron issued the
invoice. Francisco said all his conditions were complied with. There were 17
deliveries made from 5 April 1993 to 25 January 1994 and each delivery was for
10,000 liters of diesel fuel at P65,865.17 Francisco maintained that he acquired the
diesel fuel in good faith and for value. Francisco also filed a counterclaim for
exemplary damages, moral damages and attorneys fees.

In its 21 August 1998 Decision, the trial court ruled in Franciscos favor and dismissed
CBCIs complaint. The dispositive portion of the trial courts 21 August 1998 Decision
reads:

WHEREFORE, Judgment is hereby rendered:

1. Dismissing the complaint dated March 13, 1996 with costs.

2. Ordering plaintiff (CBCI), on the counterclaim, to pay

defendant the amount of P100,000.00 as moral damages
and P50,000.00 as and by way of attorneys fees.

SO ORDERED.18

CBCI appealed to the Court of Appeals.19 CBCI argued that Francisco acquired the
diesel fuel from Petron without legal ground because Bacsa was not authorized to
deliver and sell CBCIs diesel fuel. CBCI added that Francisco acted in bad faith
because he should have inquired further whether Bacsas sale of CBCIs diesel fuel was
legitimate.

In its 31 May 2010 Decision, the Court of Appeals set aside the trial courts 21 August
1998 Decision and ruled in CBCIs favor. The dispositive portion of the Court of
Appeals 31 May 2010 Decision reads:

IN VIEW OF THE FOREGOING, the assailed decision is hereby REVERSED

and SET ASIDE. Antonio Francisco is ordered to pay Chemical Bulk Carriers,
Incorporated the amount of P1,119,905.00 as actual damages.
SO ORDERED.20

On 15 January 2001, Francisco died.21 Franciscos heirs, namely: Nelia E.S. Francisco,
Emilia F. Bertiz, Rebecca E.S. Francisco, Antonio E.S. Francisco, Jr., Socorro
F. Fontanilla, and Jovito E.S. Francisco (heirs of Francisco) filed a motion for
substitution.22 The heirs of Francisco also filed a motion for reconsideration.23 In its
31 August 2010 Resolution, the Court of Appeals granted the motion for substitution
but denied the motion for reconsideration.

Hence, this petition.

The Ruling of the Trial Court

The trial court ruled that Francisco was not liable for damages in favor of CBCI
because the 17 deliveries were covered by original and genuine invoices. The trial
court declared that Bacsa, as confidential secretary of Inawat, was CBCIs authorized
representative who received Franciscos full payment for the diesel fuel. The trial court
stated that if Bacsa was not authorized, CBCI should have sued Bacsa and not
Francisco. The trial court also considered Francisco a buyer in good faith who paid in
full for the merchandise without notice that some other person had a right to or
interest in such diesel fuel. The trial court pointed out that good faith affords
protection to a purchaser for value. Finally, since CBCI was bound by the acts
of Bacsa, the trial court ruled that CBCI is liable to pay damages to Francisco.

The Ruling of the Court of Appeals

The Court of Appeals set aside the trial courts 21 August 1998 Decision and ruled
that Bacsas act of selling the diesel fuel to Francisco was his personal act and, even
if Bacsa connived with Inawat, the sale does not bind CBCI.
The Court of Appeals declared that since Francisco had been in the business of selling
petroleum products for a considerable number of years, his blindness was not a
hindrance for him to transact business with other people. With his condition and
experience, Francisco should have verified whether CBCI was indeed selling diesel
fuel and if it had given Bacsa authority to do so. Moreover, the Court of Appeals
stated that Francisco cannot feign good faith since he had doubts as to the authority
of Bacsa yet he did not seek confirmation from CBCI and contented himself with an
improvised receipt. Franciscos failure to verify Bacsas authority showed that he had
an ulterior motive. The receipts issued by Bacsa also showed his lack of authority
because it was on a plain sheet of bond paper with no letterhead or any indication that
it came from CBCI. The Court of Appeals ruled that Francisco cannot
invoke estoppel because he was at fault for choosing to ignore the tell-tale signs of
petroleum diversion and for not exercising prudence.

The Court of Appeals also ruled that CBCI was unlawfully deprived of the diesel fuel
which, as indicated in the invoices, CBCI had already paid for. Therefore, CBCI had
the right to recover the diesel fuel or its value from Francisco. Since the diesel fuel
can no longer be returned, the Court of Appeals ordered Francisco to give back the
actual amount paid by CBCI for the diesel fuel.

The Issues

The heirs of Francisco raise the following issues:

I. WHETHER THE COURT OF APPEALS ERRED IN NOT

FINDING THAT DEFENDANT ANTONIO FRANCISCO
EXERCISED THE REQUIRED DILIGENCE OF A BLIND
PERSON IN THE CONDUCT OF HIS BUSINESS; and
 II. WHETHER ON THE BASIS OF THE FACTUAL FINDINGS
OF THE COURT OF APPEALS AND THE TRIAL COURT
AND ADMITTED FACTS, IT CAN BE CONCLUDED THAT
THE PLAINTIFF APPROVED EXPRESSLY OR TACITLY
THE TRANSACTIONS.24

The Ruling of the Court

The petition has no merit.

Required Diligence of a Blind Person

The heirs of Francisco argue that the Court of Appeals erred when it ruled that
Francisco was liable to CBCI because he failed to exercise the diligence of a good
father of a family when he bought the diesel fuel. They argue that since Francisco was
blind, the standard of conduct that was required of him was that of a reasonable
person under like disability. Moreover, they insist that Francisco exercised due care in
purchasing the diesel fuel by doing the following: (1) Francisco asked his son to check
the identity of Bacsa; (2) Francisco required direct delivery from Petron; (3) Francisco
required that he be named as the consignee in the invoice; and (4) Francisco required
separate receipts from Bacsa to evidence actual payment.

Standard of conduct is the level of expected conduct that is required by the nature of
the obligation and corresponding to the circumstances of the person, time and
place.25The most common standard of conduct is that of a good father of a family or
that of a reasonably prudent person.26 To determine the diligence which must be
required of all persons, we use as basis the abstract average standard corresponding to
a normal orderly person.27

However, one who is physically disabled is required to use the same degree of care
that a reasonably careful person who has the same physical disability would
use.28Physical handicaps and infirmities, such as blindness or deafness, are treated as
part of the circumstances under which a reasonable person must act. Thus, the
standard of conduct for a blind person becomes that of a reasonable person who is
blind.

We note that Francisco, despite being blind, had been managing and operating the
Caltex station for 15 years and this was not a hindrance for him to transact business
until this time. In this instance, however, we rule that Francisco failed to exercise the
standard of conduct expected of a reasonable person who is blind. First, Francisco
merely relied on the identification card of Bacsa to determine if he was authorized by
CBCI. Francisco did not do any other background check on the identity and authority
of Bacsa. Second, Francisco already expressed his misgivings about the diesel fuel,
fearing that they might be stolen property,29 yet he did not verify with CBCI the
authority of Bacsa to sell the diesel fuel. Third, Francisco relied on the receipts issued
by Bacsa which were typewritten on a half sheet of plain bond paper.30 If Francisco
exercised reasonable diligence, he should have asked for an official receipt issued by
CBCI. Fourth, the delivery to Francisco, as indicated in Petrons invoice, does not
show that CBCI authorized Bacsa to sell the diesel fuel to Francisco. Clearly,
Francisco failed to exercise the standard of conduct expected of a reasonable person
who is blind.

Express or Tacit Approval of the Transaction

The heirs of Francisco argue that CBCI approved expressly or tacitly the transactions.
According to them, there was apparent authority for Bacsa to enter into the
transactions. They argue that even if the agent has exceeded his authority, the
principal is solidarily liable with the agent if the former allowed the later to act as
though he had full powers.31 They insist CBCI was not unlawfully deprived of its
property because Inawat gave Bacsa the authority to sell the diesel fuel and that CBCI
is bound by such action. Lastly, they argue that CBCI should be considered
in estoppel for failure to act during the ten month period that deliveries were being
made to Francisco.

The general principle is that a seller without title cannot transfer a better title than he
has.32 Only the owner of the goods or one authorized by the owner to sell can transfer
title to the buyer.33 Therefore, a person can sell only what he owns or is authorized to
sell and the buyer can, as a consequence, acquire no more than what the seller can
legally transfer.34

Moreover, the owner of the goods who has been unlawfully deprived of it may
recover it even from a purchaser in good faith.35 Thus, the purchaser of property
which has been stolen from the owner has been held to acquire no title to it even
though he purchased for value and in good faith.

The exception from the general principle is the doctrine of estoppel where the owner
of the goods is precluded from denying the sellers authority to sell.36 But in order that
there may be estoppel, the owner must, by word or conduct, have caused or allowed it
to appear that title or authority to sell is with the seller and the buyer must have been
misled to his damage.37

In this case, it is clear that Bacsa was not the owner of the diesel fuel. Francisco was
aware of this but he claimed that Bacsa was authorized by CBCI to sell the diesel fuel.
However, Franciscos claim that Bacsa was authorized is not supported by any
evidence except his self-serving testimony. First, Francisco did not even confirm with
CBCI if it was indeed selling its diesel fuel since it is not one of the oil companies
known in the market to be selling petroleum products. This fact alone should have put
Francisco on guard. Second, it does not appear that CBCI, by some direct and
equivocal act, has clothed Bacsa with the indicia of ownership or apparent authority to
sell CBCIs diesel fuel. Francisco did not state if the identification card presented
by Bacsa indicated that he was CBCIs agent or a mere employee. Third, the receipt
issued by Bacsa was typewritten on a half sheet of plain bond paper. There was no
letterhead or any indication that it came from CBCI. We agree with the Court of
Appeals that this was a personal receipt issued by Bacsa and not an official receipt
issued by CBCI. Consequently, CBCI is not precluded by its conduct from
denying Bacsas authority to sell. CBCI did not hold out Bacsa or allow Bacsa to
appear as the owner or one with apparent authority to dispose of the diesel fuel.

Clearly, Bacsa cannot transfer title to Francisco as Bacsa was not the owner of the
diesel fuel nor was he authorized by CBCI to sell its diesel fuel. CBCI did not commit
any act to clothe Bacsa with apparent authority to sell the diesel fuel that would have
misled Francisco. Francisco, therefore, did not acquire any title over the diesel fuel.
Since CBCI was unlawfully deprived of its property, it may recover from Francisco,
even if Francisco pleads good faith.

WHEREFORE, we DENY the petition. We AFFIRM the 31 May 2010 Decision

and 31 August 2010 Resolution of the Court of Appeals.

 PHIL HAWK V VIVIAN
The facts are as follows:
On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of
Quezon City a Complaint[2] against petitioner Philippine Hawk Corporation and
defendant Margarito Avila for damages based on quasi-delict, arising from a
vehicular accident that occurred on March 17, 1991 in Barangay Buensoceso,
Gumaca, Quezon. The accident resulted in the death of respondents husband, Silvino
Tan, and caused respondent physical injuries.

On June 18, 1992, respondent filed an Amended Complaint,[3] in her own

behalf and in behalf of her children, in the civil case for damages against
petitioner. Respondent sought the payment of indemnity for the death of Silvino Tan,
moral and exemplary damages, funeral and interment expenses, medical and
hospitalization expenses, the cost of the motorcycles repair, attorneys fees, and other
just and equitable reliefs.

The accident involved a motorcycle, a passenger jeep, and a bus with Body
No. 119. The bus was owned by petitioner Philippine Hawk Corporation, and was
then being driven by Margarito Avila.

In its Answer,[4] petitioner denied liability for the vehicular accident, alleging
that the immediate and proximate cause of the accident was the recklessness or lack
of caution of Silvino Tan. Petitioner asserted that it exercised the diligence of a good
father of the family in the selection and supervision of its employees, including
Margarito Avila.

On March 25, 1993, the trial court issued a Pre-trial Order[5] stating that the
parties manifested that there was no possibility of amicable settlement between
them. However, they agreed to stipulate on the following facts:

1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff

Vivian Lee Tan and her husband Silvino Tan, while on board a
motorcycle with [P]late No. DA-5480 driven by the latter, and a Metro
Bus with [P]late No. NXR-262 driven by Margarito Avila, were
involved in an accident;
 2. As a result of the accident, Silvino Tan died on the spot while plaintiff
Vivian Lee Tan suffered physical injuries which necessitated medical
attention and hospitalization;
3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee
Tan and four children, three of whom are now residents of the United
States; and
4. Defendant Margarito Avila is an employee of defendant Philippine
Hawk.[6]

The parties also agreed on the following issues:

1. Whether or not the proximate cause of the accident causing physical

injuries upon the plaintiff Vivian Lee Tan and resulting in the death of
the latters husband was the recklessness and negligence of Margarito
Avila or the deceased Silvino Tan; and
2. Whether or not defendant Philippine Hawk Transport Corporation
exercised the diligence of a good father of the family in the selection
and supervision of its driver Margarito Avila.[7]

Respondent testified that on March 17, 1991, she was riding on

their motorcycle in tandem with her husband, who was on the wheel, at a place after
a Caltex gasoline station in Barangay Buensoceso, Gumaca, Quezon on the way to
Lopez, Quezon. They came from the Pasumbal Machine Shop, where they inquired
about the repair of their tanker. They were on a stop position at the side of the
highway; and when they were about to make a turn, she saw a bus running at fast
speed coming toward them, and then the bus hit a jeep parked on the roadside, and
their motorcycle as well. She lost consciousness and was brought to the hospital in
Gumaca, Quezon, where she was confined for a week. She was later transferred to
St. Lukes Hospital in Quezon City, Manila. She suffered a fracture on her left chest,
her left arm became swollen, she felt pain in her bones, and had high blood
pressure.[8]
Respondents husband died due to the vehicular accident. The immediate cause
of his death was massive cerebral hemorrhage.[9]
Respondent further testified that her husband was leasing[10] and operating a
Caltex gasoline station in Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave them an income of P3,000.00
a month or P36,000.00 a year.[11]

Ernest Ovial, the driver of the passenger jeep involved in the accident, testified
that in the afternoon of March 17, 1991, his jeep was parked on the left side of the
highway near the Pasumbal Machine Shop. He did not notice the motorcycle before
the accident. But he saw the bus dragging the motorcycle along the highway, and
then the bus bumped his jeep and sped away.[12]

For the defense, Margarito Avila, the driver of petitioners bus, testified that
on March 17, 1999, at about 4:30 p.m., he was driving his bus at 60 kilometers per
hour on the Maharlika Highway. When they were at Barangay Buensoceso, Gumaca,
Quezon, a motorcycle ran from his left side of the highway, and as the bus came
near, the motorcycle crossed the path of the bus, and so he turned the bus to the right.
He heard a loud banging sound. From his side mirror, he saw that the motorcycle
turned turtle (bumaliktad). He did not stop to help out of fear for his life, but drove
on and surrendered to the police. He denied that he bumped the motorcycle.[13]

Avila further testified that he had previously been involved in sideswiping

incidents, but he forgot how many times.[14]

Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the
left side of the bus that was running at 40 kilometers per hour.[15]

Domingo S. Sisperes, operations officer of petitioner, testified that, like their

other drivers, Avila was subjected to and passed the following requirements:

(1) Submission of NBI clearance;

(2) Certification from his previous employer that he had no bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill; and
(5) Review of his driving skill every six months.[16]

Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon,

testified that the bus was running on the highway on a straight path when a
motorcycle, with a woman behind its driver, suddenly emerged from the left side of
the road from a machine shop. The motorcycle crossed the highway in a zigzag
manner and bumped the side of the bus.[17]

In its Decision dated March 16, 2001, the trial court rendered judgment against
petitioner and defendant Margarito Avila, the dispositive portion of which reads:

ACCORDINGLY, MARGARITO AVILA is adjudged guilty of

simple negligence, and judgment is hereby rendered in favor of the
plaintiff Vivian Lee Tan and h[er] husbands heirs ordering the defendants
Philippine Hawk Corporation and Margarito Avila to pay them jointly and
solidarily the sum of P745,575.00 representing loss of earnings and actual
damages plus P50,000.00 as moral damages.[18]

The trial court found that before the collision, the motorcycle was on the left
side of the road, just as the passenger jeep was. Prior to the accident, the motorcycle
was in a running position moving toward the right side of the highway. The trial
court agreed with the bus driver that the motorcycle was moving ahead of the bus
from the left side of the road toward the right side of the road, but disagreed that the
motorcycle crossed the path of the bus while the bus was running on the right side
of the road.[19]

The trial court held that if the bus were on the right side of the highway, and
Margarito Avila turned his bus to the right in an attempt to avoid hitting the
motorcyle, then the bus would not have hit the passenger jeep, which was then
parked on the left side of the road. The fact that the bus also hit the passenger jeep
showed that the bus must have been running from the right lane to the left lane of
the highway, which caused the collision with the motorcycle and the passenger jeep
parked on the left side of the road. The trial court stated that since Avila saw the
motorcycle before the collision, he should have stepped on the brakes and slowed
down, but he just maintained his speed and veered to the left.[20] The trial court found
Margarito Avila guilty of simple negligence.

