Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

95469 July 25, 1991 AGAPITO MANUEL, petitioner, vs. HON. COURT OF APPEALS, HON. RAMON MAKASIAR and SPOUSES JESUS DE JESUS and CARMEN DE JESUS, respondents. Miguel Y. Badando for petitioner. R.C. Lizardo Law Office for private respondents.

REGALADO, J.:p This case had its inception in a complaint for ejectment filed by herein private respondents against herein petitioner before the Metropolitan Trial Court of Manila, docketed as Civil Case No. 122136-CV, for non-payment of rentals on an apartment unit owned by private respondents and rented by petitioner. The antecedent facts which led to the filing of said case are best quoted from the succinct presentation thereof in the challenged decision of respondent court: It appears that the private respondents are the owners of an apartment unit which was rented by the petitioner on a month to month basis for a monthly rental of P466.00 payable in advance; that the petitioner failed to pay the corresponding rentals for the month of May 1987 up to the filing of the complaint on August 31, 1987; that on July 9, 1987, private respondents, through their counsel, sent a demand letter to the petitioner (Exhibit "R") requiring him to pay his rentals in arrears and to vacate the leased premises within five (5) days from receipt thereof, otherwise private respondents will be constrained to file the appropriate

legal action against him; that the demand letter of private respondents' counsel was received by the petitioner on July 14, 1987; that in response thereto, the petitioner addressed a letter dated July 15, 1987 to private respondent Carmen de Jesus, furnishing a copy thereof to her counsel, stating that the amount of rentals, which the private respondents allegedly refused to receive, had been deposited at United Coconut Planters Bank, Taft Avenue Branch, with Account No. 8893 in the name of the petitioner's son, Mario Manuel, and could be withdrawn upon notice of payment; that in order to collect the said rentals allegedly deposited with the bank, the private respondents' counsel sent a letter dated August 14, 1987 to the petitioner, requesting the payment of the unpaid rentals to his (private respondents' counsel) office; that the said letter was received by the petitioner on August 18, 1987, and, instead of complying with private respondents' counsel's request, the petitioner addressed a letter dated August 24, 1987 to the private respondents' counsel requesting that the rentals in arrears be paid to the private respondents at petitioner's house. The private respondents did not heed the petitioner's request. 1 On April 6, 1989, after the parties had submitted their respective affidavits and position papers, the said metropolitan trial court rendered judgment in favor of private respondents, as plaintiffs therein, the dispositive part whereof declares: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, ordering defendant and/or any other person claiming rights under him to vacate and surrender possession of the premises described as door No. 2444; defendant Agapito Manuel to pay the plaintiffs the amount of P466.00 a month from May 1987 and up to the date defendant and/or any other person claiming rights under him actually vacates the 1

premises, to pay the plaintiffs the amount of P500.00 as attorney's fees, plus cost of the Suit. 2 On appeal in Civil Case No. 89-48914, the Regional Trial Court of Manila, Branch 35, affirmed the aforesaid judgment in toto in its decision dated September 20, 1989. 3 Not satisfied therewith, petitioner appealed to respondent Court of Appeals which, in its decision 4 dated January 29, 1990 in CA-G.R. SP No. 18961, denied due course to the petition for review and dismissed the same for lack of merit. 5 Petitioner's motion for motion for reconsideration was likewise denied by said respondent court in its resolution of March 5, 1990. 6 Before us, petitioner raises two grounds, the first supposedly in the nature of a supervenience, for the allowance of his petition, viz.: 1. A new situation developed and/or came about which makes ejectment unjust and impossible, that is, the NHA finally awarded the lot over which the subject structure stands to the petitioner and other tenants and disqualified the private respondent. It said ruling or awards, the private respondent are only given the option to either sell the structure to the petitioner and the other awardees or to dismantle the same. 2. Moreover, under the circumstances prevailing in this instant case, the private respondent were really in mora accipiendi that even if no deposit or consignation had been made, said mora cannot be cured. Petitioner had in fact continuously made available and deposited his rentals had been made moot and academic by virtue of the NHA award in favor of the petitioner and the governmental expression of public policy to protect the actual occupants, specifically the petitioner. 7 We find the petition bereft of merit.

The putative award on April 6, 1990 by the National Housing Authority (NHA) to the petitioner of the lot where the rented apartment stands, 8 while this ejectment case was pending in the Court of Appeals, is of no moment. The juridical relation between petitioner and private respondent as lessee and lessors is well established and the non-payment of rentals by petitioner for at least three (3) months is substantial by the evidence on record. The award of the lot to petitioner by NHA does not automatically vest in him ownership over the leased structure thereon. Petitioner cannot invoke the provisions of the Civil Code on accession there being an existing lessor and lessee relation between him and private respondents. 9 A tenant cannot, in an action involving the possession of the leased premises, controvert the title of his landlord or assert any rights adverse to that title or set up any inconsistent right to change the relation existing between himself and his landlord, without first delivering up to the landlord the premises acquired by virtue of the agreement between themselves. The rule estopping a tenant while he retains possession applies whether the tenant is defendant or plaintiff and applies even though the landlord had no title at the time the relationship was created. 10 Proceedings in forcible entry and detainer are wholly summary in nature. The fact of lease and the expiration of its terms are the only elements of this kind of action. 11 The question of ownership is unessential and should be raised by the defendant in an appropriate action. 12 Any controversy over ownership right could and should be settled after the party who had the prior, peaceful and actual possession is returned to the property. 13 In the present case and assuming the new factual milieu posited by petitioner, he should file a separate action wherein his alleged rights as owner of the land vis-a-vis the rights of private respondents as builders or owners of the structure standing thereon can be properly ventilated. There can be no such adjudication here for when the relationship of lessor and lessee is established in an unlawful detainer case, any attempt of the defendant to inject the question of ownership into the case is inutile except in so far as it might throw light on the right of possession.14 In an appeal from an inferior court in an ejectment case the issue of ownership should not be delved into, for an ejectment action lies even against the 2

owner of the property. 15 The fact of possession in itself has a positive value and is endowed with a distinct standing of its own in the law of property. True, by this principle of respect for the possessory status, a wrongful possessor may at times be upheld by the courts, but this is only temporary and for one sole and special purpose, namely, the maintenance of public order. The protection is only temporary because it is intended that as soon as the lawless act of dispossession has been suppressed, the question of ownership or of possession de jure is to be settled in the proper court and in a proper action. The larger and permanent interests of property require that such rare and exceptional instance of preference in the courts of the actual but wrongful possessor be permitted. 16 The contention of petitioner that private respondents are in mora accipiendi cannot be upheld either. The failure of the owners to collect or their refusal to accept the rentals are not valid defenses. Consignation, under such circumstances, is necessary, 17 and by this we mean one that is effected in full compliance with the specific requirements of the law therefor. Section 5(b) of Batas Pambansa Blg. 25, as amended, provides that in case of refusal by the lessor to accept payment of the rental agreed upon, the lessee shall either deposit, by way of consignation, the amount in court or in a bank in the name of and with notice to the lessor. The failure of herein petitioner to comply with said requirement makes the consignation defective and gives rise to a cause of action for ejectment. 18 Compliance with the requisites of a valid consignation is mandatory. It must be complied with frilly and strictly in accordance with the law. Substantial compliance is not enough. 19 From the earlier discussion, petitioner evidently did not comply with the requirements for consignation prescribed by the governing law. Consequently, as expounded by the Court of Appeals The failure of the petitioner to fully and strictly comply with the requirements of consignation as aforementioned, renders nil his contention that the private respondents have no cause of action against him, As there was no valid consignation, payment of the more than three months rental arrearages

