PICART vs. SMITH, JR. of negligence.
The existence of negligence in a given case is not determined
FACTS: On the Carlatan Bridge in La Union. Picart was riding on his pony over
said bridge. Before he had gotten half way across, Smith approached from the
opposite direction in an automobile. 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.
Picart 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. As the
automobile approached, Smith 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. 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; 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, got hit by the car and the limb
was broken. The horse fell and its rider was thrown off with some violenceAs a
result of its injuries the horse died. The plaintiff received contusions which
caused temporary unconsciousness and required medical attention for several
days.
From a judgment of the CFI of La Union absolving Smith from liability Picart has
appealed.
ISSUE: WON Smith was guilty of negligence such as gives rise to a civil
obligation to repair the damage done
HELD: the judgment of the lower court must be reversed, and judgment is here
rendered that the Picart recover of Smith damages. YES
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
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.
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 Smith 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, Smith 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.
Amado Picard vs. Frank Smith Jr.
FACTS:
• Plaintiff Amado Picart appealed because the Court of First Instance absolved
defendant Frank Smith Jr.
• Picart was riding on his pony on the bridge. The defendant was riding on his
car from the opposite directions when he approached Picart. Smith blew his
horn to give warnings but Picart moved his horse to the right instead of
moving to the left because he thought that he had no sufficient time to move
to the right direction.
• Defendant continued to move towards the left side but when he got near the
plaintiff and the horse, the animal became frightened that it turned its body
across the bridge.
• The limb of the horse was broken and it died. The plaintiff was thrown off and
suffered injuries. He also required medical attention for several days.
• The plaintiff filed an action for damages against the defendant.
ISSUE:
Whether or not the defendant in maneuvering his car in the manner described
was guilty of negligence such as it gives rise to a civil obligation to repair the
damage done.
we have already stated, the defendant was also negligent; and in such case,
the problem is always 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 the circumstances, the law is that the person who has the last clear
chance to avoid the impending harm and fails to do it is chargeable with the
consequences, without reference to the prior negligence of the other party.
The last clear chance rule of the law of negligence is particularly applied to
automobile accidents. This rule cannot be invoked where the negligence of the
plaintiff is concurrent with that of the defendant.

HELD:
Yes, the defendant Frank Smith Jr. was guilty of negligence.

As Smith started to across the bridge, he had the right to assume that the horse
and the rider would pass over the proper side. But as he approached toward
the center of the bridge, he can see to his eyes that this won’t be done; and he
must in a moment have known 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 it was no longer within the power of the plaintiff to
escape being run don by going to a place of a greater safety. The control of the
situation had then passed to the defendant.

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 person would have used in the same
situation? If not, then he is guilty of negligence. Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen than
an effect harmful to another was sufficiently probable to warrant his foregoing
the conduct or guarding against its consequences.

