VICARIOUS LIABLITY

G.R. No. L-10134

June 29, 1957SABINA EXCONDE, plaintiff-appellant, vs.DELFIN
CAPUNO and DANTE CAPUNO, defendants-appellees.BAUTISTA ANGELO, J.:
Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence
for the death of Isidoro Caperina and Amado Ticzon on March 31, 1949 in the Court of First Instance
of Laguna (Criminal Case No. 15001). During the trial, Sabina Exconde, as mother of the deceased
Isidoro Caperina, reserved her right to bring a separate civil action for damages against the accused.
After trial, Dante Capuno was found guilty of the crime charged and, on appeal, the Court Appeals
affirmed the decision. Dante Capuno was only (15) years old when he committed the crime.
In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his
son Dante Capuno asking for damages in the aggregate amount of P2,959.00 for the death of her
son Isidoro Caperia. Defendants set up the defense that if any one should be held liable for the
death of Isidoro Caperina, he is Dante Capuno and not his father Delfin because at the time of the
accident, the former was not under the control, supervision and custody, of the latter. This defense
was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the
damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the
case was certified to us on the ground that the appeal only involves questions of law.
It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the
Bilintawak Elementary School situated in a barrio in the City of San Pablo and on March 31, 1949 he
attended a parade in honor of Dr. Jose Rizal in said city upon instruction of the city school's
supervisor. From the school Dante, with other students, boarded a jeep and when the same started to
run, he took hold of the wheel and drove it while the driver sat on his left side. They have not gone far
when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidore Caperia, died as a
consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time
of the accident, nor did he know that his son was going to attend a parade. He only came to know it
when his son told him after the accident that he attended the parade upon instruction of his teacher.
The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable,
jointly and severally with his son Dante, for damages resulting from the death of Isidoro Caperia
caused by the negligent act of minor Dante Capuno.
The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:
ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for
personal acts and omissions, but also for those of persons for whom another is responsible.
The father, and, in case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.
xxx

xxx

xxx

Finally, teachers or directors of arts and trades are liable for any damages caused by their
pupils or apprentices while they are under their custody.
Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and
severally with his son Dante because at the time the latter committed the negligent act which resulted
in the death of the victim, he was a minor and was then living with his father, and inasmuch as these
facts are not disputed, the civil liability of the father is evident. And so, plaintiff contends, the lower
court erred in relieving the father from liability.
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.
MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET
AL., plaintiffs-appellees, vs.ALFONSO MONFORT, defendant-appellant.
MAKALINTAL, J.:
This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros
Occidental favorably to the plaintiffs and appealed by the defendant to the Court of Appeals, which
certified the same to us since the facts are not in issue.
Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini
Elementary School in Bacolod City. On July 9, 1962 their teacher assigned them, together with three
other classmates, to weed the grass in the school premises. While thus engaged Maria Teresa

Monfort found a plastic headband, an ornamental object commonly worn by young girls over their
hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra
girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and
the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with
some powder. The next day, July 10, the eye became swollen and it was then that the girl related the
incident to her parents, who thereupon took her to a doctor for treatment. She underwent surgical
operation twice, first on July 20 and again on August 4, 1962, and stayed in the hospital for a total of
twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the medical
efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye.
In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso
Monfort, Maria Teresa Monfort's father, the defendant was ordered to pay P1,703.00 as actual
damages; P20,000.00 as moral damages; and P2,000.00 as attorney's fees, plus the costs of the
suit.
The legal issue posed in this appeal is the liability of a parent for an act of his minor child which
causes damage to another under the specific facts related above and the applicable provisions of the
Civil Code, particularly Articles 2176 and 2180 thereof, which read:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by provisions of this Chapter.
ART 2180. The obligation imposed by Article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity are responsible for the damages
caused by the minor children who live in their company.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying
the act or the omission, there being no willfulness or intent to cause damage thereby. When the act or
omission is that of one person for whom another is responsible, the latter then becomes himself liable
under Article 2180, in the different cases enumerated therein, such as that of the father or the mother
under the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in
Article 2176, fault or negligence, which is presumed from that which accompanied the causative act
or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear
and logical inference that may be drawn from the last paragraph of Article 2180, which states "that the
responsibility treated of in this Article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage."

Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests
on the defendant. But what is the exact degree of diligence contemplated, and how does a parent
prove it in connection with a particular act or omission of a minor child, especially when it takes place
in his absence or outside his immediate company? Obviously there can be no meticulously calibrated
measure applicable; and when the law simply refers to "all the diligence of a good father of the family
to prevent damage," it implies a consideration of the attendant circumstances in every individual case,
to determine whether or not by the exercise of such diligence the damage could have been
prevented.
In the present case there is nothing from which it may be inferred that the defendant could have
prevented the damage by the observance of due care, or that he was in any way remiss in the
exercise of his parental authority in failing to foresee such damage, or the act which caused it. On the
contrary, his child was at school, where it was his duty to send her and where she was, as he had the
right to expect her to be, under the care and supervision of the teacher. And as far as the act which
caused the injury was concerned, it was an innocent prank not unusual among children at play and
which no parent, however careful, would have any special reason to anticipate much less guard
against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's character which
would reflect unfavorably on her upbringing and for which the blame could be attributed to her
parents.
The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her.
But if the defendant is at all obligated to compensate her suffering, the obligation has no legal
sanction enforceable in court, but only the moral compulsion of good conscience.
The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as
to costs.
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

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 preexisting 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 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 companyand 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 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.
LIABILITY OF OWNERS and MANAGERS and EMPLOYERS
G.R. No. L-25142 March 25, 1975
PHILIPPINE RABBIT BUS LINES, INC. and FELIX PANGALANGAN, plaintiffs-appellants, vs.PHILAMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO
PINEDA, defendants-appellees.
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).
In the complaint for damages filed by the bus company and Pangalangan against Phil-American
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.
The Civil Code provides:t.hqw
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.
ART. 2180. The obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise responsible
for damages caused by their employees in the service of the branches in which the
latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
xxx 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. (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 3.0del (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.
That argument implies that the veil of corporate fiction should be pierced and that Phil-American
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 was assumed that PhilAmerican 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.
G.R. No. 132344

February 17, 2000

UNIVERSITY
OF
vs.
ROMEO A. JADER, respondent.

THE

EAST, petitioner,

YNARES-SANTIAGO, J.:
May an educational institution be held liable for damages for misleading a student into believing that
the latter had satisfied all the requirements for graduation when such is not the case? This is the
issue in the instant petition for review premised on the following undisputed facts as summarized by
the trial court and adopted by the Court of Appeals (CA), 1 to wit:
Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In the first
semester of his last year (School year 1987-1988), he failed to take the regular final
examination in Practice Court I for which he was given an incomplete grade (Exhibits "2", also
Exhibit "H"). He enrolled for the second semester as fourth year law student (Exhibit "A") and
on February 1, 1988 he filed an application for the removal of the incomplete grade given him
by Professor Carlos Ortega (Exhibits "H-2", also Exhibit "2") which was approved by Dean
Celedonio Tiongson after payment of the required fee. He took the examination on March 28,
1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was a grade of five
(5). (Exhibits "H-4", also Exhibits "2-L", "2-N").1wphi1.nt
In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate
on who among the fourth year students should be allowed to graduate. The plaintiff's name
appeared in the Tentative List of Candidates for graduation for the Degree of Bachelor of Laws
(LL.B) as of Second Semester (1987-1988) with the following annotation:
JADER ROMEO A.
Def. Conflict of Laws x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit transcript with
S.O. (Exhibits "3", "3-C-1", "3-C-2").
The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws
was scheduled on the 16th of April 1988 at 3:00 o'clock in the afternoon, and in the invitation
for that occasion the name of the plaintiff appeared as one of the candidates. (Exhibits "B", "B6", "B-6-A"). At the foot of the list of the names of the candidates there appeared however the
following annotation:
This is a tentative list Degrees will be conferred upon these candidates who
satisfactorily complete requirements as stated in the University Bulletin and as approved
of the Department of Education, Culture and Sports (Exhibit "B-7-A").

The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto
Campus, during the program of which he went up the stage when his name was called,
escorted by her (sic) mother and his eldest brother who assisted in placing the Hood, and his
Tassel was turned from left to right, and he was thereafter handed by Dean Celedonio a rolled
white sheet of paper symbolical of the Law Diploma. His relatives took pictures of the occasion
(Exhibits "C" to "C-6", "D-3" to "D-11").
He tendered a blow-out that evening which was attended by neighbors, friends and relatives
who wished him good luck in the forthcoming bar examination. There were pictures taken too
during the blow-out (Exhibits "D" to "D-1").
He thereafter prepared himself for the bar examination. He took a leave of absence without
pay from his job from April 20, 1988 to September 30, 1988 (Exhibit "G") and enrolled at the
pre-bar review class in Far Eastern University. (Exhibits "F" to "F-2"). Having learned of the
deficiency he dropped his review class and was not able to take the bar examination. 2
Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental
anguish, serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was
not able to take the 1988 bar examinations arising from the latter's negligence. He prayed for an
award of moral and exemplary damages, unrealized income, attorney's fees, and costs of suit.
In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent
to believe that he completed the requirements for a Bachelor of Laws degree when his name was
included in the tentative list of graduating students. After trial, the lower court rendered judgment as
follows:
WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff
and against the defendant ordering the latter to pay plaintiff the sum of THIRTY FIVE
THOUSAND FOUR HUNDRED SEVENTY PESOS (P35,470.00) with legal rate of interest
from the filing of the complaint until fully paid, the amount of FIVE THOUSAND PESOS
(P5,000.00) as attorney's fees and the cost of suit.
Defendant's counterclaim is, for lack of merit, hereby dismissed.
SO ORDERED.3
which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The
dispositive portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby AFFIRMED
with the MODIFICATION that defendant-appellee, in addition to the sum adjudged by the lower
court in favor of plaintiff-appellant, is also ORDERED to pay plaintiff-appellant the amount of
FIFTY THOUSAND (P50,000.00) PESOS for moral damages. Costs against defendantappellee.
SO ORDERED.4

Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a
petition for review under Rule 45 of the Rules of Court, arguing that it has no liability to respondent
Romeo A. Jader, considering that the proximate and immediate cause of the alleged damages
incurred by the latter arose out of his own negligence in not verifying from the professor concerned
the result of his removal exam.
The petition lacks merit.
When a student is enrolled in any educational or learning institution, a contract of education is
entered into between said institution and the student. The professors, teachers or instructors hired by
the school are considered merely as agents and administrators tasked to perform the school's
commitment under the contract. Since the contracting parties are the school and the student, the
latter is not duty-bound to deal with the former's agents, such as the professors with respect to the
status or result of his grades, although nothing prevents either professors or students from sharing
with each other such information. The Court takes judicial notice of the traditional practice in
educational institutions wherein the professor directly furnishes his/her students their grades. It is the
contractual obligation of the school to timely inform and furnish sufficient notice and information to
each and every student as to whether he or she had already complied with all the requirements for
the conferment of a degree or whether they would be included among those who will graduate.
Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary
occasion, since such ceremony is the educational institution's way of announcing to the whole world
that the students included in the list of those who will be conferred a degree during the baccalaureate
ceremony have satisfied all the requirements for such degree. Prior or subsequent to the ceremony,
the school has the obligation to promptly inform the student of any problem involving the latter's
grades and performance and also most importantly, of the procedures for remedying the same.
Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a
time when he had already commenced preparing for the bar exams, cannot be said to have acted in
good faith. Absence of good faith must be sufficiently established for a successful prosecution by the
aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an
honest intention to abstain from taking undue advantage of another, even though the forms and
technicalities of the law, together with the absence of all information or belief of facts, would render
the transaction unconscientious.5 It is the school that has access to those information and it is only
the school that can compel its professors to act and comply with its rules, regulations and policies
with respect to the computation and the prompt submission of grades. Students do not exercise
control, much less influence, over the way an educational institution should run its affairs, particularly
in disciplining its professors and teachers and ensuring their compliance with the school's rules and
orders. Being the party that hired them, it is the school that exercises general supervision and
exclusive control over the professors with respect to the submission of reports involving the students'
standing. Exclusive control means that no other person or entity had any control over the
instrumentality which caused the damage or injury.6
The college dean is the senior officer responsible for the operation of an academic program,
enforcement of rules and regulations, and the supervision of faculty and student services. 7 He must
see to it that his own professors and teachers, regardless of their status or position outside of the
university, must comply with the rules set by the latter. The negligent act of a professor who fails to

observe the rules of the school, for instance by not promptly submitting a student's grade, is not only
imputable to the professor but is an act of the school, being his employer.
Considering further, that the institution of learning involved herein is a university which is engaged in
legal education, it should have practiced what it inculcates in its students, more specifically the
principle of good dealings enshrined in Articles 19 and 20 of the Civil Code which states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another,
shall indemnify the latter for the same.
Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for human foresight to provide specifically in statutory
law.8 In civilized society, men must be able to assume that others will do them no intended injury
that others will commit no internal aggressions upon them; that their fellowmen, when they act
affirmatively will do so with due care which the ordinary understanding and moral sense of the
community exacts and that those with whom they deal in the general course of society will act in good
faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized
society.9 Schools and professors cannot just take students for granted and be indifferent to them, for
without the latter, the former are useless.
Educational institutions are duty-bound to inform the students of their academic status and not wait
for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare
of the person/persons who may be affected by his act or omission can support a claim for
damages.10 Want of care to the conscious disregard of civil obligations coupled with a conscious
knowledge of the cause naturally calculated to produce them would make the erring party
liable.11 Petitioner ought to have known that time was of the essence in the performance of its
obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not
prepare himself for the bar exams since that is precisely the immediate concern after graduation of an
LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student's grades at any
time because a student has to comply with certain deadlines set by the Supreme Court on the
submission of requirements for taking the bar. Petitioner's liability arose from its failure to promptly
inform respondent of the result of an examination and in misleading the latter into believing that he
had satisfied all requirements for the course. Worth quoting is the following disquisition of the
respondent court:
It is apparent from the testimony of Dean Tiongson that defendant-appellee University had
been informed during the deliberation that the professor in Practice Court I gave plaintiffappellant a failing grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his
failure to complete the requirements for the degree nor did they remove his name from the
tentative list of candidates for graduation. Worse, defendant-appellee university, despite the
knowledge that plaintiff-appellant failed in Practice Court I, again included plaintiff-appellant's
name in the "tentative list of candidates for graduation which was prepared after the
deliberation and which became the basis for the commencement rites program. Dean

Tiongson reasons out that plaintiff-appellant's name was allowed to remain in the tentative list
of candidates for graduation in the hope that the latter would still be able to remedy the
situation in the remaining few days before graduation day. Dean Tiongson, however, did not
explain how plaintiff appellant Jader could have done something to complete his deficiency if
defendant-appellee university did not exert any effort to inform plaintiff-appellant of his failing
grade in Practice Court I.12
Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the
delayed relay of information to respondent. When one of two innocent parties must suffer, he through
whose agency the loss occurred must bear it. 13 The modern tendency is to grant indemnity for
damages in cases where there is abuse of right, even when the act is not illicit. 14 If mere fault or
negligence in one's acts can make him liable for damages for injury caused thereby, with more reason
should abuse or bad faith make him liable. A person should be protected only when he acts in the
legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he
acts with negligence or abuse.15
However, while petitioner was guilty of negligence and thus liable to respondent for the latter's actual
damages, we hold that respondent should not have been awarded moral damages. We do not agree
with the Court of Appeals' findings that respondent suffered shock, trauma and pain when he was
informed that he could not graduate and will not be allowed to take the bar examinations. At the very
least, it behooved on respondent to verify for himself whether he has completed all necessary
requirements to be eligible for the bar examinations. As a senior law student, respondent should have
been responsible enough to ensure that all his affairs, specifically those pertaining to his academic
achievement, are in order. Given these considerations, we fail to see how respondent could have
suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes
and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take
the bar, he brought this upon himself by not verifying if he has satisfied all the requirements including
his school records, before preparing himself for the bar examination. Certainly, taking the bar
examinations does not only entail a mental preparation on the subjects thereof; there are also
prerequisites of documentation and submission of requirements which the prospective examinee
must meet.
WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION.
Petitioner is ORDERED to PAY respondent the sum of Thirty-five Thousand Four Hundred Seventy
Pesos (P35,470.00), with legal interest of 6% per annum computed from the date of filing of the
complaint until fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorney's fees; and the
costs of the suit. The award of moral damages is DELEIED.1wphi1.nt
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.
PARAS, J.:
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.
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.
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 petitionersspouses 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:
. . . . . 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 quasidelict which resulted in the death of the son of herein petitioners.
Petitioners allege:
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 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. 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.
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.
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.
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.
The liability of the State has two aspects. namely:
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-

Sec. 2. Powers and objectives.-The NIA shall have the following powers and objectives:
(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 wasthrown 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 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]
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 petitioners-spouses 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.
G.R. No. 71137 October 5, 1989
SPOUSES FEDERICO FRANCO and FELICISIMA R. FRANCO, petitioners, vs.INTERMEDIATE
APPELLATE COURT, ANTONIO REYES, MRS. SUSAN CHUAY and LOLITA LUGUErespondents.
FERNAN, C.J.:
The instant petition for review of a decision of the Court of Appeals deals mainly with the nature of an
employer's liability for his employee's negligent act.
At about 7:30 in the evening of October 18, 1974, Macario Yuro swerved the northbound Franco Bus
with Plate No. XY320-PUB he was driving to the left to avoid hitting a truck with a trailer parked facing
north along the cemented pavement of the MacArthur Highway at Barrio Talaga, Capas Tarlac,
thereby taking the lane of an incoming Isuzu Mini Bus bearing Plate No. YL-735 being driven by one
Magdaleno Lugue and making a collision between the two (2) vehicles an unavoidable and disastrous
eventuality.
Dragged fifteen (15) meters from the point of impact (midway the length of the parked truck with
trailer), the mini bus landed right side down facing south in the canal of the highway, a total wreck.
The Franco Bus was also damaged but not as severely. The collision resulted in the deaths of the two
(2) drivers, Macario Yuro and Magdaleno Lugue, and two (2) passengers of the mini bus, Romeo Bue
and Fernando Chuay.

Consequently, Antonio Reyes, the registered owner of the Isuzu Mini Bus, Mrs. Susan Chuay, the wife
of victim Fernando Chuay, and Mrs. Lolita Lugue, the wife of driver-victim Magdaleno Lugue, filed an
action for damages through reckless imprudence before the Court of First Instance of Pampanga in
Angeles City, Branch IV, docketed as Civil Case No. 2154 against Mr. & Mrs. Federico Franco, the
owners and operators of the Franco Transportation Company. The complaint alleged that: (a) the
recklessness and imprudence of the Franco Bus driver caused the collision which resulted in his own
death and that of the mini bus driver and two (2) other passengers thereof; (b) that as a consequence
of the vehicular mishap, the Isuzu Mini Bus became a total wreck resulting in actual damages
amounting to P50,000.00 and the loss of an average net income of P120.00 daily or P3,600.00
monthly multiplied by a minimum of one more year of serviceability of said mini bus or P40,200.00;
and, (c) that in view of the death of the three (3) passengers aforementioned, the heirs of each should
be awarded a minimum of P12,000.00 and the expected average income of P6,000.00 each of the
driver and one of the passengers and P12,000.00 of the Chinese businessman passenger.
In answer to the complaint, defendants set up, among others, the affirmative defense that as owners
and operators of the Franco Transportation Company, they exercised due diligence in the selection
and supervision of all their employees, including the deceased driver Macario Yuro.
Said defense was, however, rejected by the trial court in its decision 1 dated May 17, 1978, for the
reason that the act of the Franco Bus driver was a negligent act punishable by law resulting in a civil
obligation arising from Article 103 of the Revised Penal Code and not from Article 2180 of the Civil
Code. It said: "This is a case of criminal negligence out of which civil liability arises, and not a case of
civil negligence and the defense of having acted like a good father of a family or having trained or
selected the drivers of his truck is no defense to avoid civil liability." 2 On this premise, the trial court
ruled as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiffs, Antonio Reyes, Lolita Lugue, and Susan Chuay, and against the defendants
Mr. and Mrs. Federico Franco, ordering the latter:
(1) To pay Antonio Reyes, actual and compensatory damages in the amount of
P90,000.00 for the Isuzu Mini Bus;
(2) To pay Lolita Lugue, the widow of Magdaleno Lugue, actual and compensatory
damages in the total sum of P18,000.00;
(3) To pay Susan Chuay, the widow of Fernando Chuay, actual and compensatory
damages in the total sum of P24,000.00; and
(4) To pay attorney's fee in the amount of P5.000.00;
All with legal interests from the filing of this suit on November 11, 1974 until paid; and
the costs of this suit.
SO ORDERED. 3

On appeal by herein petitioners as defendants-appellants, respondent appellate court, agreeing with

the lower court, held that defendants-appellants' driver who died instantly in the vehicular collision,
was guilty of reckless or criminal imprudence punishable by law in driving appellants' bus; that the
civil obligation of the appellants arises from Article 103 of the Revised Penal Code resulting in the
subsidiary liability of the appellants under the said provisions, 4 that the case subject of appeal is one
involving culpable negligence out of which civil liability arises and is not one of civil negligence; 5 and
that there is nothing in Articles 102 and 103 of the Revised Penal Code which requires a prior
judgment of conviction of the erring vehicle driver and his obligation to pay his civil liability before the
said provisions can be applied. 6 Respondent appellate court increased the award of damages
granted by the lower court as follows:
WHEREFORE, the decision appealed from is hereby modified as follows:
1. To pay Susan Chuay, widow of Fernando Chuay, the sum of P30,000.00 for the
latter's death and P112,000.00 for loss of earning capacity;
2. To pay Lolita Lugue, widow of Magdaleno Lugue, the sum of P30,000.00 for the
latter's death and P62,000.00 for loss of earning capacity. The rest of the judgment
appealed from is affirmed. Costs against defendants-appellants.
SO ORDERED. 7
On April 1, 1985, petitioners filed a motion for reconsideration of the aforesaid respondent appellate
court's decision dated January 2, 1985 but the same was denied on May 13, 1985.
Hence, the instant petition raising two (2) legal questions: first, whether the action for recovery of
damages instituted by herein private respondents was predicated upon crime or quasi-delict; and
second, whether respondent appellate court in an appeal filed by the defeated parties, herein
petitioners, may properly increase the award of damages in favor of the private respondents Chuay
and Lugue, prevailing parties in the lower court, who did not appeal said court's decision.
Petitioners contend that the allegations in paragraph 9 of the Amended Complaint 8 of herein private
respondents as plaintiffs in Civil Case No. 2154 unequivocally claim that the former as the employers
of Macario Yuro, the driver of the Franco Bus who caused the vehicular mishap, are jointly and
severally liable to the latter for the damages suffered by them which thus makes Civil Case No. 2154
an action predicated upon a quasi-delict under the Civil Code subject to the defense that the
employer exercised all the diligence of a good father of a family in the selection and supervision of
their employees.
We find merit in this contention. Distinction should be made between the subsidiary liability of the
employer under the Revised Penal Code and the employer's primary liability under the Civil Code
which is quasi-delictual or tortious in character. The first type of liability is governed by Articles 102
and 103 of the Revised Penal Code which provide as follows:
Art. 102. Subsidiary civil liability of innkeepers, tavern-keepers and proprietors of
establishments. In default of the persons criminally liable, innkeepers, tavern-

keepers, and any other persons or corporations shall be civilly liable for crimes
committed in their establishments, in all cases where a violation of municipal ordinances
or some general or special police regulations shall have been committed by them or
their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or
theft within their houses from guests lodging therein, or for the payment of the value
thereof, provided that such guests shall have notified in advance the innkeeper himself,
or the person representing him, of the deposits of such goods within the inn; and shall
furthermore have followed the directions which such innkeeper or his representative
may have given them with respect to the care and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation of persons unless
committed by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established
in the next preceding article shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies committed by the servants,
pupils, workmen, apprentices, or employees in the discharge of their duties;
while the second kind is governed by the following provisions of the Civil Code:
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.
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.
Art. 2180. The obligations 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.