was not effected. Under Section 5(b) of B.P. Blg. 25, as amended, arrears in payment of rent for three (3) months at any one time, is a ground for judicial ejectment. For such nonpayment of the petitioner to the private respondents of the monthly rentals from May, 1987 until the case was filed on August 31, 1987, or for more than three (3) months, there therefore existed a cause of action in favor of the private respondent lessors against the petitioner lessee.20 ACCORDINGLY, the petition is DENIED and the assailed judgment of respondent Court of Appeals is AFFIRMED. SO ORDERED. Melencio-Herrera, Padilla and Sarmiento, JJ., concur. Paras, J., took no part. Footnotes 1 Ibid., 19. 2 Original Record, 22-24. 3 Ibid., 18-21; per Judge Ramon P. Makasiar. 4 By Justice Gloria C. Paras, ponente, with the concurrence of Justices Bonifacio A. Cacdac, Jr. and Socorro Tirona-Liwag. 5 Rollo, 18-23. 6 Ibid., 25. 7 Ibid., 9. 8 Ibid., 26-27. 9 The rules on accession industrial are inapplicable to cases where there is a juridical relation existing between the owner of the land and the builder, planter or sower 3

covering the property in question; instead, their agreement, primarily, and the provisions of the Civil Code on obligations and contracts, including those on special contracts that could be pertinent, suppletorily, would govern (Vitug, Compendium of Civil Law and Jurisprudence, First Edition, 111). 10 49 Am. Jur. 2d 158. 11 Tiu vs. Court of Appeals, et al., 37 SCRA 99 (1971). 12 Bautista, et al. vs. Gonzales, 78 Phil. 390 (1947). 13 Mediran vs. Villanueva, 37 Phil. 752 (1918); De la Cruz, et al. vs. Burgos, 28 SCRA 977 (1969); Dizon vs. Concina, et al., 30 SCRA 897 (1969). 14 See De Vasquez vs. Diva, 83 Phil. 410 (1949). 15 Prado vs. Calpo, 10 SCRA 801 (1964). 16 Lizo vs. Carandang, et al., 73 Phil. 649 (1942). 17 Velez vs. Avelino, et al., 127 SCRA 602 (1984). 18 Alfonso vs. Court of Appeals, et al., 168 SCRA 545 (1988). 19 Soco vs. Militante, et al., 123 SCRA 160 (1983). 20 Rollo, 20-21

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor. 3 ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old. 4 The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued by ZHIENETH's attending doctor described the extent of her injuries: Diagnoses: 1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury 2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver 3. Rupture, stomach, anterior & posterior walls 4. Complete transection, 4th position, duodenum 5. Hematoma, extensive, retroperitoneal 6. Contusion, lungs, severe CRITICAL After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral expenses 6 which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney's fees and an unspecified amount for loss of income and exemplary damages. In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH. They claimed that 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 5

G.R. No. 129792 December 21, 1999 JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.

DAVIDE, JR., J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar. 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. Private 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 a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young 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

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. Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and countered that the complaint was malicious for which they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and exemplary damages and attorney's fees in their favor. In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private respondents' witnesses testified on how the counter fell. The trial court also held that CRISELDA's negligence contributed to ZHIENETH's accident. In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance. 8The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it. Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liable for the death of ZHIENETH. Further, private respondents asserted that ZHIENETH should be entitled to the conclusive

presumption that a child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also, the testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered as part of res gestaebut also accorded credit. Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip. Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was petitioners' negligence in failing to institute measures to have the counter permanently nailed. On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETH's death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence. As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified that it was not necessary. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they had exercised due diligence on the matter. In fact, the criminal case 10 for homicide through simple negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor. 6

The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted "L" 11 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. The Court of Appeals faulted the petitioners for this omission, and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for some time without a prior incident. The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter. The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private respondents as evidenced by the hospital's statement of account. 12 It denied an award for funeral expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH. We quote the dispositive portion of the assailed decision, 13 thus: WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is

entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following: 1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984; 2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27 April 1984; 3. P100,000.00 as moral and exemplary damages; 4. P20,000.00 in the concept of attorney's fees; and 5. Costs. Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals' resolution 14 of 16 July 1997. Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. They stress that since the action was based on tort, any finding of negligence on the part of the private respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDA's contributory negligence, through her failure to provide the proper care and attention to her child while inside the store, nullified private respondents' claim for damages. It is also for these reasons that parents are made accountable for the damage or injury inflicted on others by their minor children. Under these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH. Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he testified; hence, his testimony might have been tarnished by ill-feelings against them. For their part, private respondents principally reiterated their arguments that neither ZHIENETH 7

nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the hospital's emergency room should receive credence; and finally, ZHIENETH's part of the res gestae declaration "that she did nothing to cause the heavy structure to fall on her" should be considered as the correct version of the gruesome events. We deny the petition. The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. 15 It is "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." 16 On the other hand, 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. 17 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." 18 Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident 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. 19 The test in determining the existence of negligence is enunciated in the landmark case of Plicart v. Smith, 20 thus: 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. 21 We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be attributed to negligence. We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and ZHIENETH to the hospital: Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated? A At the emergency room we were all surrounding the child. And when the doctor asked the child "what did you do," the child said "nothing, I did not come near the counter and the counter just fell on me." Q (COURT TO ATTY. BELTRAN) You want the words in Tagalog to be translated? ATTY. BELTRAN Yes, your Honor. COURT Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22 This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus: Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. 8

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions. 23 All that is required for their admissibility as part of the res gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. 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. We therefore accord credence to Gonzales' testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counter's base. Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-wrapping counter proved their negligence, thus: Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping counter, were you able to examine? A Because every morning before I start working I used to clean that counter and since not nailed and it was only standing on the floor, it was shaky. xxx xxx xxx Q Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic] May 9 1983? A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy. xxx xxx xxx Q And what did you do? A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting display decorations on tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he told me "better inform also the company about it." And since the company did not do anything about the

counter, so I also did not do anything about the counter. 24 [Emphasis supplied] Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus: Q Will you please described [sic] to the honorable Court the counter where you were assigned in January 1983? xxx xxx xxx A That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was shaky. Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please describe that to the honorable Court? A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we had to nail it. Q When you said she, to whom are you referring to [sic]? A I am referring to Ms. Panelo, sir. Q And what was the answer of Ms. Panelo when you told her that the counter was shaky? A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me?" And she even got angry at me when I told her that. xxx xxx xxx Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to that (sic) xxx xxx xxx Witness: None, sir. They never nailed the counter. They only nailed the counter after the accident happened. 25 [Emphasis supplied] 9

Without doubt, petitioner 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. On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra's testimonies were blemished by "ill feelings" against petitioners since they (Gonzales and Guevarra) were already separated from the company at the time their testimonies were offered in court was but mere speculation and deserved scant consideration. It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. 26However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect the result of the case.27 In the instant case, petitioners failed to bring their claim within the exception. Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated: 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. Since negligence may be a felony and aquasi-

delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied] 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. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its base was not secured. 30 CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA 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 CRISELDA 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 four meters away from CRISELDA. 32 The time and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her. WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.

10

Costs against petitioners. SO ORDERED. Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur. Footnotes 1 Annex "A" of Petition; Rollo, 36-47. Per Justice Godardo A. Jacinto, with Justices Salome A. Montoya and Maximiano C. Asuncion, concurring. 2 Annex "B" of Petition; Rollo, 49. 3 TSN, 13 February 1985, 5, 6, 7-8, 21-22, 31. 4 Id., 32, 36, 42, 52. 5 Original Record (OR), 8. 6 Exhibit "H." 7 OR, 603-612. Per Judge Pedro N. Lagui. 8 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 tresspasser in the premises. The principal 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. (Hidalgo Enterprises, Inc. v. Balandan, et al., 488, 490 [1952]. 9 TSN, 10 September 1987, 12. 10 Criminal Case No. 118986 filed with the Makati Metropolitan Trial Court, Branch 61.