It goes without saying that Plaintiff was not free from fault, for he was guilty of
antecedent negligence in planting himself in the wrong side of the road. But as
 Jarco Marketing V. CA (1999)
Lessons Applicable: Good Father of a Family (Torts and Damages)
FACTS:
• May 9 1983: Criselda and her 6 year-old daughter Zhieneth were at the 2nd
floor of Syvel's Department Store, Makati City.
• While Criselda was signing her credit card slip at the counter, she felt a
sudden gust of wind and heard a loud thud. As she looked behind her, she
saw Zhieneth's body pinned by the bulk of the store's gift-wrapping
counter/structure. Zhieneth was crying and screaming for help. Although
shocked, Criselda was quick to ask the assistance of the people around in
lifting the counter and retrieving Zhieneth from the floor. Zhieneth was quickly
rushed to the Makati Medical Center where she was operated on.
• Next day: Zhieneth lost her speech and communicated by writing on a magic
slate.
• 14 days after: She died on the hospital bed. The cause of her death was
attributed to the injuries she sustained.
• After the burial of their daughter, Criselda demanded upon Jarco Marketing
the reimbursement of the hospitalization, medical bills and wake and funeral
expenses which they had incurred. But, they refused to pay.
• Criselda filed a complaint for damages
• Jarco Marketing: answered with counterclaim and denied any liability.
• Criselda was negligent in exercising care and diligence over her daughter by
allowing her to freely roam around in a store filled with glassware and
appliances. Zhieneth too, was guilty of contributory negligence since she
climbed the counter, triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood with a strong support;
it never fell nor collapsed for the past fifteen years since its construction.
• maintained that it observed the diligence of a good father of a family in the
selection, supervision and control of its employees.
• trial court dismissed the complaint and counterclaim
• proximate cause of the fall of the counter on Zhieneth was her act of clinging
to it.
• CA: favored Criselda judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like
an inverted "L" with a top wider than the base. It was top heavy and the weight
of the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could
cause. But the latter ignored their concern.
ISSUE: W/N Jarco marketing was negligent or it was an accident
HELD: YES. CA affirmed
Accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant a fortuitous circumstance, event or happening an
event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens occurs when the person
concerned is exercising ordinary care, which is not caused by fault of any
person and which could not have been prevented by any means suggested by
common prudence negligence 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 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, whereby such other person suffers injury
Accident and negligence are intrinsically contradictory; one cannot exist with
the other. Under the circumstances thus described, it is unthinkable for
Zhieneth, a child of such tender age and in extreme pain, to have lied to a doctor
whom she trusted with her life. Without doubt, Panelo and another store
supervisor were personally informed of the danger posed by the unstable
counter. Yet, neither initiated any concrete action to remedy the situation nor
ensure the safety of the store's employees and patrons as a reasonable and
ordinary prudent man would have done. Thus, as confronted by the situation
petitioners miserably failed to discharge the due diligence required of a good
father of a family.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below 9 years old in that they are incapable of
contributory negligence. In our jurisdiction, a person under nine years of age
is conclusively presumed to have acted without discernment, and is, on that
account, exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over nine and
under fifteen years of age, unless it is shown that he has acted with
discernment.
Even if we attribute contributory negligence to Zhieneth and assume that she
climbed over the counter, no injury should have occurred if we accept
petitioners' theory that the counter was stable and sturdy.
Criselda too, should be absolved from any contributory negligence. Initially,
Zhieneth held on to CRISELDA's waist, and only momentarily released the
child's hand from her clutch when she signed her credit card slip. At this precise
moment, it was reasonable and usual for her to let go of her child.
Further, at the time Zhieneth was pinned down by the counter, she was just a
foot away from her mother; and the gift-wrapping counter was just 4 meters
away - time and distance were both significant.
Jarco Marketing Corporation v. Court of Appeals
Facts:
Petitioner Jarco Marketing Corporation is the owner of Syvel’s Department
Store,Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are
the store’s branch manager, operations manager, and supervisor, respectively.
Privater respondents are spouses and the parents of Zhieneth Aguilar
(Zhieneth).
In the afternoon of 9 May 1983, Criselda and Zhieneth were at the 2nd floor of
Syvel’s Department Store, Makati City. Criselda was signing her credit card slip
at the payment and verification counter when she felt a sudden gust of wind
and heard aloud thud. She looked behind her. She then saw Zhieneth on the
floor crushed by bulk of the store’s gift-wrapping counter/structure. Although
shocked, Criselda was quick to ask the assistance of the people around in lifting
the counter and retrieving Zhieneth from the floor.
Zhieneth was rushed to the hospital. She lived through the operation but lost
her ability to speak. She then died two weeks later due to the injuries she
sustained.
Respondents demanded the reimbursement of hospitalization, medical bills
and wakeand funeral expenses they incurred from the petitioners. The
petitioners refused to pay. Thus, respondents filed a civil case to recover
P157522.86 as actual damages,P300,000.00 as moral damages and
P20,000.00 in attorney’s fees.
In their defense, petitioners claimed that Criselda was negligent for allowing her
daughter to freely roam around the Department Store. They also claimed that
Zhieneth was guilty of contributory negligence by climbing onto the counter
which later fell on her causing her untimely death.
Respondents on the other hand claim that Criselda was not guilty of negligence
as it was natural for her to leave Criselda when she was signing her credit card
slip. The yargue that Zhieneth is not presumed to be guilty of contributory
negligence as she was only 6 years old at that time and that her dying
declaration as testified to by the doctor was that the counter just fell on her
without her climbing onto it. Respondents also argue that the structure should
have been nailed to the floor to prevent incidents like this.
As to the claim that the counter should have been nailed, they claim that it was
unnecessary as it had been in existence for many years without incident.
Further, petitioners claim that the criminal case for simple negligence filed
against them has been dismissed and that a verdict of acquittal issued in their
favour.
Trial court dismissed the complaint but the Court of Appeals reversed.
Issue: WON petitioners may be held liable for the death of Zhieneth.
Held:
YES. An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. It is “a fortuitous circumstance, event or
happening; anevent happening without any human agency, or if happening
wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens.
While negligence is 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. 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, whereby such other person suffers
injury.” The test of is: Did the 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, then he is guilty of negligence.
Zhieneth’s dying statement before being rushed to into the operating room that
she did not do anything but merely approached the counter forms part of the
res gestate in accordance with Section 42 of Rule 130 of the Rules of Court. It
is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions.

Further, the negligence of the petitioners was proven by the testimony of their
employees who testified that the counter was heavy, shaky and could collapse
at anytime. It was verified that the counter was not nailed which further
aggravated the counter’s instability. Worse, such condition was brought to the
attention of the store supervisor but no action was taken to address it. Verily,
such shows a blatant failure to exercise the diligence of a good father of a
family.