Under Article 103 of the Revised Penal Code, liability originates from a delict committed by the
employee who is primarily liable therefor and upon whose primary liability his employer's subsidiary
liability is to be based. Before the employer's subsidiary liability may be proceeded against, it is
imperative that there should be a criminal action whereby the employee's criminal negligence or delict
and corresponding liability therefor are proved. If no criminal action was instituted, the employer's
liability would not be predicated under Article 103. 9
In the case at bar, no criminal action was instituted because the person who should stand as the
accused and the party supposed to be primarily liable for the damages suffered by private
respondents as a consequence of the vehicular mishap died. Thus, petitioners' subsidiary liability has
no leg to stand on considering that their liability is merely secondary to their employee's primary
liability. Logically therefore, recourse under this remedy is not possible.
On the other hand, under Articles 2176 and 2180 of the Civil Code, liability is based on culpa
aquiliana which holds the employer primarily liable for tortious acts of its employees subject, however,
to the defense that the former exercised all the diligence of a good father of a family in the selection
and supervision of his employees.
Respondent appellate court relies on the case of Arambulo, supra, where it was held that the defense
of observance of due diligence of a good father of a family in the selection and supervision of
employees is not applicable to the subsidiary liability provided in Article 20 of the Penal Code (now
Article 103 of the Revised Penal Code). By such reliance, it would seem that respondent appellate
court seeks to enforce the subsidiary civil liability of the employer without a criminal conviction of the
party primarily liable therefor. This is not only erroneous and absurd but is also fraught with
dangerous consequences. It is erroneous because the conviction of the employee primarily liable is a
condition sine qua non for the employer's subsidiary liability 10 and, at the same time, absurd because
we will be faced with a situation where the employer is held subsidiarily liable even without a primary
liability being previously established. It is likewise dangerous because, in effect, the employer's
subsidiary liability would partake of a solidary obligation resulting in the law's amendment without
legislative sanction.
The Court in the aforecited M.D. Transit case went further to say that there can be no automatic
subsidiary liability of defendant employer under Article 103 of the Revised Penal Code where his
employee has not been previously criminally convicted.
Having thus established that Civil Case No. 2154 is a civil action to impose the primary liability of the
employer as a result of the tortious act of its alleged reckless driver, we confront ourselves with the
plausibility of defendants-petitioners' defense that they observed due diligence of a good father of a
family in the selection and supervision of their employees.
On this point, the appellate court has unequivocally spoken in affirmation of the lower court's findings,
to wit:
Anyway, a perusal of the record shows that the appellants were not able to establish the
defense of a good father of a family in the supervision of their bus driver. The evidence
presented by the appellants in this regard is purely self-serving. No independent

evidence was presented as to the alleged supervision of appellants' bus drivers,

especially with regard to driving habits and reaction to actual traffic conditions. The
appellants in fact admitted that the only kind of supervision given the drivers referred to
the running time between the terminal points of the line (t.s.n., September 16, 1976, p.
21). Moreover, the appellants who ran a fleet of 12 buses plying the Manila-Laoag line,
have only two inspectors whose duties were only ticket inspection. There is no evidence
that they are really safety inspectors. 11
Basically, the Court finds that these determinations are factual in nature. As a painstaking review of
the evidence presented in the case at bar fails to disclose any evidence or circumstance of note
sufficient to overrule said factual findings and conclusions, the Court is inclined to likewise reject
petitioners' affirmative defense of due diligence. The wisdom of this stance is made more apparent by
the fact that the appellate court's conclusions are based on the findings of the lower court which is in
a better position to evaluate the testimonies of the witnesses during trial. As a rule, this Court
respects the factual findings of the appellate and trial courts and accord them a certain measure of
finality. 12 Consequently, therefore, we find petitioners liable for the damages claimed pursuant to their
primary liability under the Civil Code.
On the second legal issue raised in the instant petition, we agree with petitioners' contention that the
Intermediate Appellate Court (later Court of Appeals) is without jurisdiction to increase the amount of
damages awarded to private respondents Chuay and Lugue, neither of whom appealed the decision
of the lower court. While an appellee who is not also an appellant may assign error in his brief if his
purpose is to maintain the judgment on other grounds, he cannot ask for modification or reversal of
the judgment or affirmative relief unless he has also appealed. 13 For failure of plaintiffs-appellees,
herein private respondents, to appeal the lower court's judgment, the amount of actual damages
cannot exceed that awarded by it. 14
Furthermore, the records 15 show that plaintiffs-private respondents limited their claim for actual and
compensatory damages to the supposed average income for a period of one (1) year of P6,000.00 for
the driver Magdaleno Lugue and P12,000.00 for the Chinese businessman Fernando Chuay. We feel
that our award should not exceed the said amounts . 16
However, the increase in awards for indemnity arising from death to P30,000.00 each remains, the
same having been made in accordance with prevailing jurisprudence decreeing such increase in view
of the depreciated Philippine currency. 17
WHEREFORE, the decision of the Court of Appeals is hereby modified decreasing the award to
private respondents of actual and compensatory damages for loss of average income for the period
of one year to P6,000.00 for the deceased Magdaleno Lugue and P12,000.00 for the deceased
Fernando Chuay. The rest of the judgment appealed from is hereby affirmed. Costs against the
private respondents. This decision is immediately executory.
G.R. No. 132266 December 21, 1999

CASTILEX
INDUSTRIAL
CORPORATION, petitioner, vs.
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS' HOSPITAL,
INC., respondents.
DAVIDE, JR., C.J.:
The pivotal issue in this petition is whether an employer may be held vicariously liable for the death
resulting from the negligent operation by a managerial employee of a company-issued vehicle.
The antecedents, as succinctly summarized by the Court of Appeals, are as follows:
On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was
driving a Honda motorcycle around Fuente Osmea Rotunda. He was traveling counterclockwise, (the normal flow of traffic in a rotunda) but without any protective helmet or
goggles. He was also only carrying a Student's Permit to Drive at the time. Upon the
other hand, Benjamin Abad [was a] manager of Appellant Castilex Industrial
Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no. GBW-794. On
the same date and time, Abad drove the said company car out of a parking lot but
instead of going around the Osmea rotunda he made a short cut against [the] flow of
the traffic in proceeding to his route to General Maxilom St. or to Belvic St.
In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each
other causing severe injuries to the former. Abad stopped his vehicle and brought
Vasquez to the Southern Islands Hospital and later to the Cebu Doctor's Hospital.
On September 5, 1988, Vasquez died at the Cebu Doctor's Hospital. It was there that
Abad signed an acknowledgment of Responsible Party (Exhibit K) wherein he agreed to
pay whatever hospital bills, professional fees and other incidental charges Vasquez may
incur.
After the police authorities had conducted the investigation of the accident, a Criminal
Case was filed against Abad but which was subsequently dismissed for failure to
prosecute. So, the present action for damages was commenced by Vicente Vasquez, Jr.
and Luisa So Vasquez, parents of the deceased Romeo So Vasquez, against Jose
Benjamin Abad and Castilex Industrial Corporation. In the same action, Cebu Doctor's
Hospital intervened to collect unpaid balance for the medical expense given to Romeo
So Vasquez. 1
The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and ordered Jose
Benjamin Abad (hereafter ABAD) and petitioner Castilex Industrial Corporation (hereafter CASTILEX)
to pay jointly and solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial expenses;
P50,000.00 as moral damages; P10,000.00 as attorney's fees; and P778,752.00 for loss of earning
capacity; and (2) Cebu Doctor's Hospital, the sum of P50,927.83 for unpaid medical and hospital bills
at 3% monthly interest from 27 July 1989 until fully paid, plus the costs of litigation. 2
CASTILEX and ABAD separately appealed the decision.

In its decision 3 of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court holding
ABAD and CASTILEX liable but held that the liability of the latter is "only vicarious and not solidary"
with the former. It reduced the award of damages representing loss of earning capacity from
P778,752.00 to P214,156.80; and the interest on the hospital and medical bills, from 3% per month to
12% per annum from 5 September 1988 until fully paid.
Upon CASTILEX's motion for reconsideration, the Court of Appeals modified its decision by (1)
reducing the award of moral damages from P50,000 to P30,000 in view of the deceased's
contributory negligence; (b) deleting the award of attorney's fees for lack of evidence; and (c)
reducing the interest on hospital and medical bills to 6% per annum from 5 September 1988 until fully
paid. 4
Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1) applying
to the case the fifth paragraph of Article 2180 of the Civil Code, instead of the fourth paragraph
thereof; (2) that as a managerial employee, ABAD was deemed to have been always acting within the
scope of his assigned task even outside office hours because he was using a vehicle issued to him
by petitioner; and (3) ruling that petitioner had the burden to prove that the employee was not acting
within the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds fast on the
theory of negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue that their son's death was caused by the
negligence of petitioner's employee who was driving a vehicle issued by petitioner and who was on
his way home from overtime work for petitioner; and that petitioner is thus liable for the resulting injury
and subsequent death of their son on the basis of the fifth paragraph of Article 2180. Even if the
fourth paragraph of Article 2180 were applied, petitioner cannot escape liability therefor. They
moreover argue that the Court of Appeals erred in reducing the amount of compensatory damages
when the award made by the trial court was borne both by evidence adduced during the trial
regarding deceased's wages and by jurisprudence on life expectancy. Moreover, they point out that
the petition is procedurally not acceptable on the following grounds: (1) lack of an explanation for
serving the petition upon the Court of Appeals by registered mail, as required under Section 11, Rule
13 of the Rules of Civil Procedure; and (2) lack of a statement of the dates of the expiration of the
original reglementary period and of the filing of the motion for extension of time to file a petition for
review.
For its part, respondent Cebu Doctor's Hospital maintains that petitioner CASTILEX is indeed
vicariously liable for the injuries and subsequent death of Romeo Vasquez caused by ABAD, who was
on his way home from taking snacks after doing overtime work for petitioner. Although the incident
occurred when ABAD was not working anymore "the inescapable fact remains that said employee
would not have been situated at such time and place had he not been required by petitioner to do
overtime work." Moreover, since petitioner adopted the evidence adduced by ABAD, it cannot, as the
latter's employer, inveigle itself from the ambit of liability, and is thus estopped by the records of the
case, which it failed to refute.

We shall first address the issue raised by the private respondents regarding some alleged procedural
lapses in the petition.
Private respondent's contention of petitioner's violation of Section 11 of Rule 13 and Section 4 of Rule
45 of the 1997 Rules of Civil Procedure holds no water.
Sec. 11 of Rule 13 provides:
Sec. 11. Priorities in modes of services and filing. Whenever practicable, the service
and filing of pleadings and other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes must be accompanied by a
written explanation why the service or filing was not done personally. A violation of this
Rule may be cause to consider the paper as not filed.
The explanation why service of a copy of the petition upon the Court of Appeals was done by
registered mail is found on Page 28 of the petition. Thus, there has been compliance with the
aforequoted provision.
As regards the allegation of violation of the material data rule under Section 4 of Rule 45, the same is
unfounded. The material dates required to be stated in the petition are the following: (1) the date of
receipt of the judgment or final order or resolution subject of the petition; (2) the date of filing of a
motion for new trial or reconsideration, if any; and (3) the date of receipt of the notice of the denial of
the motion. Contrary to private respondent's claim, the petition need not indicate the dates of the
expiration of the original reglementary period and the filing of a motion for extension of time to file the
petition. At any rate, aside from the material dates required under Section 4 of Rule 45, petitioner
CASTILEX also stated in the first page of the petition the date it filed the motion for extension of time
to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes said
negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by
ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only apply to
instances where the employer is not engaged in business or industry. Since it is engaged in the
business of manufacturing and selling furniture it is therefore not covered by said provision. Instead,
the fourth paragraph should apply.
Petitioner's interpretation of the fifth paragraph is not accurate. The phrase "even though the former
are not engaged in any business or industry" found in the fifth paragraph should be interpreted to
mean that it is not necessary for the employer to be engaged in any business or industry to be liable
for the negligence of his employee who is acting within the scope of his assigned task. 5
A distinction must be made between the two provisions to determine what is applicable. Both
provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or

enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business
or industry. The fourth paragraph covers negligent acts of employees committed either in the service
of the branches or on the occasion of their functions, while the fifth paragraph encompasses negligent
acts of employees acting within the scope of their assigned task. The latter is an expansion of the
former in both employer coverage and acts included. Negligent acts of employees, whether or not the
employer is engaged in a business or industry, are covered so long as they were acting within the
scope of their assigned task, even though committed neither in the service of the branches nor on the
occasion of their functions. For, admittedly, employees oftentimes wear different hats. They perform
functions which are beyond their office, title or designation but which, nevertheless, are still within the
call of duty.
This court has applied the fifth paragraph to cases where the employer was engaged in a business or
industry such as truck operators 6 and banks. 7 The Court of Appeals cannot, therefore, be faulted in
applying the said paragraph of Article 2180 of the Civil Code to this case.
Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an
employer is liable for the torts committed by employees within the scope of his assigned tasks. But it
is necessary to establish the employer-employee relationship; once this is done, the plaintiff must
show, to hold the employer liable, that the employee was acting within the scope of his assigned task
when the tort complained of was committed. It is only then that the employer may find it necessary to
interpose the defense of due diligence in the selection and supervision of the employee. 8
It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of the tort
occurrence. As to whether he was acting within the scope of his assigned task is a question of fact,
which the court a quo and the Court of Appeals resolved in the affirmative.
Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of Appeals are
entitled to great respect, and even finality at times. This rule is, however, subject to exceptions such
as when the conclusion is grounded on speculations, surmises, or conjectures. 9 Such exception
obtain in the present case to warrant review by this Court of the finding of the Court of Appeals that
since ABAD was driving petitioner's vehicle he was acting within the scope of his duties as a
manager.
Before we pass upon the issue of whether ABAD was performing acts within the range of his
employment, we shall first take up the other reason invoked by the Court of Appeals in holding
petitioner CASTILEX vicariously liable for ABAD's negligence, i.e., that the petitioner did not present
evidence that ABAD was not acting within the scope of his assigned tasks at the time of the motor
vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not incumbent upon the
petitioner to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was acting
within the scope of his duties; petitioner was not under obligation to prove this negative averment. Ei
incumbit probatio qui dicit, non qui negat (He who asserts, not he who denies, must prove). The Court
has consistently applied the ancient rule that if the plaintiff, upon whom rests the burden of proving
his cause of action, fails to show in a satisfactory manner facts which he bases his claim, the
defendant is under no obligation to prove his exception or defense. 10

Now on the issue of whether the private respondents have sufficiently established that ABAD was
acting within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was
driving a company-issued vehicle, registered under the name of petitioner. He was then leaving the
restaurant where he had some snacks and had a chat with his friends after having done overtime
work for the petitioner.
No absolutely hard and fast rule can be stated which will furnish the complete answer to the problem
of whether at a given moment, an employee is engaged in his employer's business in the operation of
a motor vehicle, so as to fix liability upon the employer because of the employee's action or inaction;
but rather, the result varies with each state of facts. 11
In Filamer Christian Institute v. Intermediate Appellant Court, 12 this Court had the occasion to hold
that acts done within the scope of the employee's assigned tasks 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 damages."
The court a quo and the Court of Appeals were one in holding that the driving by a manager of a
company-issued vehicle is within the scope of his assigned tasks regardless of the time and
circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious
incident is not of itself sufficient to charge petitioner with liability for the negligent operation of said
vehicle unless it appears that he was operating the vehicle within the course or scope of his
employment.
The following are principles in American Jurisprudence on the employer's liability for the injuries
inflicted by the negligence of an employee in the use of an employer's motor vehicle:
I. Operation of Employer's Motor Vehicle in Going to
or from Meals
It has been held that an employee who uses his employer's vehicle in going from his work to a place
where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of
his employment in the absence of evidence of some special business benefit to the employer.
Evidence that by using the employer's vehicle to go to and from meals, an employee is enabled to
reduce his time-off and so devote more time to the performance of his duties supports the finding that
an employee is acting within the scope of his employment while so driving the vehicle. 13
II. Operation of Employer's Vehicle in Going to
or from Work

In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern
of the employee, and not a part of his services to his employer. Hence, in the absence of some
special benefit to the employer other than the mere performance of the services available at the place
where he is needed, the employee is not acting within the scope of his employment even though he
uses his employer's motor vehicle. 14
The employer may, however, be liable where he derives some special benefit from having the
employee drive home in the employer's vehicle as when the employer benefits from having the
employee at work earlier and, presumably, spending more time at his actual duties. Where the
employee's duties require him to circulate in a general area with no fixed place or hours of work, or to
go to and from his home to various outside places of work, and his employer furnishes him with a
vehicle to use in his work, the courts have frequently applied what has been called the "special
errand" or "roving commission" rule, under which it can be found that the employee continues in the
service of his employer until he actually reaches home. However, even if the employee be deemed to
be acting within the scope of his employment in going to or from work in his employer's vehicle, the
employer is not liable for his negligence where at the time of the accident, the employee has left the
direct route to his work or back home and is pursuing a personal errand of his own.
III. Use of Employer's Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an employee for the latter's personal use outside of
regular working hours is generally not liable for the employee's negligent operation of the vehicle
during the period of permissive use, even where the employer contemplates that a regularly assigned
motor vehicle will be used by the employee for personal as well as business purposes and there is
some incidental benefit to the employer. Even where the employee's personal purpose in using the
vehicle has been accomplished and he has started the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed his employment, and the employer is not
liable for the employee's negligent operation of the vehicle during the return trip. 15
The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the
doctrine of respondent superior, not on the principle of bonus pater familias as in ours. Whether the
fault or negligence of the employee is conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the
employer as in ours, it is indispensable that the employee was acting in his employer's business or
within the scope of his assigned task. 16
In the case at bar, it is undisputed that ABAD did some overtime work at the petitioner's office, which
was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldie's Restaurant in Fuente
Osmea, Cebu City, which is about seven kilometers away from petitioner's place of business. 17 A
witness for the private respondents, a sidewalk vendor, testified that Fuente Osmea is a "lively
place" even at dawn because Goldie's Restaurant and Back Street were still open and people were
drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place. 18
At the Goldie's Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD
was leaving the restaurant that the incident in question occurred. That same witness for the private
respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car,

who then shouted: "Daddy, Daddy!" 19This woman could not have been ABAD's daughter, for ABAD
was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal
purpose not in line with his duties at the time he figured in a vehicular accident. It was then about 2:00
a.m. of 28 August 1988, way beyond the normal working hours. ABAD's working day had ended; his
overtime work had already been completed. His being at a place which, as petitioner put it, was
known as a "haven for prostitutes, pimps, and drug pushers and addicts," had no connection to
petitioner's business; neither had it any relation to his duties as a manager. Rather, using his service
vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his
position.
Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to
him, petitioner CASTILEX had no duty to show that it exercised the diligence of a good father of a
family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be
relieved of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle. 20
WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the Court of
Appeals is AFFIRMED with the modification that petitioner Castilex Industrial Corporation be absolved
of any liability for the damages caused by its employee, Jose Benjamin Abad.
PILIPINAS SHELL PETROLEUM VS CA GR NO.104658
1. LABOR LAWS AND SOCIAL LEGISLATION; EMPLOYER-EMPLOYEE RELATIONSHIP;
FACTORS CONSIDERED IN DETERMINING EXISTENCE THEREOF; CASE AT BAR. It is firmly
settled that the existence or non-existence of the employer-employee relationship is commonly to be
determined by examination of certain factors or aspects of that relationship. These include: (a) the
manner of selection and engagement of the putative employee; (b) the mode of payment of wages;
(c) the presence or absence of a power to control the putative employee's conduct, although the latter
is the most important element . . . As aptly held by the trial court, petitioner did not exercise control
and supervision over Feliciano with regard to the manner in which he conducted the hydro-pressure
test. All that petitioner did, through its Field Engineer, Roberto Mitra, was relay to Feliciano the
request of private respondent for a hydro-pressure test, to determine any possible leakages in the
storage tanks in her gasoline station. The mere hiring of Feliciano by petitioner for that particular task
is not the form of control and supervision contemplated by law which may be the basis for
establishing an employer-employee relationship between petitioner and Feliciano. The fact that there
was no such control is further amplified by the absence of any shell representative in the job site at
the time when the test was conducted. Roberto Mitra was never there. Only Feliciano and his men
were. True, it was petitioner who sent Feliciano to private respondent's gasoline station to conduct the
hydro-pressure test as per the request of private respondent herself. But this single act did not
automatically make Feliciano an employee of petitioner. As discussed earlier, more than mere hiring
is required. It must further be established that petitioner is the one who is paying Feliciano's salary on
a regular basis; that it has the power to dismiss said employee, and more importantly, that petitioner
has control and supervision over the work of Feliciano. The last requisite was sorely missing in the
instant case.

2. ID.; JOB CONTRACTING; REQUISITES; HALLMARKS OF INDEPENDENT CONTRACTOR.

Section 8 of Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code provides: "Sec. 8.
Job contracting. There is job contracting permissible under the Code if the following conditions are
met: (1) The contractor carries on an independent business and undertakes the contract work on his
own account under his own responsibility according to his own manner and method, free from the
control and direction of his employer or principal in all matters connected with the performance of the
work except as to the results thereof; and (2) The contractor has substantial capital or investment in
the form of tools, equipment, machineries, work premises, and other materials which are necessary in
the conduct of his business." Feliciano is independently maintaining a business under a duly
registered business name, "JFS Repair and Maintenance Service," and is duly registered with the
Bureau of Domestic Trade. He does not enjoy a fixed salary but instead charges a lump sum
consideration for every piece of work he accomplishes. If he is not able to finish his work, he does not
get paid, as what happened in this case. Further, Feliciano utilizes his own tools and equipment and
has a complement of workers. Neither is he required to work on a regular basis. Instead, he merely
awaits calls from clients such as petitioner whenever repairs and maintenance services are
requested. Moreover, Feliciano does not exclusively service petitioner because he can accept other
business but not from other oil companies. All these are the hallmarks of an independent contractor.
3. CIVIL LAW; QUASI-DELICTS; INDEPENDENT CONTRACTOR RESPONSIBLE FOR HIS OWN
ACTS AND OMISSIONS. Being an independent contractor, Feliciano is responsible for his own
acts and omissions. As he alone was in control over the manner of how he was to undertake the
hydro-pressure test, he alone must bear the consequences of his negligence, if any, in the conduct of
the same.
DECISION
CAMPOS, JR., J p:
Was the hydro-pressure test of the underground storage tank in private respondent Clarita T.
Camacho's gasoline station conducted by an independent contractor or not? A negative answer will
make petitioner Pilipinas Shell Petroleum Corporation (Shell, for brevity) liable for the said
independent contractor's acts or omissions; otherwise, no. This is the issue that this Court is called
upon to resolve in this case.
The facts are as follows:
Private respondent Clarita T. Camacho (private respondent for short) was the operator of a gasoline
station in Naguilian Road, Baguio City, wherein she sells petitioner Shell's petroleum products.
Sometime in April 1983, private respondent requested petitioner to conduct a hydro-pressure test on
the underground storage tanks of the said station in order to determine whether or not the sales
losses she was incurring for the past several months were due to leakages therein. Petitioner
acceded to the said request and on April 27, 1983, one Jesus "Jessie" Feliciano together with other
workers, came to private respondent's station with a Job Order from petitioner to perform the hydropressure test.

On the same day, Feliciano and his men drained the underground storage tank which was to be
tested of its remaining gasoline. After which, they filled the tank with water through a water hose from
the deposit tank of private respondent. Then, after requesting one of private respondent's gasoline
boys to shut off the water when the tank was filled, Feliciano and his men left. At around 2:00 a.m. the
following day, private respondent saw that the water had reached the lip of the pipe of the
underground storage tank and so, she shut off the water faucet.
At around 5:30 a.m., private respondent's husband opened the station and started selling gasoline.
But at about 6:00 a.m., the customers who had bought gasoline returned to the station complaining
that their vehicles stalled because there was water in the gasoline that they bought. On account of
this, private respondent was constrained to replace the gasoline sold to the said customers. However,
a certain Eduardo Villanueva, one of the customers, filed a complaint with the police against private
respondent for selling the adulterated gasoline. In addition, he caused the incident to be published in
two local newspapers.
Feliciano, who arrived later that morning, did not know what caused the water pollution of the
gasoline in the adjacent storage tank. So he called up Nick Manalo, Superintendent of Shell's Poro
Point Installation at San Fernando, La Union, and referred the matter to the latter. Manalo went up to
Baguio in the afternoon to investigate. Thereafter, he and Feliciano again filled with water the
underground storage tank undergoing hydro-pressure test whereat they noticed that the water was
transferring to the other tanks from whence came the gasoline being sold. Manalo asked permission
from Shell's Manila Office to excavate the underground pipes of the station. Upon being granted
permission to do so, Feliciano and his men began excavating the driveway of private respondent's
station in order to expose the underground pipeline. The task was continued by one Daniel "Danny"
Pascua who replaced Feliciano, Pascua removed the corroded pipeline and installed new
independent vent pipe for each storage tank.
Meanwhile, petitioner undertook to settle the criminal complaint filed by Villanueva. Subsequently,
Villanueva filed an Affidavit of Desistance, 1 declaring, inter alia
"THAT, after careful evaluation of the surrounding circumstances, especially the explanation of the
representatives of SHELL Phils., that the gasoline tanks of Mrs. Camacho were subject to Hydro test,
in such a way that water was used for the said test, I believe that she may not have had anything to
do with the filling of water in the tank of my car;
xxx xxx xxx
THAT, said representatives of SHELL Phils. have interceded for and in behalf of Mrs. Camacho and
have fully satisfied my claim against her.
THAT, in view of all the foregoing I do not intend to prosecute the case and I am therefore asking for
the dismissal of the case against Mrs. Camacho."
Thereafter, private respondent demanded from petitioner the payment of damages in the amount of
P10,000.00. Petitioner, instead, offered private respondent additional credit line and other beneficial
terms, which offer was, however, rejected. cdrep

Subsequently, or on October 12, 1983, private respondent filed before the trial court a complaint for
damages against petitioner due to the latter's alleged negligence in the conduct of the hydro-pressure
test in her gasoline station. For its part, petitioner denied liability because, according to it, the hydropressure test on the underground storage tanks was conducted by an independent contractor.
The trial court dismissed private respondent's complaint for damages for the reason that:
"The hydro-pressure test which brought about the incident was conducted by Jesus Feliciano, who
was neither an employee nor agent nor representative of the defendant. Jesus Feliciano is
responsible for his own acts and omissions. He alone was in control of the manner of how he is to
undertake the hydro-pressure test.
Considering that the conduct of said hydro-pressure test was under the sole and exclusive control
and supervision of Jesus Feliciano, the overflow with water causing the same to sip into the adjoining
tank cannot be attributed to the fault or negligence of defendant. 2
From the adverse decision of the trial court, private respondent appealed to the Court of Appeals
which court reversed the decision of the trial court. Thus,
"PREMISES CONSIDERED, the decision being appealed from is hereby SET ASIDE and, in lieu
thereof, another rendered ordering defendant to pay plaintiff:
1. P100,000.00 as moral damages;
2. P2,639.25 and P15,000.00 representing the actual losses suffered by plaintiff as a result of the
water pollution of the gasoline.
No costs.
SO ORDERED." 3
Petitioner moved to have the above decision reconsidered but the same was denied in a Resolution
dated March 9, 1992. Hence, this recourse.
As stated at the very outset, the pivotal issue in this case is whether or not petitioner should be held
accountable for the damage to private respondent due to the hydro-pressure test conducted by Jesus
Feliciano.
It is a well-entrenched rule that an employer-employee relationship must exist before an employer
may be held liable for the negligence of his employee. It is likewise firmly settled that the existence or
non-existence of the employer-employee relationship is commonly to be determined by examination
of certain factors or aspects of that relationship. These include: (a) the manner of selection and
engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or
absence of a power to control the putative employee's conduct, 4 although the latter is the most
important element. 5

In this case, respondent Court of Appeals held petitioner liable for the damage caused to private
respondent as a result of the hydro-pressure test conducted by Jesus Feliciano due to the following
circumstances: 6
1. Feliciano was hired by petitioner;
2. He received his instructions from the Field Engineer of petitioner, Mr. Roberto Mitra;
3. While he was at private respondent's service station, he also received instructions from Nick
Manalo, petitioner's Poro Point Depot Superintendent;
4. Instructions from petitioner's Manila Office were also relayed to him while he was at .the job site at
Baguio City;
5. His work was under the constant supervision of petitioner's engineer;
6. Before he could complete the work, he was instructed by Mr. Manalo, petitioner's Superintendent,
to discontinue the same and it was turned over to Daniel Pascua, who was likewise hired by
petitioner.
Based on the foregoing, respondent Court of Appeals concluded that Feliciano was not an
independent contractor but was under the control and supervision of petitioner in the performance of
the hydro-pressure test, hence, it held petitioner liable for the former's acts and omissions.
We are not in accord with the above finding of respondent Court of Appeals. As aptly held by the trial
court, petitioner did not exercise control and supervision over Feliciano with regard to the manner in
which he conducted the hydro-pressure test. All that petitioner did, through its Field Engineer, Roberto
Mitra, was relay to Feliciano the request of private respondent for a hydro-pressure test, to determine
any possible leakages in the storage tanks in her gasoline station. The mere hiring of Feliciano by
petitioner for that particular task is not the form of control and supervision contemplated by may be
the basis for establishing an employer-employee relationship between petitioner and Feliciano. The
fact that there was no such control is further amplified by the absence of any Shell representative in
the job site time when the test was conducted. Roberto Mitra was never there. Only Feliciano and his
men were.
True, it was petitioner who sent Feliciano to private respondent's gasoline station in conduct the
hydro-pressure test as per the request of private respondent herself. But this single act did not
automatically make Feliciano an employee of petitioner. As discussed earlier, more than mere hiring
is required. It must further be established that petitioner is the one who is paying Felicia's salary on a
regular basis; that it has the power to dismiss said employee, and more importantly, that petitioner
has control and supervision over the work of Feliciano. The last requisite was sorely missing in the
instant case.
A careful perusal of the records will lead to the conclusion that Feliciano is an independent contractor.
Section 8 of Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code provides:

"Sec. 8. Job contracting. There is job contracting permissible under the Code if the following
conditions are met:
(1) The contractor carries on an independent business and undertakes the contract work on his own
account under his own responsibility according to his own manner and method, free from the control
and direction of his employer or principal in all matters connected with the performance of the work
except as to the results thereof; and
(2) The contractor has substantial capital or investment in the form of tools, equipment, machineries,
work premises, and other materials which are necessary in the conduct of his business."
Feliciano is independently maintaining a business under a duly registered business name, "JFS
Repair and Maintenance Service," and is duly registered with the Bureau of Domestic Trade. 7 He
does not enjoy a fixed salary but instead charges a lump sum consideration for every piece of work
he accomplishes. 8 If he is not able to finish his work, he does not get paid, as what happened in this
case. 9 Further, Feliciano utilizes his own tools and equipment and has a complement of workers.
Neither is he required to work on a regular basis. Instead, he merely awaits calls from clients such as
petitioner whenever repairs and maintenance services are requested. Moreover, Feliciano does not
exclusively service petitioner because he can accept other business but not from other oil companies.
10 All these are the hallmarks of an independent contractor.
Being an independent contractor, Feliciano is responsible for his own acts and omissions. As he
alone was in control over the manner of how he was to undertake the hydro-pressure test, he alone
must bear the consequences of his negligence, if any, in the conduct of the same.
Anent the issue of damages, the same has been rendered moot by the failure of private respondent
to establish an employer-employee relationship between petitioner and Feliciano. Absent said
relationship, petitioner cannot be held liable for the acts and omissions of the independent contractor,
Feliciano.
WHEREFORE, premises considered, the appealed decision of respondent Court of Appeals is hereby
SET ASIDE and the decision of the trial court REINSTATED. Without pronouncement as to costs.
CARTICIANO VS NUVAL
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 Certiorari[1] under Rule 45 of the Rules of Court,
assailing the November 10, 1999 Decision[2] of the Court of Appeals (CA)[3] in CA-GR CV No.
52316, which disposed as follows:

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 defendantappellant Nuval. Defendant-appellant Nuval is hereby absolved of any civil liability and the complaint
against him is hereby DISMISSED.[4]
On the other hand, the trial court[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:
1) The amount of P160,715.19 as actual damage for the medical treatment so far of plaintiff Zacarias
Carticiano;2) The amount of P100,000.00 to compensate the income and opportunities plaintiff
Zacarias lost as a result of the incident;3) The amount of P173,788.00 for the damages sustained by
the Ford Laser;4) The amount of P200,000.00 as moral damages;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 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.[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.[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.[8]
Petitioners present the following issues:
A. Whether or not Defendant Darwin was in fact an employee of Defendant Nuval;
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 ownertype 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.[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[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.[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: Did you ask among your employees who gave the key to Darwin?
Mario Nuval: 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.[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.
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.
Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company.
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.
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.[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 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.
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.[14] Respondent failed to show that he had satisfactorily discharged this burden.
No Proof of Contributory Negligence
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.[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
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.[16]
The Civil Code allows indemnification for lost profit or income,[17] but petitioners failed to adduce
sufficient proof of such loss.
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:
xxxxxxxxx
(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.
Exemplary damages and attorneys fees are likewise authorized by the following provisions of the
Civil Code:
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.[18]

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.
VIRON CASE
This is a petition for review on certiorari which seeks to reverse and set aside: (1) the decision of the
Court of Appeals[1] promulgated on October 27, 1998 in CA-G.R. CV No. 54080 entitled Viron
Transportation Co., Inc. vs. Alberto delos Santos and Rudy Samidan affirming the decision of the
Regional Trial Court of Manila[2] in Civil Case No. 93-67283 and (2) the resolution of the Court of
Appeals promulgated on April 14, 1999 denying the motion for reconsideration.
The said civil case is an action to recover damages based on quasi-delict filed as a result of a
vehicular accident in the afternoon of August 16, 1993 between a passenger bus owned by petitioner
Viron Transportation Co., Inc. and a Forward Cargo Truck owned by private respondent Rudy
Samidan.
The conflicting versions of the accident were summarized by the trial court and adopted by the Court
of Appeals in the assailed decision. The version of petitioner is as follows:
Plaintiff, a public utility transportation company, is the registered owner of Viron Transit Bus No.
1080, with Plate No. TB-AVC-332; while the defendant Rudy Samidan is the registered owner of the
Forward Cargo Truck with Plate No. TDY-524 which, at the time of the vehicular accident in question,
was driven and operated by the defendant Alberto delos Santos y Natividad. On August 16, 1993, at
around 2:30 in the afternoon, the aforesaid bus was driven by plaintiffs regular driver Wilfredo
Villanueva along MacArthur Highway within the vicinity of Barangay Parsolingan, Gerona, Tarlac
coming from the North en route to its destination in Manila. It was following the Forward Cargo Truck
proceeding from the same direction then being driven, as aforesaid, by the defendant Alberto delos
Santos. The cargo truck swerved to the right shoulder of the road and, while about to be overtaken
by the bus, again swerved to the left to occupy its lane. It was at that instance that the collision
occurred, the left front side of the truck collided with the right front side of the bus causing the two
vehicles substantial damages.[3]
On the other hand, the version of private respondents is as follows:
Defendant Alberto delos Santos was the driver of defendant Rudy Samidan of the latters vehicle, a
Forward Cargo Truck with Plate No. TDY-524, on that fateful day in question. At about 12:30 in the
afternoon of August 16, 1993, he was driving said truck along the National Highway within the vicinity
of Barangay Parsolingan, Gerona, Tarlac. The Viron bus with Body No. 1080 and Plate No., TB-AVC332, driven by Wilfredo Villanueva y Gaudia, tried to overtake his truck, and he swerved to the right
shoulder of the highway, but as soon as he occupied the right lane of the road, the cargo truck which

he was driving was hit by the Viron bus on its left front side, as the bus swerved to his lane to avoid
an incoming bus on its opposite direction. With the driver of another truck dealing likewise in
vegetables, Dulnuan, the two of them and the driver of the Viron bus proceeded to report the incident
to the Gerona Police Station. A Vehicular Traffic Report was prepared by the police (See Exhibit D),
with a Sketch of the relative positions of the circumstances leading to the vehicular collision. x x x.[4]
After trial, the lower court dismissed petitioners complaint and sustained the private respondents
counterclaim for damages. It ordered the petitioner to pay the following amounts:
1. P19,500.00, with interest thereon at 6% per annum from the date of complaint, as actual
damages, until the same shall have been fully paid and satisfied;2. P10,000.00 as additional
compensatory damages for transportation and accommodations during the trial of this case;3.
P10,000.00 for and as attorneys fees; and4. Costs of suit.[5]
Not satisfied therewith, petitioner appealed to the Court of Appeals which as mentioned at the outset
affirmed in toto the decision of the lower court. Its motion for reconsideration having been denied,
petitioner came to us claiming that the Court of Appeals gravely erred
a) IN FINDING THAT THE ACCIDENT WAS DUE TO THE FAULT OF THE PETITIONERS
DRIVER;
b) IN FINDING THE PETITIONER LIABLE FOR DAMAGES WHEN THE COUNTERCLAIM
FAILED TO STATE A CAUSE OF ACTION FOR THERE IS NO AVERMENT WHATSOEVER
THEREIN THAT SAID PETITIONER FAILED TO EXERCISE DUE DILIGENCE OF A GOOD FATHER
OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS DRIVERS OR EMPLOYEES;
c) IN AWARDING COMPENSATORY OR ACTUAL DAMAGES AS WELL AS, TRAVELLING
EXPENSES AND ATTORNEYS FEES WHEN THE SAME WERE NOT SUBSTANTIATED OR
BUTTRESSED BY THE EVIDENCE ON RECORD;
d) IN AFFIRMING THE DECISION OF THE COURT A QUO DENYING PETITIONERS MOTION
TO PRESENT REBUTTAL EVIDENCE.[6]
We resolved to give due course to the petition and required the parties to submit their respective
memoranda after due consideration of the allegations, issues and arguments adduced in the petition,
the comment thereon by the private respondents, and the reply to the comment filed by the petitioner.
The petitioner and private respondents filed their respective memoranda in due time.
The first imputed error is without merit. Petitioner endeavors to have this Court review the factual
findings of the trial court as sustained by the Court of Appeals finding the driver of the Viron
passenger bus at fault as the collision resulted from the latters failed attempt to overtake the cargo
truck.
We are unable to sustain petitioners contention. The rule is settled that the findings of the trial court
especially when affirmed by the Court of Appeals, are conclusive on this Court when supported by the
evidence on record.[7] The Supreme Court will not assess and evaluate all over again the evidence,

testimonial and documentary adduced by the parties to an appeal particularly where, such as here,
the findings of both the trial court and the appellate court on the matter coincide.[8] Indeed, petitioner
has failed to show compelling grounds for a reversal of the following findings and conclusions of the
trial court and the Court of Appeals:
There is no doubt whatsoever, in the mind of the Court, on the basis of the documentary evidence
(Exhibits D, 4 and 5) and the testimonies of the witnesses, that the vehicular collision was due to
the negligence of plaintiffs regular driver, Wilfredo Villanueva y Gaudia, at that time. The cargo truck
was on its proper lane at the time of the collision. In fact, the cargo truck even swerved to the right
shoulder of the road to give much room for the Viron bus to pass. Notwithstanding the condition of
the road and the in-coming Dagupan Bus from the opposite direction, the Viron bus nonetheless
proceeded to overtake the cargo truck, bringing about the collision. The evidence is uniform as to
that fact. Indeed, no witnesses for the plaintiff ever contradicted the obtrusive fact that it was while in
the process of overtaking the cargo truck that the Viron bus collided with the former vehicle.
It is here well to recall that the driver of an overtaking vehicle must see to it that the conditions are
such that an attempt to pass is reasonably safe and prudent, and in passing must exercise
reasonable care. In the absence of clear evidence of negligence on the part of the operator of the
overtaken vehicle, the courts are inclined to put the blame for an accident occurring while a passage
is being attempted on the driver of the overtaking vehicle (People vs. Bolason, (C.A.) 53 Off. Gaz.
4158). As already intimated elsewhere in this judgment, no evidence was presented by the plaintiff to
even intimate at the negligence of the driver of the cargo truck.[9]
It is plain to see that the fault or negligence was attributable to the driver of the Viron passenger bus.
Petitioner proceeds to attack, albeit feebly, the credibility of the two witnesses presented by private
respondents, namely, Alberto delos Santos himself, who was then the driver of the Forward Cargo
Truck and a certain Manuel Dulnuan, who was then travelling along the same highway coming from
the opposite direction when the accident occurred. According to petitioner, the two witnesses
contradicted each other when witness Dulnuan testified that the petitioners passenger bus while
attempting to overtake the respondents truck, noticed the Dagupan passenger bus coming from the
opposite direction and to avoid hitting said passenger bus, the Viron Transit passenger bus swerved
to the right, hitting in the process the front left side portion of the respondents truck; while, witness
Alberto delos Santos testified that prior to the accident, he swerved his truck to the right shoulder of
the road (western lane) and when he attempted to return to his lane, the accident happened.
Contrary to petitioners assertion, the testimonies of the two witnesses complement, if not corroborate
each other. The Viron passenger bus collided with the cargo truck in a vain attempt to overtake the
latter. At the sight of an oncoming bus in the opposite direction, the Viron passenger bus swerved to
the right lane which was then occupied by the cargo truck resulting in the collision of the two vehicles.
In reference to Alberto delos Santos testimony, the lower court pointed out that the said driver of the
cargo truck was on its proper lane at the time of impact, and even swerved earlier toward the right
shoulder of the road just to give room to the bus. In any event, it is doctrinally entrenched that the
assessment of the trial judge as to the issue of credibility binds the appellate court because he is in a
better position to decide the issue, having heard the witnesses and observed their deportment and
manner of testifying during the trial, except when the trial court has plainly overlooked certain facts of

substance and value, that, if considered, might affect the result of the case, or where the assessment
is clearly shown to be arbitrary.[10] Petitioner has not shown this case to fall under the exception.
The second imputed error is without merit either. Petitioner contends that private respondents
counterclaim failed to state a cause of action for there is no averment therein that petitioner failed to
exercise the diligence of a good father of a family in the selection and supervision of its drivers or
employees. It is to be noted that petitioner Viron Transportation Co., Inc., as the registered owner of
the bus involved in the subject vehicular accident originally brought the action for damages against
private respondents. Private respondents as defendants in the court a quo denied any liability and
filed instead a counterclaim for damages claiming that it was the driver of the bus who was at fault in
the operation of the bus. We find that the counterclaim of private respondents alleges the ultimate
facts constituting their cause of action. It is not necessary to state that petitioner was negligent in the
supervision or selection of its employees, as its negligence is presumed by operation of law. The
liability of the employer was explained in a case thus:
As employers of the bus driver, the petitioner is, under Article 2180 of the Civil Code, directly and
primary 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.
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 ones own acts or omissions, but
also for those of persons for whom one is responsible.
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
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the selection and supervision of
employees.[11]
In fine, when the employee causes damage due to his own negligence while performing his own
duties, there arises the juris tantum presumption that the employer is negligent, rebuttable only by
proof of observance of the diligence of a good father of a family.[12] Petitioner, through its witnesses,
namely, Danilo Azardon, a shop supervisor and Fernando Mallare, an administrative officer, failed to
rebut such legal presumption of negligence in the selection and supervision of employees, thus,
petitioner as the employer is responsible for damages, the basis of the liability being the relationship
of pater familias or on the employers own negligence.[13] Hence, with the allegations and

subsequent proof of negligence against the bus driver of petitioner, the lower courts correctly
adjudged petitioner liable for damages.
Be that as it may, it is too late in the day for petitioner to raise failure to state a cause of action as an
issue. Rule 9, Section 2 of the Rules of Court provides as a general rule that defenses and
objections not pleaded either in a motion to dismiss or in the answer are deemed waived. An
exception is made where there is a failure to state a cause of action which may be alleged in a later
pleading, if one is permitted, or by motion for judgment on the pleadings, or at the trial on the merits; x
x x. Applying said rule, petitioner is now barred from raising said issue, which it did only for the first
time in the Court of Appeals and subsequently before this Court. Petitioner did not raise the said
issue in a later pleading, i.e. answer to the counterclaim, or at any time during the trial.
The fourth imputed error is likewise without merit. The Court of Appeals committed no error in
declaring the case submitted for decision even without the testimony of petitioners rebuttal witness.
Petitioner has only itself to blame for its failure to present its rebuttal witness as the Court of Appeals
explained thus:
Appellants claim that the court a quo erred in not allowing it to present rebuttal evidence, thus
depriving it of its day in court is without merit. A review of the records would show that appellant was
given ample opportunity to present its rebuttal evidence but failed to so do. It was appellant itself
which sought the postponements and cancellations of the hearings, after its motion for the
presentation of rebuttal evidence had been granted.[14]
There is, however, merit in the third imputed error. We find that with respect to the award of
damages, an oversight was committed by the Court of Appeals. The Court of Appeals justified the
award of actual damages as follows:
In the case at bench, the award of actual damages cannot be said to be devoid of factual and legal
basis. Appellees were able to prove that damage had been suffered by the cargo truck, the amount
of which is shown in Exhibit 3, the estimate of repair expenses. Moreover, the picture of the damaged
cargo truck (Exh. 1), more or less, supports the amount of damage reflected in the repair estimate
(Exh. 3).
As to the award of attorneys fees, the Court finds the same just and reasonable. The award of
attorneys fees is proper where the acts and omissions of a party have compelled the other party to
litigate or incur expenses to protect his rights and such may be recovered when deemed by the court
as just and equitable, as in the case at bar. x x x.[15]
Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved
with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or
guesswork in determining the fact and amount of damages.[16] To justify an award of actual
damages, there must be competent proof of the actual amount of loss, credence can be given only to
claims which are duly supported by receipts.[17] Considering that the actual damages suffered by
private respondents were based only on a job estimate and a photo showing the damage to the truck,
there is absence of competent proof on the specific amounts of actual damages suffered. Neither

were the transportation and accommodation expenses during the trial supported by competent proof,
the lower court having relied merely on the unsubstantiated allegations of private respondents.
Nonetheless, in the absence of competent proof on the actual damages suffered, a party is entitled to
temperate damages. Article 2224 of the Civil Code provides that:
Art. 2224. Temperate or moderate damages, which are more than nominal but less than
compensatory damages, may be recovered when the court finds that some pecuniary loss has been
suffered but its amount can not, from the nature of the case, be proved with certainty.
There is no doubt that the damage sustained by private respondents' cargo truck was due to the fault
or negligence of petitioner's bus driver. The Court deems the amount of P10,000.00 to be reasonable
given the circumstances.[18]
With respect to the award of attorneys fees, there is likewise neither factual nor legal basis therefor.
This case does not fall under any of the instances found in Article 2208 of the Civil Code[19] for the
proper award of attorneys fees. The futility of petitioners resort to judicial action without more could
not be taken against it. It cannot be said that petitioner filed a clearly unfounded civil action against
the private respondents. A resort to judicial processes and a subsequent defeat therein are not per
se evidence of a clearly unfounded suit, this is in line with the policy that no penalty should be placed
on the right to litigate.[20]
WHEREFORE, the challenged decision of the Court of Appeals promulgated on October 27, 1998 in
CA-G.R. CV No. 54080 affirming that of the Regional Trial Court of Manila, Branch 55, is hereby
modified insofar as it awarded actual damages to private respondents Alberto delos Santos y
Natividad and Rudy Samidan in the amount of P19,500.00 and an additional P10,000.00 as expenses
for transportation and accommodation during the trial for lack of evidentiary bases therefor.
Considering the fact, however, that the cargo truck sustained damages due to the negligence or fault
of petitioner, the award of P10,000.00 in favor of private respondents as and for temperate damages
is in order. The award of P10,000.00 as attorneys fees is DELETED for reasons above-stated.
GREGORIO PESTAO and METRO CEBU AUTOBUS CORPORATION, petitioners, vs.Spouses
TEOTIMO SUMAYANG and PAZ C. SUMAYANG, respondents.
PANGANIBAN, J.:
Factual findings of the Court of Appeals, affirming those of the trial judge, are binding on this Court. In
quasi-delicts, such findings are crucial because negligence is largely a matter of evidence. In
computing an award for lost earning capacity, the life expectancy of the deceased, not that of the heir,
is used as basis.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the April
21, 1999 Decision and the August 6, 1999 Resolution of the Court of Appeals 1 (CA) in CA-GR CV No.
30289. The questioned Decision disposed as follows:

"WHEREFORE, premises considered, the instant appeal is hereby DENIED. The assailed
Decision of the lower court is hereby AFFIRMED with the aforesaid modification regarding the
award of death penalty."
The Resolution of August 6, 1999 denied reconsideration. 2
The Facts
The events leading to this Petition were summarized by the Court of Appeals as follows:
"It appears from the records that at around 2:00 o'clock [o]n the afternoon of August 9, 1986,
Ananias Sumayang was riding a motorcycle along the national highway in Ilihan, Tabagon,
Cebu. Riding with him was his friend Manuel Romagos. As they came upon a junction where
the highway connected with the road leading to Tabagon, they were hit by a passenger bus
driven by [Petitioner] Gregorio Pestao and owned by [Petitioner] Metro Cebu Autobus
Corporation (Metro Cebu, for brevity), which had tried to overtake them, sending the
motorcycle and its passengers hurtling upon the pavement. Both Ananias Sumayang and
Manuel Romagos were rushed to the hospital in Sogod, where Sumayang was pronounced
dead on arrival. Romagos was transferred to the Cebu Doctors' Hospital, but he succumbed to
his injuries the day after.
"Apart from the institution of criminal charges against Gregorio Pestao, [Respondents]
Teotimo and Paz Sumayang, as heirs of Ananias Sumayang, filed this civil action for damages
against Gregorio Pestao, as driver of the passenger bus that rammed the deceased's
motorcycle, Metro Cebu, as owner and operator of the said bus, and Perla Compania de
Seguros, as insurer of Metro Cebu. The case was docketed as Civil Case No. CEB-6108.
"On November 9, 1987, upon motion of [Petitioner] Pestao, Judge Pedro C. Son ordered the
consolidation of the said case with Criminal Case No. 10624, pending in Branch 16 of the
same Court, involving the criminal prosecution of Gregorio Pestao for [d]ouble [h]omicide thru
[r]eckless [i]mprudence. Joint trial of the two cases thereafter ensued, where the following
assertions were made:
'[Respondents] rely mainly on the testimonies of Ignacio Neis, Pat. Aquilino Dinoy and
Teotimo Sumayang, father of the deceased. Neis declared that he saw the incident
while he was sitting on a bench beside the highway; that both vehicles c[a]me from the
North; that as the motorcycle approached the junction to Tab[a]gon, the driver Ananias
Sumayang signalled with his left arm to indicate that he was taking the Tab[a]gon Road;
that the motorcycle did turn left but as it did so, it was bumped by an overspeeding bus;
that the force of the impact threw Ananias Sumayang and his companion Manuel
Romagos about 14 meters away. The motorcycle, Neis continued, was badly damaged
as it was dragged by the bus.
'On the other hand, Pat. Dinoy testified that he was in the nearby house of Ruben Tiu
[when] he heard the sound or noise caused by the collision; that he immediately went to
the scene where he found Ananias Sumayang and Manuel Romagos lying on the road

bleeding and badly injured; that he requested the driver of a PU vehicle to take them to
a hospital; that he took note of the various distances which he included in his sketch
(Exh. J) that the probable point of impact was at the left lane of the highway and right at
the junction to Tab[a]gon (Exh J-11); that he based his conclusion on the 'scratches'
caused by the motorcycle's footrest on the asphalt pavement; that he described the
damage caused to the motorcycle in his sketch (Exh J); that on the part of the bus, the
right end of its front bumper was bent and the right portion of the radiator grill was
dented. Pat. Dinoy acknowledged that he met at the scene Ignacio Neis who informed
him that he saw the incident.
'On the contrary, Pestao blamed Sumayang for the accident. He testified that when he
first blew the horn the motorcycle which was about 15 or 20 meters ahead went to the
right side of the highway that he again blew the horn and accelerated in order to
overtake the motorcycle; that when he was just one meter behind, the motorcycle
suddenly turned left towards the Tab[a]gon [R]oad and was bumped by his bus; that he
was able to apply his break only after the impact. Pestao's testimony was corroborated
by Ireneo Casilia who declared that he was one of the passengers of the bus; that the
motorcycle suddenly turned left towards Tab[a]gon [R]oad without giving any signal to
indicate its maneuver; that the bus was going at 40 kph when the accident occurred.
'To substantiate its defense of bonos pater familias [petitioner] [c]orporation recalled to
the witness box Gregorio Pestao who explained how his driving experience and ability
were tested by the company before he was hired. He further declared that the
management gave regular lectures to drivers and conductors touching on various topics
like speeding, parking, loading and treatment of passengers, and that before he took to
the road at 2:30 AM of that day he checked together with the mechanic the tires, brake,
signal lights as well as the tools to be brought along. He did the same thing before
commencing his return trip from Hagnaya, San Remegio later in the day.
'The corporation also presented its maintenance supervisor, Agustin Pugeda, Jr., and its
manager, Alfonso Corominas, Jr. who corroborated Pestao's testimony that his driving
ability was thoroughly tested, and that all drivers underwent periodic lecture on various
aspects of safety driving including pertinent traffic regulations. They also confirmed the
thorough checkup of every vehicle before it would depart and that the performance of
the drivers was being monitored by several inspectors posted at random places along
the route.'
"In judgment, the lower court found [petitioners] liable to the [respondents], in the amounts of
P30,000.00 for death indemnity, P829,079 for loss of earning capacity of the deceased
Ananias Sumayang, and P36,000.00 for necessary interment expenses. The liability of
defendant Perla Compania de Seguros, Inc., however, was limited only to the amount
stipulated in the insurance policy, which [was] P12,000 for death indemnity and P4,500.00 for
burial expenses.
"In so ruling, the lower court found [Petitioner] Pestao to have been negligent in driving the
passenger bus that hit the deceased. It was shown that Pestao negligently attempted to

overtake the motorcycle at a dangerous speed as they were coming upon a junction in the
road, and as the motorcycle was about to turn left towards Tabagon. The court likewise found
Metro Cebu directly and primarily liable, along with Pestao, the latter's employer under Article
2180 of the Civil Code, as [Petitioner] Metro Cebu failed to present evidence to prove that it
had observed . . . [the] diligence of a good father of a family to prevent damage. Nor has Metro
Cebu proven that it had exercised due diligence in the supervision of its employees and in the
maintenance of vehicles."3
Ruling of the Court of Appeals
The CA affirmed respondent's liability for the accident and for Sumayang's death. Pestao was
negligent when he tried to overtake the victim's motorcycle at the Tabagon junction. As a professional
driver operating a public transport vehicle, he should have taken extra precaution to avoid accidents,
knowing that it was perilous to overtake at a junction, where adjoining roads had brought about
merging and diverging traffic.
The appellate court opined that Metro Cebu had shown laxity in the conduct of its operations and in
the supervision of its employees. By allowing the bus to ply its route despite the defective
speedometer, said petitioner showed its indifference towards the proper maintenance of its vehicles.
Having failed to observe the extraordinary diligence required of public transportation companies, it
was held vicariously liable to the victims of the vehicular accident.
In accordance with prevailing jurisprudence, the CA raised to P50,000 the granted indemnity for the
death of the victim. It also affirmed the award of loss of earning capacity based on his life expectancy.
Such liability was assessed, not as a pension for the claiming heirs, but as a penalty and an
indemnity for the driver's negligent act.
Hence, this Petition.4
Issues
Petitioners submit the following issues5 for our consideration:
1) The Court of Appeals misapplied facts of weight and substance affecting the result of the
case.
2) The Court of Appeals misapplied R.A. 4136 as regards the behavior of the deceased at the
time of the accident.
3) The Court of Appeals erred in ruling that the award of damages representing income that
deceased could have earned be considered a penalty.
4) The Court of Appeals, contrary to Article 2204, Civil Code, raised the award of P30,000.00
damages representing indemnity for death to P50,000.00.

5) The Court of Appeals used as basis for the loss of earning capacity, the life expectancy of
the [d]eceased instead of that of the respondents which was shorter." 6
In short, they raise these questions: whether the CA erred (1) in applying Section 45 of RA 4136 when
it ruled that negligence in driving was the proximate cause of the accident; (2) in increasing the civil
indemnity from P30,000 to P50,000; and (3) in using the life expectancy of the deceased instead of
the life expectancies of respondents.
The Court's Ruling
The Petition has no merit.
First Issue: Negligence
Petitioners contend that Pestao was not under any obligation to slow down when he overtook the
motorcycle, because the deceased had given way to him upon hearing the bus horn. Seeing that the
left side of the road was clearly visible and free of oncoming traffic, Pestao accelerated his speed to
pass the motorcycle. Having given way to the bus, the motorcycle driver should have slowed down
until he had been overtaken.
They further contend that the motorcycle was not in the middle of the road nearest to the junction as
found by the trial and the appellate courts, but was on the inner lane. This explains why the damage
on the bus were all on the right side - the right end of the bumper and the right portion of the radiator
grill were bent and dented. Hence, they insist that it was the victim who was negligent.
We disagree. Petitioners are raising a question of fact based on Pestao's testimony contradicting
that of Eyewitness Ignacio Neis and on the location of the dents on the bumper and the grill. Neis
testified that as the two vehicles approached the junction, the victim raised his left arm to signal that
he was turning left to Tabagon, but that the latter and his companion were thrown off the motorcycle
after it was bumped by the overspeeding bus.
These contentions have already been passed upon by the trial and the appellate courts. We find no
cogent reason to reverse or modify their factual findings. The CA agreed with the trial court that the
vehicular collision was caused by Pestao's negligence when he attempted to overtake the
motorcycle. As a professional driver operating a public transport bus, he should have anticipated that
overtaking at a junction was a perilous maneuver and should thus have exercised extreme caution.
Factual findings of the CA affirming those of the trial court are conclusive and binding on this Court.
Petitioners failed to demonstrate that this case falls under any of the recognized exceptions to this
rule.7 Indeed, the issue of negligence is basically factual and, in quasi-delicts, crucial in the award of
damages.
Petitioners aver that the CA was wrong in attributing the accident to a faulty speedometer and in
implying that the accident could have been avoided had this instrument been properly functioning.