The trial court held petitioner bus company liable for failing to exercise the
diligence of a good father of the family in the selection and supervision of Avila,
having failed to sufficiently inculcate in him discipline and correct behavior on the
road.[21]

On appeal, the Court of Appeals affirmed the decision of the trial court with
modification in the award of damages. The dispositive portion of the decision reads:

WHEREFORE, foregoing premises considered, the appeal is

DENIED. The assailed decision dated March 16, 2001 is hereby
AFFIRMED with MODIFICATION.Appellants Philippine Hawk and
Avila are hereby ordered to pay jointly and severally appellee the
following amount: (a) P168,019.55 as actual damages; (b) P10,000.00 as
temperate damages; (c) P100,000.00 as moral damages; (d) P590,000.00
as unearned income; and (e) P50,000.00 as civil indemnity.[22]

Petitioner filed this petition, raising the following issues:

1) The Court of Appeals committed grave abuse of discretion amounting to

lack of jurisdiction in passing upon an issue, which had not been raised on
appeal, and which had, therefore, attained finality, in total disregard of the
doctrine laid down by this Court in Abubakar v. Abubakar, G.R. No.
134622, October 22, 1999.

2) The Court of Appeals committed reversible error in its finding that the
petitioners bus driver saw the motorcycle of private respondent executing
a U-turn on the highway about fifteen (15) meters away and thereafter held
that the Doctrine of Last Clear was applicable to the instant case. This was
a palpable error for the simple reason that the aforesaid distance was the
distance of the witness to the bus and not the distance of the bus to the
respondents motorcycle, as clearly borne out by the records.

3) The Court of Appeals committed reversible error in awarding damages in

total disregard of the established doctrine laid down in Danao v. Court of
Appeals, 154 SCRA 447 and Viron Transportation Co., Inc. v. Delos
Santos, G.R. No. 138296, November 22, 2000.[23]
 In short, the issues raised by petitioner are: (1) whether or not negligence may
be attributed to petitioners driver, and whether negligence on his part was the
proximate cause of the accident, resulting in the death of Silvino Tan and causing
physical injuries to respondent; (2) whether or not petitioner is liable to
respondent for damages; and (3) whether or not the damages awarded by respondent
Court of Appeals are proper.

Petitioner seeks a review of the factual findings of the trial court, which were
sustained by the Court of Appeals, that petitioners driver was negligent in driving
the bus, which caused physical injuries to respondent and the death of respondents
husband.
The rule is settled that the findings of the trial court, especially when affirmed
by the Court of Appeals, are conclusive on this Court when supported by the
evidence on record.[24] The Court has carefully reviewed the records of this case, and
found no cogent reason to disturb the findings of the trial court, thus:
The Court agree[s] with the bus driver Margarito that the
motorcycle was moving ahead of the bus towards the right side from
the left side of the road, but disagrees with him that it crossed the path of
the bus while the bus was running on the right side of the highway.

If the bus were on the right side of the highway and Margarito
turned his bus to the right in an attempt to avoid hitting it, then the bus
would not have hit the passenger jeep vehicle which was then parked on
the left side of the road. The fact that the bus hit the jeep too, shows that
the bus must have been running to the left lane of the highway from right
to the left, that the collision between it and the parked jeep and the moving
rightways cycle became inevitable. Besides, Margarito said he saw the
motorcycle before the collision ahead of the bus; that being so, an extra-
cautious public utility driver should have stepped on his brakes and
slowed down. Here, the bus never slowed down, it simply maintained its
highway speed and veered to the left. This is negligence indeed.[25]

Petitioner contends that the Court of Appeals was mistaken in stating that the
bus driver saw respondents motorcycle about 15 meters away before the collision,
because the said distance, as testified to by its witness Efren Delantar Ong, was Ongs
distance from the bus, and not the distance of the bus from the motorcycle. Petitioner
asserts that this mistaken assumption of the Court of Appeals made it conclude that
the bus driver, Margarito Avila, had the last clear chance to avoid the accident, which
was the basis for the conclusion that Avila was guilty of simple negligence.

A review of the records showed that it was petitioners witness, Efren Delantar
Ong, who was about 15 meters away from the bus when he saw the vehicular
accident.[26] Nevertheless, this fact does not affect the finding of the trial court that
petitioners bus driver, Margarito Avila, was guilty of simple negligence as affirmed
by the appellate court. Foreseeability is the fundamental test of negligence.[27] To be
negligent, a defendant must have acted or failed to act in such a way that an ordinary
reasonable man would have realized that certain interests of certain persons were
unreasonably subjected to a general but definite class of risks.[28]

In this case, the bus driver, who was driving on the right side of the road,
already saw the motorcycle on the left side of the road before the
collision.However, he did not take the necessary precaution to slow down, but drove
on and bumped the motorcycle, and also the passenger jeep parked on the left side
of the road, showing that the bus was negligent in veering to the left lane, causing it
to hit the motorcycle and the passenger jeep.

Whenever an employees negligence causes damage or injury to another, there

instantly arises a presumption that the employer failed to exercise the due diligence
of a good father of the family in the selection or supervision of its employees.[29] To
avoid liability for a quasi-delict committed by his employee, an employer must
overcome the presumption by presenting convincing proof that he exercised the care
and diligence of a good father of a family in the selection and supervision of his
employee.[30]

The Court upholds the finding of the trial court and the Court of Appeals that
petitioner is liable to respondent, since it failed to exercise the diligence of a good
father of the family in the selection and supervision of its bus driver, Margarito
Avila, for having failed to sufficiently inculcate in him discipline and correct
behavior on the road. Indeed, petitioners tests were concentrated on the ability to
drive and physical fitness to do so. It also did not know that Avila had been
previously involved in sideswiping incidents.
As regards the issue on the damages awarded, petitioner contends that it was
the only one that appealed the decision of the trial court with respect to the award of
actual and moral damages; hence, the Court of Appeals erred in awarding other kinds
of damages in favor of respondent, who did not appeal from the trial courts decision.

Petitioners contention is unmeritorious.

Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:

SEC. 8. Questions that may be decided. -- No error which does not

affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein will be considered
unless stated in the assignment of errors, or closely related to or dependent
on an assigned error and properly argued in the brief, save as the court
pass upon plain errors and clerical errors.

Philippine National Bank v. Rabat[31] cited the book[32] of Justice Florenz D.

Regalado to explain the section above, thus:

In his book, Mr. Justice Florenz D. Regalado commented on this

section, thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule,
now includes some substantial changes in the rules on assignment of
errors. The basic procedural rule is that only errors claimed and assigned
by a party will be considered by the court, except errors affecting its
jurisdiction over the subject matter. To this exception has now been added
errors affecting the validity of the judgment appealed from or the
proceedings therein.
Also, even if the error complained of by a party is not expressly
stated in his assignment of errors but the same is closely related to or
dependent on an assigned error and properly argued in his brief, such error
may now be considered by the court. These changes are of jurisprudential
origin.
2. The procedure in the Supreme Court being generally the
same as that in the Court of Appeals, unless otherwise indicated (see
Secs. 2 and 4, Rule 56), it has been held that the latter is clothed with
ample authority to review matters, even if they are not assigned as
errors on appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case. Also, an unassigned error closely
 related to an error properly assigned (PCIB vs. CA, et al., L-34931, Mar.
18, 1988), or upon which the determination of the question raised by error
properly assigned is dependent, will be considered by the appellate court
notwithstanding the failure to assign it as error (Ortigas, Jr. vs. Lufthansa
German Airlines, L-28773, June 30, 1975; Soco vs. Militante, et al., G.R.
No. 58961, June 28, 1983).
It may also be observed that under Sec. 8 of this Rule, the appellate
court is authorized to consider a plain error, although it was not
specifically assigned by the appellant (Dilag vs. Heirs of Resurreccion, 76
Phil. 649), otherwise it would be sacrificing substance for technicalities.[33]

In this case for damages based on quasi-delict, the trial court awarded
respondent the sum of P745,575.00, representing loss of earning capacity
(P590,000.00) and actual damages (P155,575.00 for funeral expenses),
plus P50,000.00 as moral damages. On appeal to the Court of Appeals, petitioner
assigned as error the award of damages by the trial court on the ground that it was
based merely on suppositions and surmises, not the admissions made by respondent
during the trial.

In its Decision, the Court of Appeals sustained the award by the trial court for
loss of earning capacity of the deceased Silvino Tan, moral damages for his death,
and actual damages, although the amount of the latter award was modified.

The indemnity for loss of earning capacity of the deceased is provided for by
Article 2206 of the Civil Code.[34] Compensation of this nature is awarded not for
loss of earnings, but for loss of capacity to earn money.[35]

As a rule, documentary evidence should be presented to substantiate the claim

for damages for loss of earning capacity.[36] By way of exception, damages for loss
of earning capacity may be awarded despite the absence of documentary evidence
when: (1) the deceased is self-employed and earning less than the minimum wage
under current labor laws, in which case, judicial notice may be taken of the fact that
in the deceased's line of work no documentary evidence is available; or (2) the
deceased is employed as a daily wage worker earning less than the minimum wage
under current labor laws.[37]
 In this case, the records show that respondents husband was leasing and
operating a Caltex gasoline station in Gumaca, Quezon. Respondent testified that
her husband earned an annual income of one million pesos. Respondent presented
in evidence a Certificate of Creditable Income Tax Withheld at Source for the Year
1990,[38] which showed that respondents husband earned a gross income of
P950,988.43 in 1990. It is reasonable to use the Certificate and respondents
testimony as bases for fixing the gross annual income of the deceased at one million
pesos before respondents husband died on March 17, 1999. However, no
documentary evidence was presented regarding the income derived from their copra
business; hence, the testimony of respondent as regards such income cannot be
considered.

In the computation of loss of earning capacity, only net earnings, not gross
earnings, are to be considered; that is, the total of the earnings less expenses
necessary for the creation of such earnings or income, less living and other incidental
expenses.[39] In the absence of documentary evidence, it is reasonable to peg
necessary expenses for the lease and operation of the gasoline station at 80 percent
of the gross income, and peg living expenses at 50 percent of the net income (gross
income less necessary expenses).

In this case, the computation for loss of earning capacity is as follows:

Net Earning = Life Expectancy x Gross Annual Income Reasonable and

Capacity [2/3 (80-age at the (GAI) Necessary
time of death)] Expenses
(80% of GAI)
X = [2/3 (80-65)] x P1,000,000.00 - P800,000.00
X = 2/3 (15) x P200,000.00 - P100,000.00
(Living Expenses)
X = 30/3 x P100,000.00

X = 10 x P100,000.00
X = P1,000,000.00
The Court of Appeals also awarded actual damages for the expenses incurred
in connection with the death, wake, and interment of respondents husband in the
amount of P154,575.30, and the medical expenses of respondent in the amount
of P168,019.55.
 Actual damages must be substantiated by documentary evidence, such as
receipts, in order to prove expenses incurred as a result of the death of the
victim[40] or the physical injuries sustained by the victim. A review of the valid
receipts submitted in evidence showed that the funeral and related expenses
amounted only to P114,948.60, while the medical expenses of respondent amounted
only to P12,244.25, yielding a total of P127,192.85 in actual damages.

Moreover, the Court of Appeals correctly sustained the award of moral

damages in the amount of P50,000.00 for the death of respondents husband. Moral
damages are not intended to enrich a plaintiff at the expense of the
defendant.[41] They are awarded to allow the plaintiff to obtain means, diversions or
amusements that will serve to alleviate the moral suffering he/she has undergone due
to the defendants culpable action and must, perforce, be proportional to the suffering
inflicted.[42]

In addition, the Court of Appeals correctly awarded temperate damages in the

amount of P10,000.00 for the damage caused on respondents motorcycle. Under Art.
2224 of the Civil Code, temperate damages may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot, from the nature of
the case, be proved with certainty. The cost of the repair of the motorcycle was
prayed for by respondent in her Complaint. However, the evidence presented was
merely a job estimate[43] of the cost of the motorcycles repair amounting to P17,
829.00. The Court of Appeals aptly held that there was no doubt that the damage
caused on the motorcycle was due to the negligence of petitioners driver. In the
absence of competent proof of the actual damage caused on the motorcycle or the
actual cost of its repair, the award of temperate damages by the appellate court in the
amount of P10,000.00 was reasonable under the circumstances.[44]

The Court of Appeals also correctly awarded respondent moral damages for
the physical injuries she sustained due to the vehicular accident. Under Art. 2219 of
the Civil Code,[45] moral damages may be recovered in quasi-delicts causing physical
injuries. However, the award of P50,000.00 should be reduced to P30,000.00 in
accordance with prevailing jurisprudence.[46]
 Further, the Court of Appeals correctly awarded respondent civil indemnity
for the death of her husband, which has been fixed by current jurisprudence
at P50,000.00.[47] The award is proper under Art. 2206 of the Civil Code.[48]

In fine, the Court of Appeals correctly awarded civil indemnity for the death
of respondents husband, temperate damages, and moral damages for the physical
injuries sustained by respondent in addition to the damages granted by the trial court
to respondent. The trial court overlooked awarding the additional damages, which
were prayed for by respondent in her Amended Complaint. The appellate court is
clothed with ample authority to review matters, even if they are not assigned as errors
in the appeal, if it finds that their consideration is necessary in arriving at a just
decision of the case.[49]

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals dated August 17, 2004 in CA-G.R. CV No. 70860 is
hereby AFFIRMEDwith MODIFICATION. Petitioner Philippine Hawk
Corporation and Margarito Avila are hereby ordered to pay jointly and severally
respondent Vivian Lee Tan: (a) civil indemnity in the amount of Fifty Thousand
Pesos (P50,000.00); (b) actual damages in the amount of One Hundred Twenty-
Seven Thousand One Hundred Ninety-Two Pesos and Eighty-Five Centavos
( P127,192.85); (c) moral damages in the amount of Eighty Thousand Pesos
(P80,000.00); (d) indemnity for loss of earning capacity in the amount of
One Million Pesos (P1,000,000.00); and (e) temperate damages in the amount of
Ten Thousand Pesos (P10,000.00).