11 Exhibit "D." 12 Exhibit "F." 13 Supra note 1. 14 Supra note 2. 15 See Novo & Co. v. Ainsworth, 26 Phil. 380, 387 [1913]. 16 BLACK'S LAW DICTIONARY, 5th ed. 1979, 14. 17 Mckee v. Intermediate Appellate Court, 211 SCRA 517, 539 [1992] citing Black's Law Dictionary, 5th ed., 1979, 930. 18 U.S. v. Barias, 23 Phil. 434, 437 [1912] citing Judge Cooley's work on Torts, 3rd ed., 1324. 19 See Cavanaugh v. Jepson Iowa, 167 N.W. 2d 616, 623 [1969]. See also Restatement, Second, Torts 8. 20 37 Phil. 809 [1918]. 21 Ibid, 813. 22 TSN, 10 September 1987, 12, 13. 23 RICARDO J. FRANCISCO, III EVIDENCE, 1997, 591 citing Keefe v. State of Arizona, 60 Ariz. 293; Stukas v. Warfield, Pratt, Howell Co., 175 N.W. 81, 85. [1919]. 24 TSN, 10 September 1987, 8, 9, 11. 25 TSN, 2 October 1987, 9, 11. 26 See BPI Credit Corporation v. Court of Appeals, 204 SCRA 601, 608 [1991]; Geronimo v. Court of Appeals, 224 SCRA 494, 498 [1993]. 27 Borillo v. Court of Appeals, 209 SCRA 130, 140-141 [1992]; McKee v. Intermediate Appellate Court,supra note 16, 537; Salvador v. Court of Appeals, 243 SCRA 239, 253 [1995].

11

28 I PHILIPPINE LAW ON TORTS AND DAMAGES, 70-71 (1993). 29 Exhibit "D." 30 Exhibits "K," "M," and "N." The counter was made of heavy wood measuring about 4 to 5 meters in height; 1 meter in length; and 2 1/2 to 3 meters in width; with four (4) square legs. Its top was made of 5 1/2 inch thick wood covered by formica about 3/4 inch thick. 31 TSN, 13 February 15, 20. 32 Ibid., 11, 22.

12

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 89880 February 6, 1991 EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors: ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC, all surnamed BUSTAMANTE, Spouses SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and ENRIQUETA CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-HIMAYA, and Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREABUSTAMANTE, petitioners, vs. THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND EDILBERTO MONTESIANO,respondents. Dolorfino and Dominguez Law Offices for petitioners. J.C. Baldoz & Associates for private respondents.

At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck, with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of the truck sideswiped the left side wall of the passenger bus, ripping off the said wall from the driver's seat to the last rear seat. Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries they sustained, Among those killed were the following: 1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of plaintiffs Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante; 2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson; 3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos; 4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and 5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion Bersamina. (Rollo, p. 48) During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant Del Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was registered in the name of defendant Novelo but was owned and/or operated as a passenger bus jointly by defendants Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran, Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on November 8, 1981, and which the 13

MEDIALDEA, J.:p This is a petition for review on certiorari seeking the reversal of the decision of the respondent Court of Appeals dated February 15, 1989 which reversed and set aside the decision of the Regional Trial Court of Cavite, Branch XV ordering the defendants to pay jointly and severally the plaintiffs indemnity for death and damages; and in further dismissing the complaint insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned; and its resolution dated August 17, 1989 denying the motion for reconsideration for lack of merit. The facts giving rise to the controversy at bar are recounted by the trial court as follows:

latter transferred to Serrado (Cerrado) on January 18, 1983. Immediately before the collision, the cargo truck and the passenger bus were approaching each other, coming from the opposite directions of the highway. While the truck was still about 30 meters away, Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also observed that the truck was heading towards his lane. Not minding this circumstance due to his belief that the driver of the truck was merely joking, Susulin shifted from fourth to third gear in order to give more power and speed to the bus, which was ascending the inclined part of the road, in order to overtake or pass a Kubota hand tractor being pushed by a person along the shoulder of the highway. While the bus was in the process of overtaking or passing the hand tractor and the truck was approaching the bus, the two vehicles sideswiped each other at each other's left side. After the impact, the truck skidded towards the other side of the road and landed on a nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50) After a careful perusal of the circumstances of the case, the trial court reached the conclusion "that the negligent acts of both drivers contributed to or combined with each other in directly causing the accident which led to the death of the aforementioned persons. It could not be determined from the evidence that it was only the negligent act of one of them which was the proximate cause of the collision. In view of this, the liability of the two drivers for their negligence must be solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision on March 7, 1986, the dispositive portion is hereunder quoted as follows: WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren Novelo, Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and severally to the plaintiffs, as follows: 1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00 as indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the loss of the earning capacity of the said deceased, at its prevailing rate

in pesos at the time this decision shall have become final and executory; P10,000.00 as moral damages; and P5,000.00 as exemplary damages; 2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the death of their daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and P5,000.00 as exemplary damages; 3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the death of their daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and 4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for the death of their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and 5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as indemnity for the death of their son, Noel Bersamina, P10,000.00 as moral damages and P5,000.00 as exemplary damages. The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorney's fees and to pay the costs of the suit. The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and Serrado, the actual owners and/or operators of the passenger bus concerned, are hereby ordered to indemnify Novelo in such amount as he may be required to pay as damages to the plaintiffs. The cross-claims and counter-claims of the other defendants are hereby dismissed for lack of merit. 14

SO ORDERED. (pp. 55-57, Rollo) From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and driver, respectively, of the sand and gravel truck have interposed an appeal before the respondent Court of Appeals. The Court of Appeals decided the appeal on a different light. It rendered judgment on February 15, 1989, to wit: WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the complaint dismissed insofar as defendantsappellants Federico del Pilar and Edilberto Montesiano are concerned. No costs in this instance. SO ORDERED. (p. 96, Rollo) On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the aforementioned Court of Appeals' decision. However, respondent Court of Appeals in a resolution dated August 17, 1989 denied the motion for lack of merit. Hence, this petition. Petitioners raised the following questions of law, namely: First. Whether the respondent Court can legally and validly absolve defendants-appellants from liability despite its own finding, as well as that of the trial court that defendantappellant Edilberto Montesiano, the cargo truck driver, was driving an old vehicle very fast, with its wheels already wiggling, such that he had no more control of his truck. Second. Whether the respondent court can validly and legally disregard the findings of fact made by the trial court which was in a better position to observe the conduct and demeanor of the witnesses, particularly appellant Edilberto Montesiano, cargo truck driver, and which conclusively found appellant Montesiano as jointly and severally negligent in driving his truck very fast and had lost control of his truck.

Third. Whether the respondent court has properly and legally applied the doctrine of "last clear chance" in the present case despite its own finding that appellant cargo truck driver Edilberto Montesiano was admittedly negligent in driving his cargo truck very fast on a descending road and in the presence of the bus driver coming from the opposite direction. Fourth. Whether the respondent court has applied the correct law and the correct doctrine so as to reverse and set aside the judgment with respect to defendants-appellants. (Rollo, pp. 133-134) As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal, provided, they are borne out by the record or are based on substantial evidence However, this rule admits of certain exceptions, as when the findings of facts are conclusions without citation of specific evidence on which they are based; or the appellate court's findings are contrary to those of the trial court. (Sese v. Intermediate Appellate Court, G.R. 66168, 31 July 1987, 152 SCRA 585). Furthermore, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. It is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed. Barring, therefore, a showing that the findings complained of are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand for the Supreme Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties. (Andres v. Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177 SCRA 618). Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly 15

because the appellate court's findings are contrary to those of the trial court. The trial court, in declaring that the negligent acts of both drivers directly caused the accident which led to the death of the aforementioned persons, considered the following: It was negligent on the part of driver Montesiano to have driven his truck fast, considering that it was an old vehicle, being a 1947 model as admitted by its owner, defendant Del Pilar; that its front wheels were wiggling; that the road was descending; and that there was a passenger bus approaching it. Likewise, driver Susulin was also guilty of negligence in not taking the necessary precaution to avoid the collision, in the light of his admission that, at a distance of 30 meters, he already saw the front wheels of the truck wiggling and that the vehicle was usurping his lane coming towards his direction. Had he exercised ordinary prudence, he could have stopped his bus or swerved it to the side of the road even down to its shoulder. And yet, Susulin shifted to third gear so as to, as claimed by him, give more power and speed to his bus in overtaking or passing a hand tractor which was being pushed along the shoulder of the road. (Rollo, p. 50) The respondent Court of Appeals. ruling on the contrary, opined that "the bus driver had the last clear chance to avoid the collision and his reckless negligence in proceeding to overtake the hand tractor was the proximate cause of the collision." (Rollo, p. 95). Said court also noted that "the record also discloses that the bus driver was not a competent and responsible driver. His driver's license was confiscated for a traffic violation on April 17, 1983 and he was using a ticket for said traffic violation on the day of the accident in question (pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a regular driver of the bus that figured in the mishap and was not given any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)