This contention has no factual basis. Under Articles 2180 and 2176 of the Civil Code, owners and
managers are responsible for damages caused by their employees. When an injury is caused by the
negligence of a servant or an employee, the master or employer is presumed to be negligent either in
the selection or in the supervision of that employee. This presumption may be overcome only by
satisfactorily showing that the employer exercised the care and the diligence of a good father of a
family in the selection and the supervision of its employee. 8
The CA said that allowing Pestao to ply his route with a defective speedometer showed laxity on the
part of Metro Cebu in the operation of its business and in the supervision of its employees. The
negligence alluded to here is in its supervision over its driver, not in that which directly caused the
accident. The fact that Pestao was able to use a bus with a faulty speedometer shows that Metro
Cebu was remiss in the supervision of its employees and in the proper care of its vehicles. It had thus
failed to conduct its business with the diligence required by law.
Second Issue: Life Indemnity
Petitioners aver that the CA erred in increasing the award for life indemnity from P30,000 to P50,000,
without specifying any aggravating circumstance to justify the increment as provided in the Civil
Code.9
This contention is untenable. The indemnity for death caused by a quasi-delict used to be pegged at
P3,000, based on Article 2206 of the Civil Code. However, the amount has been gradually increased
through the years because of the declining value of our currency. At present, prevailing jurisprudence
fixes the amount at P50,000.10
Third Issue: Loss of Earning Capacity
Petitioners cite Villa Rey Transit, Inc. v. Court of Appeals, 11 which held:
"The determination of the indemnity to be awarded to the heirs of a deceased person has therefore
no fixed basis. . . . The life expectancy of the deceased or of the beneficiary, whichever is shorter, is
an important factor . . . "
They contend that the CA used the wrong basis for its computation of earning capacity.
We disagree. The Court has consistently computed the loss of earning capacity based on the life
expectancy of the deceased,12 and not on that of the heir.13 Even Villa Rey Transit did likewise.
The award for loss of earning capacity is based on two factors: (1) the number of years on which the
computation of damages is based and (2) the rate at which the loss sustained by the heirs is
fixed.14 The first factor refers to the life expectancy, which takes into consideration the nature of the
victim's work, lifestyle, age and state of health prior to the accident. The second refers to the victim's
earning capacity minus the necessary living expenses. Stated otherwise, the amount recoverable is
that portion of the earnings of the deceased which the beneficiary would have received the net
earnings of the deceased.15

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Cost
against petitioners
G.R. No. 141538

March 23, 2004

HERMANA
vs.
DAVID TUAZON, respondent.

R.

CEREZO, petitioner,

DECISION

CARPIO, J.:
The Case
This is a petition for review on certiorari1 to annul the Resolution2 dated 21 October 1999 of the Court
of Appeals in CA-G.R. SP No. 53572, as well as its Resolution dated 20 January 2000 denying the
motion for reconsideration. The Court of Appeals denied the petition for annulment of the
Decision3 dated 30 May 1995 rendered by the Regional Trial Court of Angeles City, Branch 56 ("trial
court"), in Civil Case No. 7415. The trial court ordered petitioner Hermana R. Cerezo ("Mrs. Cerezo")
to pay respondent David Tuazon ("Tuazon") actual damages, loss of earnings, moral damages, and
costs of suit.
Antecedent Facts
Around noontime of 26 June 1993, a Country Bus Lines passenger bus with plate number NYA 241
collided with a tricycle bearing plate number TC RV 126 along Captain M. Palo Street, Sta. Ines,
Mabalacat, Pampanga. On 1 October 1993, tricycle driver Tuazon filed a complaint for damages
against Mrs. Cerezo, as owner of the bus line, her husband Attorney Juan Cerezo ("Atty. Cerezo"),
and bus driver Danilo A. Foronda ("Foronda"). The complaint alleged that:
7. At the time of the incident, plaintiff [Tuazon] was in his proper lane when the second-named
defendant [Foronda], being then the driver and person in charge of the Country Bus with plate
number NYA 241, did then and there willfully, unlawfully, and feloniously operate the said motor
vehicle in a negligent, careless, and imprudent manner without due regard to traffic rules and
regulations, there being a "Slow Down" sign near the scene of the incident, and without taking
the necessary precaution to prevent loss of lives or injuries, his negligence, carelessness and
imprudence resulted to severe damage to the tricycle and serious physical injuries to plaintiff
thus making him unable to walk and becoming disabled, with his thumb and middle finger on
the left hand being cut[.]4
On 1 October 1993, Tuazon filed a motion to litigate as a pauper. Subsequently, the trial court issued
summons against Atty. Cerezo and Mrs. Cerezo ("the Cerezo spouses") at the Makati address stated
in the complaint. However, the summons was returned unserved on 10 November 1993 as the
Cerezo spouses no longer held office nor resided in Makati. On 18 April 1994, the trial court issued

alias summons against the Cerezo spouses at their address in Barangay Sta. Maria, Camiling, Tarlac.
The alias summons and a copy of the complaint were finally served on 20 April 1994 at the office of
Atty. Cerezo, who was then working as Tarlac Provincial Prosecutor. Atty. Cerezo reacted angrily on
learning of the service of summons upon his person. Atty. Cerezo allegedly told Sheriff William
Canlas: "Punyeta, ano ang gusto mong mangyari? Gusto mong hindi ka makalabas ng buhay dito?
Teritoryo ko ito. Wala ka sa teritoryo mo."5
The records show that the Cerezo spouses participated in the proceedings before the trial court. The
Cerezo spouses filed a comment with motion for bill of particulars dated 29 April 1994 and a reply to
opposition to comment with motion dated 13 June 1994. 6 On 1 August 1994, the trial court issued an
order directing the Cerezo spouses to file a comment to the opposition to the bill of particulars. Atty.
Elpidio B. Valera ("Atty. Valera") of Valera and Valera Law Offices appeared on behalf of the Cerezo
spouses. On 29 August 1994, Atty. Valera filed an urgent ex-parte motion praying for the resolution of
Tuazons motion to litigate as a pauper and for the issuance of new summons on the Cerezo spouses
to satisfy proper service in accordance with the Rules of Court. 7
On 30 August 1994, the trial court issued an order resolving Tuazons motion to litigate as a pauper
and the Cerezo spouses urgent ex-parte motion. The order reads:
At the hearing on August 30, 1994, the plaintiff [Tuazon] testified that he is presently jobless;
that at the time of the filing of this case, his son who is working in Malaysia helps him and
sends him once in a while P300.00 a month, and that he does not have any real property.
Attached to the Motion to Litigate as Pauper are his Affidavit that he is unemployed; a
Certification by the Barangay Captain of his poblacion that his income is not enough for his
familys subsistence; and a Certification by the Office of the Municipal Assessor that he has no
landholding in the Municipality of Mabalacat, Province of Pampanga.
The Court is satisfied from the unrebutted testimony of the plaintiff that he is entitled to
prosecute his complaint in this case as a pauper under existing rules.
On the other hand, the Court denies the prayer in the Appearance and Urgent Ex-Parte Motion
requiring new summons to be served to the defendants. The Court is of the opinion that any
infirmity in the service of the summons to the defendant before plaintiff was allowed to
prosecute his complaint in this case as a pauper has been cured by this Order.
If within 15 days from receipt of this Order, the defendants do not question on appeal this
Order of this Court, the Court shall proceed to resolve the Motion for Bill of Particulars. 8
On 27 September 1994, the Cerezo spouses filed an urgent ex-parte motion for reconsideration. The
trial court denied the motion for reconsideration.
On 14 November 1994, the trial court issued an order directing the Cerezo spouses to file their
answer within fifteen days from receipt of the order. The Cerezo spouses did not file an answer. On
27 January 1995, Tuazon filed a motion to declare the Cerezo spouses in default. On 6 February
1995, the trial court issued an order declaring the Cerezo spouses in default and authorizing Tuazon
to present his evidence. 9
On 30 May 1995, after considering Tuazons testimonial and documentary evidence, the trial court
ruled in Tuazons favor. The trial court made no pronouncement on Forondas liability because there
was no service of summons on him. The trial court did not hold Atty. Cerezo liable as Tuazon failed to
show that Mrs. Cerezos business benefited the family, pursuant to Article 121(3) of the Family Code.
The trial court held Mrs. Cerezo solely liable for the damages sustained by Tuazon arising from the

negligence of Mrs. Cerezos employee, pursuant to Article 2180 of the Civil Code. The dispositive
portion of the trial courts decision reads:
WHEREFORE, judgment is hereby rendered ordering the defendant Hermana Cerezo to pay
the plaintiff:

a) For Actual Damages

- P69,485.35

1) Expenses for operation and medical

Treatment

2) Cost of repair of the tricycle

b) For loss of earnings

- 39,921.00

c) For moral damages

- 43,300.00

d) And to pay the cost of the suit.

- 20,000.00

The docket fees and other expenses in the filing of this suit shall be lien on whatever judgment
may be rendered in favor of the plaintiff.
SO ORDERED.10
Mrs. Cerezo received a copy of the decision on 25 June 1995. On 10 July 1995, Mrs. Cerezo filed
before the trial court a petition for relief from judgment on the grounds of "fraud, mistake or excusable
negligence." Testifying before the trial court, both Mrs. Cerezo and Atty. Valera denied receipt of
notices of hearings and of orders of the court. Atty. Valera added that he received no notice before or
during the 8 May 1995 elections, "when he was a senatorial candidate for the KBL Party, and very
busy, using his office and residence as Party National Headquarters." Atty. Valera claimed that he was
able to read the decision of the trial court only after Mrs. Cerezo sent him a copy.11
Tuazon did not testify but presented documentary evidence to prove the participation of the Cerezo
spouses in the case. Tuazon presented the following exhibits:
Exhibit 1

Exhibit 1-A -

Sheriffs return and summons;

Alias summons dated April 20, 1994;

Exhibit 2

Comment with Motion;

Exhibit 3

Minutes of the hearing held on August 1, 1994;

Exhibit 3-A -

Signature of defendants counsel;

Exhibit 4

Minutes of the hearing held on August 30, 1994;

Exhibit 4-A -

Signature of the defendants counsel;

Exhibit 5

Appearance and Urgent Ex-Parte Motion;

Exhibit 6

Order dated November 14, 1994;

Exhibit 6-A -

Postal certification dated January 13, 1995;

Exhibit 7

Order dated February [illegible];

Exhibit 7-A -

Courts return slip addressed to Atty. Elpidio Valera;

Exhibit 7-B -

Courts return slip addressed to Spouses Juan and Hermana

Cerezo;

Exhibit 8

Decision dated May [30], 1995

Exhibit 8-A -

Courts return slip addressed to defendant Hermana Cerezo;

Exhibit 8-B -

Courts return slip addressed to defendants counsel, Atty. Elpidio

Valera;

Exhibit 9

Order dated September 21, 1995;

Exhibit 9-A -

Second Page of Exhibit 9;

Exhibit 9-B -

Third page of Exhibit 9;

Exhibit 9-C -

Fourth page of Exhibit 9;

Exhibit 9-D -

Courts return slip addressed to Atty. Elpidio Valera;

and

Exhibit 9-E -

Courts return slip addressed to plaintiffs counsel, Atty. Norman

Dick de Guzman.12

On 4 March 1998, the trial court issued an order 13 denying the petition for relief from judgment. The
trial court stated that having received the decision on 25 June 1995, the Cerezo spouses should have
filed a notice of appeal instead of resorting to a petition for relief from judgment. The trial court
refused to grant relief from judgment because the Cerezo spouses could have availed of the remedy
of appeal. Moreover, the Cerezo spouses not only failed to prove fraud, accident, mistake or
excusable negligence by conclusive evidence, they also failed to prove that they had a good and
substantial defense. The trial court noted that the Cerezo spouses failed to appeal because they
relied on an expected settlement of the case.
The Cerezo spouses subsequently filed before the Court of Appeals a petition for certiorari under
Section 1 of Rule 65. The petition was docketed as CA-G.R. SP No. 48132. 14 The petition questioned
whether the trial court acquired jurisdiction over the case considering there was no service of
summons on Foronda, whom the Cerezo spouses claimed was an indispensable party. In a
resolution15 dated 21 January 1999, the Court of Appeals denied the petition for certiorari and
affirmed the trial courts order denying the petition for relief from judgment. The Court of Appeals
declared that the Cerezo spouses failure to file an answer was due to their own negligence,
considering that they continued to participate in the proceedings without filing an answer. There was
also nothing in the records to show that the Cerezo spouses actually offered a reasonable settlement
to Tuazon. The Court of Appeals also denied Cerezo spouses motion for reconsideration for lack of
merit.
The Cerezo spouses filed before this Court a petition for review on certiorari under Rule 45. Atty.
Cerezo himself signed the petition, docketed as G.R. No. 137593. On 13 April 1999, this Court
rendered a resolution denying the petition for review on certiorari for failure to attach an affidavit of
service of copies of the petition to the Court of Appeals and to the adverse parties. Even if the petition
complied with this requirement, the Court would still have denied the petition as the Cerezo spouses
failed to show that the Court of Appeals committed a reversible error. The Courts resolution was
entered in the Book of Entries and Judgments when it became final and executory on 28 June 1999. 16

Undaunted, the Cerezo spouses filed before the Court of Appeals on 6 July 1999 a petition for
annulment of judgment under Rule 47 with prayer for restraining order. Atty. Valera and Atty. Dionisio
S. Daga ("Atty. Daga") represented Mrs. Cerezo in the petition, docketed as CA-G.R. SP No.
53572.17 The petition prayed for the annulment of the 30 May 1995 decision of the trial court and for
the issuance of a writ of preliminary injunction enjoining execution of the trial courts decision pending
resolution of the petition.
The Court of Appeals denied the petition for annulment of judgment in a resolution dated 21 October
1999. The resolution reads in part:
In this case, records show that the petitioner previously filed with the lower court a Petition for
Relief from Judgment on the ground that they were wrongfully declared in default while waiting
for an amicable settlement of the complaint for damages. The court a quo correctly ruled that
such petition is without merit. The defendant spouses admit that during the initial hearing they
appeared before the court and even mentioned the need for an amicable settlement. Thus, the
lower court acquired jurisdiction over the defendant spouses.
Therefore, petitioner having availed of a petition for relief, the remedy of an annulment of
judgment is no longer available. The proper action for the petitioner is to appeal the order of
the lower court denying the petition for relief.
Wherefore, the instant petition could not be given due course and should accordingly be
dismissed.
SO ORDERED.18
On 20 January 2000, the Court of Appeals denied the Cerezo spouses motion for
reconsideration.19 The Court of Appeals stated:
A distinction should be made between a courts jurisdiction over a person and its jurisdiction
over the subject matter of a case. The former is acquired by the proper service of summons or
by the parties voluntary appearance; while the latter is conferred by law.
Resolving the matter of jurisdiction over the subject matter, Section 19(1) of B[atas]
P[ambansa] 129 provides that Regional Trial Courts shall exercise exclusive original
jurisdiction in all civil actions in which the subject of the litigation is incapable of pecuniary
estimation. Thus it was proper for the lower court to decide the instant case for damages.
Unlike jurisdiction over the subject matter of a case which is absolute and conferred by law;
any defects [sic] in the acquisition of jurisdiction over a person (i.e., improper filing of civil
complaint or improper service of summons) may be waived by the voluntary appearance of
parties.
The lower court admits the fact that no summons was served on defendant Foronda. Thus,
jurisdiction over the person of defendant Foronda was not acquired, for which reason he was
not held liable in this case. However, it has been proven that jurisdiction over the other
defendants was validly acquired by the court a quo.
The defendant spouses admit to having appeared in the initial hearings and in the hearing for
plaintiffs motion to litigate as a pauper. They even mentioned conferences where attempts
were made to reach an amicable settlement with plaintiff. However, the possibility of amicable

settlement is not a good and substantial defense which will warrant the granting of said
petition.
xxx
Assuming arguendo that private respondent failed to reserve his right to institute a separate
action for damages in the criminal action, the petitioner cannot now raise such issue and
question the lower courts jurisdiction because petitioner and her husband have waived such
right by voluntarily appearing in the civil case for damages. Therefore, the findings and the
decision of the lower court may bind them.
Records show that the petitioner previously filed with the lower court a Petition for Relief from
Judgment on the ground that they were wrongfully declared in default while waiting for an
amicable settlement of the complaint for damages. The court a quo correctly ruled that such
petition is without merit, jurisdiction having been acquired by the voluntary appearance of
defendant spouses.
Once again, it bears stressing that having availed of a petition for relief, the remedy of
annulment of judgment is no longer available.
Based on the foregoing, the motion for reconsideration could not be given due course and is
hereby DENIED.
SO ORDERED.20
The Issues
On 7 February 2000, Mrs. Cerezo, this time with Atty. Daga alone representing her, filed the present
petition for review on certiorari before this Court. Mrs. Cerezo claims that:
1. In dismissing the Petition for Annulment of Judgment, the Court of Appeals assumes that the
issues raised in the petition for annulment is based on extrinsic fraud related to the denied
petition for relief notwithstanding that the grounds relied upon involves questions of lack of
jurisdiction.
2. In dismissing the Petition for Annulment, the Court of Appeals disregarded the allegation that
the lower court[s] findings of negligence against defendant-driver Danilo Foronda [whom] the
lower court did not summon is null and void for want of due process and consequently, such
findings of negligence which is [sic] null and void cannot become the basis of the lower court to
adjudge petitioner-employer liable for civil damages.
3. In dismissing the Petition for Annulment, the Court of Appeals ignored the allegation that
defendant-driver Danilo A. Foronda whose negligence is the main issue is an indispensable
party whose presence is compulsory but [whom] the lower court did not summon.
4. In dismissing the Petition for Annulment, the Court of Appeals ruled that assuming arguendo
that private respondent failed to reserve his right to institute a separate action for damages in
the criminal action, the petitioner cannot now raise such issue and question the lower courts
jurisdiction because petitioner [has] waived such right by voluntarily appearing in the civil case
for damages notwithstanding that lack of jurisdiction cannot be waived. 21

The Courts Ruling

The petition has no merit. As the issues are interrelated, we shall discuss them jointly.
Remedies Available to a Party Declared in Default
An examination of the records of the entire proceedings shows that three lawyers filed and signed
pleadings on behalf of Mrs. Cerezo, namely, Atty. Daga, Atty. Valera, and Atty. Cerezo. Despite their
number, Mrs. Cerezos counsels failed to avail of the proper remedies. It is either by sheer ignorance
or by malicious manipulation of legal technicalities that they have managed to delay the disposition of
the present case, to the detriment of pauper litigant Tuazon.
Mrs. Cerezo claims she did not receive any copy of the order declaring the Cerezo spouses in
default. Mrs. Cerezo asserts that she only came to know of the default order on 25 June 1995, when
she received a copy of the decision. On 10 July 1995, Mrs. Cerezo filed before the trial court a
petition for relief from judgment under Rule 38, alleging "fraud, mistake, or excusable negligence" as
grounds. On 4 March 1998, the trial court denied Mrs. Cerezos petition for relief from judgment. The
trial court stated that Mrs. Cerezo could have availed of appeal as a remedy and that she failed to
prove that the judgment was entered through fraud, accident, mistake, or excusable negligence. Mrs.
Cerezo then filed before the Court of Appeals a petition for certiorari under Section 1 of Rule 65
assailing the denial of the petition for relief from judgment. On 21 January 1999, the Court of Appeals
dismissed Mrs. Cerezos petition. On 24 February 1999, the appellate court denied Mrs. Cerezos
motion for reconsideration. On 11 March 1999, Mrs. Cerezo filed before this Court a petition for
review on certiorari under Rule 45, questioning the denial of the petition for relief from judgment. We
denied the petition and our resolution became final and executory on 28 June 1999.
On 6 July 1999, a mere eight days after our resolution became final and executory, Mrs. Cerezo filed
before the Court of Appeals a petition for annulment of the judgment of the trial court under Rule 47.
Meanwhile, on 25 August 1999, the trial court issued over the objection of Mrs. Cerezo an order of
execution of the judgment in Civil Case No. 7415. On 21 October 1999, the Court of Appeals
dismissed the petition for annulment of judgment. On 20 January 2000, the Court of Appeals denied
Mrs. Cerezos motion for reconsideration. On 7 February 2000, Mrs. Cerezo filed the present petition
for review on certiorari under Rule 45 challenging the dismissal of her petition for annulment of
judgment.
Lina v. Court of Appeals22 enumerates the remedies available to a party declared in default:
a) The defendant in default may, at any time after discovery thereof and before judgment, file
a motion under oath to set aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable negligence, and that he has a
meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);
b) If the judgment has already been rendered when the defendant discovered the default, but
before the same has become final and executory, he may file a motion for new trial under
Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment has become final and executory,
he may file apetition for relief under Section 2 [now Section 1] of Rule 38; and
d) He may also appeal from the judgment rendered against him as contrary to the evidence or
to the law, even if no petition to set aside the order of default has been presented by him (Sec.
2, Rule 41). (Emphasis added)

Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the
trial court improperly declared a party in default, or even if the trial court properly declared a party in
default, if grave abuse of discretion attended such declaration. 23
Mrs. Cerezo admitted that she received a copy of the trial courts decision on 25 June 1995. Based
on this admission, Mrs. Cerezo had at least three remedies at her disposal: an appeal, a motion for
new trial, or a petition for certiorari.
Mrs. Cerezo could have appealed under Rule 41 24 from the default judgment within 15 days from
notice of the judgment. She could have availed of the power of the Court of Appeals to try cases and
conduct hearings, receive evidence, and perform all acts necessary to resolve factual issues raised in
cases falling within its appellate jurisdiction.25
Mrs. Cerezo also had the option to file under Rule 37 26 a motion for new trial within the period for
taking an appeal. If the trial court grants a new trial, the original judgment is vacated, and the action
will stand for trial de novo. The recorded evidence taken in the former trial, as far as the same is
material and competent to establish the issues, shall be used at the new trial without retaking the
same.27
Mrs. Cerezo also had the alternative of filing under Rule 65 28 a petition for certiorari assailing the
order of default within 60 days from notice of the judgment. An order of default is interlocutory, and an
aggrieved party may file an appropriate special civil action under Rule 65. 29 In a petition for certiorari,
the appellate court may declare void both the order of default and the judgment of default.
Clearly, Mrs. Cerezo had every opportunity to avail of these remedies within the reglementary periods
provided under the Rules of Court. However, Mrs. Cerezo opted to file a petition for relief from
judgment, which is availableonly in exceptional cases. A petition for relief from judgment should be
filed within the reglementary period of 60 days from knowledge of judgment and six months from
entry of judgment, pursuant to
Rule 38 of the Rules of Civil Procedure. 30 Tuason v. Court of Appeals 31 explained the nature of a
petition for relief from judgment:
When a party has another remedy available to him, which may either be a motion for new trial
or appeal from an adverse decision of the trial court, and he was not prevented by fraud,
accident, mistake or excusable negligence from filing such motion or taking such appeal, he
cannot avail himself of this petition. Indeed, relief will not be granted to a party who seeks
avoidance from the effects of the judgment when the loss of the remedy at law was due to his
own negligence; otherwise the petition for relief can be used to revive the right to appeal which
has been lost thru inexcusable negligence.
Evidently, there was no fraud, accident, mistake, or excusable negligence that prevented Mrs. Cerezo
from filing an appeal, a motion for new trial or a petition for certiorari. It was error for her to avail of a
petition for relief from judgment.
After our resolution denying Mrs. Cerezos petition for relief became final and executory, Mrs. Cerezo,
in her last ditch attempt to evade liability, filed before the Court of Appeals a petition for annulment of
the judgment of the trial court. Annulment is available only on the grounds of extrinsic fraud and lack
of jurisdiction. If based on extrinsic fraud, a party must file the petition within four years from its
discovery, and if based on lack of jurisdiction, before laches or estoppel bars the petition. Extrinsic
fraud is not a valid ground if such fraud was used as a ground, or could have been used as a ground,
in a motion for new trial or petition for relief from judgment. 32

Mrs. Cerezo insists that lack of jurisdiction, not extrinsic fraud, was her ground for filing the petition for
annulment of judgment. However, a party may avail of the remedy of annulment of judgment under
Rule 47 only if the ordinary remedies of new trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of the party. 33 Mrs. Cerezo could have
availed of a new trial or appeal but through her own fault she erroneously availed of the remedy of a
petition for relief, which was denied with finality. Thus, Mrs. Cerezo may no longer avail of the remedy
of annulment.
In any event, the trial court clearly acquired jurisdiction over Mrs. Cerezos person. Mrs. Cerezo
actively participated in the proceedings before the trial court, submitting herself to the jurisdiction of
the trial court. The defense of lack of jurisdiction fails in light of her active participation in the trial court
proceedings. Estoppel or laches may also bar lack of jurisdiction as a ground for nullity especially if
raised for the first time on appeal by a party who participated in the proceedings before the trial court,
as what happened in this case.34
For these reasons, the present petition should be dismissed for utter lack of merit. The extraordinary
action to annul a final judgment is restricted to the grounds specified in the rules. The reason for the
restriction is to prevent this extraordinary action from being used by a losing party to make a complete
farce of a duly promulgated decision that has long become final and executory. There would be no
end to litigation if parties who have unsuccessfully availed of any of the appropriate remedies or lost
them through their fault could still bring an action for annulment of judgment. 35 Nevertheless, we shall
discuss the issues raised in the present petition to clear any doubt about the correctness of the
decision of the trial court.
Mrs. Cerezos Liability and the Trial Courts Acquisition of Jurisdiction
Mrs. Cerezo contends that the basis of the present petition for annulment is lack of jurisdiction. Mrs.
Cerezo asserts that the trial court could not validly render judgment since it failed to acquire
jurisdiction over Foronda. Mrs. Cerezo points out that there was no service of summons on Foronda.
Moreover, Tuazon failed to reserve his right to institute a separate civil action for damages in the
criminal action. Such contention betrays a faulty foundation. Mrs. Cerezos contention proceeds from
the point of view of criminal law and not of civil law, while the basis of the present action of Tuazon is
quasi-delict under the Civil Code, not delict under the Revised Penal Code.
The same negligent act may produce civil liability arising from a delict under Article 103 of the
Revised Penal Code, or may give rise to an action for a quasi-delict under Article 2180 of the Civil
Code. An aggrieved party may choose between the two remedies. An action based on a quasi-delict
may proceed independently from the criminal action. 36 There is, however, a distinction between civil
liability arising from a delict and civil liability arising from a quasi-delict. The choice of remedy, whether
to sue for a delict or a quasi-delict, affects the procedural and jurisdictional issues of the action. 37
Tuazon chose to file an action for damages based on a quasi-delict. In his complaint, Tuazon alleged
that Mrs. Cerezo, "without exercising due care and diligence in the supervision and management of
her employees and buses," hired Foronda as her driver. Tuazon became disabled because of
Forondas "recklessness, gross negligence and imprudence," aggravated by Mrs. Cerezos "lack of
due care and diligence in the selection and supervision of her employees, particularly Foronda." 38
The trial court thus found Mrs. Cerezo liable under Article 2180 of the Civil Code. Article 2180 states
in part:

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.
Contrary to Mrs. Cerezos assertion, Foronda is not an indispensable party to the case. An
indispensable party is one whose interest is affected by the courts action in the litigation, and without
whom no final resolution of the case is possible. 39 However, Mrs. Cerezos liability as an employer in
an action for a quasi-delict is not only solidary, it is also primary and direct. Foronda is not an
indispensable party to the final resolution of Tuazons action for damages against Mrs. Cerezo.
The responsibility of two or more persons who are liable for a quasi-delict is solidary. 40 Where there is
a solidary obligation on the part of debtors, as in this case, each debtor is liable for the entire
obligation. Hence, each debtor is liable to pay for the entire obligation in full. There is no merger or
renunciation of rights, but only mutual representation. 41 Where the obligation of the parties is solidary,
either of the parties is indispensable, and the other is not even a necessary party because complete
relief is available from either.42 Therefore, jurisdiction over Foronda is not even necessary as Tuazon
may collect damages from Mrs. Cerezo alone.
Moreover, an employers liability based on a quasi-delict is primary and direct, while the employers
liability based on a delict is merely subsidiary.43 The words "primary and direct," as contrasted with
"subsidiary," refer to the remedy provided by law for enforcing the obligation rather than to the
character and limits of the obligation. 44Although liability under Article 2180 originates from the
negligent act of the employee, the aggrieved party may sue the employer directly. When an employee
causes damage, the law presumes that the employer has himself committed an act of negligence in
not preventing or avoiding the damage. This is the fault that the law condemns. While the employer is
civilly liable in a subsidiary capacity for the employees criminal negligence, the employer is also
civilly liable directly and separately for his own civil negligence in failing to exercise due diligence in
selecting and supervising his employee. The idea that the employers liability is solely subsidiary is
wrong.45
The action can be brought directly against the person responsible (for another), without
including the author of the act. The action against the principal is accessory in the sense that it
implies the existence of a prejudicial act committed by the employee, but it is not subsidiary in
the sense that it can not be instituted till after the judgment against the author of the act or at
least, that it is subsidiary to the principal action; the action for responsibility (of the employer) is
in itself a principal action.46
Thus, there is no need in this case for the trial court to acquire jurisdiction over Foronda. The trial
courts acquisition of jurisdiction over Mrs. Cerezo is sufficient to dispose of the present case on the
merits.
In contrast, an action based on a delict seeks to enforce the subsidiary liability of the employer for the
criminal negligence of the employee as provided in Article 103 of the Revised Penal Code. To hold
the employer liable in a subsidiary capacity under a delict, the aggrieved party must initiate a criminal
action where the employees delict and corresponding primary liability are established. 47 If the present
action proceeds from a delict, then the trial courts jurisdiction over Foronda is necessary. However,
the present action is clearly for the quasi-delict of Mrs. Cerezo and not for the delict of Foronda.
The Cerezo spouses contention that summons be served anew on them is untenable in light of their
participation in the trial court proceedings. To uphold the Cerezo spouses contention would make a
fetish of a technicality.48Moreover, any irregularity in the service of summons that might have vitiated

the trial courts jurisdiction over the persons of the Cerezo spouses was deemed waived when the
Cerezo spouses filed a petition for relief from judgment. 49
We hold that the trial court had jurisdiction and was competent to decide the case in favor of Tuazon
and against Mrs. Cerezo even in the absence of Foronda. Contrary to Mrs. Cerezos contention,
Foronda is not an indispensable party to the present case. It is not even necessary for Tuazon to
reserve the filing of a separate civil action because he opted to file a civil action for damages against
Mrs. Cerezo who is primarily and directly liable for her own civil negligence. The words of Justice
Jorge Bocobo in Barredo v. Garcia still hold true today as much as it did in 1942:
x x x [T]o hold that there is only one way to make defendants liability effective, and that is, to
sue the driver and exhaust his (the latters) property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is such
a remedy under our laws, but there is also a more expeditious way, which is based on the
primary and direct responsibility of the defendant under article [2180] of the Civil Code. Our
view of the law is more likely to facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay, it being a matter of common
knowledge that professional drivers of taxis and other similar public conveyances do not have
sufficient means with which to pay damages. Why, then, should the plaintiff be required in all
cases to go through this roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and facilitate the pathways of right and
justice.50
Interest at the rate of 6% per annum is due on the amount of damages adjudged by the trial
court.51 The 6% per annum interest shall commence from 30 May 1995, the date of the decision of
the trial court. Upon finality of this decision, interest at 12% per annum, in lieu of 6% per annum, is
due on the amount of damages adjudged by the trial court until full payment.
WHEREFORE, we DENY the instant petition for review. The Resolution dated 21 October 1999 of the
Court of Appeals in CA-G.R. SP No. 53572, as well as its Resolution dated 20 January 2000 denying
the motion for reconsideration, is AFFIRMED with the MODIFICATION that the amount due shall
earn legal interest at 6% per annum computed from 30 May 1995, the date of the trial courts
decision. Upon finality of this decision, the amount due shall earn interest at 12% per annum, in lieu
of 6% per annum, until full payment.
G.R. No. 126297

January 31, 2007

PROFESSIONAL
SERVICES,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

INC., Petitioner,

x-----------------------x
G.R. No. 126467

January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA
AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x

G.R. No. 127590

January 31, 2007

MIGUEL
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

AMPIL, Petitioner,

DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most important and delicate endeavors, must assume
the grave responsibility of pursuing it with appropriate care. The care and service dispensed through
this high trust, however technical, complex and esoteric its character may be, must meet standards of
responsibility commensurate with the undertaking to preserve and protect the health, and indeed, the
very lives of those placed in the hospitals keeping. 1
Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision 3dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the Medical City Hospital, performed an
anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread
on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the
consent of Natividads husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No.
126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and
closed the incision.
However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail continue for closure."
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including
the doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous
nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the pains would soon vanish.
Dr. Ampils assurance did not come true. Instead, the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the
presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive
organs which forced stool to excrete through the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter
are liable for negligence for leaving two pieces of gauze inside Natividads body and malpractice for
concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly
substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the interest
thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of
P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of
America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the
complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as
CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the
Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes
to indefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the
Aganas again filed a motion for an alias writ of execution against the properties of PSI and Dr.
Fuentes. On September 21, 1993, the RTC granted the motion and issued the corresponding writ,
prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with
prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court
of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes prayer for injunctive
relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in Administrative
Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to
show that Dr. Fuentes was the one who left the two pieces of gauze inside Natividads body; and that
he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan
Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel
Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the
latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby AFFIRMED
and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein defendantappellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order
of the respondent judge dated September 21, 1993, as well as the alias writ of execution issued
pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is
hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution 7 dated December
19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or independent contractor. As such, he alone should answer
for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is
not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividads vagina.
He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing
the hysterectomy; (2) the attending nurses failure to properly count the gauzes used during surgery;
and (3) the medical intervention of the American doctors who examined Natividad in the United States
of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving
Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of
Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to other possible causes of
Natividads detriment. He argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividads body after performing hysterectomy;
second, the attending nurses erred in counting the gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without basis. Records show that he did not present
any evidence to prove that the American doctors were the ones who put or left the gauzes in
Natividads body. Neither did he submit evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful
that Dr. Ampil examined his (Dr. Fuentes) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of
Appeals, directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the
patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in their
report that the sponge count (was) lacking 2; that such anomaly was announced to surgeon
and that a search was done but to no avail prompting Dr. Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of
Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the sponges are
properly removed, and it is settled that the leaving of sponges or other foreign substances in the
wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is negligence
per se.9
Of course, the Court is not blind to the reality that there are times when danger to a patients life
precludes a surgeon from further searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patients abdomen, because of
the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable
time thereafter by advising her of what he had been compelled to do. This is in order that she might
seek relief from the effects of the foreign object left in her body as her condition might permit. The
ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails
to remove a sponge he has placed in his patients body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and creates a new condition which imposes
upon him the legal duty of calling the new condition to his patients attention, and endeavoring with
the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was the ordinary consequence of her operation. Had
he been more candid, Natividad could have taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove that a health care provider either failed to do
something which a reasonably prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have done; and that failure or action caused
injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr,
Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from
Natividads body before closure of the incision. When he failed to do so, it was his duty to inform
Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another surgery. That Dr. Ampils
negligence is the proximate cause12 of Natividads injury could be traced from his act of closing the
incision despite the information given by the attending nurses that two pieces of gauze were still

missing. That they were later on extracted from Natividads vagina established the causal link
between Dr. Ampils negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground
that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of
gauze were left inside Natividads body is a prima facie evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact
for defendant to meet with an explanation. 13Stated differently, where the thing which caused the injury,
without the fault of the injured, is under the exclusive control of the defendant and the injury is such
that it should not have occurred if he, having such control used proper care, it affords reasonable
evidence, in the absence of explanation that the injury arose from the defendants want of care, and
the burden of proof is shifted to him to establish that he has observed due care and diligence. 14
From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa
loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the
control and management of the defendant; (3) the occurrence was such that in the ordinary course of
things, would not have happened if those who had control or management used proper care; and (4)
the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the
"control and management of the thing which caused the injury." 15
We find the element of "control and management of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that
the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery
and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed
operating on Natividad. He was about to finish the procedure when the attending nurses informed him
that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced gauzes
were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr.
Fuentes was no longer in the operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the
surgery room and all personnel connected with the operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That
he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a
hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted

for, that caused injury to Natividads body. Clearly, the control and management of the thing which
caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or
constitute an independent or separate ground of liability, being a mere evidentiary rule. 17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not
by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patients ability to pay. 18 Those who
could afford medical treatment were usually treated at home by their doctors. 19 However, the days of
house calls and philanthropic health care are over. The modern health care industry continues to
distance itself from its charitable past and has experienced a significant conversion from a not-forprofit health care to for-profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One important legal change
is an increase in hospital liability for medical malpractice. Many courts now allow claims for hospital
vicarious liability under the theories of respondeat superior, apparent authority, ostensible authority, or
agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code,
which reads:
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.
A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:
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.
x x x

x x x

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.
x x x

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.
A prominent civilist commented that professionals engaged by an employer, such as physicians,
dentists, and pharmacists, are not "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer). In other words, professionals are
considered personally liable for the fault or negligence they commit in the discharge of their duties,
and their employer cannot be held liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the professional status and the very
nature of the physicians calling preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge, 23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference. 24 Hence, when
a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own responsibility. 25
The case of Schloendorff v. Society of New York Hospital 26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospitals functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals 28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who are
allegedly not hospital employees, presents problems in apportioning responsibility for negligence in
medical malpractice cases. However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the hospital

administration or by a review committee set up by the hospital who either accept or reject the
application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to
attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards acceptable to the hospital or its peer review committee,
is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
consultant staff. While consultants are not, technically employees, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals and their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSIs liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the determination of a hospitals liability for
negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel, 29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists. 30 The concept is essentially one of estoppel and has been
explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular act
in question.31
The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving
v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to
be any rational basis for excluding the concept of apparent authority from the field of hospital liability."
Thus, in cases where it can be shown that a hospital, by its actions, has held out a particular
physician as its agent and/or employee and that a patient has accepted treatment from that physician
in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be
liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the
Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack
of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr.
Fuentes. We concur with the Court of Appeals conclusion that it "is now estopped from passing all
the blame to the physicians whose names it proudly paraded in the public directory leading the public
to believe that it vouched for their skill and competence." Indeed, PSIs act is tantamount to holding
out to the public that Medical City Hospital, through its accredited physicians, offers quality health
care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications,
the hospital created the impression that they were its agents, authorized to perform medical or
surgical services for its patients. As expected, these patients, Natividad being one of them, accepted
the services on the reasonable belief that such were being rendered by the hospital or its employees,
agents, or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the hospitals
act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of
todays medical and health care should at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed." 33
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as physicians. If these accredited physicians do their job
well, the hospital succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the hospital should not be
allowed to escape liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI
as owner, operator and manager of Medical City Hospital, "did not perform the necessary supervision
nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident
doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties
as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of
allocating hospitals liability for the negligent acts of health practitioners, absent facts to support the
application of respondeat superior or apparent authority. Its formulation proceeds from the judiciarys
acknowledgment that in these modern times, the duty of providing quality medical service is no longer
the sole prerogative and responsibility of the physician. The modern hospitals have changed
structure. Hospitals now tend to organize a highly professional medical staff whose competence and
performance need to be monitored by the hospitals commensurate with their inherent responsibility to
provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston Community Hospital. 36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a

sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospitals corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital. 37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) the selection and retention
of competent physicians; (3) the overseeing or supervision of all persons who practice medicine
within its walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that
ensure quality care for its patients. 38 Thus, in Tucson Medical Center, Inc. v. Misevich, 39 it was held
that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the
standards of responsibilities for the care of patients. Such duty includes the proper supervision of the
members of its medical staff. And in Bost v. Riley, 40 the court concluded that a patient who enters a
hospital does so with the reasonable expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed
and administered by the physicians practicing in its premises.
In the present case, it was duly established that PSI operates the Medical City Hospital for the
purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into
its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of the trial
court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an investigation of the matter reported in the
nota bene of the count nurse. Such failure established PSIs part in the dark conspiracy of silence and
concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of an
immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSIs
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such seriousness as the one in Natividads
case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospitals staff, composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive knowledge
of the procedures carried out, particularly the report of the attending nurses that the two pieces of
gauze were missing. In Fridena v. Evans, 41 it was held that a corporation is bound by the knowledge
acquired by or notice given to its agents or officers within the scope of their authority and in reference
to a matter to which their authority extends. This means that the knowledge of any of the staff of
Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the attending
nurses report, to investigate and inform Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice
medicine within its walls, it also failed to take an active step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil
Code, but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court
of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The
emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review
medical services being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De
Paul . Rev. 23 (1977).

Among the cases indicative of the emerging trend is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d
335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and
performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care which fell below the recognized
standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls and
it must meet the standards of responsibility commensurate with this undertaking. Beeck v. Tucson
General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of
the Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its
staff. x x x.
x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the negligence of the defendants was the proximate
cause of the patients injuries. We find that such general allegations of negligence, along with the
evidence produced at the trial of this case, are sufficient to support the hospitals liability based on the
theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be
emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good father of a family in the accreditation and supervision
of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last
paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr.
Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on
him certain obligations. In order to escape liability, he must possess that reasonable degree of
learning, skill and experience required by his profession. At the same time, he must apply reasonable
care and diligence in the exercise of his skill and the application of his knowledge, and exert his best
judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
LIABILITY OF SCHOOLS,TEACHERS, and ADMINISTRATORS
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.

PARAS, J.:p
This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which
reads:
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)
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 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 defendants-teachers 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. Respondents-spouses 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 cocurricular 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 co-defendants-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 school-sponsored activity,
nonetheless it cannot be gainsaid that the same was held under the supervision of the
teachers employed by the said school, 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 plaintiffs-appellants, 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 defendants-teachers 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 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
Ferdinand, allowed their son to join the excursion.

spouses,

parents

of

the

victim

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.
Q Did you not look for your son during that time?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?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).
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
extra-curricular 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, 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.
Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of
damages to the respondents-spouses.
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.
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.
Testimony of Luisito Vinas on cross examination,
Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having
applied first aid on him?A Yes, sir.
Q And while you were applying the so called first aid, the children were covering you up or were
surrounding you?A Yes, sir.
Q You were rattled at that time, is it not?A No, sir.
Q You mean you were in calm and peaceful condition?A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of first aid?A Yes, sir.
Q You have never been disturbed, "nababahala" in the process of your application of the first aid on
the body of Ferdinand Castillo?A No, sir, because we were attending to the application of first aid that
we were doing, sir.
Q After you have applied back to back pressure and which you claimed the boy didnot respond, were
you not disturb anyway?A I was disturbed during that time, sir.

Q For how many minutes have you applied the back to back pressure?A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand
Castillo?A Yes, sir.
Q Will you please describe how you applied a single act of back to back pressure?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)
Testimony of Tirso de Chavez on direct examination
ATTY. FLORES:
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?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 respondentsspouses. The case at bar does not fall under any of the grounds to grant moral damages.
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.
AMADORA VS CA
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 . 3On 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 JoseRecoletos 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 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 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 non-academic. 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 ofreddendo
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 someculpa 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 non-academic. 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.
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 co-extensive 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 ofrespondeat superior, but then it may exculpate itself from liability
by proof that it had exercised the diligence of abonus 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 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.
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.
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.
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 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.
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-in-charge of
Alfredo's killer.
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.
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.
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 JoseRecoletos 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.
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners, vs.EDGARDO AQUINO, MAURO
SORIANO and COURT OF APPEALS, respondents.
GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in
CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which

originated from the Court of First Instance of Pangasinan, We are again caned upon determine the
responsibility of the principals and teachers towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a
public educational institution located in Tayug, Pangasinan-Private respondent Edgardo Aquino was a
teacher therein. At that time, the school was fittered with several concrete blocks which were
remnants of the old school shop that was destroyed in World War II. Realizing that the huge stones
were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez started
burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by
himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male
pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge, he
ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can
be buried. The work was left unfinished. The following day, also after classes, private respondent
Aquino called four of the original eighteen pupils to continue the digging. These four pupils
Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation
was one meter and forty centimeters deep. At this point, private respondent Aquino alone continued
digging while the pupils remained inside the pit throwing out the loose soil that was brought about by
the digging.
When the depth was right enough to accommodate the concrete block, private respondent Aquino
and his four pupils got out of the hole. Then, said private respondent left the children to level the
loose soil around the open hole while he went to see Banez who was about thirty meters away.
Private respondent wanted to borrow from Banez the key to the school workroom where he could get
some rope. Before leaving. , private respondent Aquino allegedly told the children "not to touch the
stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and
Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga jumped on
top of the concrete block causing it to slide down towards the opening. Alonso and Alcantara were
able to scramble out of the excavation on time but unfortunately fo Ylarde, the concrete block caught
him before he could get out, pinning him to the wall in a standing position. As a result thereof, Ylarde
sustained the following injuries:
1. Contusion with hematoma, left inguinal region and suprapubic region.2. Contusion with ecchymosis
entire scrotal region.3. Lacerated wound, left lateral aspect of penile skin with phimosis4. Abrasion,
gluteal region, bilateral.5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about
2 liters.6. Fracture, simple, symphesis pubis7. Ruptured (macerated) urinary bladder with body of
bladder almost entirely separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO

Physician on Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents
Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that the
digging done by the pupils is in line with their course called Work Education; (2) that Aquino exercised
the utmost diligence of a very cautious person; and (3) that the demise of Ylarde was due to his own
reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code for
his alleged negligence that caused their son's death while the complaint against respondent Soriano
as the head of school is founded on Article 2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre- existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
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. 3
The issue to be resolved is whether or not under the cited provisions, both private respondents can
be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the death of the child
Ylarde, he being the head of an academic school and not a school of arts and trades. This is in line
with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly discussed the
doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an
academic school who should be answerable for torts committed by their students. This Court went on
to say that in a school of arts and trades, it is only the head of the school who can be held liable. In
the same case, We explained:
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 sinquilis 'teachers' should apply to the words "pupils and students'
and 'heads of establishments of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal,
cannot be held liable for the reason that the school he heads is an academic school and not a school
of arts and trades. Besides, as clearly admitted by private respondent Aquino, private respondent
Soriano did not give any instruction regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held liable under
Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his
supervision over them and his failure to take the necessary precautions to prevent any injury on their
persons. However, as earlier pointed out, petitioners base the alleged liability of private respondent
Aquino on Article 2176 which is separate and distinct from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there acts and omissions on the part
of private respondent Aquino amounting to fault or negligence which have direct causal relation to the
death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages.
From a review of the record of this case, it is very clear that private respondent Aquino acted with
fault and gross negligence when he: (1) failed to avail himself of services of adult manual laborers
and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete
stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit
even after they had finished digging, knowing that the huge block was lying nearby and could be
easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered
them to level the soil around the excavation when it was so apparent that the huge stone was at the
brink of falling; (4) went to a place where he would not be able to check on the children's safety; and
(5) left the children close to the excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a
direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural for the
children to play around. Tired from the strenuous digging, they just had to amuse themselves with
whatever they found. Driven by their playful and adventurous instincts and not knowing the risk they
were facing three of them jumped into the hole while the other one jumped on the stone. Since the
stone was so heavy and the soil was loose from the digging, it was also a natural consequence that
the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy
weight. Everything that occurred was the natural and probable effect of the negligent acts of private
respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe
situation created by private respondent Aquino which exposed the lives of all the pupils concerned to
real danger.

We cannot agree with the finding of the lower court that the injuries which resulted in the death of the
child Ylarde were caused by his own reckless imprudence, It should be remembered that he was only
ten years old at the time of the incident, As such, he is expected to be playful and daring. His
actuations were natural to a boy his age. Going back to the facts, it was not only him but the three of
them who jumped into the hole while the remaining boy jumped on the block. From this, it is clear that
he only did what any other ten-year old child would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age
and maturity. This should not be the case. The degree of care required to be exercised must vary with
the capacity of the person endangered to care for himself. A minor should not be held to the same
degree of care as an adult, but his conduct should be judged according to the average conduct of
persons of his age and experience. 5 The standard of conduct to which a child must conform for his
own protection is that degree of care ordinarily exercised by children of the same age, capacity,
discretion, knowledge and experience under the same or similar circumstances. 6 Bearing this in
mind, We cannot charge the child Ylarde with reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of their Work
Education. A single glance at the picture showing the excavation and the huge concrete block 7 would
reveal a dangerous site requiring the attendance of strong, mature laborers and not ten-year old
grade-four pupils. We cannot comprehend why the lower court saw it otherwise when private
respondent Aquino himself admitted that there were no instructions from the principal requiring what
the pupils were told to do. Nor was there any showing that it was included in the lesson plan for their
Work Education. Even the Court of Appeals made mention of the fact that respondent Aquino decided
all by himself to help his co-teacher Banez bury the concrete remnants of the old school
shop. 8 Furthermore, the excavation should not be placed in the category of school gardening,
planting trees, and the like as these undertakings do not expose the children to any risk that could
result in death or physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of a very cautious
person is certainly without cogent basis. A reasonably prudent person would have foreseen that
bringing children to an excavation site, and more so, leaving them there all by themselves, may result
in an accident. An ordinarily careful human being would not assume that a simple warning "not to
touch the stone" is sufficient to cast away all the serious danger that a huge concrete block adjacent
to an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his
pupils would have made sure that the children are protected from all harm in his company.
We close by categorically stating that a truly careful and cautious person would have acted in all
contrast to the way private respondent Aquino did. Were it not for his gross negligence, the
unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a
grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard,
Ylarde's parents suffered great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned
judgment of the respondent court is REVERSED and SET ASIDE and another judgment is hereby
rendered ordering private respondent Edagardo Aquino to pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00(2) Exemplary damages 10,000.00(3) Moral
damages 20,000.00
REYNALDO PASCO, assisted by his father PEDRO PASCO, petitioner, vs.COURT OF FIRST
INSTANCE OF BULACAN, BRANCH V, STA. MARIA and ARANETA UNIVERSITY,respondents.
PARAS, J.:
The sole question of law raised by petitioner in this case is whether the provision of the penultimate
paragraph of Article 2180 of the Civil Code which states:
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.
is equally applicable to academic institutions.
The facts of this case are as follows:
On August 24, 1979 at about 5:00 o'clock in the afternoon, petitioner, together with two companions,
while walking inside the campus of the private respondent Araneta University, after attending classes
in said university, was accosted and mauled by a group of Muslim students led by Abdul Karim
Madidis alias "Teng." Said Muslim group were also students of the Araneta University. Petitioner was
subsequently stabbed by Abdul and as a consequence he was hospitalized at the Manila Central
University (MCU) Hospital where he underwent surgery to save his life.
On October 5, 1979, petitioner, assisted by his father Pedro Pasco, filed a complaint for damages
against Abdul Karim Madidis and herein private respondent Gregorio Araneta University which was
docketed as Civil Case No. SM-1027. Said school was impleaded as a party defendant based on the
aforementioned provision of the Civil Code.
On October 26, 1979, respondent school filed a Motion to Dismiss on the following grounds:
a. The penultimate paragraph of Article 2180 of the New Civil Code under which it was
sued applies only to vocational schools and not to academic institutions;
b. That every person criminally liable for a felony is also civilly liable under Article 100 of
the Revised Penal Code. Hence, the civil liability in this case arises from a criminal
action which the defendant university has not committed;
c. Since this is a civil case, a demand should have been made by the plaintiff, hence, it
would be premature to bring an action for damages against defendant University. (Rollo,
p. 96)
On May 12, 1980, respondent court issued an Order * granting said Motion to Dismiss. Petitioner
moved to reconsider the Order of Dismissal but the motion was likewise denied on the ground that
there is no sufficient justification to disturb its ruling. Hence, this instant Petition for certiorari under