Costs against petitioner.

 LI V SOLIMAN

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a

biopsy of the mass located in her lower extremity at the St. Lukes Medical Center
(SLMC). Results showed that Angelica was suffering
[4]
from osteosarcoma, osteoblastic type, a high-grade (highly malignant) cancer of
the bone which usually afflicts teenage children. Following this diagnosis and as
primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in
order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer
cells, and hence minimize the chances of recurrence and prevent the disease from
spreading to other parts of the patients body (metastasis), chemotherapy was
suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC,
herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died
on September 1, 1993, just eleven (11) days after the (intravenous) administration
of the first cycle of the chemotherapy regimen. Because SLMC refused to release a
death certificate without full payment of their hospital bill, respondents brought the
cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory
at Camp Crame for post-mortem examination. The Medico-Legal Report issued by
said institution indicated the cause of death as Hypovolemic shock secondary to
multiple organ hemorrhages and Disseminated Intravascular Coagulation.[5]

On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of
death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo
Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
them with negligence and disregard of Angelicas safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the
essential precautions in detecting early the symptoms of fatal blood platelet decrease
and stopping early on the chemotherapy, which bleeding led to hypovolemic shock
that caused Angelicas untimely demise. Further, it was specifically averred that
petitioner assured the respondents that Angelica would recover in view of 95%
chance of healing with chemotherapy (Magiging normal na ang anak nyo basta ma-
chemo. 95% ang healing) and when asked regarding the side effects, petitioner
mentioned only slight vomiting, hair loss and weakness (Magsusuka ng kaunti.
Malulugas ang buhok. Manghihina). Respondents thus claimed that they would not
have given their consent to chemotherapy had petitioner not falsely assured them of
its side effects.

In her answer,[8] petitioner denied having been negligent in administering the

chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patients normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they may be, these have the
capacity to compete for nutrients such that the body becomes so weak structurally
(cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events
(sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of
Angelica.

Since the medical records of Angelica were not produced in court, the trial and
appellate courts had to rely on testimonial evidence, principally the declarations of
petitioner and respondents themselves. The following chronology of events was
gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas
surgery and discussed with them Angelicas condition. Petitioner told respondents
that Angelica should be given two to three weeks to recover from the operation
before starting chemotherapy. Respondents were apprehensive due to financial
constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his
jewelry and watch repairing business.[9] Petitioner, however, assured them not to
worry about her professional fee and told them to just save up for the medicines to
be used.

Petitioner claimed that she explained to respondents that even when a tumor
is removed, there are still small lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the
chance of the cancer to recur. She did not give the respondents any assurance that
chemotherapy will cure Angelicas cancer. During these consultations with
respondents, she explained the following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low
count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys;
and (7) darkening of the skin especially when exposed to sunlight. She actually
talked with respondents four times, once at the hospital after the surgery, twice at
her clinic and the fourth time when Angelicas mother called her through long
distance.[10] This was disputed by respondents who countered that petitioner gave
them assurance that there is 95% chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea, vomiting and hair
loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.[12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that
she be readmitted after two or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for

chemotherapy, bringing with them the results of the laboratory tests requested by
petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete
liver function tests.[13] Petitioner proceeded with the chemotherapy by first
administering hydration fluids to Angelica.[14]

The following day, August 19, petitioner began administering three

chemotherapy drugs Cisplatin,[15] Doxorubicin[16] and
[17]
Cosmegen intravenously.Petitioner was supposedly assisted by her trainees Dr.
Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied
having any participation in administering the said chemotherapy drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish

discoloration on Angelicas face.[21] They asked petitioner about it, but she merely
quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes
on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty

breathing and was thus provided with oxygen inhalation apparatus. This time, the
reddish discoloration on Angelicas face had extended to her neck, but petitioner
dismissed it again as merely the effect of medicines.[24] Petitioner testified that she
did not see any discoloration on Angelicas face, nor did she notice any difficulty in
the childs breathing. She claimed that Angelica merely complained of nausea and
was given ice chips.[25]

On August 22, 1993, at around ten oclock in the morning, upon seeing that
their child could not anymore bear the pain, respondents pleaded with petitioner to
stop the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan.
Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point, respondents
asked petitioners permission to bring their child home. Later in the evening,
Angelica passed black stool and reddish urine.[26] Petitioner countered that there was
no record of blackening of stools but only an episode of loose bowel movement
(LBM). Petitioner also testified that what Angelica complained of was carpo-pedal
spasm, not convulsion or epileptic attack, as respondents call it (petitioner described
it in the vernacular as naninigas ang kamay at paa). She then requested for a serum
calcium determination and stopped the chemotherapy. When Angelica was given
calcium gluconate, the spasm and numbness subsided.[27]

The following day, August 23, petitioner yielded to respondents request to

take Angelica home. But prior to discharging Angelica, petitioner requested for a
repeat serum calcium determination and explained to respondents that the
chemotherapy will be temporarily stopped while she observes Angelicas muscle
twitching and serum calcium level. Take-home medicines were also prescribed for
Angelica, with instructions to respondents that the serum calcium test will have to
be repeated after seven days. Petitioner told respondents that she will see Angelica
again after two weeks, but respondents can see her anytime if any immediate
problem arises.[28]

However, Angelica remained in confinement because while still in the

premises of SLMC, her convulsions returned and she also had LBM. Angelica was
given oxygen and administration of calcium continued.[29]

The next day, August 24, respondents claimed that Angelica still suffered
from convulsions. They also noticed that she had a fever and had difficulty
breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She
verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing
and had fever. She then requested for an electrocardiogram analysis, and infused
calcium gluconate on the patient at a stat dose. She further ordered that Angelica be
given Bactrim,[31] a synthetic antibacterial combination drug,[32] to combat any
infection on the childs body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also
saw blood on her anus and urine. When Lina asked petitioner what was happening
to her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of
platelet concentrates were then transfused to Angelica. Petitioner prescribed
Solucortef. Considering that Angelicas fever was high and her white blood cell count
was low, petitioner prescribed Leucomax. About four to eight bags of blood,
consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were
transfused to Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner
also denied that there were gadgets attached to Angelica at that time.[34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said
were blood clots that should not be removed. Respondents claimed that Angelica
passed about half a liter of blood through her anus at around seven oclock that
evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal

and nasogastric tubes were inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was
given more platelet concentrate and fresh whole blood, which petitioner claimed
improved her condition. Petitioner told Angelica not to remove the endotracheal tube
because this may induce further bleeding.[35] She was also transferred to the intensive
care unit to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited
blood and her body turned black. Part of Angelicas skin was also noted to be
shredding by just rubbing cotton on it. Angelica was so restless she removed those
gadgets attached to her, saying Ayaw ko na; there were tears in her eyes and she kept
turning her head. Observing her daughter to be at the point of death, Lina asked for
a doctor but the latter could not answer her anymore.[36] At this time, the attending
physician was Dr. Marbella who was shaking his head saying that Angelicas
platelets were down and respondents should pray for their daughter.Reynaldo
claimed that he was introduced to a pediatrician who took over his daughters case,
Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have
difficulty in her breathing and blood was being suctioned from her stomach. A nurse
was posted inside Angelicas room to assist her breathing and at one point they had
to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that
Angelica already experienced difficulty in urinating and her bowel consisted of
blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital
staff attempted to take blood samples from Angelica but were unsuccessful because
they could not even locate her vein. Angelica asked for a fruit but when it was given
to her, she only smelled it. At this time, Reynaldo claimed he could not find either
petitioner or Dr. Marbella. That night, Angelica became hysterical and started
removing those gadgets attached to her. At three oclock in the morning of
September 1, a priest came and they prayed before Angelica expired. Petitioner
finally came back and supposedly told respondents that there was malfunction or
bogged-down machine.[37]

By petitioners own account, Angelica was merely irritable that day (August
31). Petitioner noted though that Angelicas skin was indeed sloughing off.[38]She
stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube.[39] On
September 1, exactly two weeks after being admitted at SLMC for chemotherapy,
Angelica died.[40] The cause of death, according to petitioner, was septicemia, or
overwhelming infection, which caused Angelicas other organs to fail.[41] Petitioner
attributed this to the patients poor defense mechanism brought about by the cancer
itself.[42]

While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo
claimed that petitioner acted arrogantly and called him names. He was asked to sign
a promissory note as he did not have cash to pay the hospital bill.[43]

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-

Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on
Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist
employed at the Department of Health (DOH) Operations and Management
Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted
the following: (1) there were fluids recovered from the abdominal cavity, which is
not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower
portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5)
kidneys showed appearance of facial shock on account of hemorrhages; and (6)
reddishness on external surface of the spleen. All these were the end result of
hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation. Dr. Vergara opined that this can be attributed to the
chemical agents in the drugs given to the victim, which caused platelet reduction
resulting to bleeding sufficient to cause the victims death.The time lapse for the
production of DIC in the case of Angelica (from the time of diagnosis of sarcoma)
was too short, considering the survival rate of about 3 years. The witness conceded
that the victim will also die of osteosarcoma even with amputation or chemotherapy,
but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara
admitted that she is not a pathologist but her statements were based on the opinion
of an oncologist whom she had interviewed. This oncologist supposedly said that if
the victim already had DIC prior to the chemotherapy, the hospital staff could have
detected it.[44]

On her part, Dr. Balmaceda declared that it is the physicians duty to inform
and explain to the patient or his relatives every known side effect of the procedure
or therapeutic agents to be administered, before securing the consent of the patient
or his relatives to such procedure or therapy. The physician thus bases his assurance
to the patient on his personal assessment of the patients condition and his knowledge
of the general effects of the agents or procedure that will be allowed on the
patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all
known side effects based on studies and observations, even if such will aggravate
the patients condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower
extremity, testified for the defendants. He explained that in case of malignant
tumors, there is no guarantee that the ablation or removal of the amputated part will
completely cure the cancer. Thus, surgery is not enough. The mortality rate of
osteosarcoma at the time of modern chemotherapy and early diagnosis still remains
at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to
other vital organs like the liver, causing systemic complications. The modes of
therapy available are the removal of the primary source of the cancerous growth and
then the residual cancer cells or metastasis should be treated with chemotherapy. Dr.
Tamayo further explained that patients with osteosarcoma have poor defense
mechanism due to the cancer cells in the blood stream. In the case of Angelica, he
had previously explained to her parents that after the surgical procedure,
chemotherapy is imperative so that metastasis of these cancer cells will hopefully be
addressed. He referred the patient to petitioner because he felt that petitioner is a
competent oncologist. Considering that this type of cancer is very aggressive and
will metastasize early, it will cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which caused her
death). Cancer cells in the blood cannot be seen by the naked eye nor detected
through bone scan. On cross-examination, Dr. Tamayo stated that of the more than
50 child patients who had osteogenic sarcoma he had handled, he thought that
probably all of them died within six months from amputation because he did not see
them anymore after follow-up; it is either they died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest skill
and knowledge in the administration of chemotherapy drugs on Angelica but despite
all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that
he considered petitioner one of the most proficient in the treatment of cancer and
that the patient in this case was afflicted with a very aggressive type of cancer
necessitating chemotherapy as adjuvant treatment. Using the standard of negligence
laid down in Picart v. Smith,[47] the trial court declared that petitioner has taken the
necessary precaution against the adverse effect of chemotherapy on the patient,
adding that a wrong decision is not by itself negligence.Respondents were ordered
to pay their unpaid hospital bill in the amount of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial courts
finding that there was no negligence committed by the petitioner in the
administration of chemotherapy treatment to Angelica, found that petitioner as her
attending physician failed to fully explain to the respondents all the known side
effects of chemotherapy. The appellate court stressed that since the respondents have
been told of only three side effects of chemotherapy, they readily consented
thereto. Had petitioner made known to respondents those other side effects which
gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the
blood platelet count, bleeding, infections and eventual death -- respondents could
have decided differently or adopted a different course of action which could have
delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The
attending physician recommended that she undergo chemotherapy treatment after
surgery in order to increase her chances of survival. Appellants consented to the
chemotherapy treatment because they believed in Dr. Rubi Lis representation that
the deceased would have a strong chance of survival after chemotherapy and also
because of the representation of appellee Dr. Rubi Li that there were only three
 possible side-effects of the treatment. However, all sorts of painful side-effects
resulted from the treatment including the premature death of Angelica. The
appellants were clearly and totally unaware of these other side-effects which
manifested only during the chemotherapy treatment. This was shown by the
fact that every time a problem would take place regarding Angelicas condition
(like an unexpected side-effect manifesting itself), they would immediately seek
explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating
in the loss of a love[d] one caused the appellants so much trouble, pain and
suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent

which would entitle plaintiffs-appellants to their claim for damages.

x x x x

WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the

assailed decision is hereby modified to the extent that defendant-appellee Dr. Rubi
Li is ordered to pay the plaintiffs-appellants the following amounts:

1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

4. Attorneys fee of P30,000.00.

[49]
SO ORDERED. (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining

to the respondents all the possible side effects of the chemotherapy on their child,
and in holding her liable for actual, moral and exemplary damages and attorneys
fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy,

including death, petitioner argues that it was foolhardy to imagine her to be all-
knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent
doctor,petitioner cannot possibly predict how a particular patients genetic make-up,
state of mind, general health and body constitution would respond to the
treatment.These are obviously dependent on too many known, unknown and
immeasurable variables, thus requiring that Angelica be, as she was, constantly and
closely monitored during the treatment. Petitioner asserts that she did everything
within her professional competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her
current position as co-director for clinical affairs of the Medical Oncology,
Department of Medicine of SLMC, petitioner contends that in the absence of any
clear showing or proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pre-treatment procedures
done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet
depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads
to bleeding and death. She explains that the response rate to chemotherapy of
patients with osteosarcoma is high, so much so that survival rate is favorable to the
patient. Petitioner then points to some probable consequences if Angelica had not
undergone chemotherapy. Thus, without chemotherapy, other medicines and
supportive treatment, the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a respirator,
or into her kidneys that she would have to undergo dialysis. Indeed, respondents
could have spent as much because of these complications. The patient would have
been deprived of the chance to survive the ailment, of any hope for life and her
quality of life surely compromised. Since she had not been shown to be at fault,
petitioner maintains that the CA erred in holding her liable for the damages suffered
by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for failure to
fully disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.

The petition is meritorious.

