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TORTS AND DAMAGES

FULL TEXT PAGE 3
III. DEFENSE AGAINST CHARGE OF NEGLIGENCE

E. Prescription (Art 1146)

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41767 August 23, 1978
MR. AND MRS. ROMEO FERRER and ANNETTE FERRER, petitioners,
vs.
HON. VICENTE G. ERICTA, in his capacity as Presiding Judge of the Court of First
Instance of Rizal, Quezon City, Branch XVIII, MR. AND MRS. FRANCIS PFLEIDER
and DENNIS PFLEIDER, respondents.
Delano F. Villaruz for petitioners.
Porderio C. David for private respondents.

ANTONIO, J:
Mandamus to compel the immediate execution of the Decision of the Court of First
Instance of Quezon City, Branch XVIII, presided over by respondent Judge, in Civil Case
No. Q-19647, dated July 21, 1975. The pertinent facts are as follows:
In a complaint for damages against respondents, dated December 27, 1974 but actually
filed on January 6, 1975 (Civil Case No. Q-19647), and assigned to the sala of
respondent Judge, it was alleged that defendants Mr. and Mrs. Francis Pfleider, residents
of Bayawan, Negros Oriental, were the owners or operators of a Ford pick-up car; that at

about 5:00 o'clock in the afternoon of December 31, 1970, in the streets of Bayawan,
Negros Oriental, their son, defendant Dennis Pfleider, who was then only sixteen (16)
years of age, without proper official authority, drove the above-described vehicle, without
due regard to traffic rules and regulations, and without taking the necessary precaution to
prevent injury to persons or damage to property, and as a consequence the pickup car
was overturned, causing physical injuries to plaintiff Annette Ferrer, who was then a
passenger therein, which injuries paralyzed her and required medical treatment and
confinement at different hospitals for more than two (2) years; that as a result of the
physical injuries sustained by Annette, she suffered unimaginable physical pain, mental
anguish, and her parents also suffered mental anguish, moral shock and spent a
considerable sum of money for her treatment. They prayed that defendants be ordered to
reimburse them for actual expenses as well as other damages.
In due time, defendants filed their answer, putting up the affirmative defense that
defendant Dennis Pfleider exercised due care and utmost diligence in driving the vehicle
aforementioned and alleging that Annette Ferrer and the other persons aboard said
vehicle were not passengers in the strict sense of the term, but were merely joy riders
and that, consequently, defendants had no obligation whatsoever to plaintiffs.
At the pre-trial on May 12, 1975, only plaintiffs-petitioners and their counsel were
present. Consequently, defendants-private respondents were declared in default and the
plaintiff petitioners were allowed to present their evidence ex parte. On May 21, 1975,
petitioners moved that they be granted an extension of ten (10) days from May 22, 1975
to present her evidence, which was granted by the court a quo. The presentation of
petitioners' evidence was later continued by the trial court to June 16, 1975, when the
deposition of Annette Ferrer was submitted by petitioners and admitted by the trial court.
On June 26, 1975, private respondents filed a motion to "set aside the order of default
and subsequent pleadings" on the ground that "defendants' failure to appear for pre-trial
was due to accident or excusable neglect." This was opposed by petitioners on the
ground that the said pleading was not under oath, contrary to the requirements of Sec. 3,
Rule 18 of the Rules, and that it was not accompanied by an affidavit of merit showing
that the defendants have a good defense. In view of this, the motion of private
respondents was denied by respondent Judge on July 21, 1975. On the same date,
respondent Judge rendered judgment against private respondents, finding that the minor
Dennis Pfleider, was allowed by his parents to operate a Ford pick-up car and because
of his reckless negligence caused the accident in question, resulting in injuries to
Annette, and ordering the defendants, as a result thereof, to pay jointly and severally the
plaintiffs the following amounts: (1) P24,500.00 for actual expenses, hospitalization and
medical expenses; (2) P24,000.00 for actual expenses for the care, medicines of plaintiff
Annette for helps from December 31, 1970 to December 31, 1974; (3) P50,000.00 for

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moral damages; (4) P10,000.00 for exemplary damages; (5) P5,000.00 for attorney's
fees; and (6) costs of suit.
On September 1, 1975, private respondents filed a Motion for Reconsideration 1 of the
decision and of the order denying the motion to set aside order of default, based on the
following grounds: (1) the complaint states no cause of action insofar as Mr. and Mrs.
Pfleider are concerned because it does not allege that at the time of the mishap,
defendant Dennis Pfleider was living with them, the fact being that at such time he was
living apart from them, hence, there can be no application of Article 2180 of the Civil
Code, upon which parents' liability is premised; and (2) that tile complaint shows on its
face "that it was filed only on January 6, 1975, or after the lapse of MORE THAN FOUR
YEARS from the date of the accident on December 31, 1970", likewise appearing from
the complaint and, therefore, the action has already prescribed under Article 1146 of the
Civil Code.
A Supplemental Motion for Reconsideration 2 was subsequently filed by defendantsprivate respondents on September 10, 1975, alleging that their defense of prescription
has not been waived and may be raised even at such stage of the proceedings because
on the face of the complaint, as well as from the plaintiff's evidence, their cause of action
had already prescribed, citing as authority the decision of this Court in Philippine
National Bank v. Pacific Commission House, 3 as well as the decisions quoted therein.
The Opposition 4 to the above supplemental motion interposed by plaintiffs-petitioners
averred that: (a) the defense of prescription had been waived while the defense that the
complaint states no cause of action "is available only at any time not later than the trial
and prior to the decision"; (b) inasmuch as defendants have been declared in default for
failure to appear at the pretrial conference, they have lost their standing in court and
cannot be allowed to adduce evidence nor to take part in the trial, in accordance with
Section 2 of Rule 18 of the Rules of Court; and (c) the motion and supplemental motion
for reconsideration are pro forma because the defenses raised therein have been
previously raised and passed upon by respondent court in resolving defendants' motion
to set aside order of default. Being pro forma, said motion and supplemental motion do
not suspend the running of the thirty-day period to appeal, which was from August 5,
1975, when defendants received a copy of the decision, to September 4, 1975, and
hence the decision has already become final and executory. Plaintiffs-petitioners
accordingly prayed that a writ of execution be issued to enforce the judgment in their
favor.
On September 23, 1975, respondent judge, without setting aside the order of default,
issued an order absolving defendants from any liability on the grounds that: (a) the
complaint states no cause of action because it does not allege that Dennis Pfleider was
living with his parents at the time of the vehicular accident, considering that under Article
2180 of the Civil Code, the father and, in case of his death or incapacity the mother, are

only responsible for the damages caused by their minor children who live in their
company; and (b) that the defense of prescription is meritorious, since the complaint was
filed more than four (4) years after the date of the accident, and the action to recover
damages based on quasi-delict prescribes in four (4) years. Hence, the instant petition
for mandamus.
The basic issue is whether the defense of prescription had been deemed waived by
private respondents' failure to allege the same in their answer.
As early as Chua Lamko v. Dioso, et al., 5 this Court sustained the dismissal of a
counterclaim on the ground of prescription, although such defense was not raised in the
answer of the plaintiff. Thus, this Court held that where the answer does not take issue
with the complaint as to dates involved in the defendant's claim of prescription, his failure
to specifically plead prescription in the answer does not constitute a waiver of the
defense of prescription. It was explained that the defense of prescription, even if not
raised in a motion to dismiss or in the answer, is not deemed waived unless such
defense raises issues of fact not appearing upon the preceding pleading.
In Philippine National Bank v. Perez, et al., 6 which was an action filed by the Philippine
National Bank on March 22, 1961 for revival of a judgment rendered on December 29,
1949 against Amando Perez, Gregorio Pumuntoc and Virginia de Pumuntoc pursuant to
Section 6, Rule 39 of the rules of court the defendants were declared in default for their
failure to file their answer. There upon, the plaintiff submitted its evidence, but when the
case was submitted for decision, the court a quo dismissed the complaint on the ground
that plaintiff's cause of action had already prescribed under Articles 1144 and 1152 of the
Civil Code. The plaintiff in said case, contending that since prescription is a defense that
can only be set up by defendants, the court could not motu proprio consider it as a basis
for dismissal, moved to reconsider the order, but its motion was denied. When the issue
was raised to this Court, We ruled:
It is true that the defense of prescription can only be considered if the
same is invoked as such in the answer of the defendant and that in this
particular instance no such defense was invoked because the defendants
had been declared in default, but such rule does riot obtain when the
evidence shows that the cause of action upon which plaintiff's complaint
is based is already barred by the statute of limitations. (Emphasis
supplied.)
Again, in Philippine National Bank v. Pacific Commission House, 7 where the action
sought to revive a judgment rendered by the Court of First Instance of Manila on
February 3, 1953 and it was patent from the stamp appearing on the first page of the
complaint that the complaint was actually filed on May 31, 1963, this Court sustained the

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dismissal of the complaint on the ground of prescription, although such defense was not
raised in the answer, overruling the appellants' invocation of Section 2 of Rule 9 of the
Rules of Court that "defenses and objections not pleaded either in a motion to dismiss or
in tile answer are deemed waived." We held therein that "... the fact that the plaintiff's
own allegation in tile complaint or the evidence it presented shows clearly that the action
had prescribed removes this case from the rule regarding waiver of the defense by
failure to plead the same."
In the present case, there is no issue of fact involved in connection with the question of
prescription. The complaint in Civil Case No. Q-19647 alleges that the accident which
caused the injuries sustained by plaintiff Annette Ferrer occured on December 31, 1970.
It is undisputed that the action for damages was only filed on January 6, 1975. Actions
for damages arising from physical injuries because of a tort must be filed within four
years. 8 The four-year period begins from the day the quasi-delict is committed or the
date of the accident. 9
WHEREFORE, the instant petition for mandamus is hereby DISMISSED, without
pronouncement as to costs.

The record of the case discloses that in the early morning of April 8, 1976, the F/B
Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer,
was navigating its way from Marinduque to Manila. Somewhere near Maricabon Island
and Cape Santiago, the boat figured in a collision with an inter-island vessel, the M/V
Asia Philippines owned by the private respondent Trans-Asia Shipping Lines, Inc. As a
consequence of the collision, the F/B Marjolea sank, taking with it its fish catch.
After the mishap, the captains of both vessels filed their respective marine protests with
the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted an
investigation for the purpose of determining the proximate cause of the maritime
collision.
On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish
catch was attributable to the negligence of the employees of the private respondent who
were on board the M/V Asia Philippines during the collision. The findings made by the
Board served as the basis of a subsequent Decision of the Commandant of the
Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia
Philippines was suspended from pursuing his profession as a marine officer. 1

Fernando (Chairman), Barredo, Aquino, Concepcion, Jr. and Santos, JJ., concur.

On May 30, 1985, the petitioners instituted a Complaint for damages against the private
respondent before Branch 117 of the Regional Trial Court in Pasay City. 2 The suit was
docketed as Civil Case No. 2907-P.

G.R. No. L-83524 October 13, 1989

The private respondent filed a Motion seeking the dismissal of the Complaint on the
ground of prescription. He argued that under Article 1146 of the Civil Code, 3 the
prescriptive period for instituting a Complaint for damages arising from a quasi-delict like
a maritime collision is four years. He maintained that the petitioners should have filed
their Complaint within four years from the date when their cause of action accrued, i.e.,
from April 8, 1976 when the maritime collision took place, and that accordingly, the
Complaint filed on May 30, 1985 was instituted beyond the four-year prescriptive period.

ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners,

vs.
HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.
Rodolfo D. Mapile for petitioners.
Jose Al. Perez for private respondent.

GANCAYCO, J.:
The principal issue in this Petition for Review is whether or not a Complaint for damages
instituted by the petitioners against the private respondent arising from a marine collision
is barred by the statute of limitations.

For their part, the petitioners contended that maritime collisions have peculiarities and
characteristics which only persons with special skill, training and experience like the
members of the Board of Marine Inquiry can properly analyze and resolve. The
petitioners argued that the running of the prescriptive period was tolled by the filing of the
marine protest and that their cause of action accrued only on April 29, 1982, the date
when the Decision ascertaining the negligence of the crew of the M/V Asia Philippines
had become final, and that the four-year prescriptive period under Article 1146 of the Civil
Code should be computed from the said date. The petitioners concluded that inasmuch
as the Complaint was filed on May 30, 1985, the same was seasonably filed.

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In an Order dated September 25, 1986, 4 the trial court denied the Motion filed by the
private respondent. The trial court observed that in ascertaining negligence relating to a
maritime collision, there is a need to rely on highly technical aspects attendant to such
collision, and that the Board of Marine Inquiry was constituted pursuant to the Philippine
Merchant Marine Rules and Regulations, which took effect on January 1, 1975 by virtue
of Letter of Instruction No. 208 issued on August 12, 1974 by then President Ferdinand
E. Marcos, precisely to answer the need. The trial court went on to say that the four-year
prescriptive period provided in Article 1146 of the Civil Code should begin to run only
from April 29, 1982, the date when the negligence of the crew of the M/V Asia Philippines
had been finally ascertained. The pertinent portions of the Order of the trial court are as
follows
Considering that the action concerns an incident involving a collision at
sea of two vehicles and to determine negligence for that incident there is
an absolute need to rely on highly technical aspects attendant to such
collisions. It is obviously to answer such a need that the Marine Board of
Inquiry (Sic) was constituted pursuant to the Philippine Merchant Marine
Rules and Regulations which became effective January 1, 1975 under
Letter of Instruction(s) No. 208 dated August 12, 1974. The relevant
section of that law (Art. XVI/b/ provided as follow(s):
1. Board of Marine Inquiry (BMI) Shall
have the jurisdiction to investigate marine
accidents or casualties relative to the
liability of shipowners and officers,
exclusive jurisdiction to investigate
cases/complaints against the marine
officers; and to review all proceedings or
investigation conducted by the Special
Boards of Marine Inquiry.
2. Special Board of Marine Inquiry.
Shall have original jurisdiction to
investigate marine casualties and
disasters which occur or are committed
within the limits of the Coast Guard District
concerned or those referred by the
Commandant.
The Court finds reason in the argument of the plaintiff that marine
incidents have those 'peculiarities which only persons of special skill,
training and exposure can rightfully decipher and resolve on the matter of

the negligence and liabilities of parties involved and inasmuch as the

report of the Board of Inquiry (sic) admittedly came out only on April 29,
1982, the prescriptive period provided x x x under Art. 1146 of the Civil
Code should begin to run only from that date. The complaint was filed
with this Court on May 10, 1985, hence the statute of limitations can not
constitute a bar to the filing of this case. 5
The private respondent elevated the case to the Court of Appeals by way of a special
civil action for certiorari and prohibition, alleging therein that the trial court committed a
grave abuse of discretion in refusing to dismiss the Complaint filed by the petitioners.
The case was assigned to the Second Division of the appellate court and was docketed
as Case No. CA-G.R. SP No. 12032. 6
In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated January 12,
1988, 8 the Court of Appeals granted the Petition filed by the private respondent and
ordered the trial court to dismiss the Complaint. The pertinent portions of the Decision of
the appellate court are as follows
It is clear that the cause of action of private respondent (the herein
petitioners Ernesto Kramer, Jr. and Marta Kramer) accrued from the
occurrence of the mishap because that is the precise time when
damages were inflicted upon and sustained by the aggrieved party and
from which relief from the court is presently sought. Private respondents
should have immediately instituted a complaint for damages based on a
quasi-delict within four years from the said marine incident because its
cause of action had already definitely ripened at the onset of the collision.
For this reason, he (sic) could cite the negligence on the part of the
personnel of the petitioner to exercise due care and lack of (sic) diligence
to prevent the collision that resulted in the total loss of their x x x boat.
We can only extend scant consideration to respondent judge's reasoning
that in view of the nature of the marine collision that allegedly involves
highly technical aspects, the running of the prescriptive period should
only commence from the finality of the investigation conducted by the
Marine Board of Inquiry (sic) and the decision of the Commandant,
Philippine Coast Guard, who has original jurisdiction over the mishap. For
one, while it is true that the findings and recommendation of the Board
and the decision of the Commandant may be helpful to the court in
ascertaining which of the parties are at fault, still the former (court) is not
bound by said findings and decision. Indeed, the same findings and
decision could be entirely or partially admitted, modified, amended, or
disregarded by the court according to its lights and judicial discretion. For

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another, if the accrual of a cause of action will be made to depend on the
action to be taken by certain government agencies, then necessarily, the
tolling of the prescriptive period would hinge upon the discretion of such
agencies. Said alternative it is easy to foresee would be fraught with
hazards. Their investigations might be delayed and lag and then
witnesses in the meantime might not be available or disappear, or certain
documents may no longer be available or might be mislaid. ... 9
The petitioners filed a Motion for the reconsideration of the said Decision but the same
was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10
Hence, the instant Petition wherein the arguments raised by the petitioner before the trial
court are reiterated. 11 In addition thereto, the petitioner contends that the Decision of the
Court of Appeals 12 The private respondent filed its Comment on the Petition seeking
therein the dismissal of the same. 13 It is also contended by the private respondent that
the ruling of the Court in Vasquez is not applicable to the case at bar because the said
case involves a maritime collision attributable to a fortuitous event. In a subsequent
pleading, the private respondent argues that the Philippine Merchant Marine Rules and
Regulations cannot have the effect of repealing the provisions of the Civil Code on
prescription of actions. 14
On September 19,1988, the Court resolved to give due course to the petition. 15 After the
parties filed their respective memoranda, the case was deemed submitted for decision.
The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based
upon a quasi-delict must be instituted within four (4) years. The prescriptive period
begins from the day the quasi-delict is committed. In Paulan vs. Sarabia, 16 this Court
ruled that in an action for damages arising from the collision of two (2) trucks, the action
being based on a quasi-delict, the four (4) year prescriptive period must be counted from
the day of the collision.
In Espanol vs. Chairman, Philippine Veterans Administration,
follows-

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this Court held as

The right of action accrues when there exists a cause of action, which
consists of 3 elements, namely: a) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; b) an
obligation on the part of defendant to respect such right; and c) an act or
omission on the part of such defendant violative of the right of the plaintiff
... It is only when the last element occurs or takes place that it can be
said in law that a cause of action has arisen ... .

From the foregoing ruling, it is clear that the prescriptive period must be counted when
the last element occurs or takes place, that is, the time of the commission of an act or
omission violative of the right of the plaintiff, which is the time when the cause of action
arises.
It is therefore clear that in this action for damages arising from the collision of two (2)
vessels the four (4) year prescriptive period must be counted from the day of the
collision. The aggrieved party need not wait for a determination by an administrative
body like a Board of Marine Inquiry, that the collision was caused by the fault or
negligence of the other party before he can file an action for damages. The ruling in
Vasquez does not apply in this case. Immediately after the collision the aggrieved party
can seek relief from the courts by alleging such negligence or fault of the owners, agents
or personnel of the other vessel.
Thus, the respondent court correctly found that the action of petitioner has prescribed.
The collision occurred on April 8, 1976. The complaint for damages was filed iii court only
on May 30, 1 985, was beyond the four (4) year prescriptive period.
WHEREFORE, the petition is dismissed. No costs.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

F. Fortituous Event (Art 1174)

G.R. No. 71871 November 6, 1989
TEODORO M. HERNANDEZ, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, respondent.
Al-Fred O. Concepcion for petitioner.

CRUZ, J.:

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It was one of those prosaic decisions not requiring deep thought or long deliberation. The
petitioner arrived at it almost as a matter of course, applying what he believed then to be
common sense. Little did he realize until later that it would cause him much anguish,
even endanger his life, and ultimately lead to this litigation. But such are the quirks of
fate.
At the time of the incident in question, Teodoro M. Hernandez was the officer-in-charge
and special disbursing officer of the Ternate Beach Project of the Philippine Tourism
Authority in Cavite. As such, he went to the main office of the Authority in Manila on July
1, 1983, to encash two checks covering the wages of the employees and the operating
expenses of the Project. He estimated that the money would be available by ten o'clock
in the morning and that he would be back in Ternate by about two o'clock in the
afternoon of the same day. For some reason, however, the processing of the checks was
delayed and was completed only at three o'clock that afternoon. The petitioner decided
nevertheless to encash them because the Project employees would be waiting for their
pay the following day. He thought he had to do this for their benefit as otherwise they
would have to wait until the following Tuesday at the earliest when the main office would
reopen. And so, on that afternoon of July 1, 1983, he collected the cash value of the
checks and left the main office with not an insubstantial amount of money in his hands. 1
What would he do with the money in the meantime? The petitioner had two choices, to
wit: (1) return to Ternate, Cavite, that same afternoon and arrive there in the early
evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night
there, and leave for Ternate the following morning. He opted for the second, thinking it
the safer one. And so, on that afternoon of July 1, 1983, at a little past three o'clock, he
took a passenger jeep bound for his house in Bulacan.
It was while the vehicle was along Epifanio de los Santos Avenue that two persons
boarded with knives in hand and robbery in mind. One pointed his weapon at the
petitioner's side while the other slit his pocket and forcibly took the money he was
carrying. The two then jumped out of the jeep and ran. Hernandez, after the initial shock,
immediately followed in desperate pursuit. He caught up with Virgilio Alvarez and
overcame him after a scuffle. The petitioner sustained injuries in the lip arms and knees.
Alvarez was subsequently charged with robbery and pleaded guilty. But the hold-upper
who escaped is still at large and the stolen money he took with him has not been
recovered. 2
On July 5, 1983, the petitioner, invoking the foregoing facts, filed a request for relief from
money accountability under Section 638 of the Revised Administrative Code. This was
favorably indorsed by the General Manager of the Philippine Tourism Authority the same
day 3 and by its Corporate Auditor on July 27, 1983. 4 The Regional Director, National
Capital Region, of the Commission on Audit, made a similar recommendation on January

17, 1984, and also absolved Hernandez of negligence. 5 On June 29, 1984, however, the
Commission on Audit, through then Chairman Francisco S. Tantuico, jr. denied the
petitioner's request, observing inter alia:
In the instant case, the loss of the P10,175.00 under the accountability of
Mr. Hernandez can be attributed to his negligence because had he
brought the cash proceeds of the checks (replenishment fund) to the
Beach Park in Ternate, Cavite, immediately after encashment for
safekeeping in his office, which is the normal procedure in the handling of
public funds, the loss of said cash thru robbery could have been aborted.
6

In the petition at bar, Hernandez claims that the respondent Commission on Audit acted
with grave abuse of discretion in denying him relief and in holding him negligent for the
loss of the stolen money. He avers he has done only what any reasonable man would
have done and should not be held accountable for a fortuitous event over which he had
no control.
The petitioner stresses that he decided to encash the checks in the afternoon of July 1,
1983, which was a Friday, out of concern for the employees of the Project, who were
depending on him to make it possible for them to collect their pay the following day. July
2 and 3 being non-working days and July 4 being a holiday, they could receive such
payment only on the following Tuesday unless he brought the encashed checks on July
1, 1983, and took it to Ternate the following day.
On his decision to take the money home that afternoon instead of returning directly to
Ternate, he says that the first course was more prudent as he saw it, if only because his
home in Marilao, Bulacan, was much nearer than his office in Ternate, Cavite. The drive
to Ternate would take three hours, including a 30-minute tricycle ride along the dark and
lonely Naic-Ternate road; and as he would be starting after three o'clock in the afternoon,
it was not likely that he would reach his destination before nightfall. By contrast, the road
to Marilao was nearer and safer (or so he reasonably thought) and there was less risk
involved in his taking the money the following morning to Ternate rather than on that
same afternoon of July 1.
The petitioner maintains that the likelihood of robbery during the time in question was
stronger in Ternate than in Marilao, so he should not be blamed if the robbery did occur
while he was on the way to Marilao that afternoon. That was a fortuitous event that could
not have reasonably been foreseen, especially on that busy highway. At any rate, he
contends, he had not been remiss in protecting the money in his custody; in fact, he
immediately pursued the hold-uppers and succeeded in catching one of them who was
subsequently prosecuted and convicted. It might have been different if he had simply

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resigned himself to the robbery and allowed the culprits to go scot-free. But he acted. His
action after the robbery only goes to show his vigilance over the money entrusted to his
custody and his readiness to protect it even at great personal risk.

the officer accountable therefor or having custody thereof shall

immediately notify the Auditor General, or the provincial auditor,
according as a matter is within the original jurisdiction of the one or the
other, and within thirty days or such longer period as the Auditor, or
provincial auditor, may in the particular case allow, shall present his
application for relief, with the available evidence in support thereof. An
officer who fails to comply with this requirement shall not be relieved of
liability or allowed credit for any such loss in the settlement of his
accounts.

In his Comment, then Solicitor-General Sedfrey A. Ordonez supported the denial of the
petitioner's request, arguing that Hernandez was negligent in the safekeeping of the
stolen funds as correctly found by the Commission on Audit. 7 Later, however, his
successor, Solicitor General Francisco I. Chavez, submitted a Manifestation in Lieu of
Memorandum in which he sided with the petitioner, agreeing that Hernandez had not
committed any negligence or, assuming he was guilty of contributory negligence, had
made up for it with his efforts to retrieve the money and his capture of one of the robbers,
who was eventually convicted. 8 This prompted the respondent Commission on Audit to
submit its own memorandum.

This provision has since then been reiterated, with some slight modification, in Section
73 of P.D. No. 1445, otherwise known as the "Government Auditing Code of the
Philippines," which was promulgated on June 11. 1978.

The Commission on Audit insists in this memorandum that the petitioner should not be
relieved from his money accountability because it was his own negligence that led to the
loss of the cash he had sought to take not to Ternate in Cavite but to Marilao.

Applying the letter and spirit of the above-mentioned laws, and after considering the
established facts in the light of the arguments of the parties, this Court inclines in favor of
the petitioner.

Its contention is that the petitioner should not have encashed the cheeks on July 1, 1983,
as the hour was already late and he knew he could not return to Ternate before nightfall.
Knowing this, he should have prudently deferred encashing the checks until the morning
of the next working day on July 5, 1983, when he could have safely taken the money to
Ternate. His alleged concern for the convenience of his fellow workers was not really a
valid reason because one of the checks he had encashed, in the greater amount of
P6,964.00, was in fact not for salaries and wages but for the operating expenses of the
Project. There was no urgency to encash that check. Moreover, if it is true that he had
that much concern for the employees, he should have gone to the main office earlier
than July 1, 1983, since the vouchers representing the checks had already been
prepared as of June 29, 1983.

Hindsight is a cruel judge. It is so easy to say, after the event, that one should have done
this and not that or that he should not have acted at all, or else this problem would not
have arisen at all. That is all very well as long as one is examining something that has
already taken place. One can hardly be wrong in such a case. But the trouble with this
retrospective assessment is that it assumes for everybody an uncanny prescience that
will enable him by some mysterious process to avoid the pitfalls and hazards that he is
expected to have foreseen. It does not work out that way in real life. For most of us, all
we can rely on is a reasoned conjecture of what might happen, based on common sense
and our own experiences, or our intuition, if you will, and without any mystic ability to
peer into the future. So it was with the petitioner.

The memorandum concludes that in deciding to take the money with him to Marilao after
imprudently withdrawing it from the main office, the petitioner was assuming a risk from
which he cannot now be excused after the loss of the money as a result of the robbery to
which it was unreasonably exposed. In any event, the burden of proof in petitions for
relief from money accountability rests with the petitioner, who has not clearly established
that the loss of the money was not the result of his negligence.

It is pointless to argue that Hernandez should have encashed the vouchers earlier
because they were dated anyway on June 29, 1983. He was not obliged to encash the
checks earlier and then again there might have been any number of reasons why he did
so only on July 1, 1983. The point is that he did encash the checks on that date and took
the money to Marilao and not Ternate in view of the lateness of the hour. The question
before us is whether these acts are so tainted with negligence or recklessness as to
justify the denial of the petitioner's request for relief from accountability for the stolen
money.

Section 638 of the Revised Administrative Code reads as follows:

Section 638. Credit for loss occurring in transit or due to casualty
Notice to Auditor. When a loss of government funds or property occurs
while the same is in transit or is caused by fire, theft, or other casualty,

It seems to us that the petitioner was moved only by the best of motives when he
encashed the checks on July 1, 1983, so his co-employees in Ternate could collect their
salaries and wages the following day. Significantly, although this was a non-working day,
he was intending to make the trip to his office the following day for the unselfish purpose

8
of accommodating his fellow workers. The other alternative was to encash the check is
on July 5, 1983, the next working day after July 1, 1983, which would have meant a 5day wait for the payment of the said salaries and wages. Being a modest employee
himself, Hernandoz must have realized the great discomfort it would cause the laborer
who were dependent on their wages for their sustenance and were anxious to collect
their pay as soon as possible.
For such an attitude, Hernandez should be commended rather than faulted.
As for Hernandez's choice between Marilao, Bulacan, and Ternate, Cavite, one could
easily agree that the former was the safer destination, being nearer, and in view of the
comparative hazards in the trips to the two places. It is true that the petitioner
miscalculated, but the Court feels he should not be blamed for that. The decision he
made seemed logical at that time and was one that could be expected of a reasonable
and prudent person. And if, as it happened, the two robbers attacked him in broad
daylight in the jeep while it was on a busy highway, and in the presence of other
passengers, it cannot be said that all this was the result of his imprudence and
negligence. This was undoubtedly a fortuitous event covered by the said provisions,
something that could not have been reasonably foreseen although it could have
happened, and did.
We find, in sum, that under the circumstances as above narrated, the petitioner is
entitled to be relieved from accountability for the money forcibly taken from him in the
afternoon of July 1, 1983. To impose such liability upon him would be to read the law too
sternly when it should be softened by the proven facts.
ACCORDINGLY, the petition is GRANTED, without any pronouncement as to costs. It is
so ordered.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

G.R. No. 126389 July 10, 1998

SOUTHEASTERN COLLEGE INC., petitioner,vs. COURT OF APPEALS, JUANITA DE
JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO,
CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.

PURISIMA, J.:
Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision
1
promulgated on July 31, 1996, and Resolution 2 dated September 12, 1996 of the Court
of Appeals 3 in CA-G.R. No. 41422, entitled "Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, Inc.", which reduced the moral damages awarded below from
P1,000,000.00 to P200,000.00. 4 The Resolution under attack denied petitioner's motion
for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On October
11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit Metro Manila.
Buffeted by very strong winds, the roof of petitioner's building was partly ripped off and
blown away, landing on and destroying portions of the roofing of private respondents'
house. After the typhoon had passed, an ocular inspection of the destroyed building was
conducted by a team of engineers headed by the city building official, Engr. Jesus L.
Reyna. Pertinent aspects of the latter's Report 5 dated October 18, 1989 stated, as
follows:
5. One of the factors that may have led to this calamitous event is the
formation of the building in the area and the general direction of the wind.
Situated in the peripheral lot is an almost U-shaped formation of 4-storey
building. Thus, with the strong winds having a westerly direction, the
general formation of the building becomes a big funnel-like structure, the
one situated along College Road, receiving the heaviest impact of the
strong winds. Hence, there are portions of the roofing, those located on
both ends of the building, which remained intact after the storm.
6. Another factor and perhaps the most likely reason for the dislodging of
the roofing structural trusses is the improper anchorage of the said
trusses to the roof beams. The 1/2' diameter steel bars embedded on the
concrete roof beams which serve as truss anchorage are not bolted nor
nailed to the trusses. Still, there are other steel bars which were not even
bent to the trusses, thus, those trusses are not anchored at all to the roof
beams.
It then recommended that "to avoid any further loss and damage to lives, limbs
and property of persons living in the vicinity," the fourth floor of subject school
building be declared as a "structural hazard."
In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage to their

9
house rendered the same uninhabitable, forcing them to stay temporarily in others'
houses. And so they sought to recover from petitioner P117,116.00, as actual damages,
P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and
P100,000.00, for and as attorney's fees; plus costs.

THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON "SALING",

AS AN ACT OF GOD, IS NOT "THE SOLE AND ABSOLUTE REASON"
FOR THE RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF
SOUTHEASTERN'S FOUR (4) STOREY SCHOOL BUILDING.

In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any portion
thereof giving way; that it has not been remiss in its responsibility to see to it that said
school building, which houses school children, faculty members, and employees, is "in
tip-top condition"; and furthermore, typhoon "Saling" was "an act of God and therefore
beyond human control" such that petitioner cannot be answerable for the damages
wrought thereby, absent any negligence on its part.

II

The trial court, giving credence to the ocular inspection report to the effect that subject
school building had a "defective roofing structure," found that, while typhoon "Saling" was
accompanied by strong winds, the damage to private respondents' houses "could have
been avoided if the construction of the roof of [petitioner's] building was not faulty." The
dispositive portion of the lower court's decision 7 reads, thus:
WHEREFORE, in view of the foregoing, the Court renders judgment (sic)
in favor of the plaintiff (sic) and against the defendants, (sic) ordering the
latter to pay jointly and severally the former as follows:
a) P117,116.00, as actual damages, plus
litigation expenses;
b) P1,000,000.00 as moral damages;

THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION

OF THE ROOF OF DEFENDANT'S SCHOOL BUILDING WAS FAULTY"
NOTWITHSTANDING THE ADMISSION THAT THERE WERE
TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON "SALING"
WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL
DAMAGES AS WELL AS ATTORNEY'S FEES AND LITIGATION
EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY HAVE
NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE
ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT
RENDERS THIS CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE
WRIT OF EXECUTION INSPITE OF THE PERFECTION OF
SOUTHEASTERN'S APPEAL WHEN THERE IS NO COMPELLING
REASON FOR THE ISSUANCE THERETO.

c) P100,000.00 as attorney's fees;

d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that the
defendants (sic) did in a wanton fraudulent, reckless, oppressive or
malevolent manner.

As mentioned earlier, respondent Court of Appeals affirmed with modification the trial
court's disposition by reducing the award of moral damages from P1,000,000.00 to
P200,000.00. Hence, petitioner's resort to this Court, raising for resolution the issues of:
1. Whether or not the award of actual damages [sic] to respondent
Dimaanos on the basis of speculation or conjecture, without proof or
receipts of actual damage, [sic] legally feasible or justified.

In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:

I

2. Whether or not the award of moral damages to respondent Dimaanos,

with the latter having suffered, actual damage has legal basis.

10
3. Whether or not respondent Dimaanos who are no longer the owner of
the property, subject matter of the case, during its pendency, has the right
to pursue their complaint against petitioner when the case was already
moot and academic by the sale of the property to third party.

immediate or proximate cause of the damages or injury was a fortuitous event. When the
effect is found to be partly the result of the participation of man whether it be from
active intervention, or neglect, or failure to act the whole occurrence is hereby
humanized, and removed from the rules applicable to acts of God. 13

4. Whether or not the award of attorney's fees when the case was
already moot academic [sic] legally justified.

In the case under consideration, the lower court accorded full credence to the finding of
the investigating team that subject school building's roofing had "no sufficient anchorage
to hold it in position especially when battered by strong winds." Based on such finding,
the trial court imputed negligence to petitioner and adjudged it liable for damages to
private respondents.

5. Whether or not petitioner is liable for damage caused to others by

typhoon "Saling" being an act of God.
6. Whether or not the issuance of a writ of execution pending appeal, exparte or without hearing, has support in law.
The pivot of inquiry here, determinative of the other issues, is whether the damage on
the roof of the building of private respondents resulting from the impact of the falling
portions of the school building's roof ripped off by the strong winds of typhoon "Saling",
was, within legal contemplation, due to fortuitous event? If so, petitioner cannot be held
liable for the damages suffered by the private respondents. This conclusion finds support
in Article 1174 of Civil Code, which provides:
Art 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were
inevitable.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines
it as "an event which takes place by accident and could not have been foreseen." 9
Escriche elaborates it as "an unexpected event or act of God which could neither be
foreseen nor resisted." 10 Civilist Arturo M. Tolentino adds that "[f]ortuitous events may be
produced by two general causes: (1) by nature, such as earthquakes, storms, floods,
epidemics, fires, etc. and (2) by the act of man, such as an armed invasion, attack by
bandits, governmental prohibitions, robbery, etc." 11
In order that a fortuitous event may exempt a person from liability, it is necessary that he
be free from any previous negligence or misconduct by reason of which the loss may
have been occasioned. 12 An act of God cannot be invoked for the protection of a person
who has been guilty of gross negligence in not trying to forestall its possible adverse
consequences. When a person's negligence concurs with an act of God in producing
damage or injury to another, such person is not exempt from liability by showing that the

After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trail court,
especially when affirmed by the appellate court, are binding and conclusive upon this
Court. 14 After a careful scrutiny of the records and the pleadings submitted by the
parties, we find exception to this rule and hold that the lower courts misappreciated the
evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence
which may be foreseen but is unavoidable despite any amount of foresight, diligence or
care. 15 In order to be exempt from liability arising from any adverse consequence
engendered thereby, there should have been no human participation amounting to a
negligent act. 16 In other words; the person seeking exoneration from liability must not be
guilty of negligence. Negligence, as commonly understood, is conduct which naturally or
reasonably creates undue risk or harm to others. It may be the failure to observe that
degree of care, precaution, and vigilance which the circumstances justify demand, 17 or
the omission to do something which a prudent and reasonable man, guided by
considerations which ordinarily regulate the conduct of human affairs, would
do. 18 From these premises, we proceed to determine whether petitioner was negligent,
such that if it were not, the damage caused to private respondents' house could have
been avoided?
At the outset, it bears emphasizing that a person claiming damages for the negligence of
another has the burden of proving the existence of fault or negligence causative of his
injury or loss. The facts constitutive of negligence must be affirmatively established by
competent evidence, 19 not merely by presumptions and conclusions without basis in
fact. Private respondents, in establishing the culpability of petitioner, merely relied on the
aforementioned report submitted by a team which made an ocular inspection of
petitioner's school building after the typhoon. As the term imparts, an ocular inspection is
one by means of actual sight or viewing. 20 What is visual to the eye through, is not
always reflective of the real cause behind. For instance, one who hears a gunshot and
then sees a wounded person, cannot always definitely conclude that a third person shot

11
the victim. It could have been self-inflicted or caused accidentally by a stray bullet. The
relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was
conducted to determine the real cause of the partial unroofing of petitioner's school
building. Private respondents did not even show that the plans, specifications and design
of said school building were deficient and defective. Neither did they prove any
substantial deviation from the approved plans and specifications. Nor did they
conclusively establish that the construction of such building was basically flawed. 21
On the other hand, petitioner elicited from one of the witnesses of private respondents,
city building official Jesus Reyna, that the original plans and design of petitioner's school
building were approved prior to its construction. Engr. Reyna admitted that it was a legal
requirement before the construction of any building to obtain a permit from the city
building official (city engineer, prior to the passage of the Building Act of 1977). In like
manner, after construction of the building, a certification must be secured from the same
official attesting to the readiness for occupancy of the edifice. Having obtained both
building permit and certificate of occupancy, these are, at the very least, prima facie
evidence of the regular and proper construction of subject school building. 22
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon
"Saling", the same city official gave the go-signal for such repairs without any
deviation from the original design and subsequently, authorized the use of the entire
fourth floor of the same building. These only prove that subject building suffers from no
structural defect, contrary to the report that its "U-shaped" form was "structurally
defective." Having given his unqualified imprimatur, the city building official is presumed
to have properly performed his duties 23 in connection therewith.

In light of the foregoing, we find no clear and convincing evidence to sustain the
judgment of the appellate court. We thus hold that petitioner has not been shown
negligent or at fault regarding the construction and maintenance of its school building in
question and that typhoon "Saling" was the proximate cause of the damage suffered by
private respondents' house.
With this disposition on the pivotal issue, private respondents' claim for actual and moral
damages as well as attorney's fees must fail. 24 Petitioner cannot be made to answer for
a purely fortuitous event. 25 More so because no bad faith or willful act to cause damage
was alleged and proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the pecuniary
loss they actually incurred. 26 It is not enough that the damage be capable of proof but
must be actually proved with a reasonable degree of certainty, pointing out specific facts
that afford a basis for measuring whatever compensatory damages are borne. 27 Private
respondents merely submitted an estimated amount needed for the repair of the roof
their subject building. What is more, whether the "necessary repairs" were caused ONLY
by petitioner's alleged negligence in the maintenance of its school building, or included
the ordinary wear and tear of the house itself, is an essential question that remains
indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the
trial court is hereby nullified and set aside. Private respondents are ordered to reimburse
any amount or return to petitioner any property which they may have received by virtue
of the enforcement of said writ.

In addition, petitioner presented its vice president for finance and administration who
testified that an annual maintenance inspection and repair of subject school building
were regularly undertaken. Petitioner was even willing to present its maintenance
supervisor to attest to the extent of such regular inspection but private respondents
agreed to dispense with his testimony and simply stipulated that it would be corroborative
of the vice president's narration.

WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED.

The complaint of private respondents in Civil Case No. 7314 before the trial court a quo
is ordered DISMISSED and the writ of execution issued on April 1, 1993 in said case is
SET ASIDE. Accordingly, private respondents are ORDERED to return to petitioner any
amount or property received by them by virtue of said writ. Costs against the private
respondents.

Moreover, the city building official, who has been in the city government service since
1974, admitted in open court that no complaint regarding any defect on the same
structure has ever been lodged before his office prior to the institution of the case at
bench. It is a matter of judicial notice that typhoons are common occurrences in this
country. If subject school building's roofing was not firmly anchored to its trusses,
obviously, it could not have withstood long years and several typhoons even stronger
than "Saling."

SO ORDERED.
Narvasa, C.J., Romero and Kapunan, JJ., concur.
G. Exercise of Negligence (Art 2180)

12
H. Mistake and Waiver
G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner,
vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.
Pedro G. Peralta for petitioner.

That after a thorough investigation the said Thames met the accident due
to mechanical defect and went off the road and turned turtle to the east
canal of the road into a creek causing physical injuries to us;
xxx xxx xxx
That we are no longer interested to file a complaint, criminal or civil
against the said driver and owner of the said Thames, because it was an
accident and the said driver and owner of the said Thames have gone to
the extent of helping us to be treated upon our injuries.

Florentino G. Libatique for private respondent.

xxx xxx xxx 2

(Emphasis supplied)

FELICIANO, J.:p
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying
passenger, respondent's "Thames" mini bus at a point in San Eugenio, Aringay, La
Union, bound for Bauang, of the same province. On the way, while the bus was running
along the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly
heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower
pot on the side of the road, went off the road, turned turtle and fell into a ditch. Several
passengers, including petitioner Gatchalian, were injured. They were promptly taken to
Bethany Hospital at San Fernando, La Union, for medical treatment. Upon medical
examination, petitioner was found to have sustained physical injuries on the leg, arm and
forehead, specifically described as follows: lacerated wound, forehead; abrasion, elbow,
left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1
On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela
Delim, wife of respondent, visited them and later paid for their hospitalization and
medical expenses. She also gave petitioner P12.00 with which to pay her transportation
expense in going home from the hospital. However, before Mrs. Delim left, she had the
injured passengers, including petitioner, sign an already prepared Joint Affidavit which
stated, among other things:
That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73
and victims after the said Thames met an accident at Barrio Payocpoc
Norte, Bauang, La Union while passing through the National Highway No.
3;

Notwithstanding this document, petitioner Gathalian filed with the then Court of First
Instance of La Union an action extra contractu to recover compensatory and moral
damages. She alleged in the complaint that her injuries sustained from the vehicular
mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the
forehead, generating mental suffering and an inferiority complex on her part; and that as
a result, she had to retire in seclusion and stay away from her friends. She also alleged
that the scar diminished her facial beauty and deprived her of opportunities for
employment. She prayed for an award of: P10,000.00 for loss of employment and other
opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her
forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and
that petitioner had already been paid and moreover had waived any right to institute any
action against him (private respondent) and his driver, when petitioner Gatchalian signed
the Joint Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint upon the ground that when petitioner
Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether
criminal or civil) that she may have had against respondent and the driver of the minibus.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that
there had been a valid waiver, but affirmed the dismissal of the case by denying
petitioner's claim for damages:

13
We are not in accord, therefore, of (sic) the ground of the trial court's
dismissal of the complaint, although we conform to the trial court's
disposition of the case its dismissal.

treatment, we hereby manifest our desire to waive any and all claims
against the operator of the Samar Express Transit."
xxx xxx xxx

IN VIEW OF THE FOREGOING considerations, there being no error

committed by the lower court in dismissing the plaintiff-appellant's
complaint, the judgment of dismissal is hereby affirmed.
Without special pronouncement as to costs.
SO ORDERED. 3
In the present Petition for Review filed in forma pauperis, petitioner assails the decision
of the Court of Appeals and ask this Court to award her actual or compensatory damages
as well as moral damages.
We agree with the majority of the Court of Appeals who held that no valid waiver of her
cause of action had been made by petitioner. The relevant language of the Joint Affidavit
may be quoted again:
That we are no longer interested to file a complaint, criminal or civil
against the said driver and owner of the said Thames, because it was an
accident and the said driver and owner of the said Thames have gone to
the extent of helping us to be treated upon our injuries. (Emphasis
supplied)
A waiver, to be valid and effective, must in the first place be couched in clear and
unequivocal terms which leave no doubt as to the intention of a person to give up
a right or benefit which legally pertains to him. 4 A waiver may not casually be
attributed to a person when the terms thereof do not explicitly and clearly
evidence an intent to abandon a right vested in such person.
The degree of explicitness which this Court has required in purported waivers is
illustrated in Yepes and Susaya v. Samar Express Transit (supra), where the Court in
reading and rejecting a purported waiver said:
. . . It appears that before their transfer to the Leyte Provincial Hospital,
appellees were asked to sign as, in fact, they signed the document
Exhibit I wherein they stated that "in consideration of the expenses which
said operator has incurred in properly giving us the proper medical

Even a cursory examination of the document mentioned above will

readily show that appellees did not actually waive their right to claim
damages from appellant for the latter's failure to comply with their
contract of carriage. All that said document proves is that they expressed
a "desire" to make the waiver which obviously is not the same as
making an actual waiver of their right. A waiver of the kind invoked by
appellant must be clear and unequivocal (Decision of the Supreme Court
of Spain of July 8, 1887) which is not the case of the one relied upon
in this appeal. (Emphasis supplied)
If we apply the standard used in Yepes and Susaya, we would have to conclude
that the terms of the Joint Affidavit in the instant case cannot be regarded as a
waiver cast in "clear and unequivocal" terms. Moreover, the circumstances under
which the Joint Affidavit was signed by petitioner Gatchalian need to be
considered. Petitioner testified that she was still reeling from the effects of the
vehicular accident, having been in the hospital for only three days, when the
purported waiver in the form of the Joint Affidavit was presented to her for
signing; that while reading the same, she experienced dizziness but that, seeing
the other passengers who had also suffered injuries sign the document, she too
signed without bothering to read the Joint Affidavit in its entirety. Considering
these circumstances there appears substantial doubt whether petitioner
understood fully the import of the Joint Affidavit (prepared by or at the instance of
private respondent) she signed and whether she actually intended thereby to
waive any right of action against private respondent.
Finally, because what is involved here is the liability of a common carrier for injuries
sustained by passengers in respect of whose safety a common carrier must exercise
extraordinary diligence, we must construe any such purported waiver most strictly
against the common carrier. For a waiver to be valid and effective, it must not be contrary
to law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to claim damages by an injured
passenger, under circumstances like those exhibited in this case, would be to dilute and
weaken the standard of extraordinary diligence exacted by the law from common carriers
and hence to render that standard unenforceable. 6 We believe such a purported waiver
is offensive to public policy.

14
Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held
that there was no enforceable waiver of her right of action, should have awarded her
actual or compensatory and moral damages as a matter of course.
We have already noted that a duty to exercise extraordinary diligence in protecting the
safety of its passengers is imposed upon a common carrier. 7 In case of death or injuries
to passengers, a statutory presumption arises that the common carrier was at fault or
had acted negligently "unless it proves that it [had] observed extraordinary diligence as
prescribed in Articles 1733 and 1755." 8 In fact, because of this statutory presumption, it
has been held that a court need not even make an express finding of fault or negligence
on the part of the common carrier in order to hold it liable. 9 To overcome this
presumption, the common carrier must slow to the court that it had exercised
extraordinary diligence to prevent the injuries. 10 The standard of extraordinary diligence
imposed upon common carriers is considerably more demanding than the standard of
ordinary diligence, i.e., the diligence of a good paterfamilias established in respect of the
ordinary relations between members of society. A common carrier is bound to carry its
passengers safely" as far as human care and foresight can provide, using the utmost
diligence of a very cautious person, with due regard to all the circumstances". 11
Thus, the question which must be addressed is whether or not private respondent has
successfully proved that he had exercised extraordinary diligence to prevent the mishap
involving his mini-bus. The records before the Court are bereft of any evidence showing
that respondent had exercised the extraordinary diligence required by law. Curiously,
respondent did not even attempt, during the trial before the court a quo, to prove that he
had indeed exercised the requisite extraordinary diligence. Respondent did try to
exculpate himself from liability by alleging that the mishap was the result of force
majeure. But allegation is not proof and here again, respondent utterly failed to
substantiate his defense of force majeure. To exempt a common carrier from liability for
death or physical injuries to passengers upon the ground of force majeure, the carrier
must clearly show not only that the efficient cause of the casualty was entirely
independent of the human will, but also that it was impossible to avoid. Any participation
by the common carrier in the occurrence of the injury will defeat the defense of force
majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court summed up
the essential characteristics of force majeure by quoting with approval from the
Enciclopedia Juridica Espaola:
Thus, where fortuitous event or force majeure is the immediate and
proximate cause of the loss, the obligor is exempt from liability nonperformance. The Partidas, the antecedent of Article 1174 of the Civil
Code, defines "caso fortuito" as 'an event that takes place by accident
and could not have been foreseen. Examples of this are destruction of
houses, unexpected fire, shipwreck, violence of robber.