Republic Act No. 5440, praying that judgment be rendered setting aside the questioned order of May
12, 1980 dismissing the complaint as against respondent school and the order of July 17, 1980
denying the reconsideration of the questioned order of dismissal, with costs against respondent
school.
We find no necessity of discussing the applicability of the Article to educational institutions (which are
not schools of arts and trades) for the issue in this petition is actually whether or not, under the article,
the school or the university itself (as distinguished from the teachers or heads) is liable. We find the
answer in the negative, for surely the provision concerned speaks only of "teachers or heads."
WHEREFORE, this Petition is DISMISSED for lack of merit.
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.
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 Ordoez-Benitez, for damages against the said PSBA
and its corporate officers. At the time of his death, Carlitos was enrolled in the third year commerce
course at the PSBA. It was established that his assailants were not members of the school's
academic community but were elements from outside the school.
Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim
(President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col.
Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially, the
plaintiffs (now private respondents) sought to adjudge them liable for the victim's untimely demise due
to their alleged negligence, recklessness and lack of security precautions, means and methods
before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano
terminated his relationship with the other petitioners by resigning from his position in the school.
Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are
presumably sued under Article 2180 of the Civil Code, the complaint states no cause of action against
them, as jurisprudence on the subject is to the effect that academic institutions, such as the PSBA,
are beyond the ambit of the rule in the afore-stated article.
The respondent trial court, however, overruled petitioners' contention and thru an order dated 8
December 1987, denied their motion to dismiss. A subsequent motion for reconsideration was
similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's

disposition before the respondent appellate court which, in a decision * promulgated on 10 June
1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court resolved to
deny the petitioners' motion for reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent appellate court primarily anchored its decision
on the law ofquasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent
portions of the appellate court's now assailed ruling state:
Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish
Civil Code. The comments of Manresa and learned authorities on its meaning should
give way to present day changes. The law is not fixed and flexible (sic); it must be
dynamic. In fact, the greatest value and significance of law as a rule of conduct in ( sic)
its flexibility to adopt to changing social conditions and its capacity to meet the new
challenges of progress.
Construed in the light of modern day educational system, Article 2180 cannot be
construed in its narrow concept as held in the old case of Exconde
vs. Capuno 2 and Mercado vs. Court of Appeals; 3hence, the ruling in the Palisoc 4 case
that it should apply to all kinds of educational institutions, academic or vocational.
At any rate, the law holds the teachers and heads of the school staff liable unless they
relieve themselves of such liability pursuant to the last paragraph of Article 2180 by
"proving that they observed all the diligence to prevent damage." This can only be done
at a trial on the merits of the case. 5
While we agree with the respondent appellate court that the motion to dismiss the complaint was
correctly denied and the complaint should be tried on the merits, we do not however agree with the
premises of the appellate court's ruling.
Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis.
This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more
recently, in Amadora vs.Court of Appeals. 6 In all such cases, it had been stressed that the law (Article
2180) plainly provides that the damage should have been caused or inflicted by pupils or students of
he educational institution sought to be held liable for the acts of its pupils or students while in its
custody. However, this material situation does not exist in the present case for, as earlier indicated,
the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made
liable.
However, does the appellate court's failure to consider such material facts mean the exculpation of
the petitioners from liability? It does not necessarily follow.
When an academic institution accepts students for enrollment, there is established
a contract between them, resulting in bilateral obligations which both parties are bound to comply
with. 7 For its part, the school undertakes to provide the student with an education that would
presumably suffice to equip him with the necessary tools and skills to pursue higher education or a

profession. On the other hand, the student covenants to abide by the school's academic requirements
and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing their students
with an atmosphere that promotes or assists in attaining its primary undertaking of imparting
knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or
explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the
air or where there looms around the school premises a constant threat to life and limb. Necessarily,
the school must ensure that adequate steps are taken to maintain peace and order within the campus
premises and to prevent the breakdown thereof.
Because the circumstances of the present case evince a contractual relation between the PSBA and
Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that
obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only
between parties not otherwise bound by contract, whether express or implied. However, this
impression has not prevented this Court from determining the existence of a tort even when there
obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded
damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted,
however, that the Court referred to the petitioner-airline's liability as one arising from tort, not one
arising from a contract of carriage. In effect, Air Franceis 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. (AustroAmerica 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. InCangco 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 nonto 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, abovementioned, 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 th is stage, only the trial court can
make such a determination from the evidence still to unfold.
WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC,
Manila, Br. 47) is hereby ordered to continue proceedings consistent with this ruling of the Court.
Costs against the petitioners.
LIABILITY OF THE STATE
CITY OF MANILA, and EVANGELINE SUVA, petitioners, vs.HON. INTERMEDIATE APPELLATE
COURT, IRENE STO. DOMINGO and for and in behalf of her minor children, VIVENCIO, JR.,
IRIS, VERGEL and IMELDA, all surnamed STO. DOMINGO, respondents.
PARAS, J.:
This is a petition for review on certiorari seeking to reverse and set aside: (a) the Decision of the
Intermediate Appellate Court now Court of Appeals 1 promulgated on May 31, 1984 in AC-G.R. CV
No. 00613-R entitled Irene Sto. Domingo et al., v. City Court of Manila et al., modifying the decision of
the then Court of First Instance of Manila, Branch VIII 2 in Civil Case No. 121921 ordering the
defendants (herein petitioners,) to give plaintiffs (herein private respondents) the right to use a burial

lot in the North Cemetery corresponding to the unexpired term of the fully paid lease sued upon, to
search the remains of the late Vivencio Sto. Domingo, Sr. and to bury the same in a substitute lot to
be chosen by the plaintiffs; and (b) the Resolution of the Court of Appeals dated May 28, 1985
denying petitioner's motion for reconsideration.
As found by the Court of Appeals and the trial court, the undisputed facts of the case are as follows:
Brought on February 22, 1979 by the widow and children of the late Vivencio Sto.
Domingo, Sr. was this action for damages against the City of Manila; Evangeline Suva
of the City Health Office; Sergio Mallari, officer-in-charge of the North Cemetery; and
Joseph Helmuth, the latter's predecessor as officer-in-charge of the said burial grounds
owned and operated by the City Government of Manila.
Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and father
of the litigating minors, died on June 4,1971 and buried on June 6,1971 in Lot No. 159,
Block No. 194 of the North Cemetery which lot was leased by the city to Irene Sto.
Domingo for the period from June 6, 1971 to June 6, 2021 per Official Receipt No.
61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6, 2021 (see Exh. A1). Full payment of the rental therefor of P50.00 is evidenced by the said receipt which
appears to be regular on its face. Apart from the aforementioned receipt, no other
document was executed to embody such lease over the burial lot in question. In fact,
the burial record for Block No. 194 of Manila North Cemetery (see Exh. 2) in which
subject Lot No. 159 is situated does not reflect the term of duration of the lease
thereover in favor of the Sto. Domingos.
Believing in good faith that, in accordance with Administrative Order No. 5, Series of
1975, dated March 6, 1975, of the City Mayor of Manila (See Exh. 1) prescribing
uniform procedure and guidelines in the processing of documents pertaining to and for
the use and disposition of burial lots and plots within the North Cemetery, etc., subject
Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio Sto. Domingo
were laid to rest, was leased to the bereaved family for five (5) years only, subject lot
was certified on January 25, 1978 as ready for exhumation.
On the basis of such certification, the authorities of the North Cemetery then headed by
defendant Joseph Helmuth authorized the exhumation and removal from subject burial
lot the remains of the late Vivencio Sto. Domingo, Sr., placed the bones and skull in a
bag or sack and kept the same in the depository or bodega of the cemetery y
Subsequently, the same lot in question was rented out to another lessee so that when
the plaintiffs herein went to said lot on All Souls Day in their shock, consternation and
dismay, that the resting place of their dear departed did not anymore bear the stone
marker which they lovingly placed on the tomb. Indignant and disgusted over such a
sorrowful finding, Irene Sto. Domingo lost no time in inquiring from the officer-in-charge
of the North Cemetery, defendant Sergio Mallari, and was told that the remains of her
late husband had been taken from the burial lot in question which was given to another
lessee.

Irene Sto. Domingo was also informed that she can look for the bones of her deceased
husband in the warehouse of the cemetery where the exhumed remains from the
different burial lots of the North Cemetery are being kept until they are retrieved by
interested parties. But to the bereaved widow, what she was advised to do was simply
unacceptable. According to her, it was just impossible to locate the remains of her late
husband in a depository containing thousands upon thousands of sacks of human
bones. She did not want to run the risk of claiming for the wrong set of bones. She was
even offered another lot but was never appeased. She was too aggrieved that she
came to court for relief even before she could formally present her claims and demands
to the city government and to the other defendants named in the present complaint.
(Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55)
The trial court, on August 4, 1981, rendered its Decision, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered, ordering the defendants to give plaintiffs
the right to make use of another single lot within the North Cemetery for a period of
forty-three (43) years four (4) months and eleven (11) days, corresponding to the
unexpired term of the fully paid lease sued upon; and to search without let up and with
the use of all means humanly possible, for the remains of the late Vivencio Sto.
Domingo, Sr. and thereafter, to bury the same in the substitute lot to be chosen by the
plaintiffs pursuant to this decision.
For want of merit, defendant's counterclaim is DISMISSED.
No pronouncement as to costs.
SO ORDERED. (Rollo, p. 31)
The decision was appealed to the Court of Appeals which on May 31, 1984 rendered a decision
(Rollo, pp. 33-40) modifying the decision appealed from, the dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, the decision appealed from is hereby REVERSED (is
hereby modified) and another one is hereby entered:
1. Requiring in full force the defendants to look in earnest for the bones and skull of the late Vivencio
Sto. Domingo, Sr., and to bury the same in the substitute lot adjudged in favor of plaintiffs
hereunder;2. Ordering defendants to pay plaintiffs-appellants jointly and severally P10,000.00 for
breach of contract;3. Ordering defendants to pay plaintiffs-appellants, jointly and severally,
P20,000.00 for moral damages;4. Ordering defendants to pay plaintiffs-appellants jointly and
severally, P20,000.00 for exemplary damages;5. Ordering defendants to pay plaintiffs-appellants,
jointly and severally, P10,000.00 as and for attorney's fees;6. Ordering defendants, to pay plaintiffsappellants, jointly and severally, on the foregoing amounts legal rate of interest computed from filing
hereof until fully paid; and7. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, the
cost of suit.
SO ORDERED. (Rollo, p. 40)

The petitioners' motion for reconsideration was likewise denied.

Hence, this instant petition (Rollo, pp. 7-27) filed on July 27, 1985.
The grounds relied upon for this petition are as follows:
ITHE HONORABLE INTERMEDIATE APPELLATE COURT ERRED IN AWARDING DAMAGES
AGAINST THE PETITIONERS HEREIN, NOTWITHSTANDING THEIR GOOD FAITH AND THEIR
LACK OF KNOWLEDGE OR CONSENT TO THE REMOVAL OF THE SKELETAL REMAINS OF THE
LATE VIVENCIO STO. DOMINGO, SR. FROM THE SUBJECT BURIAL LOT.
IITHE HON. INTERMEDIATE APPELLATE COURT ERRED IN HOLDING PETITIONERS HEREIN
RESPONSIBLE FOR THE ALLEGED TORTS OF THEIR SUBORDINATE OFFICIALS AND
EMPLOYEES, INSPITE OF THE PROVISIONS OF SECTION 4 OF THE REPUBLIC ACT NO. 409
(REVISED CHARTER OF MANILA) AND OTHER APPLICABLE JURISPRUDENCE ON THE
SUBJECT EXEMPTING THE PETITIONERS FROM DAMAGES FROM THE MALFEASANCE OR
MISFEASANCE OF THEIR OFFICIALS AND EMPLOYEES, IF THERE BE ANY IN THIS CASE.
(Brief for Petitioners, Rollo, pp. 93-94)
In the resolution dated November 13, 1985 (,Rollo, p. 84), the petition was given due course.
The pivotal issue of this case is whether or not the operations and functions of a public cemetery are
a governmental, or a corporate or proprietary function of the City of Manila. The resolution of this
issue is essential to the determination of the liability for damages of the petitioner city.
Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use or
purpose as stated in Sec. 316 of the Compilation of the Ordinances of the City of Manila. They
conclude that since the City is a political subdivision in the performance of its governmental function,
it is immune from tort liability which may be caused by its public officers and subordinate employees.
Further Section 4, Article I of the Revised Charter of Manila exempts the city from liability 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 provision of its charter or any other laws, or ordinance, or from
negligence of said Mayor, Municipal Board or any other officers while enforcing or attempting to
enforce said provisions. They allege that the Revised Charter of Manila being a special law cannot be
defeated by the Human Relations provisions of the Civil Code being a general law.
Private respondents on the other hand maintain that the City of Manila entered into a contract of
lease which involve the exercise of proprietary functions with private respondent Irene Sto. Domingo.
The city and its officers therefore can be sued for any-violation of the contract of lease.
Private respondents' contention is well-taken.
Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the
faculties of municipal corporations to be exercised by and through its city government in conformity
with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted
with. Its powers are twofold in character-public, governmental or political on the one hand, and

corporate, private and proprietary on the other. Governmental powers are those exercised in
administering the powers of the state and promoting the public welfare and they include the
legislative, judicial, public and political. Municipal powers on the one hand are exercised for the
special benefit and advantage of the community and include those which are ministerial, private and
corporate. In McQuillin on Municipal Corporation, the rule is stated thus: "A municipal corporation
proper has ... a public character as regards the state at large insofar as it is its agent in government,
and private (so called) insofar as it is to promote local necessities and conveniences for its own
community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the powers of a municipal
corporation, it may acquire property in its public or governmental capacity, and private or proprietary
capacity. The New Civil Code divides such properties into property for public use and patrimonial
properties (Article 423), and further enumerates the properties for public use as provincial roads, city
streets, municipal streets, the squares, fountains, public waters, promenades, and public works for
public service paid for by said provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws (Article 424; Province of Zamboanga del Norte v.
City of Zamboanga, et al., 22 SCRA 1334 [1968]).
Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the
settled rule is that a municipal corporation can be held liable to third persons ex
contractu (Municipality of Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v.
de Leon, 33 Phil. 508 (1916).
The Court further stressed:
Municipal corporations are subject to be sued upon contracts and in tort....xxx xxx xxx
The rule of law is a general one, that the superior or employer must answer civilly for the negligence
or want of skill of its agent or servant in the course or line of his employment, by which another who is
free from contributory fault, is injured. Municipal corporations under the conditions herein stated, fall
within tile operation of this rule of law, and are liable accordingly, to civil actions for damages when
the requisite elements of liability co-exist. ... (Emphasis supplied)
The Court added:
... while the following are corporate or proprietary in character, viz: municipal waterworks, slaughter
houses, markets, stables, bathing establishments, wharves, ferries and fisheries. Maintenance of
parks, golf courses, cemeteries and airports among others, are also recognized as municipal or city
activities of a proprietary character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of Indiana, 60
N.E. 2nd 952, 954 cited in Torio v. Fontanilla, supra) (Emphasis supplied)
Under the foregoing considerations and in the absence of a special law, the North Cemetery is a
patrimonial property of the City of Manila which was created by resolution of the Municipal Board of
August 27, 1903 and January 7, 1904 (Petition, Rollo pp. 20-21 Compilation of the Ordinances of the
City of Manila). The administration and government of the cemetery are under the City Health Officer
(Ibid., Sec. 3189), the order and police of the cemetery (Ibid., See. 319), the opening of graves,
niches, or tombs, the exhuming of remains, and the purification of the same (Ibid., Sec. 327) are
under the charge and responsibility of the superintendent of the cemetery. The City of Manila

furthermore prescribes the procedure and guidelines for the use and dispositions of burial lots and
plots within the North Cemetery through Administrative Order No. 5, s. 1975 (Rollo, p. 44). With the
acts of dominion, there is, therefore no doubt that the North Cemetery is within the class of property
which the City of Manila owns in its proprietary or private character. Furthermore, there is no dispute
that the burial lot was leased in favor of the private respondents. Hence, obligations arising from
contracts have the force of law between the contracting parties. Thus a lease contract executed by
the lessor and lessee remains as the law between them. (Henson v. Intermediate Appellate Court,
148 SCRA 11 [1 987]). Therefore, a breach of contractual provision entitles the other party to
damages even if no penalty for such breach is prescribed in the contract. (Boysaw v. Interphil
Promotions, Inc., 148 SCRA 635 [1987]).
Noteworthy are the findings of the Court of Appeals as to the harrowing experience of private
respondents and their wounded feelings upon discovery that the remains of their loved one were
exhumed without their knowledge and consent, as said Court declared:
It has been fully established that the appellants, in spite or perhaps because, of their lowly station in
life have found great consolation in their bereavement from the loss of their family head, by visiting
his grave on special or even ordinary occasions, but particularly on All Saints Day, in keeping with the
deep, beautiful and Catholic Filipino tradition of revering the memory of their dead. It would have
been but fair and equitable that they were notified of the intention of the city government to transfer
the skeletal remains of the late Vivencio Sto. Domingo to give them an opportunity to demand the
faithful fulfillment of their contract, or at least to prepare and make provisions for said transfer in order
that they would not lose track of the remains of their beloved dead, as what has actually happened on
this case. We understand fully what the family of the deceased must have felt when on All Saints Day
of 1978, they found a new marker on the grave they were to visit, only to be told to locate their
beloved dead among thousands of skeletal remains which to them was desecration and an
impossible task. Even the lower court recognized this when it stated in its decision thus:
All things considered, even as the Court commiserates with plaintiffs for the unfortunate happening
complained of and untimely desecration of the resting place and remains of their deceased dearly
beloved, it finds the reliefs prayed for by them lacking in legal and factual basis. Under the
aforementioned facts and circumstances, the most that plaintiffs ran ask for is the replacement of
subject lot with another lot of equal size and similar location in the North Cemetery which substitute
lot plaintiffs can make use of without paying any rental to the city government for a period of fortythree (43) years, four (4) months and eleven (11) days corresponding to the unexpired portion of the
term of the lease sued upon as of January 25, 1978 when the remains of the late Vivencio Sto.
Domingo, Sr. were prematurely removed from the disputed lot; and to require the defendants to look
in earnest for the bones and skull of the late Vivencio Sto. Domingo Sr. and to bury the same in the
substitute lot adjudged in favor of plaintiffs hereunder. (Decision, Intermediate Appellate Court, p. 7,
Rollo, p. 39)
As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the
North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the
receipt duly signed by the deputy treasurer of the City of Manila and sealed by the city government,
there is nothing in the record that justifies the reversal of the conclusion of both the trial court and the

Intermediate Appellate Court to the effect that the receipt is in itself a contract of lease. (Decision,
Intermediate Appellate Court, p. 3, Rollo, pp. 5-6).
Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is
liable for the tortious act committed by its agents who failed to verify and check the duration of the
contract of lease. The contention of the petitioner-city that the lease is covered by Administrative
Order No. 5, series of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning
from June 6, 1971 is not meritorious for the said administrative order covers new leases. When
subject lot was certified on January 25, 1978 as ready for exhumation, the lease contract for fifty (50)
years was still in full force and effect.
PREMISES CONSIDERED, the Decision of the Intermediate Appellate Court is hereby AFFIRMED.
JOSE E. GENSON, petitioner, vs.SPS. EDUARDO ADARLE and SHERLITA MARI-ON, and
INTERMEDIATE APPELLATE COURT, respondents.
GUTIERREZ, JR., J.:
This is a Petition for review which seeks to set aside the decision in CA-G.R. No. 00783 on the
ground that the findings of the respondent Court of Appeals are based on misapprehension of facts
and conflict with those of the trial court and that the conclusions drawn therefrom are based on
speculations and conjectures.
Arturo Arbatin was the successful bidder in the sale at public auction of junk and other unserviceable
government property located at the compound of the Highway District Engineer's Office of Roxas City.
Private respondent Eduardo Adarle was hired as a laborer by Arbatin to gather and take away scrap
iron from the said compound with a daily wage of P12.00 or about 312.00 a month.
On September 8, 1979, at 4:00 o'clock in the morning, on a Saturday and a non-working day, while
the private respondent was tying a cable to a pile of scrap iron to be loaded on a truck inside the
premises of the compound, and while the bucket of the payloader driven by Ramon Buensalido was
being raised, the bucket suddenly fell and hit Adarle on the right back portion of his head just below
the nape of his neck. Adarle was rushed to the St. Anthony Hospital, Roxas City. According to the
medical certificate issued by the attending physician, the private respondent suffered the following
injuries:
1) Comminuted fracture of the vertebral body of 13 with extreme Kyphosis of the segment by x-ray.
2) Cord compression 2nd to the injury with paralysis of the lower extremity, inability to defecate and
urinate. (E Exh. A, Exhibits for the plaintiff-appellant, Original Records.)
The medical certificate also reported that:
The patient recovered the use of his urinary bladder and was able to defecate 2 months
after surgery. He is paralyzed from the knee down to his toes. He can only sit on a

wheel chair. The above residual damage is permanent 2nd to the injury incurred by Mr.
Adarle, he is still confined in the Hospital. (idem)
While still in the hospital, the private respondent instituted the action below for damages against
Arbatin, his employer; Buensalido, the payloader operator; Candelario Marcelino, the civil engineer;
and petitioner, the Highway District Engineer.
During the trial on the merits, the petitioner put up the defense that he had no knowledge of or
participation in the accident and that, when it happened, he was not present in the government
compound. Apart from the fact that it was a Saturday and a non-working day, he was in Iloilo. As part
of his evidence, the petitioner presented a memorandum directed to a certain Mr. Orlando Panaguiton
ordering the latter to take charge of the district until his return (Exh. 1).
The trial court found that, with the exception of the petitioner, all of the defendants were present at the
Highway's compound when the accident occurred. However, it still adjudged the petitioner liable for
damages because the petitioner was supposed to know what his men do with their government
equipment within an area under his supervision.
Thus, on January 19, 1982, the trial court rendered a decision finding all the defendants liable for
damages under Articles 1172 and 2176 of the New Civil Code. The dispositive portion of the decision
reads:
WHEREFORE, this court orders the defendants to pay to plaintiff the amounts stated in
the complainant's prayer as follows:
Ordering the defendants jointly and severally to pay the plaintiff the sum of 312.00
monthly from September 8, 1979 until his release from the hospital.
Ordering the defendants jointly and severally to pay the plaintiff the sum of P7,410.63
for hospital expenses up to January 14, 1980 and an additional amount for further
hospitalization until the release of plaintiff from the hospital;
Ordering the defendants jointly and severally to pay the plaintiff the sum of at least
P100,000.00 as actual and compensatory damages, considering that plaintiff Eduardo
Adarle is totally incapacitated for any employment for life;
Ordering the defendants jointly and severally to pay the plaintiff the sum of P20,000.00
as moral damages and another sum for exemplary damages which we leave to the
sound discretion of the Honorable Court;
Ordering the defendants jointly and severally to pay the plaintiff the sum of P5,000.00
as attorney's fees. (pp. 129- 130, Original Records).
The petitioner appealed to the Intermediate Appellate Court which affirmed the decision of the trial
court and further ordered the defendants to pay P5,000.00 exemplary damages. Defendant
Candelario Marcelino was, however, absolved from liability.

In its decision, the appellate court ruled:

That payloader owned by the Government, as found by the lower court, should not have
been operated that Saturday, September 8, 1979, a Saturday, a non-working holiday.
There is no official order from the proper authorities authorizing Arbatin and plaintiff to
work and Buensalido to operate the payloader on that day inside the Highway
compound. Thereabouts, we can logically deduce that Arbatin and plaintiff went to the
compound to work with the previous knowledge and consent of Highway District
Engineer Jose E. Genson. And allowed him, probably upon the request of Arbatin. We
have noted that Genson testified that his office does not authorize work on Saturdays.
Genson testified that he was in Iloilo from September 9 and 10, 1979. The accident
occurred on September 8, in the morning. In his answer, Genson did not allege his
presence in Iloilo on September 9 and 10 ... .
We fully concur with the lower court's conclusions regarding the physical presence of
appellants inside the compound on that fateful day, pursuant to a previous
understanding with Arbatin for plaintiff to work on the scrap iron and for Buensalido to
operate the payloader inside the compound. Arbatin and plaintiff would not go to the
compound on that Saturday, if there was no previous understanding with Genson and
Buensalido.
The liability of Genson is based on fault, intentional and voluntary or negligent (Eleano
v. Hill, 77 SCRA 106; Jimena v. Lincallo, 63 O.G. 11,15, 8 C. A.R. 2567). He gave
permission to Arbatin, plaintiff and Buensalido to work on Saturday, a non-working day,
in contravention of his office' rules and regulations outlawing work on Saturdays.. (pp.
29-30, Rollo)
In this present petition, the petitioner contends that the appellate court committed a palpable error
when it ruled that the petitioner was present when the accident happened and that he had given
permission to the other defendants to work on a Saturday, a non-working day. The petitioner argues
that considering these were the facts relied upon by the said court in holding that he was negligent
and thus liable for damages, such a conclusion, is without basis.
The petitioner further contends that the appellate court erred in not holding that the suit against the
petitioner was, in effect, a suit against the government and, therefore, should be dismissed under the
principle of non-suability of the state.
As regards the petitioner's second contention, we hold that the petitioner's Identification as the
Highway District Engineer in the complaint filed by the private respondent did not result in the said
complaint's becoming a suit against the government or state.
In Belizar v. Brazas, (2 SCRA 526), we ruled that "the fact that the duties and positions of the
defendants are indicated does not mean that they are being sued in their official capacities, especially
as the present action is not one against the Government." Furthermore, the accident in the case at
bar happened on a non-working day and there was no showing that the work performed on that day

was authorized by the government. While the equipment used belongs to the Government, the work
was private in nature, for the benefit of a purchaser of junk. As we have held in the case of Republic
v. Palacio (23 SCRA 899,906).
xxx xxx xxx
the ISU liability thus arose from tort and not from contract, and it is a well-entrenched
rule in this jurisdiction, embodied in Article 2180 of the Civil Code of the Philippines, that
the State is liable only for torts caused by its special agents, specially commissioned to
carry out the acts complained of outside of such agent's regular duties (Merritt v. Insular
Government, supra; Rosete v. Auditor General, 81 Phil. 453) There being no proof that
the making of the tortious inducement was authorized, neither the State nor its funds
can be made liable therefor.
Therefore, the defense of the petitioner that he cannot be made liable under the principle of nonsuability of the state cannot be sustained.
With regard to the main contention of the petitioner that the appellate court based its conclusions on
an erroneous finding of fact, we agree with him that the appellate court's finding that he was present
within the premises when the accident happened is not supported by evidence indisputably showing
that he was indeed there.
Since the evidence fails to establish petitioner Genson's presence when the payloader's bucket fell on
the head of Mr. Adarle, any liability on his part would be based only on his alleged failure to exercise
proper supervision over his subordinates (See Umali v. Bacani, 69 SCRA 263, 267-268).
According to the trial court, Mr. Genson authorized work on a Saturday when no work was supposed
to be done. It stated that the petitioner should know what his men do with their government
equipment and he should neither be lax nor lenient in his supervision over them.
The petitioner contends that:
1. No evidence on record exists that Genson gave authority to Adarle and Arbatin, either verbally or in
writing, to enter the work inside the Highways Compound on September 8, 1979;
2. Genson never knew or met Arbatin until the trial of the case. This fact was never denied by Arbatin
nor rebutted by Adarle. How then could Genson have ordered or allowed Arbatin to enter the
Highways Compound with Adarle?
3. Adarle himself repeatedly admitted that Arbatin, his employer, gave him the instructions to enter the
compound, thus:
Q. Now particularly on September 8, 1979, did Arbatin ask you to go to the compound in the
Highway?A. Yes sr.
Q. Are you sure of that?A. Yes, sir.

Q. Where did he say that to you?A. We went to the Highway compound for many times already and
that was the time when I met the incident.
Q. The particular day in question September 8. 1979, did you see Arturo Arbatin and he asked you to
go the compound on that day?A. That date was included on the first day when "he instructed us to
gather scrap ironuntil that work could be finished." (pp. 25-26, tsn., October 10, 1980) (Emphasis
supplied)
Q. Who told you to work there?A. "Through the instruction of Arturo Arbatin" (pp. 32, tsn., Oct. 10,
1980) (Emphasis supplied) (pp. 12-13, Rollo).
Insofar as work on a Saturday is concerned, and assuming Mr. Genson verbally allowed it, we see
nothing wrong in the petitioner's authorizing work on that day. As a matter of fact, it could even be
required that the hauling of junk and unserviceable equipment sold at public auction must be done on
non-working days. The regular work of the District Engineer's office would not be disturbed or
prejudiced by a private bidder bringing in his trucks and obstructing the smooth flow of traffic and the
daily routine within the compound. Obviously, it would also be safer for all concerned to effect the
clearing of the junk pile when everything is peaceful and quiet.
There is no showing from the records that it is against regulations to use government cranes and
payloaders to load items sold at public auction on the trucks of the winning bidder. The items were
formerly government property. Unless the contract specifies otherwise, it may be presumed that all
the parties were in agreement regarding the use of equipment already there for that purpose. Of
course, it would be different if the junk pile is in a compound where there is no equipment for loading
or unloading and the cranes or payloaders have to be brought there.
There is likewise no sufficient basis for the "master-servant" doctrine in tort law to apply. Buensalido
was not working overtime as a government employee. It is doubtful if the district engineer can be
considered an "employer" for purposes of tort liability who may be liable even if he was not there. No
evidence was presented to show that an application for overtime work or a claim for overtime pay
from the district engineer's office was ever filed. It is more logical to presume that Buensalido, the
operator of the payloader, was trying to earn a little money on the side from the junk buyer and that
his presence in the compound on that Saturday was a purely private arrangement. From the records
of this case, we are not disposed to rule that a supervisor who tolerates his subordinates to moonlight
on a non-working day in their office premises can be held liable for everything that happens on that
day. It would have been preferable if Mr. Arbatin brought his own payloader operator and perhaps, his
own equipment but we are not dealing with sound office practice in this case. The issue before us is
subsidiary liability for tort comitted by a government employee who is moonlighting on a non-working
day.
This Court ruled in Dumlao v. Court of Appeals (114 SCRA 247, 251):
Nevertheless, it is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, (Mindanao realty Corp. v. Kintanar, 6 SCRA 814) or beyond
the scope of his authority or jurisdiction. (the Philippine Racing Club v. Bonifacio, G.R.