The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held that "We are not prepared to uphold the trial court's finding that the truck was running fast before the impact. The national road, from its direction, was descending. Courts can take judicial notice of the fact that a motor vehicle going down or descending is more liable to get out of control than one that is going up or ascending for the simple reason that the one which is going down gains added momentum while that which is going up loses its initial speeding in so doing." On the other hand, the trial court found and We are convinced that the cargo truck was running fast. It did not overlook the fact that the road was descending as in fact it mentioned this circumstance as one of the factors disregarded by the cargo truck driver along with the fact that he was driving an old 1947 cargo truck whose front wheels are already wiggling and the fact that there is a passenger bus approaching it. In holding that the driver of the cargo truck was negligent, the trial court certainly took into account all these factors so it was incorrect for the respondent court to disturb the factual findings of the trial court, which is in a better position to decide the question, having heard the witness themselves and observed their deportment. The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165). The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiffs peril, or according to some 16

authorities, should have been aware of it in the reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799). In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the Court citing the landmark decision held in the case of Anuran, et al. v. Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear chance" applies "in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence." Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter's peril, and it cannot be invoked as between defendants concurrently negligent. As against third persons, a negligent actor cannot defend by pleading that another had negligently failed to take action which could have avoided the injury." (57 Am. Jur. 2d, pp. 806-807). All premises considered, the Court is convinced that the respondent Court committed an error of law in applying the doctrine of last clear chance as between the defendants, since the case at bar is not a suit between the owners and drivers of the colliding vehicles but a suit brought by the heirs of the deceased passengers against both owners and drivers of the colliding vehicles. Therefore, the respondent court erred in absolving the owner and driver of the cargo truck from liability. Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the deceased, their respective awards of P30,000.00 are hereby increased to P50,000.00. ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of Appeals are hereby REVERSED and SET ASIDE and the judgment of the lower court is REINSTATED with the modification on the indemnity for death of each of the victims which is hereby increased to P50,000.00 each. No pronouncement as to costs.

SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

17

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee. Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of the accident. The antecedent facts are not disputed. Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort. Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat. Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando. When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the 18

G.R. No. L-68102 July 16, 1992 GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs. INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents. G.R. No. L-68103 July 16, 1992 CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners, vs. INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.: Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral damages, attorney's fees and litigation expenses. The said civil cases for damages based on quasidelict were filed as a result of a vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical

other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge. The incident was immediately reported to the police station in Angeles City; consequently, a team of police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet high. The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid marks. In his statement to the investigating police officers immediately after the accident, Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per hour. As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In

the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4 On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5 In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the person "at fault 19

having approached the lane of the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation. Petitioners filed their Answers to the Counterclaims in both cases. To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge Mario Castaeda, Jr. Left then with Branch V of the trial court was Criminal Case No. 3751. In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12 In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14 On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty beyond reasonable doubt of the crime charged in the information and after applying the provisions of Article 365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15 The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for petitioners filed with Branch III of the court where the two (2) civil cases were pending a manifestation to that effect and attached thereto a copy of the decision. 16 Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The dispositive portion of the said decision reads as follows: WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had proven their counterclaim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic). 18 A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received on 2 December 1980. 19

20

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The appeals were docketed as C.A.G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division. On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads: DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol. A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983. 24 On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads: WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows: For the death of Jose Koh: P 50,000.00 as moral damages P 12,000.00 as death indemnity P 16,000.00 for the lot and tomb (Exhs. U and U-1) P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979) P 950.00 for the casket (Exh. M) P 375.00 for the vault services (Exhs. V and V-1) For the death of Kim Koh McKee:

P 50,000.00 as moral damages P 12,000.00 as death indemnity P 1,000.00 for the purchase of the burial lot (Exh. M) P 950.00 for funeral services (Exh. M-1) P 375.00 for vault services (Exhs. V and V-1) For the physical injuries suffered by George Koh McKee: P 25,000.00 as moral damages P 672.00 for Clark Field Hospital (Exh. E) P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and D-2) P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1) For the physical injuries suffered by Araceli Koh McKee: P 25,000.00 as moral damages P 1,055.00 paid to St. Francis Medical Center (Exhs. G and G-1) P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3) P 428.00 to Carmelite General Hospital (Exh. F) P 114.20 to Muoz Clinic (Exh. MM) For the physical injuries suffered by Christopher Koh McKee: P 10,000.00 as moral damages P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1) P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1) In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478. No pronouncement as to costs. SO ORDERED. 26 The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and 21

supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee. 27This conclusion of reckless imprudence is based on the following findings of fact: In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in the fourth assigned error as follows: IV THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT. Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus: Q What happened after that, as you approached the bridge? A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane. Q Did the truck slow down? A No, sir, it did not, just (sic) continued on its way. Q What happened after that? A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases). xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did you know (sic)? A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31, Appellants' Brief). Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances: 1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when it had already collided with the car: xxx xxx xxx Tanhueco repeated the same testimony during the hearing in the criminal case: xxx xxx xxx Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital. We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived across the street. Regarding Soliman, experience has shown that in the ordinary course of events people usually take the side of the person with whom they are associated at the time of the accident, because, as a general rule, they do not wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously created among the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962). With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not go to the succor of the injured persons. He said he wanted to call the police authorities about the mishap, but his phone had no dial tone. Be this 22

(sic) as it may, the trial court in the criminal case acted correctly in refusing to believe Dayrit. 2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In this light, it is not farfetched to surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages. 3. Galang divulged that he stopped after seeing the car about 10 meters away: ATTY. SOTTO: Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only about ten (10) meters away from you for the first time? xxx xxx xxx A I noticed it, sir, that it was about ten (10) meters away. ATTY. SOTTO: Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief) Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge. 5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found skid

marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and none were found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck were caused by the truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup happened just the same. For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of the defendants in the selection of their driver or in the supervision over him. Appellees did not allege such defense of having exercised the duties of a good father of a family in the selection and supervision of their employees in their answers. They did not even adduce evidence that they did in fact have methods of selection and programs of supervision. The inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's attention was on the highway, he would have sighted the car earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was already inevitable, because at the time that he entered the bridge his attention was not riveted to the road in front of him. On the question of damages, the claims of appellants were amply proven, but the items must be reduced. 28 A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30 23

Hence, this petition. Petitioners allege that respondent Court: I . . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE. II . . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED. III . . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFSAPPELLANTS (APPELLEES

WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER. IV . . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES. V . . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER. VI . . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT. VII . . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION 24

AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31 In the Resolution of 12 September 1984, We required private respondents to Comment on the petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave due course to the instant petitions and required petitioners to file their Brief, 35 which they accordingly complied with. There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-arguments, some observations on the procedural vicissitudes of these cases are in order. Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasidelict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed, and understandably so, since by then no specific provision of law or ruling of this Court expressly allowed such a consolidation, that an independent civil action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33 itself expressly provides that the "civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." Be that as it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigants, 36 would have easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their respective

orientation, perception and perhaps even prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was what happened in this case. It should not, hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action subject, however, to the condition that no final judgment has been rendered in that criminal case. Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to this case. As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated: . . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the same manner to be filed separately from the criminal case, may proceed similarly regardless of the result of the criminal case. Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed independently even during the pendency of the latter case, the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so because the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, 25

that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action . . . . What remains to be the most important consideration as to why the decision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. It would have been entirely different if the petitioners' cause of action was for damages arising from a delict, in which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against Galang would have been conclusive in the civil cases for the subsidiary liability of the private respondents. 41 And now to the merits of the petition. It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations, conjectures and presumptions. The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are, as a rule, binding on this Court. 42 The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment. 43The same is true where the appellate court's conclusions are grounded entirely on conjectures, speculations and surmises 44 or where the conclusions of the lower courts are based on a misapprehension of facts. 45 It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the findings and conclusions of the trial court and the respondent Court in its

challenged resolution are not supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of fact. In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee: Q What happened after that, as you approached the bridge? A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane. Q Did the truck slow down? A No sir, it did not, just (sic) continued on its way. Q What happened after that? A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46 Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to the two (2) boys. Such act can hardly be classified as negligent.