In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica

Espaola says: 'In legal sense and, consequently, also in relation to
contracts, a "caso fortuito" presents the following essential
characteristics: (1) the cause of the unforeseen and unexpected
occurence, or of the failure of the debtor to comply with his obligation,
must be independent of the human will; (2) it must be impossible to
foresee the event which constitutes the "caso fortuito", or if it can be
foreseen, it must be impossible to avoid; (3) the occurrence must be such
as to render it impossible for the debtor to fulfill his obligation in a normal
manner; and (4) the obligor must be free from any participation in the
aggravation of the injury resulting to the creditor.
Upon the other hand, the record yields affirmative evidence of fault or negligence on the
part of respondent common carrier. In her direct examination, petitioner Gatchalian
narrated that shortly before the vehicle went off the road and into a ditch, a "snapping
sound" was suddenly heard at one part of the bus. One of the passengers, an old
woman, cried out, "What happened?" ("Apay addan samet nadadaelen?"). The driver
replied, nonchalantly, "That is only normal" ("Ugali ti makina dayta"). The driver did not
stop to check if anything had gone wrong with the bus. Moreover, the driver's reply
necessarily indicated that the same "snapping sound" had been heard in the bus on
previous occasions. This could only mean that the bus had not been checked physically
or mechanically to determine what was causing the "snapping sound" which had
occurred so frequently that the driver had gotten accustomed to it. Such a sound is
obviously alien to a motor vehicle in good operating condition, and even a modicum of
concern for life and limb of passengers dictated that the bus be checked and repaired.
The obvious continued failure of respondent to look after the roadworthiness and safety
of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had
heard once again the "snapping sound" and the cry of alarm from one of the passengers,
constituted wanton disregard of the physical safety of the passengers, and hence gross
negligence on the part of respondent and his driver.
We turn to petitioner's claim for damages. The first item in that claim relates to revenue
which petitioner said she failed to realize because of the effects of the vehicular mishap.
Petitioner maintains that on the day that the mini-bus went off the road, she was
supposed to confer with the district supervisor of public schools for a substitute teacher's
job, a job which she had held off and on as a "casual employee." The Court of Appeals,
however, found that at the time of the accident, she was no longer employed in a public
school since, being a casual employee and not a Civil Service eligible, she had been laid
off. Her employment as a substitute teacher was occasional and episodic, contingent
upon the availability of vacancies for substitute teachers. In view of her employment
status as such, the Court of Appeals held that she could not be said to have in fact lost
any employment after and by reason of the accident. 13 Such was the factual finding of

15
the Court of Appeals, a finding entitled to due respect from this Court. Petitioner
Gatchalian has not submitted any basis for overturning this finding of fact, and she may
not be awarded damages on the basis of speculation or conjecture. 14
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead,
is another matter. A person is entitled to the physical integrity of his or her body; if that
integrity is violated or diminished, actual injury is suffered for which actual or
compensatory damages are due and assessable. Petitioner Gatchalian is entitled to be
placed as nearly as possible in the condition that she was before the mishap. A scar,
especially one on the face of the woman, resulting from the infliction of injury upon her, is
a violation of bodily integrity, giving raise to a legitimate claim for restoration to her
conditio ante. If the scar is relatively small and does not grievously disfigure the victim,
the cost of surgery may be expected to be correspondingly modest. In Araneta, et al. vs.
Areglado, et al., 15 this Court awarded actual or compensatory damages for, among
other things, the surgical removal of the scar on the face of a young boy who had been
injured in a vehicular collision. The Court there held:
We agree with the appellants that the damages awarded by the lower
court for the injuries suffered by Benjamin Araneta are inadequate. In
allowing not more than P1,000.00 as compensation for the "permanent
deformity and something like an inferiority complex" as well as for the
"pathological condition on the left side of the jaw" caused to said plaintiff,
the court below overlooked the clear evidence on record that to arrest the
degenerative process taking place in the mandible and restore the
injured boy to a nearly normal condition, surgical intervention was
needed, for which the doctor's charges would amount to P3,000.00,
exclusive of hospitalization fees, expenses and medicines. Furthermore,
the operation, according to Dr. Dio, would probably have to be repeated
in order to effectuate a complete cure, while removal of the scar on the
face obviously demanded plastic surgery.
xxx xxx xxx
The father's failure to submit his son to a plastic operation as soon as
possible does not prove that such treatment is not called for. The damage
to the jaw and the existence of the scar in Benjamin Araneta's face are
physical facts that can not be reasoned out of existence. That the injury
should be treated in order to restore him as far as possible to his original
condition is undeniable. The father's delay, or even his negligence,
should not be allowed to prejudice the son who has no control over the
parent's action nor impair his right to a full indemnity.

. . . Still, taking into account the necessity and cost of corrective

measures to fully repair the damage; the pain suffered by the injured
party; his feelings of inferiority due to consciousness of his present
deformity, as well as the voluntary character of the injury inflicted; and
further considering that a repair, however, skillfully conducted, is never
equivalent to the original state, we are of the opinion that the indemnity
granted by the trial court should be increased to a total of P18,000.00.
(Emphasis supplied)
Petitioner estimated that the cost of having her scar surgically removed was somewhere
between P10,000.00 to P15,000.00. 16 Upon the other hand, Dr. Fe Tayao Lasam, a
witness presented as an expert by petitioner, testified that the cost would probably be
between P5,000.00 to P10,000.00. 17 In view of this testimony, and the fact that a
considerable amount of time has lapsed since the mishap in 1973 which may be
expected to increase not only the cost but also very probably the difficulty of removing
the scar, we consider that the amount of P15,000.00 to cover the cost of such plastic
surgery is not unreasonable.
Turning to petitioner's claim for moral damages, the long-established rule is that moral
damages may be awarded where gross negligence on the part of the common carrier is
shown. 18 Since we have earlier concluded that respondent common carrier and his
driver had been grossly negligent in connection with the bus mishap which had injured
petitioner and other passengers, and recalling the aggressive manuevers of respondent,
through his wife, to get the victims to waive their right to recover damages even as they
were still hospitalized for their injuries, petitioner must be held entitled to such moral
damages. Considering the extent of pain and anxiety which petitioner must have suffered
as a result of her physical injuries including the permanent scar on her forehead, we
believe that the amount of P30,000.00 would be a reasonable award. Petitioner's claim
for P1,000.00 as atttorney's fees is in fact even more modest. 19
WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as
the decision of the then Court of First Instance of La Union dated 4 December 1975 are
hereby REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner
Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory
damages to cover the cost of plastic surgery for the removal of the scar on petitioner's
forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the
aggregate amount to bear interest at the legal rate of 6% per annum counting from the
promulgation of this decision until full payment thereof. Costs against private respondent.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

16
Jeremias T. Santos 11,500.00
Fernando Cruz 55,780.00
I.

Damnum Absque Injuria

The petitioners were further ordered to pay the private respondents 30% of the amounts
payable by them as attorney's fees and P10,000.00 as litigation expenses, and to pay
the costs of suit. 2

G.R. No. 96410 July 3, 1992

NATIONAL POWER CORPORATION and BENJAMIN CHAVEZ, petitioners,
vs.
THE COURT OF APPEALS, RICARDO CRUZ, DOMINGO CRUZ, FERNANDO CRUZ,
LEOPOLDO CRUZ, MARIA CRUZ, MAURA MARCIAL, JUAN PALAD, NICANOR
PALAD, ZOSIMO PALAD, NICASIO SAN PEDRO, FELIMON SANTOS, ISAIAS
SANTOS, JEREMIAS SANTOS, and JOSE SANTOS, respondents.

NOCON, J.:
Before Us is a petition for review on certiorari instituted by the National Power
Corporation (NPC) and Benjamin Chavez, Plant Superintendent of
NPC, from the decision of the Court of Appeals promulgated on September 18, 1990. 1
The appellate court affirmed in toto the decision in Civil Case No.
SM-1552 of the Regional Trial Court of Malolos, Bulacan, Branch XVI, which awarded
damages, interest, attorney's fees and litigation expenses against petitioners in the
following amounts with interest at 12% per annum from the date of filing of the complaint
until fully paid:
Ricardo Cruz P 22,800.00
Zosimo Palad 24,200.00
Isaias T. Santos 45,500.00
Felimon Santos 42,900.00
Maura T. Marcial 49,280.00
Domingo Cruz 121,900.00
Leopoldo Cruz 21,000.00
Maria R. Cruz 34,000.00
Nicanor Palad 28,768.00
Nicasio San Pedro 16,950.00
Juan Palad 27,600.00
Jose T. Santos 38,410.00

It appears that in the early morning hours of October 27, 1978, at the height of typhoon
"Kading", a massive flood covered the towns near Angat Dam, particularly the town of
Norzagaray, causing several deaths and the loss and destruction of houses, farms,
plants, working animals and other properties of the people residing near the Angat River.
Private respondents recalled that on the said day, they were awakened by the sound of
rampaging water all around them. The water came swiftly and strongly that before they
could do anything to save their belongings, their houses had submerged, some even
swept away by the strong current. A number of people were able to save their lives only
by climbing trees.
Private respondents blamed the sudden rush of water to the reckless and imprudent
opening of all the three (3) floodgates of the Angat Dam spillway, without prior warning to
the people living near or within the vicinity of the
dam. 3
Petitioners denied private respondents' allegations and, by way of defense, contended
that they have maintained the water in the Angat Dam at a safe level and that the
opening of the spillways was done gradually and after all precautionary measures had
been taken. Petitioner NPC further contended that it had always exercised the diligence
of a good father in the selection of its officials and employees and in their supervision. It
also claimed that written warnings were earlier sent to the towns concerned. At the time
typhoon "Kading" hit Bulacan with its torrential rain, a great volume of flood water flowed
into the dam's reservoir necessitating the release of the water therein in order to prevent
the dam from collapsing and causing the loss of lives and tremendous damage to
livestock and properties.
Petitioners further contended that there was no direct causal relationship between the
alleged damages suffered by the respondents and the acts and omissions attributed to
the former. That it was the respondents who assumed the risk of residing near the Angat
River, and even assuming that respondents suffered damages, the cause was due to a
fortuitous event and such damages are of the nature and character of damnum absque
injuria, hence, respondents have no cause of action against them.
As assignment of errors of the appellate court, petitioners raised the following:

17
(a) IN HOLDING THAT THE RULING IN JUAN F. NAKPIL & SONS VS. COURT OF
APPEALS, 4 IS APPLICABLE TO THE INSTANT CASE UNDER WHICH PETITIONERS
ARE LIABLE EVEN THOUGH THE COMING OF A TYPHOON WAS FORCE MAJEURE;
(b) IN NOT HOLDING THAT THE GIVING OF THE WRITTEN NOTICE OF WARNING
BY PETITIONERS ABSOLVED THEM FROM LIABILITY;
(c) IN NOT HOLDING THAT ANY DAMAGE SUFFERED BY PRIVATE RESPONDENTS
WAS DAMNUM ABSQUE INJURIA; and
(d) IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S
FEES AND EXPENSES OF LITIGATION.
We find the petition devoid of merit.
We do not agree with the petitioners that the decision handed down in Juan F. Nakpil &
Sons, supra, is not applicable to the present case. The doctrine laid down in the said
case is still good law, as far as the concurrent liability of an obligor in case of a force
majeure, is concerned.
5

The case of National Power Corp. v. Court of Appeals, as a matter of fact, reiterated the
ruling in Juan F. Nakpil & Sons. In the former case, this Court ruled that the obligor
cannot escape liability, if upon the happening of a fortuitous event or an act of God, a
corresponding fraud, negligence, delay or violation or contravention in any manner of the
tenor of the obligation as provided in Article 1170 of the Civil Code 6 which results in loss
or damage.
Petitioners contended that unlike in Juan F. Nakpil & Sons, there was no privity of
contract between herein petitioners and private respondents. They further alleged that
they owed no specific duty to private respondents in the same way that the architect of a
building owed a specific duty to its owner. Petitioners, however, failed to consider that
even if there was no contractual relation between themselves and private respondents,
they are still liable under the law on quasi-delict. Article 2176 of the Civil Code explicitly
provides "whoever by act or omission causes damage to another there being fault or
negligence is obliged to pay for the damage done."
Neither can petitioners escape liability by invoking force majeure. Act of God or force
majeure, by definition, are extraordinary events not foreseeable or avoidable, events that
could not be foreseen, or which, though foreseen, are inevitable. It is therefore not
enough that the event should not have been foreseen or anticipated, as is commonly
believed, but it must be one impossible to foresee or to avoid. 7 As a general rule, no

person shall be responsible for those events which could not be foreseen or which
though foreseen, were inevitable. 8
However, the principle embodied in the act of God doctrine strictly requires that the act
must be occasioned solely by the violence of nature. Human intervention is to be
excluded from creating or entering into the cause of the mischief. When the effect is
found to be in part the result of the participation of man, whether due to his active
intervention or neglect or failure to act, the whole occurrence is then humanized and
removed from the rules applicable to the acts of God. 9
So generally it cannot be said that damage, injury or loss is due to an act
of God where it was caused merely by excessive or heavy rainfall, storms
and to weather conditions which are not unusual in character, those
which could have been reasonably anticipated or where the injury
complained of is due rather to the negligence or mismanagement of man
than to the disturbance of the elements or where such damage, injury or
loss might have been mitigated or prevented by diligence exercised after
the occurrence. 10
In the case at bar, although the typhoon "Kading" was an act of God, petitioners can not
escape liability because their negligence was the proximate cause of the loss and
damage. The Court of Appeals found that:
As hereinabove stated, it has been shown that the defendants failed to
take the necessary safeguards to prevent the danger that the Angat Dam
posed in a situation of such nature as that of typhoon "Kading". The
representative of the "PAG-ASA" who testified in these proceedings,
Justo Iglesias, Jr., stated that based on their records the rainfall on
October 26 and 27, 1978 is classified only as moderate, and could not
have caused flash floods. He testified that flash floods exceeds 50
millimeters per hour and lasts for at least two (2) hours. He stated that
typhoon "Yaning" which occurred on October 7 to 14, 1978 gave a much
heavier rainfall than "Kading", and so did other previous typhoons. 11
This was corroborated by the testimonies of private respondents, most of whom
have lived in the area all their lives, but had never before experienced such
flooding as would have placed them on alert, even during previous stronger
typhoons such as "Dading" and "Yoling."
What more, when the evidence shows that as early as October 25, 1978 the newspapers
had announced the expected occurrence of a powerful typhoon code-named "Kading". 12
On October 26, 1978, Bulletin Today had as its headline the coming of the typhoon. 13

18
Despite these announcements, the water level in the dam was maintained at its
maximum from October 21, until midnight of October 26, 1978. 14
At 2100 hrs. of October 26, 1978, NPC started to open the three floodgates
simultaneously from 1 meter to 8 meters at 0100 hrs. of October 27, 1978, until all
floodgates were opened to the maximum of 14 to 14.5 meters by 0600 hrs. of the same
day. 15
This was also the finding of the court a quo which We quote:
The defendants contended that the release of water had been "gradual".
The lower court did not find this true. The exhibit presented by the
defendants (Exhs. AA and BB-2) show that on October 26, 1978 there
was very little opening of the spillways, ranging from 1 meter to 2 meters.
However, from midnight or from the first hours of October 27, 1978 the
opening of all the three (3) spillways started at 5 meters and swiftly went
as far up as 14 meters. As observed correctly by the trial court had the
opening of all the three (3) spillways been made earlier and gradually,
there would have been no need to open the same suddenly.
What made the situation worse was that the opening of the spillways was
made at the unholy hours when residents were asleep. The plaintiffs all
testified that they were never given any warning that the spillways would
be opened to that extent. . . . 16
It has been held in several cases that when the negligence of a person concurs with an
act of God 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 he must be free from
any previous negligence or misconduct by which the loss or damage may have been
occasioned. 17
Thus, We cannot give credence to petitioners' third assignment of error that the damage
caused by the opening of the dam was in the nature of damnum absque injuria, which
presupposes that although there was physical damage, there was no legal injury in view
of the fortuitous events. There is no question that petitioners have the right, duty and
obligation to operate, maintain and preserve the facilities of Angat Dam, but their
negligence cannot be countenanced, however noble their intention may be. The end
does not justify the means, particularly because they could have done otherwise than
simultaneously opening the spillways to such extent. Needless to say, petitioners are not
entitled to counterclaim.

Petitioners insist that their giving of prior written warning should absolve them from
liability. Notice of warning was served by them on "a responsible employee in the office
of the mayor of the municipality, or in the absence of such responsible employee, on a
member of the municipal police force." 18 That being the case, they alleged that the
presumption that official duty has been performed must be credited in their favor. The
presumption was, however, refuted by the evidence and testimonies of respondents who
all denied having been given any warning that the spillways would be opened to such
extent and at a short period of time.
The letter 19 itself, addressed merely "TO ALL CONCERNED", would not strike one to be
of serious importance, sufficient enough to set alarm and cause people to take
precautions for their safety's sake. As testified to by driver Leonardo Garcia of the NPC,
he was instructed by Chavez to give notice "to any personnel of the municipality [sic] or
even the policemen of the municipalities concerned regarding the release of water from
the reservoir." 20 His instructions did not specify the municipal officer who should receive
the notice, but that priority must be given to the police. 21 Thus, copies of the notices
were given to Pat. Carillo of Norzagaray, Cicero Castro, municipal employee of Angat,
Pat. Jaime Nicholas of Bustos, Cpl. Josefino Legaspi of Baliwag, Pat. Luzvimin Mariano
of Plaridel and Pat. Dantes Manukduk of Calumpit.
As observed by the Court of Appeals:
Clearly, the notices were not delivered, or even addressed to responsible
officials of the municipalities concerned who could have disseminated the
warning properly. They were delivered to ordinary employees and
policemen. As it happened, the said notices do not appear to have
reached the people concerned, which are the residents beside the Angat
River. The plaintiffs in this case definitely did not receive any such
warning. Indeed, the methods by which the defendants allegedly sent the
notice or warning was so ineffectual that they cannot claim, as they do in
their second assignment of error, that the sending of said notice has
absolved them from liability. 22
WHEREFORE, finding no reversible error in the Decision appealed from, the same is
hereby affirmed in toto, with cost against petitioner.
SO ORDERED.
Narvasa, C.J., Paras, Padilla and Regalado, JJ., concur.

19
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 quasi-delict 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 injuries to George Koh McKee, Christopher Koh McKee
and petitioner Araceli Koh McKee.

J. Emergency Rule

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

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 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

20
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.

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

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.

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

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

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 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

21
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 counter-claim, 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
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.
24764-CR 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:

22
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)

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L1)
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.

For the death of Kim Koh McKee:

SO ORDERED. 26
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:

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
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. 27 This 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

23
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 (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 far-fetched 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

24
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
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

25
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 PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO
PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF
THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE
RESPONDENTS' DRIVER.

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.

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 AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from
a quasi-delict 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.

26
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, 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. 43 The 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

27
slow down to give us the right of way to come back to our
right lane.

imaginary conduct of the discreet paterfamilias of the

Roman
law. . . .

Q Did the truck slow down?

In Corliss vs. Manila Railroad Company, 48 We held:
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.
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

. . . 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:
. . . 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

28
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:
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

29
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:
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.

30
The diligence of a good father referred to means the diligence in the selection and
supervision of employees. 60 The 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,
increased from P12,000.00 to P50,000.00.

61

the indemnity for death must, however, be

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.
K. VOLENTI NON-FIT INJURIA
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE
JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN,
respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.

PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of
Appeals' First Division, setting aside the judgment of the then Court of First Instance
(CFI) of Ilocos Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another
rendered in its stead whereby defendant is hereby sentenced to pay
plaintiffs actual damages of P30,229.45; compensatory damages of
P50,000.00; exemplary damages of P10,000.00; attorney's fees of
P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the
recognition of their respective versions of the scenario from which the disputed claims
originate. The respondent Court of Appeals (CA) summarized the evidence of the parties
as follows:
From the evidence of plaintiffs it appears that in the evening of June 28
until the early morning of June 29, 1967 a strong typhoon by the code
name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains
and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on
June 29, 1967, after the typhoon had abated and when the floodwaters
were beginning to recede the deceased Isabel Lao Juan, fondly called
Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes,
on No. 19 Guerrero Street, Laoag City, and proceeded northward towards
the direction of the Five Sisters Emporium, of which she was the owner
and proprietress, to look after the merchandise therein that might have
been damaged. Wading in waist-deep flood on Guerrero, the deceased
was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also
owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at
the YJ Cinema, which was partly owned by the deceased. Aida and Linda
walked side by side at a distance of between 5 and 6 meters behind the
deceased, Suddenly, the deceased screamed "Ay" and quickly sank into
the water. The two girls attempted to help, but fear dissuaded them from
doing so because on the spot where the deceased sank they saw an
electric wire dangling from a post and moving in snake-like fashion in the
water. Upon their shouts for help, Ernesto dela Cruz came out of the
house of Antonio Yabes. Ernesto tried to go to the deceased, but at four
meters away from her he turned back shouting that the water was
grounded. Aida and Linda prodded Ernesto to seek help from Antonio
Yabes at the YJ Cinema building which was four or five blocks away.

31
When Antonio Yabes was informed by Ernesto that his mother-in law had
been electrocuted, he acted immediately. With his wife Jane, together
with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to
request the police to ask the people of defendant Ilocos Norte Electric
Company or INELCO to cut off the electric current. Then the party waded
to the house on Guerrero Street. The floodwater was receding and the
lights inside the house were out indicating that the electric current had
been cut off in Guerrero. Yabes instructed his boys to fish for the body of
the deceased. The body was recovered about two meters from an electric
post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967,
Engineer Antonio Juan, Power Plant Engineer of the National Power
Corporation at the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated such abnormalities as
grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out
of the Laoag NPC Compound on an inspection. On the way, he saw
grounded and disconnected lines. Electric lines were hanging from the
posts to the ground. Since he could not see any INELCO lineman, he
decided to go to the INELCO Office at the Life Theatre on Rizal Street by
way of Guerrero. As he turned right at the intersection of Guerrero and
Rizal, he saw an electric wire about 30 meters long strung across the
street "and the other end was seeming to play with the current of the
water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still
closed, and seeing no lineman therein, he returned to the NPC
Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on
another inspection trip. Having learned of the death of Isabel Lao Juan,
he passed by the house of the deceased at the corner of Guerrero and
M.H. del Pilar streets to which the body had been taken. Using the
resuscitator which was a standard equipment in his jeep and employing
the skill he acquired from an in service training on resuscitation, he tried
to revive the deceased. His efforts proved futile. Rigor mortis was setting
in. On the left palm of the deceased, Engr. Juan noticed a hollow wound.
Proceeding to the INELCO Office, he met two linemen on the way. He
told them about the grounded lines of the INELCO In the afternoon of the
same day, he went on a third inspection trip preparatory to the restoration
of power. The dangling wire he saw on Guerrero early in the morning of
June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del
Pilar after learning that the deceased had been electrocuted. Among the
sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat,
Ilocos Norte. Upon the request of the relatives of the deceased, Dr.
Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin
was grayish or, in medical parlance, cyanotic, which indicated death by
electrocution. On the left palm, the doctor found an "electrically charged
wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn.
About the base of the thumb on the left hand was a burned wound. (Exh.
C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro
stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p.
103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its
officers and employees, namely, Conrado Asis, electric engineer; Loreto
Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili,
president-manager of INELCO Through the testimonies of these
witnesses, defendant sought to prove that on and even before June 29,
1967 the electric service system of the INELCO in the whole franchise
area, including Area No. 9 which covered the residence of Antonio Yabes
at No. 18 Guerrero Street, did not suffer from any defect that might
constitute a hazard to life and property. The service lines, devices and
other INELCO equipment in Area No. 9 had been newly-installed prior to
the date in question. As a public service operator and in line with its
business of supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to persons and
damage to property in case of natural calamities such as floods,
typhoons, fire and others. Defendant had 12 linesmen charged with the
duty of making a round-the-clock check-up of the areas respectively
assigned to them.
Defendant asserts that although a strong typhoon struck the province of
Ilocos Norte on June 29, 1967, putting to streets of Laoag City under
water, only a few known places in Laoag were reported to have suffered
damaged electric lines, namely, at the southern approach of the Marcos
Bridge which was washed away and where the INELCO lines and posts
collapsed; in the eastern part near the residence of the late Governor
Simeon Mandac; in the far north near the defendant's power plant at the
corner of Segundo and Castro Streets, Laoag City and at the far
northwest side, near the premises of the Ilocos Norte National High
School. Fabico Abijero, testified that in the early morning before 6 o'clock
on June 29, 1967 he passed by the intersection of Rizal and Guerrero

32
Streets to switch off the street lights in Area No. 9. He did not see any cut
or broken wires in or near the vicinity. What he saw were many people
fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the
defense to show that the deceased could not have died of electrocution
Substantially, the testimony of the doctor is as follows: Without an
autopsy on the cadaver of the victim, no doctor, not even a medicolegal
expert, can speculate as to the real cause of death. Cyanosis could not
have been found in the body of the deceased three hours after her death,
because cyanosis which means lack of oxygen circulating in the blood
and rendering the color of the skin purplish, appears only in a live person.
The presence of the elongated burn in the left palm of the deceased
(Exhibits C-1 and C-2) is not sufficient to establish her death by
electrocution; since burns caused by electricity are more or less round in
shape and with points of entry and exit. Had the deceased held the lethal
wire for a long time, the laceration in her palm would have been bigger
and the injury more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs
of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on
Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the
deceased could have died simply either by drowning or by electrocution due to
negligence attributable only to herself and not to petitioner. In this regard, it was pointed
out that the deceased, without petitioner's knowledge, caused the installation of a burglar
deterrent by connecting a wire from the main house to the iron gate and fence of steel
matting, thus, charging the latter with electric current whenever the switch is on.
Petitioner then conjectures that the switch to said burglar deterrent must have been left
on, hence, causing the deceased's electrocution when she tried to open her gate that
early morning of June 29, 1967. After due trial, the CFI found the facts in favor of
petitioner and dismissed the complaint but awarded to the latter P25,000 in moral
damages and attorney's fees of P45,000. An appeal was filed with the CA which issued
the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the
respondent CA:
1. The respondent Court of Appeals committed grave
abuse of discretion and error in considering the purely
hearsay alleged declarations of Ernesto de la Cruz as
part of the res gestae.

2. The respondent Court of Appeals committed grave

abuse of discretion and error in holding that the strong
typhoon "Gening" which struck Laoag City and Ilocos
Norte on June 29, 1967 and the flood and deluge it
brought in its wake were not fortuitous events and did not
exonerate petitioner-company from liability for the death
of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its
discretion and erred in not applying the legal principle of
"assumption of risk" in the present case to bar private
respondents from collecting damages from petitioner
company.
4. That the respondent Court of Appeals gravely erred
and abused its discretion in completely reversing the
findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals
are reversible under the recognized exceptions.
6. The trial court did not err in awarding moral damages
and attorney's fees to defendant corporation, now
petitioner company.
7. Assuming arguendo that petitioner company may be
held liable from the death of the late Isabel Lao Juan, the
damages granted by respondent Court of Appeals are
improper and exhorbitant. (Petitioners Memorandum, p.
133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's death;
and (3) whether or not the respondent CA's substitution of the trial court's factual findings
for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative.
By a preponderance of evidence, private respondents were able to show that the
deceased died of electrocution, a conclusion which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former.
Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of

33
the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who
actually examined the body of the deceased a few hours after the death and described
the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and
that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore,
witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased
screamed "Ay" and sank into the water, they tried to render some help but were
overcome with fear by the sight of an electric wire dangling from an electric post, moving
in the water in a snake-like fashion (supra). The foregoing therefore justifies the
respondent CA in concluding that "(t)he nature of the wounds as described by the
witnesses who saw them can lead to no other conclusion than that they were "burns,"
and there was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22,
Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was
electrocuted, if such was really the case when she tried to open her steel gate, which
was electrically charged by an electric wire she herself caused to install to serve as a
burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on.
But this is mere speculation, not backed up with evidence. As required by the Rules,
"each party must prove his own affirmative allegations." (Rule 131, Sec. 1).
Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned"
by the petitioner (CA Decision, p. 23, Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were
with the deceased during that fateful morning of June 29, 1967. This
Court has not been offered any sufficient reason to discredit the
testimonies of these two young ladies. They were one in the affirmation
that the deceased, while wading in the waist-deep flood on Guerrero
Street five or six meters ahead of them, suddenly screamed "Ay" and
quickly sank into the water. When they approached the deceased to help,
they were stopped by the sight of an electric wire dangling from a post
and moving in snake-like fashion in the water. Ernesto dela Cruz also
tried to approach the deceased, but he turned back shouting that the
water was grounded. These bits of evidence carry much weight. For the
subject of the testimonies was a startling occurrence, and the
declarations may be considered part of the res gestae. (CA Decision, p.
21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present:
(1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements

were made before the declarant had time to contrive or devise; (3) that the statements
made must concern the occurrence in question and its immediately attending
circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We
do not find any abuse of discretion on the CA' part in view of the satisfaction of said
requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence
precisely as an exception to the hearsay rule on the grounds of trustworthiness and
necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs.
State, 53 Ala. 182), and "necessity" because such natural and spontaneous utterances
are more convincing than the testimony of the same person on the stand (Mobile vs.
Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not
presented to testify does not make the testimony of Linda Alonzo Estavillo and Aida
Bulong hearsay since the said declaration is part of the res gestae. Similarly, We
considered part of the res gestae a conversation between two accused immediately after
commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82
Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135,
Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased
sank into the waist-deep water, he acted upon the call of help of Aida Bulong and Linda
Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the
deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz entered
the scene considering that the victim remained submerged. Under such a circumstance,
it is undeniable that a state of mind characterized by nervous excitement had been
triggered in Ernesto de la Cruz's being as anybody under the same contingency could
have experienced. As such, We cannot honestly exclude his shouts that the water was
grounded from the res gestae just because he did not actually see the sinking of the
deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz.
While We concede to the submission that the statement must be one of facts rather than
opinion, We cannot agree to the proposition that the one made by him was a mere
opinion. On the contrary, his shout was a translation of an actuality as perceived by him
through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed
by the private respondents, thus, is presumed to be adverse to them pursuant to Section
5(e), Rule 131. For the application of said Rule as against a party to a case, it is
necessary that the evidence alleged to be suppressed is available only to said party
(People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does not
operate if the evidence in question is equally available to both parties (StaplesHowe

34
Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that
petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was
Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross
examination:
Q. And that Erning de la Cruz, how far did he reach from the gate
of the house?
A. Well, you can ask that matter from him sir because he is here.
(TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of
Ernesto de la Cruz which, if truly adverse to private respondent, would have helped its
case. However, due to reasons known only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The
respondent CA acted correctly in disposing the argument that petitioner be exonerated
from liability since typhoons and floods are fortuitous events. While it is true that
typhoons and floods are considered Acts of God for which no person may be held
responsible, it was not said eventuality which directly caused the victim's death. It was
through the intervention of petitioner's negligence that death took place. We subscribe to
the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the
electrocution and consequent death of the late Isabel Lao Juan,
defendant called to the witness-stand its electrical engineer, chief
lineman, and lineman to show exercise of extraordinary diligence and to
negate the charge of negligence. The witnesses testified in a general way
about their duties and the measures which defendant usually adopts to
prevent hazards to life and limb. From these testimonies, the lower court
found "that the electric lines and other equipment of defendant
corporation were properly maintained by a well-trained team of lineman,
technicians and engineers working around the clock to insure that these
equipments were in excellent condition at all times." (P. 40, Record on
Appeal) The finding of the lower court, however, was based on what the
defendant's employees were supposed to do, not on what they actually
did or failed to do on the date in question, and not on the occasion of the
emergency situation brought about by the typhoon.
The lower court made a mistake in assuming that defendant's employees
worked around the clock during the occurrence of the typhoon on the
night of June 28 and until the early morning of June 29, 1967, Engr.

Antonio Juan of the National Power Corporation affirmed that when he

first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29,
1967, he saw grounded and disconnected electric lines of the defendant
but he saw no INELCO lineman. The INELCO Office at the Life theatre
on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the
witnesses of defendant contradict the finding of the lower court. Conrado
Asis, defendant's electrical engineer, testified that he conducted a
general inspection of the franchise area of the INELCO only on June 30,
1967, the day following the typhoon. The reason he gave for the delay
was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973)
According to Asis, he arrived at his office at 8:00 A.M. on June 30 and
after briefing his men on what to do they started out. (p. 338, lbid) One or
two days after the typhoon, the INELCO people heard "rumors that
someone was electrocuted" so he sent one of his men to the place but
his man reported back that there was no damaged wire. (p. 385, Id.)
Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He
testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the
INELCO plant and asked the INELCO people to inspect their lines. He
went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00
noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of
defendant, testified that at about 6:00 on June 29, 1967 the typhoon
ceased. At that time, he was at the main building of the Divine Word
College of Laoag where he had taken his family for refuge. (pp. 510-511,
Ibid.)
In times of calamities such as the one which occurred in Laoag City on
the night of June 28 until the early hours of June 29, 1967, extraordinary
diligence requires a supplier of electricity to be in constant vigil to prevent
or avoid any probable incident that might imperil life or limb. The
evidence does not show that defendant did that. On the contrary,
evidence discloses that there were no men (linemen or otherwise)
policing the area, nor even manning its office. (CA Decision, pp. 24-25,
Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that
no harm is done to the general public"... considering that electricity is an agency, subtle
and deadly, the measure of care required of electric companies must be commensurate
with or proportionate to the danger. The duty of exercising this high degree of diligence
and care extends to every place where persons have a right to be" (Astudillo vs. Manila
Electric, 55 Phil. 427). The negligence of petitioner having been shown, it may not now
absolve itself from liability by arguing that the victim's death was solely due to a fortuitous
event. "When an act of God combines or concurs with the negligence of the defendant to

35
produce an injury, the defendant is liable if the injury would not have resulted but for his
own negligent conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application
in the case at bar. It is imperative to note the surrounding circumstances which impelled
the deceased to leave the comforts of a roof and brave the subsiding typhoon. As
testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see
TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were on their
way to the latter's grocery store "to see to it that the goods were not flooded." As such,
shall We punish her for exercising her right to protect her property from the floods by
imputing upon her the unfavorable presumption that she assumed the risk of personal
injury? Definitely not. For it has been held that a person is excused from the force of the
rule, that when he voluntarily assents to a known danger he must abide by the
consequences, if an emergency is found to exist or if the life or property of another is in
peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his
endangered property (Harper and James, "The Law of Torts." Little, Brown and Co.,
1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property, a
source of her livelihood, was faced with an impending loss. Furthermore, the deceased,
at the time the fatal incident occurred, was at a place where she had a right to be without
regard to petitioner's consent as she was on her way to protect her merchandise. Hence,
private respondents, as heirs, may not be barred from recovering damages as a result of
the death caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the
trial court's findings of fact, pointing to the testimonies of three of its employees its
electrical engineer, collector-inspector, lineman, and president-manager to the effect that
it had exercised the degree of diligence required of it in keeping its electric lines free from
defects that may imperil life and limb. Likewise, the said employees of petitioner
categorically disowned the fatal wires as they appear in two photographs taken on the
afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just
hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA
properly held, "(t)he finding of the lower court ... was based on what the defendant's
employees were supposed to do, not on what they actually did or failed to do on the date
in question, and not on the occasion of the emergency situation brought about by the
typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already
reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of
ownership of the several wires cannot stand the logical conclusion reached by the CA
when it held that "(t)he nature of the wounds as described by the witnesses who saw
them can lead to no other conclusion than that they were 'burns', and there was nothing
else in the street where the victim was wading thru which could cause a burn except the
dangling live wire of defendant company" (supra).

"When a storm occurs that is liable to prostrate the wires, due care requires prompt
efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The
fact is that when Engineer Antonio Juan of the National Power Corporation set out in the
early morning of June 29, 1967 on an inspection tour, he saw grounded and
disconnected lines hanging from posts to the ground but did not see any INELCO
lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The
foregoing shows that petitioner's duty to exercise extraordinary diligence under the
circumstance was not observed, confirming the negligence of petitioner. To aggravate
matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about
the impending typhoon, through radio announcements. Even the fire
department of the city announced the coming of the big flood. (pp. 532534, TSN, March 13, 1975) At the INELCO irregularities in the flow of
electric current were noted because "amperes of the switch volts were
moving". And yet, despite these danger signals, INELCO had to wait for
Engr. Juan to request that defendant's switch be cut off but the harm was
done. Asked why the delay, Loreto Abijero answered that he "was not the
machine tender of the electric plant to switch off the current." (pp. 467468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p.
26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial
court's findings but tediously considered the factual circumstances at hand pursuant to
its power to review questions of fact raised from the decision of the Regional Trial Court,
formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in
private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's
death and P18,229.45 for funeral expenses); P50,000 in compensatory damages,
computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA
511) with the base of P15,000 as average annual income of the deceased; P10,000 in
exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of
P12,000 as compensation for the victim's death, We affirm the respondent CA's award
for damages and attorney's fees. Pusuant to recent jurisprudence (People vs. Mananquil,
132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of
P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was
properly made by the respondent CA, the charge of malice and bad faith on the part of
respondents in instituting his case being a mere product of wishful thinking and
speculation. Award of damages and attorney's fees is unwarranted where the action was

36
filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137
SCRA 50). If damage results from a person's exercising his legal rights, it is damnum
absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight
modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

IV. VICARIOUS LIABILITY (Art 2180)

A. PARENTS AND GUARDIANS

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.

37
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.
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 extracurricular 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.
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito Elcano, deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.

BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29,
1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing,
upon motion to dismiss of defendants, the complaint of plaintiffs for recovery of damages
from defendant Reginald Hill, a minor, married at the time of the occurrence, and his
father, the defendant Marvin Hill, with whom he was living and getting subsistence, for
the killing by Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when
criminally prosecuted, the said accused was acquitted on the ground that his act was not
criminal, because of "lack of intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule
107, which is now Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in
res-adjudicata;
3. The complaint had no cause of action against defendant Marvin Hill,
because he was relieved as guardian of the other defendant through
emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])

38
was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was
issued:
Considering the motion for reconsideration filed by the defendants on
January 14, 1965 and after thoroughly examining the arguments therein
contained, the Court finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby
reconsidered by ordering the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record
on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for
Our resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY
UPHOLDING THE CLAIM OF DEFENDANTS THAT I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE
REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111,
RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW
FINAL OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF
THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and
IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST

DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS
GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION
BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendantappellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court
of First Instance of Quezon City. After due trial, he was acquitted on the ground that his
act was not criminal because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a copy of the decision of
acquittal, presumably because appellants do not dispute that such indeed was the basis
stated in the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son,
the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues presented for
Our resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the
criminal case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty.
Hill, notwithstanding the undisputed fact that at the time of the occurrence complained of.
Reginald, though a minor, living with and getting subsistenee from his father, was already
legally married?
The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a source of
obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil.
607. In that case, this Court postulated, on the basis of a scholarly dissertation by Justice
Bocobo on the nature of culpa aquiliana in relation to culpa criminal or delito and mere
culpa or fault, with pertinent citation of decisions of the Supreme Court of Spain, the
works of recognized civilians, and earlier jurisprudence of our own, that the same given
act can result in civil liability not only under the Penal Code but also under the Civil Code.
Thus, the opinion holds:
The, above case is pertinent because it shows that the same act
machinist. come under both the Penal Code and the Civil Code. In that
case, the action of the agent killeth unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was
held to be also a proper subject of a civil action under article 1902 of the

39
Civil Code. It is also to be noted that it was the employer and not the
employee who was being sued. (pp. 615-616, 73 Phil.). 1
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death
of the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject matter
either of a criminal action with its consequent civil liability arising from a
crime or of an entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in this jurisdiction,
the separate individuality of a cuasi-delito or culpa aquiliana, under the
Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he
could have been sued for this civil liability arising from his crime. (p. 617,
73 Phil.) 2
It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V. House
could have been criminally prosecuted for reckless or simple negligence
and not only punished but also made civilly liable because of his criminal
negligence, nevertheless this Court awarded damages in an independent
civil action for fault or negligence under article 1902 of the Civil Code. (p.
618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should
ordinarily be sufficient to dispose of this case. But inasmuch as we are
announcing doctrines that have been little understood, in the past, it
might not he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless
but also simple negligence. If we were to hold that articles 1902 to 1910
of the Civil Code refer only to fault or negligence not punished by law,
accordingly to the literal import of article 1093 of the Civil Code, the legal
institution of culpa aquiliana would have very little scope and application
in actual life. Death or injury to persons and damage to property- through
any degree of negligence - even the slightest - would have to be
Idemnified only through the principle of civil liability arising from a crime.
In such a state of affairs, what sphere would remain for cuasi-delito or
culpa aquiliana? We are loath to impute to the lawmaker any intention to
bring about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather

than the spirit that giveth life. We will not use the literal meaning of the
law to smother and render almost lifeless a principle of such ancient
origin and such full-grown development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles 1902 to 1910 of the
Spanish Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt
beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can
not be shown beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant can and should
be made responsible in a civil action under articles 1902 to 1910 of the
Civil Code. Otherwise. there would be many instances of unvindicated
civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of both the Penal
Code and the Civil Code on this subject, which has given rise to the
overlapping or concurrence of spheres already discussed, and for lack of
understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only
by virtue of the civil responsibility arising from a crime, forgetting that
there is another remedy, which is by invoking articles 1902-1910 of the
Civil Code. Although this habitual method is allowed by, our laws, it has
nevertheless rendered practically useless and nugatory the more
expeditious and effective remedy based on culpa aquiliana or culpa
extra-contractual. In the present case, we are asked to help perpetuate
this usual course. But we believe it is high time we pointed out to the
harms done by such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the Civil Code to its
full rigor. It is high time we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its waters may no
longer be diverted into that of a crime under the Penal Code. This will, it
is believed, make for the better safeguarding or private rights because it
realtor, an ancient and additional remedy, and for the further reason that
an independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party
wronged or his counsel, is more likely to secure adequate and efficacious
redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing
excerpts from the opinion in Garcia that the concurrence of the Penal Code and the Civil

40
Code therein referred to contemplate only acts of negligence and not intentional
voluntary acts - deeper reflection would reveal that the thrust of the pronouncements
therein is not so limited, but that in fact it actually extends to fault or culpa. This can be
seen in the reference made therein to the Sentence of the Supreme Court of Spain of
February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act.
Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervene shall be the subject of Chapter II,
Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an
ultimo construction or interpretation of the letter of the law that "killeth, rather than the
spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the law
to smother and render almost lifeless a principle of such ancient origin and such fullgrown development as culpa aquiliana or quasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice
Bacobo was Chairman of the Code Commission that drafted the original text of the new
Civil Code, it is to be noted that the said Code, which was enacted after the Garcia
doctrine, no longer uses the term, 11 not punishable by law," thereby making it clear that
the concept of culpa aquiliana includes acts which are criminal in character or in violation
of the penal law, whether voluntary or matter. Thus, the corresponding provisions to said
Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived
from quasi-delicto shall be governed by the provisions of Chapter 2, Title XVII of this
Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article
2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177) through at
first sight startling, is not so novel or extraordinary when we consider the exact nature of
criminal and civil negligence. The former is a violation of the criminal law, while the latter
is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal negligence. Such distinction between
criminal negligence and "culpa extracontractual" or "cuasi-delito" has been sustained by
decision of the Supreme Court of Spain and maintained as clear, sound and perfectly
tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article
2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt
or not, shall not be a bar to a subsequent civil action, not for civil liability arising from
criminal negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said
article forestalls a double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence,
the same argument of Justice Bacobo about construction that upholds "the spirit that
giveth lift- rather than that which is literal that killeth the intent of the lawmaker should be
observed in applying the same. And considering that the preliminary chapter on human
relations of the new Civil Code definitely establishes the separability and independence
of liability in a civil action for acts criminal in character (under Articles 29 to 32) from the
civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code, and,
in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also
the same separability, it is "more congruent with the spirit of law, equity and justice, and
more in harmony with modern progress"- to borrow the felicitous relevant language in
Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article
2176, where it refers to "fault or negligencia covers not only acts "not punishable by law"
but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether
or not he is criminally prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability
for the same act considered as a quasi-delict only and not as a crime is not estinguished
even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused. Briefly stated, We here hold, in
reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which
may be punishable by law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
action against him.
Coming now to the second issue about the effect of Reginald's emancipation by
marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered
opinion that the conclusion of appellees that Atty. Hill is already free from responsibility
cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the child
(Article 327, Civil Code), and under Article 397, emancipation takes place "by the
marriage of the minor (child)", it is, however, also clear that pursuant to Article 399,
emancipation by marriage of the minor is not really full or absolute. Thus "(E)mancipation
by marriage or by voluntary concession shall terminate parental authority over the child's
person. It shall enable the minor to administer his property as though he were of age, but
he cannot borrow money or alienate or encumber real property without the consent of his

41
father or mother, or guardian. He can sue and be sued in court only with the assistance
of his father, mother or guardian."

March 31, 1915

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

JUAN BAHIA, plaintiff-appellant,

vs.
FAUSTA LITONJUA, defendant-appellee. and MARIANO LEYNES, defendantappellant.

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

This is an appeal by the defendant Leynes from a judgment of the Court of First Instance
of Manila against him for the sum of P1,000, with costs; and by the plaintiff from Fausta
Litonjua.

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald
is now of age, as a matter of equity, the liability of Atty. Hill has become milling,
subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to
proceed in accordance with the foregoing opinion. Costs against appellees.
Fernando (Chairman), Antonio, and Martin, JJ., concur.
Concepcion Jr., J, is on leave.

G.R. No. L-9734

Felipe Agoncillo for appellant Bahia. Ramon Diokno for appellee Litonjua. Silvestre
Apacible for appellant Leynes.
MORELAND, J.:

This is an action to recover damages from the defendants for the death of plaintiff's
daughter alleged to have been caused by the negligence of defendant's servant in
driving an automobile over the child and causing her death.
It appears from the evidence that one Ramon Ramirez was the owner and manager of a
garage in the city of Manila known as the International Garage. His mother, the
defendant Fausta Litonjua, sometime before the accident from which this action springs,
purchased an automobile and turned it over to the garage to assist her son in the
business in which he was engaged. On the 14th of May, 1911, Ramirez rented the
automobile so purchased and donated by his mother to the defendant Mariano Leynes,
together with a chauffeur and a machinist, to be used by him for a short time between
Balayan and Tuy, Province of Batangas, to carry persons living in Balayan to and from
the fiesta which was about to take place in Tuy. According to the arrangement between
them, Ramires was to furnish the automobile, chauffeur, and machinist, and the
defendant Leynes was to pay him therefor P20 a day.
On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by reason
of a defect in the steering gear, refused to obey the direction of the driver in turning a
corner in the streets of Balayan, and, as a consequence, ran across the street and into
the wall of a house against which the daughter of plaintiff was leaning at the time. The
font of the machine struck the child in the center of the body and crushed her to death.

Martin, J, was designated to sit in the Second Division.

The action was brought against the mother of Ramirez, who bought the automobile, and
Leynes, under whose direction and control the automobile was being operated at the

42
time of the accident. Ramirez was not made a party. The plaintiff and the defendant
Leynes appealed from the judgment, the former on the ground that the court erred in
dismissing the action as to the mother of Ramirez and the latter from that portion of the
judgment requiring him to pay to plaintiff P1,000.
We are of the opinion that the action was properly dismissed as to Fuasta Litonjua. It is a
fact proved in the action and undisputed that, although the mother purchased the
automobile, she turned it over to the garage of her son for use therein. The
establishment belonged to the son, Ramon Ramirez, and he had the full management
and control of it and received all the profits therefrom. So far as appears, the contract
with Leynes was made without her knowledge or consent by Ramirez as the owner and
manager of the International Garage. While she may have been in one sense the owner
of the machine, that fact does not, under the other facts of the case, make her
responsible for the results of the accident.
We are of the opinion that the judgment against Leynes must be reversed and the
complaint dismissed as to him. While it may be said that, at the time of the accident, the
chauffeur who was driving the machine was a servant of Leynes, in as much as the
profits derived from the trips of the automobile belonged to him and the automobile was
operated under his direction, nevertheless, this fact is not conclusive in making him
responsible for the negligence of the chauffeur or for defects in the automobile itself.
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but
also provides when that liability shall cease. It says:
The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of a law that
there was negligence on the part of the master or employer either in the selection of the
servant or employee, or in supervision over him after the selection, or both; and (2) that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employees shows to the satisfaction of the court that in
selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and
not on that of his servant. This is the notable peculiarly of the Spanish law negligence. It
is, of course, in striking contrast to the American doctrine that, in relations with strangers,
the negligence of the servant is conclusively the negligence of the master.

In the case before us the death of the child caused by a defect in the steering gear of the
automobile immediately raised the presumption that Leynes was negligent in selecting a
defective automobile or in his failure to maintain it in good condition after selection, and
the burden of proof was on him to show that he had exercised the care of a good father
of a family. As to selection, the defendant has clearly shown that he exercised the care
and diligence of a good father of a family. He obtained the machine from a reputable
garage and it was, so far as appeared, in good condition. The workmen were likewise
selected from a standard garage, were duly licensed by the Government in their
particular calling, and apparently thoroughly competent. The machine had been used but
a few hours when the accident occurred and it is clear from the evidence that the
defendant had no notice, either actual or constructive, of the defective condition of the
steering gear. From the commencement of the use of the machine until the accident
occurred sufficient time had not elapsed to require an examination of the machine by the
defendant as a part of his duty of inspection and supervision. While it does not appear
that the defendant formulated rules and regulations for the guidance of the drivers and
gave them proper instructions, designed for the protection of the public and the
passengers, the evidence shows, as we have seen, that the death of the child was not
caused by a failure to promulgate rules and regulations. It was caused by a defect in the
machine as to which the defendant has shown himself free from responsibility.
The defendant Leynes having shown to the satisfaction of the court that he exercised the
care and diligence of a good father of a family is relieved of responsibility with respect to
the death of plaintiff's child.
The judgment, in so far as it dismisses the complaint against Fausta Litonjua, is affirmed
with costs, and, in so far as to finds against Mariano Leynes, is reversed and the
complaint as to his dismissed, without special finding as to costs in this instance. So
ordered.
Arellano, C.J., Torres, Johnson, Carson and Araullo, JJ., concur. Trent, J., concurs in the
result.