No. L-11844, August 31, 1960) The question, therefore, is whether petitioner did act in
any of the manner aforesaid.
Petitioner contends that, contrary to the holding of the respondent Court of Appeals, he
was not sued in his personal capacity, but in his official capacity. Neither was malice or
bad faith alleged against him in the complaint, much less proven by the evidence, as the
respondent court made no such finding of malice or bad faith.
Examining the allegations of the complaint and reviewing the evidence it would indeed
be correct to say that petitioner was sued in his official capacity, and that the most that
was imputed to him is act of culpable neglect, inefficiency and gross indifference in the
performance of his official duties. Verily, this is not imputation of bad faith or malice, and
what is more was not convincingly proven.
According to the respondent court, "Genson and Buensalido divested themselves of their public
positions and privileges to accomodate an acquaintance or probably for inordinate gain." (p. 31,
Rollo).
There is no showing from the records that Genson received anything which could be called
"inordinate gain." It is possible that he permitted work on a Saturday to accomodate an acquaintance
but it is more plausible that he simply wanted to clear his compound of junk and the best time for the
winning bidder to do it was on a non-working day.
At any rate, we see no malice, bad faith, or gross negligence on the part of Genson to hold him liable
for the acts of Buensalido and Arbatin.WHEREFORE, the decision of the Intermediate Appellate
Court is hereby REVERSED and SET ASIDE. The complaint against Jesus Genson is DISMISSED.
ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS,
GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO VILLANUEVA,
respondents.
PARDO, J.:The case is an appeal via certiorari from the decision[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, 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:
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;
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 1995-1996. 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.[2]
In due time, petitioner St. Marys academy appealed the decision to the Court of Appeals.[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.[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.[5]
Hence, this appeal.[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 218[7] and 219[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.[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.[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.[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 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.[12]
In this case, the respondents failed to show that the negligence of petitioner was the proximate cause
of the death of the victim.
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.

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.
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.
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.
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.[13]
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.
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.
Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendants wrongful act or omission.[14] In this case, the proximate cause of
the accident was not attributable to petitioner.
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.[15]
The power of the court to award attorneys fees under Article 2208 of the Civil Code demands factual,

legal and equitable justification.[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.[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
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals[18] and
that of the trial court.[19] The Court remands the case to the trial court for determination of the liability
of defendants, excluding petitioner St. Marys Academy, Dipolog City.
No costs.
FEB LEASING VS BAYLON
On 2 September 2000, an Isuzu oil tanker running along Del Monte Avenue in Quezon City and
bearing plate number TDY 712 hit Loretta V. Baylon (Loretta), daughter of respondent spouses Sergio
P. Baylon and Maritess Villena-Baylon (spouses Baylon). At the time of the accident, the oil tanker
was registered5 in the name of petitioner FEB Leasing and Finance Corporation6 (petitioner). The oil
tanker was leased7 to BG Hauler, Inc. (BG Hauler) and was being driven by the latters driver, Manuel
Y. Estilloso. The oil tanker was insured8 by FGU Insurance Corp. (FGU Insurance).
The accident took place at around 2:00 p.m. as the oil tanker was coming from Balintawak and
heading towards Manila. Upon reaching the intersection of Bonifacio Street and Del Monte Avenue,
the oil tanker turned left. While the driver of the oil tanker was executing a left turn side by side with
another vehicle towards Del Monte Avenue, the oil tanker hit Loretta who was then crossing Del
Monte Avenue coming from Mayon Street. Due to the strong impact, Loretta was violently thrown
away about three to five meters from the point of impact. She fell to the ground unconscious. She was
brought for treatment to the Chinese General Hospital where she remained in a coma until her death
two days after.9
The spouses Baylon filed with the RTC (Branch 35) of Gapan City a Complaint10 for damages
against petitioner, BG Hauler, the driver, and FGU Insurance. Petitioner filed its answer with
compulsory counterclaim while FGU Insurance filed its answer with counterclaim. On the other hand,
BG Hauler filed its answer with compulsory counterclaim and cross-claim against FGU Insurance
Petitioner claimed that the spouses Baylon had no cause of action against it because under its lease
contract with BG Hauler, petitioner was not liable for any loss, damage, or injury that the leased oil

tanker might cause. Petitioner claimed that no employer-employee relationship existed between
petitioner and the driver.
BG Hauler alleged that neither do the spouses Baylon have a cause of action against it since the oil
tanker was not registered in its name. BG Hauler contended that the victim was guilty of contributory
negligence in crossing the street. BG Hauler claimed that even if its driver was at fault, BG Hauler
exercised the diligence of a good father of a family in the selection and supervision of its driver. BG
Hauler also contended that FGU Insurance is obliged to assume all liabilities arising from the use of
the insured oil tanker.
For its part, FGU Insurance averred that the victim was guilty of contributory negligence. FGU
Insurance concluded that the spouses Baylon could not expect to be paid the full amount of their
claims. FGU Insurance pointed out that the insurance policy covering the oil tanker limited any claim
to a maximum of P400,000.00
During trial, FGU Insurance moved that (1) it be allowed to deposit in court the amount of
P450,000.00 in the joint names of the spouses Baylon, petitioner, and BG Hauler and (2) it be
released from further participating in the proceedings. After the RTC granted the motion, FGU
Insurance deposited in the Branch Clerk of Court a check in the names of the spouses Baylon,
petitioner, and BG Hauler. The RTC then released FGU Insurance from its contractual obligations
under the insurance policy.
The Ruling of the RTC
After weighing the evidence submitted by the parties, the RTC found that the death of Loretta was
due to the negligent act of the driver. The RTC held that BG Hauler, as the employer, was solidarily
liable with the driver. The RTC further held that petitioner, as the registered owner of the oil tanker,
was also solidarily liable.
The RTC found that since FGU Insurance already paid the amount of P450,000.00 to the spouses
Baylon, BG Hauler, and petitioner, the insurers obligation has been satisfactorily fulfilled. The RTC
thus dismissed the cross-claim of BG Hauler against FGU Insurance. The decretal part of the RTCs
decision reads:
Wherefore, premises considered, judgment is hereby rendered in favor of the plaintiffs and against
defendants FEB Leasing (now BPI Leasing), BG Hauler, and Manuel Estilloso, to wit:
1. Ordering the defendants, jointly and severally, to pay plaintiffs the following:a. the amount of
P62,000.00 representing actual expenses incurred by the plaintiffs;b. the amount of P50,000.00 as
moral damages;c. the amount of P2,400,000.00 for loss of earning capacity of the deceased victim,
Loretta V. Baylon;d. the sum of P50,000.00 for death indemnity;e. the sum of P50,000.00 for and as
attorneys fees; andf. with costs against the defendants.
2. Ordering the dismissal of defendants counter-claim for lack of merit and the cross claim of
defendant BG Hauler against defendant FGU Insurance.

SO ORDERED.1
Petitioner, BG Hauler, and the driver appealed the RTC Decision to the Court of Appeals. Petitioner
claimed that as financial lessor, it is exempt from liability resulting from any loss, damage, or injury the
oil tanker may cause while being operated by BG Hauler as financial lessee.
On the other hand, BG Hauler and the driver alleged that no sufficient evidence existed proving the
driver to be at fault. They claimed that the RTC erred in finding BG Hauler negligent despite the fact
that it had exercised the diligence of a good father of a family in the selection and supervision of its
driver and in the maintenance of its vehicles. They contended that petitioner, as the registered owner
of the oil tanker, should be solely liable for Lorettas death.
The Ruling of the Court of Appeals
The Court of Appeals held that petitioner, BG Hauler, and the driver are solidarily liable for damages
arising from Lorettas death. Petitioners liability arose from the fact that it was the registered owner of
the oil tanker while BG Haulers liability emanated from a provision in the lease contract providing that
the lessee shall be liable in case of any loss, damage, or injury the leased oil tanker may cause.
Thus, the Court of Appeals affirmed the RTC Decision but with the modification that the award of
attorneys fees be deleted for being speculative. The dispositive part of the appellate courts Decision
reads:
WHEREFORE, in the light of the foregoing, the instant appeal is DENIED. Consequently, the assailed
Decision of the lower court is AFFIRMED with the MODIFICATION that the award of attorneys fees is
DELETED.
IT IS SO ORDERED.12
Dissatisfied, petitioner and BG Hauler, joined by the driver, filed two separate motions for
reconsideration. In its 18 January 2008 Resolution, the Court of Appeals denied both motions for lack
of merit
Unconvinced, petitioner alone filed with this Court the present petition for review on certiorari
impleading the spouses Baylon, BG Hauler, and the driver as respondents.13
The Issue The sole issue submitted for resolution is whether the registered owner of a financially
leased vehicle remains liable for loss, damage, or injury caused by the vehicle notwithstanding an
exemption provision in the financial lease contract.
The Courts RulinG
Petitioner contends that the lease contract between BG Hauler and petitioner specifically provides
that BG Hauler shall be liable for any loss, damage, or injury the leased oil tanker may cause even if
petitioner is the registered owner of the said oil tanker. Petitioner claims that the Court of Appeals

erred in holding petitioner solidarily liable with BG Hauler despite having found the latter liable under
the lease contract.
For their part, the spouses Baylon counter that the lease contract between petitioner and BG Hauler
cannot bind third parties like them. The spouses Baylon maintain that the existence of the lease
contract does not relieve petitioner of direct responsibility as the registered owner of the oil tanker that
caused the death of their daughter
On the other hand, BG Hauler and the driver argue that at the time petitioner and BG Hauler entered
into the lease contract, Republic Act No. 598014 was still in effect. They point out that the amendatory
law, Republic Act No. 8556,15 which exempts from liability in case of any loss, damage, or injury to
third persons the registered owners of vehicles financially leased to another, was not yet enacted at
that time.
In point is the 2008 case of PCI Leasing and Finance, Inc. v. UCPB General Insurance Co., Inc.16
There, we held liable PCI Leasing and Finance, Inc., the registered owner of an 18-wheeler Fuso
Tanker Truck leased to Superior Gas & Equitable Co., Inc. (SUGECO) and being driven by the latters
driver, for damages arising from a collision. This despite an express provision in the lease contract to
the effect that the lessee, SUGECO, shall indemnify and hold the registered owner free from any
liabilities, damages, suits, claims, or judgments arising from SUGECOs use of the leased motor
vehicle
In the instant case, Section 5.1 of the lease contract between petitioner and BG Hauler provides:
Sec. 5.1. It is the principle of this Lease that while the title or ownership of the EQUIPMENT, with all
the rights consequent thereof, are retained by the LESSOR, the risk of loss or damage of the
EQUIPMENT from whatever source arising, as well as any liability resulting from the ownership,
operation and/or possession thereof, over and above those actually compensated by insurance, are
hereby transferred to and assumed by the LESSEE hereunder which shall continue in full force and
effect.17 (Emphasis supplied)
If it so wishes, petitioner may proceed against BG Hauler to seek enforcement of the latters
contractual obligation under Section 5.1 of the lease contract. In the present case, petitioner did not
file a cross-claim against BG Hauler. Hence, this Court cannot require BG Hauler to reimburse
petitioner for the latters liability to the spouses Baylon. However, as the registered owner of the oil
tanker, petitioner may not escape its liability to third persons
Under Section 5 of Republic Act No. 4136,18 as amended, all motor vehicles used or operated on or
upon any highway of the Philippines must be registered with the Bureau of Land Transportation (now
Land Transportation Office) for the current year.19 Furthermore, any encumbrances of motor vehicles
must be recorded with the Land Transportation Office in order to be valid against third parties.20
In accordance with the law on compulsory motor vehicle registration, this Court has consistently ruled
that, with respect to the public and third persons, the registered owner of a motor vehicle is directly
and primarily responsible for the consequences of its operation regardless of who the actual vehicle
owner might be.21 Well-settled is the rule that the registered owner of the vehicle is liable for quasi-

delicts resulting from its use. Thus, even if the vehicle has already been sold, leased, or transferred to
another person at the time the vehicle figured in an accident, the registered vehicle owner would still
be liable for damages caused by the accident. The sale, transfer or lease of the vehicle, which is not
registered with the Land Transportation Office, will not bind third persons aggrieved in an accident
involving the vehicle. The compulsory motor vehicle registration underscores the importance of
registering the vehicle in the name of the actual owner
The policy behind the rule is to enable the victim to find redress by the expedient recourse of
identifying the registered vehicle owner in the records of the Land Transportation Office. The
registered owner can be reimbursed by the actual owner, lessee or transferee who is known to him.
Unlike the registered owner, the innocent victim is not privy to the lease, sale, transfer or
encumbrance of the vehicle. Hence, the victim should not be prejudiced by the failure to register such
transaction or encumbrance. As the Court held in PCI Leasing:
The burden of registration of the lease contract is minuscule compared to the chaos that may result if
registered owners or operators of vehicles are freed from such responsibility. Petitioner pays the price
for its failure to obey the law on compulsory registration of motor vehicles for registration is a prerequisite for any person to even enjoy the privilege of putting a vehicle on public roads.22
In the landmark case of Erezo v. Jepte,23 the Court succinctly laid down the public policy behind the
rule, thus:
The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or
that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can
be fixed on a definite individual, the registered owner. Instances are numerous where vehicles
running on public highways caused accidents or injuries to pedestrians or other vehicles without
positive identification of the owner or drivers, or with very scant means of identification. It is to
forestall these circumstances, so inconvenient or prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the determination of persons responsible for
damages or injuries caused on public highways.x x x
Were a registered owner allowed to evade responsibility by proving who the supposed transferee or
owner is, it would be easy for him, by collusion with others or, or otherwise, to escape said
responsibility and transfer the same to an indefinite person, or to one who possesses no property with
which to respond financially for the damage or injury done. A victim of recklessness on the public
highways is usually without means to discover or identify the person actually causing the injury or
damage. He has no means other than by a recourse to the registration in the Motor Vehicles Office to
determine who is the owner. The protection that the law aims to extend to him would become illusory
were the registered owner given the opportunity to escape liability by disproving his ownership. If the
policy of the law is to be enforced and carried out, the registered owner should not be allowed to
prove the contrary to the prejudice of the person injured, that is to prove that a third person or another
has become the owner, so that he may be thereby be relieved of the responsibility to the injured
person.24
In this case, petitioner admits that it is the registered owner of the oil tanker that figured in an accident
causing the death of Loretta. As the registered owner, it cannot escape liability for the loss arising out

of negligence in the operation of the oil tanker. Its liability remains even if at the time of the accident,
the oil tanker was leased to BG Hauler and was being driven by the latters driver, and despite a
provision in the lease contract exonerating the registered owner from liability.
As a final point, we agree with the Court of Appeals that the award of attorneys fees by the RTC must
be deleted for lack of basis. The RTC failed to justify the award of P50,000 attorneys fees to
respondent spouses Baylon. The award of attorneys fees must have some factual, legal and
equitable bases and cannot be left to speculations and conjectures.25 Consistent with prevailing
jurisprudence,26 attorneys fees as part of damages are awarded only in the instances enumerated in
Article 2208 of the Civil Code.27 Thus, the award of attorneys fees is the exception rather than the
rule. Attorneys fees are not awarded every time a party prevails in a suit because of the policy that no
premium should be placed on the right to litigate.28
WHEREFORE, we DENY the petition. We AFFIRM the 9 October 2007 Decision and the 18 January
2008 Resolution of the Court of Appeals in CA-G.R. CV No. 81446 affirming with modification the 30
October 2003 Decision of the Regional Trial Court (Branch 35) of Gapan City in Civil Case No. 2334
ordering petitioner FEB Leasing and Finance Corporation, BG Hauler, Inc., and driver Manuel Y.
Estilloso to solidarily pay respondent spouses Sergio P. Baylon and Maritess Villena-Baylon the
following amounts:
P62,000.00 representing actual expenses incurred by the plaintiffs;b. P50,000.00 as moral
damages;c. P2,400,000.00 for loss of earning capacity of the deceased victim, Loretta V. Baylon;
andd. P50,000.00 for death indemnity. Costs against petitioner.
STRICT LIABILITY TORTS
BENGZON
In this case the motion for reconsideration of the decision promulgated on October 26, 1935, was
granted and the case set for re-argument on December 17, 1935. The court having had the benefit of
the oral argument of counsel on the issue of their present value of the premises of the plaintiffappellant involved in this suit, its decision of October 26, 1935, is amended to read as follows:
This is an appeal from a judgment of the Court of First Instance of Pangasinan in action for damages
for maintaining a nuisance continuously injurious to the plaintiff and his family by reason of the
maintenance and operation of a stand pipe, pumping station and open reservoir for the storage of
water upon the premises immediately adjacent to the plaintiff's residence.
It appears from the stipulation of facts that the plaintiff owns a house constructed of wood and
covered with nipa on Avenida Rizal, municipality of Lingayen, Province of Pangasinan; that he had
and his family have resided there for twenty-seven years, his family being composed of eight
members. Their house is two stories constructed upon a lot which contains 720 square meter. Upon
the adjacent lot the defendant, during the years 1924 and 1925, constructed a reinforced concrete
stand pipe 28 meters high and nine meters in diameter. Within the base of this cylindrical tank there
are three machines: One electrical, one gasoline and one crude oil. On the side of the tank nearest

the plaintiff's residence and at a distance of 3.4 meters is a chimney which rises to about the height of
the gable of the house. The tank itself is 3.8 meters from the house of the plaintiff.
In March, 1927, the plaintiff protested to the governor of the province for the manner in which the
plant was being operated and asked that he be indemnified for the value of his house and lot so that
he might move his family and his effects to another residence. In this protest he stated:
"Expide humo y olor desagradable que penetran en el interior de mi casa, aun cerradas sus
ventanas, molestos y perjudiciales a nuestra salud. La chimenea de la maquina, que esta en en el
lado del tanque, contiguo al alero de mi casa, aunque esta envuela en la cabeza como una red de
acero chispea en ocasiones en que detro de la red se ha acumulado por el humo bastante suciedad
inflamable, y si algumas tiguo de mi casa, techada de nipa, ella naturalmente nada de su contenido.
"El tangue nos asusta y ponne en en peligro de ser aplastadoos por el, siempre que ocurre un
tembor como ya ha ocurrido varias veces desde su levantamiento, por sus porciones y condiciones
mencionadas, y la circunstancia de estar plantado sobre terreno blado, bajo y anegadizo. No es
improbable, ni menos increible, que este tanque volcara o se tumbra, si ocurriera en Lingayen un
temblor tan fuerte como el ocurrido el ao 63 u 80 en Manila, o el occurrido en Japon en 1923, o en
la fecha 7 de estee mes, que derrumbo muchas casas, matando a millares de personas. Ninguna
personans, por sabia que sea, puede dar certidumre y seguridad de que no se tumbaria, por
cualquier terremoto fuerte que occuriera aqui en Lingayen, maxime, estado cargada de CIEN MIL
galones de agua en su parte superior. Y si en ocasion en que yo mi familia estuvieramos dormidos,
ocurrienran el temblor y el volacamiento del TANQUE hacia mi casa ay de nosotros!"
After making an ocular inspection of the plant and hearing the testimony of the witnesses, the
trial court came to the conclusion that although the operation of the pumps and the tank
creates some annoyance and discomfort to the plaintiff, these are but ordinary and incidental
to the reasonable conduct of the defendant's water system. The court further held that
inasmuch as the plaintiff did not protest till after the plan was constructed, his action is barred
for laches.
For this later conclusion of law the trial court cites no authority and we are not aware of any. It
is to be noted that this is not a suit for equitable relief but an action for damages. The doctrine
that one who consents to permits or acquiesces in the erection of structure with knowledge of
the purpose for which it is to be put and the consequences of its uses are productive of a
nuisance, is not applicable here, for the plaintiff neither consented to, permitted or acquiesced
in the erection of the structure; nor could it fairly be said that he had knowledge in advance of
all the consequences of the erection and the manner of operation of the plant here in question.
The amended complaint in this case was filed on January 4, 1930, from which we infer that the
suit was instituted some time before that date. But there is nothing in the record which
warrants the inference of an estoppel by acquiescence.
The learned trial judge, in his decision of January 27, 1934, made a careful and exhaustive
analysis both of the law and the evidence in this case. But after a careful examination of the
entire record, we cannot accept his conclusion that the evidence a case of actionable
nuisance.

In locating its pumping station within 3.8 meters from the house of the plaintiff, the defendant
should reasonably have foreseen that the noise, vibrations, smoke, odor and sparks coming
from the plant during its operation, not only during the day but during the night as well, would
cause a constant annoyance, discomfort and danger both to the property of the plaintiff and
the health and comport of himself and his family. The chimney which is just opposite the
plaintiff's house at a distance of only 3.4 meters emits smoke, gases of crude oil and gasoline
and occasionally sparks well. The plaintiff testified that at times the smoke blinds him and his
family affecting their lungs and their eyes and that the noise and vibrations affect their sleep.
As against the testimony of the plaintiff, who is exposed day in and day out to these conditions,
and of his neighbors who corroborate him, the brief ocular inspection made by the court on one
day, although conducted with eminent fairness, seems to us to be entitled to less weight. The
witnesses for the defendant, its employees, naturally minimize the harmful effects to the
plaintiff of the operation of the machines in the pumping plant. But the evidence as a whole
leaves us with clear conviction that the construction and operation of this pumping plant in
such close proximity to the plaintiff's residence has rendered the same practically
uninhabitable without exposing to risk the comfort, health and, in case of fire, even the live of
the plaintiff and his family.
We find from the preponderance of the evidence that the fair present value of the appellant's
premises involved in this suit is P3,000; and as, under the circumstances, the maintenance of
the nuisance is practically tantamount to an expropriation, we have concluded that the
defendant-appellee should be and it is hereby required and adjudged to pay by him to it of a
valid conveyance of the premises, free of liens and incumbrances, reserving to the plaintiffappellant the right to remove his improvements therefrom within three months from the date of
payment of the said P3,000.
The judgment appealed from is reserved and the cause is remanded for further proceedings in
accordance with this decision. No special pronouncement as to costs in this instance.
G.R. No. L-18390 August 6, 1971
PEDRO
J.
VELASCO, plaintiff-appellant,
vs.
MANILA ELECTRIC CO., WILLIAM SNYDER, its President; JOHN COTTON and
HERMENEGILDO B. REYES, its Vice-Presidents; and ANASTACIO A. AGAN, City Engineer of
Quezon City, defendants-appellees.
Q. Paredes, B. Evangelista and R. T. Durian for plaintiff-appellant.
Ross, Selph and Carrascoso for defendants-appellees Manila Electric Co., etc., et al.
Asst. City Fiscal Jaime R. Agloro for defendant-appellee Anastacio A. Agan, etc.

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

The present case is direct appeal (prior to Republic Act 5440) by the herein plaintiff-appellant, Pedro
J. Velasco (petitioner in L-14035; respondent in L-13992) * from the decision of the Court of First
Instance of Rizal, Quezon City Branch, in its Civil Case No. 1355, absolving the defendants from a
complaint for the abatement of the sub-station as a nuisance and for damages to his health and
business in the amount of P487,600.00.
In 1948, appellant Velasco bought from the People's Homesite and Housing Corporation three (3)
adjoining lots situated at the corner of South D and South 6 Streets, Diliman, Quezon City. These lots
are within an area zoned out as a "first residence" district by the City Council of Quezon City.
Subsequently, the appellant sold two (2) lots to the Meralco, but retained the third lot, which was
farthest from the street-corner, whereon he built his house.
In September, 1953, the appellee company started the construction of the sub-station in question and
finished it the following November, without prior building permit or authority from the Public Service
Commission (Meralco vs. Public Service Commission, 109 Phil. 603). The facility reduces high
voltage electricity to a current suitable for distribution to the company's consumers, numbering not
less than 8,500 residential homes, over 300 commercial establishments and about 30 industries
(T.s.n., 19 October 1959, page 1765). The substation has a rated capacity of "2 transformers at 5000
Kva each or a total of 10,000 Kva without fan cooling; or 6250 Kva each or a total of 12,500 Kva with
fan cooling" (Exhibit "A-3"). It was constructed at a distance of 10 to 20 meters from the appellant's
house (T.s.n., 16 July 1956, page 62; 19 December 1956, page 343; 1 June 1959, page 29). The
company built a stone and cement wall at the sides along the streets but along the side adjoining the
appellant's property it put up a sawale wall but later changed it to an interlink wire fence.
It is undisputed that a sound unceasingly emanates from the substation. Whether this sound
constitutes an actionable nuisance or not is the principal issue in this case.
Plaintiff-appellant Velasco contends that the sound constitutes an actionable nuisance under Article
694 of the Civil Code of the Philippines, reading as follows:
A nuisance is any act, omission, establishment, business condition of property or
anything else which:
(1) Injuries or endangers the health or safety of others; or
(2) Annoys or offends the senses;
xxx xxx xxx
because subjection to the sound since 1954 had disturbed the concentration and sleep of said
appellant, and impaired his health and lowered the value of his property. Wherefore, he sought a
judicial decree for the abatement of the nuisance and asked that he be declared entitled to recover
compensatory, moral and other damages under Article 2202 of the Civil Code.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences of the act or omission complained of.