 The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available
to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a claim, a patient must
prove that a health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have done, or that
he or she did something that a reasonably prudent provider would not have done;
and that that failure or action caused injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved by opinions
of expert witnesses belonging in the same general neighborhood and in the same
general line of practice as defendant physician or surgeon. The deference of courts
to the expert opinion of qualified physicians stems from the formers realization that
the latter possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating, hence the indispensability of expert
testimonies.[52]

In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to respondents
child was not proven considering that Drs. Vergara and Balmaceda, not being
oncologists or cancer specialists, were not qualified to give expert opinion as to
whether petitioners lack of skill, knowledge and professional competence in failing
to observe the standard of care in her line of practice was the proximate cause of the
patients death. Furthermore, respondents case was not at all helped by the non-
production of medical records by the hospital (only the biopsy result and medical
bills were submitted to the court). Nevertheless, the CA found petitioner liable for
her failure to inform the respondents on all possible side effects of chemotherapy
before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient

relationships goes far back into English common law. As early as 1767, doctors were
charged with the tort of battery (i.e., an unauthorized physical contact with a patient)
if they had not gained the consent of their patients prior to performing a surgery or
procedure. In the United States, the seminal case was Schoendorff v. Society of New
York Hospital[53] which involved unwanted treatment performed by a doctor. Justice
Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give
consent to any medical procedure or treatment: Every human being of adult years
and sound mind has a right to determine what shall be done with his own body; and
a surgeon who performs an operation without his patients consent, commits an
assault, for which he is liable in damages.[54] From a purely ethical norm, informed
consent evolved into a general principle of law that a physician has a duty to disclose
what a reasonably prudent physician in the medical community in the exercise of
reasonable care would disclose to his patient as to whatever grave risks of injury
might be incurred from a proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice of undergoing the
proposed treatment, or alternative treatment, or none at all, may intelligently exercise
his judgment by reasonably balancing the probable risks against the probable
benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose
should not be limited to medical usage as to arrogate the decision on revelation to
the physician alone. Thus, respect for the patients right of self-determination on
particular therapy demands a standard set by law for physicians rather than one
which physicians may or may not impose upon themselves.[57] The scope of
disclosure is premised on the fact that patients ordinarily are persons unlearned in
the medical sciences. Proficiency in diagnosis and therapy is not the full measure of
a physicians responsibility. It is also his duty to warn of the dangers lurking in the
proposed treatment and to impart information which the patient has every right to
expect. Indeed, the patients reliance upon the physician is a trust of the kind which
traditionally has exacted obligations beyond those associated with armslength
transactions.[58] The physician is not expected to give the patient a short medical
education, the disclosure rule only requires of him a reasonable explanation, which
means generally informing the patient in nontechnical terms as to what is at stake;
the therapy alternatives open to him, the goals expectably to be achieved, and the
risks that may ensue from particular treatment or no treatment.[59] As to the issue of
demonstrating what risks are considered material necessitating disclosure, it was
held that experts are unnecessary to a showing of the materiality of a risk to a patients
decision on treatment, or to the reasonably, expectable effect of risk disclosure on
the decision. Such unrevealed risk that should have been made known must further
materialize, for otherwise the omission, however unpardonable, is without legal
consequence. And, as in malpractice actions generally, there must be a causal
relationship between the physicians failure to divulge and damage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral

part of physicians overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common knowledge
that such risks inherent in procedure of very low incidence. Cited as exceptions to
the rule that the patient should not be denied the opportunity to weigh the risks of
surgery or treatment are emergency cases where it is evident he cannot evaluate data,
and where the patient is a child or incompetent.[62] The court thus concluded that the
patients right of self-decision can only be effectively exercised if the patient
possesses adequate information to enable him in making an intelligent choice. The
scope of the physicians communications to the patient, then must be measured by
the patients need, and that need is whatever information is material to the
decision. The test therefore for determining whether a potential peril must be
divulged is its materiality to the patients decision.[63]

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that

for liability of the physician for failure to inform patient, there must be causal
relationship between physicians failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been made, consent to
treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice action based
upon the doctrine of informed consent: (1) the physician had a duty to disclose
material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as
a direct and proximate result of the failure to disclose, the patient consented to
treatment she otherwise would not have consented to; and (4) plaintiff was injured
by the proposed treatment. The gravamen in an informed consent case requires the
plaintiff to point to significant undisclosed information relating to the treatment
which would have altered her decision to undergo it.[64]

Examining the evidence on record, we hold that there was adequate disclosure
of material risks inherent in the chemotherapy procedure performed with the consent
of Angelicas parents. Respondents could not have been unaware in the course of
initial treatment and amputation of Angelicas lower extremity, that her immune
system was already weak on account of the malignant tumor in her knee. When
petitioner informed the respondents beforehand of the side effects of chemotherapy
which includes lowered counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin darkening, there is reasonable
expectation on the part of the doctor that the respondents understood very well that
the severity of these side effects will not be the same for all patients undergoing the
procedure. In other words, by the nature of the disease itself, each patients reaction
to the chemical agents even with pre-treatment laboratory tests cannot be precisely
determined by the physician. That death can possibly result from complications of
the treatment or the underlying cancer itself, immediately or sometime after the
administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most
other major medical procedures, but such conclusion can be reasonably drawn from
the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have

considered the variables in the recommended treatment for their daughter afflicted
with a life-threatening illness. On the other hand, it is difficult to give credence to
respondents claim that petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner who were dealing with grave
conditions such as cancer to have falsely assured patients of chemotherapys success
rate. Besides, informed consent laws in other countries generally require only a
reasonable explanation of potential harms, so specific disclosures such as statistical
data, may not be legally necessary.[65]

The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances.Further, in a medical malpractice action based on lack of informed consent,
the plaintiff must prove both the duty and the breach of that duty through expert
testimony.[66] Such expert testimony must show the customary standard of care of
physicians in the same practice as that of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOHs Operational and Management Services charged with
receiving complaints against hospitals, does not qualify as expert testimony to
establish the standard of care in obtaining consent for chemotherapy treatment. In
the absence of expert testimony in this regard, the Court feels hesitant in defining
the scope of mandatory disclosure in cases of malpractice based on lack of informed
consent, much less set a standard of disclosure that, even in foreign jurisdictions, has
been noted to be an evolving one.
As society has grappled with the juxtaposition between personal
autonomy and the medical profession's intrinsic impetus to cure, the law
defining adequate disclosure has undergone a dynamic evolution. A
standard once guided solely by the ruminations of physicians is now
dependent on what a reasonable person in the patients position regards as
significant. This change in perspective is especially important as medical
breakthroughs move practitioners to the cutting edge of technology, ever
encountering new and heretofore unimagined treatments for currently
 incurable diseases or ailments. An adaptable standard is needed to account
for this constant progression. Reasonableness analyses permeate our legal
system for the very reason that they are determined by social norms,
expanding and contracting with the ebb and flow of societal evolution.

As we progress toward the twenty-first century, we now realize that the

legal standard of disclosure is not subject to construction as a categorical
imperative.Whatever formulae or processes we adopt are only useful as a
foundational starting point; the particular quality or quantity of disclosure will
remain inextricably bound by the facts of each case. Nevertheless, juries that
ultimately determine whether a physician properly informed a patient are inevitably
guided by what they perceive as the common expectation of the medical consumera
reasonable person in the patients position when deciding to accept or reject a
[68]
recommended medical procedure. (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision

dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of
Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of

the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904
is REINSTATED and UPHELD.

No costs.

SO ORDERED.

 CALVO V UCPB

The facts are as follows:

Petitioner Virgines Calvo is the owner of Transorient Container Terminal Services, Inc. (TCTSI), a
sole proprietorship customs broker. At the time material to this case, petitioner entered into a
contract with San Miguel Corporation (SMC) for the transfer of 114 reels of semi-chemical fluting
paper and 124 reels of kraft liner board from the Port Area in Manila to SMC's warehouse at the
Tabacalera Compound, Romualdez St., Ermita, Manila. The cargo was insured by respondent
UCPB General Insurance Co., Inc.

On July 14, 1990, the shipment in question, contained in 30 metal vans, arrived in Manila on board
"M/V Hayakawa Maru" and, after 24 hours, were unloaded from the vessel to the custody of the
arrastre operator, Manila Port Services, Inc. From July 23 to July 25, 1990, petitioner, pursuant to
her contract with SMC, withdrew the cargo from the arrastre operator and delivered it to SMC's
warehouse in Ermita, Manila. On July 25, 1990, the goods were inspected by Marine Cargo
Surveyors, who found that 15 reels of the semi-chemical fluting paper were "wet/stained/torn" and 3
reels of kraft liner board were likewise torn. The damage was placed at P93,112.00.

SMC collected payment from respondent UCPB under its insurance contract for the aforementioned
amount. In turn, respondent, as subrogee of SMC, brought suit against petitioner in the Regional
Trial Court, Branch 148, Makati City, which, on December 20, 1995, rendered judgment finding
petitioner liable to respondent for the damage to the shipment.

The trial court held:

It cannot be denied . . . that the subject cargoes sustained damage while in the custody of
defendants. Evidence such as the Warehouse Entry Slip (Exh. "E"); the Damage Report
(Exh. "F") with entries appearing therein, classified as "TED" and "TSN", which the claims
processor, Ms. Agrifina De Luna, claimed to be tearrage at the end and tearrage at the
middle of the subject damaged cargoes respectively, coupled with the Marine Cargo Survey
Report (Exh. "H" - "H-4-A") confirms the fact of the damaged condition of the subject
cargoes. The surveyor[s'] report (Exh. "H-4-A") in particular, which provides among others
that:

" . . . we opine that damages sustained by shipment is attributable to improper

handling in transit presumably whilst in the custody of the broker . . . ."

is a finding which cannot be traversed and overturned.

The evidence adduced by the defendants is not enough to sustain [her] defense that [she is]
are not liable. Defendant by reason of the nature of [her] business should have devised ways
and means in order to prevent the damage to the cargoes which it is under obligation to take
custody of and to forthwith deliver to the consignee. Defendant did not present any evidence
on what precaution [she] performed to prevent [the] said incident, hence the presumption is
that the moment the defendant accepts the cargo [she] shall perform such extraordinary
diligence because of the nature of the cargo.

....
 Generally speaking under Article 1735 of the Civil Code, if the goods are proved to have
been lost, destroyed or deteriorated, common carriers are presumed to have been at fault or
to have acted negligently, unless they prove that they have observed the extraordinary
diligence required by law. The burden of the plaintiff, therefore, is to prove merely that the
goods he transported have been lost, destroyed or deteriorated. Thereafter, the burden is
shifted to the carrier to prove that he has exercised the extraordinary diligence required by
law. Thus, it has been held that the mere proof of delivery of goods in good order to a carrier,
and of their arrival at the place of destination in bad order, makes out a prima facie case
against the carrier, so that if no explanation is given as to how the injury occurred, the carrier
must be held responsible. It is incumbent upon the carrier to prove that the loss was due to
accident or some other circumstances inconsistent with its liability." (cited in Commercial
Laws of the Philippines by Agbayani, p. 31, Vol. IV, 1989 Ed.)

Defendant, being a customs brother, warehouseman and at the same time a common carrier
is supposed [to] exercise [the] extraordinary diligence required by law, hence the
extraordinary responsibility lasts from the time the goods are unconditionally placed in the
possession of and received by the carrier for transportation until the same are delivered
actually or constructively by the carrier to the consignee or to the person who has the right to
receive the same.3

Accordingly, the trial court ordered petitioner to pay the following amounts --

1. The sum of P93,112.00 plus interest;

2. 25% thereof as lawyer's fee;

3. Costs of suit.4

The decision was affirmed by the Court of Appeals on appeal. Hence this petition for review
on certiorari.

Petitioner contends that:

I. THE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE ERROR [IN]

DECIDING THE CASE NOT ON THE EVIDENCE PRESENTED BUT ON PURE
SURMISES, SPECULATIONS AND MANIFESTLY MISTAKEN INFERENCE.

II. THE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE ERROR IN

CLASSIFYING THE PETITIONER AS A COMMON CARRIER AND NOT AS PRIVATE OR
SPECIAL CARRIER WHO DID NOT HOLD ITS SERVICES TO THE PUBLIC.5

It will be convenient to deal with these contentions in the inverse order, for if petitioner is not a
common carrier, although both the trial court and the Court of Appeals held otherwise, then she is
indeed not liable beyond what ordinary diligence in the vigilance over the goods transported by her,
would require.6 Consequently, any damage to the cargo she agrees to transport cannot be presumed
to have been due to her fault or negligence.

Petitioner contends that contrary to the findings of the trial court and the Court of Appeals, she is not
a common carrier but a private carrier because, as a customs broker and warehouseman, she does
not indiscriminately hold her services out to the public but only offers the same to select parties with
whom she may contract in the conduct of her business.
The contention has no merit. In De Guzman v. Court of Appeals,7 the Court dismissed a similar
contention and held the party to be a common carrier, thus -

The Civil Code defines "common carriers" in the following terms:

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

The above article makes no distinction between one whose principal business activity is the
carrying of persons or goods or both, and one who does such carrying only as
an ancillary activity . . . Article 1732 also carefully avoids making any distinction between a
person or enterprise offering transportation service on a regular or scheduled basis and one
offering such service on an occasional, episodic or unscheduled basis. Neither does Article
1732 distinguish between a carrier offering its services to the "general public," i.e., the
general community or population, and one who offers services or solicits business only from
a narrow segment of the general population. We think that Article 1732 deliberately refrained
from making such distinctions.

So understood, the concept of "common carrier" under Article 1732 may be seen to coincide
neatly with the notion of "public service," under the Public Service Act (Commonwealth Act
No. 1416, as amended) which at least partially supplements the law on common carriers set
forth in the Civil Code. Under Section 13, paragraph (b) of the Public Service Act, "public
service" includes:

" x x x every person that now or hereafter may own, operate, manage, or control in
the Philippines, for hire or compensation, with general or limited clientele, whether
permanent, occasional or accidental, and done for general business purposes, any
common carrier, railroad, street railway, traction railway, subway motor vehicle,
either for freight or passenger, or both, with or without fixed route and whatever may
be its classification, freight or carrier service of any class, express service,
steamboat, or steamship line, pontines, ferries and water craft, engaged in the
transportation of passengers or freight or both, shipyard, marine repair shop, wharf or
dock, ice plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat
and power, water supply and power petroleum, sewerage system, wire or wireless
communications systems, wire or wireless broadcasting stations and other similar
public services. x x x" 8

There is greater reason for holding petitioner to be a common carrier because the transportation of
goods is an integral part of her business. To uphold petitioner's contention would be to deprive those
with whom she contracts the protection which the law affords them notwithstanding the fact that the
obligation to carry goods for her customers, as already noted, is part and parcel of petitioner's
business.

Now, as to petitioner's liability, Art. 1733 of the Civil Code provides:

Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of
the passengers transported by them, according to all the circumstances of each case. . . .

In Compania Maritima v. Court of Appeals,9 the meaning of "extraordinary diligence in the vigilance
over goods" was explained thus:
 The extraordinary diligence in the vigilance over the goods tendered for shipment requires
the common carrier to know and to follow the required precaution for avoiding damage to, or
destruction of the goods entrusted to it for sale, carriage and delivery. It requires common
carriers to render service with the greatest skill and foresight and "to use all reasonable
means to ascertain the nature and characteristic of goods tendered for shipment, and to
exercise due care in the handling and stowage, including such methods as their nature
requires."