43

G.R. No. 85044 June 3, 1992

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,
vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20,
Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

FELICIANO, J.:
On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer
Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a civil
complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos
Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's
adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural
parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural
parents with whom he was living at the time of the tragic incident. In addition to this case
for damages, a criminal information or Homicide through Reckless Imprudence was filed
[Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however, was
acquitted and exempted from criminal liability on the ground that he bad acted without
discernment.
Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura
had filed a petition to adopt the minor Adelberto Bundoc in Special Proceedings No.
0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption
was grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the
result of the foregoing petition for adoption, claimed that not they, but rather the adopting
parents, namely the spouses Sabas and Felisa Rapisura, were indispensable parties to
the action since parental authority had shifted to the adopting parents from the moment
the successful petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto Bundoc was then actually living
with his natural parents, parental authority had not ceased nor been relinquished by the
mere filing and granting of a petition for adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that
respondent natural parents of Adelberto indeed were not indispensable parties to the
action.
Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the
15-day reglementary period, or on 14 December 1987, petitioners filed a motion for
reconsideration followed by a supplemental motion for reconsideration on 15 January
1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of
Rule 15 of the Revised Rules of Court that notice of the motion shall be given to all
parties concerned at least three (3) days before the hearing of said motion; and that said
notice shall state the time and place of hearing both motions were denied by the trial
court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of
appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this
time ruling that the notice had been filed beyond the 15-day reglementary period ending
22 December 1987.
Petitioners went to the Court of Appeals on a petition for mandamus and certiorari
questioning the trial court's Decision dated 3 December 1987 and the Orders dated 18
April 1988 and 6 June 1988, The Court of Appeals dismissed the petition, ruling that
petitioners had lost their right to appeal.
In the present Petition for Review, petitioners once again contend that respondent
spouses Bundoc are the indispensable parties to the action for damages caused by the
acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges on the
following issues: (1) whether or not petitioners, notwithstanding loss of their right to
appeal, may still file the instant Petition; conversely, whether the Court may still take
cognizance of the case even through petitioners' appeal had been filed out of time; and
(2) whether or not the effects of adoption, insofar as parental authority is concerned may
be given retroactive effect so as to make the adopting parents the indispensable parties
in a damage case filed against their adopted child, for acts committed by the latter, when
actual custody was yet lodged with the biological parents.
1. It will be recalled that, petitioners' motion (and supplemental motion) for
reconsideration filed before the trial court, not having complied with the requirements of
Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were
considered pro forma and hence did not interrupt and suspend the reglementary period
to appeal: the trial court held that the motions, not having contained a notice of time and
place of hearing, had become useless pieces of paper which did not interrupt the
reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the
service of the motion on the opposing counsel indicating the time and place of hearing. 2

44
In view, however, of the nature of the issue raised in the instant. Petition, and in order
that substantial justice may be served, the Court, invoking its right to suspend the
application of technical rules to prevent manifest injustice, elects to treat the notice of
appeal as having been seasonably filed before the trial court, and the motion (and
supplemental motion) for reconsideration filed by petitioner in the trial court as having
interrupted the reglementary period for appeal. As the Court held in Gregorio v. Court of
Appeals: 3
Dismissal of appeal; purely on technical grounds is frowned upon where
the policy of the courts is to encourage hearings of appeal on their merits.
The rules of procedure ought not be applied in a very rigid technical
sense, rules of procedure are used only to help secure not override,
substantial justice. if d technical and rigid enforcement of the rules is
made their aim would be defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo
with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176
of the Civil Code provides:
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 . . .
Upon the other hand, the law imposes civil liability upon the father and, in case of his
death or incapacity, the mother, for any damages that may be caused by a minor child
who lives with them. Article 2180 of the Civil Code reads:
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, the mother, 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 person
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage. (Emphasis supplied)

This principle of parental liability is a species of what is frequently designated as

vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law,
where a person is not only liable for torts committed by himself, but also for torts
committed by others with whom he has a certain relationship and for whom he is
responsible. Thus, parental liability is made a natural or logical consequence of the
duties and responsibilities of parents their parental authority which includes the
instructing, controlling and disciplining of the child. 5 The basis for the doctrine of
vicarious liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the
following terms:
With respect to extra-contractual obligation arising from negligence,
whether of act or omission, it is competent for the legislature to elect
and our Legislature has so elected to limit such liability to cases in
which the person upon whom such an obligation is imposed is morally
culpable or, on the contrary, for reasons of public policy. to extend that
liability, without regard to the lack of moral culpability, so as to include
responsibility for the negligence of those persons whose acts or
omissions are imputable, by a legal fiction, to others who are in a position
to exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability
with certain well-defined exceptions to cases in which moral culpability
can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in one's
own acts, or in having failed to exercise due care in the selection and
control of one's agent or servants, or in the control of persons who, by
reasons of their status, occupy a position of dependency with respect to
the person made liable for their conduct. 7 (Emphasis Supplied)
The civil liability imposed upon parents for the torts of their minor children living
with them, may be seen to be based upon the parental authority vested by the
Civil Code upon such parents. The civil law assumes that when an
unemancipated child living with its parents commits a tortious acts, the parents
were negligent in the performance of their legal and natural duty closely to
supervise the child who is in their custody and control. Parental liability is, in
other words, anchored upon parental authority coupled with presumed parental
dereliction in the discharge of the duties accompanying such authority. The
parental dereliction is, of course, only presumed and the presumption can be
overtuned under Article 2180 of the Civil Code by proof that the parents had
exercised all the diligence of a good father of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when
parental authority was still lodged in respondent Bundoc spouses, the natural parents of

45
the minor Adelberto. It would thus follow that the natural parents who had then actual
custody of the minor Adelberto, are the indispensable parties to the suit for damages.
The natural parents of Adelberto, however, stoutly maintain that because a decree of
adoption was issued by the adoption court in favor of the Rapisura spouses, parental
authority was vested in the latter as adopting parents as of the time of the filing of the
petition for adoption that is, before Adelberto had shot Jennifer which an air rifle. The
Bundoc spouses contend that they were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8
which reads as follows:
Art. 36. Decree of Adoption. If, after considering the report of the
Department of Social Welfare or duly licensed child placement agency
and the evidence submitted before it, the court is satisfied that the
petitioner is qualified to maintain, care for, and educate the child, that the
trial custody period has been completed, and that the best interests of the
child will be promoted by the adoption, a decree of adoption shall be
entered, which shall be effective he date the original petition was filed.
The decree shall state the name by which the child is thenceforth to be
known. (Emphasis supplied)
The Bundoc spouses further argue that the above Article 36 should be read in
relation to Article 39 of the same Code:
Art. 39. Effect of Adoption. The adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the natural parents, except where the
adopter is the spouse of the surviving natural parent;
xxx xxx xxx
(Emphasis supplied)
and urge that their Parental authority must be deemed to have been dissolved as of the
time the Petition for adoption was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental
liability for the torts of a minor child is the relationship existing between the parents and
the minor child living with them and over whom, the law presumes, the parents exercise
supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this
rule:
Article 58 Torts Parents and guardians are responsible for the damage
caused by the child under their parental authority in accordance with the
civil Code. (Emphasis supplied)
Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the
requisite that the child, doer of the tortious act, shall have beer in the actual custody of
the parents sought to be held liable for the ensuing damage:
Art. 221. Parents and other persons exercising parental authority shall be
civilly liable for the injuries and damages caused by the acts or omissions
of their unemancipated children living in their company and under their
parental authority subject to the appropriate defenses provided by law.
(Emphasis supplied)
We do not believe that parental authority is properly regarded as having been
retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do not consider that retroactive effect may
be giver to the decree of adoption so as to impose a liability upon the adopting parents
accruing at a time when adopting parents had no actual or physically custody over the
adopted child. Retroactive affect may perhaps be given to the granting of the petition for
adoption where such is essential to permit the accrual of some benefit or advantage in
favor of the adopted child. In the instant case, however, to hold that parental authority
had been retroactively lodged in the Rapisura spouses so as to burden them with liability
for a tortious act that they could not have foreseen and which they could not have
prevented (since they were at the time in the United States and had no physical custody
over the child Adelberto) would be unfair and unconscionable. Such a result, moreover,
would be inconsistent with the philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no presumption of parental dereliction on the part
of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was
not in fact subject to their control at the time the tort was committed.
Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above.
Article 35 provides as follows:
Art. 35. Trial Custody. No petition for adoption shall be finally granted
unless and until the adopting parents are given by the courts a

46
supervised trial custody period of at least six months to assess their
adjustment and emotional readiness for the legal union. During the
period of trial custody, parental authority shall be vested in the adopting
parents. (Emphasis supplied)
Under the above Article 35, parental authority is provisionally vested in the adopting
parents during the period of trial custody, i.e., before the issuance of a decree of
adoption, precisely because the adopting parents are given actual custody of the child
during such trial period. In the instant case, the trial custody period either had not yet
begun or bad already been completed at the time of the air rifle shooting; in any case,
actual custody of Adelberto was then with his natural parents, not the adopting parents.
Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents,
were indispensable parties to the suit for damages brought by petitioners, and that the
dismissal by the trial court of petitioners' complaint, the indispensable parties being
already before the court, constituted grave abuse of discretion amounting to lack or
excess of jurisdiction.
WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE
COURSE and the Decision of the Court of Appeals dated 6 September 1988, in C.A.G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed
before the trial court is hereby REINSTATED and this case is REMANDED to that court
for further proceedings consistent with this Decision. Costs against respondent Bundoc
spouses. This Decision is immediately executory.

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE
APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.
Alex Y. Tan, for Petitioners.
Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SO ORDERED.
SYLLABUS
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, concur.
1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING
FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE.
The parents are and should be held primarily liable for the civil liability arising from
criminal offenses committed by their minor children under their legal authority or control,
or who live in their company, unless it is proven that the former acted with the diligence
of a good father of a family to prevent such damages. That primary liability is premised
on the provisions of Article 101 of the Revised Penal Code with respect to damages ex
delicto caused by their children 9 years of age or under, or over 9 but under 15 years of
age who acted without discernment; and, with regard to their children over 9 but under
15 years of age who acted with discernment, or 15 years or over but under 21 years of
age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.
Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the Child

47
and Youth Welfare Code which provides that the same shall devolve upon the father and,
in case of his death or incapacity, upon the mother or, in case of her death or incapacity,
upon the guardian, but the liability may also be voluntarily assumed by a relative or
family friend of the youthful offender. However, under the Family Code, this civil liability is
now, without such alternative qualification, the responsibility of the parents and those
who exercise parental authority over the minor offender. For civil liability arising from
quasi-delicts committed by minors, the same rules shall apply in accordance with Articles
2180 and 2182 of the Civil Code, as so modified.
DECISION

which took place and from which she died on January 14, 1979, was an 18-year old first
year commerce student of the University of San Carlos, Cebu City; while petitioners are
the parents of Wendell Libi, then a minor between 18 and 19 years of age living with his
aforesaid parents, and who also died in the same event on the same date.
For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi
were sweethearts until December, 1978 when Julie Ann broke up her relationship with
Wendell after she supposedly found him to be sadistic and irresponsible. During the first
and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for
reconciliation but the latter persisted in her refusal, prompting the former to resort to
threats against her. In order to avoid him, Julie Ann stayed in the house of her best
friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmea Streets, Cebu
City, from January 7 to 13, 1978.

REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow is sometimes a
touchstone of love. A tragic illustration is provided by the instant case, wherein two lovers
died while still in the prime of their years, a bitter episode for those whose lives they have
touched. While we cannot expect to award complete assuagement to their families
through seemingly prosaic legal verbiage, this disposition should at least terminate the
acrimony and rancor of an extended judicial contest resulting from the unfortunate
occurrence.
In this final denouement of the judicial recourse the stages whereof were alternately
initiated by the parties, petitioners are now before us seeking the reversal of the
judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No. 69060
with the following decretal portion:jgc:chanrobles.com.ph
"WHEREFORE, the decision of the lower court dismissing plaintiffs complaint is hereby
reversed; and instead, judgment is hereby rendered sentencing defendants, jointly and
solidarily, to pay to plaintiffs the following amounts:chanrobles.com : virtual law library

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound
inflicted with the same firearm, a Smith and Wesson revolver licensed in the name of
petitioner Cresencio Libi, which was recovered from the scene of the crime inside the
residence of private respondents at the corner of General Maxilom and D. Jakosalem
streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the
death of both minors, their parents, who are the contending parties herein, posited their
respective theories drawn from their interpretation of circumstantial evidence, available
reports, documents and evidence of physical facts.
Private respondents, bereaved over the death of their daughter, submitted that Wendell
caused her death by shooting her with the aforesaid firearm and, thereafter, turning the
gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise
distressed over the death of their son, rejected the imputation and contended that an
unknown third party, whom Wendell may have displeased or antagonized by reason of
his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must
have caused Wendells death and then shot Julie Ann to eliminate any witness and
thereby avoid identification.chanrobles.com:cralaw:red

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;
3. Attorneys fees, P20,000.00, and costs.

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the
then Court of First Instance of Cebu against the parents of Wendell to recover damages
arising from the latters vicarious liability under Article 2180 of the Civil Code. After trial,
the court below rendered judgment on October 20, 1980 as
follows:jgc:chanrobles.com.ph

However, denial of defendants-appellees counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses
are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable incident

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing

plaintiffs complaint for insufficiency of the evidence. Defendants counterclaim is likewise

48
denied for lack of sufficient merit." 2
On appeal to respondent court, said judgment of the lower court dismissing the complaint
of therein plaintiffs-appellants was set aside and another judgment was rendered against
defendants-appellees who, as petitioners in the present appeal by certiorari, now submit
for resolution the following issues in this case:chanrob1es virtual 1aw library
1. Whether or not respondent court correctly reversed the trial court in accordance with
established decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent
court to make petitioners liable for vicarious liability. 3

He further testified that the muzzle of the gun was not pressed on the head of the victim
and that he found no burning or singeing of the hair or extensive laceration on the
gunshot wound of entrance which are general characteristics of contact or near-contact
fire. On direct examination, Dr. Cerna nonetheless made these
clarification:jgc:chanrobles.com.ph
"Q Is it not a fact that there are certain guns which are so made that there would be no
black residue or tattooing that could result from these guns because they are what we
call clean?
A Yes, sir. I know that there are what we call smokeless powder.

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer
of Cebu, submitted his findings and opinions on some postulates for determining whether
or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act. However,
undue emphasis was placed by the lower court on the absence of gunpowder or
tattooing around the wound at the point of entry of the bullet. It should be emphasized,
however, that this is not the only circumstance to be taken into account in the
determination of whether it was suicide or not.

ATTY. ORTIZ:chanrob1es virtual 1aw library

It is true that said witness declared that he found no evidence of contact or close-contact
of an explosive discharge in the entrance wound. However, as pointed out by private
respondents, the body of deceased Wendell Libi must have been washed at the funeral
parlor, considering the hasty interment thereof a little after eight (8) hours from the
occurrence wherein he died. Dr. Cerna himself could not categorically state that the body
of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his
autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin
test on Wendell Libi, hence possible evidence of gunpowder residue on Wendells hands
was forever lost when Wendell was hastily buried.cralawnad

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed,
the singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in
your own sketch, is it not a fact that the gun could have been fired by the person himself,
the victim himself, Wendell Libi, because it shows a point of entry a little above the right
ear and point of exit a little above that, to be very fair and on your oath?

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of
Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours and
twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy
table and in the stage of rigor mortis; and that said body was not washed, but it was
dried. 4 However, on redirect examination, he admitted that during the 8-hour interval, he
never saw the body nor did he see whether said body was wiped or washed in the area
of the wound on the head which he examined because the deceased was inside the
morgue. 5 In fact, on cross-examination, he had earlier admitted that as far as the
entrance of the wound, the trajectory of the bullet and the exit of the wound are
concerned, it is possible that Wendell Libi shot himself. 6

As shown by the evidence, there were only two used bullets 8 found at the scene of the
crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi,
respectively. Also, the sketch prepared by the Medico-Legal Division of the National
Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance
located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna
states:chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications
that you said may not rule out the possibility that the gun was closer than 24 inches, is
that correct?
A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

A As far as the point of entrance is concerned and as far as the trajectory of the bullet is
concerned and as far as the angle or the manner of fire is concerned, it could have been
fired by the victim." 7

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest

49
inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal
region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus,
directed slightly forward, upward and to the left, involving skin and soft tissues, making a
punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating
extensively along its course the brain tissues, fracturing parietal bone, left, and finally
making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left,
2.0 cms. behind and 12.9 cms. above left external auditory meatus.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of
entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or
bursting of the gunshot wound of entrance, or separation of the skin from the underlying
tissue, are absent." 10

directly the gate of the Gotiongs and, that there is a firewall between her apartment and
the gas station. 12 After seeing a man jump from the gate of the Gotiongs to the rooftop
of the Tans, she called the police station but the telephone lines were busy. Later on, she
talked with James Enrique Tan and told him that she saw a man leap from the gate
towards his rooftop. 13
However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the
Gotiongs, but denied having talked with anyone regarding what he saw. He explained
that he lives in a duplex house with a garden in front of it; that his house is next to Felipe
Gotiongs house; and he further gave the following answers to these
questions:chanrobles.com : virtual law library
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiongs in relation to your house?
WITNESS:chanrob1es virtual 1aw library

On cross-examination, Dr. Cerna demonstrated his theory which was made of record,
thus:jgc:chanrobles.com.ph
"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the
wound, the trajectory of the bullet and the exit of the wound, and measuring yourself 24
inches, will you please indicate to the Honorable Court how would it have been possible
for Wendell Libi to kill himself? Will you please indicate the 24 inches?

A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:chanrob1es virtual 1aw library

WITNESS:chanrob1es virtual 1aw library

A From upstairs in my living room.
A Actually, sir, the 24 inches is approximately one arms length.
ATTY. ORTIZ (TO WITNESS)
ATTY. SENINING:chanrob1es virtual 1aw library
Q From Your living room window, is that correct?
I would like to make of record that the witness has demonstrated by extending his right
arm almost straight towards his head." 11
Private respondents assail the fact that the trial court gave credence to the testimonies of
defendants witnesses Lydia Ang and James Enrique Tan, the first being a resident of an
apartment across the street from the Gotiongs and the second, a resident of the house
adjacent to the Gotiong residence, who declared having seen a "shadow" of a person at
the gate of the Gotiong house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where she was staying
faces the gas station; that it is the second apartment; that from her window she can see

WITNESS:chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14
Analyzing the foregoing testimonies, we agree with respondent court that the same do
not inspire credence as to the reliability and accuracy of the witnesses observations,
since the visual perceptions of both were obstructed by high walls in their respective
houses in relation to the house of herein private respondents. On the other hand, witness
Manolo Alfonso, testifying on rebuttal, attested without contradiction that he and his
sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her scream;

50
that when Manolo climbed the fence to see what was going on inside the Gotiong house,
he heard the first shot; and, not more than five (5) seconds later, he heard another shot.
Consequently, he went down from the fence and drove to the police station to report the
incident. 15 Manolos direct and candid testimony establishes and explains the fact that it
was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the
gate of the Gotiong house.
We have perforce to reject petitioners effete and unsubstantiated pretension that it was
another man who shot Wendell and Julie Ann. It is significant that the Libi family did not
even point to or present any suspect in the crime nor did they file any case against any
alleged "John Doe." Nor can we sustain the trial courts dubious theory that Wendell Libi
did not die by his own hand because of the overwhelming evidence testimonial,
documentary and pictorial the confluence of which point to Wendell as the assailant of
Julie Ann, his motive being revenge for her rejection of his persistent pleas for a
reconciliation.chanrobles.com:cralaw:red
Petitioners defense that they had exercised the due diligence of a good father of a
family, hence they should not be civilly liable for the crime committed by their minor son,
is not borne out by the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi,
owns a gun which he kept in a safety deposit box inside a drawer in their bedroom. Each
of these petitioners holds a key to the safety deposit box and Amelitas key is always in
her bag, all of which facts were known to Wendell. They have never seen their son
Wendell taking or using the gun. She admitted, however, that on that fateful night the gun
was no longer in the safety deposit box. 16 We, accordingly, cannot but entertain serious
doubts that petitioner spouses had really been exercising the diligence of a good father
of a family by safely locking the fatal gun away. Wendell could not have gotten hold
thereof unless one of the keys to the safety deposit box was negligently left lying around
or he had free access to the bag of his mother where the other key was.
The diligence of a good father of a family required by law in a parent and child
relationship consists, to a large extent, of the instruction and supervision of the child.
Petitioners were gravely remiss in their duties as parents in not diligently supervising the
activities of their son, despite his minority and immaturity, so much so that it was only at
the time of Wendells death that they allegedly discovered that he was a CANU agent
and that Cresencios gun was missing from the safety deposit box. Both parents were
sadly wanting in their duty and responsibility in monitoring and knowing the activities of
their children who, for all they know, may be engaged in dangerous work such as being
drug informers, 17 or even drug users. Neither was a plausible explanation given for the
photograph of Wendell, with a handwritten dedication to Julie Ann at the back thereof, 18
holding upright what clearly appears as a revolver and on how or why he was in

possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as
explained at the start of this opinion, respondent court waved aside the protestations of
diligence on the part of petitioners and had this to say:jgc:chanrobles.com.ph
". . . It is still the duty of parents to know the activity of their children who may be
engaged in this dangerous activity involving the menace of drugs. Had the defendantsappellees been diligent in supervising the activities of their son, Wendell, and in keeping
said gun from his reach, they could have prevented Wendell from killing Julie Ann
Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which
provides:chanrob1es virtual 1aw library
The father, and in case of his death or incapacity, the mother, are responsible for the
damages caused by their minor children who live in their company.
"Having been grossly negligent in preventing Wendell Libi from having access to said
gun which was allegedly kept in a safety deposit box, defendants-appellees are
subsidiarily liable for the natural consequence of the criminal act of said minor who was
living in their company. This vicarious liability of herein defendants-appellees has been
reiterated by the Supreme Court in many cases, prominent of which is the case of
Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held
that:chanrob1es virtual 1aw library
The subsidiary liability of parents for damages caused by their minor children imposed
by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts
and criminal offenses.
The subsidiary liability of parents arising from the criminal acts of their minor children
who acted with discernment is determined under the provisions of Article 2180, N.C.C.
and under Article 101 of the Revised Penal Code, because to hold that the former only
covers obligations which arise from quasi-delicts and not obligations which arise from
criminal offenses, would result in the absurdity that while for an act where mere
negligence intervenes the father or mother may stand subsidiarily liable for the damages
caused by his or her son, no liability would attach if the damage is caused with criminal
intent. (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi
somehow got hold of the key to the drawer where said gun was kept under lock without
defendant-spouses ever knowing that said gun had been missing from that safety box
since 1978 when Wendell Libi had) a picture taken wherein he proudly displayed said
gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then,

51
Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed
role of a CANU agent . . ." chanrobles lawlibrary : rednad
x

"Based on the foregoing discussions of the assigned errors, this Court holds that the
lower court was not correct in dismissing herein plaintiffs-appellants complaint because
as preponderantly shown by evidence, defendants-appellees utterly failed to exercise all
the diligence of a good father of the family in preventing their minor son from committing
this crime by means of the gun of defendants-appellees which was freely accessible to
Wendell Libi for they have not regularly checked whether said gun was still under lock,
but learned that it was missing from the safety deposit box only after the crime had been
committed." (Emphases ours.) 19

apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the
persons responsible for the act or omission, in this case the minor and the father and, in
case of his death of incapacity, the mother, are solidarily liable. Accordingly, such
parental liability is primary and not subsidiary, hence the last paragraph of Article 2180
provides that" (t)he 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 damages."cralaw virtua1aw library
We are also persuaded that the liability of the parents for felonies committed by their
minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal Code
provides:jgc:chanrobles.com.ph
"ARTICLE 101. Rules regarding civil liability in certain cases.
x

We agree with the conclusion of respondent court that petitioners should be held liable
for the civil liability based on what appears from all indications was a crime committed by
their minor son. We take this opportunity, however, to digress and discuss its
ratiocination therefor on jurisprudential dicta which we feel require clarification.
In imposing sanctions for the so-called vicarious liability of petitioners, respondent court
cites Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability
of parents for damages caused by their minor children imposed by Article 2180 of the
New Civil Code covers obligations arising from both quasi-delicts and criminal offenses,"
followed by an extended quotation ostensibly from the same case explaining why under
Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should
assume subsidiary liability for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent underscoring for purposes of
the discussion hereunder.chanrobles law library
Now, we do not have any objection to the doctrinal rule holding, the parents liable, but
the categorization of their liability as being subsidiary, and not primary, in nature requires
a hard second look considering previous decisions of this court on the matter which
warrant comparative analyses. Our concern stems from our readings that if the liability of
the parents for crimes or quasi-delicts of their minor children is subsidiary, then the
parents can neither invoke nor be absolved of civil liability on the defense that they acted
with the diligence of a good father of a family to prevent damages. On the other hand, if
such liability imputed to the parents is considered direct and primary, that diligence would
constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed by . . . a person under nine years of age, or by one over nine but under fifteen
years of age, who has acted without discernment, shall devolve upon those having such
person under their legal authority or control, unless it appears that there was no fault or
negligence on their part." (Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by their minor children is
likewise direct and primary, and also subject to the defense of lack of fault or negligence
on their part, that is, the exercise of the diligence of a good father of a family.
That in both quasi-delicts and crimes the parents primarily respond for such damages is
buttressed by the corresponding provisions in both codes that the minor transgressor
shall be answerable or shall respond with his own property only in the absence or in case
of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182
of the Civil Code states that" (i)f the minor causing damage has no parents or guardian,
the minor . . . shall be answerable with his own property in an action against him where a
guardian ad litem shall be appointed." For civil liability ex delicto of minors, an equivalent
provision is found in the third paragraph of Article 101 of the Revised Penal Code, to
wit:jgc:chanrobles.com.ph
"Should there be no person having such . . . minor under his authority, legal guardianship
or control, or if such person be insolvent, said . . . minor shall respond with (his) own
property, excepting property exempt from execution, in accordance with civil law."cralaw
virtua1aw library

52
"is now of age, as a matter of equity" the father was only held subsidiarily liable.
The civil liability of parents for felonies committed by their minor children contemplated in
the aforesaid rule in Article 101 of the Revised Penal Code in relation to Article 2180 of
the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a
number of cases adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta v.
Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25 and
Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the
issue of the civil liability of parents for crimes committed by their minor children over 9
but under 15 years of age, who acted with discernment, and also of minors 15 years of
aye or over, since these situations are not covered by Article 101, Revised Penal Code.
In both instances, this Court held that the issue of parental civil liability should be
resolved in accordance with the provisions of Article 2180 of the Civil Code for the
reasons well expressed in Salen and adopted in the cases hereinbefore enumerated that
to hold that the civil liability under Article 2180 would apply only to quasi-delicts and not
to criminal offenses would result in the absurdity that in an act involving mere negligence
the parents would be liable but not where the damage is caused with criminal intent. In
said cases, however, there are unfortunate variances resulting in a regrettable
inconsistency in the Courts determination of whether the liability of the parents, in cases
involving either crimes or quasi-delicts of their minor children, is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through
reckless imprudence, in a separate civil action arising from the crime the minor and his
father were held jointly and severally liable for failure of the latter to prove the diligence of
a good father of a family. The same liability in solidum and, therefore, primary liability
was imposed in a separate civil action in Araneta on the parents and their 14-year old
son who was found guilty of frustrated homicide, but on the authority of Article 2194 of
the Civil Code providing for solidary responsibility of two or more persons who are liable
for a quasi-delict.
However, in Salen, the father was declared subsidiarily liable for damages arising from
the conviction of his son, who was over 15 but less than 18 years of age, by applying
Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present
case, as already explained, the petitioners herein were also held liable but supposedly in
line with Fuellas which purportedly declared the parents subsidiarily liable for the civil
liability for serious physical injuries committed by their 13-year old son. On the other
hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for
damages arising from his conviction for homicide by the application of Article 2180 of the
Civil Code since this is likewise not covered by Article 101 of the Revised Penal Code.
Finally, in Elcano, although the son was acquitted in a homicide charge due to "lack of
intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil Code
there should be solidary liability for damages, since the son, "although married, was
living with his father and getting subsistence from him at the time of the occurrence," but

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability
only for persons causing damages under the compulsion of irresistible force or under the
impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of
establishments; 28 employers, teachers, persons and corporations engaged in industry;
29 and principals, accomplices and accessories for the unpaid civil liability of their coaccused in the other classes. 30
Also, coming back to respondent courts reliance on Fuellas in its decision in the present
case, it is not exactly accurate to say that Fuellas provided for subsidiary liability of the
parents therein. A careful scrutiny shows that what respondent court quoted verbatim in
its decision now on appeal in the present case, and which it attributed to Fuellas, was the
syllabus on the law report of said case which spoke of "subsidiary" liability. However,
such categorization does not specifically appear in the text of the decision in Fuellas. In
fact, after reviewing therein the cases of Exconde, Araneta and Salen and the
discussions in said cases of Article 101 of the Revised Penal Code in relation to Article
2180 of the Civil Code, this Court concluded its decision in this
wise:jgc:chanrobles.com.ph
"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence
submitted therein by both parties, independent of the criminal case. And responsibility for
fault or negligence under Article 2176 upon which the present action was instituted, is
entirely separate and distinct from the civil liability arising from fault or negligence under
the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore
stated, any discussion as to the minors criminal responsibility is of no moment."cralaw
virtua1aw library
Under the foregoing considerations, therefore, we hereby rule that the parents are and
should be held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control, or who live in their
company, unless it is proven that the former acted with the diligence of a good father of a
family to prevent such damages. That primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with respect to damages ex delicto caused by
their children 9 years of age or under, or over 9 but under 15 years of age who acted
without discernment; and, with regard to their children over 9 but under 15 years of age
who acted with discernment, or 15 years or over but under 21 years of age, such primary
liability shall be imposed pursuant to Article 2180 of the Civil Code. 31
Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the Child
and Youth Welfare Code which provides that the same shall devolve upon the father and,

53
in case of his death or incapacity, upon the mother or, in case of her death or incapacity,
upon the guardian, but the liability may also be voluntarily assumed by a relative or
family friend of the youthful offender. 32 However, under the Family Code, this civil
liability is now, without such alternative qualification, the responsibility of the parents and
those who exercise parental authority over the minor offender. 33 For civil liability arising
from quasi-delicts committed by minors, the same rules shall apply in accordance with
Articles 2180 and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a
felony or a quasi-delict committed by Wendell Libi, respondent court did not err in holding
petitioners liable for damages arising therefrom. Subject to the preceding modifications of
the premises relied upon by it therefor and on the bases of the legal imperatives herein
explained, we conjoin in its findings that said petitioners failed to duly exercise the
requisite diligentissimi patris familias to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent
Court of Appeals is hereby AFFIRMED, with costs against petitioners.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Padilla, Bidin, Grio-Aquino, Medialdea, Romero,
Nocon and Bellosillo, Jr., JJ., concur.
Feliciano, J., is on leave.
Davide, Jr., J., took no part. I used to be counsel of one of the parties.
Melo and Campos, Jr., JJ., took no part.

B. OWNERS AND MANAGERS OF ESTABLISHMENTS

G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.

FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco,
was in the employment of Manila Railroad Company in the capacity of clerk, with a
monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal,
which is located upon the line of the defendant railroad company; and in coming daily by
train to the company's office in the city of Manila where he worked, he used a pass,
supplied by the company, which entitled him to ride upon the company's trains free of
charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his
seat in the second class-car where he was riding and, making, his exit through the door,
took his position upon the steps of the coach, seizing the upright guardrail with his right
hand for support.
On the side of the train where passengers alight at the San Mateo station there is a
cement platform which begins to rise with a moderate gradient some distance away from
the company's office and extends along in front of said office for a distance sufficient to
cover the length of several coaches. As the train slowed down another passenger,
named Emilio Zuiga, also an employee of the railroad company, got off the same car,
alighting safely at the point where the platform begins to rise from the level of the ground.
When the train had proceeded a little farther the plaintiff Jose Cangco stepped off also,
but one or both of his feet came in contact with a sack of watermelons with the result that
his feet slipped from under him and he fell violently on the platform. His body at once
rolled from the platform and was drawn under the moving car, where his right arm was
badly crushed and lacerated. It appears that after the plaintiff alighted from the train the
car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad
station was lighted dimly by a single light located some distance away, objects on the

54
platform where the accident occurred were difficult to discern especially to a person
emerging from a lighted car.

of the defendant company and the contributory negligence of the plaintiff should be
separately examined.

The explanation of the presence of a sack of melons on the platform where the plaintiff
alighted is found in the fact that it was the customary season for harvesting these melons
and a large lot had been brought to the station for the shipment to the market. They were
contained in numerous sacks which has been piled on the platform in a row one upon
another. The testimony shows that this row of sacks was so placed of melons and the
edge of platform; and it is clear that the fall of the plaintiff was due to the fact that his foot
alighted upon one of these melons at the moment he stepped upon the platform. His
statement that he failed to see these objects in the darkness is readily to be credited.

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

The plaintiff was drawn from under the car in an unconscious condition, and it appeared
that the injuries which he had received were very serious. He was therefore brought at
once to a certain hospital in the city of Manila where an examination was made and his
arm was amputated. The result of this operation was unsatisfactory, and the plaintiff was
then carried to another hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It appears in evidence that
the plaintiff expended the sum of P790.25 in the form of medical and surgical fees and
for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the
city of Manila to recover damages of the defendant company, founding his action upon
the negligence of the servants and employees of the defendant in placing the sacks of
melons upon the platform and leaving them so placed as to be a menace to the security
of passenger alighting from the company's trains. At the hearing in the Court of First
Instance, his Honor, the trial judge, found the facts substantially as above stated, and
drew therefrom his conclusion to the effect that, although negligence was attributable to
the defendant by reason of the fact that the sacks of melons were so placed as to
obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had
failed to use due caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the defendant company, and
the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of
negligence in piling these sacks on the platform in the manner above stated; that their
presence caused the plaintiff to fall as he alighted from the train; and that they therefore
constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily
follows that the defendant company is liable for the damage thereby occasioned unless
recovery is barred by the plaintiff's own contributory negligence. In resolving this problem
it is necessary that each of these conceptions of liability, to-wit, the primary responsibility

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil
Code, clearly points out this distinction, which was also recognized by this Court in its
decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the difference between "culpa,
substantive and independent, which of itself constitutes the source of an obligation
between persons not formerly connected by any legal tie" and culpa considered as an
accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the
proposition that article 1903 of the Civil Code is not applicable to acts of negligence
which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable
are understood to be those not growing out of pre-existing duties of the parties to
one another. But where relations already formed give rise to duties, whether
springing from contract or quasi-contract, then breaches of those duties are
subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic,
Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law,
is, in certain cases imposed upon employers with respect to damages occasioned by the
negligence of their employees to persons to whom they are not bound by contract, is not
based, as in the English Common Law, upon the principle of respondeat superior if it
were, the master would be liable in every case and unconditionally but upon the
principle announced in article 1902 of the Civil Code, which imposes upon all persons
who by their fault or negligence, do injury to another, the obligation of making good the

55
damage caused. One who places a powerful automobile in the hands of a servant whom
he knows to be ignorant of the method of managing such a vehicle, is himself guilty of an
act of negligence which makes him liable for all the consequences of his imprudence.
The obligation to make good the damage arises at the very instant that the unskillful
servant, while acting within the scope of his employment causes the injury. The liability of
the master is personal and direct. But, if the master has not been guilty of any negligence
whatever in the selection and direction of the servant, he is not liable for the acts of the
latter, whatever done within the scope of his employment or not, if the damage done by
the servant does not amount to a breach of the contract between the master and the
person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the
servant relieves the master from liability for the latter's acts on the contrary, that proof
shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the
liability arising from extra-contractual culpa is always based upon a voluntary act or
omission which, without willful intent, but by mere negligence or inattention, has caused
damage to another. A master who exercises all possible care in the selection of his
servant, taking into consideration the qualifications they should possess for the discharge
of the duties which it is his purpose to confide to them, and directs them with equal
diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment, such third person suffer damage.
True it is that under article 1903 of the Civil Code the law creates a presumption that he
has been negligent in the selection or direction of his servant, but the presumption is
rebuttable and yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the
Porto Rico Code, has held that these articles are applicable to cases of extra-contractual
culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia
vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the
theory of the extra-contractual liability of the defendant to respond for the damage
caused by the carelessness of his employee while acting within the scope of his
employment. The Court, after citing the last paragraph of article 1903 of the Civil Code,
said:
From this article two things are apparent: (1) That when an injury is caused by
the negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either in
selection of the servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and not juris et de

jure, and consequently, may be rebutted. It follows necessarily that if the

employer shows to the satisfaction of the court that in selection and supervision
he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant. This is the notable peculiarity of the
Spanish law of negligence. It is, of course, in striking contrast to the American
doctrine that, in relations with strangers, the negligence of the servant in
conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual
culpa based upon negligence, it is necessary that there shall have been some fault
attributable to the defendant personally, and that the last paragraph of article 1903
merely establishes a rebuttable presumption, is in complete accord with the authoritative
opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is
imposed by reason of the breach of the duties inherent in the special relations of
authority or superiority existing between the person called upon to repair the damage
and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or
omissions of their servants or agents, when such acts or omissions cause damages
which amount to the breach of a contact, is not based upon a mere presumption of the
master's negligence in their selection or control, and proof of exercise of the utmost
diligence and care in this regard does not relieve the master of his liability for the breach
of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extracontractual obligation has its source in the breach or omission of those mutual duties
which civilized society imposes upon it members, or which arise from these relations,
other than contractual, of certain members of society to others, generally embraced in
the concept of status. The legal rights of each member of society constitute the measure
of the corresponding legal duties, mainly negative in character, which the existence of
those rights imposes upon all other members of society. The breach of these general
duties whether due to willful intent or to mere inattention, if productive of injury, give rise
to an obligation to indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests upon the fact that
in cases of non-contractual obligation it is the wrongful or negligent act or omission itself
which creates the vinculum juris, whereas in contractual relations the vinculum exists
independently of the breach of the voluntary duty assumed by the parties when entering
into the contractual relation.

56
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect and our Legislature has so elected
whom such an obligation is imposed is morally culpable, or, on the contrary, for
reasons of public policy, to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence of those person who acts or
mission are imputable, by a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which adopted our Civil Code has
elected to limit extra-contractual liability with certain well-defined exceptions to
cases in which moral culpability can be directly imputed to the persons to be charged.
This moral responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with respect to the person made
liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render
service to another, is wholly different from that to which article 1903 relates. When the
sources of the obligation upon which plaintiff's cause of action depends is a negligent act
or omission, the burden of proof rests upon plaintiff to prove the negligence if he does
not his action fails. But when the facts averred show a contractual undertaking by
defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused to
perform the contract, it is not necessary for plaintiff to specify in his pleadings whether
the breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its nonperformance
is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing
creditor should assume the burden of proof of its existence, as the only fact upon
which his action is based; while on the contrary, in a case of negligence which
presupposes the existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to prove
negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that
the breach was due to the negligent conduct of defendant or of his servants, even though
such be in fact the actual cause of the breach, it is obvious that proof on the part of
defendant that the negligence or omission of his servants or agents caused the breach of
the contract would not constitute a defense to the action. If the negligence of servants or
agents could be invoked as a means of discharging the liability arising from contract, the
anomalous result would be that person acting through the medium of agents or servants
in the performance of their contracts, would be in a better position than those acting in
person. If one delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is unquestionably liable.

Would it be logical to free him from his liability for the breach of his contract, which
involves the duty to exercise due care in the preservation of the watch, if he shows that it
was his servant whose negligence caused the injury? If such a theory could be accepted,
juridical persons would enjoy practically complete immunity from damages arising from
the breach of their contracts if caused by negligent acts as such juridical persons can of
necessity only act through agents or servants, and it would no doubt be true in most
instances that reasonable care had been taken in selection and direction of such
servants. If one delivers securities to a banking corporation as collateral, and they are
lost by reason of the negligence of some clerk employed by the bank, would it be just
and reasonable to permit the bank to relieve itself of liability for the breach of its contract
to return the collateral upon the payment of the debt by proving that due care had been
exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa
contractual as a mere incident to the performance of a contract has frequently been
recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20,
1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared that
plaintiff's action arose ex contractu, but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault
or negligence, such as those to which article 1902 of the Civil Code relates, but
of damages caused by the defendant's failure to carry out the undertakings
imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for
damage done by the negligent acts of their servants will show that in no case has the
court ever decided that the negligence of the defendant's servants has been held to
constitute a defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a
carriage was not liable for the damages caused by the negligence of his driver. In that
case the court commented on the fact that no evidence had been adduced in the trial
court that the defendant had been negligent in the employment of the driver, or that he
had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215),
the plaintiff sued the defendant for damages caused by the loss of a barge belonging to
plaintiff which was allowed to get adrift by the negligence of defendant's servants in the
course of the performance of a contract of towage. The court held, citing Manresa (vol. 8,
pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it

57
and the plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are
applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant
to recover damages for the personal injuries caused by the negligence of defendant's
chauffeur while driving defendant's automobile in which defendant was riding at the time.
The court found that the damages were caused by the negligence of the driver of the
automobile, but held that the master was not liable, although he was present at the time,
saying:
. . . unless the negligent acts of the driver are continued for a length of time as to
give the owner a reasonable opportunity to observe them and to direct the driver
to desist therefrom. . . . The act complained of must be continued in the presence
of the owner for such length of time that the owner by his acquiescence, makes
the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33
Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of the
defendant upon article 1903, although the facts disclosed that the injury complaint of by
plaintiff constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was that article 1903, in
dealing with the liability of a master for the negligent acts of his servants "makes the
distinction between private individuals and public enterprise;" that as to the latter the law
creates a rebuttable presumption of negligence in the selection or direction of servants;
and that in the particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action
as though founded in tort rather than as based upon the breach of the contract of
carriage, and an examination of the pleadings and of the briefs shows that the questions
of law were in fact discussed upon this theory. Viewed from the standpoint of the
defendant the practical result must have been the same in any event. The proof
disclosed beyond doubt that the defendant's servant was grossly negligent and that his
negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to exercise proper discretion in the
direction of the servant. Defendant was, therefore, liable for the injury suffered by
plaintiff, whether the breach of the duty were to be regarded as constituting culpa
aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether
negligence occurs an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or omission productive of
damage due to carelessness or inattention on the part of the defendant. Consequently,
when the court holds that a defendant is liable in damages for having failed to exercise

due care, either directly, or in failing to exercise proper care in the selection and direction
of his servants, the practical result is identical in either case. Therefore, it follows that it is
not to be inferred, because the court held in the Yamada case that defendant was liable
for the damages negligently caused by its servants to a person to whom it was bound by
contract, and made reference to the fact that the defendant was negligent in the selection
and control of its servants, that in such a case the court would have held that it would
have been a good defense to the action, if presented squarely upon the theory of the
breach of the contract, for defendant to have proved that it did in fact exercise care in the
selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative
spheres of contractual and extra-contractual obligations. The field of non- contractual
obligation is much more broader than that of contractual obligations, comprising, as it
does, the whole extent of juridical human relations. These two fields, figuratively
speaking, concentric; that is to say, the mere fact that a person is bound to another by
contract does not relieve him from extra-contractual liability to such person. When such a
contractual relation exists the obligor may break the contract under such conditions that
the same act which constitutes the source of an extra-contractual obligation had no
contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to
carry him in safety and to provide safe means of entering and leaving its trains (civil
code, article 1258). That duty, being contractual, was direct and immediate, and its nonperformance could not be excused by proof that the fault was morally imputable to
defendant's servants.
The railroad company's defense involves the assumption that even granting that the
negligent conduct of its servants in placing an obstruction upon the platform was a
breach of its contractual obligation to maintain safe means of approaching and leaving its
trains, the direct and proximate cause of the injury suffered by plaintiff was his own
contributory negligence in failing to wait until the train had come to a complete stop
before alighting. Under the doctrine of comparative negligence announced in the Rakes
case (supra), if the accident was caused by plaintiff's own negligence, no liability is
imposed upon defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to ascertain if
defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before
alighting, the particular injury suffered by him could not have occurred. Defendant
contends, and cites many authorities in support of the contention, that it is negligence
per se for a passenger to alight from a moving train. We are not disposed to subscribe to
this doctrine in its absolute form. We are of the opinion that this proposition is too badly

58
stated and is at variance with the experience of every-day life. In this particular instance,
that the train was barely moving when plaintiff alighted is shown conclusively by the fact
that it came to stop within six meters from the place where he stepped from it.
Thousands of person alight from trains under these conditions every day of the year, and
sustain no injury where the company has kept its platform free from dangerous
obstructions. There is no reason to believe that plaintiff would have suffered any injury
whatever in alighting as he did had it not been for defendant's negligent failure to perform
its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of ordinary
or reasonable care. It is to be considered whether an ordinarily prudent person,
of the age, sex and condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by the evidence. This care
has been defined to be, not the care which may or should be used by the prudent
man generally, but the care which a man of ordinary prudence would use under
similar circumstances, to avoid injury." (Thompson, Commentaries on
Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37
Phil. rep., 809), we may say that the test is this; Was there anything in the circumstances
surrounding the plaintiff at the time he alighted from the train which would have
admonished a person of average prudence that to get off the train under the conditions
then existing was dangerous? If so, the plaintiff should have desisted from alighting; and
his failure so to desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be
drawn to the effect that plaintiff was guilty of contributory negligence is that he stepped
off the car without being able to discern clearly the condition of the platform and while the
train was yet slowly moving. In considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction
which was caused by the sacks of melons piled on the platform existed; and as the
defendant was bound by reason of its duty as a public carrier to afford to its passengers
facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence
of some circumstance to warn him to the contrary, that the platform was clear. The place,
as we have already stated, was dark, or dimly lighted, and this also is proof of a failure
upon the part of the defendant in the performance of a duty owing by it to the plaintiff; for
if it were by any possibility concede that it had right to pile these sacks in the path of

alighting passengers, the placing of them adequately so that their presence would be
revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this
case the following circumstances are to be noted: The company's platform was
constructed upon a level higher than that of the roadbed and the surrounding ground.
The distance from the steps of the car to the spot where the alighting passenger would
place his feet on the platform was thus reduced, thereby decreasing the risk incident to
stepping off. The nature of the platform, constructed as it was of cement material, also
assured to the passenger a stable and even surface on which to alight. Furthermore, the
plaintiff was possessed of the vigor and agility of young manhood, and it was by no
means so risky for him to get off while the train was yet moving as the same act would
have been in an aged or feeble person. In determining the question of contributory
negligence in performing such act that is to say, whether the passenger acted
prudently or recklessly the age, sex, and physical condition of the passenger are
circumstances necessarily affecting the safety of the passenger, and should be
considered. Women, it has been observed, as a general rule are less capable than men
of alighting with safety under such conditions, as the nature of their wearing apparel
obstructs the free movement of the limbs. Again, it may be noted that the place was
perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this
station. There could, therefore, be no uncertainty in his mind with regard either to the
length of the step which he was required to take or the character of the platform where
he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to alight
while the train was yet slightly under way was not characterized by imprudence and that
therefore he was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a
month as a copyist clerk, and that the injuries he has suffered have permanently disabled
him from continuing that employment. Defendant has not shown that any other gainful
occupation is open to plaintiff. His expectancy of life, according to the standard mortality
tables, is approximately thirty-three years. We are of the opinion that a fair compensation
for the damage suffered by him for his permanent disability is the sum of P2,500, and
that he is also entitled to recover of defendant the additional sum of P790.25 for medical
attention, hospital services, and other incidental expenditures connected with the
treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the
sum of P3,290.25, and for the costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.

59
In the complaint for damages filed by the bus company and Pangalangan against PhilAmerican Forwarders, Inc., Balingit and Pineda, it was alleged that on November 24,
1962, Pineda drove recklessly a freight truck, owned by Phil-American Forwarders, Inc.,
along the national highway at Sto. Tomas, Pampanga. The truck bumped the bus driven
by Pangalangan, which was owned by Philippine Rabbit Bus Lines, Inc. As a result of the
bumping, Pangalangan suffered injuries and the bus was damaged and could not be
used for seventy-nine days, thus depriving the company of earnings amounting to
P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc.
Among the defenses interposed by the defendants in their answer was that Balingit was
not Pineda's employer.
Balingit moved that the complaint against him be dismissed on the ground that the bus
company and the bus driver had no cause of action against him. As already stated, the
lower court dismissed the action as to Balingit. The bus company and its driver appealed.
G.R. No. L-25142 March 25, 1975

The Civil Code provides:t.hqw

PHILIPPINE RABBIT BUS LINES, INC. and FELIX PANGALANGAN, plaintiffsappellants,

vs.
PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO
PINEDA, defendants-appellees.

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

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

Angel A. Sison for plaintiffs-appellants.

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.

Fidel Zosimo U. Canilao for defendants-appellees.

xxx xxx xxx

AQUINO, J.:+.wph!1
Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure questions of
law from the order of the Court of First Instance of Tarlac, dismissing their complaint
against Archimedes J. Balingit.
The dismissal was based on the ground that Balingit as the manager of Phil-American
Forwarders, Inc., which together with Fernando Pineda and Balingit, was sued for
damages in an action based on quasi-delict or culpa aquiliana, is not the manager of an
establishment contemplated in article 2180 of the Civil Code (Civil Case No. 3865).