26

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus: . . . 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 (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he 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." (Cooley on Torts, Fourth Edition, vol. 3, 265) In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e held: 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. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. . . .

In Corliss vs. Manila Railroad Company, 48 We held: . . . 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. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894). On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." 49 Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence. In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. Proximate cause has been defined as:

27

. . . 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. 50 Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents' claim that there was an error in the translation by the investigating officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly performed; 53 unless there is proof to the contrary, this presumption holds. In the instant case, private respondents' claim is based on mere conjecture. The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an impartial eyewitness to the mishap. Araceli Koh McKee testified further, thus: xxx xxx xxx Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision as you narrated in this Exhibit "1," how did you know? A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31, Appellants' Brief) 54 while Eugenio Tanhueco testified thus: 28

Q When you saw the truck, how was it moving? A It was moving 50 to 60 kilometers per hour, sir. Q Immediately after you saw this truck, do you know what happened? A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28, April 19, 1979) xxx xxx xxx Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever stopped? A I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55 Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident. Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear

chance to avoid the mishap is considered in law solely responsible for the consequences thereof. 56 In Bustamante vs. Court of Appeals, 57 We held: The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165). The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799). In Pantranco North Express, Inc., vs. Baesa, 58 We ruled: The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise: 29

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra]. Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim (sic) for damages. Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence in failing to exert ordinary care to avoid

the collision which was, in law, the proximate cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage. Article 2180 reads as follows: The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. The diligence of a good father referred to means the diligence in the selection and supervision of employees. 60The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it. The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984 finds no sufficient legal and factual moorings. In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased from P12,000.00 to P50,000.00.

30

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee. Costs against private respondents. SO ORDERED. Gutierrez, Jr., Feliciano and Romero, JJ., concur. Bidin, J., took no part. Footnotes 1 Exhibit "S". 2 In the sketch plan prepared by Geodetic Engr. Benito J. Caraan [Exhibit "Y"], the bridge is estimated to be 42.15 meters in length and 7.5 meters in width. 3 Record an Appeal, 220. 4 Id., 16-18. 5 Record on Appeal, 121-124. 6 Id., 226-227. 7 Id., 22-25; 26-28; 28-32; 34-36. 8 Id., 39-43. 9 Record on Appeal, 45-48; 49-52; 52-53. 10 Id., 53-57. 11 Id., 91, 92, 100, 101, 103, 104 and 105. 12 Record on Appeal, 107, 109, 111 and 112. 13 Id., 124, et seq. 14 Id., 138, et seq.

15 Id., 160-161. 16 Record on Appeal, 120-121. 17 Id., 86-120. 18 Id., 119-120. 19 Id., 6. 20 Per Associate Justice Onofre A. Villaluz, concurred in Associate Justices Crisolito Pascual and Guillermo P. Villasor. 21 Annex "C" of Petition; Rollo, 6977. 22 Annex "C-1," Id.; Id., 78. 23 G.R. No. 62713. 24 Annex "D," Petition, op. cit.; Rollo, op. cit., 79. 25 Per Associate Justice Porfirio V. Sison, concurred in by Associate Justices Abdulwahid A. Bidin, Marcelino R. Veloso and Desiderio P. Jurado. 26 Rollo, 88-89. 27 Id., 88. 28 Rollo, 83-88. 29 Rollo, 61-65. 30 Id., 67. 31 Rollo, 213-214. 32 Rollo, 150. 33 Id., 157-175. 34 Id., 185-198. 35 Id., 199.

31

36 Caos vs. Peralta, 115 SCRA 843 [1982], citing 1 C.J.S. 1342-1343. 37 203 SCRA 619 [1991]. 38 102 Phil. 443 [1957]. 39 At page 447. 40 117 SCRA 212, 218-219 [1982]; see also Castillo vs. Court of Appeals, 176 SCRA 591 [1989]; Andamo vs. Intermediate Appellate Court, 191 SCRA 195 [1990]. 41 Martinez vs. Barredo, 81 Phil. 1 [1948]; Miranda vs. Malate Garage and Taxicab, Inc., 99 Phil. 670 [1956]; Manalo vs. Robles Transportation Co., Inc., 99 Phil. 729 [1956]. 42 FNCB Finance vs. Estavillo, 192 SCRA 514 [1990]; Raeses vs. Intermediate Appellate Court, 187 SCRA 397 [1990]; Remalante vs. Tibe, 158 SCRA 138 [1988]. 43 Capco vs. Macasaet, 189 SCRA 561 [1990]. 44 Orcino vs. Civil Service Commission, 190 SCRA 815 [1990]; Tupue vs. Urgel, 161 SCRA 417 [1988], Tolentino vs. De Jesus, 56 SCRA 167 [1974]. 45 Pajunar vs. Court of Appeals, 175 SCRA 464 [1989]; Sese vs. Intermediate Appellate Court, 152 SCRA 585 [1987]. 46 TSN, 22 July 1977, 5-6; Exhibit "O," Rollo, 83. 47 167 SCRA 363 [1988]. 48 27 SCRA 674 [1969]. 49 Gan vs. Court of Appeals, 165 SCRA 378 [1988], citing Siegl vs. Watson, 195 NW 867 and others.

50 Vda. de Bataclan vs. Medina, 102 Phil. 181 [1957], citing 38 Am. Jur. 695-696. 51 Rollo, 148. 52 Section 53, Motor Vehicle Law. 53 Section 2 (m), Rule 131, Revised Rules of Court. 54 Rollo, 83-84. 55 Id., 84. 56 Ong vs. Metropolitan Water District, 104 Phil. 405 [1958]; Del Prado vs. Manila Electric Co., 52 Phil. 900) [1929]; Picart vs. Smith, 37 Phil. 809 [1918]. 57 193 SCRA 603 [1991]. 58 179 SCRA 384 [1989]. 59 Ramos vs. Pepsi-Cola Bottling Go., 19 SCRA 289 [1967], citing Bahia vs. Litonjua, 30 Phil. 624 [1915]. 60 Ramos vs. Pepsi-Cola Bottling Co., supra. 61 People vs. Sison, 189 SCRA 643 [1989]; People vs. Narit, 197 SCRA 334 [1991]; People vs. Tiozon, 198 SCRA 368 [1991]; People vs. Lubreo, 200 SCRA 11 [1991]; Dangwa Trans., Co., Inc. vs. Court of Appeals, 202 SCRA 574 [1991].