In the case at bar, petitioner denies liability for the damage to the cargo. She claims that the
"spoilage or wettage" took place while the goods were in the custody of either the carrying vessel
"M/V Hayakawa Maru," which transported the cargo to Manila, or the arrastre operator, to whom the
goods were unloaded and who allegedly kept them in open air for nine days from July 14 to July 23,
1998 notwithstanding the fact that some of the containers were deformed, cracked, or otherwise
damaged, as noted in the Marine Survey Report (Exh. H), to wit:

MAXU-2062880 - rain gutter deformed/cracked

ICSU-363461-3 - left side rubber gasket on door distorted/partly loose

PERU-204209-4 - with pinholes on roof panel right portion

TOLU-213674-3 - wood flooring we[t] and/or with signs of water soaked

MAXU-201406-0 - with dent/crack on roof panel

ICSU-412105-0 - rubber gasket on left side/door panel partly detached loosened.10

In addition, petitioner claims that Marine Cargo Surveyor Ernesto Tolentino testified that he has no
personal knowledge on whether the container vans were first stored in petitioner's warehouse prior
to their delivery to the consignee. She likewise claims that after withdrawing the container vans from
the arrastre operator, her driver, Ricardo Nazarro, immediately delivered the cargo to SMC's
warehouse in Ermita, Manila, which is a mere thirty-minute drive from the Port Area where the cargo
came from. Thus, the damage to the cargo could not have taken place while these were in her
custody.11

Contrary to petitioner's assertion, the Survey Report (Exh. H) of the Marine Cargo Surveyors
indicates that when the shipper transferred the cargo in question to the arrastre operator, these were
covered by clean Equipment Interchange Report (EIR) and, when petitioner's employees withdrew
the cargo from the arrastre operator, they did so without exception or protest either with regard to the
condition of container vans or their contents. The Survey Report pertinently reads --

Details of Discharge:

Shipment, provided with our protective supervision was noted discharged ex vessel to dock
of Pier #13 South Harbor, Manila on 14 July 1990, containerized onto 30' x 20' secure metal
vans, covered by clean EIRs. Except for slight dents and paint scratches on side and roof
panels, these containers were deemed to have [been] received in good condition.

....

Transfer/Delivery:
 On July 23, 1990, shipment housed onto 30' x 20' cargo containers was [withdrawn] by
Transorient Container Services, Inc. . . . without exception.

[The cargo] was finally delivered to the consignee's storage warehouse located at
Tabacalera Compound, Romualdez Street, Ermita, Manila from July 23/25, 1990.12

As found by the Court of Appeals:

From the [Survey Report], it [is] clear that the shipment was discharged from the vessel to
the arrastre, Marina Port Services Inc., in good order and condition as evidenced by clean
Equipment Interchange Reports (EIRs). Had there been any damage to the shipment, there
would have been a report to that effect made by the arrastre operator. The cargoes were
withdrawn by the defendant-appellant from the arrastre still in good order and condition as
the same were received by the former without exception, that is, without any report of
damage or loss. Surely, if the container vans were deformed, cracked, distorted or dented,
the defendant-appellant would report it immediately to the consignee or make an exception
on the delivery receipt or note the same in the Warehouse Entry Slip (WES). None of these
took place. To put it simply, the defendant-appellant received the shipment in good order and
condition and delivered the same to the consignee damaged. We can only conclude that the
damages to the cargo occurred while it was in the possession of the defendant-appellant.
Whenever the thing is lost (or damaged) in the possession of the debtor (or obligor), it shall
be presumed that the loss (or damage) was due to his fault, unless there is proof to the
contrary. No proof was proffered to rebut this legal presumption and the presumption of
negligence attached to a common carrier in case of loss or damage to the goods.13

Anent petitioner's insistence that the cargo could not have been damaged while in her custody as
she immediately delivered the containers to SMC's compound, suffice it to say that to prove the
exercise of extraordinary diligence, petitioner must do more than merely show the possibility that
some other party could be responsible for the damage. It must prove that it used "all reasonable
means to ascertain the nature and characteristic of goods tendered for [transport] and that [it]
exercise[d] due care in the handling [thereof]." Petitioner failed to do this.

Nor is there basis to exempt petitioner from liability under Art. 1734(4), which provides --

Common carriers are responsible for the loss, destruction, or deterioration of the goods,
unless the same is due to any of the following causes only:

....

(4) The character of the goods or defects in the packing or in the containers.

....

For this provision to apply, the rule is that if the improper packing or, in this case, the defect/s in the
container, is/are known to the carrier or his employees or apparent upon ordinary observation, but
he nevertheless accepts the same without protest or exception notwithstanding such condition, he is
not relieved of liability for damage resulting therefrom.14 In this case, petitioner accepted the cargo
without exception despite the apparent defects in some of the container vans. Hence, for failure of
petitioner to prove that she exercised extraordinary diligence in the carriage of goods in this case or
that she is exempt from liability, the presumption of negligence as provided under Art. 173515 holds.
WHEREFORE, the decision of the Court of Appeals, dated May 31, 2001, is AFFIRMED. 1

 RIDJO TAPE V CA
Before us is a petition to review the decision of the Court of Appeals which reversed
[1]

that of the Regional Trial Court of Quezon City, Branch 104 in Civil Case Nos. Q-92-
13845 and Q-92-13879 ordering petitioners to pay private respondent Manila Electric Co.
(MERALCO) the amount of P415,317.66 and P89,710.58 plus the costs of suit. This
petition involves the two cases filed by petitioners which were eventually consolidated.
Civil Case No. Q-92-13845:
On November 16, 1990, petitioners applied for and was granted electric service by
MERALCO. Ten months later, however, or on September 4, 1991, petitioners received a
letter from MERALCO demanding payment of P415,317.66, allegedly representing
unregistered electric consumption for the period November 7, 1990, to February 13,
1991.MERALCO justified its demand on the ground that the unregistered electric
consumption was due to the defects of the electric meter located in the premises of
petitioners.
Since petitioners refused to pay the amount, MERALCO notified them that in the
event the overdue account remained unpaid, it would be forced to disconnect their
electricity. Alarmed by this development, petitioners, instead of settling the amount, filed
on October 29, 1992 a case before Branch 98 of the Quezon City RTC for the issuance
of a writ of preliminary injunction and/or temporary restraining order to forestall any
planned disconnection by MERALCO.
On November 19, 1992, the trial court granted the prayer for preliminary injunction.
Civil Case No. 13879:
On July 30, 1992, petitioners received another demand letter from MERALCO, this
time requiring them to pay the amount of P89,710.58 representing the unregistered
electric consumption for the period July 15, 1991 to April 13, 1992, the deficiency again
due to the defective meter installed in petitioners compound.
MERALCOs demand having remained unheeded, petitioners were advised that their
electric service would be disconnected without further notice. Hence, on November 5,
1992, petitioners filed a case before Branch 104 of the Quezon City RTC, seeking to
enjoin MERALCO from implementing the suspension of electric service.
Thereafter, on November 9, 1992, petitioners filed a motion for the consolidation of
the two cases, which was granted, resulting in the joint trial of said cases before Branch
104 of the Quezon City RTC.
On November 27, 1992, the trial court issued the corresponding preliminary
injunction.
After due trial, the lower court rendered a decision, the dispositive portion of which
reads:

WHEREFORE, judgment is hereby rendered in this case in favor of the plaintiff(s) and
against the defendants:
1. Making the Injunction permanent, enjoining the defendants in both cases, and all their
subordinates, legal representatives, electric meter readers and technicians from
committing acts of dispossession/disruption of electric power on the subject premises
located at the compound of Ridjo Tape and Chemical Corporation and Ridjo Paper
Corporation located at 64 and 68 Judge Juan Luna St., San Francisco del Monte,
Quezon City.

2. Ordering defendants to pay the cost of suit.

Defendants counterclaim on (the) two cases are (sic) denied for lack of merit.

MERALCO appealed to the Court of Appeals which, on January 22, 1996, reversed
the trial courts finding, to wit:

WHEREFORE, the appealed judgment is REVERSED; and appellees Ridjo Tape and
Chemical Corporation and Ridjo Paper Corporation are hereby ordered to pay subject
differential billings of P415,317.66 and P89,710.58, respectively. Costs against the
appellees.[2]

Aggrieved, petitioners filed a motion for reconsideration, which was denied by the
Court of Appeals in a resolution dated August 14, 1996. Hence, this petition.
[3]

From the pleadings filed by the parties, it can be deduced that the only issue to be
resolved is whether petitioners, despite the absence of evidence of tampering, are liable
to pay for the unregistered electrical service.
For a better understanding of the two cases, the terms and conditions of the Service
Agreement regarding payments are reproduced:

PAYMENTS

Bills will be rendered by the Company to the Customer monthly in accordance with the
applicable rate schedule. Said Bills are payable to collectors or at the main or branch
offices of the Company or at its authorized banks within ten (10) days after the regular
reading date of the electric meters. The word month as used herein and in the rate
schedule is hereby defined to be the elapsed time between two succeeding meter
readings approximately thirty (30) days apart. In the event of the stoppage or the failure
by any meter to register the full amount of energy consumed, the Customer shall be
billed for such period on an estimated consumption based upon his use of energy in a
similar period of like use. (Underscoring supplied)

In disclaiming any liability, petitioners assert that the phrase stoppage or failure by
any meter to register the full amount of energy consumed can only refer to tampering on
the part of the customer and not mechanical failure or defects. MERALCO, on the other
[4]

hand, argues that to follow the interpretation advanced by petitioners would constitute an
unjust enrichment in favor of its customers.[5]
 Evidently, the Service Contract between petitioners and MERALCO partakes of the
nature of a contract of adhesion as it was prepared solely by the latter, the only
participation of the former being that they affixed or adhered their signature thereto, thus,
[6]

leaving no room for negotiation and depriving petitioners of the opportunity to bargain on
equal footing. Nevertheless, these types of contracts have been declared to be binding
[7]

as ordinary contracts because the party adhering thereto is free to reject it in its entirety. [8]

Being an ordinary contract, therefore, the principle that contracting parties can make
stipulations in their contract provided they are not contrary to law, morals, good customs,
public order or public policy, stands strong and true. To be sure, contracts are respected
[9]

as laws between the contracting parties, and they may establish such stipulations,
clauses, terms and conditions as they may want to include. Since both parties offered
[10]

conflicting interpretations of the stipulation, however, then judicial determination of the

parties intention is mandated. In this regard, it must be stressed that in construing a
[11]

written contract, the reason behind and the circumstances surrounding its execution are
of paramount importance to place the interpreter in the situation occupied by the parties
concerned at the time the writing was executed. [12]

With these pronouncement as parameters, and considering the circumstances of the

parties, we are constrained to uphold MERALCOs interpretation.
At this juncture, we hasten to point out that the production and distribution of electricity
is a highly technical business undertaking, and in conducting its operation, it is only
[13]

logical for public utilities, such as MERALCO, to employ mechanical devices and
equipment for the orderly pursuit of its business.
It is to be expected that the parties were consciously aware that these devices or
equipment are susceptible to defects and mechanical failure. Hence, we are not prepared
to believe that petitioners were ignorant of the fact that stoppages in electric meters can
also result from inherent defects or flaws and not only from tampering or intentional
mishandling.
Clearly, therefore, the rationale of the provision in the Service Agreement was
primarily to cover situations similar to the instant case, for there are instances when
electric meters do fail to record the quantity of the current used for whatever reason. It [14]

is precisely this kind of predicament that MERALCO seeks to protect itself from so as to
avert business losses or reverses. It must be borne in mind that construction of the terms
of a contract which would amount to impairment or loss of right is not favored;
conservation and preservation, not waiver, abandonment or forfeiture of a right, is the
rule. Since MERALCO supplied electricity to petitioners for a fee, no intent to donate the
[15]

same can be gleaned from the terms of the Agreement. Hence, the stipulation must be
upheld.
Corollarily, it must be underscored that MERALCO has the imperative duty to make
a reasonable and proper inspection of its apparatus and equipment to ensure that they
do not malfunction, and the due diligence to discover and repair defects therein. Failure
[16]

to perform such duties constitutes negligence. [17]

A review of the records, however, discloses that the unpaid charges covered the
periods from November 7, 1990 to February 13, 1991 for Civil Case No. Q-92-13045 and
from July 15, 1991 to April 13, 1992 for Civil Case No. 13879, approximately three months
and nine months, respectively. On such basis, we take judicial notice that during those
periods, personnel representing MERALCO inspected and examined the electric meters
of petitioners regularly for the purpose of determining the monthly dues payable.So, why
were these defects not detected and reported on time?
It has been held that notice of a defect need not be direct and express; it is enough
that the same had existed for such a length of time that it is reasonable to presume that
it had been detected, and the presence of a conspicuous defect which has existed for a
[18]

considerable length of time will create a presumption of constructive notice

thereof. Hence, MERALCOs failure to discover the defect, if any, considering the length
[19]

of time, amounts to inexcusable negligence. Furthermore, we need not belabor the point
that as a public utility, MERALCO has the obligation to discharge its functions with utmost
care and diligence.
Accordingly, we are left with no recourse but to conclude that this is a case of
negligence on the part of MERALCO for which it must bear the consequences. Its failure
to make the necessary repairs and replacement of the defective electric meter installed
within the premises of petitioners was obviously the proximate cause of the instant dispute
between the parties.
Indeed, if an unusual electric consumption was not reflected in the statements of
account of petitioners, MERALCO, considering its technical knowledge and vast
experience in providing electric service, could have easily verified any possible error in
the meter reading. In the absence of such a mistake, the electric meters themselves
should be inspected for possible defects or breakdowns and forthwith repaired and, if
necessary, replaced. Furthermore, if MERALCO discovered that contraptions or illegal
devices were installed which would alter the result of the meter reading, then it should
have filed the appropriate criminal complaint against petitioners under Presidential
Decree No. 401. [20]

The rationale behind this ruling is that public utilities should be put on notice, as a
deterrent, that if they completely disregard their duty of keeping their electric meters in
serviceable condition, they run the risk of forfeiting, by reason of their negligence,
amounts originally due from their customers. Certainly, we cannot sanction a situation
wherein the defects in the electric meter are allowed to continue indefinitely until suddenly
the public utilities concerned demand payment for the unrecorded electricity utilized
when, in the first place, they should have remedied the situation immediately. If we turn
a blind eye on MERALCOs omission, it may encourage negligence on the part of public
utilities, to the detriment of the consuming public.
In view of the foregoing discussion, the liability of petitioners for consumed but
unrecorded electricity must be limited by reason of MERALCOs negligence. Hence, an
equitable solution would be for petitioners to pay only the estimated consumption on a
three-month average before the period in controversy. To hold otherwise would unjustly
enrich petitioners who would be allowed to utilize additional electricity, albeit unrecorded,
at no extra cost.
 To summarize, it is worth emphasizing that it is not our intention to impede or diminish
the business viability of MERALCO, or any public utility company for that matter. On the
contrary, we would like to stress that, being a public utility vested with vital public interest,
MERALCO is impressed with certain obligations towards its customers and any omission
on its part to perform such duties would be prejudicial to its interest. For in the final
analysis, the bottom line is that those who do not exercise such prudence in the discharge
of their duties shall be made to bear the consequences of such oversight.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-
G.R. CV No. 44010 is hereby MODIFIED. Petitioners are ordered to pay MERALCO the
amount P168,342.75, representing its average electric consumption three months prior
to the period in controversy. No costs.
[21]

 THE HEIRS OF REDENTOR V SGT. ALBAYDA
The Facts

The facts of the case are as follows:

Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the

Philippine Air Force, 527th Base Security Squadron, 520th Airbase, Philippine Air
Force, located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor
Completo (Completo), now represented by his heirs, was the taxi driver of a Toyota
Corolla, bearing Plate No. PYD-128, owned and operated by co-petitioner Elpidio
Abiad (Abiad).[3] Albayda and Completo figured in an accident along the
intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for damages
before the Regional Trial Court (RTC) of Pasay City. The case was docketed as Civil
Case No. 98-1333.[4]