The owners and managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.
xxx xxx xxx

60
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. (1903a)
The novel and unprecedented legal issue in this appeal is whether the terms "employers"
and "owners and managers of an establishment or enterprise" (dueos o directores de
un establicimiento o empresa) used in article 2180 of the Civil Code, formerly article
1903 of the old Code, embrace the manager of a corporation owning a truck, the
reckless operation of which allegedly resulted in the vehicular accident from which the
damage arose.
We are of the opinion that those terms do not include the manager of a corporation. It
may be gathered from the context of article 2180 that the term "manager" ("director" in
the Spanish version) is used in the sense of "employer".
Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can
be fastened on Balingit as manager of Phil-American Forwarders, Inc., in connection with
the vehicular accident already mentioned because he himself may be regarded as an
employee or dependiente of his employer, Phil-American Forwarders, Inc.
Thus, it was held "que es dependiente, a los efectos de la responsabilidad subsidiaria
establecida en el num 3.0 del (art.) 1903, el director de un periodico explotado por una
sociedad, porque cualquiera que sea su jerarquia y aunque Ileve la direccion de
determinadas convicciones politicas no por eso deja de estar subordinado a la superior
autoridad de la Empresa" (Decision of Spanish Supreme Court dated December 6, 1912
cited in 12 Manresa, Codigo Civil Espaol 5th Ed. 662; 1913 Enciclopedia Juridica
Espaola 992).
The bus company and its driver, in their appellants' brief, injected a new factual issue
which was not alleged in their complaint. They argue that Phil- American Forwarders, Inc.
is merely a business conduit of Balingit because out of its capital stock with a par value
of P41,200, Balingit and his wife had subscribed P40,000 and they paid P10,000 on their
subscription, while the other incorporators, namely, Rodolfo Limjuco, Ponciano Caparas
and Rafael Suntay paid P250.25 and P25, respectively.

was assumed that Phil-American Forwarders, Inc. has a personality separate and distinct
from that of the Balingit spouses.
The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is one which
was raised in the lower court and which is within the issues framed by the parties (Sec.
18, Rule 46, Rules of Court).
When a party deliberately adopts a certain theory and the case is decided upon that
theory in the court below, he will not be permitted to change his theory on appeal
because, to permit him to do so, could be unfair to the adverse party (2 Moran's
Comments on the Rules of Court, 1970 Ed. p. 505).
WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the
plaintiffs-appellants.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Fernandez, JJ., concur.1wph1.t

[G.R. No. 141994. January 17, 2005]

FILIPINAS BROADCASTING NETWORK, INC., petitioner, vs. AGO MEDICAL AND
EDUCATIONAL CENTER-BICOL CHRISTIAN COLLEGE OF MEDICINE, (AMECBCCM) and ANGELITA F. AGO, respondents.
DECISION
CARPIO, J.:
The Case

That argument implies that the veil of corporate fiction should be pierced and that PhilAmerican Forwarders, Inc. and Balingit and his wife should be treated as one and the
same civil personality.
We cannot countenance that argument in this appeal. It was not raised in the lower court.
The case has to be decided on the basis of the pleadings filed in the trial court where it

This petition for review[1] assails the 4 January 1999 Decision[2] and 26 January 2000
Resolution of the Court of Appeals in CA-G.R. CV No. 40151. The Court of Appeals
affirmed with modification the 14 December 1992 Decision[3] of the Regional Trial Court
of Legazpi City, Branch 10, in Civil Case No. 8236. The Court of Appeals held Filipinas
Broadcasting Network, Inc. and its broadcasters Hermogenes Alegre and Carmelo Rima

61
liable for libel and ordered them to solidarily pay Ago Medical and Educational CenterBicol Christian College of Medicine moral damages, attorneys fees and costs of suit.
The Antecedents
Expos is a radio documentary[4] program hosted by Carmelo Mel Rima (Rima) and
Hermogenes Jun Alegre (Alegre).[5] Expos is aired every morning over DZRC-AM
which is owned by Filipinas Broadcasting Network, Inc. (FBNI). Expos is heard over
Legazpi City, the Albay municipalities and other Bicol areas.[6]
In the morning of 14 and 15 December 1989, Rima and Alegre exposed various alleged
complaints from students, teachers and parents against Ago Medical and Educational
Center-Bicol Christian College of Medicine (AMEC) and its administrators. Claiming
that the broadcasts were defamatory, AMEC and Angelita Ago (Ago), as Dean of
AMECs College of Medicine, filed a complaint for damages[7] against FBNI, Rima and
Alegre on 27 February 1990. Quoted are portions of the allegedly libelous broadcasts:
JUN ALEGRE:
Let us begin with the less burdensome: if you have children taking medical course at
AMEC-BCCM, advise them to pass all subjects because if they fail in any subject
they will repeat their year level, taking up all subjects including those they have
passed already. Several students had approached me stating that they had consulted
with the DECS which told them that there is no such regulation. If [there] is no such
regulation why is AMEC doing the same?
xxx
Second: Earlier AMEC students in Physical Therapy had complained that the
course is not recognized by DECS. xxx
Third: Students are required to take and pay for the subject even if the subject
does not have an instructor - such greed for money on the part of AMECs
administration. Take the subject Anatomy: students would pay for the subject upon
enrolment because it is offered by the school. However there would be no instructor for
such subject. Students would be informed that course would be moved to a later date
because the school is still searching for the appropriate instructor.
xxx

It is a public knowledge that the Ago Medical and Educational Center has survived and
has been surviving for the past few years since its inception because of funds support
from foreign foundations. If you will take a look at the AMEC premises youll find out that
the names of the buildings there are foreign soundings. There is a McDonald Hall. Why
not Jose Rizal or Bonifacio Hall? That is a very concrete and undeniable evidence that
the support of foreign foundations for AMEC is substantial, isnt it? With the report which
is the basis of the expose in DZRC today, it would be very easy for detractors and
enemies of the Ago family to stop the flow of support of foreign foundations who assist
the medical school on the basis of the latters purpose. But if the purpose of the
institution (AMEC) is to deceive students at cross purpose with its reason for being it is
possible for these foreign foundations to lift or suspend their donations temporarily.[8]
xxx
On the other hand, the administrators of AMEC-BCCM, AMEC Science High School
and the AMEC-Institute of Mass Communication in their effort to minimize
expenses in terms of salary are absorbing or continues to accept rejects. For
example how many teachers in AMEC are former teachers of Aquinas University but
were removed because of immorality? Does it mean that the present administration of
AMEC have the total definite moral foundation from catholic administrator of Aquinas
University. I will prove to you my friends, that AMEC is a dumping ground, garbage,
not merely of moral and physical misfits. Probably they only qualify in terms of
intellect. The Dean of Student Affairs of AMEC is Justita Lola, as the family name
implies. She is too old to work, being an old woman. Is the AMEC administration
exploiting the very [e]nterprising or compromising and undemanding Lola? Could it be
that AMEC is just patiently making use of Dean Justita Lola were if she is very old. As in
atmospheric situation zero visibility the plane cannot land, meaning she is very old,
low pay follows. By the way, Dean Justita Lola is also the chairman of the committee on
scholarship in AMEC. She had retired from Bicol University a long time ago but AMEC
has patiently made use of her.
xxx
MEL RIMA:
xxx My friends based on the expose, AMEC is a dumping ground for moral and
physically misfit people. What does this mean? Immoral and physically misfits as
teachers.
May I say Im sorry to Dean Justita Lola. But this is the truth. The truth is this, that your
are no longer fit to teach. You are too old. As an aviation, your case is zero visibility.
Dont insist.

62
xxx Why did AMEC still absorb her as a teacher, a dean, and chairman of the scholarship
committee at that. The reason is practical cost saving in salaries, because an old person
is not fastidious, so long as she has money to buy the ingredient of beetle juice. The
elderly can get by thats why she (Lola) was taken in as Dean.
xxx
xxx On our end our task is to attend to the interests of students. It is likely that the
students would be influenced by evil. When they become members of society
outside of campus will be liabilities rather than assets. What do you expect from a
doctor who while studying at AMEC is so much burdened with unreasonable imposition?
What do you expect from a student who aside from peculiar problems because not all
students are rich in their struggle to improve their social status are even more
burdened with false regulations. xxx[9] (Emphasis supplied)
The complaint further alleged that AMEC is a reputable learning institution. With the
supposed exposs, FBNI, Rima and Alegre transmitted malicious imputations, and as
such, destroyed plaintiffs (AMEC and Ago) reputation. AMEC and Ago included FBNI
as defendant for allegedly failing to exercise due diligence in the selection and
supervision of its employees, particularly Rima and Alegre.
On 18 June 1990, FBNI, Rima and Alegre, through Atty. Rozil Lozares, filed an
Answer[10] alleging that the broadcasts against AMEC were fair and true. FBNI, Rima
and Alegre claimed that they were plainly impelled by a sense of public duty to report the
goings-on in AMEC, [which is] an institution imbued with public interest.
Thereafter, trial ensued. During the presentation of the evidence for the defense, Atty.
Edmundo Cea, collaborating counsel of Atty. Lozares, filed a Motion to Dismiss[11] on
FBNIs behalf. The trial court denied the motion to dismiss. Consequently, FBNI filed a
separate Answer claiming that it exercised due diligence in the selection and supervision
of Rima and Alegre. FBNI claimed that before hiring a broadcaster, the broadcaster
should (1) file an application; (2) be interviewed; and (3) undergo an apprenticeship and
training program after passing the interview. FBNI likewise claimed that it always
reminds its broadcasters to observe truth, fairness and objectivity in their broadcasts
and to refrain from using libelous and indecent language. Moreover, FBNI requires all
broadcasters to pass the Kapisanan ng mga Brodkaster sa Pilipinas (KBP)
accreditation test and to secure a KBP permit.
On 14 December 1992, the trial court rendered a Decision[12] finding FBNI and Alegre
liable for libel except Rima. The trial court held that the broadcasts are libelous per se.
The trial court rejected the broadcasters claim that their utterances were the result of
straight reporting because it had no factual basis. The broadcasters did not even verify

their reports before airing them to show good faith. In holding FBNI liable for libel, the
trial court found that FBNI failed to exercise diligence in the selection and supervision of
its employees.
In absolving Rima from the charge, the trial court ruled that Rimas only participation was
when he agreed with Alegres expos. The trial court found Rimas statement within the
bounds of freedom of speech, expression, and of the press. The dispositive portion of
the decision reads:
WHEREFORE, premises considered, this court finds for the plaintiff. Considering the
degree of damages caused by the controversial utterances, which are not found
by this court to be really very serious and damaging, and there being no showing
that indeed the enrollment of plaintiff school dropped, defendants Hermogenes
Jun Alegre, Jr. and Filipinas Broadcasting Network (owner of the radio station DZRC),
are hereby jointly and severally ordered to pay plaintiff Ago Medical and Educational
Center-Bicol Christian College of Medicine (AMEC-BCCM) the amount of P300,000.00
moral damages, plus P30,000.00 reimbursement of attorneys fees, and to pay the costs
of suit.
SO ORDERED. [13] (Emphasis supplied)
Both parties, namely, FBNI, Rima and Alegre, on one hand, and AMEC and Ago, on the
other, appealed the decision to the Court of Appeals. The Court of Appeals affirmed the
trial courts judgment with modification. The appellate court made Rima solidarily liable
with FBNI and Alegre. The appellate court denied Agos claim for damages and
attorneys fees because the broadcasts were directed against AMEC, and not against
her. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the
modification that broadcaster Mel Rima is SOLIDARILY ADJUDGED liable with FBN[I]
and Hermo[g]enes Alegre.
SO ORDERED.[14]
FBNI, Rima and Alegre filed a motion for reconsideration which the Court of Appeals
denied in its 26 January 2000 Resolution.
Hence, FBNI filed this petition.[15]
The Ruling of the Court of Appeals

63
The Court of Appeals upheld the trial courts ruling that the questioned broadcasts are
libelous per se and that FBNI, Rima and Alegre failed to overcome the legal presumption
of malice. The Court of Appeals found Rima and Alegres claim that they were actuated
by their moral and social duty to inform the public of the students gripes as insufficient to
justify the utterance of the defamatory remarks.
Finding no factual basis for the imputations against AMECs administrators, the Court of
Appeals ruled that the broadcasts were made with reckless disregard as to whether they
were true or false. The appellate court pointed out that FBNI, Rima and Alegre failed to
present in court any of the students who allegedly complained against AMEC. Rima and
Alegre merely gave a single name when asked to identify the students. According to the
Court of Appeals, these circumstances cast doubt on the veracity of the broadcasters
claim that they were impelled by their moral and social duty to inform the public about
the students gripes.
The Court of Appeals found Rima also liable for libel since he remarked that (1) AMECBCCM is a dumping ground for morally and physically misfit teachers; (2) AMEC
obtained the services of Dean Justita Lola to minimize expenses on its employees
salaries; and (3) AMEC burdened the students with unreasonable imposition and false
regulations.[16]

IV.

WHETHER FBNI IS SOLIDARILY LIABLE WITH RIMA AND ALEGRE FOR

PAYMENT OF MORAL DAMAGES, ATTORNEYS FEES AND COSTS OF
SUIT.

The Courts Ruling

We deny the petition.
This is a civil action for damages as a result of the allegedly defamatory remarks of Rima
and Alegre against AMEC.[17] While AMEC did not point out clearly the legal basis for its
complaint, a reading of the complaint reveals that AMECs cause of action is based on
Articles 30 and 33 of the Civil Code. Article 30[18] authorizes a separate civil action to
recover civil liability arising from a criminal offense. On the other hand, Article 33[19]
particularly provides that the injured party may bring a separate civil action for damages
in cases of defamation, fraud, and physical injuries. AMEC also invokes Article 19[20] of
the Civil Code to justify its claim for damages. AMEC cites Articles 2176[21] and
2180[22] of the Civil Code to hold FBNI solidarily liable with Rima and Alegre.
I.

The Court of Appeals held that FBNI failed to exercise due diligence in the selection and
supervision of its employees for allowing Rima and Alegre to make the radio broadcasts
without the proper KBP accreditation. The Court of Appeals denied Agos claim for
damages and attorneys fees because the libelous remarks were directed against AMEC,
and not against her. The Court of Appeals adjudged FBNI, Rima and Alegre solidarily
liable to pay AMEC moral damages, attorneys fees and costs of suit.

Whether the broadcasts are libelous

Issues

There is no question that the broadcasts were made public and imputed to AMEC
defects or circumstances tending to cause it dishonor, discredit and contempt. Rima and
Alegres remarks such as greed for money on the part of AMECs administrators;
AMEC is a dumping ground, garbage of xxx moral and physical misfits; and AMEC
students who graduate will be liabilities rather than assets of the society are libelous
per se. Taken as a whole, the broadcasts suggest that AMEC is a money-making
institution where physically and morally unfit teachers abound.

FBNI raises the following issues for resolution:

I.

WHETHER THE BROADCASTS ARE LIBELOUS;

II.

WHETHER AMEC IS ENTITLED TO MORAL DAMAGES;

III.

WHETHER THE AWARD OF ATTORNEYS FEES IS PROPER; and

A libel[23] is a public and malicious imputation of a crime, or of a vice or defect, real or

imaginary, or any act or omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory
of one who is dead.[24]

However, FBNI contends that the broadcasts are not malicious. FBNI claims that Rima
and Alegre were plainly impelled by their civic duty to air the students gripes. FBNI
alleges that there is no evidence that ill will or spite motivated Rima and Alegre in making
the broadcasts. FBNI further points out that Rima and Alegre exerted efforts to obtain

64
AMECs side and gave Ago the opportunity to defend AMEC and its administrators.
FBNI concludes that since there is no malice, there is no libel.
FBNIs contentions are untenable.
Every defamatory imputation is presumed malicious.[25] Rima and Alegre failed to show
adequately their good intention and justifiable motive in airing the supposed gripes of the
students. As hosts of a documentary or public affairs program, Rima and Alegre should
have presented the public issues free from inaccurate and misleading information.[26]
Hearing the students alleged complaints a month before the expos,[27] they had
sufficient time to verify their sources and information. However, Rima and Alegre hardly
made a thorough investigation of the students alleged gripes. Neither did they inquire
about nor confirm the purported irregularities in AMEC from the Department of
Education, Culture and Sports. Alegre testified that he merely went to AMEC to verify his
report from an alleged AMEC official who refused to disclose any information. Alegre
simply relied on the words of the students because they were many and not because
there is proof that what they are saying is true.[28] This plainly shows Rima and Alegres
reckless disregard of whether their report was true or not.
Contrary to FBNIs claim, the broadcasts were not the result of straight reporting.
Significantly, some courts in the United States apply the privilege of neutral reportage in
libel cases involving matters of public interest or public figures. Under this privilege, a
republisher who accurately and disinterestedly reports certain defamatory statements
made against public figures is shielded from liability, regardless of the republishers
subjective awareness of the truth or falsity of the accusation.[29] Rima and Alegre cannot
invoke the privilege of neutral reportage because unfounded comments abound in the
broadcasts. Moreover, there is no existing controversy involving AMEC when the
broadcasts were made. The privilege of neutral reportage applies where the defamed
person is a public figure who is involved in an existing controversy, and a party to that
controversy makes the defamatory statement.[30]

general every discreditable imputation publicly made is deemed false, because every
man is presumed innocent until his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable, it must either be a
false allegation of fact or a comment based on a false supposition. If the comment
is an expression of opinion, based on established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might reasonably be inferred from the
facts.[32] (Emphasis supplied)
True, AMEC is a private learning institution whose business of educating students is
genuinely imbued with public interest. The welfare of the youth in general and AMECs
students in particular is a matter which the public has the right to know. Thus, similar to
the newspaper articles in Borjal, the subject broadcasts dealt with matters of public
interest. However, unlike in Borjal, the questioned broadcasts are not based on
established facts. The record supports the following findings of the trial court:
xxx Although defendants claim that they were motivated by consistent reports of students
and parents against plaintiff, yet, defendants have not presented in court, nor even gave
name of a single student who made the complaint to them, much less present written
complaint or petition to that effect. To accept this defense of defendants is too
dangerous because it could easily give license to the media to malign people and
establishments based on flimsy excuses that there were reports to them although they
could not satisfactorily establish it. Such laxity would encourage careless and
irresponsible broadcasting which is inimical to public interests.
Secondly, there is reason to believe that defendant radio broadcasters, contrary to the
mandates of their duties, did not verify and analyze the truth of the reports before they
aired it, in order to prove that they are in good faith.

FBNIs reliance on Borjal is misplaced. In Borjal, the Court elucidated on the doctrine of
fair comment, thus:

Alegre contended that plaintiff school had no permit and is not accredited to offer
Physical Therapy courses. Yet, plaintiff produced a certificate coming from DECS that as
of Sept. 22, 1987 or more than 2 years before the controversial broadcast, accreditation
to offer Physical Therapy course had already been given the plaintiff, which certificate is
signed by no less than the Secretary of Education and Culture herself, Lourdes R.
Quisumbing (Exh. C-rebuttal). Defendants could have easily known this were they
careful enough to verify. And yet, defendants were very categorical and sounded too
positive when they made the erroneous report that plaintiff had no permit to offer
Physical Therapy courses which they were offering.

[F]air commentaries on matters of public interest are privileged and constitute a valid
defense in an action for libel or slander. The doctrine of fair comment means that while in

The allegation that plaintiff was getting tremendous aids from foreign foundations like
Mcdonald Foundation prove not to be true also. The truth is there is no Mcdonald

However, FBNI argues vigorously that malice in law does not apply to this case. Citing
Borjal v. Court of Appeals,[31] FBNI contends that the broadcasts fall within the
coverage of qualifiedly privileged communications for being commentaries on matters of
public interest. Such being the case, AMEC should prove malice in fact or actual malice.
Since AMEC allegedly failed to prove actual malice, there is no libel.

65
Foundation existing. Although a big building of plaintiff school was given the name
Mcdonald building, that was only in order to honor the first missionary in Bicol of
plaintiffs religion, as explained by Dr. Lita Ago. Contrary to the claim of defendants over
the air, not a single centavo appears to be received by plaintiff school from the
aforementioned McDonald Foundation which does not exist.

4.

Public affairs program shall present public issues free from personal
bias, prejudice and inaccurate and misleading information. x x x
Furthermore, the station shall strive to present balanced discussion of
issues. x x x.

xxx
Defendants did not even also bother to prove their claim, though denied by Dra. Ago, that
when medical students fail in one subject, they are made to repeat all the other
subject[s], even those they have already passed, nor their claim that the school charges
laboratory fees even if there are no laboratories in the school. No evidence was
presented to prove the bases for these claims, at least in order to give semblance of
good faith.
As for the allegation that plaintiff is the dumping ground for misfits, and immoral teachers,
defendant[s] singled out Dean Justita Lola who is said to be so old, with zero visibility
already. Dean Lola testified in court last Jan. 21, 1991, and was found to be 75 years
old. xxx Even older people prove to be effective teachers like Supreme Court Justices
who are still very much in demand as law professors in their late years. Counsel for
defendants is past 75 but is found by this court to be still very sharp and effective. So is
plaintiffs counsel.
Dr. Lola was observed by this court not to be physically decrepit yet, nor mentally
infirmed, but is still alert and docile.
The contention that plaintiffs graduates become liabilities rather than assets of our
society is a mere conclusion. Being from the place himself, this court is aware that
majority of the medical graduates of plaintiffs pass the board examination easily and
become prosperous and responsible professionals.[33]
Had the comments been an expression of opinion based on established facts, it is
immaterial that the opinion happens to be mistaken, as long as it might reasonably be
inferred from the facts.[34] However, the comments of Rima and Alegre were not backed
up by facts. Therefore, the broadcasts are not privileged and remain libelous per se.

7.

The station shall be responsible at all times in the supervision of public

affairs, public issues and commentary programs so that they conform to the
provisions and standards of this code.

8.

It shall be the responsibility of the newscaster, commentator, host and

announcer to protect public interest, general welfare and good order in the
presentation of public affairs and public issues.[36] (Emphasis supplied)

The broadcasts fail to meet the standards prescribed in the Radio Code, which lays
down the code of ethical conduct governing practitioners in the radio broadcast industry.
The Radio Code is a voluntary code of conduct imposed by the radio broadcast industry
on its own members. The Radio Code is a public warranty by the radio broadcast
industry that radio broadcast practitioners are subject to a code by which their conduct
are measured for lapses, liability and sanctions.
The public has a right to expect and demand that radio broadcast practitioners live up to
the code of conduct of their profession, just like other professionals. A professional code
of conduct provides the standards for determining whether a person has acted justly,
honestly and with good faith in the exercise of his rights and performance of his duties as
required by Article 19[37] of the Civil Code. A professional code of conduct also provides
the standards for determining whether a person who willfully causes loss or injury to
another has acted in a manner contrary to morals or good customs under Article 21[38]
of the Civil Code.
II.
Whether AMEC is entitled to moral damages

The broadcasts also violate the Radio Code[35] of the Kapisanan ng mga Brodkaster sa
Pilipinas, Ink. (Radio Code). Item I(B) of the Radio Code provides:

FBNI contends that AMEC is not entitled to moral damages because it is a corporation.
[39]

B. PUBLIC AFFAIRS, PUBLIC ISSUES AND COMMENTARIES

A juridical person is generally not entitled to moral damages because, unlike a natural
person, it cannot experience physical suffering or such sentiments as wounded feelings,
serious anxiety, mental anguish or moral shock.[40] The Court of Appeals cites
Mambulao Lumber Co. v. PNB, et al.[41] to justify the award of moral damages.

1.

xxx

66
However, the Courts statement in Mambulao that a corporation may have a good
reputation which, if besmirched, may also be a ground for the award of moral damages
is an obiter dictum.[42]

conjecture. In all events, the court must explicitly state in the text of the decision, and
not only in the decretal portion thereof, the legal reason for the award of attorneys fees.
[51] (Emphasis supplied)

Nevertheless, AMECs claim for moral damages falls under item 7 of Article 2219[43] of
the Civil Code. This provision expressly authorizes the recovery of moral damages in
cases of libel, slander or any other form of defamation. Article 2219(7) does not qualify
whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as
a corporation can validly complain for libel or any other form of defamation and claim for
moral damages.[44]

While it mentioned about the award of attorneys fees by stating that it lies within the
discretion of the court and depends upon the circumstances of each case, the Court of
Appeals failed to point out any circumstance to justify the award.

Moreover, where the broadcast is libelous per se, the law implies damages.[45] In such a
case, evidence of an honest mistake or the want of character or reputation of the party
libeled goes only in mitigation of damages.[46] Neither in such a case is the plaintiff
required to introduce evidence of actual damages as a condition precedent to the
recovery of some damages.[47] In this case, the broadcasts are libelous per se. Thus,
AMEC is entitled to moral damages.
However, we find the award of P300,000 moral damages unreasonable. The record
shows that even though the broadcasts were libelous per se, AMEC has not suffered any
substantial or material damage to its reputation. Therefore, we reduce the award of moral
damages from P300,000 to P150,000.
III.
Whether the award of attorneys fees is proper
FBNI contends that since AMEC is not entitled to moral damages, there is no basis for
the award of attorneys fees. FBNI adds that the instant case does not fall under the
enumeration in Article 2208[48] of the Civil Code.

IV.
Whether FBNI is solidarily liable with Rima and Alegre
for moral damages, attorneys fees
and costs of suit
FBNI contends that it is not solidarily liable with Rima and Alegre for the payment of
damages and attorneys fees because it exercised due diligence in the selection and
supervision of its employees, particularly Rima and Alegre. FBNI maintains that its
broadcasters, including Rima and Alegre, undergo a very regimented process before
they are allowed to go on air. Those who apply for broadcaster are subjected to
interviews, examinations and an apprenticeship program.
FBNI further argues that Alegres age and lack of training are irrelevant to his
competence as a broadcaster. FBNI points out that the minor deficiencies in the KBP
accreditation of Rima and Alegre do not in any way prove that FBNI did not exercise the
diligence of a good father of a family in selecting and supervising them. Rimas
accreditation lapsed due to his non-payment of the KBP annual fees while Alegres
accreditation card was delayed allegedly for reasons attributable to the KBP Manila
Office. FBNI claims that membership in the KBP is merely voluntary and not required by
any law or government regulation.
FBNIs arguments do not persuade us.

The award of attorneys fees is not proper because AMEC failed to justify satisfactorily its
claim for attorneys fees. AMEC did not adduce evidence to warrant the award of
attorneys fees. Moreover, both the trial and appellate courts failed to explicitly state in
their respective decisions the rationale for the award of attorneys fees.[49] In Inter-Asia
Investment Industries, Inc. v. Court of Appeals,[50] we held that:
[I]t is an accepted doctrine that the award thereof as an item of damages is the exception
rather than the rule, and counsels fees are not to be awarded every time a party wins a
suit. The power of the court to award attorneys fees under Article 2208 of the Civil
Code demands factual, legal and equitable justification, without which the award is
a conclusion without a premise, its basis being improperly left to speculation and

The basis of the present action is a tort. Joint tort feasors are jointly and severally liable
for the tort which they commit.[52] Joint tort feasors are all the persons who command,
instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the
commission of a tort, or who approve of it after it is done, if done for their benefit.[53]
Thus, AMEC correctly anchored its cause of action against FBNI on Articles 2176 and
2180 of the Civil Code.
As operator of DZRC-AM and employer of Rima and Alegre, FBNI is solidarily liable to
pay for damages arising from the libelous broadcasts. As stated by the Court of Appeals,
recovery for defamatory statements published by radio or television may be had from

67
the owner of the station, a licensee, the operator of the station, or a person who
procures, or participates in, the making of the defamatory statements.[54] An employer
and employee are solidarily liable for a defamatory statement by the employee within the
course and scope of his or her employment, at least when the employer authorizes or
ratifies the defamation.[55] In this case, Rima and Alegre were clearly performing their
official duties as hosts of FBNIs radio program Expos when they aired the broadcasts.
FBNI neither alleged nor proved that Rima and Alegre went beyond the scope of their
work at that time. There was likewise no showing that FBNI did not authorize and ratify
the defamatory broadcasts.
Moreover, there is insufficient evidence on record that FBNI exercised due diligence in
the selection and supervision of its employees, particularly Rima and Alegre. FBNI
merely showed that it exercised diligence in the selection of its broadcasters without
introducing any evidence to prove that it observed the same diligence in the supervision
of Rima and Alegre. FBNI did not show how it exercised diligence in supervising its
broadcasters. FBNIs alleged constant reminder to its broadcasters to observe truth,
fairness and objectivity and to refrain from using libelous and indecent language is not
enough to prove due diligence in the supervision of its broadcasters. Adequate training of
the broadcasters on the industrys code of conduct, sufficient information on libel laws,
and continuous evaluation of the broadcasters performance are but a few of the many
ways of showing diligence in the supervision of broadcasters.
FBNI claims that it has taken all the precaution in the selection of Rima and Alegre as
broadcasters, bearing in mind their qualifications. However, no clear and convincing
evidence shows that Rima and Alegre underwent FBNIs regimented process of
application. Furthermore, FBNI admits that Rima and Alegre had deficiencies in their
KBP accreditation,[56] which is one of FBNIs requirements before it hires a broadcaster.
Significantly, membership in the KBP, while voluntary, indicates the broadcasters strong
commitment to observe the broadcast industrys rules and regulations. Clearly, these
circumstances show FBNIs lack of diligence in selecting and supervising Rima and
Alegre. Hence, FBNI is solidarily liable to pay damages together with Rima and Alegre.
WHEREFORE, we DENY the instant petition. We AFFIRM the Decision of 4 January
1999 and Resolution of 26 January 2000 of the Court of Appeals in CA-G.R. CV No.
40151 with the MODIFICATION that the award of moral damages is reduced from
P300,000 to P150,000 and the award of attorneys fees is deleted. Costs against
petitioner.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

G.R. No. 75112 August 17, 1992

FILAMER CHRISTIAN INSTITUTE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his
capacity as Judge of the Regional Trial Court, Branch XIV, Roxas City and
POTENCIANO KAPUNAN, SR., respondents.
Bedona & Bedona Law Office for petitioner.
Rhodora G. Kapunan for private respondents.

GUTIERREZ, JR., J.:

The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of
the decision rendered by this Court on October 16, 1990 (Filamer Christian Institute v.
Court of Appeals, 190 SCRA 477) reviewing the appellate court's conclusion that there
exists an employer-employee relationship between the petitioner and its co-defendant
Funtecha. The Court ruled that the petitioner is not liable for the injuries caused by
Funtecha on the grounds that the latter was not an authorized driver for whose acts the
petitioner shall be directly and primarily answerable, and that Funtecha was merely a
working scholar who, under Section 14, Rule X, Book III of the Rules and Regulations
Implementing the Labor Code is not considered an employee of the petitioner.
The private respondents assert that the circumstances obtaining in the present case call
for the application of Article 2180 of the Civil Code since Funtecha is no doubt an
employee of the petitioner. The private respondents maintain that under Article 2180 an
injured party shall have recourse against the servant as well as the petitioner for whom,
at the time of the incident, the servant was performing an act in furtherance of the
interest and for the benefit of the petitioner. Funtecha allegedly did not steal the school
jeep nor use it for a joy ride without the knowledge of the school authorities.

68
After a re-examination of the laws relevant to the facts found by the trial court and the
appellate court, the Court reconsiders its decision. We reinstate the Court of Appeals'
decision penned by the late Justice Desiderio Jurado and concurred in by Justices Jose
C. Campos, Jr. and Serafin E. Camilon. Applying Civil Code provisions, the appellate
court affirmed the trial court decision which ordered the payment of the P20,000.00
liability in the Zenith Insurance Corporation policy, P10,000.00 moral damages,
P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.
It is undisputed that Funtecha was a working student, being a part-time janitor and a
scholar of petitioner Filamer. He was, in relation to the school, an employee even if he
was assigned to clean the school premises for only two (2) hours in the morning of each
school day.
Having a student driver's license, Funtecha requested the driver, Allan Masa, and was
allowed, to take over the vehicle while the latter was on his way home one late afternoon.
It is significant to note that the place where Allan lives is also the house of his father, the
school president, Agustin Masa. Moreover, it is also the house where Funtecha was
allowed free board while he was a student of Filamer Christian Institute.
Allan Masa turned over the vehicle to Funtecha only after driving down a road,
negotiating a sharp dangerous curb, and viewing that the road was clear. (TSN, April 4,
1983, pp. 78-79) According to Allan's testimony, a fast moving truck with glaring lights
nearly hit them so that they had to swerve to the right to avoid a collision. Upon swerving,
they heard a sound as if something had bumped against the vehicle, but they did not
stop to check. Actually, the Pinoy jeep swerved towards the pedestrian, Potenciano
Kapunan who was walking in his lane in the direction against vehicular traffic, and hit
him. Allan affirmed that Funtecha followed his advise to swerve to the right. (Ibid., p. 79)
At the time of the incident (6:30 P.M.) in Roxas City, the jeep had only one functioning
headlight.
Allan testified that he was the driver and at the same time a security guard of the
petitioner-school. He further said that there was no specific time for him to be off-duty
and that after driving the students home at 5:00 in the afternoon, he still had to go back
to school and then drive home using the same vehicle.
Driving the vehicle to and from the house of the school president where both Allan and
Funtecha reside is an act in furtherance of the interest of the petitioner-school. Allan's job
demands that he drive home the school jeep so he can use it to fetch students in the
morning of the next school day.
It is indubitable under the circumstances that the school president had knowledge that
the jeep was routinely driven home for the said purpose. Moreover, it is not improbable

that the school president also had knowledge of Funtecha's possession of a student
driver's license and his desire to undergo driving lessons during the time that he was not
in his classrooms.
In learning how to drive while taking the vehicle home in the direction of Allan's house,
Funtecha definitely was not having a joy ride. Funtecha was not driving for the purpose
of his enjoyment or for a "frolic of his own" but ultimately, for the service for which the
jeep was intended by the petitioner school. (See L. Battistoni v. Thomas, Can SC 144, 1
D.L.R. 577, 80 ALR 722 [1932]; See also Association of Baptists for World Evangelism,
Inc. v. Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]). Therefore, the Court is
constrained to conclude that the act of Funtecha in taking over the steering wheel was
one done for and in behalf of his employer for which act the petitioner-school cannot
deny any responsibility by arguing that it was done beyond the scope of his janitorial
duties. The clause "within the scope of their assigned tasks" for purposes of raising the
presumption of liability of an employer, includes any act done by an employee, in
furtherance of the interests of the employer or for the account of the employer at the time
of the infliction of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d 47
[1950]) Even if somehow, the employee driving the vehicle derived some benefit from the
act, the existence of a presumptive liability of the employer is determined by answering
the question of whether or not the servant was at the time of the accident performing any
act in furtherance of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR
1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])
Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the
petitioner anchors its defense, was promulgated by the Secretary of Labor and
Employment only for the purpose of administering and enforcing the provisions of the
Labor Code on conditions of employment. Particularly, Rule X of Book III provides
guidelines on the manner by which the powers of the Labor Secretary shall be exercised;
on what records should be kept; maintained and preserved; on payroll; and on the
exclusion of working scholars from, and inclusion of resident physicians in the
employment coverage as far as compliance with the substantive labor provisions on
working conditions, rest periods, and wages, is concerned.
In other words, Rule X is merely a guide to the enforcement of the substantive law on
labor. The Court, thus, makes the distinction and so holds that Section 14, Rule X, Book
III of the Rules is not the decisive law in a civil suit for damages instituted by an injured
person during a vehicular accident against a working student of a school and against the
school itself.
The present case does not deal with a labor dispute on conditions of employment
between an alleged employee and an alleged employer. It invokes a claim brought by
one for damages for injury caused by the patently negligent acts of a person, against

69
both doer-employee and his employer. Hence, the reliance on the implementing rule on
labor to disregard the primary liability of an employer under Article 2180 of the Civil Code
is misplaced. An implementing rule on labor cannot be used by an employer as a shield
to avoid liability under the substantive provisions of the Civil Code.
There is evidence to show that there exists in the present case an extra-contractual
obligation arising from the negligence or reckless imprudence of a person "whose acts or
omissions are imputable, by a legal fiction, to other(s) who are in a position to exercise
an absolute or limited control over (him)." (Bahia v. Litonjua and Leynes, 30 Phil. 624
[1915])
Funtecha is an employee of petitioner Filamer. He need not have an official appointment
for a driver's position in order that the petitioner may be held responsible for his grossly
negligent act, it being sufficient that the act of driving at the time of the incident was for
the benefit of the petitioner. Hence, the fact that Funtecha was not the school driver or
was not acting within the scope of his janitorial duties does not relieve the petitioner of
the burden of rebutting the presumption juris tantum that there was negligence on its part
either in the selection of a servant or employee, or in the supervision over him. The
petitioner has failed to show proof of its having exercised the required diligence of a good
father of a family over its employees Funtecha and Allan.
The Court reiterates that supervision includes the formulation of suitable rules and
regulations for the guidance of its employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has
relations through his employees. (Bahia v. Litonjua and Leynes, supra, at p. 628;
Phoenix Construction, v. Intermediate Appellate Court, 148 SCRA 353 [1987])

imposes upon it the vicarious liability for acts or omissions of its employees. (Umali v.
Bacani, 69 SCRA 263 [1976]; Poblete v. Fabros, 93 SCRA 200 [1979]; Kapalaran Bus
Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate Appellate Court, 178
SCRA 331 [1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The
liability of the employer is, under Article 2180, primary and solidary. However, the
employer shall have recourse against the negligent employee for whatever damages are
paid to the heirs of the plaintiff.
It is an admitted fact that the actual driver of the school jeep, Allan Masa, was not made
a party defendant in the civil case for damages. This is quite understandable considering
that as far as the injured pedestrian, plaintiff Potenciano Kapunan, was concerned, it was
Funtecha who was the one driving the vehicle and presumably was one authorized by
the school to drive. The plaintiff and his heirs should not now be left to suffer without
simultaneous recourse against the petitioner for the consequent injury caused by a
janitor doing a driving chore for the petitioner even for a short while. For the purpose of
recovering damages under the prevailing circumstances, it is enough that the plaintiff
and the private respondent heirs were able to establish the existence of employeremployee relationship between Funtecha and petitioner Filamer and the fact that
Funtecha was engaged in an act not for an independent purpose of his own but in
furtherance of the business of his employer. A position of responsibility on the part of the
petitioner has thus been satisfactorily demonstrated.
WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is
hereby GRANTED. The decision of the respondent appellate court affirming the trial
court decision is REINSTATED.
SO ORDERED.

An employer is expected to impose upon its employees the necessary discipline called
for in the performance of any act indispensable to the business and beneficial to their
employer.
In the present case, the petitioner has not shown that it has set forth such rules and
guidelines as would prohibit any one of its employees from taking control over its
vehicles if one is not the official driver or prohibiting the driver and son of the Filamer
president from authorizing another employee to drive the school vehicle. Furthermore,
the petitioner has failed to prove that it had imposed sanctions or warned its employees
against the use of its vehicles by persons other than the driver.
The petitioner, thus, has an obligation to pay damages for injury arising from the
unskilled manner by which Funtecha drove the vehicle. (Cangco v. Manila Railroad Co.,
38 Phil. 768, 772 [1918]). In the absence of evidence that the petitioner had exercised
the diligence of a good father of a family in the supervision of its employees, the law

Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.

G.R. No. 163609

November 27, 2008

SPS. BUENAVENTURA JAYME AND ROSARIO JAYME, petitioners,

vs.
RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO SIMBULAN, MAYOR FERNANDO
Q. MIGUEL, MUNICIPALITY OF KORONADAL (NOW CITY OF KORONADAL),
PROVINCE OF SOUTH COTABATO, represented by the MUNICIPAL TREASURER
and/or MUNICIPAL MAYOR FERNANDO Q. MIGUEL, and THE FIRST INTEGRATED
BONDING AND INSURANCE COMPANY, INC., respondents.

70
DECISION
REYES, R.T., J.:
MAY a municipal mayor be held solidarily liable for the negligent acts of the driver
assigned to him, which resulted in the death of a minor pedestrian?
Challenged in this petition for review on certiorari is the Decision1 of the Court of Appeals
(CA) which reversed and set aside the decision of the Regional Trial Court (RTC),
Polomolok, Cotabato City, Branch 39, insofar as defendant Mayor Fernando Q. Miguel is
concerned. The CA absolved Mayor Miguel from any liability since it was not he, but the
Municipality of Koronadal, that was the employer of the negligent driver.
The Facts

In their respective Answers, all respondents denied liability for Marvin's death. Apostol
and Simbulan averred that Lozano took the pick-up truck without their consent. Likewise,
Miguel and Lozano pointed out that Marvin's sudden sprint across the highway made it
impossible to avoid the accident. Yet, Miguel denied being on board the vehicle when it
hit Marvin. The Municipality of Koronadal adopted the answer of Lozano and Miguel. As
for First Integrated Bonding and Insurance Company, Inc., the vehicle insurer, it insisted
that its liability is contributory and is only conditioned on the right of the insured. Since
the insured did not file a claim within the prescribed period, any cause of action against it
had prescribed.
RTC Disposition
On January 25, 1999, the RTC rendered judgment in favor of spouses Jayme, the
dispositive portion of which reads:

On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on board the
Isuzu pick-up truck driven by Fidel Lozano, an employee of the Municipality of
Koronadal.2 The pick-up truck was registered under the name of Rodrigo Apostol, but it
was then in the possession of Ernesto Simbulan.3 Lozano borrowed the pick-up truck
from Simbulan to bring Miguel to Buayan Airport at General Santos City to catch his
Manila flight.4

WHEREFORE, in view of the foregoing, the defendant Municipality of Koronadal

cannot be held liable for the damages incurred by other defendant (sic) being an
agency of the State performing a (sic) governmental functions. The same with
defendant Hermogenes Simbulan, not being the owner of the subject vehicle, he
is absolved of any liability. The complaint against defendant First Integrated
Bonding Insurance Company, Inc. is hereby ordered dismissed there being no
cause of action against said insurance company.

The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then crossing the
National Highway in Poblacion, Polomolok, South Cotabato. 5 The intensity of the collision
sent Marvin some fifty (50) meters away from the point of impact, a clear indication that
Lozano was driving at a very high speed at the time of the accident. 6

However, defendants Fidel Lozano, Rodrigo Apostol, and Mayor Fernando

Miguel of Koronadal, South Cotabato, are hereby ordered jointly and severally to
pay the plaintiff (sic) the following sums:

Marvin sustained severe head injuries with subdural hematoma and diffused cerebral
contusion.7 He was initially treated at the Howard Hubbard Memorial Hospital. 8 Due to
the seriousness of his injuries, he was airlifted to the Ricardo Limso Medical Center in
Davao City for more intensive treatment.9 Despite medical attention, Marvin expired six
(6) days after the accident.10

1. One Hundred Seventy Three Thousand One Hundred One and Forty
Centavos (P173,101.40) Pesos as actual damages with legal interest of
12% per annum computed from February 11, 1989 until fully paid;

Petitioners spouses Buenaventura and Rosario Jayme, the parents of Marvin, filed a
complaint for damages with the RTC against respondents. 11 In their complaint, they
prayed that all respondents be held solidarily liable for their loss. They pointed out that
that proximate cause of Marvin's death was Lozano's negligent and reckless operation of
the vehicle. They prayed for actual, moral, and exemplary damages, attorney's fees, and
litigation expenses.

3. Twenty Thousand (P20,000.00) Pesos as exemplary damages;

2. Fifty Thousand (P50,000.00) Pesos as moral damages;

4. Twenty Thousand (P20,000.00) Pesos as Attorney's fees;

5. Fifty Thousand (P50,000.00) Pesos for the death of Marvin Jayme;
6. Three Thousand (P3,000.00) as litigation expenses; and

71
7. To pay the cost of this suit.
SO ORDERED.12
Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the CA.
CA Disposition
In his appeal, Mayor Miguel contended that the RTC erred in ruling that he was Lozano's
employer and, hence, solidarily liable for the latter's negligent act. Records showed that
the Municipality of Koronadal was the driver's true and lawful employer. Mayor Miguel
also denied that he did not exercise due care and diligence in the supervision of Lozano.
The incident, although unfortunate, was unexpected and cannot be attributed to him.
On October 22, 2003, the CA granted the appeal, disposing as follows:
WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE,
insofar as defendant-appellant Mayor Fernando Q. Miguel is concerned, and the
complaint against him is DISMISSED.
IT IS SO ORDERED.

13

The CA held that Mayor Miguel should not be held liable for damages for the death of
Marvin Jayme. Said the appellate court:
Moreover, plaintiffs-appellees admitted that Mayor Miguel was not the employer
of Lozano. Thus, paragraph 9 of the complaint alleged that the Municipality of
Koronadal was the employer of both Mayor Miguel and Lozano. Not being
the employer of Lozano, Mayor Miguel could not thus be held liable for the
damages caused by the former. Mayor Miguel was a mere passenger in the
Isuzu pick-up at the time of the accident.14 (Emphasis supplied)
The CA also reiterated the settled rule that it is the registered owner of a vehicle who is
jointly and severally liable with the driver for damages incurred by passengers or third
persons as a consequence of injuries or death sustained in the operation of the vehicle.
Issues
The spouses Jayme have resorted to the present recourse and assign to the CA the
following errors:

I.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT MAYOR
FERNANDO MIGUEL CANNOT BE HELD LIABLE FOR THE DEATH OF
MARVIN JAYME WHICH CONCLUSION IS CONTRARY TO LAW AND THE
SETTLED PRONOUNCEMENTS OF THIS HONORABLE TRIBUNAL;
II.
THE FINDINGS OF FACTS OF THE HONORABLE COURT OF APPEALS ARE
CONTRARY TO THE FINDINGS OF THE TRIAL COURT AND ARE
CONTRADICTED BY THE EVIDENCE ON RECORD; MOREOVER, THE
CONCLUSIONS DRAWN BY THE HONORABLE COURT OF APPEALS ARE
ALL BASED ON CONJECTURES AND SURMISES AND AGAINST ACCEPTED
COURSE OF JUDICIAL PROCEEDINGS WHICH URGENTLY CALL FOR AN
EXERCISE OF THIS HONORABLE COURT'S SUPERVISION.15
Our Ruling
The doctrine of vicarious liability or imputed liability finds no application in the
present case.
Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor Miguel. He
was not a mere passenger, but instead one who had direct control and supervision over
Lozano during the time of the accident. According to petitioners, the element of direct
control is not negated by the fact that Lozano's employer was the Municipality of
Koronadal. Mayor Miguel, being Lozano's superior, still had control over the manner the
vehicle was operated.
Article 218016 of the Civil Code provides that a person is not only liable for one's own
quasi-delictual acts, but also for those persons for whom one is responsible for. This
liability is popularly known as vicarious or imputed liability. To sustain claims against
employers for the acts of their employees, the following requisites must be established:
(1) That the employee was chosen by the employer personally or through another; (2)
That the service to be rendered in accordance with orders which the employer has the
authority to give at all times; and (3) That the illicit act of the employee was on the
occasion or by reason of the functions entrusted to him. 17
Significantly, to make the employee liable under paragraphs 5 and 6 of Article 2180, it
must be established that the injurious or tortuous act was committed at the time the
employee was performing his functions.18

72
Furthermore, the employer-employee relationship cannot be assumed. It is incumbent
upon the plaintiff to prove the relationship by preponderant evidence. In Belen v. Belen,19
this Court ruled that it was enough for defendant to deny an alleged employment
relationship. The defendant is under no obligation to prove the negative averment. This
Court said:
It is an old and well-settled rule of the courts that the burden of proving the action
is upon the plaintiff, and that if he fails satisfactorily to show the facts upon which
he bases his claim, the defendant is under no obligation to prove his exceptions.
This rue is in harmony with the provisions of Section 297 of the Code of Civil
Procedure holding that each party must prove his own affirmative allegations,
etc.20
In resolving the present controversy, it is imperative to find out if Mayor Miguel is, indeed,
the employer of Lozano and therefore liable for the negligent acts of the latter. To
determine the existence of an employment relationship, We rely on the four-fold test.
This involves: (1) the employer's power of selection; (2) payment of wages or other
remuneration; (3) the employer's right to control the method of doing the work; and (4)
the employer's right of suspension or dismissal.21
Applying the foregoing test, the CA correctly held that it was the Municipality of
Koronadal which was the lawful employer of Lozano at the time of the accident. It is
uncontested that Lozano was employed as a driver by the municipality. That he was
subsequently assigned to Mayor Miguel during the time of the accident is of no moment.
This Court has, on several occasions, held that an employer-employee relationship still
exists even if the employee was loaned by the employer to another person or entity
because control over the employee subsists.22 In the case under review, the Municipality
of Koronadal remains to be Lozano's employer notwithstanding Lozano's assignment to
Mayor Miguel.
Spouses Jayme argued that Mayor Miguel had at least supervision and control over
Lozano and how the latter operated or drove the Isuzu pick-up during the time of the
accident. They, however, failed to buttress this claim.
Even assuming arguendo that Mayor Miguel had authority to give instructions or
directions to Lozano, he still can not be held liable. In Benson v. Sorrell,23 the New
England Supreme Court ruled that mere giving of directions to the driver does not
establish that the passenger has control over the vehicle. Neither does it render one the
employer of the driver. This Court, in Soliman, Jr. v. Tuazon,24 ruled in a similar vein, to
wit:

x x x The fact that a client company may give instructions or directions to the
security guards assigned to it, does not, by itself, render the client responsible
as an employer of the security guards concerned and liable for their wrongful
acts and omissions. Those instructions or directions are ordinarily no more than
requests commonly envisaged in the contract for services entered into with the
security agency. x x x25 (Emphasis supplied)
Significantly, no negligence may be imputed against a fellow employee although the
person may have the right to control the manner of the vehicle's operation. 26 In the
absence of an employer-employee relationship establishing vicarious liability, the driver's
negligence should not be attributed to a fellow employee who only happens to be an
occupant of the vehicle.27 Whatever right of control the occupant may have over the
driver is not sufficient by itself to justify an application of the doctrine of vicarious liability.
Handley v. Lombardi28 is instructive on this exception to the rule on vicarious liability:
Plaintiff was not the master or principal of the driver of the truck, but only an
intermediate and superior employee or agent. This being so, the doctrine of
respondeat superior or qui facit per alium is not properly applicable to him. His
power to direct and control the driver was not as master, but only by virtue of the
fact that they were both employed by Kruse, and the further fact that as Kruse's
agent he was delegated Kruse's authority over the driver. x x x
In the case of actionable negligence, the rule is well settled both in this state and
elsewhere that the negligence of a subordinate employee or subagent is not to
be imputed to a superior employee or agent, but only to the master or principal.
(Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297, 269 Pac. 425; Guild v. Brown, 115
Cal. App. 374 [1 Pac. (2d) 528; Ellis v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A.
(N. S.) 378, 52 S. E. 228; Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141
[108 Pac. 588]; 2 Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R. 277,
and particularly that part commencing at p. 290.) We can see no logical reason
for drawing any distinction in this regard between actionable negligence and
contributory negligence. x x x29
The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30 and again in Sichterman v.
Hollingshead Co.31
In Swanson v. McQuown,32 a case involving a military officer who happened to be riding
in a car driven by a subordinate later involved in an accident, the Colorado Supreme
Court adhered to the general rule that a public official is not liable for the wrongful acts of
his subordinates on a vicarious basis since the relationship is not a true master-servant
situation.33 The court went on to rule that the only exception is when they cooperate in
the act complained of, or direct or encourage it.34

73
In the case at bar, Mayor Miguel was neither Lozano's employer nor the vehicle's
registered owner. There existed no causal relationship between him and Lozano or the
vehicle used that will make him accountable for Marvin's death. Mayor Miguel was a
mere passenger at the time of the accident.

registered owner of the vehicle are liable for the death of a third person resulting from the
negligent operation of the vehicle.

Parenthetically, it has been held that the failure of a passenger to assist the driver, by
providing him warnings or by serving as lookout does not make the passenger liable for
the latter's negligent acts.35 The driver's duty is not one that may be delegated to
others.36

SO ORDERED.

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.

RUBEN T. REYES
Associate Justice

As correctly held by the trial court, the true and lawful employer of Lozano is the
Municipality of Koronadal. Unfortunately for Spouses Jayme, the municipality may not be
sued because it is an agency of the State engaged in governmental functions and,
hence, immune from suit. This immunity is illustrated in Municipality of San Fernando, La
Union v. Firme,37 where this Court held:
It has already been remarked that municipal corporations are suable because
their charters grant them the competence to sue and be sued. Nevertheless, they
are generally not liable for torts committed by them in the discharge of
governmental functions and can only be held answerable only if it can be shown
that they were acting in proprietary capacity. In permitting such entities to be
sued, the State merely gives the claimant the right to show that the defendant
was not acting in governmental capacity when the injury was committed or that
the case comes under the exceptions recognized by law. Failing this, the
claimant cannot recover.38
Verily, liability attaches to the registered owner, the negligent driver and his direct
employer. The CA observation along this line are worth restating:
Settled is the rule that the registered owner of a vehicle is jointly and severally
liable with the driver for damages incurred by passengers and third persons as a
consequence of injuries or death sustained in the operation of said vehicles.
Regardless of who the actual owner of the vehicle is, the operator of record
continues to be the operator of the vehicle as regards the public and third
persons, and as such is directly and primarily responsible for the consequences
incident (sic) to its operation x x x.39
The accidental death of Marvin Jayme is a tragic loss for his parents. However, justice
demands that only those liable under our laws be held accountable for Marvin's demise.
Justice can not sway in favor of petitioners simply to assuage their pain and loss. The
law on the matter is clear: only the negligent driver, the driver's employer, and the

FIRST DIVISION

74
MERCURY DRUG CORPORATION and
ROLANDO J. DEL ROSARIO,
Petitioners,

G.R. No. 172122

affirmed with modification the Decision 3[3] of the Regional Trial Court (RTC) of Makati
City, dated September 29, 2004. The trial court found petitioners jointly and severally
liable to pay respondents damages for the injuries sustained by respondent Stephen

Present:

Huang, son of respondent spouses Richard and Carmen Huang.

PUNO, C.J., Chairperson,

First, the facts:

SANDOVAL-GUTIERREZ,
CORONA,
- versus -

AZCUNA, and
GARCIA, JJ.

Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a

six-wheeler 1990 Mitsubishi Truck with plate number PRE 641 (truck).

It has in its

employ petitioner Rolando J. del Rosario as driver. Respondent spouses Richard and
Carmen Huang are the parents of respondent Stephen Huang and own the red 1991
Toyota Corolla GLI Sedan with plate number PTT 775 (car).
These two vehicles figured in a road accident on December 20, 1996 at around

Promulgated:
SPOUSES RICHARD HUANG and CARMEN
HUANG, and STEPHEN HUANG,
Respondents.