Both Criselda and Zhieneth are not guilty of contributory negligence. Zhieneth,
a 6year old enjoys the presumption that she is incapable of committing
contributory negligence. Petitioners failed to rebut such presumption. Further,
Criselda was not guilty of contributory negligence as it was only natural for her
to let go of Zhieneth to sign her credit card slip.
Judgment of the Court of Appeals affirmed
 People v. Delos Santos
Facts:
On the early morning of October 5, 1995, at the Maitum Highway in Cagayan
de Oro City, a team of PNP members undergoing a Special Training Course
were performing an Endurance Run. They were jogging at the right side of the
lane. A speeding Isuzu Elf ran into them, resulting to deaths and injuries. The
accused surrendered to the Governor, and was eventually convicted of Multiple
Murder, Multiple Frustrated Murder, and Multiple Attempted Murder. He was
sentenced to death by the Trial Court. Hence, this automatic review.
Issue:
Whether there was intentional killing or attempt to kill the policemen, or a mere
reckless imprudence
Held:
From the convergence of circumstances, we are inclined to believe that the
tragic event was more a product of reckless imprudence than of a malicious
intent on Glenn’s part. First, as testified to by prosecution rebuttal witness
Danilo Olarita, the place of the incident was "very dark," as there was no moon.
And according to PAGASA’s observed weather report within the vicinity of
Cagayan de Oro City covering a radius of 50 kilometers, at the time the event
took place, the sky was overcast, i.e., there was absolutely no break in the thick
clouds covering the celestial dome globe; hence, there was no way for the
moon and stars to be seen. Neither were there lampposts that illuminated the
highway. Second, the jogging trainees and the rear guards were all wearing
black T-shirts, black short pants, and black and green combat shoes, which
made them hard to make out on that dark and cloudy night. The rear guards
had neither reflectorized vests or gloves nor flashlights in giving hand signals.
Third, GLENN was driving on the proper side of the road, the right lane. On the
other hand, the jogging trainees were occupying the wrong lane, the same lane
as Glenn’s vehicle was traversing. Worse, they were facing the same direction
as Glenn’s truck such that their backs were turned towards the oncoming
vehicles from behind. Fourth, no convincing evidence was presented to rebut
Glenn’s testimony that he had been momentarily blinded by the very bright and
glaring lights of the oncoming vehicle at the opposite direction as his truck
rounded the curve. He must have been still reeling from the blinding effect of
the lights coming from the other vehicle when he plowed into the group of police
trainees. Indeed, as pointed out by appellant, instinct tells one “to stop or
swerve to a safe place the moment he sees a cow, dog, or cat on the road, in
order to avoid bumping or killing the same"; and more so if the one on the road
is a person. It would therefore be inconceivable for GLENN, then a young
college graduate with a pregnant wife and three very young children who were
dependent on him for support, to have deliberately hit the group with his truck.
We are convinced that the incident, tragic though it was in light of the number
of persons killed and seriously injured, was an accident and not an intentional
felony. It is significant to note that there is no shred of evidence that GLENN
had an axe to grind against the police trainees that would drive him into
deliberately hitting them with intent to kill. Glenn’s offense is in failing to apply
the brakes, or to swerve his vehicle to the left or to a safe place the movement
he heard and felt the first bumping thuds. Had he done so, many trainees would
have been spared.
The test for 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 prevision, is always necessary
before negligence can be held to exist.
GLENN showed an inexcusable lack of precaution. Article 365 of the Revised
Penal Code states that reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by
reason of inexcusable lack of precaution on the part of the person performing
or failing to perform such act, taking into consideration (1) his employment or
occupation; (2) his degree of intelligence; (4) his physical condition; and (3)
other circumstances regarding persons, time and place.
GLENN, being then a young college graduate and an experienced driver,
should have known to apply the brakes or swerve to a safe place immediately
upon hearing the first bumping thuds to avoid further hitting the other trainees.
By his own testimony, it was established that the road was slippery and slightly
going downward; and, worse, the place of the incident was foggy and dark. He
should have observed due care in accordance with the conduct of a reasonably
prudent man, such as by slackening his speed, applying his brakes, or turning
to the left side even if it would mean entering the opposite lane (there being no
evidence that a vehicle was coming from the opposite direction). It is highly
probable that he was driving at high speed at the time. And even if he was
driving within the speed limits, this did not mean that he was exercising due
care under the existing circumstances and conditions at the time.