The amended complaint alleged that, on August 27, 1997, while Albayda was on his
way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven
by Completo bumped and sideswiped him, causing serious physical injuries.
Albayda was brought to the Philippine Air Force General Hospital (PAFGH) inside
VAB. However, he was immediately transferred to the Armed Forces of the
Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City, because there
was a fracture in his left knee and there was no orthopedic doctor available at
PAFGH. From August 27, 1997 until February 11, 1998, he was confined therein.
He was again hospitalized at PAFGH from February 23, 1998 until March 22,
1998.[5]
Conciliation between the parties before the barangay failed. Thus, Albayda filed a
complaint for physical injuries through reckless imprudence against Completo
before the Office of the City Prosecutor of Pasay City. On the other hand, Completo
filed a counter-charge of damage to property through reckless imprudence against
Albayda. On January 13, 1998, the Office of the City Prosecutor issued a
resolution,[6] recommending the filing of an information for reckless imprudence
resulting in physical injuries against Completo. The counter-charge of damage to
property was recommended dismissed.[7]
The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where
Albayda manifested his reservation to file a separate civil action for damages against
petitioners Completo and Abiad.[8]

Albayda alleged that the proximate cause of the incident which necessitated his stay
in the hospital for approximately seven (7) months was the negligence of Completo
who, at the time of the accident, was in the employ of Abiad. The pain he suffered
required him to undergo medical physiotherapy for a number of years to regain
normality of his left knee joint, and he claimed that he incurred actual damages
totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos
(P276,550.00), inclusive of his anticipated operations.[9]

He further stated that aggravating the physical sufferings, mental anguish, frights,
serious anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation resulting from his injuries, his wife abandoned him in May 1998, and
left their children in his custody. He thus demanded the amount of Six Hundred
Thousand Pesos (P600,000.00) as moral damages. He likewise asked for exemplary
damages in the amount of Two Hundred Thousand Pesos (P200,000.00) and
attorneys fees of Twenty-Five Thousand Pesos (P25,000.00), plus One Thousand
Pesos (P1,000.00) per court appearance.[10]

In his answer to the amended complaint, Completo alleged that, on August 27, 1997,
he was carefully driving the taxicab along 8th Street, VAB, when suddenly he heard
a strange sound from the rear right side of the taxicab. When he stopped to
investigate, he found Albayda lying on the road and holding his left leg. He
immediately rendered assistance and brought Albayda to PAFGH for emergency
treatment.[11]

Completo also asserted that he was an experienced driver who, in accordance with
traffic rules and regulations and common courtesy to his fellow motorists, had
already reduced his speed to twenty (20) kilometers per hour even before reaching
the intersection of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very
high speed, causing him to suddenly lose control of the bicycle and hit the rear door
on the right side of the taxicab.[12]
The deep indentation on the rear right door of the taxicab was caused by the impact
of Albaydas body that hit the taxicab after he had lost control of the bicycle; while
the slight indentation on the right front door of the taxicab was caused by the impact
of the bike that hit the taxicab after Albayda let go of its handles when he had lost
control of it.[13]

Completo maintained that Albayda had no cause of action. The accident and the
physical injuries suffered by Albayda were caused by his own negligence, and his
purpose in filing the complaint was to harass petitioners and unjustly enrich himself
at their expense.[14]
After submission of the parties respective pleadings, a pretrial conference was held.
On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits
ensued.[15]

Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr.
Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr.
Manuel Fidel Magtira (Dr. Magtira) as witnesses in open court.[16]
On direct examination, Navarro testified that, on August 27, 1997, at around 1:45
p.m., he saw a taxicab, with Plate No. PYD-128, coming from 11th Street, running
at an unusual speed. The normal speed should have been twenty-five (25) kilometers
per hour. He was at the corner of 9th and 8th Streets when the taxicab passed by him.
The side of the bicycle was hit by the taxicab at the intersection of 11th and 8th Streets.
He saw Albayda fall to the ground, grimacing in pain. The taxicab at that moment
was about ten (10) meters away from Albayda. On cross-examination, Navarro
reiterated that the taxicab was running quite fast. The bicycle ridden by Albayda
reached the intersection of 8th and 11th Streets before the taxicab hit it.[17]

Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was
admitted at AFPMC, testified that the cause of the injury was hard impact, and
recommended an operation to alleviate the suffering. On cross-examination, he said
that there was a separation of the fragments of the proximal leg, the injured
extremity, called levia. They placed the victim on knee traction or calcaneal
traction,[18] in order to avoid further swelling. They bore the calcanean bone with a
stainless steel pin so that they could put five percent (5%) of the body weight of the
patient to cool down the leg. He treated Albayda for three (3) months. He
recommended surgery, but the victim had other medical problems, like an increase
in sugar level, and they were waiting for the availability of the implant. The implant
was supposed to be placed on the lateral aspect of the proximal leg or the levia, the
part with the separation. It was a long implant with screws.[19]

Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999
because of complaints of pain and limitation of motion on the knee joint. Upon
evaluation, the pain was caused by traumatic arthritis brought about by malunion of
the lateral trivial condial. An operation of the soft tissue release was conducted for
him to mobilize his knee joint and attain proper range of motion. After the operation,
Albayda attained functional range of motion, but because of subsisting pain, they
had to do osteoplasty[20] of the malunion, which was another operation. On cross-
examination, Dr. Magtira testified that he rendered free medical service at
AFPMC.[21]

Albayda testified that he was thirty-six (36) years old and a soldier of the Armed
Forces of the Philippines. On August 27, 1997, at around 1:40 p.m., he was riding
his bike on his way to the office, located on 916 Street, VAB. He had to stop at the
corner of 11th and 8th Streets because an oncoming taxicab was moving fast.
However, the taxicab still bumped the front tire of his bike, hit his left knee and
threw him off until he fell down on the road. The taxicab stopped about ten meters
away, and then moved backwards. Its driver, Completo, just stared at him. When
somebody shouted to bring him to the hospital, two (2) persons, one of whom was
Dr. Barrosa, helped him and carried him into the taxicab driven by Completo, who
brought him to PAFGH.[22]

Upon examination, it was found that Albayda suffered fracture in his left knee and
that it required an operation. No orthopedic doctor was available at PAFGH. Thus,
he was transferred that same afternoon to AFPMC, where he was confined until
February 11, 1998.[23]

At AFPMC, Albaydas left leg was drilled on and attached to traction. When his leg
was drilled, it was so painful that he had to shout. After his release from the hospital,
he continued to suffer pain in his leg. He underwent reflexology and therapy which
offered temporary relief from pain. But after some time, he had to undergo therapy
and reflexology again.[24]
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June
24, 1999, he was operated on again. Wire and screw were installed so that he could
bend his knee. Nonetheless, he continued to suffer pain. As of the date of his
testimony in court, he was scheduled for another operation in January 2000, when
the steel that would be installed in his leg arrives.[25]

For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months
of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice
weekly reflexology, Three Hundred Pesos (P300.00) every session since April 1997;
for his caretaker, P300.00 per day for six months. He also asked for P600,000.00 in
moral damages because Completo did not lend him a helping hand, and he would be
suffering deformity for the rest of his life. He demanded P25,000.00 as attorneys
fees and P1,000.00 for every court appearance of his lawyer.[26]

On cross-examination, Albayda testified that, on the date of the incident, he was the
base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was
not in a hurry to go to his place of work because it was only about 1:45 p.m., and his
place of work was only six (6) meters away. After the accident, he was brought to
PAFGH, and at 3:00 p.m., he was brought to the AFPMC. When he was discharged
from the hospital, he could no longer walk.[27]

Dr. Barrosas testimony during cross-examination emphasized that he was with 2

other persons when he carried Albayda into the taxicab driven by Completo. He was
certain that it was not Completo who carried the victim into the taxicab. It was only
a matter of seconds when he rushed to the scene of the accident. The taxicab backed
up fifteen (15) seconds later. Albayda lay 2 meters away from the corner of 8th and
11th Streets.[28]

Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.[29]

Completo alleged that he had been employed as taxi driver of FOJS Transport,
owned by Abiad, since February 1997. On August 27, 1997, he was driving the
taxicab, with Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on
his way home when a bicycle bumped his taxicab at the intersection of 8th and
11th Streets, VAB. The bicycle was travelling from south to north, and he was going
east coming from the west. The bicycle was coming from 11th Street, while he was
travelling along 8th Street.[30]

On cross-examination, Completo testified that when Albayda hit the rear right door
of the taxicab, the latter fell to the ground. When he heard a noise, he immediately
alighted from the taxicab. He denied that he stopped about 10 meters away from the
place where Albayda fell. He carried Albayda and drove him to the hospital.[31]

Panican testified that he worked as an airconditioner technician in a shop located

on 8th Street corner 11th Street. On the date and time of the incident, he was working
in front of the shop near the roadside. He saw a bicycle bump the rear right side of
the taxicab. Then, the driver of the taxicab alighted, carried Albayda, and brought
him to the hospital.[32]

When questioned by the trial court, Panican testified that the bicycle was running
fast and that he saw it bump the taxicab. The taxicab already passed the intersection
of 11th and 8th Streets when the bicycle arrived.[33]

Abiad testified that, aside from being a soldier, he was also a franchise holder of
taxicabs and passenger jeepneys. When Completo applied as a driver of the taxicab,
Abiad required the former to show his bio-data, NBI clearance, and drivers license.
Completo never figured in a vehicular accident since the time he was employed in
February 1997. Abiad averred that Completo was a good driver and a good man.
Being the operator of taxicab, Abiad would wake up early and personally check all
the taxicabs.[34]

On July 31, 2000, the trial court rendered a decision,[35] the dispositive portion of
which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff

[Albayda] and against the defendants [Completo and Abiad].
Accordingly, the defendants [Completo and Abiad] are hereby ordered to
pay the plaintiff [Albayda] the following sum:
 1. P46,000.00 as actual damages;

2. P400,000.00 as moral damages; [and]

3. P25,000.00 as attorneys fees.

Costs against the defendants [Completo and Abiad].

SO ORDERED.[36]

Completo and Abiad filed an appeal. The CA affirmed the trial court with
modification in a Decision[37] dated January 2, 2006, viz.:

WHEREFORE, premises considered, the appeal is DENIED for lack of

merit. The assailed Decision dated 31 July 2000 rendered by
the Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98-
1333 is hereby AFFIRMED with the following MODIFICATIONS:

1. the award of Php 46,000.00 as actual damages is DELETED;

2. temperate damages in the amount of Php 40,000.00 is awarded in favor

of appellee;

3. moral damages in favor of appellee is REDUCED to Php 200,000.00;

4. appellants Redentor Completo and Elpidio Abiad are solidarily liable

to pay appellee Amando C. Albayda, Jr. said temperate and moral
damages, as well as the attorneys fees in the amount of Php 25,000.00
awarded by the trial court;

5. the temperate and moral damages shall earn legal interest at 6% per
annum computed from the date of promulgation of Our Decision;

6. upon finality of Our Decision, said moral and temperate damages shall
earn legal interest at the rate of 12% per annum, in lieu of
6% per annum, until full payment. Costs against appellants.

SO ORDERED.[38]

Hence, this petition.

 The Issues

Petitioners presented the following issues for resolution: (1) whether the CA erred
in finding that Completo was the one who caused the collision;
(2) whether Abiad failed to prove that he observed the diligence of a good father of
the family; and (3) whether the award of moral and temperate damages and attorneys
fees to Albayda had no basis.[39]

The Ruling of the Court

The petition is bereft of merit.

I. On Negligence

The issues raised by petitioners essentially delve into factual matters which were
already passed upon by the RTC and the CA. Conclusions and findings of fact of the
trial court are entitled to great weight on appeal and should not be disturbed unless
for strong and cogent reasons, because the trial court is in a better position to
examine real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case. The fact that the CA adopted the findings of fact of the trial
court makes the same binding upon this Court. Well-settled is the rule that the
Supreme Court is not a trier of facts.[40] To be sure, findings of fact of lower courts
are deemed conclusive and binding upon the Supreme Court, save only for clear and
exceptional reasons,[41] none of which is present in the case at bar.

The instant case involved a collision between a taxicab and a bicycle which resulted
in serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence
suits that the plaintiff has the burden of proving by a preponderance of evidence the
motorists breach in his duty of care owed to the plaintiff, that the motorist was
negligent in failing to exercise the diligence required to avoid injury to the plaintiff,
and that such negligence was the proximate cause of the injury suffered.[42]
Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no preexisting contractual relation between
the parties, is called a quasi-delict. In this regard, the question of the motorist's
negligence is a question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise
reasonable diligence in driving the taxicab because he was over-speeding at the time
he hit the bicycle ridden by Albayda. Such negligence was the sole and proximate
cause of the serious physical injuries sustained by Albayda. Completo did not slow
down even when he approached the intersection of 8th and 11th Streets of VAB. It
was also proven that Albayda had the right of way, considering that he reached the
intersection ahead of Completo.

The bicycle occupies a legal position that is at least equal to that of other vehicles
lawfully on the highway, and it is fortified by the fact that usually more will be
required of a motorist than a bicyclist in discharging his duty of care to the other
because of the physical advantages the automobile has over the bicycle.[43]

At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per
second, while a car traveling at only twenty-five miles per hour covers almost thirty-
seven feet per second, and split-second action may be insufficient to avoid an
accident. It is obvious that a motor vehicle poses a greater danger of harm to a
bicyclist than vice versa. Accordingly, while the duty of using reasonable care falls
alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles,
more care is required from the motorist to fully discharge the duty than from the
bicyclist.[44] Simply stated, the physical advantages that the motor vehicle has over
the bicycle make it more dangerous to the bicyclist than vice versa.[45]

Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also for those persons for
whom one is responsible. Employers shall be liable for the damages caused by their
employees, but the employers responsibility shall cease upon proof that they
observed all the diligence of a good father of the family in the selection and
supervision of their employees.
When an injury is caused by the negligence of an employee, a legal presumption
instantly arises that the employer was negligent. This presumption may be rebutted
only by a clear showing on the part of the employer that he exercised the diligence
of a good father of a family in the selection and supervision of his employee. If the
employer successfully overcomes the legal presumption of negligence, he is relieved
of liability. In other words, the burden of proof is on the employer.[46]

The trial courts finding that Completo failed to exercise reasonable care to avoid
collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise to
liability on the part of Completo, as driver, and his employer Abiad. The
responsibility of two or more persons who are liable for quasi-delict is
solidary.[47] The civil liability of the employer for the negligent acts of his employee
is also primary and direct, owing to his own negligence in selecting and supervising
his employee.[48] The civil liability of the employer attaches even if the employer is
not inside the vehicle at the time of the collision.[49]

In the selection of prospective employees, employers are required to examine them

as to their qualifications, experience, and service records. On the other hand, with
respect to the supervision of employees, employers should formulate standard
operating procedures, monitor their implementation, and impose disciplinary
measures for breaches thereof. To establish these factors in a trial involving the issue
of vicarious liability, employers must submit concrete proof, including documentary
evidence.[50]
Abiad testified that before he hired Completo, he required the latter to show his bio-
data, NBI clearance, and drivers license. Abiad likewise stressed that Completo was
never involved in a vehicular accident prior to the instant case, and that, as operator
of the taxicab, he would wake up early to personally check the condition of the
vehicle before it is used.