32

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. Nos. 103442-45 May 21, 1993 NATIONAL POWER CORPORATION, ET AL., petitioners, vs. THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents. The Solicitor General for plaintiff-appellee. Ponciano G. Hernandez for private respondents.

of the impending entry of typhoon "Kading," they failed to exercise due diligence in monitoring the water level at the dam; 4) when the said water level went beyond the maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly opened three (3) of the dam's spillways, thereby releasing a large amount of water which inundated the banks of the Angat River; and 5) as a consequence, members of the household of the plaintiffs, together with their animals, drowned, and their properties were washed away in the evening of 26 October and the early hours of 27 October 1978. 3 In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the selection of its employees; 3) written notices were sent to the different municipalities of Bulacan warning the residents therein about the impending release of a large volume of water with the onset of typhoon "Kading" and advise them to take the necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse of the dam and avoid greater damage to people and property; 5) in spite of the precautions undertaken and the diligence exercised, they could still not contain or control the flood that resulted and; 6) the damages incurred by the private respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque injuria. By way of special affirmative defense, the defendants averred that the NPC cannot be sued because it performs a purely governmental function. 4 Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As a result thereof, the trial court dismissed the complaints as against the NPC on the ground that the provision of its charter allowing it to sue and be sued does not contemplate actions based on tort. The parties do not, however, dispute the fact that this Court overruled the trial court and ordered the reinstatement of the complaints as against the NPC. 5 Being closely interrelated, the cases were consolidated and trial thereafter ensued. The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of 33

DAVIDE, JR., J.: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this Court to set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R. CV Nos. 27290-93 1 which reversed the Decision of Branch 5 of the then Court of First Instance (now Regional Trial Court) of Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin Chavez jointly and severally liable to the private respondents for actual and moral damages, litigation expenses and attorney's fees. This present controversy traces its beginnings to four (4) separate complaints 2 for damages filed against the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought to recover actual and other damages for the loss of lives and the destruction to property caused by the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The flooding was purportedly caused by the negligent release by the defendants of water through the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the incident in question; 3) despite the defendants' knowledge, as early as 24 October 1978,

sufficient and credible evidence." 6 Consequently, the private respondents seasonably appealed therefrom to the respondent Court which then docketed the cases as CA-G.R. CV Nos. 27290-93. In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed decision and awarded damages in favor of the private respondents. The dispositive portion of the decision reads: CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED and SET ASIDE, and a new one is hereby rendered: 1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and severally, plaintiffsappellants, with legal interest from the date when this decision shall become final and executory, the following: A. Actual damages, to wit: 1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty Pesos (P231,260.00); 2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos (P204.500.00); 3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00); 4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos (P147,000.00);. 5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty Two Pesos and Fifty Centavos (P143,552.50); 6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.00); 7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00); 8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00); and

B. Litigation expenses of Ten Thousand Pesos (P10,000.00); 2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and severally, plaintiff-appellant, with legal interest from the date when this decision shall have become final and executory, the following : A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);. B. Moral damages of five hundred Thousand Pesos (P500,000.00); and. C. Litigation expenses of Ten Thousand Pesos (P10,000.00);. 3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with legal interest from the date when this decision shall have become final and executory; A. Plaintiff-appellant Angel C. Torres: 1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty Pesos (P199,120.00); 2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00); B. Plaintiff-appellant Norberto Torres: 1) Actual damages of Fifty Thousand Pesos (P50,000.00); 2) Moral damages of Fifty Thousand Pesos (P50,000.00); C. Plaintiff-appellant Rodelio Joaquin:

34

1) Actual damages of One Hundred Thousand Pesos (P100,000.00); 2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00); 4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with legal interest from the date when this decision shall have become final and executory : A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo: 1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred Pesos (P256,600.00); 2) Moral damages of Fifty Thousand Pesos (P50,000.00); B. Plaintiff-appellant Consolacion Guzman : 1) Actual damages of One Hundred forty Thousand Pesos (P140,000.00); 2) Moral damages of Fifty Thousand Pesos (P50,000.00); C. Plaintiff-appellant Virginia Guzman : 1) Actual damages of Two Hundred Five Hundred Twenty Pesos (205,520.00); and

D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00). In addition, in all the four (4) instant cases, ordering defendants-appellees to pay, jointly and severally, plaintiffs-appellants attorney fees in an amount equivalent to 15% of the total amount awarded. No pronouncement as to costs. 7 The foregoing judgment is based on the public respondent's conclusion that the petitioners were guilty of: . . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the management and operation of Angat Dam. The unholiness of the hour, the extent of the opening of the spillways, And the magnitude of the water released, are all but products of defendantsappellees' headlessness, slovenliness, and carelessness. The resulting flash flood and inundation of even areas (sic) one (1) kilometer away from the Angat River bank would have been avoided had defendants-appellees prepared the Angat Dam by maintaining in the first place, a water elevation which would allow room for the expected torrential rains. 8 This conclusion, in turn, is anchored on its findings of fact, to wit: As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and imminent danger posed by typhoon "Kading". For as alleged by defendants-appellees themselves, the coming of said super typhoon was bannered by Bulletin Today, a newspaper of national circulation, on October 25, 1978, as "Super Howler to hit R.P." The next day, October 26, 1978, said typhoon once again merited a headline in said newspaper as "Kading's Big Blow 35

expected this afternoon" (Appellee's Brief, p. 6). Apart from the newspapers, defendants-appellees learned of typhoon "Kading' through radio announcements (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9). Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM1247, Exhibit "G-6"). Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation even beyond its maximum and safe level, thereby giving no sufficient allowance for the reservoir to contain the rain water that will inevitably be brought by the coming typhoon. On October 24, 1978, before typhoon "Kading" entered the Philippine area of responsibility, water elevation ranged from 217.61 to 217.53, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon "Kading" entered the Philippine area of responsibility, and public storm signal number one was hoisted over Bulacan at 10:45 a.m., later raised to number two at 4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged from 217.47 to 217.57, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 26, 1978, when public storm signal number three remained hoisted over Bulacan, the water elevation still remained at its maximum level of 217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2 meters, until at or about midnight, the spillways were suddenly opened at 5 meters, then increasing swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October

27, 1978, releasing water at the rate of 4,500 cubic meters per second, more or less. On October 27, 1978, water elevation remained at a range of 218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D" and series, "L", "M", "N", and "O" and Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F-1"). xxx xxx xxx From the mass of evidence extant in the record, We are convinced, and so hold that the flash flood on October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic) suddenly and simultaneously released from the Angat Dam by defendants-appellees, particularly from midnight of October 26, 1978 up to the morning hours of October 27, 1978. 9 The appellate court rejected the petitioners' defense that they had sent "early warning written notices" to the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 which read: TO ALL CONCERN (sic): Please be informed that at present our reservoir (dam) is full and that we have been releasing water intermittently for the past several days. With the coming of typhoon "Rita" (Kading) we expect to release greater (sic) volume of water, if it pass (sic) over our place. In view of this kindly advise people residing along Angat River to keep alert and stay in safe places. because:

36

Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by defendants-appellees driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12). Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did not prepare or warn the persons so served, for the volume of water to be released, which turned out to be of such magnitude, that residents near or along the Angat River, even those one (1) kilometer away, should have been advised to evacuate. Said notice, addressed "TO ALL CONCERN (sic)," was delivered to a policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality of Norzagaray. Said notice was not thus addressed and delivered to the proper and responsible officials who could have disseminated the warning to the residents directly affected. As for the municipality of Sta. Maria, where plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice does not appear to have been served. 11 Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent rejected the petitioners' plea that the incident in question was caused by force majeure and that they are, therefore, not liable to the private respondents for any kind of damage such damage being in the nature of damnum absque injuria. The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by the public respondents, 13 were denied by the public respondent in its Resolution of 27 December 1991. 14 Petitioners thus filed the instant petition on 21 February 1992.