10:30 p.m. within the municipality of Taguig, Metro Manila. Respondent Stephen Huang
was driving the car, weighing 1,450 kg., while petitioner Del Rosario was driving the
truck, weighing 14,058 kg. Both were traversing the C-5 Highway, north bound, coming

June 22, 2007

from the general direction of Alabang going to Pasig City. The car was on the left
innermost lane while the truck was on the next lane to its right, when the truck suddenly
swerved to its left and slammed into the front right side of the car. The collision hurled

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

the car over the island where it hit a lamppost, spun around and landed on the opposite
lane. The truck also hit a lamppost, ran over the car and zigzagged towards, and finally

DECISION

stopped in front of Buellah Land Church.

PUNO, C.J.:
On appeal are the Decision 1[1] and Resolution2[2] of the Court of Appeals in CAG.R. CV No. 83981, dated February 16, 2006 and March 30, 2006, respectively which

2
3

75
At the time of the accident, petitioner Del Rosario only had a Traffic Violation
Receipt (TVR).

liable to pay plaintiffs Spouses Richard Y. Huang and Carmen G. Huang,

and Stephen Huang the following amounts:

His drivers license had been confiscated because he had been

1.

previously apprehended for reckless driving.

2.
The car, valued at P300,000.00, was a total wreck. Respondent Stephen Huang

Two Million Nine Hundred Seventy Three Thousand Pesos

(P2,973,000.00) actual damages;
As compensatory damages:
a.

Twenty Three Million Four Hundred Sixty One

Thousand, and Sixty-Two Pesos (P23,461,062.00) for life
care cost of Stephen;

b.

Ten Million Pesos (P10,000,000.00) as and for lost or

impaired earning capacity of Stephen;

sustained massive injuries to his spinal cord, head, face, and lung. Despite a series of
operations, respondent Stephen Huang is paralyzed for life from his chest down and
requires continuous medical and rehabilitation treatment.
3.
Respondents fault petitioner Del Rosario for committing gross negligence and

4.

Two Million Pesos (P2,000,000.00) as exemplary damages;

and

5.

One Million Pesos (P1,000,000.00) as attorneys fees and

litigation expense.4[4]

reckless imprudence while driving, and petitioner Mercury Drug for failing to exercise the
diligence of a good father of a family in the selection and supervision of its driver.

On February 16, 2006, the Court of Appeals affirmed the decision of the trial

In contrast, petitioners allege that the immediate and proximate cause of the
accident was respondent Stephen Huangs recklessness.

According to petitioner Del

Rosario, he was driving on the left innermost lane when the car bumped the trucks front

Four Million Pesos (P4,000,000.00) as moral damages;

court but reduced the award of moral damages to P1,000,000.00. The appellate court
also denied the motion for reconsideration filed by petitioners.

right tire. The truck then swerved to the left, smashed into an electric post, crossed the
Hence, this appeal.

center island, and stopped on the other side of the highway. The car likewise crossed
over the center island and landed on the same portion of C-5.

Further, petitioner
Petitioners cite the following grounds for their appeal:

Mercury Drug claims that it exercised due diligence of a good father of a family in the

1. That the subject Decision which dismissed the appeal of petitioners

herein but AFFIRMED WITH MODIFICATION the decision of the
Regional Trial Court, Branch 64, Makati City, in that the award of moral
damages was reduced to P1,000,000.00 and its Resolution dated March
30, 2006, which dismissed outright the Motion for Reconsideration must
be set aside because the Honorable Court of Appeals committed
reversible error:

selection and supervision of all its employees.

The trial court, in its Decision dated September 29, 2004, found petitioners
Mercury Drug and Del Rosario jointly and severally liable to pay respondents actual,
compensatory, moral and exemplary damages, attorneys fees, and litigation expenses.

A.

The dispositive portion reads:

WHEREFORE, judgment is rendered finding defendants Mercury
Drug Corporation, Inc. and Rolando del Rosario, jointly and severally

IN DENYING OUTRIGHTLY THE MOTION FOR

RECONSIDERATION ON ALLEGEDLY BEING FILED OUT OF
TIME FOR ONE DAY;

76
B.

C.

D.
E.

F.

G.

IN ACCORDING GREATER WEIGHT TO THE EVIDENCE

ADDUCED BY THE RESPONDENTS HEREIN AND COMPLETELY
DISREGARDING THE DEFENSE INTERPOSED BY THE
PETITIONERS HEREIN;

on its left side. He said that the car did not pass in front of him after it hit him or under

IN DISREGARDING COMPLETELY ALL EVIDENCES

PRESENTED BY THE PETITIONERS HEREIN AND PROCEEDED
TO RENDER ITS DECISION BASED ON PRESUMPTIONS AND
PERSONAL OPINIONS OF PEOPLE WHO ARE NOT
WITNESSES TO THE ACCIDENT;

landed on the opposite side, but would have been thrown to the right side of the C-5

him or over him or behind him. 7[7] If the truck were really at the left lane and the car
were at its right, and the car hit the truck at its front right side, the car would not have
Highway. Noteworthy on this issue is the testimony of Dr. Marlon Rosendo H. Daza, an
expert in the field of physics. He conducted a study based on the following assumptions
provided by respondents:

IN AWARDING DAMAGES IN FAVOR OF RESPONDENTS

HEREIN;
IN FINDING THAT MERCURY DRUG CORPORATION FAILED
TO EXERCISE THE DILIGENCE REQUIRED IN SUPERVISING
ITS EMPLOYEES DESPITE OVERWHELMING EVIDENCE
PRESENTED BY PETITIONER COMPANY;
IN FINDING THAT PETITIONER ROLANDO DEL ROSARIO
WAS NEGLIGENT IN DRIVING THE TRUCK AT THE TIME OF
ACCIDENT AND TOTALLY DISREGARDING THE EVIDENCES
PRESENTED DURING THE TRIAL OF THE CASE.
IN PRESENTING ONLY IN THE DECISION TESTIMONIES
FAVORABLE TO THE RESPONDENTS HEREIN AND
COMPLETELY DISREGARDING THE EVIDENCES PRESENTED
BY THE PETITIONERS HEREIN WHICH CONTRADICTED SUCH
TESTIMONIES NOT ONLY THROUGH ORAL TESTIMONIES BUT
AS WELL AS DOCUMENTARY EVIDENCES.5[5]

1.

Two vehicles collided;

2.

One vehicle is ten times heavier, more massive than the other;

3.

Both vehicles were moving in the same direction and at the same
speed of about 85 to 90 kilometers per hour;

4.

The heavier vehicle was driving at the innermost left lane, while the
lighter vehicle was at its right.

Dr. Daza testified that given the foregoing assumptions, if the lighter vehicle hits the right
front portion of the heavier vehicle, the general direction of the light vehicle after the
impact would be to the right side of the heavy vehicle, not the other way around. The
truck, he opined, is more difficult to move as it is heavier. It is the car, the lighter vehicle,
which would move to the right of, and away from the truck. Thus, there is very little
chance that the car will move towards the opposite side, i.e., to the left of the truck.

We affirm the findings of the trial court and the appellate court that petitioner Del
Dr. Daza also gave a further study on the basis of the same assumptions except

Rosario was negligent. The evidence does not support petitioners claim that at the time
of the accident, the truck was at the left inner lane and that it was respondent Stephen
Huangs car, at its right, which bumped the right front side of the truck. Firstly, petitioner
Del Rosario could not precisely tell which part of the truck was hit by the car,6[6] despite
the fact that the truck was snub-nosed and a lot higher than the car. Petitioner Del
Rosario could not also explain why the car landed on the opposite lane of C-5 which was

5
6

that the car is on the left side of the truck, in accordance with the testimony of
respondent Stephen Huang. Dr. Daza concluded that the general direction of the car
after impact would be to the left of the truck. In this situation, the middle island against
which the car was pinned would slow down the car, and enable the truck to catch up and
hit the car again, before running over it.8[8]

7
8

77
To support their thesis, petitioners tried to show the damages that the truck
sustained at its front right side.

The attempt does not impress.

And this was despite the fact that you were only traveling at the
speed of seventy five kilometers per hour, jumped over the island, hit
the lamppost, and traveled the three lanes of the opposite lane of C-5
highway, is that what you want to impress upon this court?

The photographs

presented were taken a month after the accident, and Rogelio Pantua, the automechanic
who repaired the truck and authenticated the photographs, admitted that there were

WITNESS:

damages also on the left side of the truck.9[9]

Yes, sir.10[10]

Worse still, petitioner Del Rosario further admitted that after the impact, he lost

We therefore find no cogent reason to disturb the findings of the RTC and the

control of the truck and failed to apply his brakes. Considering that the car was smaller

Court of Appeals. The evidence proves petitioner Del Rosarios negligence as the direct

and lighter than the six-wheeler truck, the impact allegedly caused by the car when it hit

and proximate cause of the injuries suffered by respondent Stephen Huang. Petitioner

the truck could not possibly be so great to cause petitioner to lose all control that he

Del Rosario failed to do what a reasonable and prudent man would have done under the

failed to even step on the brakes. He testified, as follows:

circumstances.

ATTY. DIAZ:
May I proceed, Your Honor. You were able to apply the brakes, were
you sir?

We now come to the liability of petitioner Mercury Drug as employer of Del

Rosario. Articles 2176 and 2180 of the Civil Code provide:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.

WITNESS:
No more, sir, because I went over the island.
ATTY. DIAZ:
Because as you said you lost control, correct sir?

Art. 2180. The obligation imposed by article 2176 is demandable

not only for ones own acts or omissions, but also for those of persons for
whom one is responsible.

WITNESS:
Yes, sir.

xxx

ATTY. DIAZ:

The owners and managers of an establishment or enterprise are

likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.

In other words, sir from the time your truck was hit according to you
up to the time you rested on the shoulder, you traveled fifty meters?
WITNESS:

xxx

Yes, sir, about that distance.

ATTY. DIAZ:

10

78
The liability of the employer under Art. 2180 of the Civil Code is direct or

for long trips. At the time of the accident, petitioner Del Rosario has been out on the road

immediate. It is not conditioned on a prior recourse against the negligent employee, or a

for more than thirteen hours, without any alternate. Mrs. Caamic testified that she does

prior showing of insolvency of such employee.

not know of any company policy requiring back-up drivers for long trips. 14[14]

It is also joint and solidary with the

employee.11[11]
Petitioner Mercury Drug likewise failed to show that it exercised due diligence on
To be relieved of liability, petitioner Mercury Drug should show that it exercised

the supervision and discipline over its employees. In fact, on the day of the accident,

the diligence of a good father of a family, both in the selection of the employee and in the

petitioner Del Rosario was driving without a license. He was holding a TVR for reckless

supervision of the performance of his duties. Thus, in the selection of its prospective

driving. He testified that he reported the incident to his superior, but nothing was done

employees, the employer is required to examine them as to their qualifications,

about it.

experience, and service records.12[12] With respect to the supervision of its employees,

whatsoever was taken against petitioner Del Rosario. We therefore affirm the finding

the

that petitioner Mercury Drug has failed to discharge its burden of proving that it exercised

employer

should

formulate

standard

operating

procedures,

implementation, and impose disciplinary measures for their breach.

monitor

their

To establish

He was not suspended or reprimanded. 15[15]

No disciplinary action

due diligence in the selection and supervision of its employee, petitioner Del Rosario.

compliance with these requirements, employers must submit concrete proof, including
documentary evidence.13[13]

We now consider the damages which respondents should recover from the
petitioners.

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring
procedure. According to Mrs. Merlie Caamic, the Recruitment and Training Manager of
petitioner Mercury Drug, applicants are required to take theoretical and actual driving
tests, and psychological examination. In the case of petitioner Del Rosario, however,
Mrs. Caamic admitted that he took the driving tests and psychological examination when
he applied for the position of Delivery Man, but not when he applied for the position of
Truck Man. Mrs. Caamic also admitted that petitioner Del Rosario used a Galant which
is a light vehicle, instead of a truck during the driving tests. Further, no tests were
conducted on the motor skills development, perceptual speed, visual attention, depth
visualization, eye and hand coordination and steadiness of petitioner Del Rosario. No
NBI and police clearances were also presented. Lastly, petitioner Del Rosario attended
only three driving seminars on June 30, 2001, February 5, 2000 and July 7, 1984. In
effect, the only seminar he attended before the accident which occurred in 1996 was
held twelve years ago in 1984.

The trial court awarded the following amounts:

1.
2.

It also appears that petitioner Mercury Drug does not provide for a back-up driver

11

14

12
13

15

Two Million Nine Hundred Seventy-Three Thousand Pesos

(P2,973,000.00) actual damages;
As compensatory damages:
a.

Twenty-Three Million Four Hundred Sixty One Thousand, and

Sixty-Two Pesos (P23,461,062.00) for life care cost of Stephen;

b.

Ten Million Pesos (P10,000,000.00) as and for lost or impaired

earning capacity of Stephen;

3.

Four Million Pesos (P4,000,000.00) as moral damages;

4.

Two Million Pesos (P2,000,000.00) as exemplary damages; and

79
5.

One Million Pesos (P1,000,000.00) as attorneys fees and litigation

expense.

The Court of Appeals affirmed the decision of the trial court but reduced the

probable life expectancy, the state of his health, and his mental and physical condition
before the accident. He was only seventeen years old, nearly six feet tall and weighed
175 pounds. He was in fourth year high school, and a member of the school varsity
basketball team. He was also class president and editor-in-chief of the school annual.

award of moral damages to P1,000,000.00.

He had shown very good leadership qualities. He was looking forward to his college life,
With regard to actual damages, Art. 2199 of the Civil Code provides that
[E]xcept as provided by law or by stipulation one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved x x x.
In the instant case, we uphold the finding that the actual damages claimed by
respondents were supported by receipts. The amount of P2,973,000.00 represented
cost of hospital expenses, medicines, medical services and supplies, and nursing care
services provided respondent Stephen from December 20, 1996, the day of the accident,

having just passed the entrance examinations of the University of the Philippines, De La
Salle University, and the University of Asia and the Pacific. The University of Sto. Tomas
even offered him a chance to obtain an athletic scholarship, but the accident prevented
him from attending the basketball try-outs.

Without doubt, he was an exceptional

student. He excelled both in his academics and extracurricular undertakings. He is

intelligent and motivated, a go-getter, as testified by Francisco Lopez, respondent
Stephen Huangs godfather and a bank executive. 18[18] Had the accident not happened,
he had a rosy future ahead of him. He wanted to embark on a banking career, get

until December 1998.

married and raise children. Taking into account his outstanding abilities, he would have
Petitioners are also liable for all damages which are the natural and probable
consequences of the act or omission complained of. 16[16] The doctors who attended to
respondent Stephen are one in their prognosis that his chances of walking again and
performing basic body functions are nil. For the rest of his life, he will need continuous

enjoyed a successful professional career in banking. But, as Mr. Lopez stated, it is

highly unlikely for someone like respondent to ever secure a job in a bank. To his
knowledge, no bank has ever hired a person suffering withthe kind of disability as
Stephen Huangs.19[19]

rehabilitation and therapy to prevent further complications such as pneumonia, bladder

We likewise uphold the award of moral and exemplary damages and attorneys

and rectum infection, renal failure, sepsis and severe bed sores, osteoporosis and
fractures, and other spinal cord injury-related conditions.
dependent on the care and support of his family.

He will be completely

fees.

We thus affirm the award of

The award of moral damages is aimed at a restoration, within the limits of the

P23,461,062.00 for the life care cost of respondent Stephen Huang, based on his
average monthly expense and the actuarial computation of the remaining years that he is
expected to live; and the conservative amount of P10,000,000.00, as reduced by the trial

possible, of the spiritual status quo ante. 20[20]

Moral damages are designed to

compensate and alleviate in some way the physical suffering, mental anguish, fright,

court, for the loss or impairment of his earning capacity,17[17] considering his age,

16

18

17

19
20

80
serious anxiety, besmirched reputation, wounded feelings, moral shock, social

all the resources to help us. They were (sic) on our part, it was doubly
painful because we have no choice but to go back to them and buy the
medicines that we need for Stephen. So, I dont know how someone will
really have no sense of decency at all to at least find out what happened
to my son, what is his condition, or if there is anything that they can do to
help us.22[22]

humiliation, and similar injury unjustly caused a person. Although incapable of pecuniary
computation, they must be proportionate to the suffering inflicted. 21[21] The amount of
the award bears no relation whatsoever with the wealth or means of the offender.
In the instant case, respondent Stephen Huang and respondent spouses Richard

On the matter of exemplary damages, Art. 2231 of the Civil Code provides that in

and Carmen Huang testified to the intense suffering they continue to experience as a

cases of quasi-delicts, exemplary damages may be granted if the defendant acted with

result of the accident. Stephen recounted the nightmares and traumas he suffers almost

gross negligence. The records show that at the time of the accident, petitioner Del

every night when he relives the accident. He also gets depression when he thinks of his

Rosario was driving without a license because he was previously ticketed for reckless

bleak future.

driving. The evidence also shows that he failed to step on his brakes immediately after

He feels frustration and embarrassment in needing to be helped with

almost everything and in his inability to do simple things he used to do.

Similarly,

the impact. Had petitioner Del Rosario done so, the injuries which respondent Stephen

respondent spouses and the rest of the family undergo their own private suffering. They

sustained could have been greatly reduced. Wanton acts such as that committed by

live with the day-to-day uncertainty of respondent Stephen Huangs condition. They

petitioner Del Rosario need be suppressed; and employers like petitioner Mercury Drug

know that the chance of full recovery is nil. Moreover, respondent Stephen Huangs

should be more circumspect in the observance of due diligence in the selection and

paralysis has made him prone to many other illnesses. His family, especially respondent

supervision of their employees.

spouses, have to make themselves available for Stephen twenty-four hours a day. They

respondents is therefore justified.

The award of exemplary damages in favor of the

have patterned their daily life around taking care of him, ministering to his daily needs,
With the award of exemplary damages, we also affirm the grant of attorneys fees

altering the lifestyle to which they had been accustomed.

to respondents.23[23]
Respondent Carmen Huangs brother testified on the insensitivity of petitioner
Mercury Drug towards the plight of respondent. Stephen, viz.:
Maybe words cannot describe the anger that we feel towards the
defendants. All the time that we were going through the crisis, there was
none (sic) a single sign of nor offer of help, any consolation or anything
whatsoever. It is funny because, you know, I have many colleagues,
business associates, people even as far as United States, Japan, that I
probably met only once, when they found out, they make a call, they sent
card, they write small notes, but from the defendant, absolute silence.
They didnt care, and worst, you know, this is a company that have (sic)

21

In addition, attorneys fees may be granted when a party is

compelled to litigate or incur expenses to protect his interest by reason of an unjustified

act of the other party.24[24]
Cost against petitioners.

22
23
24

81
IN VIEW THEREOF, the petition is DENIED. The Decision and Resolution of the
Court of Appeals dated February 16, 2006 and March 30, 2006, respectively, in CA-G.R.

as a result of the collision, even if it be true that the collision was due to the negligence of
the chauffeur; and (c) in rendering judgment against the defendant for the sum of
P14,741.

CV No. 83981, are AFFIRMED.

The trial court's findings of fact, which are fully supported by the record, are as follows:
SO ORDERED. REYNATO S. PUNO

Chief Justice

C. STATE

G.R. No. L-11154

March 21, 1916

E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avancea for defendant..
TRENT, J.:
This is an appeal by both parties from a judgment of the Court of First Instance of the city
of Manila in favor of the plaintiff for the sum of P14,741, together with the costs of the
cause.
Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages
which the plaintiff suffered to P5,000, instead of P25,000 as claimed in the complaint,"
and (2) "in limiting the time when plaintiff was entirely disabled to two months and twentyone days and fixing the damage accordingly in the sum of P2,666, instead of P6,000 as
claimed by plaintiff in his complaint."
The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in
finding that the collision between the plaintiff's motorcycle and the ambulance of the
General Hospital was due to the negligence of the chauffeur; (b) in holding that the
Government of the Philippine Islands is liable for the damages sustained by the plaintiff

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding
on a motorcycle, was going toward the western part of Calle Padre Faura,
passing along the west side thereof at a speed of ten to twelve miles an hour,
upon crossing Taft Avenue and when he was ten feet from the southwestern
intersection of said streets, the General Hospital ambulance, upon reaching said
avenue, instead of turning toward the south, after passing the center thereof, so
that it would be on the left side of said avenue, as is prescribed by the ordinance
and the Motor Vehicle Act, turned suddenly and unexpectedly and long before
reaching the center of the street, into the right side of Taft Avenue, without having
sounded any whistle or horn, by which movement it struck the plaintiff, who was
already six feet from the southwestern point or from the post place there.
By reason of the resulting collision, the plaintiff was so severely injured that,
according to Dr. Saleeby, who examined him on the very same day that he was
taken to the General Hospital, he was suffering from a depression in the left
parietal region, a would in the same place and in the back part of his head, while
blood issued from his nose and he was entirely unconscious.
The marks revealed that he had one or more fractures of the skull and that the
grey matter and brain was had suffered material injury. At ten o'clock of the night
in question, which was the time set for performing the operation, his pulse was so
weak and so irregular that, in his opinion, there was little hope that he would live.
His right leg was broken in such a way that the fracture extended to the outer
skin in such manner that it might be regarded as double and the would be
exposed to infection, for which reason it was of the most serious nature.
At another examination six days before the day of the trial, Dr. Saleeby noticed
that the plaintiff's leg showed a contraction of an inch and a half and a curvature
that made his leg very weak and painful at the point of the fracture. Examination
of his head revealed a notable readjustment of the functions of the brain and
nerves. The patient apparently was slightly deaf, had a light weakness in his
eyes and in his mental condition. This latter weakness was always noticed when
the plaintiff had to do any difficult mental labor, especially when he attempted to
use his money for mathematical calculations.

82
According to the various merchants who testified as witnesses, the plaintiff's
mental and physical condition prior to the accident was excellent, and that after
having received the injuries that have been discussed, his physical condition had
undergone a noticeable depreciation, for he had lost the agility, energy, and
ability that he had constantly displayed before the accident as one of the best
constructors of wooden buildings and he could not now earn even a half of the
income that he had secured for his work because he had lost 50 per cent of his
efficiency. As a contractor, he could no longer, as he had before done, climb up
ladders and scaffoldings to reach the highest parts of the building.
As a consequence of the loss the plaintiff suffered in the efficiency of his work as
a contractor, he had to dissolved the partnership he had formed with the
engineer. Wilson, because he was incapacitated from making mathematical
calculations on account of the condition of his leg and of his mental faculties, and
he had to give up a contract he had for the construction of the Uy Chaco
building."
We may say at the outset that we are in full accord with the trial court to the effect that
the collision between the plaintiff's motorcycle and the ambulance of the General
Hospital was due solely to the negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which are drawn in question by
the plaintiff are (a) P5,000, the award awarded for permanent injuries, and (b) the
P2,666, the amount allowed for the loss of wages during the time the plaintiff was
incapacitated from pursuing his occupation. We find nothing in the record which would
justify us in increasing the amount of the first. As to the second, the record shows, and
the trial court so found, that the plaintiff's services as a contractor were worth P1,000 per
month. The court, however, limited the time to two months and twenty-one days, which
the plaintiff was actually confined in the hospital. In this we think there was error,
because it was clearly established that the plaintiff was wholly incapacitated for a period
of six months. The mere fact that he remained in the hospital only two months and
twenty-one days while the remainder of the six months was spent in his home, would not
prevent recovery for the whole time. We, therefore, find that the amount of damages
sustained by the plaintiff, without any fault on his part, is P18,075.
As the negligence which caused the collision is a tort committed by an agent or
employee of the Government, the inquiry at once arises whether the Government is
legally-liable for the damages resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:

An Act authorizing E. Merritt to bring suit against the Government of the

Philippine Islands and authorizing the Attorney-General of said Islands to appear
in said suit.
Whereas a claim has been filed against the Government of the Philippine Islands
by Mr. E. Merritt, of Manila, for damages resulting from a collision between his
motorcycle and the ambulance of the General Hospital on March twenty-fifth,
nineteen hundred and thirteen;
Whereas it is not known who is responsible for the accident nor is it possible to
determine the amount of damages, if any, to which the claimant is entitled; and
Whereas the Director of Public Works and the Attorney-General recommended
that an Act be passed by the Legislature authorizing Mr. E. Merritt to bring suit in
the courts against the Government, in order that said questions may be decided:
Now, therefore,
By authority of the United States, be it enacted by the Philippine Legislature,
that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First
Instance of the city of Manila against the Government of the Philippine Islands in
order to fix the responsibility for the collision between his motorcycle and the
ambulance of the General Hospital, and to determine the amount of the
damages, if any, to which Mr. E. Merritt is entitled on account of said collision,
and the Attorney-General of the Philippine Islands is hereby authorized and
directed to appear at the trial on the behalf of the Government of said Islands, to
defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit
or did it also concede its liability to the plaintiff? If only the former, then it cannot be held
that the Act created any new cause of action in favor of the plaintiff or extended the
defendant's liability to any case not previously recognized.
All admit that the Insular Government (the defendant) cannot be sued by an individual
without its consent. It is also admitted that the instant case is one against the
Government. As the consent of the Government to be sued by the plaintiff was entirely

83
voluntary on its part, it is our duty to look carefully into the terms of the consent, and
render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order to fix
the responsibility for the collision between his motorcycle and the ambulance of the
General Hospital and to determine the amount of the damages, if any, to which Mr. E.
Merritt is entitled on account of said collision, . . . ." These were the two questions
submitted to the court for determination. The Act was passed "in order that said
questions may be decided." We have "decided" that the accident was due solely to the
negligence of the chauffeur, who was at the time an employee of the defendant, and we
have also fixed the amount of damages sustained by the plaintiff as a result of the
collision. Does the Act authorize us to hold that the Government is legally liable for that
amount? If not, we must look elsewhere for such authority, if it exists.
The Government of the Philippine Islands having been "modeled after the Federal and
State Governments in the United States," we may look to the decisions of the high courts
of that country for aid in determining the purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable for the torts committed by its
officers or agents whom it employs, except when expressly made so by legislative
enactment, is well settled. "The Government," says Justice Story, "does not undertake to
guarantee to any person the fidelity of the officers or agents whom it employs, since that
would involve it in all its operations in endless embarrassments, difficulties and losses,
which would be subversive of the public interest." (Claussen vs. City of Luverne, 103
Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States,
20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages
from the state for personal injuries received on account of the negligence of the state
officers at the state fair, a state institution created by the legislature for the purpose of
improving agricultural and kindred industries; to disseminate information calculated to
educate and benefit the industrial classes; and to advance by such means the material
interests of the state, being objects similar to those sought by the public school system.
In passing upon the question of the state's liability for the negligent acts of its officers or
agents, the court said:
No claim arises against any government is favor of an individual, by reason of the
misfeasance, laches, or unauthorized exercise of powers by its officers or
agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51,
53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158;
Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203;
Story on Agency, sec. 319.)

As to the scope of legislative enactments permitting individuals to sue the state where
the cause of action arises out of either fort or contract, the rule is stated in 36 Cyc., 915,
thus:
By consenting to be sued a state simply waives its immunity from suit. It does not
thereby concede its liability to plaintiff, or create any cause of action in his favor,
or extend its liability to any cause not previously recognized. It merely gives a
remedy to enforce a preexisting liability and submits itself to the jurisdiction of the
court, subject to its right to interpose any lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the
Act of 1913, which authorized the bringing of this suit, read:
SECTION 1. Authority is hereby given to George Apfelbacher, of the town of
Summit, Waukesha County, Wisconsin, to bring suit in such court or courts and in
such form or forms as he may be advised for the purpose of settling and
determining all controversies which he may now have with the State of
Wisconsin, or its duly authorized officers and agents, relative to the mill property
of said George Apfelbacher, the fish hatchery of the State of Wisconsin on the
Bark River, and the mill property of Evan Humphrey at the lower end of
Nagawicka Lake, and relative to the use of the waters of said Bark River and
Nagawicka Lake, all in the county of Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law the legislature admitted liability
on the part of the state for the acts of its officers, and that the suit now stands just
as it would stand between private parties. It is difficult to see how the act does, or
was intended to do, more than remove the state's immunity from suit. It simply
gives authority to commence suit for the purpose of settling plaintiff's
controversies with the estate. Nowhere in the act is there a whisper or suggestion
that the court or courts in the disposition of the suit shall depart from well
established principles of law, or that the amount of damages is the only question
to be settled. The act opened the door of the court to the plaintiff. It did not pass
upon the question of liability, but left the suit just where it would be in the
absence of the state's immunity from suit. If the Legislature had intended to
change the rule that obtained in this state so long and to declare liability on the
part of the state, it would not have left so important a matter to mere inference,
but would have done so in express terms. (Murdock Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)

84
In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and
considered, are as follows:
All persons who have, or shall hereafter have, claims on contract or for
negligence against the state not allowed by the state board of examiners, are
hereby authorized, on the terms and conditions herein contained, to bring suit
thereon against the state in any of the courts of this state of competent
jurisdiction, and prosecute the same to final judgment. The rules of practice in
civil cases shall apply to such suits, except as herein otherwise provided.
And the court said:
This statute has been considered by this court in at least two cases, arising
under different facts, and in both it was held that said statute did not create any
liability or cause of action against the state where none existed before, but
merely gave an additional remedy to enforce such liability as would have existed
if the statute had not been enacted. (Chapman vs. State, 104 Cal., 690; 43 Am.
St. Rep., 158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all
claims against the commonwealth, whether at law or in equity," with an exception not
necessary to be here mentioned. In construing this statute the court, in Murdock Grate
Co. vs. Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no intention to create against the state a
new and heretofore unrecognized class of liabilities, but only an intention to
provide a judicial tribunal where well recognized existing liabilities can be
adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms
of the statute of New York, jurisdiction of claims for damages for injuries in the
management of the canals such as the plaintiff had sustained, Chief Justice Ruger
remarks: "It must be conceded that the state can be made liable for injuries arising from
the negligence of its agents or servants, only by force of some positive statute assuming
such liability."
It being quite clear that Act No. 2457 does not operate to extend the Government's
liability to any cause not previously recognized, we will now examine the substantive law
touching the defendant's liability for the negligent acts of its officers, agents, and
employees. Paragraph 5 of article 1903 of the Civil Code reads:

The state is liable in this sense when it acts through a special agent, but not
when the damage should have been caused by the official to whom properly it
pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.
The supreme court of Spain in defining the scope of this paragraph said:
That the obligation to indemnify for damages which a third person causes to
another by his fault or negligence is based, as is evidenced by the same Law 3,
Title 15, Partida 7, on that the person obligated, by his own fault or negligence,
takes part in the act or omission of the third party who caused the damage. It
follows therefrom that the state, by virtue of such provisions of law, is not
responsible for the damages suffered by private individuals in consequence of
acts performed by its employees in the discharge of the functions pertaining to
their office, because neither fault nor even negligence can be presumed on the
part of the state in the organization of branches of public service and in the
appointment of its agents; on the contrary, we must presuppose all foresight
humanly possible on its part in order that each branch of service serves the
general weal an that of private persons interested in its operation. Between these
latter and the state, therefore, no relations of a private nature governed by the
civil law can arise except in a case where the state acts as a judicial person
capable of acquiring rights and contracting obligations. (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which
arise out of fault or negligence; and whereas in the first article thereof. No. 1902,
where the general principle is laid down that where a person who by an act or
omission causes damage to another through fault or negligence, shall be obliged
to repair the damage so done, reference is made to acts or omissions of the
persons who directly or indirectly cause the damage, the following articles refers
to this persons and imposes an identical obligation upon those who maintain
fixed relations of authority and superiority over the authors of the damage,
because the law presumes that in consequence of such relations the evil caused
by their own fault or negligence is imputable to them. This legal presumption
gives way to proof, however, because, as held in the last paragraph of article
1903, responsibility for acts of third persons ceases when the persons mentioned
in said article prove that they employed all the diligence of a good father of a
family to avoid the damage, and among these persons, called upon to answer in
a direct and not a subsidiary manner, are found, in addition to the mother or the
father in a proper case, guardians and owners or directors of an establishment or
enterprise, the state, but not always, except when it acts through the agency of a
special agent, doubtless because and only in this case, the fault or negligence,

85
which is the original basis of this kind of objections, must be presumed to lie with
the state.
That although in some cases the state might by virtue of the general principle set
forth in article 1902 respond for all the damage that is occasioned to private
parties by orders or resolutions which by fault or negligence are made by
branches of the central administration acting in the name and representation of
the state itself and as an external expression of its sovereignty in the exercise of
its executive powers, yet said article is not applicable in the case of damages
said to have been occasioned to the petitioners by an executive official, acting in
the exercise of his powers, in proceedings to enforce the collections of certain
property taxes owing by the owner of the property which they hold in sublease.
That the responsibility of the state is limited by article 1903 to the case wherein it
acts through a special agent (and a special agent, in the sense in which these
words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special
official) so that in representation of the state and being bound to act as an agent
thereof, he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the acting administration and who on
his own responsibility performs the functions which are inherent in and naturally
pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of the Civil Code and the principle
laid down in a decision, among others, of the 18th of May, 1904, in a damage
case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform
some act or charged with some definite purpose which gives rise to the claim,
and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to
the proper responsibility in the manner laid down by the law of civil responsibility.
Consequently, the trial court in not so deciding and in sentencing the said entity
to the payment of damages, caused by an official of the second class referred to,
has by erroneous interpretation infringed the provisions of articles 1902 and 1903
of the Civil Code. (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)
It is, therefore, evidence that the State (the Government of the Philippine Islands) is only
liable, according to the above quoted decisions of the Supreme Court of Spain, for the
acts of its agents, officers and employees when they act as special agents within the
meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the ambulance
of the General Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs
in this instance. Whether the Government intends to make itself legally liable for the
amount of damages above set forth, which the plaintiff has sustained by reason of the
negligent acts of one of its employees, by legislative enactment and by appropriating
sufficient funds therefor, we are not called upon to determine. This matter rests solely
with the Legislature and not with the courts.
Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-1120

August 31, 1948

INOCENCIO ROSETE, petitioner,

vs.
THE AUDITOR GENERAL, respondent.
Quijano, Rosete and Tizon for petitioner.
First Assistant Solicitor General Jose B. L. Reyes and Solicitor Manuel Tomacruz for
respondent.
FERIA, J.:
This is an appeal from the decision of the Insular Auditor denying the claim of Inocencio
Rosete and others against the Government in the amount of P35,376, for damages
caused to buildings belonging to the claimant, which according to the appellant's claim
were destroyed by fire that came from the contiguous warehouse of the Emergency
Control Administration, ECA, located at No. 2262 Azcarraga, due to the negligence of a
certain Jose Frayno y Panlilio in igniting recklessly his cigarette-lighter near a five gallon
drum into which gasoline was being drained, and of the officers of the said ECA, which is
an office or agency of the Government, in storing gasoline in said warehouse contrary to
the provisions of Ordinances of the City of Manila.
It is not necessary for us to pass upon the facts alleged by the appellant, but only on the
question whether, assuming them to be true, the Insular Auditor erred in denying or
dismissing the appellant's claim.
The claimant contends that the Auditor General erred in not finding that the government
agency or instrumentality known as the Emergency Control Administration of the officers
thereof, were guilty of negligence in storing a highly combustible and inflammable
substance in its warehouse on bodega in Manila in violation of City Ordinances, and

86
therefore the government is liable for the damages sustained by the claimant under
article 1903 of the Civil Code, which in its pertinent part reads as follows:
ART. 1903. The obligation imposed by the preceding article is enforceable not
only for personal acts and omissions but also for those persons for whom
another is responsible.
xxx

xxx

xxx

The state is liable in the scene when it acts through a special agent, but not when
the damage should have been caused by the official to whom it properly
pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.
In the case of Merritt vs. Government of the Philippine Islands (34 Phil., 311), this Court
held the following:
. . . Paragraph 5 of article 1903 of the Civil Code reads:
"The state is liable in this sense when it acts through a special agent, but not
when the damage should have been caused by the official to whom properly it
pertained to do the act performed, in which cast the provisions of the preceding
article shall be applicable."
The supreme court of Spain in defining the scope of this paragraph said:
"That the obligation to indemnify for damages which a third person causes to
another by his fault or negligence is based, as is evidenced by the same Law 3,
Title 15, Partida 7, on that the person obligated, by his own fault or negligence,
takes part in the act or omission of the third party who caused the damage. It
follows therefrom that the state, by virtue of such provisions of law, is not
responsible for the damage suffered by private individuals in consequence of
acts performed by its employees in the discharge of the functions pertaining to
their office, because neither fault nor even negligence can be presumed on the
part of the state in the organization of branches of the public service and the
appointment of its agents; on the contrary, we must presuppose all foresight
humanly possible on its part in order that each branch of service serves the
general weal and that of private persons interested in its operation. Between
these latter and the state, therefore, no relations of a private nature governed by
the civil law can arise except in a case where the state acts as a judicial person

capable of acquiring rights and contracting obligations." (Supreme Court of

Spain, January 7, 1898; 83 Jur. Civ., 24.).
xxx

xxx

xxx

"That the responsibility of the state is limited by article 1903 to the case wherein it
acts through a special agent (and a special agent, in the sense in which these
words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special
official) so that in representation of the state and being bound to act as an agent
thereof, he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the active administration and who on
his own responsibility performs the functions which are inherent in and naturally
pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.).
"That according to paragraph 5 of article 1903 of the Civil Code and the principle
laid down in a decision, among others, of the 18th of May, 1904, in a damage
case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform
some act or charged with some definite purpose which gives rise to the claim,
and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to
the proper responsibility. Consequently, the trial court in not so deciding and in
sentencing the said entity to the payment of damages, caused by an official of
the second class referred to, has by erroneous interpretation infringed the
provisions of article 1902 and 1903 of the Civil Code.' (Supreme Court of Spain,
July 30, 1911; 122 Jur. Civ., 146.)"
There being no showing that whatever negligence may be imputed to the Emergency
Control Administration or its officers, was done by an special agent, because the officers
of the Emergency Control Administration did not act as special agents of the government
within the above defined meaning of that word in article 1903 of the Civil Code in storing
gasoline in warehouse of the ECA, the government is not responsible for the damages
caused through such negligence.
The case of Marine Trading vs. Government, 39 Phil., 29, cited by the appellant, is
inapplicable, because the plaintiff in that case recovered under the special provisions of
articles 862, 827, 828 and 830 of the Code of Commerce and the Philippine Marine
Regulations of the Collector of Customs, regarding collision of vessels, and not on the
ground of tort in general provided for in article 1903 of the Civil Code.

87
Act No. 327, in authorizing the filing of claims against the Government with the Insular
Auditor, and appeal by the private persons or entities from the latter's decision to the
Supreme Court, does not make any and all claims against the Government allowable,
and the latter responsible for all claims which may be filed with the Insular Auditor under
the provisions of said Act.

Felicisimo C. Villaflor for NIA.

In view of the foregoing, the decision appealed from is affirmed.

In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the
decision dated March 20, 1980 of the then Court of First Instance of Nueva Ecija, Branch
VIII, at San Jose City and its modification with respect to the denial of petitioner's claim
for moral and exemplary damages and attorneys fees.

Paras, Actg. C.J., Pablo Bengzon, Briones, Padilla, and Tuason, JJ., concur.

PARAS, J.:

In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of
the aforesaid decision of the lower court. The original appeal of this case before the
Court of Appeals was certified to this Court and in the resolution of July 7, 1982, it was
docketed with the aforecited number. And in the resolution of April 3, this case was
consolidated with G.R. No. 55963.
It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by
respondent National Irrigation Administration, a government agency bearing Plate No.
IN-651, then driven officially by Hugo Garcia, an employee of said agency as its regular
driver, bumped a bicycle ridden by Francisco Fontanilla, son of herein petitioners, and
Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway. As a result of
the impact, Francisco Fontanilla and Restituto Deligo were injured and brought to the
San Jose City Emergency Hospital for treatment. Fontanilla was later transferred to the
Cabanatuan Provincial Hospital where he died.
G.R. No. L-55963 December 1, 1989
SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,
vs.
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION
ADMINISTRATION, respondents.
G.R. No. L-61045 December 1, 1989
NATIONAL IRRIGATION ADMINISTRATION, appellant,
vs.
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.
Cecilio V. Suarez, Jr. for Spouses Fontanilla.

Garcia was then a regular driver of respondent National Irrigation Administration who, at
the time of the accident, was a licensed professional driver and who qualified for
employment as such regular driver of respondent after having passed the written and
oral examinations on traffic rules and maintenance of vehicles given by National
Irrigation Administration authorities.
The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by
petitioners-spouses on April 17, 1978 against respondent NIA before the then Court of
First Instance of Nueva Ecija, Branch VIII at San Jose City, for damages in connection
with the death of their son resulting from the aforestated accident.
After trial, the trial court rendered judgment on March 20, 1980 which directed
respondent National Irrigation Administration to pay damages (death benefits) and actual
expenses to petitioners. The dispositive portion of the decision reads thus:

88
. . . . . Judgment is here rendered ordering the defendant National
Irrigation Administration to pay to the heirs of the deceased P12,000.00
for the death of Francisco Fontanilla; P3,389.00 which the parents of the
deceased had spent for the hospitalization and burial of the deceased
Francisco Fontanilla; and to pay the costs. (Brief for the petitioners
spouses Fontanilla, p. 4; Rollo, p. 132)
Respondent National Irrigation Administration filed on April 21, 1980, its motion for
reconsideration of the aforesaid decision which respondent trial court denied in its Order
of June 13, 1980. Respondent National Irrigation Administration thus appealed said
decision to the Court of Appeals (C.A.-G.R. No. 67237- R) where it filed its brief for
appellant in support of its position.
Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed
the instant petition with this Court.
The sole issue for the resolution of the Court is: Whether or not the award of moral
damages, exemplary damages and attorney's fees is legally proper in a complaint for
damages based on quasi-delict which resulted in the death of the son of herein
petitioners.
Petitioners allege:

3. Petitioners are entitled to an award of attorney's fees, the amount of

which (20%) had been sufficiently established in the hearing of May 23,
1979.
4. This petition has been filed only for the purpose of reviewing the
findings of the lower court upon which the disallowance of moral
damages, exemplary damages and attorney's fees was based and not for
the purpose of disturbing the other findings of fact and conclusions of law.
The Solicitor General, taking up the cudgels for public respondent National Irrigation
Administration, contends thus:
1. The filing of the instant petition is rot proper in view of the appeal taken
by respondent National Irrigation Administration to the Court of Appeals
against the judgment sought to be reviewed. The focal issue raised in
respondent's appeal to the Court of Appeals involves the question as to
whether or not the driver of the vehicle that bumped the victims was
negligent in his operation of said vehicle. It thus becomes necessary that
before petitioners' claim for moral and exemplary damages could be
resolved, there should first be a finding of negligence on the part of
respondent's employee-driver. In this regard, the Solicitor General alleges
that the trial court decision does not categorically contain such finding.

1. The award of moral damages is specifically allowable. under

paragraph 3 of Article 2206 of the New Civil Code which provides that the
spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of
the death of the deceased. Should moral damages be granted, the award
should be made to each of petitioners-spouses individually and in varying
amounts depending upon proof of mental and depth of intensity of the
same, which should not be less than P50,000.00 for each of them.

2. The filing of the "Appearance and Urgent Motion For Leave to File
Plaintiff-Appellee's Brief" dated December 28, 1981 by petitioners in the
appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent
National Irrigation Administration before the Court of Appeals, is an
explicit admission of said petitioners that the herein petition, is not proper.
Inconsistent procedures are manifest because while petitioners question
the findings of fact in the Court of Appeals, they present only the
questions of law before this Court which posture confirms their admission
of the facts.

2. The decision of the trial court had made an impression that respondent
National Irrigation Administration acted with gross negligence because of
the accident and the subsequent failure of the National Irrigation
Administration personnel including the driver to stop in order to give
assistance to the, victims. Thus, by reason of the gross negligence of
respondent, petitioners become entitled to exemplary damages under
Arts. 2231 and 2229 of the New Civil Code.

3. The fact that the parties failed to agree on whether or not negligence
caused the vehicular accident involves a question of fact which
petitioners should have brought to the Court of Appeals within the
reglementary period. Hence, the decision of the trial court has become
final as to the petitioners and for this reason alone, the petition should be
dismissed.
4. Respondent Judge acted within his jurisdiction, sound discretion and in
conformity with the law.

89
5. Respondents do not assail petitioners' claim to moral and exemplary
damages by reason of the shock and subsequent illness they suffered
because of the death of their son. Respondent National Irrigation
Administration, however, avers that it cannot be held liable for the
damages because it is an agency of the State performing governmental
functions and driver Hugo Garcia was a regular driver of the vehicle, not
a special agent who was performing a job or act foreign to his usual
duties. Hence, the liability for the tortious act should. not be borne by
respondent government agency but by driver Garcia who should answer
for the consequences of his act.
6. Even as the trial court touched on the failure or laxity of respondent
National Irrigation Administration in exercising due diligence in the
selection and supervision of its employee, the matter of due diligence is
not an issue in this case since driver Garcia was not its special agent but
a regular driver of the vehicle.
The sole legal question on whether or not petitioners may be entitled to an award of
moral and exemplary damages and attorney's fees can very well be answered with the
application of Arts. 2176 and 2180 of theNew Civil Code.
Art. 2176 thus provides:
Whoever by act omission causes damage to another, there being fault or
negligence, is obliged to pay for damage done. Such fault or negligence,
if there is no pre-existing cotractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this Chapter
Paragraphs 5 and 6 of Art. 21 80 read as follows:
Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks,
even the though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special
agent.; but not when the damage has been caused by the official to
whom the task done properly pertains, in which case what is provided in
Art. 2176 shall be applicable.

1. Its public or governmental aspects where it is liable for the tortious acts
of special agents only.
2. Its private or business aspects (as when it engages in private
enterprises) where it becomes liable as an ordinary employer. (p. 961,
Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ).
In this jurisdiction, the State assumes a limited liability for the damage caused by the
tortious acts or conduct of its special agent.
Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability
for acts done through special agents. The State's agent, if a public official, must not only
be specially commissioned to do a particular task but that such task must be foreign to
said official's usual governmental functions. If the State's agent is not a public official,
and is commissioned to perform non-governmental functions, then the State assumes
the role of an ordinary employer and will be held liable as such for its agent's tort. Where
the government commissions a private individual for a special governmental task, it is
acting through a special agent within the meaning of the provision. (Torts and Damages,
Sangco, p. 347, 1984 Ed.)
Certain functions and activities, which can be performed only by the government, are
more or less generally agreed to be "governmental" in character, and so the State is
immune from tort liability. On the other hand, a service which might as well be provided
by a private corporation, and particularly when it collects revenues from it, the function is
considered a "proprietary" one, as to which there may be liability for the torts of agents
within the scope of their employment.
The National Irrigation Administration is an agency of the government exercising
proprietary functions, by express provision of Rep. Act No. 3601. Section 1 of said Act
provides:
Section 1. Name and domicile.-A body corporate is hereby created which
shall be known as the National Irrigation Administration, hereinafter called
the NIA for short, which shall be organized immediately after the approval
of this Act. It shall have its principal seat of business in the City of Manila
and shall have representatives in all provinces for the proper conduct of
its business.
Section 2 of said law spells out some of the NIA's proprietary functions. Thus-

The liability of the State has two aspects. namely:

90
Sec. 2. Powers and objectives.-The NIA shall have the following powers
and objectives:

suffered dents on the right side of the radiator guard, the hood, the fender and a crack
on the radiator as shown by the investigation report (Exhibit "E"). (Emphasis supplied)
[page 29, Rollo]

(a) x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x
(c) To collect from the users of each irrigation system constructed by it
such fees as may be necessary to finance the continuous operation of
the system and reimburse within a certain period not less than twenty-five
years cost of construction thereof; and
(d) To do all such other tthings and to transact all such business as are
directly or indirectly necessary, incidental or conducive to the attainment
of the above objectives.
Indubitably, the NIA is a government corporation with juridical personality and not a mere
agency of the government. Since it is a corporate body performing non-governmental
functions, it now becomes liable for the damage caused by the accident resulting from
the tortious act of its driver-employee. In this particular case, the NIA assumes the
responsibility of an ordinary employer and as such, it becomes answerable for damages.
This assumption of liability, however, is predicated upon the existence of negligence on
the part of respondent NIA. The negligence referred to here is the negligence of
supervision.
At this juncture, the matter of due diligence on the part of respondent NIA becomes a
crucial issue in determining its liability since it has been established that respondent is a
government agency performing proprietary functions and as such, it assumes the
posture of an ordinary employer which, under Par. 5 of Art. 2180, is responsible for the
damages caused by its employees provided that it has failed to observe or exercise due
diligence in the selection and supervision of the driver.
It will be noted from the assailed decision of the trial court that "as a result of the impact,
Francisco Fontanilla was thrown to a distance 50 meters away from the point of impact
while Restituto Deligo was thrown a little bit further away. The impact took place almost
at the edge of the cemented portion of the road." (Emphasis supplied,) [page 26, Rollo]
The lower court further declared that "a speeding vehicle coming in contact with a person
causes force and impact upon the vehicle that anyone in the vehicle cannot fail to notice.
As a matter of fact, the impact was so strong as shown by the fact that the vehicle

It should be emphasized that the accident happened along the Maharlika National Road
within the city limits of San Jose City, an urban area. Considering the fact that the victim
was thrown 50 meters away from the point of impact, there is a strong indication that
driver Garcia was driving at a high speed. This is confirmed by the fact that the pick-up
suffered substantial and heavy damage as above-described and the fact that the NIA
group was then "in a hurry to reach the campsite as early as possible", as shown by their
not stopping to find out what they bumped as would have been their normal and initial
reaction.
Evidently, there was negligence in the supervision of the driver for the reason that they
were travelling at a high speed within the city limits and yet the supervisor of the group,
Ely Salonga, failed to caution and make the driver observe the proper and allowed speed
limit within the city. Under the situation, such negligence is further aggravated by their
desire to reach their destination without even checking whether or not the vehicle
suffered damage from the object it bumped, thus showing imprudence and
reckelessness on the part of both the driver and the supervisor in the group.
Significantly, this Court has ruled that even if the employer can prove the diligence in the
selection and supervision (the latter aspect has not been established herein) of the
employee, still if he ratifies the wrongful acts, or take no step to avert further damage, the
employer would still be liable. (Maxion vs. Manila Railroad Co., 44 Phil. 597).
Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970,
34 SCRA 618), this Court held that a driver should be especially watchful in anticipation
of others who may be using the highway, and his failure to keep a proper look out for
reasons and objects in the line to be traversed constitutes negligence.
Considering the foregoing, respondent NIA is hereby directed to pay herein petitionersspouses the amounts of P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for
hospitalization and burial expenses of the aforenamed deceased; P30,000.00 as moral
damages; P8,000.00 as exemplary damages and attorney's fees of 20% of the total
award.
SO ORDERED.
Padilla, Sarmiento and Regalado, JJ., concur.