Considering that the incident was not a product of a malicious intent but rather
the result of a single act of reckless driving, GLENN should be held guilty of the
complex crime of reckless imprudence resulting in multiple homicide with
serious physical injuries and less serious physical injuries.
 Singson v. BPI
Facts:
Singson was one of the defendants in a civil case filed before the CFI Manila.
Judgment was rendered sentencing him and his co-defendants Celso Lobregat
and Villa-Abrille & Co. to pay the sum of P105,539.56 to Philippine Milling Co.
Singson and Lobregat appealed, while the decision became final and executory
as to Villa-Abrille. A writ of garnishment was issued to BPI against the Villa-
Abrille’s account.
The clerk of BPI who received the writ saw the petitioner’s name and, without
reading the full text, wrote a letter for the signature of the bank President,
informing Singson of the garnishment. Subsequently, Singson issued two
checks. The one issued in favor of B.M. Glass Service was dishonoured, and
so petitioner’s account with the latter was closed. Singson wrote a letter to the
bank, claiming that his account is not included in the writ of garnishment. Having
confirmed so, the bank President Santiago Friexas apologized to Singson and
rectified the mistake. Singson filed a claim for damages. The lower court ruled
that damages for quasi-delict cannot be sustained because the relationship
between the parties is contractual. Petitioner and his wife appealed the case.
Issue:
Whether damages based on torts can be awarded based on a contract
Held:
The existence of a contract between the parties does not bar the commission
of a tort by the one against the order and the consequent recovery of damages
therefor. The act that breaks the contract may also be a tort.
Singson vs BPI
FACTS: Singson, was one of the defendants in a civil case, in which judgment
had been rendered sentencing him and his co-defendants therein Lobregat and
Villa-Abrille & Co., to pay a sum of money to the plaintiff therein. Said judgment
became final and executory as only against Ville-Abrille for its failure to file an
appeal. A writ of garnishment was subsequently served upon BPI — in which
the Singsons had a current account — insofar as Villa-Abrille’s credits against
the Bank were concerned.
Upon receipt of the said Writ of Garnishment, a clerk of the bank, upon reading
the name of the Singson in the title of the Writ of Garnishment as a party
defendants, without further reading the body and informing himself that said
garnishment was merely intended for the deposits of defendant Villa-Abrille &
Co., et al, prepared a letter informing Singson of the garnishment of his deposits
by the plaintiff in that case.
Subsequently, two checks issued by the plaintiff Julian C. Singson, one in favor
of B. M. Glass Service and another in favor of the Lega Corporation, were
dishonored by the bank. B. M. Glass Service then wrote to Singson that the
check was not honored by BPI because his account therein had already been
garnished and that they are now constrained to close his credit account with
them.
Singson wrote to BPI, claiming that his name was not included in the Writ of
Execution and Notice of Garnishment, which was served upon the bank. The
defendants lost no time to rectify the mistake that had been inadvertently
committed. Thus this action for damages.
ISSUE: WON the existence of a contract between the parties bars a plaintiff’s
claim for damages based on torts?
HELD: NO. The existence of a contract between the parties does not bar the
commission of a tort by the one against the order and the consequent recovery
of damages therefore. Indeed, this view has been, in effect, reiterated in a
comparatively recent case. Thus, in Air France vs. Carrascoso, involving an
airplane passenger who, despite his first-class ticket, had been illegally ousted
from his first-class accommodation and compelled to take a seat in the tourist
compartment, was held entitled to recover damages from the air-carrier, upon
the ground of tort on the latter’s part, for, although the relation between a
passenger and a carrier is “contractual both in origin and nature … the act that
breaks the contract may also be a tort”.
In view, however, of the facts obtaining in the case at bar, and considering,
particularly, the circumstance, that the wrong done to the plaintiff was remedied
as soon as the President of the bank realized the mistake he and his
subordinate employee had committed, the Court finds that an award of nominal
damages — the amount of which need not be proven — in the sum of P1,000,
in addition to attorney’s fees in the sum of P500, would suffice to vindicate
plaintiff’s rights.
 PEOPLE’S BANK vs DAHICAN LUMBER
FACTS
Dahican lumber company (DAMCO) obtained several loans amounting to
250,000pesos from People·s bank (BANK) and ,together with DALCO, another
loan amounting to$250,000 from Export-Import bank secured by five
promissory notes through people·s bank. In both loans, DAMCO executed and
registered respective mortgages with inclusion of ´after acquired propertiesµ.
DAMCO and DALCO failed to satisfy the fifth promissory note in favor ofExport
bank so People·s bank paid it and subsequently filed an action for the
foreclosure ofthe mortgaged properties of DAMCO including the after acquired
machinery, equipment and spare parts upon the latter's failure to fulfill its
obligation.