After the Comment to the petition was filed by the private respondents and the Reply thereto was filed by the petitioners, We gave due course to the petition on 17 June 1992 and directed the parties to submit their respective Memoranda, 15 which they subsequently complied with. The petitioners raised the following errors allegedly committed by the respondent Court : I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V. COURT OF APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF NEGLIGENCE. II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF WARNING ISSUED BY PETITIONERS WERE INSUFFICIENT. III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA. IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION. 16 These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation, et al., vs. Court of Appeals, et al., 17 which this Court decided on 3 July 1992. The said case involved the very same incident subject of the instant petition. In no uncertain terms, We declared therein that the proximate cause of the loss and damage sustained by the plaintiffs therein who were similarly situated as the private respondents herein was the negligence of the petitioners, and that the 24 October 1978 "early warning notice" supposedly sent to the affected municipalities, the same notice involved in the case at bar, was insufficient. We thus cannot now rule otherwise not only because such a decision binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978 which resulted in the loss of 37

lives and the destruction to property in both cases, but also because of the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases subject of CAG.R. CV Nos. 27290-93, public respondent found as conclusively established that indeed, the petitioners were guilty of "patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam," and that "the extent of the opening of the spillways, and the magnitude of the water released, are all but products of defendants-appellees' headlessness, slovenliness, and carelessness." 18 Its findings and conclusions are biding upon Us, there being no showing of the existence of any of the exceptions to the general rule that findings of fact of the Court of Appeals are conclusive upon this Court. 19 Elsewise stated, the challenged decision can stand on its own merits independently of Our decision in G.R. No. 96410. In any event, We reiterate here in Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law as far as the concurrent liability of an obligor in the case of force majeure is concerned. In the Nakpil case, We held: To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an obligation due to an "act of God," the following must concur: (a) the cause of the breach of the obligation must be independent of the will of the debtor; (b) the event must be either unforseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his obligation in a moral manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657). Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code,

which results in loss or damage, the obligor cannot escape liability. The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature and all human agencies are to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 11741175). Thus it has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for loss because of an act of God, he must be free from any previous negligence or misconduct by which that loss or damage may have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657). 21 Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the loss or damage sustained by private respondents since they, the petitioners, were guilty of negligence. The event then was not occasioned exclusively by an act of God or force majeure; a human factor negligence or imprudence had intervened. The effect then of the force majeure in question may be deemed to have, even if only partly, resulted from the participation of man. Thus, the whole occurrence was thereby humanized, as it were, and removed from the laws applicable to acts of God.

38

WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the petitioners. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur. # Footnotes 1 Annex "A" of Petition; Rollo, 34-53. Per Associate Justice Venancio D. Aldecoa, Jr., concurred in by Associate Justices Luis L. Victor and Filemon N. Mendoza. 2 Civil Case No. SM-950 entitled "GAUDENCIO C. RAYO, BIENVENIDO P. PASCUAL, TOMAS MANUEL, PEDRO C. BARTOLOME, BERNARDO CRUZ, JOSE PALAD, MARIANO CRUZ AND LUCIO FAJARDO versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 20 December 1978; Civil Case No. SM-951 entitled "FRANCISCO RAYOS versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 29 December 1978 Civil Case No. SM-953 entitled "ANGEL C. TORRES, NORBERTO TORRES AND RODELIO JOAQUIN versus NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and filed on 4 January 1978; and Civil Case No. SM-1247 entitled "PRESENTACION LORENZO, CLODUALDO LORENZO, CONSOLACION GUZMAN AND VIRGINIA GUZMAN, in her behalf and as natural guardian of her minor children, RODELIO, MINERVA AND EMERSON, all surnamed GUZMAN, versus NATIONAL POWER CORPORATION AND

BENJAMIN CHAVEZ," and filed on 29 January 1982. 3 CA Decision, 3; Rollo, 37. 4 Id., 3-4; Id., 37-38. 5 CA Decision, 4; Rollo, 38. 6 Id., 2; Id., 36. 7 Rollo, 51-53. 8 Rollo, 40. 9 Rollo, 39-41. 10 Rollo, 41. 11 Id., 42. 12 144 SCRA 596 [1986], quoted in National Power Corp. vs. Court of Appeals, 161 SCRA 334 [1988]. 13 In the matter of when interest on the damages awarded will accrue, the Court of Appeals ruled that interest shall be paid only from the time its decision shall have become final and executory. 14 Rollo, 56-57. 15 Id., 166. 16 Rollo, 16. 17 211 SCRA 162 [1992]. 18 Supra. 19 Remalante vs. Tibe, 158 SCRA 138 [1988]; Median vs. Asistio, Jr., 191 SCRA 218 [1990]. 20 Supra. 21 Supra, at 606-607.

39

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19331 April 30, 1965

excuse for failing to take them into account.1wph1.t On October 1, 1953, while the criminal case was pending, the Intestate Estate of the Buan spouses and their heirs filed a civil action, also for damages, in the Court of First Instance of Tarlac against the Pepsi-Cola Bottling Company of the Philippines and Jon Elordi (civil case No. 838). Included in the complaint was a claim for indemnity in the sum of P2,623.00 allegedly paid by the Estate to the heirs of Capuno under the Workmen's Compensation Act. In the criminal case both the heirs of Capuno and the Estate of Buan the former being appellants herein were represented by their respective counsel as private prosecutors: Attorney Ricardo Y. Navarro and Attorneys Jose W. Diokno and Augusto M. Ilagan. In view of the filing of the civil action the accused Jon Elordi moved to strike out the appearances of these private prosecutors in the criminal case. Grounds for the motion were (1) that as the Capuno heirs were concerned, they no longer had any interest to protect in the criminal case since they had already claimed and received compensation for the death of their decedent; and (2) that on the part of the Estate of Buan its right to intervene in said case had been abated by the civil action. The appearance and intervention of Attorneys Diokno and Ilagan was disallowed by the Court in an order dated September 23, 1953, and that of Attorney Navarro was disallowed in an amending order dated October 23, 1954. No appeal was taken from either of the two orders. On June 11, 1958 the parties in Civil Case No. 838 entered into a "Compromise and Settlement." For P290,000.00 the Buan Estate gave up its claims for damages, including the claim for reimbursement of the sum of P2,623.00 previously paid to the heirs of Capuno "under the Workmen's Compensation Act." The Court approved the compromise and accordingly dismissed the case on the following June 17. At that time the criminal case was still pending; judgment was rendered only on April 15, 1959, wherein the accused Elordi was acquitted of the charges against him. Prior thereto, or on September 26, 1958, however, herein appellants commenced a civil action for damages against the Pepsi-Cola 40

VICTORIA G. CAPUNO and JOSEPHINE G. CAPUNO, plaintiffs-appellants, vs. PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES and JON ELORDI, defendantsappellees. Federico Andres for plaintiffs-appellants. Vicente J. Francisco for defendants-appellees. MAKALINTAL, J.: This appeal (in forma pauperis), certified here by the Court of Appeals, is from the order of the Court of First Instance of Tarlac dismissing appellant's complaint in Civil Case No. 3315 for recovery of damages for the death of Cipriano Capuno. The case arose from a vehicular collision which occurred on January 3, 1953 in Apalit, Pampanga. Involved were a Pepsi-Cola delivery truck driven by Jon Elordi and a private car driven by Capuno. The collision proved fatal to the latter as well as to his passengers, the spouses Florencio Buan and Rizalina Paras. On January 5, 1953 Elordi was charged with triple homicide through reckless imprudence in the Court of First Instance of Pampanga (criminal case No. 1591). The information was subsequently amended to include claims for damages by the heirs of the three victims. It is urged for the applicant that no opposition has been registered against his petition on the issues above-discussed. Absence of opposition, however, does not preclude the scanning of the whole record by the appellate court, with a view to preventing the conferment of citizenship to persons not fully qualified therefor (Lee Ng Len vs. Republic, G.R. No. L-20151, March 31, 1965). The applicant's complaint of unfairness could have some weight if the objections on appeal had been on points not previously passed upon. But the deficiencies here in question are not new but well-known, having been ruled upon repeatedly by this Court, and we see no