91
Melencio- Herrera (Chairperson,), J., is on leave.

D. TEACHERS AND HEADS OF ACADEMIC ESTABLISHMENTS

G.R. No. L-47745 April 15, 1988
JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A.
YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA,
ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA,
VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS,
VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA,
PABLITO DAFFON thru his parents and natural guardians, MR. and MRS.
NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO
ALONSO, respondents.
Jose S. Amadora & Associates for petitioners.
Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the
commencement exercises where he would ascend the stage and in the presence of his
relatives and friends receive his high school diploma. These ceremonies were scheduled
on April 16, 1972. As it turned out, though, fate would intervene and deny him that
awaited experience. On April 13, 1972, while they were in the auditorium of their school,
the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that
mortally hit Alfredo, ending all his expectations and his life as well. The victim was only
seventeen years old. 1
Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein
petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of
the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school
principal, the dean of boys, and the physics teacher, together with Daffon and two other
students, through their respective parents. The complaint against the students was later
dropped. After trial, the Court of First Instance of Cebu held the remaining defendants
liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss
of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary
damages, and attorney's fees . 3 On appeal to the respondent court, however, the
decision was reversed and all the defendants were completely absolved . 4
In its decision, which is now the subject of this petition for certiorari under Rule 45 of the
Rules of Court, the respondent court found that Article 2180 was not applicable as the
Colegio de San Jose-Recoletos was not a school of arts and trades but an academic
institution of learning. It also held that the students were not in the custody of the school
at the time of the incident as the semester had already ended, that there was no clear
identification of the fatal gun and that in any event the defendant, had exercised the
necessary diligence in preventing the injury. 5
The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on
April 13, 1972, and while in its auditorium was shot to death by Pablito Daffon, a
classmate. On the implications and consequences of these facts, the parties sharply
disagree.
The petitioners contend that their son was in the school to show his physics experiment
as a prerequisite to his graduation; hence, he was then under the custody of the private
respondents. The private respondents submit that Alfredo Amadora had gone to the
school only for the purpose of submitting his physics report and that he was no longer in
their custody because the semester had already ended.
There is also the question of the identity of the gun used which the petitioners consider
important because of an earlier incident which they claim underscores the negligence of
the school and at least one of the private respondents. It is not denied by the

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respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated
from Jose Gumban an unlicensed pistol but later returned it to him without making a
report to the principal or taking any further action . 6 As Gumban was one of the
companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners
contend that this was the same pistol that had been confiscated from Gumban and that
their son would not have been killed if it had not been returned by Damaso. The
respondents say, however, that there is no proof that the gun was the same firearm that
killed Alfredo.
Resolution of all these disagreements will depend on the interpretation of Article 2180
which, as it happens, is invoked by both parties in support of their conflicting positions.
The pertinent part of this article reads as follows:
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices so
long as they remain in their custody.
Three cases have so far been decided by the Court in connection with the above-quoted
provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v.
Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the
case at bar.
In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School
and a Boy Scout, attended a Rizal Day parade on instructions of the city school
supervisor. After the parade, the boy boarded a jeep, took over its wheel and drove it so
recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was
found guilty of double homicide with reckless imprudence. In the separate civil action
flied against them, his father was held solidarily liable with him in damages under Article
1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.
This decision, which was penned by Justice Bautista Angelo on June 29,1957,
exculpated the school in an obiter dictum (as it was not a party to the case) on the
ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with whom
Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the
school authorities who should be held liable Liability under this rule, he said, was
imposed on (1) teachers in general; and (2) heads of schools of arts and trades in
particular. The modifying clause "of establishments of arts and trades" should apply only
to "heads" and not "teachers."
Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a
classmate with a razor blade during recess time at the Lourdes Catholic School in
Quezon City, and the parents of the victim sued the culprits parents for damages.

Through Justice Labrador, the Court declared in another obiter (as the school itself had
also not been sued that the school was not liable because it was not an establishment of
arts and trades. Moreover, the custody requirement had not been proved as this
"contemplates a situation where the student lives and boards with the teacher, such that
the control, direction and influences on the pupil supersede those of the parents." Justice
J.B.L. Reyes did not take part but the other members of the court concurred in this
decision promulgated on May 30, 1960.
In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by
a classmate with fist blows in the laboratory of the Manila Technical Institute. Although
the wrongdoer who was already of age was not boarding in the school, the head
thereof and the teacher in charge were held solidarily liable with him. The Court declared
through Justice Teehankee:
The phrase used in the cited article "so long as (the students) remain
in their custody" means the protective and supervisory custody that
the school and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the school, including
recess time. There is nothing in the law that requires that for such liability
to attach, the pupil or student who commits the tortious act must live and
board in the school, as erroneously held by the lower court, and the dicta
in Mercado (as well as in Exconde) on which it relied, must now be
deemed to have been set aside by the present decision.
This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes,
who stressed, in answer to the dissenting opinion, that even students already of age
were covered by the provision since they were equally in the custody of the school and
subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for
retaining the custody interpretation in Mercado and submitted that the rule should apply
only to torts committed by students not yet of age as the school would be acting only in
loco parentis.
In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the
Exconde Case but added that "since the school involved at bar is a non-academic
school, the question as to the applicability of the cited codal provision to academic
institutions will have to await another case wherein it may properly be raised."
This is the case.
Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly
impleaded and is sought to be held liable under Article 2180; and unlike in Palisoc, it is
not a school of arts and trades but an academic institution of learning. The parties herein

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have also directly raised the question of whether or not Article 2180 covers even
establishments which are technically not schools of arts and trades, and, if so, when the
offending student is supposed to be "in its custody."
After an exhaustive examination of the problem, the Court has come to the conclusion
that the provision in question should apply to all schools, academic as well as nonacademic. Where the school is academic rather than technical or vocational in nature,
responsibility for the tort committed by the student will attach to the teacher in charge of
such student, following the first part of the provision. This is the general rule. In the case
of establishments of arts and trades, it is the head thereof, and only he, who shall be
held liable as an exception to the general rule. In other words, teachers in general shall
be liable for the acts of their students except where the school is technical in nature, in
which case it is the head thereof who shall be answerable. Following the canon of
reddendo singula singulis "teachers" should apply to the words "pupils and students" and
"heads of establishments of arts and trades" to the word "apprentices."
The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in
Exconde where he said in part:
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 insofar as concerns the proper
supervision and vice over their pupils? It cannot be seriously contended
that an academic teacher is exempt from the duty of watching that his
pupils 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
"preceptores 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.

There is really no substantial distinction between the academic and the non-academic
schools insofar as torts committed by their students are concerned. The same vigilance
is expected from the teacher over the students under his control and supervision,
whatever the nature of the school where he is teaching. The suggestion in the Exconde
and Mercado Cases is that the provision would make the teacher or even the head of the
school of arts and trades liable for an injury caused by any student in its custody but if
that same tort were committed in an academic school, no liability would attach to the
teacher or the school head. All other circumstances being the same, the teacher or the
head of the academic school would be absolved whereas the teacher and the head of
the non-academic school would be held liable, and simply because the latter is a school
of arts and trades.
The Court cannot see why different degrees of vigilance should be exercised by the
school authorities on the basis only of the nature of their respective schools. There does
not seem to be any plausible reason for relaxing that vigilance simply because the school
is academic in nature and for increasing such vigilance where the school is nonacademic. Notably, the injury subject of liability is caused by the student and not by the
school itself nor is it a result of the operations of the school or its equipment. The injury
contemplated may be caused by any student regardless of the school where he is
registered. The teacher certainly should not be able to excuse himself by simply showing
that he is teaching in an academic school where, on the other hand, the head would be
held liable if the school were non-academic.
These questions, though, may be asked: If the teacher of the academic school is to be
held answerable for the torts committed by his students, why is it the head of the school
only who is held liable where the injury is caused in a school of arts and trades? And in
the case of the academic or non- technical school, why not apply the rule also to the
head thereof instead of imposing the liability only on the teacher?
The reason for the disparity can be traced to the fact that historically the head of the
school of arts and trades exercised a closer tutelage over his pupils than the head of the
academic school. The old schools of arts and trades were engaged in the training of
artisans apprenticed to their master who personally and directly instructed them on the
technique and secrets of their craft. The head of the school of arts and trades was such a
master and so was personally involved in the task of teaching his students, who usually
even boarded with him and so came under his constant control, supervision and
influence. By contrast, the head of the academic school was not as involved with his
students and exercised only administrative duties over the teachers who were the
persons directly dealing with the students. The head of the academic school had then (as
now) only a vicarious relationship with the students. Consequently, while he could not be
directly faulted for the acts of the students, the head of the school of arts and trades,
because of his closer ties with them, could be so blamed.

94
It is conceded that the distinction no longer obtains at present in view of the expansion of
the schools of arts and trades, the consequent increase in their enrollment, and the
corresponding diminution of the direct and personal contract of their heads with the
students. Article 2180, however, remains unchanged. In its present state, the provision
must be interpreted by the Court according to its clear and original mandate until the
legislature, taking into account the charges in the situation subject to be regulated, sees
fit to enact the necessary amendment.
The other matter to be resolved is the duration of the responsibility of the teacher or the
head of the school of arts and trades over the students. Is such responsibility coextensive with the period when the student is actually undergoing studies during the
school term, as contended by the respondents and impliedly admitted by the petitioners
themselves?
From a reading of the provision under examination, it is clear that while the custody
requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be
boarding with the school authorities, it does signify that the student should be within the
control and under the influence of the school authorities at the time of the occurrence of
the injury. This does not necessarily mean that such, custody be co-terminous with the
semester, beginning with the start of classes and ending upon the close thereof, and
excluding the time before or after such period, such as the period of registration, and in
the case of graduating students, the period before the commencement exercises. In the
view of the Court, the student is in the custody of the school authorities as long as he is
under the control and influence of the school and within its premises, whether the
semester has not yet begun or has already ended.
It is too tenuous to argue that the student comes under the discipline of the school only
upon the start of classes notwithstanding that before that day he has already registered
and thus placed himself under its rules. Neither should such discipline be deemed ended
upon the last day of classes notwithstanding that there may still be certain requisites to
be satisfied for completion of the course, such as submission of reports, term papers,
clearances and the like. During such periods, the student is still subject to the disciplinary
authority of the school and cannot consider himself released altogether from observance
of its rules.
As long as it can be shown that the student is in the school premises in pursuance of a
legitimate student objective, in the exercise of a legitimate student right, and even in the
enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student
privilege, the responsibility of the school authorities over the student continues. Indeed,
even if the student should be doing nothing more than relaxing in the campus in the
company of his classmates and friends and enjoying the ambience and atmosphere of

the school, he is still within the custody and subject to the discipline of the school
authorities under the provisions of Article 2180.
During all these occasions, it is obviously the teacher-in-charge who must answer for his
students' torts, in practically the same way that the parents are responsible for the child
when he is in their custody. The teacher-in-charge is the one designated by the dean,
principal, or other administrative superior to exercise supervision over the pupils in the
specific classes or sections to which they are assigned. It is not necessary that at the
time of the injury, the teacher be physically present and in a position to prevent it.
Custody does not connote immediate and actual physical control but refers more to the
influence exerted on the child and the discipline instilled in him as a result of such
influence. Thus, for the injuries caused by the student, the teacher and not the parent
shag be held responsible if the tort was committed within the premises of the school at
any time when its authority could be validly exercised over him.
In any event, it should be noted that the liability imposed by this article is supposed to fall
directly on the teacher or the head of the school of arts and trades and not on the school
itself. If at all, the school, whatever its nature, may be held to answer for the acts of its
teachers or even of the head thereof under the general principle of respondeat superior,
but then it may exculpate itself from liability by proof that it had exercised the diligence of
a bonus paterfamilias.
Such defense is, of course, also available to the teacher or the head of the school of arts
and trades directly held to answer for the tort committed by the student. As long as the
defendant can show that he had taken the necessary precautions to prevent the injury
complained of, he can exonerate himself from the liability imposed by Article 2180, which
also 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 damages.
In this connection, it should be observed that the teacher will be held liable not only when
he is acting in loco parentis for the law does not require that the offending student be of
minority age. Unlike the parent, who wig be liable only if his child is still a minor, the
teacher is held answerable by the law for the act of the student under him regardless of
the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the
head of the technical school although the wrongdoer was already of age. In this sense,
Article 2180 treats the parent more favorably than the teacher.
The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his
dissenting opinion in Palisoc that the school may be unduly exposed to liability under this

95
article in view of the increasing activism among the students that is likely to cause
violence and resulting injuries in the school premises. That is a valid fear, to be sure.
Nevertheless, it should be repeated that, under the present ruling, it is not the school that
will be held directly liable. Moreover, the defense of due diligence is available to it in case
it is sought to be held answerable as principal for the acts or omission of its head or the
teacher in its employ.

classes had formally ended. It was immaterial if he was in the school auditorium to finish
his physics experiment or merely to submit his physics report for what is important is that
he was there for a legitimate purpose. As previously observed, even the mere savoring of
the company of his friends in the premises of the school is a legitimate purpose that
would have also brought him in the custody of the school authorities.

The school can show that it exercised proper measures in selecting the head or its
teachers and the appropriate supervision over them in the custody and instruction of the
pupils pursuant to its rules and regulations for the maintenance of discipline among
them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those
rules upon the students. Ms should bolster the claim of the school that it has taken
adequate steps to prevent any injury that may be committed by its students.

2. The rector, the high school principal and the dean of boys cannot be held liable
because none of them was the teacher-in-charge as previously defined. Each of them
was exercising only a general authority over the student body and not the direct control
and influence exerted by the teacher placed in charge of particular classes or sections
and thus immediately involved in its discipline. The evidence of the parties does not
disclose who the teacher-in-charge of the offending student was. The mere fact that
Alfredo Amadora had gone to school that day in connection with his physics report did
not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-incharge of Alfredo's killer.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to
hold him directly answerable for the damage caused by his students as long as they are
in the school premises and presumably under his influence. In this respect, the Court is
disposed not to expect from the teacher the same measure of responsibility imposed on
the parent for their influence over the child is not equal in degree. Obviously, the parent
can expect more obedience from the child because the latter's dependence on him is
greater than on the teacher. It need not be stressed that such dependence includes the
child's support and sustenance whereas submission to the teacher's influence, besides
being coterminous with the period of custody is usually enforced only because of the
students' desire to pass the course. The parent can instill more las discipline on the child
than the teacher and so should be held to a greater accountability than the teacher for
the tort committed by the child.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that
Dicon was negligent in enforcing discipline upon Daffon or that he had waived
observance of the rules and regulations of the school or condoned their non-observance.
His absence when the tragedy happened cannot be considered against him because he
was not supposed or required to report to school on that day. And while it is true that the
offending student was still in the custody of the teacher-in-charge even if the latter was
physically absent when the tort was committed, it has not been established that it was
caused by his laxness in enforcing discipline upon the student. On the contrary, the
private respondents have proved that they had exercised due diligence, through the
enforcement of the school regulations, in maintaining that discipline.

And if it is also considered that under the article in question, the teacher or the head of
the school of arts and trades is responsible for the damage caused by the student or
apprentice even if he is already of age and therefore less tractable than the minor
then there should all the more be justification to require from the school authorities less
accountability as long as they can prove reasonable diligence in preventing the injury.
After all, if the parent himself is no longer liable for the student's acts because he has
reached majority age and so is no longer under the former's control, there is then all the
more reason for leniency in assessing the teacher's responsibility for the acts of the
student.
Applying the foregoing considerations, the Court has arrived at the following conclusions:
1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the
authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be

held liable especially in view of the unrefuted evidence that he had earlier confiscated an
unlicensed gun from one of the students and returned the same later to him without
taking disciplinary action or reporting the matter to higher authorities. While this was
clearly negligence on his part, for which he deserves sanctions from the school, it does
not necessarily link him to the shooting of Amador as it has not been shown that he
confiscated and returned pistol was the gun that killed the petitioners' son.
5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held
directly liable under the article because only the teacher or the head of the school of arts
and trades is made responsible for the damage caused by the student or apprentice.
Neither can it be held to answer for the tort committed by any of the other private
respondents for none of them has been found to have been charged with the custody of
the offending student or has been remiss in the discharge of his duties in connection with
such custody.

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In sum, the Court finds under the facts as disclosed by the record and in the light of the
principles herein announced that none of the respondents is liable for the injury inflicted
by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium
of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize
with the petitioners over the loss of their son under the tragic circumstances here related,
we nevertheless are unable to extend them the material relief they seek, as a balm to
their grief, under the law they have invoked.
WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so
ordered.
Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Grio-Aquino,
JJ., concur.
Fernan, Padilla and Teehankee, C.J., JJ, took no part.

G.R. No. L-29025 October 4, 1971

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,
vs.
ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President,
respectively, of a school of arts and trades, known under the name and style of
"Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M.
QUIBULUE, defendants-appellees.
Leovillo C. Agustin for plaintiffs-appellants. .
Honorato S. Reyes for appellee Brillantes, et al. .
Villareal, Almacen Navarra & Amores for appellee Daffon. .

TEEHANKEE, J.:
An appeal in forma pauperis on pure questions of law from a decision of the Court of
First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a

student in automotive mechanics at the Manila Technical Institute, Quezon Boulevard,
Manila, had filed on May 19, 1966, the action below for damages arising from the death
on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L.
Daffon, at the laboratory room of the said Institute. .
Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at
the time when the incident which gave rise to his action occurred was a member of the
Board of Directors of the institute; 1 the defendant Teodosio Valenton, the president
thereof; the defendant Santiago M. Quibulue, instructor of the class to which the
deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the
deceased. At the beginning the Manila Technical Institute was a single proprietorship, but
lately on August 2, 1962, it was duly incorporated."
The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court:
"(T)he deceased Dominador Palisoc and the defendant Virgilio L. Daffon were
classmates, and on the afternoon of March 10, 1966, between two and three o'clock,
they, together with another classmate Desiderio Cruz were in the laboratory room located
on the ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L.
Daffon were working on a machine while Dominador Palisoc was merely looking on at
them. Daffon made a remark to the effect that Palisoc was acting like a foreman.
Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation,
gave Palisoc a strong flat blow on the face, which was followed by other fist blows on the
stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon followed him
and both exchanged blows until Palisoc stumbled on an engine block which caused him
to fall face downward. Palisoc became pale and fainted. First aid was administered to
him but he was not revived, so he was immediately taken to a hospital. He never
regained consciousness; finally he died. The foregoing is the substance of the testimony
of Desiderio Cruz, the lone witness to the incident."
The trial court expressly gave credence to this version of the incident, as testified to by
the lone eyewitness, Desiderio Cruz, a classmate of the protagonists, as that of a
disinterested witness who "has no motive or reason to testify one way or another in favor
of any party" and rejected the self-exculpatory version of defendant Daffon denying that
he had inflicted any fist blows on the deceased. .
With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who
performed the autopsy re "Cause of death: shock due to traumatic fracture of theribs (6th
and 7th, left, contusion of the pancreas and stomach with intra-gastric hemorrhage and
slight subarachnoid hemorrhage on the brain," and his testimony that these internal
injuries of the deceased were caused "probably by strong fist blows," the trial court found
defendant Daffon liable for the quasi delict under Article 2176 of the Civil Code. 3 It held

97
that "(T)he act, therefore, of the accused Daffon in giving the deceased strong fistblows
in the stomach which ruptured his internal organs and caused his death falls within the
purview of this article of the Code." 4
The trial court, however, absolved from liability the three other defendants-officials of the
Manila Technical Institute, in this wise:
... Their liabilities are based on the provisions of Article 2180 of the New
Civil Code which reads:
Art. 2180. ... .
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils
and students and apprentices, so long as they remain in
their custody.
In the opinion of the Court, this article of the Code is not applicable to the
case at bar, since this contemplates the situation where the control or
influence of the teachers and heads of school establishments over the
conduct and actions by the pupil supersedes those of the parents.
CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE
CONSTRUED: The clause "so long as they remain in
their custody" contained in Article 2180 of the new civil
code contemplated a situation where the pupil lives and
boards with the teacher, such that the control or influence
on the pupil supersedes those of the parents. In those
circumstances the control or influence over the conduct
and actions of the pupil as well as the responsibilities for
their sort would pass from the father and mother to the
teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of
Appeals, Manuel Quisumbing, Jr., et al., respondents,
G.R. No. L-14862, May 30, 1960). 5
There is no evidence that the accused Daffon lived and boarded with his
teacher or the other defendant officials of the school. These defendants
cannot therefore be made responsible for the tort of the defendant
Daffon.
Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs

of the deceased Dominador Palisoc (a) P6,000.00 for the death of
Dominador Palisoc; (b) P3,375.00 for actual and compensatory
expenses; (c) P5,000.00 for moral damages; (d) P10,000.00 for loss of
earning power, considering that the deceased was only between sixteen
and seventeen years, and in good health when he died, and (e)
P2,000.00 for attorney's fee, plus the costs of this action. .
2. Absolving the other defendants. .
3. Dismissing the defendants' counterclaim for lack of merit.
Plaintiffs' appeal raises the principal legal question that under the factual findings of the
trial court, which are now beyond review, the trial court erred in absolving the
defendants-school officials instead of holding them jointly and severally liable as
tortfeasors, with defendant Daffon, for the damages awarded them as a result of their
son's death. The Court finds the appeal, in the main, to be meritorious. .
1. The lower court absolved defendants-school officials on the ground that the provisions
of Article 2180, Civil Code, which expressly hold "teachers or heads of establishments of
arts and trades ... liable for damages caused by their pupils and students and
apprentices, so long as they remain in their custody," are not applicable to to the case at
bar, since "there is no evidence that the accused Daffon [who inflicted the fatal fistblows]
6
lived and boarded with his teacher or the other defendants-officials of the school. These
defendants cannot therefore be made responsible for the tort of the defendant Daffon."
The lower court based its legal conclusion expressly on the Court's dictum in Mercado
vs. Court of Appeals, 7 that "(I)t would seem that the clause "so long as they remain in
their custody," contemplates a situation where the pupil lives and boards with the
teacher, such that the control, direction and influence on the pupil supersedes those of
the parents. In these circumstances the control or influence over the conduct and actions
of the pupil would pass from the father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation does not appear in the case at
bar; the pupils appear to go to school during school hours and go back to their homes
with their parents after school is over." This dictum had been made in rejecting therein
petitioner father's contention that his minor son's school, Lourdes Catholic School at
Kanlaon, Quezon City [which was not a party to the case] should be held responsible,
rather than him as father, for the moral damages of P2,000.00 adjudged against him for
the physical injury inflicted by his son on a classmate. [A cut on the right cheek with a
piece of razor which costs only P50.00 by way of medical expenses to treat and cure,
since the wound left no scar.] The moral damages award was after all set aside by the
Court on the ground that none of the specific cases provided in Article 2219, Civil Code,

98
for awarding moral damages had been established, petitioner's son being only nine
years old and not having been shown to have "acted with discernment" in inflicting the
injuries on his classmate. .
The dictum in Mercado was based in turn on another dictum in the earlier case of
Exconde vs. Capuno, 8 where the only issue involved as expressly stated in the decision,
was whether the therein defendant-father could be civilly liable for damages resulting
from a death caused in a motor vehicle accident driven unauthorizedly and negligently by
his minor son, (which issue was resolved adversely against the father). Nevertheless, the
dictum in such earlier case that "It is true that under the law abovequoted, teachers or
directors of arts and trades are liable for any damage 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" was
expressly cited and quoted in Mercado. .
2. The case at bar was instituted directly against the school officials and squarely raises
the issue of liability of teachers and heads of schools under Article 2180, Civil Code, for
damages caused by their pupils and students against fellow students on the school
premises. Here, the parents of the student at fault, defendant Daffon, are not involved,
since Daffon was already of age at the time of the tragic incident. There is no question,
either, that the school involved is a non-academic school, 9 the Manila Technical Institute
being admittedly a technical vocational and industrial school. .
The Court holds that under the cited codal article, defendants head and teacher of the
Manila Technical Institute (defendants Valenton and Quibulue, respectively) are liable
jointly and severally for damages to plaintiffs-appellants for the death of the latter's minor
son at the hands of defendant Daffon at the school's laboratory room. No liability
attaches to defendant Brillantes as a mere member of the school's board of directors.
The school itself cannot be held similarly liable, since it has not been properly impleaded
as party defendant. While plaintiffs sought to so implead it, by impleading improperly
defendant Brillantes, its former single proprietor, the lower court found that it had been
incorporated since August 2, 1962, and therefore the school itself, as thus incorporated,
should have been brought in as party defendant. Plaintiffs failed to do so,
notwithstanding that Brillantes and his co-defendants in their reply to plaintiffs' request for
admission had expressly manifested and made of record that "defendant Antonio C.
Brillantes is not the registered owner/head of the "Manila Technical Institute" which is
now a corporation and is not owned by any individual person." 10
3. The rationale of such liability of school heads and teachers for the tortious acts of their
pupils and students, so long as they remain in their custody, is that they stand, to a
certain extent, as to their pupils and students, in loco parentis and are called upon to
"exercise reasonable supervision over the conduct of the child." 11 This is expressly

provided for in Articles 349, 350 and 352 of the Civil Code. 12 In the law of torts, the
governing principle is that the protective custody of the school heads and teachers is
mandatorily substituted for that of the parents, and hence, it becomes their obligation as
well as that of the school itself to provide proper supervision of the students' activities
during the whole time that they are at attendance in the school, including recess time, as
well as to take the necessary precautions to protect the students in their custody from
dangers and hazards that would reasonably be anticipated, including injuries that some
student themselves may inflict willfully or through negligence on their fellow students. .
4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in
Exconde, "the basis of the presumption of negligence of Art. 1903 [now 2180] is some
culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the
exercise of their authority" 13 and "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." The school itself, likewise,
has to respond for the fault or negligence of its school head and teachers under the
same cited article. 14
5. The lower court therefore erred in law in absolving defendants-school officials on the
ground that they could be held liable under Article 2180, Civil Code, only if the student
who inflicted the fatal fistblows on his classmate and victim "lived and boarded with his
teacher or the other defendants officials of the school." As stated above, the phrase used
in the cited article "so long as (the students) remain in their custody" means the
protective and supervisory custody that the school and its heads and teachers exercise
over the pupils and students for as long as they are at attendance in the school, including
recess time. There is nothing in the law that requires that for such liability to attach the
pupil or student who commits the tortious act must live and board in the school, as
erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on
which it relied, must now be deemed to have been set aside by the present decision. .
6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school
must therefore be held jointly and severally liable for the quasi-delict of their codefendant Daffon in the latter's having caused the death of his classmate, the deceased
Dominador Palisoc. The unfortunate death resulting from the fight between the
protagonists-students could have been avoided, had said defendants but complied with
their duty of providing adequate supervision over the activities of the students in the
school premises to protect their students from harm, whether at the hands of fellow
students or other parties. At any rate, the law holds them liable unless they relieve
themselves of such liability, in compliance with the last paragraph of Article 2180, Civil
Code, by "(proving) that they observed all the diligence of a good father of a family to

99
prevent damage." In the light of the factual findings of the lower court's decision, said
defendants failed to prove such exemption from liability. .
7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death
of their son should be increased to P12,000.00 as set by the Court in People vs. Pantoja,
15
and observed in all death indemnity cases thereafter is well taken. The Court, in
Pantoja, after noting the decline in the purchasing power of the Philippine peso, had
expressed its "considered opinion that the amount of award of compensatory damages
for death caused by a crime or quasi-delict should now be P12,000.00." The Court
thereby adjusted the minimum amount of "compensatory damages for death caused by a
crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of
P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have
been mitigating circumstances" pursuant to the express provisions of said codal article. .
8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded
exemplary damages and imposed legal interest on the total damages awarded, besides
increasing the award of attorney's fees all concern matters that are left by law to the
discretion of the trial court and the Court has not been shown any error or abuse in the
exercise of such discretion on the part of the trial court. 16 Decisive here is the touchstone
provision of Article 2231, Civil Code, that "In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence." No gross negligence on the part of
defendants was found by the trial court to warrant the imposition of exemplary damages,
as well as of interest and increased attorney's fees, and the Court has not been shown in
this appeal any compelling reason to disturb such finding. .
ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .
1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M.
Quibulue jointly and severally to pay plaintiffs as heirs of the deceased Dominador
Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and
compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of
earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both
instances; 2. absolving defendant Antonio C. Brillantes from the complaint; and 3.
dismissing defendants' counterclaims. .

[G.R. No. 143363. February 6, 2002]

ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S.
CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and
VIVENCIO VILLANUEVA, respondents.
DECISION
PARDO, J.:
The Case
The case is an appeal via certiorari from the decisioni[1] of the Court of Appeals as well
as the resolution denying reconsideration, holding petitioner liable for damages arising
from an accident that resulted in the death of a student who had joined a campaign to
visit the public schools in Dipolog City to solicit enrollment.
The Facts
The facts, as found by the Court of Appeals, are as follows:
Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William
Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II
and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio
Villanueva and St. Marys Academy before the Regional Trial Court of Dipolog City.
On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its
decision the dispositive portion of which reads as follows:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the
following manner:
1.
Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs
William Carpitanos and Luisa Carpitanos, the following sums of money:

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .

Dizon, J., took no part. .
FIRST DIVISION

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss

of life of Sherwin S. Carpitanos;
b. FORTY THOUSAND PESOS (P40,000.00) actual damages
incurred by plaintiffs for burial and related expenses;

100
c.

TEN THOUSAND PESOS (P10,000.00) for attorneys fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral

damages; and to pay costs.
2.
Their liability being only subsidiary, defendants James Daniel, Sr. and Guada
Daniel are hereby ordered to pay herein plaintiffs the amount of damages above-stated
in the event of insolvency of principal obligor St. Marys Academy of Dipolog City;
3.
Defendant James Daniel II, being a minor at the time of the commission of the
tort and who was under special parental authority of defendant St. Marys Academy, is
ABSOLVED from paying the above-stated damages, same being adjudged against
defendants St. Marys Academy, and subsidiarily, against his parents;
4.
Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His
counterclaim not being in order as earlier discussed in this decision, is hereby
DISMISSED.
IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp. 205-206).
From the records it appears that from 13 to 20 February 1995, defendant-appellant St.
Marys Academy of Dipolog City conducted an enrollment drive for the school year 19951996. A facet of the enrollment campaign was the visitation of schools from where
prospective enrollees were studying. As a student of St. Marys Academy, Sherwin
Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin,
along with other high school students were riding in a Mitsubishi jeep owned by
defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan,
Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of
the same school. Allegedly, the latter drove the jeep in a reckless manner and as a
result the jeep turned turtle.
Sherwin Carpitanos died as a result of the injuries he sustained from the accident. ii[2]
In due time, petitioner St. Marys academy appealed the decision to the Court of
Appeals.iii[3]
On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual
damages to P25,000.00 but otherwise affirming the decision a quo, in toto.iv[4]
On February 29, 2000, petitioner St. Marys Academy filed a motion for reconsideration
of the decision. However, on May 22, 2000, the Court of Appeals denied the motion. v[5]

Hence, this appeal.vi[6]

The Issues
1)
Whether the Court of Appeals erred in holding the petitioner liable for damages
for the death of Sherwin Carpitanos.
2)
Whether the Court of Appeals erred in affirming the award of moral damages
against the petitioner.
The Courts Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Marys Academy liable for the death of Sherwin
Carpitanos under Articles 218vii[7] and 219viii[8] of the Family Code, pointing out that
petitioner was negligent in allowing a minor to drive and in not having a teacher
accompany the minor students in the jeep.
Under Article 218 of the Family Code, the following shall have special parental authority
over a minor child while under their supervision, instruction or custody: (1) the school, its
administrators and teachers; or (2) the individual, entity or institution engaged in child
care. This special parental authority and responsibility applies to all authorized activities,
whether inside or outside the premises of the school, entity or institution. Thus, such
authority and responsibility applies to field trips, excursions and other affairs of the pupils
and students outside the school premises whenever authorized by the school or its
teachers.ix[9]
Under Article 219 of the Family Code, if the person under custody is a minor, those
exercising special parental authority are principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor while under their
supervision, instruction, or custody.x[10]
However, for petitioner to be liable, there must be a finding that the act or omission
considered as negligent was the proximate cause of the injury caused because the
negligence must have a causal connection to the accident. xi[11]
In order that there may be a recovery for an injury, however, it must be shown that the
injury for which recovery is sought must be the legitimate consequence of the wrong
done; the connection between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes. In other words, the

101
negligence must be the proximate cause of the injury. For, negligence, no matter in
what it consists, cannot create a right of action unless it is the proximate cause of the
injury complained of. And the proximate cause of an injury is 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. xii[12]

The proximate cause of an injury is 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. xiii[13]

In this case, the respondents failed to show that the negligence of petitioner was the
proximate cause of the death of the victim.

Considering that the negligence of the minor driver or the detachment of the steering
wheel guide of the jeep owned by respondent Villanueva was an event over which
petitioner St. Marys Academy had no control, and which was the proximate cause of the
accident, petitioner may not be held liable for the death resulting from such accident.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of the
accident was not the negligence of petitioner or the reckless driving of James Daniel II,
but the detachment of the steering wheel guide of the jeep.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in
the amount of P500,000.00 awarded by the trial court and affirmed by the Court of
Appeals.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted
the documentary exhibits establishing that the cause of the accident was the detachment
of the steering wheel guide of the jeep. Hence, the cause of the accident was not the
recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased
Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator
who stated that the cause of the accident was the detachment of the steering wheel
guide that caused the jeep to turn turtle.

Though incapable of pecuniary computation, moral damages may be recovered if they

are the proximate result of the defendants wrongful act or omission. xiv[14] In this case,
the proximate cause of the accident was not attributable to petitioner.

Significantly, respondents did not present any evidence to show that the proximate cause
of the accident was the negligence of the school authorities, or the reckless driving of
James Daniel II. Hence, the respondents reliance on Article 219 of the Family Code that
those given the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by acts or omissions of the
unemancipated minor was unfounded.
Further, there was no evidence that petitioner school allowed the minor James Daniel II
to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of
respondent Vivencio Villanueva, who had possession and control of the jeep. He was
driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time
of the accident.

For the reason that petitioner was not directly liable for the accident, the decision of the
Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos
must be deleted. Moreover, the grant of attorneys fees as part of damages is the
exception rather than the rule. xv[15] The power of the court to award attorneys fees
under Article 2208 of the Civil Code demands factual, legal and equitable justification. xvi
[16] Thus, the grant of attorneys fees against the petitioner is likewise deleted.
Incidentally, there was no question that the registered owner of the vehicle was
respondent Villanueva. He never denied and in fact admitted this fact. We have held
that the registered owner of any vehicle, even if not used for public service, would
primarily be responsible to the public or to third persons for injuries caused the latter
while the vehicle was being driven on the highways or streets. xvii[17] Hence, with the
overwhelming evidence presented by petitioner and the respondent Daniel spouses that
the accident occurred because of the detachment of the steering wheel guide of the jeep,
it is not the school, but the registered owner of the vehicle who shall be held responsible
for damages for the death of Sherwin Carpitanos.
The Fallo

Hence, liability for the accident, whether caused by the negligence of the minor driver or
mechanical detachment of the steering wheel guide of the jeep, must be pinned on the
minors parents primarily. The negligence of petitioner St. Marys Academy was only a
remote cause of the accident. Between the remote cause and the injury, there
intervened the negligence of the minors parents or the detachment of the steering wheel
guide of the jeep.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of
Appealsxviii[18] and that of the trial court.xix[19] The Court remands the case to the trial
court for determination of the liability of defendants, excluding petitioner St. Marys
Academy, Dipolog City.

102
No costs.

This is a petition for review of the decision * of the Court of Appeals, the dispositive
portion of which reads:

SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.
Puno, J., in the result.

WHEREFORE, the decision under appeal is hereby affirmed, with the

following modifications: (1) Exemplary damages in the amount of
P20,000.00 are hereby awarded to plaintiffs, in addition to the actual
damages of P30,000.00, moral damages of P20,000.00 and attorney's
fees in the amount of P15,000.00 awarded to plaintiffs in the decision
under appeal; (2) St. Francis High School, represented by the Spouses
Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are
hereby held jointly and severally liable with defendants Connie Arquio,
Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to
plaintiffs of the abovementioned actual damages, moral damages,
exemplary damages and attorney's fees, and for costs; and (3)
Defendants Yoly Jaro and Nida Aragones are hereby absolved from
liability, and the case against them, together with their respective
counterclaims, is hereby ordered dismissed.
SO ORDERED. (p. 60, Rollo)

G.R. No. 82465 February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND
ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS,
CONNIE ARQUIO AND PATRIA CADIZ, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO
CASTILLO and LILIA CADIZ, respondents.
Jose C. Flores, Jr. for petitioners.
Jovito E. Talabong for private respondents.

PARAS, J.:p

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at
the St. Francis High School, wanted to join a school picnic undertaken by Class I-B and
Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses
Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their
son to join but merely allowed him to bring food to the teachers for the picnic, with the
directive that he should go back home after doing so. However, because of persuasion of
the teachers, Ferdinand went on with them to the beach.
During the picnic and while the students, including Ferdinand, were in the water, one of
the female teachers was apparently drowning. Some of the students, including
Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who
drowned. His body was recovered but efforts to resuscitate him ashore failed. He was
brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General
Hospital where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in
the Regional Trial Court, Branch LVIII of Lucena City, against the St. Francis High
School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin
Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio,
Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly
incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that the
death of their son was due to the failure of the petitioners to exercise the proper diligence

103
of a good father of the family in preventing their son's drowning, respondents prayed of
actual, moral and exemplary damages, attorney's fees and expenses for litigation.
The trial court found in favor of the respondents and against petitioners-teachers Arquio,
de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and severally to
pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as moral
damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo
reasoned:
Taking into consideration the evidence presented, this Court believes that
the defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de
Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise
the diligence required of them by law under the circumstances to guard
against the harm they had foreseen. (pp. 2930, Rollo)
xxx xxx xxx
While it is alleged that when defendants Yoly Jaro and Nida Aragones
arrived at the picnic site, the drowning incident had already occurred,
such fact does not and cannot excuse them from their liability. In fact, it
could be said that by coming late, they were remiss in their duty to
safeguard the students. (p. 30, Rollo)
The students, young as they were then (12 to 13 years old), were easily
attracted to the sea without aforethought of the dangers it offers. Yet, the
precautions and reminders allegedly performed by the defendantsteachers definitely fell short of the standard required by law under the
circumstances. While the defendants-teachers admitted that some parts
of the sea where the picnic was held are deep, the supposed lifeguards
of the children did not even actually go to the water to test the depth of
the particular area where the children would swim. And indeed the fears
of the plaintiffs that the picnic area was dangerous was confirmed by the
fact that three persons during the picnic got drowned at the same time.
Had the defendant teachers made an actual and physical observation of
the water before they allowed the students to swim, they could have
found out that the area where the children were swimming was indeed
dangerous. And not only that, the male teachers who according to the
female teachers were there to supervise the children to ensure their
safety were not even at the area where the children were swimming.
They were somewhere and as testified to by plaintiffs' witness they were
having a drinking spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School,
Benjamin Illumin and Aurora Cadorna. Said the court a quo:
As shown and adverted to above, this Court cannot find sufficient
evidence showing that the picnic was a school sanctioned one. Similarly
no evidence has been shown to hold defendants Benjamin Illumin and
Aurora Cadorna responsible for the death of Ferdinand Castillo together
with the other defendant teachers. It has been sufficiently shown that
Benjamin Illumin had himself not consented to the picnic and in fact he
did not join it. On the other hand, defendant Aurora Cadorna had then her
own class to supervise and in fact she was not amongst those allegedly
invited by defendant Connie Arquio to supervise class I-C to which
Ferdinand Castillo belongs. (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals. Respondentsspouses assigned the following errors committed by the trial court:
1. The lower court erred in not declaring the defendant St. Francis High
School and its administrator/principal Benjamin Illumin as equally liable
not only for its approved co-curricular activities but also for those which
they unreasonably failed to exercise control and supervision like the
holding of picnic in the dangerous water of Talaan Beach, Sariaya,
Quezon.
2. The lower court erred in not declaring the St. Francis High School and
principal Benjamin Illumin as jointly and solidarily liable with their codefendants-teachers Rosario Lacandula, et als., for the tragic death of
Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last
March 20, 1982.
3. The lower court erred in not declaring higher amount for actual and
moral damages for the untimely and tragic death of Ferdinand Castillo in
favor of plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants' submission well-taken.
Even were We to find that the picnic in question was not a schoolsponsored activity, nonetheless it cannot be gainsaid that the same was
held under the supervision of the teachers employed by the said school,

104
particularly the teacher in charge of Class I-C to whom the victim
belonged, and those whom she invited to help her in supervising the
class during the picnic. Considering that the court a quo found negligence
on the part of the six defendants-teachers who, as such, were charged
with the supervision of the children during the picnic, the St. Francis High
School and the school principal, Benjamin Illumin, are liable under Article
2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180
of the Civil Code. They cannot escape liability on the mere excuse that
the picnic was not an "extra-curricular activity of the St. Francis High
School." We find from the evidence that, as claimed by plaintiffsappellants, the school principal had knowledge of the picnic even from its
planning stage and had even been invited to attend the affair; and yet he
did not express any prohibition against undertaking the picnic, nor did he
prescribe any precautionary measures to be adopted during the picnic. At
the least, We must find that the school and the responsible school
officials, particularly the principal, Benjamin Illumin, had acquiesced to
the holding of the picnic.
Under Article 2180, supra, the defendant school and defendant school
principal must be found jointly and severally liable with the defendantsteachers for the damages incurred by the plaintiffs as a result of the
death of their son. It is the rule that in cases where the above-cited
provisions find application, the negligence of the employees in causing
the injury or damage gives rise to a presumption of negligence on the
part of the owner and/or manager of the establishment (in the present
case, St. Francis High School and its principal); and while this
presumption is not conclusive, it may be overthrown only by clear and
convincing proof that the owner and/or manager exercised the care and
diligence of a good father of a family in the selection and/or supervision
of the employee or employees causing the injury or damage (in this case,
the defendants-teachers). The record does not disclose such evidence as
would serve to overcome the aforesaid presumption and absolve the St.
Francis High School and its principal from liability under the above-cited
provisions.
As to the third assigned error interposed by plaintiffs-appellants, while We
cannot but commiserate with the plaintiffs for the tragedy that befell them
in the untimely death of their son Ferdinand Castillo and understand their
suffering as parents, especially the victim's mother who, according to
appellants, suffered a nervous breakdown as a result of the tragedy, We
find that the amounts fixed by the court a quo as actual damages and
moral damages (P30,000.00 and P20,000.00, respectively) are

reasonable and are those which are sustained by the evidence and the
law.
However, We believe that exemplary or corrective damages in the
amount of P20,000.00 may and should be, as it is hereby, imposed in the
present case by way of example of correction for the public good,
pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed by the
trial court:
1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito
Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence
and jointly and severally liable for damages such finding not being
supported by facts and evidence.
2. ". . . in dismissing the counterclaim interposed by the defendants. (p.
59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendants-appellants appeal is that plaintiffs, the
parents of the victim Ferdinand Castillo, were not able to prove by their
evidence that they did not give their son consent to join the picnic in
question. However, We agree with the trial court in its finding that whether
or not the victim's parents had given such permission to their son was
immaterial to the determination of the existence of liability on the part of
the defendants for the damage incurred by the plaintiffs-appellants as a
result of the death of their son. What is material to such a determination
is whether or not there was negligence on the part of defendants vis-a-vis
the supervision of the victim's group during the picnic; and, as correctly
found by the trial court, an affirmative reply to this question has been
satisfactorily established by the evidence, as already pointed out.
However, We sustain defendants-appellants insofar as two of the
defendants-teachers, Yoly Jaro and Nida Aragones, are concerned. As to
them, the trial court found:
While it is alleged that when defendants Yoly Jaro and
Nida Aragones arrived at the picnic site, the drowning
incident had already occurred, such fact does not and

105
cannot excuse them from their liability. In fact, it could be
said that by coming late, they were remiss in their duty to
safeguard the students.
The evidence shows that these two defendants had satisfactorily
explained why they were late in going to the picnic site, namely, that they
had to attend to the entrance examination being conducted by the school
which is part of their duty as teachers thereof. Since they were not at the
picnic site during the occurrence in question, it cannot be said that they
had any participation in the negligence attributable to the other
defendants-teachers who failed to exercise diligence in the supervision of
the children during the picnic and which failure resulted in the drowning of
plaintiffs' son. Thus, We may not attribute any act or omission to the two
teachers, Yoly Jaro and Nida Aragones, as to make them liable for the
injury caused to the plaintiffs because of the death of their son resulting
from his drowning at the picnic. Accordingly, they must be absolved from
any liability.
As to the second assigned error raised by defendants-appellants, We
agree with the court a quo that the counterclaim must be dismissed for
lack of merit. (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:
A) Whether or not there was negligence attributable to the defendants
which will warrant the award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code
is applicable to the case at bar;
C) Whether or not the award of exemplary and moral damages is proper
under the circumstances surrounding the case at bar. (pp. 81-82, Rollo)
In the resolution of January 16, 1989, We gave due course to the petition and required
the parties to submit their respective memoranda.
The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or the
negligence of people under them. In the instant case however, as will be shown
hereunder, petitioners are neither guilty of their own negligence or guilty of the
negligence of those under them.
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they
cannot be held liable for damages of any kind.
At the outset, it should be noted that respondent spouses, parents of the victim
Ferdinand, allowed their son to join the excursion.
Testimony of Dr. Castillo on cross exam. by Atty. Flores
Q Now, when your son asked you for money to buy food,
did you not ask him where he will bring this?
A I asked him where he was going, he answered, I am
going to the picnic, and when I asked him where, he did
not answer, sir.
Q And after giving the money, you did not tell him
anything more?
A No more, sir.
Q And after that you just learned that your son join the
picnic?
A Yes, sir.
Q And you came to know of it after the news that your son
was drowned in the picnic came to you, is that correct?
A Yes, sir.
Q From 8:00 o'clock in the morning up to 12:00 o'clock
noon of March 20, 1982, you did not know that your son
join the picnic?
A No, sir, I did not know.

106
Q Did you not look for your son during that time?

A It was during the interview that I had gathered it from

the patient herself. She was very sorry had she not
allowed her son to join the excursion her son would have
not drowned. I don't know if she actually permitted her
son although she said she cooked adobo so he could join.
(Emphasis Supplied) (TSN, p. 19, hearing of April 30,
1984, Dr. Lazaro witness).

A I am too busy with my profession, that is why I was not

able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son join the
picnic?
A Later on after 12:00, sir.
Q And during that time you were too busy that you did not
inquire whether your son have joined that picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo
Castillo)
The fact that he gave money to his son to buy food for the picnic even without knowing
where it will be held, is a sign of consent for his son to join the same. Furthermore.
Testimony of Dr. Lazaro on cross examination:
Q How did you conduct this mental and physical
examination?
A I have interviewed several persons and the patient
herself She even felt guilty about the death of her son
because she cooked adobo for him so he could join the
excursion where her son died of drowning.
Q Why were you able to say she was feeling guilty
because she was the one who personally cooked the
adobo for her son?

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil
Code in rendering petitioner school liable for the death of respondent's son.
Article 2180, par. 4 states that:
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.
Under this paragraph, it is clear that before an employer may be held liable for the
negligence of his employee, the act or omission which caused damage or prejudice must
have occurred while an employee was in the performance of his assigned tasks.
In the case at bar, the teachers/petitioners were not in the actual performance of their
assigned tasks. The incident happened not within the school premises, not on a school
day and most importantly while the teachers and students were holding a purely private
affair, a picnic. It is clear from the beginning that the incident happened while some
members of the I-C class of St. Francis High School were having a picnic at Talaan
Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin
because this picnic is not a school sanctioned activity neither is it considered as an extracurricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of
the planning of the picnic by the students and their teachers does not in any way or in
any manner show acquiescence or consent to the holding of the same. The application
therefore of Article 2180 has no basis in law and neither is it supported by any
jurisprudence. If we were to affirm the findings of respondent Court on this score,

107
employers wig forever be exposed to the risk and danger of being hailed to Court to
answer for the misdeeds or omissions of the employees even if such act or omission he
committed while they are not in the performance of their duties.

Q Despite the fact that the boy was no longer responding

to your application of first aid?
A Yes, sir.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the

award of damages to the respondents-spouses.

Q You have never been disturbed, "nababahala" in the

process of your application of the first aid on the body of
Ferdinand Castillo?

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand
belonged, did her best and exercised diligence of a good father of a family to prevent any
untoward incident or damages to all the students who joined the picnic.

A No, sir, because we were attending to the application of

first aid that we were doing, sir.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E.
instructors and scout masters who have knowledge in First Aid application and
swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the
defendants (petitioners herein) had life savers especially brought by the defendants in
case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez
and Vinas did all what is humanly possible to save the child.

Q After you have applied back to back pressure and

which you claimed the boy did not respond, were you not
disturb anyway?
A I was disturbed during that time, sir.

Testimony of Luisito Vinas on cross examination,

Q For how many minutes have you applied the back to

back pressure?

Q And when you saw the boy, Ferdinand Castillo, you

approached the boy and claim also having applied first
aid on him?

A From 9 to 11 times, sir.

A Yes, sir.

Q You mean 9 to 11 times of having applied the pressure

of your body on the body of Ferdinand Castillo?

Q And while you were applying the so called first aid, the
children were covering you up or were surrounding you?

A Yes, sir.

A Yes, sir.

Q Will you please describe how you applied a single act

of back to back pressure?

Q You were rattled at that time, is it not?

A This has been done by placing the boy lay first

downwards, then the face was a little bit facing right and
doing it by massaging the back of the child, sir." (TSN, pp.
32-35, hearing of July 30, 1984)

A No, sir.
Q You mean you were in calm and peaceful condition?

Testimony of Tirso de Chavez on direct examination

A Yes, sir.
ATTY. FLORES:

108
Q Who actually applied the first aid or artificial respiration
to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito
Vinas, was I applied back to back pressure and took
notice of the condition of the child. We placed the feet in a
higher position, that of the head of the child, sir.
Q After you have placed the boy in that particular position,
where the feet were on a higher level than that of the
head, what did you do next?
A The first thing that we did, particularly myself, was that
after putting the child in that position, I applied the back to
back pressure and started to massage from the waistline
up, but I noticed that the boy was not responding, sir.
Q For how long did you apply this back to back pressure
on the boy?

Art. 2217. Moral Damages include physical suffering, mental anguish,

fright, serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or omission.
Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or
negligence, hence, no moral damages can be assessed against them.
While it is true that respondents-spouses did give their consent to their son to join the
picnic, this does not mean that the petitioners were already relieved of their duty to
observe the required diligence of a good father of a family in ensuring the safety of the
children. But in the case at bar, petitioners were able to prove that they had exercised the
required diligence. Hence, the claim for moral or exemplary damages becomes baseless.
PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding
petitioners herein guilty of negligence and liable for the death of Ferdinand Castillo and
awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners
herein are concerned, but the portion of the said decision dismissing their counterclaim,
there being no merit, is hereby AFFIRMED.
SO ORDERED.
Sarmiento and Regalado, JJ., concur.