Contention of the Petitioner
People·s bank asserted that the ´after acquiredµ machinery and equipment
ofDAMCO are subject to the deed of mortgage executed by DAMCO. Hence,
these can beincluded in the foreclosure proceedings.
Contentions of the Respondent
DALCO argued that the mortgages were void as regards the after acquired
propertiesbecause they were not registered in accordance with the chattel
mortgage law. Moreover,provision of the fourth paragraph of each of said
mortgages did not automatically make subject to such mortgages the "after
acquired properties", the only meaning thereof being that the mortgagor was
willing to constitute a lien over such properties.
ISSUE:
Whether the after acquired machinery and equipment of DAMCO are included
as subject of the Real Estate mortgage, thus can be foreclosed.
RULING:
Judgment rendered in favor of Plaintiff People·s bank. The after acquired
machinery and equipment are included in the executed mortgages.It is not
disputed in the case at bar that the "after acquired properties" were purchased
by DALCO in connection with, and for use in the development of its lumber
concession and that they were purchased in addition to, or in replacement of
those already existing in the premises on July 13, 1950. In Law, therefore, they
must be deemed to have been immobilized, with the result that the real estate
mortgages involved herein ³ which were registered as such ³ did not have to be
registered a second time as chattel mortgages in order to bind the "after
acquired properties" and affect third parties.Under the fourth paragraph of both
deeds of mortgage, it is crystal clear that all property of every nature and
description taken in exchange or replacement, as well as all
buildings,machineries, fixtures, tools, equipments, and other property that the
mortgagor may acquire,construct, install, attach; or use in, to upon, or in
connection with the premises ³ that is, its lumber concession ³ "shall
immediately be and become subject to the lien" of both mortgage sin the same
manner and to the same extent as if already included therein at the time of their
execution. As the language thus used leaves no room for doubt as to the
intention of the parties,
We see no useful purpose in discussing the matter extensively. Suffice it to say
that the stipulation referred to is common, and
We might say logical, in all cases where the properties given as collateral are
perishable or subject to inevitable wear and tear or were intended to be sold,
or to be used ³ thus becoming subject to the inevitable wear and tear ³ but with
the understanding³ express or implied ³ that they shall be replaced with others
to be thereafter acquired by the mortgagor. Such stipulation is neither unlawful
nor immoral, its obvious purpose being to maintain, to the extent allowed by
circumstances, the original value of the properties given as security. Indeed, if
such properties were of the nature already referred to, it would be poor
judgment on the part of the creditor who does not see to it that a similar
provision is included in the contract.
People’s Bank and Trust Co. vs. Dahican Lumber, Co., 20 SCRA 384
Article/ Topic: Liability of third person responsible for breach of Contract
Facts:
Atlantic sold and assigned all its right to DALCO for the sum of $500,000.00 of
which only the amount of $50,000.00 was paid. DALCO obtained various loans
from the People's Bank & Trust Company amounting, as of July 13, 1950, to
P200, 000.00. DALCO also obtained, through the Bank, a loan of $250,000.00
from the Export-Import Bank of Washington D.C., evidenced by five promissory
notes of $50,000.00 each, maturing on different dates, payable to the BANK or
its order.
As security for the payment of the loans, DALCO executed in favor of PBTC a
deed of mortgage, covering live parcels of land situated in the province of
Camarines Norte, with all the buildings and other improvements existing
thereon and all the personal properties of the mortgagor located in its place of
business in the municipalities of Mambulao and Capalonga, Camarines Norte.
DALCO also executed a second mortgage on the same properties in favor of
Atlantic in order to secure payment of the unpaid balance of the lumber
concession amounting to $450,000.00. The deeds contained a provision which
stated that it included essential after-acquired properties such as machineries,
fixtures, tools and equipment and these mortgages were registered in the Office
of the Register of Deeds of Camarines Norte.
Upon DALCO's and DAMCO's failure to pay the fifth promissory note upon its
maturity, PBTC paid the same to the Export-Import Bank of Washington D.C.
and the Export-Import Bank of Washington D.C assigned to PBTC its credit and
the first mortgage securing it. Subsequently, PBTC gave DALCO and DAMCO
another date, which is April 1, 1953 to pay the overdue promissory note.
DALCO purchased machineries, equipment, spare parts and supplies in
addition to, or in replacement of some of those already owned and used by it
on the date aforesaid. Pursuant to the provision of the mortgage deeds quoted
heretofore regarding "after acquired properties," PBTC requested DALCO to
submit complete lists of said properties but DALCO failed to do so. On
December 16, 1952, the Board of Directors of DALCO in a special meeting
called for the purpose, passed a resolution to rescind the alleged sales of
equipment, spare parts and supplies by CONNELL and DAMCO to it.