Bottling Company of the Philippines and Jon Elordi. This is the action which, upon appellees' motion, was dismissed by the Court a quo in its order of February 29, 1960, from which order the present appeal has been taken. The grounds upon which appellees based their motion for dismissal and which the Court found to be "well taken" were; (1) that the action had already prescribed; and (2) that appellees had been released from appellants' claim for damages by virtue of the payment to the latter of the sum of P2,623.00 by the Buan Estate under the Workmen's Compensation Act, which sum, in turn, was sought to be recovered by the said Estate from appellees in Civil Case No. 838 but finally settled by them in their compromise. The ruling of the court below on both points is now assailed by appellants as erroneous. In our opinion the question of prescription is decisive. There can be no doubt that the present action is one for recovery of damages based on a quasi-delict, which action must be instituted within four (4) years (Article 1146, Civil Code). Appellants originally sought to enforce their claim ex-delicto, that is, under the provisions of the Penal Code, when they intervened in the criminal case against Jon Elordi. The information therein, it may be recalled, was amended precisely to include an allegation concerning damages suffered by the heirs of the victims of the accident for which Elordi was being prosecuted. But appellants' intervention was subsequently disallowed and they did not appeal from the Court's order to the effect. And when they commenced the civil action on September 26, 1958 the criminal case was still pending, showing that appellants then chose to pursue the remedy afforded by the Civil Code, for otherwise that action would have been premature and in any event would have been concluded by the subsequent judgment of acquittal in the criminal case. In filing the civil action as they did appellants correctly considered it as entirely independent of the criminal action, pursuant to Articles 31 and 33 of the Civil Code, which read: ART. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. The term "physical injuries" in Article 33 includes bodily injuries causing death (Dyogi v. Yatco, G.R. No. L-9623, Jan. 22, 1957, 22 L.J. 175). In other words, the civil action for damages could have been commenced by appellants immediately upon the death of their decedent, Cipriano Capuno, on January 3, 1953 or thereabouts, and the same would not have been stayed by the filing of the criminal action for homicide through reckless imprudence. But the complaint here was filed only on September 26, 1958, or after the lapse of more than five years. In the case of Diocosa Paulan, et al. vs. Zacarias Sarabia, et al., G.R. No. L-10542, promulgated July 31, 1958, this Court held that an action based on a quasi-delict is governed by Article 1150 of the Civil Code as to the question of when the prescriptive period of four years shall begin to run, that is, "from the day (the action) may be brought," which means from the day the quasidelict occurred or was committed. The foregoing considerations dispose of appellants' contention that the four-year period of prescription in this case was interrupted by the filing of the criminal action against Jon Elordi inasmuch as they had neither waived the civil action nor reserved the right to institute it separately. Such reservation was not then necessary; without having made it they could file as in fact they did a separate civil action even during the pendency of the criminal case (Pacheco v. Tumangday, L-14500, May 25, 1960; Azucena v. Potenciano, L-14028, June 30, 1962); and consequently, as held in Paulan v. Sarabia, supra, "the institution of a criminal action cannot have the effect of interrupting the institution of a civil action based on a quasi-delict." As to whether or not Rule 111, Section 2, of the Revised Rules of Court which requires the reservation of the right to institute a separate and independent civil action in the cases provided for in Articles 31, 32, 33, 34, and 2177 of the Civil Code affects the question of prescription, we do not now 41

decide. The said rule does not apply in the present case. Having found the action of appellants barred by the statute of limitations, we do not consider it necessary to pass upon the other issues raised in their brief. The order appealed from is affirmed, without costs. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Bengzon, J.P., and Zaldivar, JJ., concur.

42

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-10134 June 29, 1957

SABINA EXCONDE, plaintiff-appellant, vs. DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees. Magno T. Bueser for appellant. Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees. BAUTISTA ANGELO, J.: Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of Isidoro Caperina and Amado Ticzon on March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No. 15001). During the trial, Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a separate civil action for damages against the accused. After trial, Dante Capuno was found guilty of the crime charged and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was only (15) years old when he committed the crime. In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno asking for damages in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperia. Defendants set up the defense that if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father Delfin because at the time of the accident, the former was not under the control, supervision and custody, of the latter. This defense was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the case was certified to us on the ground that the appeal only involves questions of law. It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said

city upon instruction of the city school's supervisor. From the school Dante, with other students, boarded a jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidore Caperia, died as a consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that his son was going to attend a parade. He only came to know it when his son told him after the accident that he attended the parade upon instruction of his teacher. The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally with his son Dante, for damages resulting from the death of Isidoro Caperia caused by the negligent act of minor Dante Capuno. The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides: ART. 1903. The obligation impossed by the next preceding articles is enforceable 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. xxx xxx xxx

Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody. Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a minor and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is evident. And so, plaintiff contends, the lower court erred in relieving the father from liability.

43

We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School and as part of his extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred. In the circumstances, it is clear that neither the head of that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institute of arts and trades as provided by law. The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove. WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action. Bengzon, Montemayor, Labrador and Endencia, JJ., concur. Paras, C.J., concurs in the result.

REYES, J.B.L., J., dissenting: After mature consideration I believe we should affirm the judgement relieving the father of liability. I can see no sound reason for limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them in so far as, concerns the proper supervision and vigilance over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching do not commit a tort to the detriment of third persons, so long as they are in a position to exercise authority and supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments". The phrase is only an updated version of the equivalent terms "preceptors y artesanos" used in the Italian and French Civil Codes. If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility. In the case before us, there is no question that the pupil, Dante Capuno, was instructed by the City School Supervisor to attend the Rizal parade. His father could not properly refuse to allow the child to attend, in defiance of the school authorities. The father had every reason to assume that in ordering a minor to attend a parade with other children, the school authorities would provide adequate supervision over them. If a teacher or scout master was present, then he should be the one responsible for allowing the minor to drive the jeep without being qualified to do so. On the other hand, if no teacher or master was at hand to watch over the pupils, the school authorities are the ones answerable for that negligence, and not the father.

Separate Opinions

44

At any rate, I submit that the father should not be held liable for a tort that he was in no way able to prevent, and which he had every right to assume the school authorities would avoid. Having proved that he trusted his child to the custody of school authorities that were competent to exercise vigilance over him, the father has rebutted the presumption of Art. 1903 and the burden of proof shifted to the claimant to show actual negligence on the part of the parent in order to render him liable. Padilla and Reyes, A., JJ., concur.

45

Republic of the Philippines SUPREME COURT Manila EN BANC

efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye. In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria Teresa Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages; and P2,000.00 as attorney's fees, plus the costs of the suit. The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to another under the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176 and 2180 thereof, which read: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by provisions of this Chapter. 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. The father and, in case of his death or incapacity are responsible for the damages caused by the minor children who live in their company. xxx xxx xxx The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom another is responsible, the latter then becomes himself liable under Article 2180, in the different cases 46

G.R. No. L-24101 September 30, 1970 MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL., plaintiffs-appellees, vs. ALFONSO MONFORT, defendant-appellant. Rodolfo J. Herman for plaintiffs-appellees. Luis G. Torres and Abraham E. Tionko for defendant-appellant.

MAKALINTAL, J.: This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably to the plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are not in issue. Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School in Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in the school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object commonly worn by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next day, July 10, the eye became swollen and it was then that the girl related the incident to her parents, who thereupon took her to a doctor for treatment. She underwent surgical operation twice, first on July 20 and again on August 4, 1962, and stayed in the hospital for a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the medical

enumerated therein, such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and logical inference that may be drawn from the last paragraph of Article 2180, which states "that the responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage." Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. But what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act or omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously there can be no meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good father of the family to prevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine whether or not by the exercise of such diligence the damage could have been prevented. In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's character which would reflect unfavorably on her upbringing and for which the blame could be attributed to her parents. The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is at all obligated to compensate her suffering, the obligation has no

legal sanction enforceable in court, but only the moral compulsion of good conscience. The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs. Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur. Concepcion, C.J., is on leave. Fernando, J., took no part.

Separate Opinions

BARREDO, J., dissenting: I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant's daughter does not constitute fault within the contemplation of our law or torts. She was 13 years and should have known that by jokingly saying "aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something would happen to her friend, as in fact, she was hurt. As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of the Civil Code. There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon plaintiff child.

# Separate Opinions BARREDO, J., dissenting: I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant's daughter does not constitute fault within the contemplation of our law or torts. She was 13 years and should have known that by jokingly saying "aloud that she had found an earthworm and, 47

evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something would happen to her friend, as in fact, she was hurt. As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of the Civil Code. There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon plaintiff child.

48