A About 10 seconds, sir.

Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what
did you do?
A When we noticed that the boy was not responding, we
changed the position of the boy by placing the child facing
upwards laying on the sand then we applied the mouth to
mouth resuscitation, sir. (pp. 92-93, Rollo)
With these facts in mind, no moral nor exemplary damages may be awarded in favor of
respondents-spouses. The case at bar does not fall under any of the grounds to grant
moral damages.

G.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P.
PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO,
petitioners,
vs.
COURT OF APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her capacity as
Presiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R.
BAUTISTA and ARSENIA D. BAUTISTA, respondents.
Balgos and Perez for petitioners.
Collantes, Ramirez & Associates for private respondents.

109

PADILLA, J.:
A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while
on the second-floor premises of the Philippine School of Business Administration (PSBA)
prompted the parents of the deceased to file suit in the Regional Trial Court of Manila
(Branch 47) presided over by Judge (now Court of Appeals justice) Regina OrdoezBenitez, for damages against the said PSBA and its corporate officers. At the time of his
death, Carlitos was enrolled in the third year commerce course at the PSBA. It was
established that his assailants were not members of the school's academic community
but were elements from outside the school.
Specifically, the suit impleaded the PSBA and the following school authorities: Juan D.
Lim (President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas
(Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant
Chief of Security). Substantially, the plaintiffs (now private respondents) sought to
adjudge them liable for the victim's untimely demise due to their alleged negligence,
recklessness and lack of security precautions, means and methods before, during and
after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated
his relationship with the other petitioners by resigning from his position in the school.
Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since
they are presumably sued under Article 2180 of the Civil Code, the complaint states no
cause of action against them, as jurisprudence on the subject is to the effect that
academic institutions, such as the PSBA, are beyond the ambit of the rule in the aforestated article.
The respondent trial court, however, overruled petitioners' contention and thru an order
dated 8 December 1987, denied their motion to dismiss. A subsequent motion for
reconsideration was similarly dealt with by an order dated 25 January 1988. Petitioners
then assailed the trial court's disposition before the respondent appellate court which, in
a decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August
1988, the respondent appellate court resolved to deny the petitioners' motion for
reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent appellate court primarily anchored
its decision on the law of quasi-delicts, as enunciated in Articles 2176 and 2180 of the
Civil Code. 1 Pertinent portions of the appellate court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from
the old Spanish Civil Code. The comments of Manresa and learned
authorities on its meaning should give way to present day changes. The
law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest
value and significance of law as a rule of conduct in (sic) its flexibility to
adopt to changing social conditions and its capacity to meet the new
challenges of progress.
Construed in the light of modern day educational system, Article 2180
cannot be construed in its narrow concept as held in the old case of
Exconde vs. Capuno 2 and Mercado vs. Court of Appeals; 3 hence, the
ruling in the Palisoc 4 case that it should apply to all kinds of educational
institutions, academic or vocational.
At any rate, the law holds the teachers and heads of the school staff
liable unless they relieve themselves of such liability pursuant to the last
paragraph of Article 2180 by "proving that they observed all the diligence
to prevent damage." This can only be done at a trial on the merits of the
case. 5
While we agree with the respondent appellate court that the motion to dismiss the
complaint was correctly denied and the complaint should be tried on the merits, we do
not however agree with the premises of the appellate court's ruling.
Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in
loco parentis. This Court discussed this doctrine in the afore-cited cases of Exconde,
Mendoza, Palisoc and, more recently, in Amadora vs. Court of Appeals. 6 In all such
cases, it had been stressed that the law (Article 2180) plainly provides that the damage
should have been caused or inflicted by pupils or students of he educational institution
sought to be held liable for the acts of its pupils or students while in its custody. However,
this material situation does not exist in the present case for, as earlier indicated, the
assailants of Carlitos were not students of the PSBA, for whose acts the school could be
made liable.
However, does the appellate court's failure to consider such material facts mean the
exculpation of the petitioners from liability? It does not necessarily follow.
When an academic institution accepts students for enrollment, there is established a
contract between them, resulting in bilateral obligations which both parties are bound to
comply with. 7 For its part, the school undertakes to provide the student with an
education that would presumably suffice to equip him with the necessary tools and skills

110
to pursue higher education or a profession. On the other hand, the student covenants to
abide by the school's academic requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing their
students with an atmosphere that promotes or assists in attaining its primary undertaking
of imparting knowledge. Certainly, no student can absorb the intricacies of physics or
higher mathematics or explore the realm of the arts and other sciences when bullets are
flying or grenades exploding in the air or where there looms around the school premises
a constant threat to life and limb. Necessarily, the school must ensure that adequate
steps are taken to maintain peace and order within the campus premises and to prevent
the breakdown thereof.
Because the circumstances of the present case evince a contractual relation between
the PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A
perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also
known as extra-contractual obligations, arise only between parties not otherwise bound
by contract, whether express or implied. However, this impression has not prevented this
Court from determining the existence of a tort even when there obtains a contract. In Air
France vs. Carrascoso (124 Phil. 722), the private respondent was awarded damages for
his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted,
however, that the Court referred to the petitioner-airline's liability as one arising from tort,
not one arising from a contract of carriage. In effect, Air France is authority for the view
that liability from tort may exist even if there is a contract, for the act that breaks the
contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).
This view was not all that revolutionary, for even as early as 1918, this Court was already
of a similar mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher
elucidated thus:
The field of non-contractual obligation is much broader than that of
contractual obligation, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking, concentric; that
is to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such
a contractual relation exists the obligor may break the contract under
such conditions that the same act which constitutes a breach of the
contract would have constituted the source of an extra-contractual
obligation had no contract existed between the parties.
Immediately what comes to mind is the chapter of the Civil Code on Human Relations,
particularly Article 21, which provides:

Any person who wilfully causes loss or injury to another in a manner that
is contrary to morals, good custom or public policy shall compensate the
latter for the damage. (emphasis supplied).
Air France penalized the racist policy of the airline which emboldened the petitioner's
employee to forcibly oust the private respondent to cater to the comfort of a white man
who allegedly "had a better right to the seat." In Austro-American, supra, the public
embarrassment caused to the passenger was the justification for the Circuit Court of
Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be
concluded that should the act which breaches a contract be done in bad faith and be
violative of Article 21, then there is a cause to view the act as constituting a quasi-delict.
In the circumstances obtaining in the case at bar, however, there is, as yet, no finding
that the contract between the school and Bautista had been breached thru the former's
negligence in providing proper security measures. This would be for the trial court to
determine. And, even if there be a finding of negligence, the same could give rise
generally to a breach of contractual obligation only. Using the test of Cangco, supra, the
negligence of the school would not be relevant absent a contract. In fact, that negligence
becomes material only because of the contractual relation between PSBA and Bautista.
In other words, a contractual relation is a condition sine qua non to the school's liability.
The negligence of the school cannot exist independently of the contract, unless the
negligence occurs under the circumstances set out in Article 21 of the Civil Code.
This Court is not unmindful of the attendant difficulties posed by the obligation of schools,
above-mentioned, for conceptually a school, like a common carrier, cannot be an insurer
of its students against all risks. This is specially true in the populous student communities
of the so-called "university belt" in Manila where there have been reported several
incidents ranging from gang wars to other forms of hooliganism. It would not be equitable
to expect of schools to anticipate all types of violent trespass upon their premises, for
notwithstanding the security measures installed, the same may still fail against an
individual or group determined to carry out a nefarious deed inside school premises and
environs. Should this be the case, the school may still avoid liability by proving that the
breach of its contractual obligation to the students was not due to its negligence, here
statutorily defined to be the omission of that degree of diligence which is required by the
nature of the obligation and corresponding to the circumstances of persons, time and
place. 9
As the proceedings a quo have yet to commence on the substance of the private
respondents' complaint, the record is bereft of all the material facts. Obviously, at this
stage, only the trial court can make such a determination from the evidence still to unfold.

111
WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of
origin (RTC, Manila, Br. 47) is hereby ordered to continue proceedings consistent with
this ruling of the Court. Costs against the petitioners.
SO ORDERED.
Melencio-Herrera, Paras, Regalado and Nocon, JJ., concur.
V. PRIMARY/STRICT LIABILITY
A. POSSESSORS AND OWNERS OF ANIMALS (Art. 2183)
G.R. No. 74431 November 6, 1989
PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA UY, respondents.
Pablo P. Garcia for petitioners.
Roberto R. Palmares for private respondents.

Seven months later, the Uys sued for damages, alleging that the Vestils were liable to
them as the possessors of "Andoy," the dog that bit and eventually killed their daughter.
The Vestils rejected the charge, insisting that the dog belonged to the deceased Vicente
Miranda, that it was a tame animal, and that in any case no one had witnessed it bite
Theness. After trial, Judge Jose R. Ramolete of the Court of First Instance of Cebu
sustained the defendants and dismissed the complaint. 4
The respondent court arrived at a different conclusion when the case was appealed. 5 It
found that the Vestils were in possession of the house and the dog and so should be
responsible under Article 2183 of the Civil Code for the injuries caused by the dog. It also
held that the child had died as a result of the dog bites and not for causes independent
thereof as submitted by the appellees. Accordingly, the Vestils were ordered to pay the
Uys damages in the amount of P30,000.00 for the death of Theness, P12,000.00 for
medical and hospitalization expenses, and P2,000.00 as attorney's fees.
In the proceedings now before us, Purita Vestil insists that she is not the owner of the
house or of the dog left by her father as his estate has not yet been partitioned and there
are other heirs to the property. Pursuing the logic of the Uys, she claims, even her sister
living in Canada would be held responsible for the acts of the dog simply because she is
one of Miranda's heirs. However, that is hardly the point. What must be determined is the
possession of the dog that admittedly was staying in the house in question, regardless of
the ownership of the dog or of the house.
Article 2183 reads as follows:

CRUZ, J.:
Little Theness Tan Uy was dead at the age of three. Her parents said she died because
she was bitten by a dog of the petitioners, but the latter denied this, claiming they had
nothing to do with the dog. The Uys sued the Vestils, who were sustained by the trial
court. On appeal, the decision of the court a quo was reversed in favor of the Uys. The
Vestils are now before us. They ask us to set aside the judgment of the respondent court
and to reinstate that of the trial court.
On July 29, 1915, Theness was bitten by a dog while she was playing with a child of the
petitioners in the house of the late Vicente Miranda, the father of Purita Vestil, at F.
Ramos Street in Cebu City. She was rushed to the Cebu General Hospital, where she
was treated for "multiple lacerated wounds on the forehead" 1 and administered an antirabies vaccine by Dr. Antonio Tautjo. She was discharged after nine days but was
readmitted one week later due to "vomiting of saliva." 2 The following day, on August 15,
1975, the child died. The cause of death was certified as broncho-pneumonia. 3

The possessor of an animal or whoever may make use of the same is

responsible for the damage which it may cause, although it may escape
or be lost. 'This responsibility shall cease only in case the damages
should come from force majeure from the fault of the person who has
suffered damage.
Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a carabao gored him to death
and his heirs thereupon sued the owner of the animal for damages. The complaint was
dismissed on the ground that it was the caretaker's duty to prevent the carabao from
causing injury to any one, including himself.
Purita Vestil's testimony that she was not in possession of Miranda's house is hardly
credible. She said that the occupants of the house left by her father were related to him
("one way or the other") and maintained themselves out of a common fund or by some
kind of arrangement (on which, however, she did not elaborate ). 7 She mentioned as
many as ten of such relatives who had stayed in the house at one time or another
although they did not appear to be close kin. 8 She at least implied that they did not pay

112
any rent, presumably because of their relation with Vicente Miranda notwithstanding that
she herself did not seem to know them very well.
There is contrary evidence that the occupants of the house, were boarders (or more of
boarders than relatives) who paid the petitioners for providing them with meals and
accommodations. It also appears that Purita Vestil had hired a maid, Dolores Jumao-as,
who did the cooking and cleaning in the said house for its occupants. 9 Her mother,
Pacita, who was a nursemaid of Purita herself, categorically declared that the petitioners
were maintaining boarders in the house where Theness was bitten by a dog. 10 Another
witness, Marcial Lao, testified that he was indeed a boarder and that the Vestils were
maintaining the house for business purposes. 11 And although Purita denied paying the
water bills for the house, the private respondents submitted documentary evidence of her
application for water connection with the Cebu Water District, which strongly suggested
that she was administering the house in question. 12
While it is true that she is not really the owner of the house, which was still part of
Vicente Miranda's estate, there is no doubt that she and her husband were its
possessors at the time of the incident in question. She was the only heir residing in Cebu
City and the most logical person to take care of the property, which was only six
kilometers from her own house. 13 Moreover, there is evidence showing that she and her
family regularly went to the house, once or twice weekly, according to at least one
witness, 14 and used it virtually as a second house. Interestingly, her own daughter was
playing in the house with Theness when the little girl was bitten by the dog. 15 The dog
itself remained in the house even after the death of Vicente Miranda in 1973 and until
1975, when the incident in question occurred. It is also noteworthy that the petitioners
offered to assist the Uys with their hospitalization expenses although Purita said she
knew them only casually. 16
The petitioners also argue that even assuming that they were the possessors of the dog
that bit Theness there was no clear showing that she died as a result thereof. On the
contrary, the death certificate 17 declared that she died of broncho-pneumonia, which had
nothing to do with the dog bites for which she had been previously hospitalized. The
Court need not involve itself in an extended scientific discussion of the causal connection
between the dog bites and the certified cause of death except to note that, first, Theness
developed hydrophobia, a symptom of rabies, as a result of the dog bites, and second,
that asphyxia broncho-pneumonia, which ultimately caused her death, was a
complication of rabies. That Theness became afraid of water after she was bitten by the
dog is established by the following testimony of Dr. Tautjo:
COURT: I think there was mention of rabies in the report in the second
admission?

A: Now, the child was continuously vomiting just before I referred to Dr.
Co earlier in the morning and then the father, because the child was
asking for water, the father tried to give the child water and this child went
under the bed, she did not like to drink the water and there was fright in
her eyeballs. For this reason, because I was in danger there was rabies, I
called Dr. Co.
Q: In other words, the child had hydrophobia?
A: Yes, sir. 18
As for the link between rabies and broncho-pneumonia, the doctor had the following to
say under oath:
A: Now, as 1 said before, broncho-pneumonia can result from physical,
chemical and bacterial means. ... It can be the result of infection, now, so
if you have any other disease which can lower your resistance you can
also get pneumonia.
xxx xxx xxx
Q: Would you say that a person who has rabies may die of complication
which is broncho-pneumonia?
A: Yes.
Q: For the record, I am manifesting that this book shown the witness is
know as CURRENT DIANOSIS & TREATMENT, 1968 by Henry Brainerd,
Sheldon Margen and Milton Chaton. Now, I invite your attention, doctor,
to page 751 of this book under the title "Rabies." There is on this page,
"Prognosis" as a result of rabies and it says: Once the symptoms, have
appeared death inevitably occurs after 2-3 days as a result of cardiac or
respiratory failure or generalized paralysis. After a positive diagnosis of
rabies or after a bite by a suspected animal if the animal cannot be
observed or if the bite is on the head, give rabies vaccine (duck embryo).
Do you believe in this statement?
A: Yes.
Q: Would you say therefore that persons who have rabies may die of
respiratory failure which leave in the form of bronco-pneumonia?

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A: Broncho-pneumonia can be a complication of rabies.

19

On the strength of the foregoing testimony, the Court finds that the link between the dog
bites and the certified cause of death has beep satisfactorily established. We also
reiterate our ruling in Sison v. Sun Life Assurance Company of Canada, 20 that the death
certificate is not conclusive proof of the cause of death but only of the fact of death.
Indeed, the evidence of the child's hydrophobia is sufficient to convince us that she died
because she was bitten by the dog even if the death certificate stated a different cause of
death. The petitioner's contention that they could not be expected to exercise remote
control of the dog is not acceptable. In fact, Article 2183 of the Civil Code holds the
possessor liable even if the animal should "escape or be lost" and so be removed from
his control. And it does not matter either that, as the petitioners also contend, the dog
was tame and was merely provoked by the child into biting her. The law does not speak
only of vicious animals but covers even tame ones as long as they cause injury. As for
the alleged provocation, the petitioners forget that Theness was only three years old at
the time she was attacked and can hardly be faulted for whatever she might have done
to the animal.
It is worth observing that the above defenses of the petitioners are an implied rejection of
their original posture that there was no proof that it was the dog in their father's house
that bit Theness.
According to Manresa the obligation imposed by Article 2183 of the Civil Code is not
based on the negligence or on the presumed lack of vigilance of the possessor or user of
the animal causing the damage. It is based on natural equity and on the principle of
social interest that he who possesses animals for his utility, pleasure or service must
answer for the damage which such animal may cause. 21
We sustain the findings of the Court of Appeals and approve the monetary awards
except only as to the medical and hospitalization expenses, which are reduced to
P2,026.69, as prayed for in the complaint. While there is no recompense that can bring
back to the private respondents the child they have lost, their pain should at least be
assuaged by the civil damages to which they are entitled.
WHEREFORE, the challenged decision is AFFIRMED as above modified. The petition is
DENIED, with costs against the petitioners. It is so ordered.
B. OWNERS OF MOTOR VEHICLES (ART 2184)
G.R. No. L-20392

December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM

CAEDO, EILEEN CAEDO, ROSE ELAINE CAEDO, suing through their father,
MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants,
vs.
YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.
Norberto J. Quisumbing for plaintiffs-appellants.
De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants
MAKALINTAL, J.:
As a result of a vehicular accident in which plaintiff Marcial Caedo and several members
of his family were injured they filed this suit for recovery of damages from the
defendants. The judgment, rendered by the Court of First Instance of Rizal on February
26, 1960 (Q-2952), contains the following disposition:
IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of
the plaintiffs and against the defendants, Yu Khe Thai and Rafael Bernardo,
jointly and severally, to pay to plaintiffs Marcial Caedo, et al., the sum of
P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00 for
exemplary damages; and P5,000.00 for attorney's fees, with costs against the
defendants. The counterclaim of the defendants against the plaintiffs is hereby
ordered dismissed, for lack of merits.
On March 12, 1960 the judgment was amended so as to include an additional award of
P3,705.11 in favor of the plaintiffs for the damage sustained by their car in the accident.
Both parties appealed to the Court of Appeals, which certified the case to us in view of
the total amount of the plaintiffs' claim.
There are two principal questions posed for resolution: (1) who was responsible for the
accident? and (2) if it was defendant Rafael Bernardo, was his employer, defendant Yu
Khe Thai, solidarily liable with him? On the first question the trial court found Rafael
Bernardo negligent; and on the second, held his employer solidarily liable with him.
The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54
(now E. de los Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was driving
his Mercury car on his way from his home in Quezon City to the airport, where his son
Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs.
Caedo and three daughters. Coming from the opposite direction was the Cadillac of Yu
Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his

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Paraaque home to Wack Wack for his regular round of golf. The two cars were traveling
at fairly moderate speeds, considering the condition of the road and the absence of traffic
the Mercury at 40 to 50 kilometers per hour, and the Cadillac at approximately 30 to
35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a
distance. Ahead of the Cadillac, going in the same direction, was a caretella owned by a
certain Pedro Bautista. The carretela was towing another horse by means of a short rope
coiled around the rig's vertical post on the right side and held at the other end by Pedro's
son, Julian Bautista.
Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him,
only eight meters away. This is the first clear indication of his negligence. The carretela
was provided with two lights, one on each side, and they should have given him sufficient
warning to take the necessary precautions. And even if he did not notice the lights, as he
claimed later on at the trial, the carretela should anyway have been visible to him from
afar if he had been careful, as it must have been in the beam of his headlights for a
considerable while.
In the meantime the Mercury was coming on its own lane from the opposite direction.
Bernardo, instead of slowing down or stopping altogether behind the carretela until that
lane was clear, veered to the left in order to pass. As he did so the curved end of his
car's right rear bumper caught the forward rim of the rig's left wheel, wrenching it off and
carrying it along as the car skidded obliquely to the other lane, where it collided with the
oncoming vehicle. On his part Caedo had seen the Cadillac on its own lane; he
slackened his speed, judged the distances in relation to the carretela and concluded that
the Cadillac would wait behind. Bernardo, however, decided to take a gamble beat the
Mercury to the point where it would be in line with the carretela, or else squeeze in
between them in any case. It was a risky maneuver either way, and the risk should have
been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25
miles according to Yu Khe Thai) it was already too late to apply the brakes when
Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to
the left in spite of the presence of the oncoming car on the opposite lane. As it was, the
clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as
already stated, caught the wheel of the carretela and wrenched it loose. Caedo,
confronted with the unexpected situation, tried to avoid the collision at the last moment
by going farther to the right, but was unsuccessful. The photographs taken at the scene
show that the right wheels of his car were on the unpaved shoulder of the road at the
moment of impact.
There is no doubt at all that the collision was directly traceable to Rafael Bernardo's
negligence and that he must be held liable for the damages suffered by the plaintiffs. The
next question is whether or not Yu Khe Thai, as owner of the Cadillac, is solidarily liable
with the driver. The applicable law is Article 2184 of the Civil Code, which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver,
if the former, who was in the vehicle, could have, by the use of due diligence,
prevented the misfortune. It is disputably presumed that a driver was negligent, if
he had been found guilty of reckless driving or violating traffic regulations at least
twice within the next preceding two months.
Under the foregoing provision, if the causative factor was the driver's negligence, the
owner of the vehicle who was present is likewise held liable if he could have prevented
the mishap by the exercise of due diligence. The rule is not new, although formulated as
law for the first time in the new Civil Code. It was expressed in Chapman vs. Underwood
(1914), 27 Phil. 374, where this Court held:
... The same rule applies where the owner is present, unless the negligent acts of
the driver are continued for such a length of time as to give the owner a
reasonable opportunity to observe them and to direct his driver to desist
therefrom. An owner who sits in his automobile, or other vehicle, and permits his
driver to continue in a violation of the law by the performance of negligent acts,
after he has had a reasonable opportunity to observe them and to direct that the
driver cease therefrom, becomes himself responsible for such acts. The owner of
an automobile who permits his chauffeur to drive up the Escolta, for example, at
a speed of 60 miles an hour, without any effort to stop him, although he has had
a reasonable opportunity to do so, becomes himself responsible, both criminally
and civilly, for the results produced by the acts of the chauffeur. On the other
hand, if the driver, by a sudden act of negligence, and without the owner having a
reasonable opportunity to prevent the act or its continuance, injures a person or
violates the criminal law, the owner of the automobile, although present therein at
the time the act was committed, is not responsible, either civilly or criminally,
therefor. The act complained of must be continued in the presence of the owner
for such a length of time that the owner, by his acquiescence, makes his driver
act his own.
The basis of the master's liability in civil law is not respondent superior but rather the
relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if
known to the master and susceptible of timely correction by him, reflects his own
negligence if he fails to correct it in order to prevent injury or damage.
In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe
Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware
Co. in the same capacity for over ten years. During that time he had no record of
violation of traffic laws and regulations. No negligence for having employed him at all
may be imputed to his master. Negligence on the part of the latter, if any, must be sought
in the immediate setting and circumstances of the accident, that is, in his failure to detain

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the driver from pursuing a course which not only gave him clear notice of the danger but
also sufficient time to act upon it. We do not see that such negligence may be imputed.
The car, as has been stated, was not running at an unreasonable speed. The road was
wide and open, and devoid of traffic that early morning. There was no reason for the car
owner to be in any special state of alert. He had reason to rely on the skill and
experience of his driver. He became aware of the presence of the carretela when his car
was only twelve meters behind it, but then his failure to see it earlier did not constitute
negligence, for he was not himself at the wheel. And even when he did see it at that
distance, he could not have anticipated his driver's sudden decision to pass the carretela
on its left side in spite of the fact that another car was approaching from the opposite
direction. The time element was such that there was no reasonable opportunity for Yu
Khe Thai to assess the risks involved and warn the driver accordingly. The thought that
entered his mind, he said, was that if he sounded a sudden warning it might only make
the other man nervous and make the situation worse. It was a thought that, wise or not,
connotes no absence of that due diligence required by law to prevent the misfortune.
The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree,
necessarily subjective. Car owners are not held to a uniform and inflexible standard of
diligence as are professional drivers. In many cases they refrain from driving their own
cars and instead hire other persons to drive for them precisely because they are not
trained or endowed with sufficient discernment to know the rules of traffic or to
appreciate the relative dangers posed by the different situations that are continually
encountered on the road. What would be a negligent omission under aforesaid Article on
the part of a car owner who is in the prime of age and knows how to handle a motor
vehicle is not necessarily so on the part, say, of an old and infirm person who is not
similarly equipped.
The law does not require that a person must possess a certain measure of skill or
proficiency either in the mechanics of driving or in the observance of traffic rules before
he may own a motor vehicle. The test of his intelligence, within the meaning of Article
2184, is his omission to do that which the evidence of his own senses tells him he should
do in order to avoid the accident. And as far as perception is concerned, absent a
minimum level imposed by law, a maneuver that appears to be fraught with danger to
one passenger may appear to be entirely safe and commonplace to another. Were the
law to require a uniform standard of perceptiveness, employment of professional drivers
by car owners who, by their very inadequacies, have real need of drivers' services, would
be effectively proscribed.
We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is
an error. The next question refers to the sums adjudged by the trial court as damages.
The award of P48,000 by way of moral damages is itemized as follows:

1. Marcial Caedo

P 20,000.00

2. Juana S. Caedo

15,000.00

3. Ephraim Caedo

3,000.00

4. Eileen Caedo

4,000.00

5. Rose Elaine Caedo

3,000.00

6. Merilyn Caedo

3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them
also actual or compensatory damages, aggregating P225,000, for the injuries they
sustained. Defendants, on the other hand maintain that the amounts awarded as moral
damages are excessive and should be reduced. We find no justification for either side.
The amount of actual damages suffered by the individual plaintiffs by reason of their
injuries, other than expenses for medical treatment, has not been shown by the
evidence. Actual damages, to be compensable, must be proven. Pain and suffering are
not capable of pecuniary estimation, and constitute a proper ground for granting moral,
not actual, damages, as provided in Article 2217 of the Civil Code.
The injuries sustained by plaintiffs are the following:
MARCIAL T. CAEDO:
A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall,
anterior;
B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double
fracture; Subparieto-plaural hematoma; Basal disc atelectasis, lung, right
lower lobe, secondary;
C. Pseudotosis, left, secondary to probable basal fracture, skull.
JUANA SANGALANG CAEDO:
A. Abrasions, multiple:
(1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.
B. Wound, lacerated, irregular, deep, frontal;
C. Fracture, simple, 2nd rib posterior, left with displacement.
D. Fracture, simple, base, proximal phalanx right, big toe.

116
E. Fracture, simple, base, metatarsals III and V right.
F. Concussion, cerebral.
EPHRAIM CAEDO:
A. Abrasions, multiple:
(1) left temporal area; (2) left frontal; (3) left supraorbital

[G.R. No. 138054. September 28, 2000]

ROSENDO C. CARTICIANO and ZACARIAS A. CARTICIANO, petitioners, vs. MARIO
NUVAL, respondent.
DECISION
PANGANIBAN, J.:

EILEEN CAEDO:
A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.
B. Abrasions, multiple:
(1) dorsum, proximal phalanx middle finger; (2) Knee, anterior,
bilateral; (3) shin, lower 1/3.
ROSE ELAINE CAEDO:
A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3)
nasolabial region; (4) leg, lower third, anterior.

To hold an employer liable for the negligent acts of the employee, it is enough to prove
that the latter was hired to drive the formers motor vehicle. It is not necessary to show, in
addition, that the employers children were aboard the jeep when the accident happened.
Once the driver is shown to be negligent, the burden of proof to free the employer from
liability shifts to the latter.
Statement of the Case
Before this Court is a Petition for Review on Certiorarixx[1] under Rule 45 of the Rules of
Court, assailing the November 10, 1999 Decisionxxi[2] of the Court of Appeals (CA)xxii[3] in
CA-GR CV No. 52316, which disposed as follows:

MARILYN CAEDO:
A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third
C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See
Exhibits D, D-1, D-2, D-3, D-4, and D- 5)
It is our opinion that, considering the nature and extent of the above-mentioned injuries,
the amounts of moral damages granted by the trial court are not excessive.

WHEREFORE, [the] foregoing considered, the appealed decision is hereby AFFIRMED

insofar as defendant Darwin is concerned and REVERSED and SET-ASIDE as it
pertains to defendant-appellant Nuval. Defendant-appellant Nuval is hereby absolved of
any civil liability and the complaint against him is hereby DISMISSED. xxiii[4]
On the other hand, the trial courtxxiv[5] ruled in this wise:
ACCORDINGLY, judgment is hereby rendered in favor of plaintiffs and against
defendants, ordering the latter to pay the former jointly and severally the following:

WHEREFORE, the judgment appealed from is modified in the sense of declaring

defendant-appellant Yu Khe Thai free from liability, and is otherwise affirmed with respect
to defendant Rafael Bernardo, with costs against the latter.

1)
The amount of P160,715.19 as actual damage for the medical treatment so far of
plaintiff Zacarias Carticiano;

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ.,
concur.

2)
The amount of P100,000.00 to compensate the income and opportunities plaintiff
Zacarias lost as a result of the incident;

Fernando, J., took no part.

3)

The amount of P173,788.00 for the damages sustained by the Ford Laser;

THIRD DIVISION

4)

The amount of P200,000.00 as moral damages;

117
5)

The amount of P100,000.00 as exemplary damages;

6)

The amount of P100,000.00 as attorneys fees and expenses of litigation.

With costs.
SO ORDERED.
The Facts
The facts are summarized succinctly by the Court of Appeals as follows:
"On September 3, 1992 at about 9:30 in the evening, plaintiff Zacarias Carticiano was on
his way home to Imus, Cavite. Plaintiff Zacarias was driving his fathers (plaintiff
Rosendo Carticiano) Ford Laser car, traversing the coastal roads of Longos, Bacoor,
Cavite.
On the same date and time, defendant Nuvals owner-type Jeep, then driven by
defendant Darwin was traveling on the opposite direction going to Paraaque.
When the two cars were about to pass one another, defendant Darwin veered his
vehicle to his left going to the center island of the highway and occupied the lane which
plaintiff Zacarias was traversing.
As a result thereof, plaintiff Zacarias Ford Laser collided head-on with defendant
Nuvals Jeep. Defendant Darwin immediately fled from the scene.
Plaintiff Zacarias was taken out [of] the car by residents of the area and was brought to
the hospital by Eduard Tangan, a Narcom agent who happened to pass by the place.
Plaintiff Zacarias suffered multiple fracture on his left leg and other injuries in his body.
Plaintiff Zacarias underwent a leg operation and physical therapy to repair the damaged
leg.
Defendant Nuval offered P100,000.00 as compensation for the injuries caused. Plaintiffs
refused to accept the amount.
On this account, plaintiffs filed a criminal suit against defendant Darwin. Plaintiffs also
filed this present civil suit against defendants for damages.

Plaintiffs alleged that the proximate cause of the accident is defendants Darwin
recklessness in driving defendant Nuvals jeep; that on account of said recklessness of
defendant Darwin, plaintiff suffered damages; that defendant Darwin was an employee of
defendant Nuval at the time of accident; that defendant Nuval did not exercise due
diligence in the supervision of his employee; that defendants should he held liable for
damages.
Defendant Nuval on the other hand insisted that he cannot be held answerable for the
acts of defendant Darwin; that defendant Darwin was not an employee of defendant
Nuval at the time of the accident; that defendant Darwin was hired only as casual and
has worked with defendant Nuvals company only for five days; that at the time of the
accident, defendant Darwin was no longer connected with defendant Nuvals company;
that defendant Darwin was not authorized to drive the vehicle of defendant Nuval; that
defendant Nuval tried to locate defendant Darwin but the latter could no longer be found;
that defendant Nuval cannot be held liable for damages.
Defendant Darwin [h]as failed to file his answer within the reglementary period.
Consequently, he was declared in default. Trial of the case proceeded. xxv[6]
Ruling of the Court of Appeals
The Court of Appeals explained that in order to hold an employer liable for the negligent
acts of an employee under Article 2180 of the Civil Code, it must be shown that the
employee was acting within the scope of his assigned task when the tort complained of
was committed.xxvi[7]
The employer in this case, Respondent Mario Nuval, cannot be held liable for the tort
committed by Darwin. First, appellants did not present evidence showing that the driver
was indeed an employee of respondent at the time the accident occurred. And second,
even assuming arguendo that Darwin was in fact an employee of Nuval, it was not
shown that the former was acting within the scope of his assigned task when the incident
happened. Thus, the requisites for holding an employer liable for the tort committed by
an employee were not satisfied.
Hence, this appeal.xxvii[8]
Issues
Petitioners present the following issues:
A.

Whether or not Defendant Darwin was in fact an employee of Defendant Nuval;

118
B.
Whether or not Defendant Nuval was negligent in the selection and supervision
of his employees;
C.
Whether or not Defendant Nuval was grossly negligent in the safekeeping of the
key to his owner-type jeep and of said vehicle itself;
D.
Whether or not respondent must be held liable for the damages and injuries
suffered by appellees; [and]
E.
Whether or not findings of facts of the Court of Appeals are subject to
exceptions.xxviii[9]
For brevity, Item A will be taken up as the first issue; while B, C, D and E will be
discussed together as the second issue, since they all directly pertain to respondents
vicarious liability.
The Courts Ruling
The Petition is meritorious.
First Issue: No Proof That Employment Was Terminated
Respondent maintains that on the date xxix[10] the accident happened, Darwin was no
longer his employee because the latters services had already been terminated. Nuval
adds that Darwin was hired for a period of only four to six days. To substantiate this
claim, the former presented payroll and employment records showing that the latter was
no longer his employee.
We disagree. The only proof proferred by Respondent Nuval to show that Darwin was no
longer his employee was the payroll in which the latters name was not included.
However, as revealed by the testimonies of the witnesses presented during trial,
respondent had other employees working for him who were not listed in the payroll
either. The trial court explained as follows:
It surfaced that the payroll and daily time records presented by defendant Nuval [were]
not reliable proofs of the names and number of employees that defendant Nuval had at
the time of the incident in view of the testimonies of witnesses for defendant Nuval
tending to show that there were more employees of defendant Nuval who were not in the
payroll.xxx[11]

The rather easy access which Darwin had to the keys to the vehicle of Nuval further
weakened the latters cause. First, nobody questioned the fact that the former had freely
entered respondents house where the keys to the vehicle were kept. The theory of
Nuval that Darwin must have stolen the keys as well as the vehicle is rather farfetched
and not supported by any proof whatsoever. It is obviously an afterthought concocted to
present some semblance of a defense. Second, both respondent and his employees who
testified did not act as if the vehicle had been stolen. He had not reported the alleged
theft of his vehicle. Neither did he search nor ask his employees to search for the
supposedly stolen vehicle. In fact, he testified that his employees had told him that the
keys and the vehicle had merely probably been stolen by Darwin.
Atty. Bobadilia:
Mario Nuval:

Did you ask among your employees who gave the key to Darwin?

I asked them, sir.

Atty. Bobadilla: What was the reply of your employees?

M. Nuval:

According to my employees he stole the key of the jeepney at home.

Atty. Abas:
I disagree with the interpretation of the interpreter because the answer of
the witness is ninanak yata.
Interpreter:

I agree, your Honor.

Court: So, what is the correct interpretation?

A:
According to my employees perhaps the key was stolen, or perhaps Darwin stole
the key to the jeep.xxxi[12]
From the totality of the evidence, we are convinced that Darwin was Nuvals driver at the
time of the accident.
Second to Fourth Issues: Employers Liability
The CA agreed with the theory of respondent that he could not be held liable for the
negligent acts of his employee because Darwin was not acting within the scope of his
assigned tasks when the damage occurred. Respondent adds that he observed the
diligence of a good father of a family and was not negligent in safeguarding the keys to
the said vehicle.

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Article 2180 of the Civil Code provides that employers shall be liable for damages
caused by their employees acting within the scope of their assigned tasks. The said
provision is reproduced below:
ART. 2180. The obligation imposed by article 2176 is demandable not only for ones own
acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live [in] their company.

enable employers to escape their legal liabilities with impunity. Such loophole is easy to
concoct and is simply unacceptable.
The claim of respondent that he had exercised the diligence of a good father of a family
is not borne out by the evidence. Neither is it supported by logic. His main defense that
at the time of the accident Darwin was no longer his employee, having been merely hired
for a few days, is inconsistent with his other argument of due diligence in the selection of
an employee.

Guardians are liable for damages caused by the minors or incapacitated persons who
are under their authority and live in their company.

Once a driver is proven negligent in causing damages, the law presumes the vehicle
owner equally negligent and imposes upon the latter the burden of proving proper
selection of employee as a defense.xxxiii[14] Respondent failed to show that he had
satisfactorily discharged this burden.

The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

No Proof of Contributory Negligence

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.
The State is responsible in like manner when it acts through a special agent; but not
when the damage has been caused by the official to whom the task done properly
pertains, in which case what is provided in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they remain in
their custody.
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.xxxii[13] (Italics supplied)
The facts established in the case at bar show that Darwin was acting within the scope of
the authority given him when the collision occurred. That he had been hired only to bring
respondents children to and from school must be rejected. True, this may have been one
of his assigned tasks, but no convincing proof was presented showing that it was his
only task. His authority was to drive Nuvals vehicle. Third parties are not bound by the
allegation that the driver was authorized to operate the jeep only when the employers
children were on board the vehicle. Giving credence to this outlandish theory would

Respondent Nuvals accusation that Petitioner Zacarias Carticiano is guilty of

contributory negligence by failing to stop his car or to evade the oncoming jeep is
untenable. Both the trial and the appellate courts found that the accident was caused by
the fact that Darwins jeep suddenly veered towards Zacarias lane when the vehicles
were about to pass each other, thus making it difficult if not impossible for petitioner to
avoid the head-on collission. Nuval utterly failed to present sufficient evidence to show
that Zacarias could have evaded the jeep. Given the distance between the vehicles and
the speed at which they were travelling, the former was not able to demonstrate
convincingly that the latter could have minimized the damage complained of.
Review of Factual Findings
Generally, the factual findings of lower courts are accorded great respect by this Court.
However, the above rule is subject to certain exceptions, one of which is when the two
lower courts findings oppose each other.xxxiv[15]
In the present case, there is a clear conflict between the findings of the trial court and
those of the CA. Such conflict hinges on whether it was sufficiently proven that the
employment of Darwin had indeed been terminated by respondent, and whether the
former was acting within the scope of his assigned tasks at the time the collision
occurred. The resolution of both of these pivotal factual issues is determinative of
respondents vicarious liability for the injuries caused by Darwin. It is thus necessary for
this Court to pore over the evidence adduced, as it did already.
Damages

120
Article 2199 of the Civil Code allows the aggrieved party to recover the pecuniary loss
that he has suffered.
ART. 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Based on the above, Petitioner Zacarias is entitled to indemnification for actual damages
caused by the negligence of Darwin, for which the latters employer, Respondent Nuval,
is solidarily liable. And as found by the trial court, petitioner is entitled to P160,715.19 for
his medical treatment, as testified to by Dr. Eduardo Arandia. In the same vein, both
petitioners are also entitled to P173,788, which represents the costs incurred for the
repair of the damaged vehicle.xxxv[16]
The Civil Code allows indemnification for lost profit or income,
failed to adduce sufficient proof of such loss.

xxxvi

[17] but petitioners

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

correction for the public good, in addition to the moral, temperate, liquidated or
compensatory damages.
ART. 2234. While the amount of the exemplary damages need not be proved, the
plaintiff must show that he is entitled to moral, temperate or compensatory damages
before the court may consider the question of whether or not exemplary damages should
be awarded. In case liquidated damages have been agreed upon, although no proof of
loss is necessary in order that such liquidated damages may be recovered, nevertheless,
before the court may consider the question of granting exemplary in addition to the
liquidated damages, the plaintiff must show that he would be entitled to moral, temperate
or compensatory damages were it not for the stipulation for liquidated damages.
ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded x x x.xxxvii[18]

However, moral damages are in order, based on Articles 2217 and 2219 of the Civil Code
which respectively provide:
ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendants wrongful act or omission.
ART. 2219. Moral damages may be recovered in the following and analogous cases:
xxx

xxx

xxx

(2) Quasi-delicts causing physical injuries x x x

As a direct result of the collision, petitioner suffered physically. It is also true that he
experienced and will continue to experience social humiliation and ridicule for having his
left leg shorter than the right which causes him to limp when walking. For the above, we
agree with the trial court that Petitioner Zacarias is entitled to an award of moral
damages.

As held by the trial court, respondents refusal to answer adequately for the damages
forced petitioners to litigate and incur expenses. And to serve as an example for the
public good, exemplary damages are affirmed, since Petitioner Zacarias has already
shown that he is entitled to compensatory and moral damages in accordance with Article
2234 of the Civil Code.
WHEREFORE, the Petition is hereby GRANTED. The assailed Decision is REVERSED
and SET ASIDE and the trial courts Decision REINSTATED, except that the award of
P100,000 for lost income or opportunities is DELETED.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
[G.R. No. 128607. January 31, 2000]
ALFREDO MALLARI SR. and ALFREDO MALLARI JR., petitioners, vs. COURT OF
APPEALS and BULLETIN PUBLISHING CORPORATION, respondents.

Exemplary damages and attorneys fees are likewise authorized by the following
provisions of the Civil Code:

DECISION
BELLOSILLO, J.:

121
ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review on
certiorari seek to set aside the Decision of the Court of Appeals 25[1] which reversed the
court a quo and adjudged petitioners to be liable for damages due to negligence as a
common carrier resulting in the death of a passenger.
On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven
by petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari Sr. collided
with the delivery van of respondent Bulletin Publishing Corp. (BULLETIN, for brevity)
along the National Highway in Barangay San Pablo, Dinalupihan, Bataan. Petitioner
Mallari Jr. testified that he went to the left lane of the highway and overtook a Fiera which
had stopped on the right lane. Before he passed by the Fiera, he saw the van of
respondent BULLETIN coming from the opposite direction. It was driven by one Felix
Angeles. The sketch of the accident showed that the collision occurred after Mallari Jr.
overtook the Fiera while negotiating a curve in the highway. The points of collision were
the left rear portion of the passenger jeepney and the left front side of the delivery van of
BULLETIN. The two (2) right wheels of the delivery van were on the right shoulder of the
road and pieces of debris from the accident were found scattered along the shoulder of
the road up to a certain portion of the lane travelled by the passenger jeepney. The
impact caused the jeepney to turn around and fall on its left side resulting in injuries to its
passengers one of whom was Israel Reyes who eventually died due to the gravity of his
injuries. Manikan
On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint
for damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr.
and Alfredo Mallari Jr., and also against BULLETIN, its driver Felix Angeles, and the N.V.
Netherlands Insurance Company. The complaint alleged that the collision which resulted
in the death of Israel Reyes was caused by the fault and negligence of both drivers of the
passenger jeepney and the Bulletin Isuzu delivery van. The complaint also prayed that
the defendants be ordered jointly and severally to pay plaintiff P1,006,777.40 in
compensatory damages, P40,000.00 for hospital and medical expenses, P18,270.00 for
burial expenses plus such amounts as may be fixed by the trial court for exemplary
damages and attorneys fees.
The trial court found that the proximate cause of the collision was the negligence of Felix
Angeles, driver of the Bulletin delivery van, considering the fact that the left front portion
of the delivery truck driven by Felix Angeles hit and bumped the left rear portion of the
passenger jeepney driven by Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN
and Felix Angeles to pay jointly and severally Claudia G. Reyes, widow of the deceased
victim, the sums of P42,106.93 for medical expenses; P8,600.00 for funeral and burial
expenses; P1,006,777.40 for loss of earning capacity; P5,000.00 for moral damages and

25

P10,000.00 for attorneys fees. The trial court also ordered N.V. Netherlands Insurance
Company to indemnify Claudia G. Reyes P12,000.00 as death indemnity and P2,500.00
for funeral expenses which when paid should be deducted from the liabilities of
respondent BULLETIN and its driver Felix Angeles to the plaintiff. It also dismissed the
complaint against the other defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.
On appeal the Court of Appeals modified the decision of the trial court and found no
negligence on the part of Angeles and consequently of his employer, respondent
BULLETIN. Instead, the appellate court ruled that the collision was caused by the sole
negligence of petitioner Alfredo Mallari Jr. who admitted that immediately before the
collision and after he rounded a curve on the highway, he overtook a Fiera which had
stopped on his lane and that he had seen the van driven by Angeles before overtaking
the Fiera. The Court of Appeals ordered petitioners Mallari Jr. and Mallari Sr. to
compensate Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00
as indemnity for death and P10,000.00 for attorneys fees. It absolved from any liability
respondent BULLETIN, Felix Angeles and N.V. Netherlands Insurance Company. Hence
this petition. Oldmis o
Petitioners contend that there is no evidence to show that petitioner Mallari Jr. overtook a
vehicle at a curve on the road at the time of the accident and that the testimony of
Angeles on the overtaking made by Mallari Jr. was not credible and unreliable. Petitioner
also submits that the trial court was in a better position than the Court of Appeals to
assess the evidence and observe the witnesses as well as determine their credibility;
hence, its finding that the proximate cause of the collision was the negligence of
respondent Angeles, driver of the delivery van owned by respondent BULLETIN, should
be given more weight and consideration.
We cannot sustain petitioners. Contrary to their allegation that there was no evidence
whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve on the road at the time
of or before the accident, the same petitioner himself testified that such fact indeed did
occur Q:.......And what was that accident all about?
A:.......Well, what happened, sir, is that at about that time 5:00 oclock in
that morning of October 14 while I was negotiating on the highway at San
Pablo, Dinalupihan, Bataan, I was then following a blue Ford Fierra and
my distance behind was about twenty (20) feet and then I passed that
blue Ford Fierra. I overtook and when I was almost on the right lane of
the highway towards Olongapo City there was an oncoming delivery van
of the Bulletin Publishing Corporation which bumped the left rear portion
of the jeepney which I was driving and as a result of which the jeepney x

122
x x turned around and fell on its left side and as a result of which some of
my passengers including me were injured, sir x x x x

RA 4136 as amended, otherwise known as The Land Transportation and Traffic Code
which provides:

Q:.......Before you overtook the Ford Fierra jeepney did you look x x x
whether there was any vehicle coming towards you?

Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a

vehicle shall not drive to the left side of the center line of a highway in
overtaking or passing another vehicle proceeding in the same direction,
unless such left side is clearly visible and is free of oncoming traffic for a
sufficient distance ahead to permit such overtaking or passing to be
made in safety.

A:.......Yes, sir.
Q:.......Did you see the Bulletin van or the Press van coming towards
you?

(b) The driver of a vehicle shall not overtake or pass another vehicle
proceeding in the same direction when approaching the crest of a grade,
nor upon a curve in the highway, where the drivers view along the
highway is obstructed within a distance of five hundred feet ahead except
on a highway having two or more lanes for movement of traffic in one
direction where the driver of a vehicle may overtake or pass another
vehicle:

A:.......Yes, sir.
Q:.......At the moment the Ford Fierra xxx stop(ped) and in overtaking the
Fierra, did you not have an option to stop and not to overtake the Ford
Fierra?
A:.......Well, at the time when the Ford Fierra stopped in front of me I
slowed down with the intention of applying the brake, however, when I
saw the oncoming vehicle which is the Press van is very far x x x which is
100 feet distance, x x x it is sufficient to overtake the Ford Fierra so I
overt(ook) it x x x x
Q:.......You said that you took into consideration the speed of the
oncoming Press van but you also could not estimate the speed of the
press van because it was dark at that time, which of these statements are
true? Ncm
A:.......What I wanted to say, I took into consideration the speed of the
oncoming vehicle, the Press van, although at the moment I could not
estimate the speed of the oncoming vehicle x x x x26[2]
The Court of Appeals correctly found, based on the sketch and spot report of the police
authorities which were not disputed by petitioners, that the collision occurred immediately
after petitioner Mallari Jr. overtook a vehicle in front of it while traversing a curve on the
highway.27[3] This act of overtaking was in clear violation of Sec. 41, pars. (a) and (b), of

Provided That on a highway, within a business or residential district,

having two or more lanes for movement of traffic in one direction, the
driver of a vehicle may overtake or pass another vehicle on the right.
The rule is settled that a driver abandoning his proper lane for the purpose of overtaking
another vehicle in an ordinary situation has the duty to see to it that the road is clear and
not to proceed if he cannot do so in safety.28[4] When a motor vehicle is approaching or
rounding a curve, there is special necessity for keeping to the right side of the road and
the driver does not have the right to drive on the left hand side relying upon having time
to turn to the right if a car approaching from the opposite direction comes into view.29[5]
Ncmmis
In the instant case, by his own admission, petitioner Mallari Jr. already saw that the
BULLETIN delivery van was coming from the opposite direction and failing to consider
the speed thereof since it was still dark at 5:00 o'clock in the morning mindlessly
occupied the left lane and overtook two (2) vehicles in front of it at a curve in the
highway. Clearly, the proximate cause of the collision resulting in the death of Israel
Reyes, a passenger of the jeepney, was the sole negligence of the driver of the
passenger jeepney, petitioner Alfredo Mallari Jr., who recklessly operated and drove his
jeepney in a lane where overtaking was not allowed by traffic rules. Under Art. 2185 of

26

28

27

29

123
the Civil Code, unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap he was violating a traffic
regulation. As found by the appellate court, petitioners failed to present satisfactory
evidence to overcome this legal presumption.
The negligence and recklessness of the driver of the passenger jeepney is binding
against petitioner Mallari Sr., who admittedly was the owner of the passenger jeepney
engaged as a common carrier, considering the fact that in an action based on contract of
carriage, the court need not make an express finding of fault or negligence on the part of
the carrier in order to hold it responsible for the payment of damages sought by the
passenger. Under Art. 1755 of the Civil Code, a common carrier is bound to carry the
passengers safely as far as human care and foresight can provide using the utmost
diligence of very cautious persons with due regard for all the circumstances. Moreover,
under Art. 1756 of the Civil Code, in case of death or injuries to passengers, a common
carrier is presumed to have been at fault or to have acted negligently, unless it proves
that it observed extraordinary diligence. Further, pursuant to Art. 1759 of the same Code,
it is liable for the death of or injuries to passengers through the negligence or willful acts
of the formers employees. This liability of the common carrier does not cease upon proof
that it exercised all the diligence of a good father of a family in the selection of its
employees. Clearly, by the contract of carriage, the carrier jeepney owned by Mallari Sr.
assumed the express obligation to transport the passengers to their destination safely
and to observe extraordinary diligence with due regard for all the circumstances, and any
injury or death that might be suffered by its passengers is right away attributable to the
fault or negligence of the carrier. Scnc m
The monetary award ordered by the appellate court to be paid by petitioners to the
widow of the deceased passenger Israel M. Reyes of P1,006,777.50 for loss of earning
capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for attorneys fees, all
of which were not disputed by petitioners, is a factual matter binding and conclusive upon
this Court.
WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals dated
20 September 1995 reversing the decision of the trial court being in accord with law and
evidence is AFFIRMED. Consequently, petitioners are ordered jointly and severally to
pay Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as civil
indemnity for death, and P10,000.00 for attorneys fees. Costs against petitioners.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., concur.2/22/00 9:44 AM
C. MANUFACTURERS AND PROCESSORS (ART 2187)

D, MUNICIPAL CORPORATIONS (ART 2189) (SEC. 24, RA 7160)

G.R. No. 61516 March 21, 1989
FLORENTINA A. GUILATCO, petitioner,
vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.
Nolan R. Evangelista for petitioner.
The City Legal Officer for respondents.