On January 23, 1953, PBTC and ATLANTIC demanded that said agreements
be cancelled but CONNELL and DAMCO refused to do so. As a result, PBTC
and Atlantic commenced foreclosure proceedings against DALCO and
DAMCO.
Issue:
Whether or not DALCO and DAMCO have the right to rescind the contract on
the ground that Connell is the possessor of some equipment, spare parts and
supplies which were covered in the lien of the mortgages.
Decision:
Expenses of receivership should be shouldered by the defendants, jointly and
severally, in the same manner that all of them should pay to the plaintiffs, jointly
and severally, attorney's fees awarded in the appealed judgment. In
consonance with the portion of this decision concerning the damages that the
plaintiffs are entitled to recover from the defendants, the record of this case
shall be remanded for the corresponding proceedings. With costs.
Ratio Decidendi:
The court found that Dahican America Lumber Corporation and Connell Bros.
Company were not even the sellers of various machineries, equipment, etc.
The rescission was nothing more than an attempt by Dahican Lumber to
defraud the bank and Atlantic, that is to remove such machineries, equipment,
etc. from the reach of the bank. Simply put, the rescission was a fake and was
just a ploy by DALCO conspired along with DAMCO and Connell.
“On the question of plaintiffs' right to recover damages from the defendants, the
law (Articles 1313 and 1314 of the New Civil Code) provides that creditors are
protected in cases of contracts intended to defraud them; and that any third
person who induces another to violate his contract shall be liable for damages
to the other contracting party. Similar liability is demandable under Arts. 20 and
21— which may be given retroactive effect (Arts. 225253)—or under Arts. 1902
and 2176 of the Old Civil Code.
The facts of this case, as stated heretofore, clearly show that DALCO and
DAMCO, after failing to pay the fifth promissory note upon its maturity,
conspired jointly with CONNELL to violate the provisions of the fourth
paragraph of the mortgages under foreclosure by attempting to defeat plaintiffs'
mortgage lien on the "after acquired properties". As a result, the plaintiffs had
to go to court to protect their rights thus jeopardized. Defendants' liability for
damages is therefore clear. However, the measure of the damages suffered by
the plaintiffs is not what the latter claim, namely, the difference between the
alleged total obligation secured by the mortgages amounting to around
P1,200,000.00, plus the stipulated interest and attorney's fees, on the one
hand, and the proceeds obtained from the sale of "after acquired properties",
and of those that were not claimed neither by DAMCO nor CONNELL, on the
other. Considering that the sale of the real properties subject to the mortgages
under foreclosure has not been effected, and considering further the lack of
evidence showing that the true value of all the properties already sold was not
realized because their sale was under stress.”
 AIR FRANCE vs. CARRASCOSO et al.
FACTS:
Rafael Carrascoso, a civil engineer, was a member of a group of 48 Filipino
pilgrims that left Manila for Lourdes.
Air France, through its authorized agent, Philippine Air Lines, Inc., issued to a
"first class" round trip airplane ticket for Carrascoso from Manila to Rome. From
Manila to Bangkok, he travelled in "first class", but at Bangkok, the Manager of
the airline forced him to vacate the "first class" seat 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 he refused, and told the Manager that his seat would be taken over his
dead body; a commotion ensued, and, according to said 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 manager, they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the
white man" and he reluctantly gave his "first class" seat in the plane.
The CFI ordered Air France to pay Carrascoso moral damages, exemplary
damages, and the difference in fare between first class and tourist class for the
trip Bangkok-Rome. The CA affirmed the decision.
ISSUE: WON moral damages could be recovered from AirFrance, granted that
their employee was accused of the tortuous act.
HELD: Yes. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law.For the willful
malevolent act of petitioner's manager, petitioner, his employer, must answer.
Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held
that upon the provisions of Article 2219 (10), Civil Code, moral damages are
recoverable.
Wherefore, the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same.
Air France v. Carascoso and CA
FACTS
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 atBangkok, 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"
and plaintiff reluctantly gave his "first class" seat in the plane.
ISSUES: Was Carrascoso entitled to the first class seat he claims and therefore
entitles to damages?
HOLDING & RATIO DECIDENDI
Yes. 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 hehadtourist 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.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,the nan air passenger is placed in the hollow of the
hands of an airline. What security thencana 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 tothe
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 andair 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.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?To authorize an award for moral