The protestation of Abiad to escape liability is short of the diligence required under
the law. Abiads evidence consisted entirely of testimonial evidence, and the
unsubstantiated and self-serving testimony of Abiad was insufficient to overcome
the legal presumption that he was negligent in the selection and supervision of his
driver.
 II. On Damages

The CA rightfully deleted the award of actual damages by the RTC because Albayda
failed to present documentary evidence to establish with certainty the amount that
he incurred during his hospitalization and treatment for the injuries he suffered. In
the absence of stipulation, actual damages are awarded only for such pecuniary loss
suffered that was duly proved.[51]

While the amount of actual damages was not duly established with certainty, the
Court recognizes the fact that, indeed, Albayda incurred a considerable amount for
the necessary and reasonable medical expenses, loss of salary and wages, loss of
capacity to earn increased wages, cost of occupational therapy, and harm from
conditions caused by prolonged immobilization. Temperate damages, more than
nominal but less than compensatory damages, may be recovered when the court
finds that some pecuniary loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty.[52] Temperate damages must be
reasonable under the circumstances.[53] Thus, the Court finds the award of One
Hundred Thousand Pesos (P100,000.00) as temperate damages reasonable under the
circumstances.

Doubtless, Albayda suffered immeasurable pain because of the incident caused by

petitioners negligence. The CA explained:

The court vicariously feels the pain the plaintiff [Albayda] suffered a
number of times. After he was bumped by defendants cab, he cried in pain.
When the doctors bore holes into his left knee, he cried in pain. When he
was tractioned, when he was subjected to an operation after operation he
suffered pain. When he took the witness stand to testify, he walked with
crutches, his left knee in bandage, stiff and unfuctional. Pain was written
[on] his face. He does deserve moral damages.[54]

Moral damages are awarded in quasi-delicts causing physical injuries. The

permanent deformity and the scar left by the wounds suffered by Albayba will
forever be a reminder of the pain and suffering that he had endured and continues to
endure because of petitioners negligence. Thus, the award of moral damages in the
amount of Five Hundred Thousand Pesos (P500,000.00) is proper.

Finally, an interest rate of six percent (6%) per annum is due on the amount
of P100,000.00, as temperate damages, and P500,000.00, as moral damages, which
we have awarded. The 6% per annum interest rate on the temperate and moral
damages shall commence to run from the date of the promulgation of this Decision.
Upon finality of the Decision, an interest rate of twelve percent (12%) per annum
shall be imposed on the amount of the temperate and moral damages until full
payment thereof.[55]

The award of attorneys fees is hereby deleted for failure to prove that petitioners
acted in bad faith in refusing to satisfy respondents just and valid claim.

WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and
the Resolution dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No.
68405 are hereby AFFIRMED with MODIFICATION, viz.:

(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily liable
to pay One Hundred Thousand Pesos (P100,000.00), as temperate damages, and Five
Hundred Thousand Pesos (P500,000.00), as moral damages;

(2) The temperate and moral damages hereby awarded shall earn legal interest at the
rate of six percent (6%) per annum from the date of the promulgation of this
Decision. Upon finality of this Decision, an interest rate of twelve percent (12%) per
annum shall be imposed on the amount of the temperate and moral damages until
full payment thereof.

Costs against petitioners.

 HIDALGO V BALANDAN

This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises,
Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son
Mario.

It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the
City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep,
for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The edges of the tanks were
barely a foot high from the surface of the ground. Through the wide gate entrance, which is
continually open, motor vehicles hauling ice and persons buying said commodity passed, and any
one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At
about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing
with and in company of other boys of his age entered the factory premises through the gate, to take
a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be
fished out later, already a cadaver, having been died of "asphyxia secondary to drowning."

The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner
maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to
avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of
American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.

The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a
child of tender years who is injured thereby, even if the child is technically a trespasser in the
premises. (See 65 C.J.S., p. 455.)

The principle reason for the doctrine is that the condition or appliance in question although its danger
is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to
approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S.,
p. 458).

Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little
children in play? In other words is the body of water an attractive nuisance?

The great majority of American decisions say no.

The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as
well as natural, in the absence of some unusual condition or artificial feature other than the
mere water and its location.

There are numerous cases in which the attractive nuisance doctrine has not been held not to
be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches,
culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of
California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana,
Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)

In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris
Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive
nuisance was lucidly explained by the Indiana Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurking in their waters is
always the danger of drowning. Against this danger children are early instructed so that they
are sufficiently presumed to know the danger; and if the owner of private property creates an
artificial pool on his own property, merely duplicating the work of nature without adding any
new danger, . . . (he) is not liable because of having created an "attractive nuisance."
Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the
petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by
petitioner — that the parents of the boy were guilty of contributory negligence precluding recovery,
because they left for Manila on that unlucky day leaving their son under the care of no responsible
individual — needs no further discussion.

The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No
costs.

NEGLIGENCE AS PROXIMATE CAUSE

HONORIA V GO CHONG BING

Appeal from a judgment of the Court of First Instance of Davao absolving defendant from liability for
the accidental death of Quirico Gregorio. It came to this Court as the amount demanded in the
complaint is more than P50,000.

On or before June 2, 1952, defendant was the owner of a truck. He had a driver and a cargador or
driver's helper by the name of Francisco Romera. In the afternoon of June 2, 1952, defendant
ordered Romera to drive his truck, with instructions to follow another track driven by his driver and
help the latter in crossing Sumlog river which was then flooded, should it be unable to cross the river
because of the flood. Romera at that time was not a licensed driver. He only had a student's permit,
issued to him on March 31, 1952 (Exhibit "1"). The truck started from the town of Lupon at about
5:30 o'clock in the afternoon, driven by Romera. Some persons boarded the truck and among them
was one policeman by the name of Venancio Orfanel. While the truck was on the way, it made a
stop and then Orfanel took the wheel from Romera, while the latter stayed on the driver's left,
reclined on a spare tire inside of the truck. As to the circumstances under which Orfanel was able to
take hold of and drive the truck, there is some dispute and this matter will be taken up later in the
decision.

While the truck was being driven by Orfanel, with another truck ahead of it driven by defendant's
driver it so happened that they came to a truck that was trying to park on the left side of the road.
Romera suggested to Orfanel that he shift to low gear and Orfanel did so. But as they approached
the parking truck, and in order to avoid colliding with it, Orfanel swerved the truck towards the right. It
so happened that at that time two pedestrians were on the right side of the road, As the truck had
swerved to the right and was proceeding to hit the said pedestrians, Romera told Orfanel to apply
the brake, but Orfanel instead of doing so put his foot on the gasoline and the truck did not stop but
went on and hit and run over one of the pedestrians, by the name of Quirico Gregorio. The plaintiffs
appellants' in this action are Gregorio's widow and his children and of the accident, Orfanel was
prosecuted for homicide with reckless imprudence. He pleaded guilty to the charge and was
sentenced accordingly.

As hinted above, an important issue in the case has relation to the circumstances under which
Orfanel was able to take hold of the wheel and drive the truck. To sustain the theory that defendant's
cargador Francisco Romera was negligent, plaintiffs introduced one Javier A. Dayo as a witness.
According to this witness the truck was speeding at the rate of 20 miles an hour. According to him
also, while the truck was about pass by the house of one Lucio, running at a speed per hour, he
heard Romera shouting "hand brake! hand brake!"; that both Orfanel and Romera tried to turn the
driver's wheel to the left and direct the truck towards also the left to avoid the collision. According to
his witness also, Romera gave the wheel to Orfanel voluntarily upon the request of the latter.

Plaintiffs also sought to prove that Romera gave the truck voluntarily to the policeman by presenting
the affidavit of Romera made on June 3, 1952 (Exhibit "1"). This affidavit, however, is inadmissible
as evidence against the defendant because it is hearsay with respect, to him. It may not be
considered as part of the res gestae either, because the affidavit was taken one day after the
incident.
lawphi1.net

Against the above evidence, the defendant testified that he gave positive instructions to Romera not
to allow anybody to drive the truck, and Romera himself testified that he had warned Orfanel that his
master prohibited him from allowing anybody to drive the truck, but that as Orfanel was a uniformed
policeman and insisted that he drive the truck, and that as he believed that the policeman knew how
to drive, he let him drive the truck.

We are of the belief that defendant's claim that Romera gave the wheel to the policeman for fear of,
or out of respect for, the latter, has been proved by a preponderance of the evidence. The testimony
of witness Dayo is not corroborated by any other testimony. As he testified that he was two meters
behind Romera, he could not have noticed with exactness the circumstances under which the
policeman was able to get hold of the wheel and drive the truck and his testimony in that respect
cannot be believed. We are, therefore, forced to the conclusion that the defendant's cargador, or
Francisco Romera gave the wheel to Orfanel out of respect for the latter, who was a uniformed
policeman and because he believed that the latter had both the ability and the authority to drive the
truck, especially as he himself had only a student's permit and not a driver's license.

The court a quo dismissed the action on the ground that as the death or accident was caused by an
act or omission of a person who is not in any way related to the defendant, and as such act or
omission was punishable by law, and as a matter of fact he had already been punished therefor, no
civil liability should be imposed upon the defendant. Against this decision the plaintiffs have
appealed to this Court, contending that when defendant permitted his cargador, who was not
provided with a driver's license, to drive the truck, he thereby violated the provisions of the Revised
Motor Vehicle Law (section 28., Act No. 3992), and that this constitutes negligence per se. (People
vs. Santos, et al., CA-G.R. No. 1088-1089R.) But admitting for the sake of argument that the
defendant had so violated the law, or may be deemed negligent in entrusting the truck to one who is
not provided with a driver's license, it is clear that he may not be declared liable for the accident
because his negligence was not the direct and proximate cause thereof. The leading case in this
jurisdiction on negligence is that of Taylor vs. Manila Electric Railroad and Light Company, 16 Phil.
8. Negligence as a source of obligation both under the civil law and in American cases was carefully
considered and it was held:

We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage. (Taylor vs.
Manila Electric Railroad and Light Co., supra. p.15)

In accordance with the decision of the Supreme Court of Spain, in order that a person may be held
guilty for damage through negligence, it is necessary that there be an act or omission on the part of
the person who is to be charged with the liability and that damage is produced by the said act or
omission.

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is the duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July 6, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary points of
the proof, which are two: An Act or omission on the part of the person who is to be charged
with the liability, and the production of the damage by said act or omission.
 This includes, by inference, the establishment of a relation of cause or effect between the act
or the omission and the damage; the latter must be the direct result of one of the first two. As
the decision of March 22, 1881, said, it is necessary that the damages result immediately
and directly from an act performed culpably and wrongfully; 'necessarily presupposing, a
legal ground for imputability. (Taylor vs. Manila Electric Railroad and Light Co., supra, p.
28.).

It is evident that the proximate, immediate and direct cause of the death of the plaintiffs' intestate
was the negligence of Orfanel, a uniformed policeman, who took the wheel of the truck from
defendant's cargador, in spite of the protest of the latter. The reason for absolving the defendant
therefor is not because the one responsible for the accident had already received indemnification for
the accident, but because there is no direct and proximate causal connection between the
negligence or violation of the law by the defendant to the death of the plaintiff's intestate.

For the foregoing considerations, the judgment appealed from is hereby affirmed, without costs.

 BATACAN V MEDINA

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they
could not get out of the bus. There is nothing in the evidence to show whether or not the passengers
already free from the wreck, including the driver and the conductor, made any attempt to pull out or
extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men who answered the call for help set it
on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.
 ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

 FERNANDO V CA

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which
affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No.
99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the
Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the
fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National
Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair
(Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code
against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the
search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo,
Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos,
who, according to the prosecution, introduced himself as the store attendant of Music Fair. The
police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different
magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which
reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then
and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral
acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t.,
Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of x-rated VHS
Tapes, lewd films depicting men and women having sexual intercourse[,] lewd photographs
of nude men and women in explicating (sic) positions which acts serve no other purpose but
to satisfy the market for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial
ensued.
The prosecution offered the confiscated materials in evidence and presented the following
witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay
Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented
its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence,
which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence
and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise
denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for
decision.5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners
as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO

and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are
hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY
as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00
each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond
reasonable doubt, he is hereby ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby
confiscated in favor of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the
decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed
from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the
time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at
the time of the raid.8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’
conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were
selling pornographic materials. Fernando contends that since he was not charged as the owner of an
establishment selling obscene materials, the prosecution must prove that he was present during the
raid and that he was selling the said materials. Moreover, he contends that the appellate court’s
reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s
permit, has no sufficient basis since the prosecution failed to prove his ownership of the
establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor
did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are
expressly held liable under Article 201, and petitioner Fernando’s ownership was sufficiently proven.
As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor General also maintains that Estorninos was
identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present
their evidence to disprove refute the prosecution’s evidence.11 . Instead, they waived their right to
present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved
the case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in
pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent
materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution
must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender
sold, exhibited, published or gave away such materials.13 Necessarily, that the confiscated materials
are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v.
Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency
or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to such immoral
influences and into whose hands a publication or other article charged as being obscene may
fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of
men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or
indecent must depend upon the circumstances of the case, and that ultimately, the question is to be
decided by the judgment of the aggregate sense of the community reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a
prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly
draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the
cause of art, to be viewed and appreciated by people interested in art, there would be no
offense committed. However, the pictures here in question were used not exactly for art’s
sake but rather for commercial purposes. In other words, the supposed artistic qualities of
said pictures were being commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see
those pictures and paid entrance fees for the privilege of doing so, were not exactly artists
 and persons interested in art and who generally go to art exhibitions and galleries to satisfy
and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity
and taste, and lust, and for love [of] excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting
effects of these pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test
of "redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as
it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the
youth of the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still
applied the "contemporary community standards" of Kottinger but departed from the rulings
of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the
"dominant theme" of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court
recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go
Pin and Padan y Alova raised more questions than answers such as, whether the absence or
presence of artists and persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the
exhibitions, whether such exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too
much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths"
among judges as to what is obscene or what is art.24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter.
Significantly, the dynamism of human civilization does not help at all. It is evident that individual
tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply
in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that the trier
of facts has the unbridled discretion in determining what is "patently offensive."27 No one will be
subject to prosecution for the sale or exposure of obscene materials unless these materials depict or
describe patently offensive "hard core" sexual conduct.28 Examples included (a) patently offensive
representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and
(b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and the Court of Appeals
affirmed such findings. The trial court in ruling that the confiscated materials are obscene, reasoned
as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to
morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9)
confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery
and two (2) issues of QUI are offensive to morals and are made and shown not for the sake
of art but rather for commercial purposes, that is gain and profit as the exclusive
consideration in their exhibition. The pictures in the magazine exhibited indecent and
immoral scenes and acts…The exhibition of the sexual act in their magazines is but a clear
and unmitigated obscenity, indecency and an offense to public morals, inspiring…lust and
lewdness, exerting a corrupting influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape
entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body
of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive may be innocent,
but the performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were
usually not artists or persons interested in art to satisfy and inspire their artistic tastes
but persons who are desirous of satisfying their morbid curiosity, taste and lust and
for [love] of excitement, including the youth who because of their immaturity are not
in a position to resist and shield themselves from the ill and perverting effects of the
pictures, the display of such pictures for commercial purposes is a violation of Art.
201. If those pictures were shown in art exhibits and art galleries for the cause of art,
to be viewed and appreciated by people interested in art, there would be no offense
committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect,
even by this Court, unless such findings are patently unsupported by the evidence on record or the
judgment itself is based on misapprehension of facts.31 In this case, petitioners neither presented
contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial
court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give
them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is
committed only when there is publicity.32The law does not require that a person be caught in the act
of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials
are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners
are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair,
named after petitioner Fernando.33 The mayor’s permit was under his name. Even his bail bond
shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996,
shows that he is the owner/operator of the store.35 While the mayor’s permit had already expired, it
does not negate the fact that Fernando owned and operated the establishment. It would be absurd
to make his failure to renew his business permit and illegal operation a shield from prosecution of an
unlawful act. Furthermore, when he preferred not to present contrary evidence, the things which he
possessed were presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and
exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-
CIDG NCR that conducted the search, identified him as the store attendant upon whom the search
warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold
the presumption of regularity in the performance of his duties. Lastly, this Court accords great
respect to and treats with finality the findings of the trial court on the matter of credibility of
witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible
error was committed by the appellate court as well as the trial court in finding the herein petitioners
guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of
the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in
Criminal Case No. 99-176582 are hereby AFFIRMED.