SARMIENTO, J.:
In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco,
the following judgment was rendered against the respondent City of Dagupan:
xxx
(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in
the amount of P 15,924 (namely P8,054.00 as hospital, medical and
other expenses [Exhs. H to H-60], P 7,420.00 as lost income for one (1)
year [Exh. F] and P 450.00 as bonus). P 150,000.00 as moral damages,
P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees,
and litigation expenses, plus costs and to appropriate through its
Sangguniang Panglunsod (City Council) said amounts for said purpose;
(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo
G. Tangco; and
(3) Dismissing the counterclaims of defendant City of Dagupan and
defendant City Engr. Alfredo G. Tangco, for lack of merit. 2
The facts found by the trial court are as follows: 3
It would appear from the evidences that on July 25, 1978, herein plaintiff,
a Court Interpreter of Branch III, CFI--Dagupan City, while she was about
to board a motorized tricycle at a sidewalk located at Perez Blvd. (a

124
National Road, under the control and supervision of the City of Dagupan)
accidentally fell into a manhole located on said sidewalk, thereby causing
her right leg to be fractured. As a result thereof, she had to be
hospitalized, operated on, confined, at first at the Pangasinan Provincial
Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She
also incurred hospitalization, medication and other expenses to the tune
of P 8,053.65 (Exh. H to H-60) or a total of P 10,000.00 in all, as other
receipts were either lost or misplaced; during the period of her
confinement in said two hospitals, plaintiff suffered severe or excruciating
pain not only on her right leg which was fractured but also on all parts of
her body; the pain has persisted even after her discharge from the
Medical City General Hospital on October 9, 1978, to the present.
Despite her discharge from the Hospital plaintiff is presently still wearing
crutches and the Court has actually observed that she has difficulty in
locomotion. From the time of the mishap on July 25, 1978 up to the
present, plaintiff has not yet reported for duty as court interpreter, as she
has difficulty of locomotion in going up the stairs of her office, located
near the city hall in Dagupan City. She earns at least P 720.00 a month
consisting of her monthly salary and other means of income, but since
July 25, 1978 up to the present she has been deprived of said income as
she has already consumed her accrued leaves in the government
service. She has lost several pounds as a result of the accident and she
is no longer her former jovial self, she has been unable to perform her
religious, social, and other activities which she used to do prior to the
incident.
Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital,
as well as Dr. Antonio Sison of the Medical City General Hospital in
Mandaluyong Rizal (Exh. I; see also Exhs. F, G, G-1 to G-19) have
confirmed beyond shadow of any doubt the extent of the fracture and
injuries sustained by the plaintiff as a result of the mishap. On the other
hand, Patrolman Claveria, De Asis and Cerezo corroborated the
testimony of the plaintiff regarding the mishap and they have confirmed
the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the
sidewalk along Perez Blvd., at the time of the incident on July 25, 1978
which was partially covered by a concrete flower pot by leaving gaping
hole about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long
by 150 cms. deep (see Exhs. D and D-1).
Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly
ex-officio Highway Engineer, City Engineer of the Public Works and
Building Official for Dagupan City, admitted the existence of said manhole

along the sidewalk in Perez Blvd., admittedly a National Road in front of

the Luzon Colleges. He also admitted that said manhole (there are at
least 11 in all in Perez Blvd.) is owned by the National Government and
the sidewalk on which they are found along Perez Blvd. are also owned
by the National Government. But as City Engineer of Dagupan City, he
supervises the maintenance of said manholes or drainage system and
sees to it that they are properly covered, and the job is specifically done
by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and
Engr. Ernesto Solermo also a maintenance Engineer. In his answer
defendant Tangco expressly admitted in par. 7-1 thereof, that in his
capacity as ex-officio Highway Engineer for Dagupan City he exercises
supervision and control over National roads, including the Perez Blvd.
where the incident happened.
On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower
court findings on the ground that no evidence was presented by the plaintiff- appellee to
prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5
The city contends that Perez Boulevard, where the fatal drainage hole is located, is a
national road that is not under the control or supervision of the City of Dagupan. Hence,
no liability should attach to the city. It submits that it is actually the Ministry of Public
Highways that has control or supervision through the Highway Engineer which, by mere
coincidence, is held concurrently by the same person who is also the City Engineer of
Dagupan.
After examination of the findings and conclusions of the trial court and those of the
appellate court, as well as the arguments presented by the parties, we agree with those
of the trial court and of the petitioner. Hence, we grant the petition.
In this review on certiorari, we have simplified the errors assigned by the petitioner to a
single issue: whether or not control or supervision over a national road by the City of
Dagupan exists, in effect binding the city to answer for damages in accordance with
article 2189 of the Civil Code.
The liability of public corporations for damages arising from injuries suffered by
pedestrians from the defective condition of roads is expressed in the Civil Code as
follows:
Article 2189. Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason of
the defective condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision.

125
It is not even necessary for the defective road or street to belong to the province, city or
municipality for liability to attach. The article only requires that either control or
supervision is exercised over the defective road or street. 6

a city officer. This is because while he is entitled to an honorarium from the Ministry of
Public Highways, his salary from the city government substantially exceeds the
honorarium.

In the case at bar, this control or supervision is provided for in the charter of Dagupan
and is exercised through the City Engineer who has the following duties:

We do not agree.

Sec. 22. The City Engineer--His powers, duties and compensation-There

shall be a city engineer, who shall be in charge of the department of
Engineering and Public Works. He shall receive a salary of not exceeding
three thousand pesos per annum. He shall have the following duties:
xxx
(j) He shall have the care and custody of the public system of waterworks
and sewers, and all sources of water supply, and shall control, maintain
and regulate the use of the same, in accordance with the ordinance
relating thereto; shall inspect and regulate the use of all private systems
for supplying water to the city and its inhabitants, and all private sewers,
and their connection with the public sewer system.
xxx
The same charter of Dagupan also provides that the laying out, construction and
improvement of streets, avenues and alleys and sidewalks, and regulation of the use
thereof, may be legislated by the Municipal Board . 7 Thus the charter clearly indicates
that the city indeed has supervision and control over the sidewalk where the open
drainage hole is located.
The express provision in the charter holding the city not liable for damages or injuries
sustained by persons or property due to the failure of any city officer to enforce the
provisions of the charter, can not be used to exempt the city, as in the case at bar.8
The charter only lays down general rules regulating the liability of the city. On the other
hand article 2189 applies in particular to the liability arising from "defective streets, public
buildings and other public works." 9
The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision
over the said road. But the city can not be excused from liability by the argument that the
duty of the City Engineer to supervise or control the said provincial road belongs more to
his functions as an ex-officio Highway Engineer of the Ministry of Public Highway than as

Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio
Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last
but not the least, as Building Official for Dagupan City, receives the following monthly
compensation: P 1,810.66 from Dagupan City; P 200.00 from the Ministry of Public
Highways; P 100.00 from the Bureau of Public Works and P 500.00 by virtue of P.D.
1096, respectively." 10 This function of supervision over streets, public buildings, and
other public works pertaining to the City Engineer is coursed through a Maintenance
Foreman and a Maintenance Engineer.11 Although these last two officials are employees
of the National Government, they are detailed with the City of Dagupan and hence
receive instruction and supervision from the city through the City Engineer.
There is, therefore, no doubt that the City Engineer exercises control or supervision over
the public works in question. Hence, the liability of the city to the petitioner under article
2198 of the Civil Code is clear.
Be all that as it may, the actual damages awarded to the petitioner in the amount of P
10,000.00 should be reduced to the proven expenses of P 8,053.65 only. The trial court
should not have rounded off the amount. In determining actual damages, the court can
not rely on "speculation, conjecture or guess work" as to the amount. Without the actual
proof of loss, the award of actual damages becomes erroneous. 12
On the other hand, moral damages may be awarded even without proof of pecuniary
loss, inasmuch as the determination of the amount is discretionary on the court.13
Though incapable of pecuniary estimation, moral damages are in the nature of an award
to compensate the claimant for actual injury suffered but which for some reason can not
be proven. However, in awarding moral damages, the following should be taken into
consideration:
(1) First, the proximate cause of the injury must be the claimee's acts.14
(2) Second, there must be compensatory or actual damages as
satisfactory proof of the factual basis for damages.15
(3) Third, the award of moral damages must be predicated on any of the
cases enumerated in the Civil Code. 16

126
In the case at bar, the physical suffering and mental anguish suffered by the petitioner
were proven. Witnesses from the petitioner's place of work testified to the degeneration
in her disposition-from being jovial to depressed. She refrained from attending social and
civic activities.17

WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the
respondent Court of Appeals are hereby REVERSED and SET ASIDE and the decision
of the trial court, dated March 12, 1979 and amended on March 13, 1979, is hereby
REINSTATED with the indicated modifications as regards the amounts awarded:

Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap

was not permanent and disabled her only during her treatment which lasted for one year.
Though evidence of moral loss and anguish existed to warrant the award of damages,18
the moderating hand of the law is called for. The Court has time and again called
attention to the reprehensible propensity of trial judges to award damages without
basis,19 resulting in exhorbitant amounts.20

(1) Ordering the defendant City of Dagupan to pay the plaintiff actual
damages in the amount of P 15,924 (namely P 8,054.00 as hospital,
medical and other expenses; P 7,420.00 as lost income for one (1) year
and P 450.00 as bonus); P 20,000.00 as moral damages and P
10,000.00 as exemplary damages.
The attorney's fees of P 3,000.00 remain the same.

Although the assessment of the amount is better left to the discretion of the trial court 21
under preceding jurisprudence, the amount of moral damages should be reduced to P
20,000.00.
As for the award of exemplary damages, the trial court correctly pointed out the basis:
To serve as an example for the public good, it is high time that the Court,
through this case, should serve warning to the city or cities concerned to
be more conscious of their duty and responsibility to their constituents,
especially when they are engaged in construction work or when there are
manholes on their sidewalks or streets which are uncovered, to
immediately cover the same, in order to minimize or prevent accidents to
the poor pedestrians.22
Too often in the zeal to put up "public impact" projects such as beautification drives, the
end is more important than the manner in which the work is carried out. Because of this
obsession for showing off, such trivial details as misplaced flower pots betray the
careless execution of the projects, causing public inconvenience and inviting accidents.
Pending appeal by the respondent City of Dagupan from the trial court to the appellate
court, the petitioner was able to secure an order for garnishment of the funds of the City
deposited with the Philippine National Bank, from the then presiding judge, Hon. Willelmo
Fortun. This order for garnishment was revoked subsequently by the succeeding
presiding judge, Hon. Romeo D. Magat, and became the basis for the petitioner's motion
for reconsideration which was also denied. 23
We rule that the execution of the judgment of the trial court pending appeal was
premature. We do not find any good reason to justify the issuance of an order of
execution even before the expiration of the time to appeal .24

SO ORDERED.
Melencio-Herrera, (Chaiperson), Paras, Padilla and Regalado, JJ., concur.

G.R. No. L-23052

January 29, 1968

CITY OF MANILA, petitioner,

vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.
City Fiscal Manuel T. Reyes for petitioner.
Sevilla, Daza and Associates for respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old
Luneta and P. Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for
a jeepney to take him down town. After waiting for about five minutes, he managed to
hail a jeepney that came along to a stop. As he stepped down from the curb to board the
jeepney, and took a few steps, he fell inside an uncovered and unlighted catch basin or
manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the manhole
breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As
blood flowed therefrom, impairing his vision, several persons came to his assistance and
pulled him out of the manhole. One of them brought Teotico to the Philippine General

127
Hospital, where his injuries were treated, after which he was taken home. In addition to
the lacerated wound in his left upper eyelid, Teotico suffered contusions on the left thigh,
the left upper arm, the right leg and the upper lip apart from an abrasion on the right
infra-patella region. These injuries and the allergic eruption caused by anti-tetanus
injections administered to him in the hospital, required further medical treatment by a
private practitioner who charged therefor P1,400.00.
As a consequence of the foregoing occurrence, Teotico filed, with the Court of First
Instance of Manila, a complaint which was, subsequently, amended for damages
against the City of Manila, its mayor, city engineer, city health officer, city treasurer and
chief of police. As stated in the decision of the trial court, and quoted with approval by the
Court of Appeals,
At the time of the incident, plaintiff was a practicing public accountant, a
businessman and a professor at the University of the East. He held responsible
positions in various business firms like the Philippine Merchandising Co., the A.U.
Valencia and Co., the Silver Swan Manufacturing Company and the Sincere
Packing Corporation. He was also associated with several civic organizations
such as the Wack Wack Golf Club, the Chamber of Commerce of the Philippines,
Y's Men Club of Manila and the Knights of Rizal. As a result of the incident,
plaintiff was prevented from engaging in his customary occupation for twenty
days. Plaintiff has lost a daily income of about P50.00 during his incapacity to
work. Because of the incident, he was subjected to humiliation and ridicule by his
business associates and friends. During the period of his treatment, plaintiff was
under constant fear and anxiety for the welfare of his minor children since he was
their only support. Due to the filing of this case, plaintiff has obligated himself to
pay his counsel the sum of P2,000.00.
On the other hand, the defense presented evidence, oral and documentary, to
prove that the Storm Drain Section, Office of the City Engineer of Manila,
received a report of the uncovered condition of a catchbasin at the corner of P.
Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was
covered on the same day (Exhibit 4); that again the iron cover of the same catch
basin was reported missing on January 30, 1958, but the said cover was
replaced the next day (Exhibit 5); that the Office of the City Engineer never
received any report to the effect that the catchbasin in question was not covered
between January 25 and 29, 1968; that it has always been a policy of the said
office, which is charged with the duty of installation, repair and care of storm
drains in the City of Manila, that whenever a report is received from whatever
source of the loss of a catchbasin cover, the matter is immediately attended to,
either by immediately replacing the missing cover or covering the catchbasin with
steel matting that because of the lucrative scrap iron business then prevailing,

stealing of iron catchbasin covers was rampant; that the Office of the City
Engineer has filed complaints in court resulting from theft of said iron covers; that
in order to prevent such thefts, the city government has changed the position and
layout of catchbasins in the City by constructing them under the sidewalks with
concrete cement covers and openings on the side of the gutter; and that these
changes had been undertaken by the city from time to time whenever funds were
available.
After appropriate proceedings the Court of First Instance of Manila rendered the
aforementioned decision sustaining the theory of the defendants and dismissing the
amended complaint, without costs.
On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except
insofar as the City of Manila is concerned, which was sentenced to pay damages in the
aggregate sum of P6,750.00. 1 Hence, this appeal by the City of Manila.
The first issue raised by the latter is whether the present case is governed by Section 4
of Republic Act No. 409 (Charter of the City of Manila) reading:
The city shall not be liable or held for damages or injuries to persons or property
arising from the failure of the Mayor, the Municipal Board, or any other city officer,
to enforce the provisions of this chapter, or any other law or ordinance, or from
negligence of said Mayor, Municipal Board, or other officers while enforcing or
attempting to enforce said provisions.
or by Article 2189 of the Civil Code of the Philippines which provides:
Provinces, cities and municipalities shall be liable for damages for the death of,
or injuries suffered by, any person by reason of defective conditions of road,
streets, bridges, public buildings, and other public works under their control or
supervision.
Manila maintains that the former provision should prevail over the latter, because
Republic Act 409, is a special law, intended exclusively for the City of Manila, whereas
the Civil Code is a general law, applicable to the entire Philippines.
The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true
that, insofar as its territorial application is concerned, Republic Act No. 409 is a special
law and the Civil Code a general legislation; but, as regards the subject-matter of the
provisions above quoted, Section 4 of Republic Act 409 establishes a general rule
regulating the liability of the City of Manila for: "damages or injury to persons or property

128
arising from the failure of" city officers "to enforce the provisions of" said Act "or any other
law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other
officers while enforcing or attempting to enforce said provisions." Upon the other hand,
Article 2189 of the Civil Code constitutes a particular prescription making "provinces,
cities and municipalities . . . liable for damages for the death of, or injury suffered by any
person by reason" specifically "of the defective condition of roads, streets, bridges,
public buildings, and other-public works under their control or supervision." In other
words, said section 4 refers to liability arising from negligence, in general, regardless of
the object thereof, whereas Article 2189 governs liability due to "defective streets," in
particular. Since the present action is based upon the alleged defective condition of a
road, said Article 2189 is decisive thereon.
It is urged that the City of Manila cannot be held liable to Teotico for damages: 1)
because the accident involving him took place in a national highway; and 2) because the
City of Manila has not been negligent in connection therewith.
As regards the first issue, we note that it is based upon an allegation of fact not made in
the answer of the City. Moreover, Teotico alleged in his complaint, as well as in his
amended complaint, that his injuries were due to the defective condition of a street which
is "under the supervision and control" of the City. In its answer to the amended
complaint, the City, in turn, alleged that "the streets aforementioned were and have been
constantly kept in good condition and regularly inspected and the storm drains and
manholes thereof covered by the defendant City and the officers concerned" who "have
been ever vigilant and zealous in the performance of their respective functions and
duties as imposed upon them by law." Thus, the City had, in effect, admitted that P.
Burgos Avenue was and is under its control and supervision.
Moreover, the assertion to the effect that said Avenue is a national highway was made,
for the first time, in its motion for reconsideration of the decision of the Court of Appeals.
Such assertion raised, therefore, a question of fact, which had not been put in issue in
the trial court, and cannot be set up, for the first time, on appeal, much less after the
rendition of the decision of the appellate court, in a motion for the reconsideration
thereof.
At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein
established to attach that the defective roads or streets belong to the province, city or
municipality from which responsibility is exacted. What said article requires is that the
province, city or municipality have either "control or supervision" over said street or road.
Even if P. Burgos Avenue were, therefore, a national highway, this circumstance would
not necessarily detract from its "control or supervision" by the City of Manila, under
Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. The Municipal Board shall have the following
legislative powers:
xxx

xxx

xxx

(x) Subject to the provisions of existing law to provide for the laying out,
construction and improvement, and to regulate the use of streets, avenues,
alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to
provide for lighting, cleaning, and sprinkling of streets and public places; . . . to
provide for the inspection of, fix the license fees for and regulate the openings in
the same for the laying of gas, water, sewer and other pipes, the building and
repair of tunnels, sewers, and drains, and all structures in and under the same
and the erecting of poles and the stringing of wires therein; to provide for and
regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales
upon the streets and other public places; to provide for the abatement of
nuisances in the same and punish the authors or owners thereof; to provide for
the construction and maintenance, and regulate the use, of bridges, viaducts and
culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other
amusements which may annoy persons using the streets and public places, or
frighten horses or other animals; to regulate the speed of horses and other
animals, motor and other vehicles, cars, and locomotives within the limits of the
city; to regulate the lights used on all vehicles, cars, and locomotives; . . . to
provide for and change the location, grade, and crossing of railroads, and compel
any such railroad to raise or lower its tracks to conform to such provisions or
changes; and to require railroad companies to fence their property, or any part
thereof, to provide suitable protection against injury to persons or property, and
to construct and repair ditches, drains, sewers, and culverts along and under
their tracks, so that the natural drainage of the streets and adjacent property shall
not be obstructed.
This authority has been neither withdrawn nor restricted by Republic Act No. 917 and
Executive Order No. 113, dated May 2, 1955, upon which the City relies. Said Act
governs the disposition or appropriation of the highway funds and the giving of aid to
provinces, chartered cities and municipalities in the construction of roads and streets
within their respective boundaries, and Executive Order No. 113 merely implements the
provisions of said Republic Act No. 917, concerning the disposition and appropriation of
the highway funds. Moreover, it provides that "the construction, maintenance and
improvement of national primary, national secondary and national aid provincial and city
roads shall be accomplished by the Highway District Engineers and Highway City
Engineers under the supervision of the Commissioner of Public Highways and shall be
financed from such appropriations as may be authorized by the Republic of the
Philippines in annual or special appropriation Acts."

129
Then, again, the determination of whether or not P. Burgos Avenue is under the control
or supervision of the City of Manila and whether the latter is guilty of negligence, in
connection with the maintenance of said road, which were decided by the Court of
Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not
subject to our review.
WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs
against the City of Manila. It is so ordered.1wph1.t
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.

G.R. No. 71049 May 29, 1987

BERNARDINO JIMENEZ, petitioner,
vs.
CITY OF MANILA and INTERMEDIATE APPELLATE COURT, respondents.

PARAS, J.:
This is a petition for review on certiorari of: (1) the decision * of the Intermediate
Appellate Court in AC-G.R. No. 013887-CV Bernardino Jimenez v. Asiatic Integrated
Corporation and City of Manila, reversing the decision ** of the Court of First Instance of
Manila, Branch XXII in Civil Case No. 96390 between the same parties, but only insofar
as holding Asiatic Integrated Corporation solely liable for damages and attorney's fees
instead of making the City of Manila jointly and solidarily liable with it as prayed for by the
petitioner and (2) the resolution of the same Appellate Court denying his Partial Motion
for Reconsideration (Rollo, p. 2).
The dispositive portion of the Intermediate Appellate Court's decision is as follows:
WHEREFORE, the decision appealed from is hereby REVERSED. A new
one is hereby entered ordering the defendant Asiatic Integrated
Corporation to pay the plaintiff P221.90 actual medical expenses,
P900.00 for the amount paid for the operation and management of a
school bus, P20,000.00 as moral damages due to pains, sufferings and
sleepless nights and P l0,000.00 as attorney's fees.

SO ORDERED. (p. 20, Rollo)

The findings of respondent Appellate Court are as follows:
The evidence of the plaintiff (petitioner herein) shows that in the morning of August 15,
1974 he, together with his neighbors, went to Sta. Ana public market to buy "bagoong" at
the time when the public market was flooded with ankle deep rainwater. After purchasing
the "bagoong" he turned around to return home but he stepped on an uncovered opening
which could not be seen because of the dirty rainwater, causing a dirty and rusty fourinch nail, stuck inside the uncovered opening, to pierce the left leg of plaintiff-petitioner
penetrating to a depth of about one and a half inches. After administering first aid
treatment at a nearby drugstore, his companions helped him hobble home. He felt ill and
developed fever and he had to be carried to Dr. Juanita Mascardo. Despite the medicine
administered to him by the latter, his left leg swelled with great pain. He was then rushed
to the Veterans Memorial Hospital where he had to be confined for twenty (20) days due
to high fever and severe pain.
Upon his discharge from the hospital, he had to walk around with crutches for fifteen (15)
days. His injury prevented him from attending to the school buses he is operating. As a
result, he had to engage the services of one Bienvenido Valdez to supervise his business
for an aggregate compensation of nine hundred pesos (P900.00). (Decision, AC-G.R. CV
No. 01387, Rollo, pp. 13-20).
Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation
under whose administration the Sta. Ana Public Market had been placed by virtue of a
Management and Operating Contract (Rollo, p. 47).
The lower court decided in favor of respondents, the dispositive portion of the decision
reading:
WHEREFORE, judgment is hereby rendered in favor of the defendants
and against the plaintiff dismissing the complaint with costs against the
plaintiff. For lack of sufficient evidence, the counterclaims of the
defendants are likewise dismissed. (Decision, Civil Case No. 96390,
Rollo, p. 42).
As above stated, on appeal, the Intermediate Appellate Court held the Asiatic Integrated
Corporation liable for damages but absolved respondent City of Manila.
Hence this petition.

130
The lone assignment of error raised in this petition is on whether or not the Intermediate
Appellate Court erred in not ruling that respondent City of Manila should be jointly and
severally liable with Asiatic Integrated Corporation for the injuries petitioner suffered.
In compliance with the resolution of July 1, 1985 of the First Division of this Court (Rollo,
p. 29) respondent City of Manila filed its comment on August 13, 1985 (Rollo, p. 34) while
petitioner filed its reply on August 21, 1985 (Reno, p. 51).

This issue has been laid to rest in the case of City of Manila v. Teotico (22 SCRA 269272 [1968]) where the Supreme Court squarely ruled that Republic Act No. 409
establishes a general rule regulating the liability of the City of Manila for "damages or
injury to persons or property arising from the failure of city officers" to enforce the
provisions of said Act, "or any other law or ordinance or from negligence" of the City
"Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said
provisions."

Thereafter, the Court in the resolution of September 11, 1985 (Rollo, p. 62) gave due
course to the petition and required both parties to submit simultaneous memoranda

Upon the other hand, Article 2189 of the Civil Code of the Philippines which provides
that:

Petitioner filed his memorandum on October 1, 1985 (Rollo, p. 65) while respondent filed
its memorandum on October 24, 1985 (Rollo, p. 82).
In the resolution of October 13, 1986, this case was transferred to the Second Division of
this Court, the same having been assigned to a member of said Division (Rollo, p. 92).
The petition is impressed with merit.
As correctly found by the Intermediate Appellate Court, there is no doubt that the plaintiff
suffered injuries when he fell into a drainage opening without any cover in the Sta. Ana
Public Market. Defendants do not deny that plaintiff was in fact injured although the
Asiatic Integrated Corporation tries to minimize the extent of the injuries, claiming that it
was only a small puncture and that as a war veteran, plaintiff's hospitalization at the War
Veteran's Hospital was free. (Decision, AC-G.R. CV No. 01387, Rollo, p. 6).
Respondent City of Manila maintains that it cannot be held liable for the injuries
sustained by the petitioner because under the Management and Operating Contract,
Asiatic Integrated Corporation assumed all responsibility for damages which may be
suffered by third persons for any cause attributable to it.
It has also been argued that the City of Manila cannot be held liable under Article 1,
Section 4 of Republic Act No. 409 as amended (Revised Charter of Manila) which
provides:
The City shall not be liable or held for damages or injuries to persons or
property arising from the failure of the Mayor, the Municipal Board, or any
other City Officer, to enforce the provisions of this chapter, or any other
law or ordinance, or from negligence of said Mayor, Municipal Board, or
any other officers while enforcing or attempting to enforce said
provisions.

Provinces, cities and municipalities shall be liable for damages for the
death of, or injuries suffered by any person by reason of defective
conditions of roads, streets, bridges, public buildings and other public
works under their control or supervision.
constitutes a particular prescription making "provinces, cities and municipalities ... liable
for damages for the death of, or injury suffered by any person by reason" specifically
"of the defective condition of roads, streets, bridges, public buildings, and other public
works under their control or supervision." In other words, Art. 1, sec. 4, R.A. No. 409
refers to liability arising from negligence, in general, regardless of the object, thereof,
while Article 2189 of the Civil Code governs liability due to "defective streets, public
buildings and other public works" in particular and is therefore decisive on this specific
case.
In the same suit, the Supreme Court clarified further that under Article 2189 of the Civil
Code, it is not necessary for the liability therein established to attach, that the defective
public works belong to the province, city or municipality from which responsibility is
exacted. What said article requires is that the province, city or municipality has either
"control or supervision" over the public building in question.
In the case at bar, there is no question that the Sta. Ana Public Market, despite the
Management and Operating Contract between respondent City and Asiatic Integrated
Corporation remained under the control of the former.
For one thing, said contract is explicit in this regard, when it provides:
II
That immediately after the execution of this contract, the SECOND
PARTY shall start the painting, cleaning, sanitizing and repair of the

131
public markets and talipapas and within ninety (90) days thereof, the
SECOND PARTY shall submit a program of improvement, development,
rehabilitation and reconstruction of the city public markets and talipapas
subject to prior approval of the FIRST PARTY. (Rollo, p. 44)
xxx xxx xxx

retains the power of supervision and control over its public markets and
talipapas under the terms of the contract. (Exhibit "7-A") (Emphasis
supplied.) (Rollo, p. 75).
In fact, the City of Manila employed a market master for the Sta. Ana Public Market
whose primary duty is to take direct supervision and control of that particular market,
more specifically, to check the safety of the place for the public.

VI
That all present personnel of the City public markets and talipapas shall
be retained by the SECOND PARTY as long as their services remain
satisfactory and they shall be extended the same rights and privileges as
heretofore enjoyed by them. Provided, however, that the SECOND
PARTY shall have the right, subject to prior approval of the FIRST PARTY
to discharge any of the present employees for cause. (Rollo, p. 45).

Thus the Asst. Chief of the Market Division and Deputy Market Administrator of the City
of Manila testified as follows:
Court This market master is an employee of the City of
Manila?
Mr. Ymson Yes, Your Honor.

VII

Q What are his functions?

That the SECOND PARTY may from time to time be required by the
FIRST PARTY, or his duly authorized representative or representatives,
to report, on the activities and operation of the City public markets and
talipapas and the facilities and conveniences installed therein, particularly
as to their cost of construction, operation and maintenance in connection
with the stipulations contained in this Contract. (lbid)

A Direct supervision and control over the market area

assigned to him."(T.s.n.,pp. 41-42, Hearing of May 20,
1977.)

The fact of supervision and control of the City over subject public market was admitted
by Mayor Ramon Bagatsing in his letter to Secretary of Finance Cesar Virata which
reads:
These cases arose from the controversy over the Management and
Operating Contract entered into on December 28, 1972 by and between
the City of Manila and the Asiatic Integrated Corporation, whereby in
consideration of a fixed service fee, the City hired the services of the said
corporation to undertake the physical management, maintenance,
rehabilitation and development of the City's public markets and'
Talipapas' subject to the control and supervision of the City.
xxx xxx xxx
It is believed that there is nothing incongruous in the exercise of these
powers vis-a-vis the existence of the contract, inasmuch as the City

xxx xxx xxx

Court As far as you know there is or is there any specific
employee assigned with the task of seeing to it that the
Sta. Ana Market is safe for the public?
Mr. Ymson Actually, as I stated, Your Honor, that the Sta.
Ana has its own market master. The primary duty of that
market master is to make the direct supervision and
control of that particular market, the check or verifying
whether the place is safe for public safety is vested in the
market master. (T.s.n., pp. 2425, Hearing of July 27,
1977.) (Emphasis supplied.) (Rollo, p. 76).
Finally, Section 30 (g) of the Local Tax Code as amended, provides:
The treasurer shall exercise direct and immediate supervision
administration and control over public markets and the personnel thereof,
including those whose duties concern the maintenance and upkeep of

132
the market and ordinances and other pertinent rules and regulations.
(Emphasis supplied.) (Rollo, p. 76)
The contention of respondent City of Manila that petitioner should not have ventured to
go to Sta. Ana Public Market during a stormy weather is indeed untenable. As observed
by respondent Court of Appeals, it is an error for the trial court to attribute the negligence
to herein petitioner. More specifically stated, the findings of appellate court are as
follows:
... The trial court even chastised the plaintiff for going to market on a rainy
day just to buy bagoong. A customer in a store has the right to assume
that the owner will comply with his duty to keep the premises safe for
customers. If he ventures to the store on the basis of such assumption
and is injured because the owner did not comply with his duty, no
negligence can be imputed to the customer. (Decision, AC-G. R. CV No.
01387, Rollo, p. 19).
As a defense against liability on the basis of a quasi-delict, one must have exercised the
diligence of a good father of a family. (Art. 1173 of the Civil Code).
There is no argument that it is the duty of the City of Manila to exercise reasonable care
to keep the public market reasonably safe for people frequenting the place for their
marketing needs.
While it may be conceded that the fulfillment of such duties is extremely difficult during
storms and floods, it must however, be admitted that ordinary precautions could have
been taken during good weather to minimize the dangers to life and limb under those
difficult circumstances.

To recapitulate, it appears evident that the City of Manila is likewise liable for damages
under Article 2189 of the Civil Code, respondent City having retained control and
supervision over the Sta. Ana Public Market and as tort-feasor under Article 2176 of the
Civil Code on quasi-delicts
Petitioner had the right to assume that there were no openings in the middle of the
passageways and if any, that they were adequately covered. Had the opening been
covered, petitioner could not have fallen into it. Thus the negligence of the City of Manila
is the proximate cause of the injury suffered, the City is therefore liable for the injury
suffered by the peti- 4 petitioner.
Respondent City of Manila and Asiatic Integrated Corporation being joint tort-feasors are
solidarily liable under Article 2194 of the Civil Code.
PREMISES CONSIDERED, the decision of the Court of Appeals is hereby MODIFIED,
making the City of Manila and the Asiatic Integrated Corporation solidarily liable to pay
the plaintiff P221.90 actual medical expenses, P900.00 for the amount paid for the
operation and management of the school bus, P20,000.00 as moral damages due to
pain, sufferings and sleepless nights and P10,000.00 as attorney's fees.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Padilla, Bidin and Cortes JJ., concur.

THE MUNICIPALITY OF SAN JUAN, METRO

MANILA,

For instance, the drainage hole could have been placed under the stalls instead of on the
passage ways. Even more important is the fact, that the City should have seen to it that
the openings were covered. Sadly, the evidence indicates that long before petitioner fell
into the opening, it was already uncovered, and five (5) months after the incident
happened, the opening was still uncovered. (Rollo, pp. 57; 59). Moreover, while there are
findings that during floods the vendors remove the iron grills to hasten the flow of water
(Decision, AC-G.R. CV No. 0 1387; Rollo, p. 17), there is no showing that such practice
has ever been prohibited, much less penalized by the City of Manila. Neither was it
shown that any sign had been placed thereabouts to warn passersby of the impending
danger.

G.R. No. 121920

Petitioner,

Present:

PANGANIBAN, J., Chairman

- versus -

133

SANDOVAL-GUTIERREZ,
CORONA,
CARPIO MORALES, and
THE HON. COURT OF APPEALS, LAURA
BIGLANG-AWA, METROPOLITAN
WATERWORKS AND SEWERAGE SYSTEM
(MWSS), and KWOK CHEUNG,

GARCIA, JJ.

In this appeal by way of a petition for review on certiorari under Rule 45 of the
Rules of Court, petitioner Municipality of San Juan urges us to annul and set aside the
decision dated 08 September 1995[1] of the Court of Appeals in CA-G.R. CV No.

Promulgated:
Respondents.

38906, affirming with modification an earlier decision of the Regional Trial Court at Pasig
City in an action for damages thereat commenced by private respondent Laura Biglangawa against, among others, the herein petitioner.

August 9, 2005

The material facts are not at all disputed:

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

Under a Contract For Water Service Connections[2] entered into by and

between the Metropolitan Waterworks and Sewerage System (MWSS) and Kwok
Cheung as sole proprietor of K.C. Waterworks System Construction (KC, for short), the
former engaged the services of the latter to install water service connections. Article 11
(Scope of Work), paragraph 2.01 of the agreement provides:
DECISION

GARCIA, J.:

2.01 The CONTRACTOR agrees to install water service

connections, transfer location of tapping to the nearest main, undertake
separation of service connection, change rusted connections, within the
service area of the MWSS specified in each job order covered by this

134
Contract, from the water main up to the installation of the verticals.
Tapping of the service pipe connection and mounting of water meter shall
be undertaken exclusively or solely by the MWSS;

Biglang-awas husband who immediately arrived at the scene and brought his wife to the
Cardinal Santos Hospital.
Dispatched to the scene of the accident to conduct an investigation thereof, Pfc.

On 20 May 1988, KC was given a Job Order by the South Sector Office of

Felix Ramos of the Traffic Division of the San Juan Police Station, upon arriving thereat,

MWSS to conduct and effect excavations at the corner of M. Paterno and Santolan

saw Priscilla Chans car already extracted from the manhole and placed beside the

Road, San Juan, Metro Manila, a national road, for the laying of water pipes and tapping

excavated portion of the road. According to this police officer, he did not see any

of water to the respective houses of water concessionaires.

barricades at the scene when he arrived less than an hour later. A Traffic Accident
Investigation Report[3] was thereafter prepared and signed by Pfc. Ramos.

That same day, KC dispatched five (5) of its workers under Project Engineer
Ernesto Battad, Jr. to conduct the digging operations in the specified place. The workers

At the hospital, the attending physician, after having performed a close reduction

installed four (4) barricades made up of two-inch thick GI pipes welded together, 1.3

and application of abduction splint on Biglang-awa, placed a plastic cast on her right

meters wide and 1.2 meters high, at the area where the digging is to take place. The

arm. Barring complications, the injury she suffered was expected to heal in four (4) to six

digging operations started at 9 oclock in the morning and ended at about 3 oclock in the

(6) weeks, although she must revisit her doctor from time to time for check-up and

afternoon. The workers dug a hole one (1) meter wide and 1.5 meters deep, after which

rehabilitation. After some time, the plastic cast was removed. Biglang-awa sustained no

they refilled the excavated portion of the road with the same gravel and stone excavated

deformity and no tenderness of the area of the injury but she could not sleep on her right

from the area. At that time, only of the job was finished in view of the fact that the

side because she still felt pain in that portion of her body. A Medical Certificate[4] on her

workers were still required to re-excavate that particular portion for the tapping of pipes

injuries was issued by Dr. Antonio Rivera.

for the water connections to the concessionaires.

Meanwhile, between 10 oclock and 11 oclock in the evening of 31 May 1988,

Consequent to the foregoing incident, Biglang-awa filed before the Regional Trial

Priscilla Chan was driving her Toyota Crown car with Plate No. PDK 991 at a speed of

Court at Pasig, Metro Manila a complaint for damages against MWSS, the Municipality of

thirty (30) kilometers per hour on the right side of Santolan Road towards the direction of

San Juan and a number of San Juan municipal officials.

Pinaglabanan, San Juan, Metro Manila. With her on board the car and seated on the
right front seat was Assistant City Prosecutor Laura Biglang-awa. The road was flooded
as it was then raining hard. Suddenly, the left front wheel of the car fell on a manhole
where the workers of KC had earlier made excavations. As a result, the humerus on the
right arm of Prosecutor Biglang-awa was fractured. Thereupon, Priscilla Chan contacted

Later, Biglang-awa amended her complaint twice. In her second amended

complaint, she included KC as one of the defendants.

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Unable to accept the judgment, both Biglang-awa and the Municipality of San Juan went
After due proceedings, the trial court rendered judgment in favor of Biglang-awa

to the Court of Appeals via ordinary appeal under Rule 41 of the Rules of Court, which

adjudging MWSS and the Municipality of San Juan jointly and severally liable to her.
Dated 29 February 1992, the decision[5] dispositively reads in full, thus:

WHEREFORE, foregoing considered, judgment is hereby rendered declaring the

Municipality of San Juan, Metro Manila and the Metropolitan Waterworks and Sewerage
System jointly and severally liable to the plaintiff [Biglang-awa]. Both defendants are
ordered to pay plaintiff the amounts of:

(a)

P18,389.55, for actual damages suffered by the plaintiff;

appeal was thereat docketed as CA-G.R. CV No. 38906.

As stated at the outset hereof, the appellate court, in a decision dated 08 September
1995, affirmed with modification that of the trial court, to wit:

IN THE LIGHT OF ALL THE FOREGOING, the Decision appealed from is

AFFIRMED but modified as follows:

(b)

P15,000.00, for moral damages;

1.

(c)

P10,000.00, for exemplary damages;

The Appellees KC and MWSS and the Appellant San

Juan are hereby ordered to pay, jointly and severally, to [Biglang-awa] the
amounts of P50,000.00 by way of moral damages, P50,000.00 by way of

(d)

P5,000.00, for attorneys fees; and

exemplary damages and P5,000.00 by way of attorneys fees, without

prejudice to the right of the Appellee MWSS for reimbursement from the

(e)

to pay the costs.

Appellee KC under the Contract, Exhibit 3-MWSS:

2.
SO ORDERED.

The counterclaims of the Appellees and Appellant San

Juan and the cross-claim of the latter are DISMISSED. Without

pronouncement as to costs.

136

SO ORDERED. (Words in bracket supplied).

In denying liability for the subject accident, petitioner essentially anchored its defense on
two provisions of laws, namely: (1) Section 149, [1][z] of Batas Pambansa Blg. 337,

Therefrom, petitioner Municipality of San Juan came to this Court thru the present

otherwise known as the Local Government Code of 1983; and (2) Section 8, Ordinance

recourse, on its submissions that:

82-01, of the Metropolitan Manila Commission.

I.

Petitioner maintains that under Section 149, [1][z] of the Local Government Code,[6] it is
obliged to provide for the construction, improvement, repair and maintenance of only

THE RESPONDENT APPELLATE COURT HAS DECIDED A QUESTION

OF SUBSTANCE NOT HEREFORE DECIDED BY THE SUPREME
COURT.

municipal streets, avenues, alleys, sidewalks, bridges, parks and other public places.
Ergo, since Santolan Road is concededly a national and not a municipal road, it cannot
be held liable for the injuries suffered by Biglang-awa on account of the accident that
occurred on said road.

II.

Additionally, petitioner contends that under Section 8, Ordinance No. 82-01, of the
THE RESPONDENT APPELLATE COURT HAS DECIDED A QUESTION

Metropolitan Manila Commission, which reads:

PROBABLY NOT IN ACCORD WITH THE LAW AND JURISPRUDENCE.

In the event of death, injury and/or damages caused by the nonWith no similar recourse having been taken by the other parties, the Court shall limit itself
completion of such works and/or failure of one undertaking the work to
to the liability or non-liability of petitioner municipality for the injury sustained by Biglangadopt the required precautionary measures for the protection of the
awa.
general public or violation of any of the terms or conditions of the permit,

137
the permittee/excavator shall assume fully all liabilities for such death,

city or municipality have either "control or supervision" over said street or

injury or damage arising therefrom. For this purpose, the

road. x x x

excavator/permittee shall purchase insurance coverage to answer for

third party liability,

It is argued, however, that under Section 149, [1][z] of the Local Government Code,
petitioner has control or supervision only over municipal and not national roads, like
Santolan Road.

only the Project Engineer of KC and MWSS can be held liable for the same accident.

Sadly, petitioner failed to take note of the other provisions of Section 149 of the
The petition must have to be denied.

same Code, more particularly the following:

Jurisprudence[7] teaches that for liability to arise under Article 2189[8] of the Civil Code,
ownership of the roads, streets, bridges, public buildings and other public works, is not a

Section 149. Powers and Duties. (1) The sangguniang bayan shall:

controlling factor, it being sufficient that a province, city or municipality has control or
supervision thereof. This, we made clear in City of Manila vs. Teotico, et al[9]:

At any rate, under Article 2189 of the Civil Code, it is not necessary for
the liability therein established to attach that the defective roads or
streets belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the province,

(bb) Regulate the drilling and excavation of the ground for the laying of gas,
water, sewer, and other pipes; the building and repair of tunnels, sewers, drains
and other similar structures; erecting of poles and the use of crosswalks, curbs
and gutters therein, and adopt measures to ensure public safety against open
canals, manholes, live wires and other similar hazards to life and property, and
provide just compensation or relief for persons suffering from them;
(Underscoring supplied)

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Clear it is from the above that the Municipality of San Juan can regulate the drilling and

made on a national or municipal road, for as long as the same is within its territorial

excavation of the ground for the laying of gas, water, sewer, and other pipes within its

jurisdiction.

territorial jurisdiction.
We are thus in full accord with the following pronouncements of the appellate court in the
Doubtless, the term regulate found in the aforequoted provision of Section 149 can only

decision under review:

mean that petitioner municipality exercises the power of control, or, at the very least,
supervision over all excavations for the laying of gas, water, sewer and other pipes within
its territory.

While it may be true that the Department of Public Works and Highways
may have issued the requisite permit to the Appellee KC and/or
concessionaires for the excavation on said road, the Appellant San Juan

We must emphasize that under paragraph [1][bb] of Section 149, supra, of the Local
Government Code, the phrases regulate the drilling and excavation of the ground for the
laying of gas, water, sewer, and other pipes, and adopt measures to ensure public
safety against open canals, manholes, live wires and other similar hazards to life and
property, are not modified by the term municipal road. And neither can it be fairly
inferred from the same provision of Section 149 that petitioners power of regulation vis-vis the activities therein mentioned applies only in cases where such activities are to be

is not thereby relieved of its liability to [Biglang-awa] for its own gross
negligence. Indeed, Evangeline Alfonso, the witness for the Appellant
San Juan unabashedly [sic] admitted, when she testified in the Court a
quo, that even if the Department of Public Works and Highways failed to
effect the requisite refilling, the Appellant San Juan was mandated to
undertake the necessary precautionary measures to avert accidents and
insure the safety of pedestrians and commuters:

performed in municipal roads. To our mind, the municipalitys liability for injuries caused
by its failure to regulate the drilling and excavation of the ground for the laying of gas,

xxx

water, sewer, and other pipes, attaches regardless of whether the drilling or excavation is
The [petitioner] cannot validly shirk from its obligation to maintain and
insure the safe condition of the road merely because the permit for the

139
excavation may have been issued by a government entity or unit other

monitoring of the conditions of the roads to insure the safety of motorists.

than the Appellant San Juan or that the excavation may have been done

Persuasive authority has it that:

by a contractor under contract with a public entity like the Appellee

MWSS.

It is the duty of the municipal authorities to exercise an

active vigilance over the streets; to see that they are kept

Neither is the [petitioner] relieved of liability based on its purported

in a reasonably safe condition for public travel. They

lack of knowledge of the excavation and the condition of the road during

cannot fold their arms and shut their eyes and say they

the period from May 20, 1988 up to May 30, 1988 when the accident

have no notice. (Todd versus City of Troy, 61 New York

occurred. It must be borne in mind that the obligation of the [petitioner] to

506). (Words in bracket supplied).

maintain the safe condition of the road within its territory is a continuing
one which is not suspended while a street is being repaired (Corpus Juris
Secundum, Municipal Corporations, page 120). Knowledge of the

Nor can petitioner seek shelter on Section 8 of Ordinance 82-01 of the Metropolitan
Manila Commission.

condition of the road and the defects and/or obstructions on the road may
Concededly, Section 8 of the Ordinance makes the permittee/excavator liable for
be actual or constructive. It is enough that the authorities should have
death, injury and/or damages caused by the non-completion of works and/or failure of
known of the aforesaid circumstances in the exercise of ordinary care
the one undertaking the works to adopt the required precautionary measures for the
(City of Louiseville versus Harris, 180 Southwestern Reporter. page 65).
protection of the general public. Significantly, however, nowhere can it be found in said
In the present recourse, Santolan Road and the Greenhills area coming
Ordinance any provision exempting municipalities in Metro Manila from liabilities caused
from Ortigas Avenue going to Pinaglabanan, San Juan, Metro Manila is a
by their own negligent acts. Afortiori, nothing prevents this Court from applying other
busy thoroughfare. The gaping hole in the middle of the road of Santolan
relevant laws concerning petitioners liability for the injuries sustained by Biglang-awa on
Road could not have been missed by the authorities concerned. After all,
that fateful rainy evening of 31 May 1988.
the [petitioner] San Juan is mandated to effect a constant and unabated

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WHEREFORE, the instant petition is DENIED and the assailed decision of the appellate
court AFFIRMED.

Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated
on 30 September 1987 denied petitioners' motion for extension of time to file a motion for
reconsideration and directed entry of judgment since the decision in said case had
become final; and the second Resolution dated 27 October 1987 denied petitioners'
motion for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being verified as
required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition
did not suffer from this defect, this Court, on procedural and substantive grounds, would
still resolve to deny it.

Costs against petitioner.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

E. BUILDING PROPRIETORS (ART 2190-2193)

G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL,
JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and
LUIS BERNAL, SR., respondents.
RESOLUTION

CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2) resolutions of
the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v.

The facts of the case are undisputed. The firewall of a burned-out building owned by
petitioners collapsed and destroyed the tailoring shop occupied by the family of private
respondents, resulting in injuries to private respondents and the death of Marissa Bernal,
a daughter. Private respondents had been warned by petitioners to vacate their shop in
view of its proximity to the weakened wall but the former failed to do so. On the basis of
the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII,
presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of
gross negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision
promulgated on August 17, 1987, a copy of which was received by petitioners on August
25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal,
petitioners filed a motion for extension of time to file a motion for reconsideration, which
was eventually denied by the appellate court in the Resolution of September 30, 1987.
Petitioners filed their motion for reconsideration on September 24, 1987 but this was
denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of discretion
when it denied petitioners' motion for extension of time to file a motion for
reconsideration, directed entry of judgment and denied their motion for reconsideration. It
correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No.
70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for
filing a motion for reconsideration cannot be extended. In its Resolution denying the
motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en
banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be strictly
enforced that no motion for extension of time to file a motion for reconsideration may be
filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the
Intermediate Appellate Court. Such a motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which may in its sound discretion either grant
or deny the extension requested. (at p. 212)

141
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R.
No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to
restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA
161],stressed the prospective application of said rule, and explained the operation of the
grace period, to wit:
In other words, there is a one-month grace period from the promulgation
on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas
case, or up to June 30, 1986, within which the rule barring extensions of
time to file motions for new trial or reconsideration is, as yet, not strictly
enforceable.
Since petitioners herein filed their motion for extension on February 27,
1986, it is still within the grace period, which expired on June 30, 1986,
and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No.
73669, October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was filed on
September 9, 1987, more than a year after the expiration of the grace period on June 30,
1986. Hence, it is no longer within the coverage of the grace period. Considering the
length of time from the expiration of the grace period to the promulgation of the decision
of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the
ignorance of their counsel regarding said rule for their failure to file a motion for
reconsideration within the reglementary period.
Petitioners contend that the rule enunciated in the Habaluyas case should not be made
to apply to the case at bar owing to the non-publication of the Habaluyas decision in the
Official Gazette as of the time the subject decision of the Court of Appeals was
promulgated. Contrary to petitioners' view, there is no law requiring the publication of
Supreme Court decisions in the Official Gazette before they can be binding and as a
condition to their becoming effective. It is the bounden duty of counsel as lawyer in active
law practice to keep abreast of decisions of the Supreme Court particularly where issues
have been clarified, consistently reiterated, and published in the advance reports of
Supreme Court decisions (G. R. s) and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of
discretion in affirming the trial court's decision holding petitioner liable under Article 2190
of the Civil Code, which provides that "the proprietor of a building or structure is
responsible for the damage resulting from its total or partial collapse, if it should be due
to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private respondents had the
"last clear chance" to avoid the accident if only they heeded the. warning to vacate the
tailoring shop and , therefore, petitioners prior negligence should be disregarded, since
the doctrine of "last clear chance," which has been applied to vehicular accidents, is
inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition
for lack of merit.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

******NOTE: JOSE DINGCONG vs. HALIM KANAAN, NASRI KANAAN, y

MICHAEL KANAAN G.R. No. L-47033 April 25, 1941, is in FULL SPANISH
LANGUAGE nakalimot nako unsaon pag translate.

F. ARCHITECTS AND ENGINEERS (ART. 2192 AND 1723)

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