damages there must be an averment of fraud or bad faith. 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. The contract was averred to establish the relation between the
parties.But the stress of the action is put on wrongful expulsion. 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.Passengers do not contract merely for
transportation. They have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are entitled to be
protected against personal misconduct, injurious language, indignities and
abuses from such employees. So it is that any rule or discourteous conduct on
the part of employees towards a passenger gives the latter an action for
damages against the carrier.
AIR FRANCE V CA (Carrascoso, Et. Al)
FACTS
Carrascoso, a civil engineer, left Manila for Lourdes w/48 other Filipino pilgrims.
Air France, through PAL,issued plaintiff a “first class” round trip airplane ticket
from Manila to Rome. From Manila to Bangkok,Carrascoso traveled in “first
class” but at Bangkok, theManager 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 betaken over his dead body; a commotion ensued,and, according
to said Ernesto G. Cuento, many of theFilipino passengers got nervous in the
tourist class;when they found out that Mr. Carrascoso was having ahot
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; and
plaintiff reluctantly gave his 'first class' seat in the plane."- both TC and CA
decided in favor of Carrascoso
ISSUES:
1.WON Carrascoso was entitled to the “first class” sea the claims, as proved by
written documents (tickets…)
2.WON Carrascoso was entitled to moral damages,when his action is planted
upon breach of contract and thus, there must be an averment of fraud or bad
faith which the CA allegedly failed to find
3.WON moral damages could be recovered from Air France, granted that their
employee was accused of the tortuous act
4. WON damages are proper in a breach contract
5. WON the transcribed testimony of Carrascoso regarding the account made
by the air-carrier’s purser is admissible in evidence as hearsay
6. WON Carrascoso was entitled to exemplary damages
7. WON Carrascoso was entitled to attorney’s fees
8. WON the amounts awarded to Carrascoso was excessive
HELD
1. YES. the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Ratio: 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.
Reasoning : 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. However, CA held that
Air France should know whether or not the tickets it issues are to be honored
or not. The trial court also accepted as evidence the written documents
submitted by Carrasco and even the testimony of the air-carrier’s employees
attested that indeed, Carrasco was issued a “first class ticket”.- 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.-Also, when Carrascoso was asked to confirm his seat inBangkok, he
was granted the “first class” seat. If there had been no seat, and if the “white
man” had a better right to the seat, then why did they confirm Carrasco his
seat?
2. YES
Ratio: 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.
Reasoning: There was a contract to furnish plaintiff a first class passage
covering, amongst others, the Bangkok-Teheran leg; Second, said contract
was breached when petitioner failed to furnish first class transportation
atBangkok; and Third, 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.- Air France did not present evidence that the “white
man” made a prior reservation, nor proved that the“white man” had “better right”
over the seat; also, if the manager’s actions could be justified, they should have
presented the manager to testify in court – but they did not do so-
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 purposes
3. YES
The responsibility of an employer for the tortious act of its employees need not.
be essayed. For the wilful malevolent act of petitioner's manager, petitioner, his
employer, must answer.5. YES- 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.(note: it was
held that it was a case of quasi-delict even though it was a breach of contract)
Ratio: A contract to transport passengers is quite different in kind and degree
from any other contractual relation. And is, 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 I 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.
Reasoning: 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.
5.YES, if forms part of theres gestae
Ratio:Testimony of the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. - also…From a reading of the
transcript just quoted,when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as
yet died down.Statements then, in this environment, are admissible as part of
the res gestae. For, they grow "out of the nervous excitement and mental and
physical condition of the declarant".
Reasoning: Carrascoso testified that the purser of the air-carrier made an entry
in his notebooks reading "First class passenger was forced to go to the tourist
class agains this will, and that the captain refused to intervene". The petitioner
contents that it should not be admitted as evidence, as it was only hearsay.
However, the subject of inquiry is not the entry, but the ouster incident. Also,the
said entry was made outside the Philippines and by an employee of petitioner.
It would have been easy for Air France to contradict Carrascoso’s testimony if
they had presented the purser.