 URBANDO V IAC

he records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his
ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the
tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water
coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion
of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass.
He asked them who was responsible for the opening of the irrigation canal and Javier admitted that
he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A
quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle,
by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in
parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by
Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing
a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced
and prevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about
50 meters away from where the incident happened. Emilio then went to the house of Barangay
Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis
instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San
Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician.
The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to
Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available
medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla
who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:

TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age,
married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23,
1980 and found the following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar
prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was
presented to me only for medico-legal examination, as it was already treated by the
other doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences.
Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980,
the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

xxx xxx xxx

 Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared
before this Station accompanied by brgy. councilman Felipe Solis and settled their
case amicably, for they are neighbors and close relatives to each other. Marcelo
Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all
the expenses in his medical treatment, and promising to him and to this Office that
this will never be repeated anymore and not to harbour any grudge against each
other. (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional
P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a
very serious condition. When admitted to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious
condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm
which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr.
Exconde are as follows:

Date Diagnosis

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tion of respiration and HR after

muscular spasm.

02 inhalation administered. Ambo bag

resuscita-

tion and cardiac massage done but to

no avail.

Pronounced dead by Dra. Cabugao at

4:18 P.M.

PMC done and cadaver brought home

by rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide
before the then Circuit Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as
charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS
of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs
of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case
of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the
award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based
on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan,
and up to the present having been re-elected to such position in the last barangay
elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept
Pangasinan and other places of Central Luzon including San Fabian, a town of said
province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which
irrigates the ricefields of San Fabian were closed and/or controlled so much so that
water and its flow to the canals and ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals
and ditches which will bring water to the ricefields, the water in said canals and
ditches became shallow which was suitable for catching mudfishes;

That after the storm, I conducted a personal survey in the area affected, with my
secretary Perfecto Jaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo
Javier catching fish in the shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo
Javier died of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that
"Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the
wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused
is criminally responsible for acts committed by him in violation of law and for all the natural and
logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of
which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which
was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical
consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus,
the appellate court said:

The claim of appellant that there was an efficient cause which supervened from the
time the deceased was wounded to the time of his death, which covers a period of 23
days does not deserve serious consideration. True, that the deceased did not die
right away from his wound, but the cause of his death was due to said wound which
was inflicted by the appellant. Said wound which was in the process of healing got
infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim
suffered lockjaw because of the infection of the wound with tetanus. And there is no
other way by which he could be infected with tetanus except through the wound in
his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's
death was the wound which got infected with tetanus. And the settled rule in this
jurisdiction is that an accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).

Appellant's allegation that the proximate cause of the victim's death was due to his
own negligence in going back to work without his wound being properly healed, and
lately, that he went to catch fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle
out of the predicament he found himself in. If the wound had not yet healed, it is
impossible to conceive that the deceased would be reckless enough to work with a
disabled hand. (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due
to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got
infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants
with his bare hands exposing the wound to harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound,
which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow
got infected with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of
proximate cause:

xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696
of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred."And more comprehensively, "the proximate legal cause is that acting first
 and producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as
an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's
death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short incubation period indicates
severe disease, and when symptoms occur within 2 or 3 days of injury the mortality
rate approaches 100 percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache

are encountered occasionally, but the commonest presenting complaints are pain
and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus in the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of
the injury. In the vast majority, however, most muscles are involved to some degree,
and the signs and symptoms encountered depend upon the major muscle groups
affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval
referred to as the onset time. As in the case of the incubation period, a short onset
time is associated with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which increases rigidity and
causes simultaneous and excessive contraction of muscles and their antagonists.
Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing
frequency. Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to
irreversible central nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an

onset time of more than 6 days. Trismus is usually present, but dysphagia is absent
and generalized spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is marked, dysphagia
and generalized rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent
 prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine,
1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or
on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at
the time, it is more medically probable that Javier should have been infected with only a mild cause
of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident
or more than 14 days after the infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim's death must convince a
rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause
and the injury a distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition or occasion. If no
danger existed in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very
least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's
criminal liability in this respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement
where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement
of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508,
Section 2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote cause is limited to the
criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also
free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be
civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July
29, 1987), we said:

xxx xxx xxx

... While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a civil
action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes
the civil liability of the accused only when it includes a declaration that the facts from
which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129
SCRA 559).

The reason for the provisions of article 29 of the Civil Code, which provides that the
acquittal of the accused on the ground that his guilt has not been proved beyond
reasonable doubt does not necessarily exempt him from civil liability for the same act
or omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is
derived from the criminal offense, when the latter is not proved, civil
liability cannot be demanded.

This is one of those causes where confused thinking leads to

unfortunate and deplorable consequences. Such reasoning fails to
draw a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction.
The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of
the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private
right to be proved only by a preponderance of evidence? Is the right
of the aggrieved person any less private because the wrongful act is
also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the

reform under discussion. It will correct a serious defect in our law. It
 will close up an inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable persons injured or
wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly
examined. This aspect of the case calls for fuller development if the heirs of the victim are so
minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner
is ACQUITTED of the crime of homicide. Costs de oficio.

 MERCURY DRUG V BAKING

The facts are:

On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a
medical check-up. On the following day, after undergoing an ECG, blood, and hematology
examinations and urinalysis, Dr. Sy found that respondent’s blood sugar and triglyceride were above
normal levels. Dr. Sy then gave respondent two medical prescriptions – Diamicron for his blood
sugar and Benalize tablets for his triglyceride.

Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the
prescribed medicines. However, the saleslady misread the prescription for Diamicron as a
prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping
tablet.

Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum
on three consecutive days –November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and
November 8 at 7:30 a.m.

On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident.
The car he was driving collided with the car of one Josie Peralta. Respondent fell asleep while
driving. He could not remember anything about the collision nor felt its impact.

Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of
the collision, respondent returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr. Sy was
shocked to find that what was sold to respondent was Dormicum, instead of the prescribed
Diamicron.

Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon
City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-20193.

After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus:

WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders

judgment in favor of the plaintiff and against the defendant ordering the latter to pay mitigated
damages as follows:

1. ₱250,000.00 as moral damages;

2. ₱20,000.00 as attorney’s fees and litigation expenses;

3. plus ½% of the cost of the suit.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a
motion for reconsideration but it was denied in a Resolution dated November 5, 2002.

Hence, this petition.

Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing
jurisprudence.

Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be
denied.

The issues for our resolution are:

1. Whether petitioner was negligent, and if so, whether such negligence was the proximate
cause of respondent’s accident; and

2. Whether the award of moral damages, attorney’s fees, litigation expenses, and cost of the
suit is justified.

Article 2176 of the New Civil Code provides:

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

To sustain a claim based on the above provision, the following requisites must concur: (a) damage
suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and
effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.3

There is no dispute that respondent suffered damages.

It is generally recognized that the drugstore business is imbued with public interest. The health and
safety of the people will be put into jeopardy if drugstore employees will not exercise the highest
degree of care and diligence in selling medicines. Inasmuch as the matter of negligence is a
question of fact, we defer to the findings of the trial court affirmed by the Court of Appeals.

Obviously, petitioner’s employee was grossly negligent in selling to respondent Dormicum, instead of
the prescribed Diamicron. Considering that a fatal mistake could be a matter of life and death for a
buying patient, the said employee should have been very cautious in dispensing medicines. She
should have verified whether the medicine she gave respondent was indeed the one prescribed by
his physician. The care required must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the business which the law demands.4 1awphi1.nét

Petitioner contends that the proximate cause of the accident was respondent’s negligence in driving
his car.

We disagree.

Proximate cause is defined as any cause that produces injury in a natural and continuous sequence,
unbroken by any efficient intervening cause, such that the result would not have occurred otherwise.
Proximate cause is determined from the facts of each case, upon a combined consideration of logic,
common sense, policy, and precedent.5
Here, the vehicular accident could not have occurred had petitioner’s employee been careful in
reading Dr. Sy’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was
unlikely that respondent would fall asleep while driving his car, resulting in a collision.

Complementing Article 2176 is Article 2180 of the same Code which states:

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

xxx

The owners and managers of an establishment or enterprise are likewise 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.

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

xxx

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

It is thus clear that the employer of a negligent employee is liable for the damages caused by the
latter. When an injury is caused by the negligence of an employee, there instantly arises a
presumption of the law that there has been negligence on the part of the employer, either in the
selection of his employee or in the supervision over him, after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the employer that he has exercised the
care and diligence of a good father of a family in the selection and supervision of his
employee.6 Here, petitioner's failure to prove that it exercised the due diligence of a good father of a
family in the selection and supervision of its employee will make it solidarily liable for damages
caused by the latter.

As regards the award of moral damages, we hold the same to be in order. Moral damages may be
awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury in the cases specified or analogous to those
provided in Article 2219 of the Civil Code.7

Respondent has adequately established the factual basis for the award of moral damages when he
testified that he suffered mental anguish and anxiety as a result of the accident caused by the
negligence of petitioner’s employee.

There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own peculiar facts. However, it must be
commensurate to the loss or injury suffered.8 Taking into consideration the attending circumstances
here, we are convinced that the amount awarded by the trial court is exorbitant. Thus, we reduce the
amount of moral damages from ₱250,000.00 to ₱50,000.00 only.
In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant
of exemplary damages by way of example or correction for the public good. As mentioned earlier,
the drugstore business is affected with public interest. Petitioner should have exerted utmost
diligence in the selection and supervision of its employees. On the part of the employee concerned,
she should have been extremely cautious in dispensing pharmaceutical products. Due to the
sensitive nature of its business, petitioner must at all times maintain a high level of meticulousness.
Therefore, an award of exemplary damages in the amount of ₱25,000.00 is in order. 1awphi1.nét

On the matter of attorney’s fees and expenses of litigation, it is settled that the reasons or grounds
for the award thereof must be set forth in the decision of the court.9 Since the trial court’s decision
did not give the basis of the award, the same must be deleted. In Vibram Manufacturing Corporation
v. Manila Electric Company,10 we held:

Likewise, the award for attorney’s fees and litigation expenses should be deleted. Well-enshrined is
that "an award for attorney’s fees must be stated in the text of the court’s decision and not in the
dispositive portion only" (Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals, 286 SCRA 257
[1998]). This is also true with the litigation expenses where the body of the decision discussed
nothing for its basis.

WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 57435 are AFFIRMED with modification in the sense that (a) the award
of moral damages to respondent is reduced from ₱250,000.00 to ₱50,000.00; (b) petitioner is
likewise ordered to pay said respondent exemplary damages in the amount of ₱25,000.00; and (c)
the award of attorney’s fees and litigation expenses is deleted.

Costs against petitioner.

 UMALI V BACANI

Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in
Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years
and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager of
the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory
negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:

Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the
defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the
death of his son, Manuel Saynes; the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand Pesos (P3,000.00) for moral
damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total
of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this
suit. It Is So Ordered.

Undisputed facts appearing of record are:

On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan,
which started from 2:00 o'clock in the afternoon and lasted up to about midnight of
the same day. During the storm, the banana plants standing on an elevated ground
along the barrio road in San Pedro Ili of said municipality and near the transmission
line of the Alcala Electric Plant were blown down and fell on the electric wire. As a
result, the live electric wire was cut, one end of which was left hanging on the electric
post and the other fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San
Pedro Iii who was passing by saw the broken electric wire and so he warned the
people in the place not to go near the wire for they might get hurt. He also saw
Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and notified
him right then and there of the broken line and asked him to fix it, but the latter told
the barrio captain that he could not do it but that he was going to look for the lineman
to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small
boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is
just on the opposite side of the road, went to the place where the broken line wire
was and got in contact with it. The boy was electrocuted and he subsequently died. It
was only after the electrocution of Manuel Saynes that the broken wire was fixed at
about 10:00 o'clock on the same morning by the lineman of the electric plant.

Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused
the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part
of his employee Cipriano Baldomero who tried to have the line repaired and the presence of
negligence of the parents of the child in allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of negligence on the part of
defendants' employees in the Alcala Electric Plant resulted in the death of the victim by
electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at
the place of the incident standing on an elevated ground which were about 30 feet high and which
were higher than the electric post supporting the electric line, and yet the employees of the
defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds
the electric line would be endangered by banana plants being blown down, did not even take the
necessary precaution to eliminate that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the possible damage the storm of May
14, 1972, could have caused their electric lines, thus becoming a possible threat to life and property,
they did not cut off from the plant the flow of electricity along the lines, an act they could have easily
done pending inspection of the wires to see if they had been cut. Third, employee Cipriano
Baldomero was negligent on the morning of the incident because even if he was already made
aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to
life and property, and that he should have taken the necessary precaution to prevent anybody from
approaching the live wire; instead Baldomero left the premises because what was foremost in his
mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life
and property.

On defendants' argument that the proximate cause of the victim's death could be attributed to the
parents' negligence in allowing a child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the part of defendants' employees
resulting in a live wire lying on the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to leave
the house alone on the morning of the incident and go to a nearby place cut wire was very near the
house (where victim was living) where the fatal fallen wire electrocuted him, might mitigate
respondent's liability, but we cannot agree with petitioner's theory that the parents' negligence
constituted the proximate cause of the victim's death because the real proximate cause was the
fallen live wire which posed a threat to life and property on that morning due to the series of
negligence adverted to above committed by defendants' employees and which could have killed any
other person who might by accident get into contact with it. Stated otherwise, even if the child was
allowed to leave the house unattended due to the parents' negligence, he would not have died that
morning where it not for the cut live wire he accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this
case) was only contributory, the immediate and proximate cause of the injury being the defendants'
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded. This law may be availed of by the petitioner but does not exempt him from liability.
Petitioner's liability for injury caused by his employees negligence is well defined in par. 4, of Article
2180 of the Civil Code, which states:

The owner and manager of an establishment or enterprise are likewise responsible

for damages caused by their employees in the service of the branches in which the
latter are employed or on tile occasion of their functions.

The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not find any sufficient reason to
deviate from its finding.

Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in
this case, either in its appreciation of the evidence on questions of facts or on the interpretation and
application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable
conclusion is that no error amounting to grave abuse of discretion was committed and the decision
must be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.

 S.D MARTINEZ V BUSKIRK