6. YES

Ratio: 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".

Reasoning : The manner of ejectment of respondent Carrascoso from his first

class seat fits into this legal precept

7. YES

Ratio: The grant of exemplary damages justifies asimilar Judgment for

attorneys' fees. The least that can be said is that the courts below felt that it is
but justand equitable that attorneys' fees be given.

8. NO

Ratio: The task of fixing these amounts is primarily with the trial court. The
dictates of good sense suggest that we give our imprimatur thereto. Because,
the facts and circumstances point to the reasonableness thereof.

DISPOSITION

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.
 MARGARITA AFIALDA vs. BASILIO HISOLE and FRANCISCO HISOLE,
Facts:
Loreto Afialda was employed by the Basilio Hisole and Francisco Hisole as
caretaker of their carabaos at a fixed compensation. On March 21, 1947, while
tending the animals, without any fault from Afialda or any force majeure, he was
gored by one of them and later died as a consequence of his injuries. Plaintiff
herein, who is the sister of the deceased, filed an action a civil action for
damages from injury caused by the animal. Plaintiff seeks to hold defendants
liable under Article 1905 of the Civil Code, which reads: The possessor of an
animal, or the one who uses the same, is liable for any damages it may cause,
even if such animal should escape from him or stray away. This liability shall
cease only in case, the damage should arise from force majeure or from the
fault of the person who may have suffered it. (Art. 2182 of the New Civil Code)
Before filing their answer, defendants moved for the dismissal of the complaint
for lack of a cause of action, and the motion was granted by the lower court.
The lower court ruled that in Art. 1905 of the Civil Code, the owner of an animal
is answerable only for damages caused to a stranger, and that for damage
caused to the caretaker of the animal the owner would be liable only if he had
been negligent or at fault under article 1902 of the same code. (Art. 2176 of the
New Civil Code). Thus, plaintiff filed an appeal.
Issue: Whether the owner of the animal is liable when damage is caused to its
caretaker
Held: The Supreme Court ruled that Art. 1905 of the Civil Code names the
possessor or user of the animal as the person liable for "any damages it may
cause," and this for the obvious reason that the possessor or user has the
custody and control of the animal and is therefore the one in a position to
prevent it from causing damage.
In the present case, the animal was in custody and under the control of the
caretaker, who was paid for his work as such. Obviously, it was the caretaker's
business to try to prevent the animal from causing injury or damage to anyone,
including himself. And being injured by the animal under those circumstances,
was one of the risks of the occupation which he had voluntarily assumed and
for which he must take the consequences. In a decision of the Spanish
Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), It is a
veritable accident of labor" which should come under the labor laws rather than
under article 1905 of the Civil Code. However, the present action not brought
under the Workmen's Compensation Act, The defendant's liability is made to
rest on article 1905 of the Civil Code. but action under that article is not tenable.
On the other hand, if action is to be based on Article 1902 of the Civil Code, it
is essential that there be fault or negligence on the part of the defendants as
owners of the animal that caused the damage. But the complaint contains no
allegation on those points. There being no reversible error in the order appealed
from, the same is hereby affirmed, but without costs in view of the financial
situation of the appellant.
MARGARITA AFIALDA VS BASILIO HISOLE and FRANCISCO HISOLE
Facts:
Deceased Loreto Afialda was employed by the defendant spouses as caretaker
of their carabaos at a fixed compensation. On March 21, 1947, while he was
tending the animals, he was gored by one of them and consequently died of his
injuries. Thus, herein appellant, Loreto’s elder sister who depended on him for
support, filed the action for damages. The complaint was dismissed by the trial
court upon granting a motion to dismiss filed by spouses Hisole. Subsequently,
the plaintiff had taken the present appeal.
Issue: Whether or not defendants may be held liable for damages when
damage is caused to the animal’s caretaker.
Ruling :
Under Article 1905 of the old Civil Code, the owner of an animal is answerable
only for damages caused to a stranger, and that for damage caused to the
caretaker of the animal the owner would be liable only if he had been negligent
or at fault under Article 1902 of the same code. In the case at hand, the animal
was in custody and under the control of the caretaker, who was paid for his
work as such. Thus, it was his business to try to prevent the animal from causing
injury or damage to anyone, including himself. Being injured by the animal
under those circumstances, was one of the risks of the occupation which he
had voluntarily assumed and for which he must take the consequences.
Deceased does not fall within the ambit of “stranger”, which is significant for the
claim for damages under the said article. Moreover, under the said
circumstances, the action should not come under Article 1905 of the Civil Code
but under the labor laws, i.e. Workmen’s Compensation Act. The complaint
contained no allegation as to constitute liability under the Civil Code nor the
Workmen’s Compensation Act. Hence, it alleges no cause of action. The order
appealed from was affirmed.
Francisco vs Onrubia
Torts and Damages– When Liability for Quasi Delict Arises
In November 1922, Onrubia was driving his car in Calle Ascarraga, Manila and
he overrun the 9 year old son of Francisco which led to his son’s death.
Francisco sued Onrubia for homicide through reckless imprudence. The lower
court acquitted Onrubia as it ruled that Onrubia did not drive the automobile he
was operating at an exaggerated or unreasonable speed, was not responsible
for any imprudence, fault, carelessness or negligence whatsoever, and did not
violate any regulation in connection with said death. Now Francisco filed a
separate civil suit for damages against Onrubia for P4.5k. Onrubia assailed the
civil suit arguing that Francisco did not reserve the right to file a separate civil
case against him. Francisco grounded the civil suit on Article 1902 which states
that “Any person who by an act or omission causes damages to another by his
fault or negligence shall be liable for the damage so done.”
ISSUE: Whether or not Onrubia is civilly liable.
HELD:
No. In order to establish the civil liability in a criminal case, it is necessary that
the same spring from, or be a consequence of, the criminal liability, and,
therefore, if a defendant is acquitted of a crime, a judgment, sentencing him to
pay a determinate indemnity by reason of the same crime is not possible. A
person not criminally liable for a crime or misdemeanor cannot be civilly liable.
The full and complete acquittal of Onrubia necessarily implies his innocence of,
and freedom from responsibility for, the crime of which he was accused.
Though there is another provision of the Civil Code (Article 1093) which states
that “Those arising from wrongful or negligent acts or omissions not punishable
by law shall be subject to the provisions of Chapter Second of Title Sixteen of
this book.”, and said chapter contains Article 1902, it is necessary that the
negligence or fault in question be not punished by law. This is not the case in
the case at bar; the negligence complained of in this case is punishable by law,
however, said negligence does not exist on the part of Onrubia.