It is not necessary that such damages have been foreseen or could have reasonably
been foreseen by the defendant.
After trial, as already observed, the court below dismissed the claim of the plaintiff, finding that the
sound of substation was unavoidable and did not constitute nuisance; that it could not have caused
the diseases of anxiety neurosis, pyelonephritis, ureteritis, lumbago and anemia; and that the items of
damage claimed by plaintiff were not adequate proved. Plaintiff then appealed to this Court.
The general rule is that everyone is bound to bear the habitual or customary inconveniences that
result from the proximity of others, and so long as this level is not surpassed, he may not complain
against them. But if the prejudice exceeds the inconveniences that such proximity habitually brings,
the neighbor who causes such disturbance is held responsible for the resulting damage, 1 being guilty
of causing nuisance.
While no previous adjudications on the specific issue have been made in the Philippines, our law of
nuisances is of American origin, and a review of authorities clearly indicates the rule to be that the
causing or maintenance of disturbing noise or sound may constitute an actionable nuisance (V. Ed.
Note, 23 ALR, 2d 1289). The basic principles are laid down in Tortorella vs. Traiser & Co., Inc., 90
ALR 1206:
A noise may constitute an actionable nuisance, Rogers vs. Elliott, 146 Mass, 349, 15
N.E. 768, 4 Am. St. Rep. 316, Stevens v. Rockport Granite Co., 216 Mass. 486, 104
N.E. 371, Ann. Cas. 1915B, 1954,Stodder v. Rosen Talking Machine Co., 241 Mass.
245, 135 N. E. 251, 22 A. L. R. 1197, but it must be a noise which affects injuriously the
health or comfort of ordinary people in the vicinity to an unreasonable extent. Injury to a
particular person in a peculiar position or of specially sensitive characteristics will not
render the noise an actionable nuisance. Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768,
4 Am. St. Rep. 316. In the conditions of present living noise seems inseparable from the
conduct of many necessary occupations. Its presence is a nuisance in the popular
sense in which that word is used, but in the absence of statute noise becomes
actionable only when it passes the limits of reasonable adjustment to the conditions of
the locality and of the needs of the maker to the needs of the listener. What those limits
are cannot be fixed by any definite measure of quantity or quality. They depend upon
the circumstances of the particular case. They may be affected, but are not controlled,
by zoning ordinances. Beane v. H. J. Porter, Inc., 280 Mass. 538, 182 N. E.
823, Marshal v. Holbrook, 276 Mass. 341, 177 N. E. 504, Strachan v. Beacon Oil Co.,
251 Mass. 479, 146 N. E. 787. The delimitation of designated areas to use for
manufacturing, industry or general business is not a license to emit every noise
profitably attending the conduct of any one of them. Bean v. H. J. Porter, Inc.. 280 Mass.
538, 182 N. E. 823. The test is whether rights of property of health or of comfort are so
injuriously affected by the noise in question that the sufferer is subjected to a loss which
goes beyond the reasonable limit imposed upon him by the condition of living, or of
holding property, in a particular locality in fact devoted to uses which involve the
emission of noise although ordinary care is taken to confine it within reasonable bounds;
or in the vicinity of property of another owner who though creating a noise is acting with

reasonable regard for the rights of those affected by it. Stevens v. Rockport Granite Co.,
216 Mass. 486, 104 NE 371, Ann. Cas. 1915B, 1054.
With particular reference to noise emanating from electrical machinery and appliances, the court,
in Kentucky & West Virginia Power Co. v. Anderson, 156 S. W. 2d 857, after a review of authorities,
ruled as follows:
There can be no doubt but that commercial and industrial activities which are lawful in
themselves may become nuisances if they are so offensive to the senses that they
render the enjoyment of life and property uncomfortable. It is no defense that skill and
care have been exercised and the most improved methods and appliances employed to
prevent such result. Wheat Culvert Company v. Jenkins, 246 Ky. 319, 55 S. W. 2d 4; 46
C.J. 683, 705; 20 R. C. L. 438; Annotations, 23 A. L. R. 1407; 90 A. L. R. 1207. Of
course, the creation of trifling annoyance and inconvenience does not constitute an
actionable nuisance, and the locality and surroundings are of importance. The fact that
the cause of the complaint must be substantial has often led to expressions in the
opinions that to be a nuisance the noise must be deafening or loud or excessive and
unreasonable. Usually it was shown to be of that character. The determinating factor
when noise alone is the cause of complaint is not its intensity or volume. It is that the
noise is of such character as to produce actual physical discomfort and annoyance to a
person of ordinary sensibilities, rendering adjacent property less comfortable and
valuable. If the noise does that it can well be said to be substantial and unreasonable in
degree; and reasonableness is a question of fact dependent upon all the circumstances
and conditions. 20 R. C. L. 445, 453; Wheat Culvert Company v. Jenkins, supra. There
can be no fixed standard as to what kind of noise constitutes a nuisance. It is true some
witnesses in this case say they have been annoyed by the humming of these
transformers, but that fact is not conclusive as to the nonexistence of the cause of
complaint, the test being the effect which is had upon an ordinary person who is neither
sensitive nor immune to the annoyance concerning which the complaint is made. In the
absence of evidence that the complainant and his family are supersensitive to
distracting noises, it is to be assumed that they are persons of ordinary and normal
sensibilities. Roukovina v. Island Farm Creamery Company, 160 Minn. 335, 200 N. W.
350, 38 A. L. R. 1502.
xxx xxx xxx
In Wheat Culvert Company vs. Jenkins, supra, we held an injunction was properly
decreed to stop the noise from the operation of a metal culvert factory at night which
interfered with the sleep of the occupants of an adjacent residence. It is true the
clanging, riveting and hammering of metal plates produces a sound different in
character from the steady hum or buzz of the electric machinery described in this case.
In the Jenkins case the noise was loud, discordant and intermittent. Here it is
interminable and monotonous. Therein lies the physical annoyance and disturbance.
Though the noise be harmonious and slight and trivial in itself, the constant and
monotonous sound of a cricket on the earth, or the drip of a leaking faucet is irritating,
uncomfortable, distracting and disturbing to the average man and woman. So it is that

the intolerable, steady monotony of this ceaseless sound, loud enough to interfere with
ordinary conversation in the dwelling, produces a result generally deemed sufficient to
constitute the cause of it an actionable nuisance. Thus, it has been held the continuous
and monotonous playing of a phonograph for advertising purposes on the street even
though there were various records, singing, speaking and instrumental, injuriously
affected plaintiff's employees by a gradual wear on their nervous systems, and
otherwise, is a nuisance authorizing an injunction and damages. Frank F. Stodder, et al.
v. Rosen Talking Machine Company, 241 Mass. 245, 135 N. E. 251, 22 A. L. R. 1197.
The principles thus laid down make it readily apparent that inquiry must be directed at the character
and intensity of the noise generated by the particular substation of the appellee. As can be
anticipated, character and loudness of sound being of subjective appreciation in ordinary witnesses,
not much help can be obtained from the testimonial evidence. That of plaintiff Velasco is too plainly
biased and emotional to be of much value. His exaggerations are readily apparent in paragraph V of
his amended complaint, signed by him as well as his counsel, wherein the noise complained of as
fearful hazardous noise and clangor are produced by the said electric transformer of the
MEC's substation, approximating a noise of a reactivated about-to-explode volcano,
perhaps like the nerve wracking noise of the torture chamber in Germany's Dachau or
Buchenwald (Record on Appeal, page 6).
The estimate of the other witnesses on the point of inquiry are vague and imprecise, and fail to give a
definite idea of the intensity of the sound complained of. Thus:
OSCAR SANTOS, Chief Building Inspector, Department of Engineering, Quezon City ____ "the
sound (at the front door of plaintiff Velasco's house) becomes noticeable only when I tried to
concentrate ........" (T.s.n., 16 July 1956, page 50)
SERAFIN VILLARAZA, Building Inspector ____ "..... like a high pitch note." (the trial court's
description as to the imitation of noise made by witness:"........ more of a hissing sound) (T.s.n., 16
July 1956, pages 59-60)
CONSTANCIO SORIA, City Electrician ____ "........ humming sound" ..... "of a running car". (T.s.n., 16
July 1956, page 87)
JOSE R. ALVAREZ, Sanitary Engineer, Quezon City Health Department ____ "..... substation emits a
continuous rumbling sound which is audible within the premises and at about a radius of 70 meters."
"I stayed there from 6:00 p.m. to about 1:00 o'clock in the morning" ..... "increases with the approach
of twilight." (T.s.n., 5 September 1956, pages 40-44)
NORBERTO S. AMORANTO, Quezon City Mayor ____ (for 30 minutes in the street at a distance of
12 to 15 meters from sub-station) "I felt no effect on myself." "..... no [piercing noise]" (T.s.n., 18
September 1956, page 189)
PACIFICO AUSTRIA, architect, appellant's neighbor: "..... like an approaching airplane ..... around five
kilometers away." (T.s.n., 19 November 1956, pages 276-277)

ANGEL DEL ROSARIO, radiologist, appellant's neighbor: "..... as if it is a running motor or a running
dynamo, which disturbs the ear and the hearing of a person." T.s.n., 4 December 1956, page 21)
ANTONIO D. PAGUIA, lawyer ____ "It may be likened to the sound emitted by the whistle of a boat at
a far distance but it is very audible." (T.s.n., 19 December 1956, page 309)
RENE RODRIGUEZ, sugar planter and sugar broker, appellant's neighbor ____ "It sounds like a big
motor running continuously." (T.s.n., 19 December 1956, page 347)
SIMPLICIO BELISARIO, Army captain, ____ (on a visit to Velasco) "I can compare the noise to an
airplane C-47 being started - the motor." [Did not notice the noise from the substation when passing
by, in a car, Velasco's house] (T.s.n., 7 January 1957, pages 11-12)
MANOLO CONSTANTINO, businessman, appellant's neighbor ____ "It disturbs our concentration of
mind." (T.s.n., 10 January 1957, page 11)
PEDRO PICA, businessman, appellant's neighbor: "..... We can hear it very well [at a distance of 100
to 150 meters]. (T.s.n., 10 January 1957, page 41)
CIRENEO PUNZALAN, lawyer ____ "..... a continuous droning, ..... like the sound of an airplane."
(T.s.n., 17 January 1957, page 385)
JAIME C. ZAGUIRRE, Chief, Neuro-Psychiatry Section, V. Luna Gen. Hospital ____ ".....
comparatively the sound was really loud to bother a man sleeping." (T.s.n., 17 January 1957, page
406)
We are thus constrained to rely on quantitative measurements shown by the record. Under
instructions from the Director of Health, samplings of the sound intensity were taken by Dr. Jesus
Almonte using a sound level meter and other instruments. Within the compound of the plaintiffappellant, near the wire fence serving as property line between him and the appellee, on 27 August
1957 at 11:45 a.m., the sound level under the sampaloc tree was 46-48 decibels, while behind
Velasco's kitchen, the meter registered 49-50; at the same places on 29 August 1957, at 6:00 a.m.,
the readings were 56-59 and 61-62 decibels, respectively; on 7 September 1957, at 9:30 a.m., the
sound level under the sampaloc tree was 74-76 decibels; and on 8 September 1957 at 3:35 in the
morning, the reading under the same tree was 70 decibels, while near the kitchen it was 79-80
decibels. Several measurements were also taken inside and outside the house (Exhibit "NN-7, b-f").
The ambient sound of the locality, or that sound level characteristic of it or that sound predominating
minus the sound of the sub-station is from 28 to 32 decibels. (T.s.n., 26 March 1958, pages 6-7)
Mamerto Buenafe, superintendent of the appellee's electrical laboratory, also took sound level
samplings. On 19 December 1958, between 7:00 to 7:30 o'clock in the evening, at the substation
compound near the wire fence or property line, the readings were 55 and 54 and still near the fence
close to the sampaloc tree, it was 52 decibels; outside but close to the concrete wall, the readings
were 42 to 43 decibels; and near the transformers, it was 76 decibels (Exhibit "13").

Buenafe also took samplings at the North General Hospital on 4 January 1959 between 9:05 to 9:45
in the evening. In the different rooms and wards from the first to the fourth floors, the readings varied
from 45 to 67 decibels.
Technical charts submitted in evidence show the following intensity levels in decibels of some familiar
sounds: average residence: 40; average office: 55; average automobile, 15 feet: 70; noisiest spot at
Niagara Falls: 92 (Exhibit "11- B"); average dwelling: 35; quiet office: 40; average office: 50;
conversation: 60; pneumatic rock drill: 130 (Exhibit "12"); quiet home average living room: 40;
home ventilation fan, outside sound of good home airconditioner or automobile at 50 feet: 70 (Exhibit
"15-A").
Thus the impartial and objective evidence points to the sound emitted by the appellee's substation
transformers being of much higher level than the ambient sound of the locality. The measurements
taken by Dr. Almonte, who is not connected with either party, and is a physician to boot (unlike
appellee's electrical superintendent Buenafe), appear more reliable. The conclusion must be that,
contrary to the finding of the trial court, the noise continuously emitted, day and night, constitutes an
actionable nuisance for which the appellant is entitled to relief, by requiring the appellee company to
adopt the necessary measures to deaden or reduce the sound at the plaintiff's house, by replacing
the interlink wire fence with a partition made of sound absorbent material, since the relocation of the
substation is manifestly impracticable and would be prejudicial to the customers of the Electric
Company who are being serviced from the substation.
Appellee company insists that as the plaintiff's own evidence (Exhibit "NN-7[c]") the intensity of the
sound (as measured by Dr. Almonte) inside appellant's house is only 46 to 47 decibels at the
consultation room, and 43 to 45 decibels within the treatment room, the appellant had no ground to
complain. This argument is not meritorious, because the noise at the bedrooms was determined to be
around 64-65 decibels, and the medical evidence is to the effect that the basic root of the appellant's
ailments was his inability to sleep due to the incessant noise with consequent irritation, thus
weakening his constitution and making him easy prey to pathogenic germs that could not otherwise
affect a person of normal health.
In Kentucky and West Virginia Co., Inc. vs. Anderson, 156 SW. 857, the average of three readings
along the plaintiff's fence was only 44 decibels but, because the sound from the sub-station was
interminable and monotonous, the court authorized an injunction and damages. In the present case,
the three readings along the property line are 52, 54 and 55 decibels. Plaintiff's case is manifestly
stronger.
Appellee company argues that the plaintiff should not be heard to complain because the sound level
at the North General Hospital, where silence is observed, is even higher than at his residence. This
comparison lacks basis because it has not been established that the hospital is located in
surroundings similar to the residential zone where the plaintiff lived or that the sound at the hospital is
similarly monotonous and ceaseless as the sound emitted by the sub-station.
Constancio Soria testified that "The way the transformers are built, the humming sound cannot be
avoided". On this testimony, the company emphasizes that the substation was constructed for public
convenience. Admitting that the sound cannot be eliminated, there is no proof that it cannot be

reduced. That the sub-station is needed for the Meralco to be able to serve well its customers is no
reason, however, why it should be operated to the detriment and discomfort of others. 2
The fact that the Meralco had received no complaint although it had been operating hereabouts for
the past 50 years with substations similar to the one in controversy is not a valid argument. The
absence of suit neither lessens the company's liability under the law nor weakens the right of others
against it to demand their just due.
As to the damages caused by the noise, appellant Velasco, himself a physician, claimed that the
noise, as a precipitating factor, has caused him anxiety neurosis, which, in turn, predisposed him to,
or is concomitant with, the other ailments which he was suffering at the time of the trial, namely,
pyelonephritis, ureteritis and others; that these resulted in the loss of his professional income and
reduced his life expectancy. The breakdown of his claims is as follows:
Loss
of
professional
earnings
Damage
to
life
expectancy
Moral
damages
Loss
due
to
frustration
of
sale
of
house
Exemplary
damages
Attorneys' fees 45,000

P12,600
180,000
100,000
125,000
25,000

A host of expert witnesses and voluminous medical literature, laboratory findings and statistics of
income were introduced in support of the above claims.
The medical evidence of plaintiff's doctors preponderates over the expert evidence for defendantappellee, not merely because of its positive character but also because the physicians presented by
plaintiff had actually treated him, while the defense experts had not done so. Thus the evidence of the
latter was to a large extent conjectural. That appellant's physical ailments should be due to infectious
organisms does not alter the fact that the loss of sleep, irritation and tension due to excessive noise
weakened his constitution and made him easy prey to the infection.
Regarding the amount of damages claimed by appellant, it is plain that the same are exaggerated. To
begin with, the alleged loss of earnings at the rate of P19,000 per annum is predicated on the Internal
Revenue assessment, Exhibit "QQ-1", wherein appellant was found to have undeclared income of
P8,338.20 in additional to his declared gross income of P10,975.00 for 1954. There is no competent
showing, however, that the source of such undeclared income was appellant's profession. In fact, the
inference would be to the contrary, for his gross income from the previous years 1951 to 1953
[Exhibits "QQ-1 (d)" to "QQ-1 (f)"] was only P8,085.00, P5,860.00 and P7,120.00, respectively, an
average of P7,000.00 per annum. Moreover, while his 1947 and 1948 income was larger (P9,995.00
and P11,900.00), it appears that P5,000 thereof was the appellant's annual salary from the Quezon
Memorial Foundation, which was not really connected with the usual earnings derived from practice
as a physician. Considering, therefore, his actual earnings, the claimed moral damages of
P100,000.00 are utterly disproportionate. The alleged losses for shortening of appellant's, life
expectancy are not only inflated but speculative.

As to the demand for exemplary or punitive damages, there appears no adequate basis for their
award. While the appellee Manila Electric Company was convicted for erecting the substation in
question without permit from the Public Service Commission, We find reasonable its explanation that
its officials and counsel had originally deemed that such permit was not required as the installation
was authorized by the terms of its franchise (as amended by Republic Act No. 150) requiring it to
spend within 5 years not less than forty million pesos for maintenance and additions to its electric
system, including needed power plants and substations. Neither the absence of such permit from the
Public Service Commission nor the lack of permit from the Quezon City authorities (a permit that was
subsequently granted) is incompatible with the Company's good faith, until the courts finally ruled that
its interpretation of the franchise was incorrect.
There are, moreover, several factors that mitigate defendant's liability in damages. The first is that the
noise from the substation does not appear to be an exclusive causative factor of plaintiff-appellant's
illnesses. This is proved by the circumstance that no other person in Velasco's own household nor in
his immediate neighborhood was shown to have become sick despite the noise complained of. There
is also evidence that at the time the plaintiff-appellant appears to have been largely indebted to
various credit institutions, as a result of his unsuccessful gubernatorial campaign, and this court can
take judicial cognizance of the fact that financial worries can affect unfavorably the debtor's
disposition and mentality.
The other factor militating against full recovery by the petitioner Velasco in his passivity in the face of
the damage caused to him by the noise of the substation. Realizing as a physician that the latter was
disturbing or depriving him of sleep and affecting both his physical and mental well being, he did not
take any steps to bring action to abate the nuisance or remove himself from the affected area as soon
as the deleterious effects became noticeable. To evade them appellant did not even have to sell his
house; he could have leased it and rented other premises for sleeping and maintaining his office and
thus preserve his health as ordinary prudence demanded. Instead he obstinately stayed until his
health became gravely affected, apparently hoping that he would thereby saddle appellee with large
damages.
The law in this jurisdiction is clear. Article 2203 prescribes that "The party suffering loss or injury must
exercise the diligence of a good father of a family to minimize the damages resulting from the act or
omission in question". This codal rule, which embodies the previous jurisprudence on the
point, 3 clearly obligates the injured party to undertake measures that will alleviate and not aggravate
his condition after the infliction of the injury, and places upon him the burden of explaining why he
could not do so. This was not done.
Appellant Velasco introduced evidence to the effect that he tried to sell his house to Jose Valencia,
Jr., in September, 1953, and on a 60 day option, for P95,000.00, but that the prospective buyer
backed out on account of his wife objecting to the noise of the substation. There is no reliable
evidence, however, how much were appellant's lot and house worth, either before the option was
given to Valencia or after he refused to proceed with the sale or even during the intervening period.
The existence of a previous offer for P125,000.00, as claimed by the plaintiff, was not corroborated by
Valencia. What Valencia testified to in his deposition is that when they were negotiating on the price
Velasco mentioned to him about an offer by someone for P125,000.00. The testimony of Valencia
proves that in the dialogue between him and Velasco, part of the subject of their conversation was

about the prior offer, but it does not corroborate or prove the reality of the offer for P125,000.00. The
testimony of Velasco on this point, standing alone, is not credible enough, what with his penchant for
metaphor and exaggeration, as previously adverted to. It is urged in appellant's brief, along the lines
of his own testimony, that since one (1) transformer was measured by witness, Jimenez with a noise
intensity of 47.2 decibels at a distance of 30.48 meters, the two (2) transformers of the substation
should create an intensity of 94.4 decibels at the same distance. If this were true, then the residence
of the plaintiff is more noisy than the noisiest spot at the Niagara Falls, which registers only 92
decibels (Exhibit "15-A").
Since there is no evidence upon which to compute any loss or damage allegedly incurred by the
plaintiff by the frustration of the sale on account of the noise, his claim therefore was correctly
disallowed by the trial court. It may be added that there is no showing of any further attempts on the
part of appellant to dispose of the house, and this fact suffices to raise doubts as to whether he truly
intended to dispose of it. He had no actual need to do so in order to escape deterioration of his
health, as heretofore noted.
Despite the wide gap between what was claimed and what was proved, the plaintiff is entitled to
damages for the annoyance and adverse effects suffered by him since the substation started
functioning in January, 1954. Considering all the circumstances disclosed by the record, as well as
appellant's failure to minimize the deleterious influences from the substation, this Court is of the
opinion that an award in the amount of P20,000.00, by way of moderate and moral damages up to the
present, is reasonable. Recovery of attorney's fees and litigation expenses in the sum of P5,000.00 is
also
justified the factual and legal issues were intricate (the transcript of the stenographic notes is about
5,000 pages, side from an impressive number of exhibits), and raised for the first time in this
jurisdiction. 4
The last issue is whether the City Engineer of Quezon City, Anastacio A. Agan, a co-defendant, may
be held solidarily liable with Meralco.
Agan was included as a party defendant because he allegedly (1) did not require the Meralco to
secure a building permit for the construction of the substation; (2) even defended its construction by
not insisting on such building permit; and (3) did not initiate its removal or demolition and the criminal
prosecution of the officials of the Meralco.
The record does not support these allegations. On the first plea, it was not Agan's duty to require the
Meralco to secure a permit before the construction but for Meralco to apply for it, as per Section 1.
Ordinance No. 1530, of Quezon City. The second allegation is not true, because Agan wrote the
Meralco requiring it to submit the plan and to pay permit fees (T.s.n., 14 January 1960, pages 20812082). On the third allegation, no law or ordinance has been cited specifying that it is the city
engineer's duty to initiate the removal or demolition of, or for the criminal prosecution of, those
persons who are responsible for the nuisance. Republic Act 537, Section 24 (d), relied upon by the
plaintiff, requires an order by, or previous approval of, the mayor for the city engineer to cause or
order the removal of buildings or structures in violation of law or ordinances, but the mayor could not
be expected to take action because he was of the belief, as he testified, that the sound "did not have
any effect on his body."

FOR THE FOREGOING REASONS, the appealed decision is hereby reversed in part and affirmed in
part. The defendant-appellee Manila Electric Company is hereby ordered to either transfer its
substation at South D and South 6 Streets, Diliman, Quezon City, or take appropriate measures to
reduce its noise at the property line between the defendant company's compound and that of the
plaintiff-appellant to an average of forty (40) to fifty (50) decibels within 90 days from finality of this
decision; and to pay the said plaintiff-appellant P20,000.00 in damages and P5,000.00 for attorney's
fees. In all other respects, the appealed decision is affirmed. No costs.
LIABILITY OF PROVINCES
G.R. No. 61516 March 21, 1989
FLORENTINA A. GUILATCO, petitioner, vs.CITY OF DAGUPAN, and the HONORABLE COURT
OF APPEALS, 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 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.
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
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:
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 appliesin 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 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.
We do not agree.
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." 10This 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
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
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
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

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:
(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.
CITY
OF
vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents..

MANILA, petitioner,

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 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 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, kiteflying, 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."
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

PR
PROPRIETOR OF BUILDING
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.
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. 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.
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)
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 7314653, 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.
THROWING OR FALLING OBJECTS
Jose Dingcong was the owner of a hotel in Iloilo. In 1933, a certain Francisco Echevarria rented a
room in the upper floor of the hotel. The room he rented was immediately above the store occupied
by the Kanaan brothers who are also tenants of the hotel. One night, Echevarria carelessly left his
faucet open thereby flooding his room and it caused water to drip from his room to the store below.
Because of this, the articles being sold by Kanaan were damaged. Apparently also, the water pipes
supposed to drain the water from Echevarrias room was defective hence the flooding and the
dripping.
ISSUE: Whether or not Dingcong is liable to pay for the damages caused by Echevarria.
HELD: Yes. Dingcong as proprietor is liable for the negligent act of the guest of his hotel (Echevarria).
It was not shown that Dingcong exercised the diligence of a good father in preventing the damage
caused. The pipe should have been repaired prior and Echevarria should have been provided with a
container to catch the drip. Therefore, Dingcong is liable to pay for damages by reason of his
negligence.
LIABILITY OF JOINT TORTFEASORS
G.R. No. L-30860 March 29, 1972
HERMINIA MANIO, DOMINGA GUEVARRA, MATILDE GUEVARRA, JOSE GUEVARRA,
ABELARDO GUEVARRA, GLORIA GUEVARRA, and ZENAIDA GUEVARRA, plaintiffs-appellants,
(petitioners),
vs.
THE HON. CEFERINO GADDI, Judge of the CFI of Pampanga, Branch IV, Angeles City, LUIS
BALANZA, FRANCISCO BALANZA, RUSTICA BALANZA, ALBERTO DAVID, and DOROTEA
DAVID, respondents.
CONCEPCION, C.J.:p
Appeal by certiorari from a decision of the Court of First Instance of Pampanga, dismissing Civil Case
No. A-10 of said court, entitled "Herminia S. Manio v. Luis Balanza, et al."
The record shows that on or about December 27, 1968, the acting city fiscal of Angeles City filed with
the city court thereof an information, which was docketed as Criminal Case No. C-6258 of said court,
charging Luis Balanza, one of the respondents herein, who is 16 years of age, with homicide through
reckless negligence. It is alleged in said information "(t)hat on or about the 10th day of December,
1968, at Angeles City, Philippines," said accused, being the person in "charge of a rig with plate No.
C-569, without taking the necessary care and precautions to avoid injuries to persons, did then and
there wilfully, unlawfully and feloniously drive the said vehicle along Rizal Street," of said city, "in a

careless, reckless and imprudent manner and in utter disregard of traffic laws, rules and regulations
and by reason of such carelessness, recklessness and imprudence, a pedestrian," whose identity
was then unknown but, who, later on, turned out to be Melquiades Guevarra "was sideswept by
the rig, as a result of which the latter sustained physical injuries which caused his death."
Upon arraignment, Luis Balanza entered a plea of guilty, whereupon City Judge Nicias O. Mendoza,
who presided over said court, issued, on January 4, 1969, an order suspending the promulgation of
the sentence, by reason of the defendant's minority, and placing him under the custody of a city
councilor until he (the accused) shall have reached the age of 18 years, when said accused shall be
brought back to the court for its final action on the criminal aspect of the case. The court further
ordered the accused "to pay the sum of P6,000.00 to the heirs of the deceased."
Soon thereafter, or on January 20, 1969, petitioners herein, namely, Herminia Manio, widow of the
deceased Melquiades Guevarra and their children, Dominga, Matilde, Jose, Abelardo, Gloria and
Zenaida Guevarra, as heirs of the deceased, filed, with the Court of First Instance of Pampanga and
Angeles City, presided over by respondent Judge, Hon. Ceferino Gaddi, a complaint, docketed as
Civil Case No. A-10 of said court, against said Luis Balanza, his parents Francisco and Rustica
Balanza, and his alleged employers and owners of said rig, the spouses Alberto and Dorotea David,
to recover damages in consequence of said death of Melquiades Guevarra due to the
aforementioned reckless negligence of Luis Balanza. After the filing of the requisite answers, in which
the defendants in said Civil Case No. A-10 private respondents herein denied the liability
imputed to them, the case was set for pre-trial, but neither the defendants nor their counsel appeared
at said proceeding, in view of which said defendants private respondents herein were declared
in default and the plaintiffs petitioners herein introduced their evidence before the clerk of court,
who had been commissioned therefor. From said evidence, it appeared, inter alia in the language
of respondent Judge Ceferino Gaddi
... that defendant Luis Balanza was charged in Criminal Case No. C-6258, of the City
Court of Angeles City (Branch II) entitled People vs. Luis Balanza y Bautista for
Homicide Thru Reckless Imprudence for the death of the deceased Melquiades
Guevarra as a result of the very negligent act of defendant Luis Balanza which is the
basis of the cause of action in the above entitled complaint, and that in that criminal
case defendant Luis Balanza pleaded guilty and was adjudged to pay the sum of
P6,000.00 (Exhibit G). Evidently the civil action was not reserved by the plaintiffs in that
case.
Relying upon Tactaquin v. Palileo, 1 respondent Judge Gaddi thereafter rendered the appealed
decision dismissing the case, upon the theory that the decision of the City Court of Angeles City, in
Criminal Case No. C-6258 thereof, awarding P6,000 to the heirs of the deceased, as damages,
barred the institution of said civil case, and that
... plaintiffs' remedy is to enforce the indemnity adjudged in the decision in criminal case
No. C-6258 of the City Court of Angeles City (Branch II) entitled People vs. Luis
Balanza y Bautista and in case of non-payment of the defendant Luis Balanza, to
pursue their remedy under Articles 102 and 103 of the Revised Penal Code.

Hence, the present petition, of the plaintiffs in the court of first instance, for review on certiorari,
against Judge Gaddi and the defendants in the aforementioned Civil Case No. A-10, which petition
was given due course.
It is conceded that no express reservation had been made in Criminal Case No.
C-6258 of the right of petitioners herein to file a separate civil action for damages, in view of which the
City Court of Angeles City and respondent Judge considered that said civil action had been impliedly
instituted with the criminal action, as provided in section 1 of Rule 111 of the Rules of Court, reading:
When a criminal action is instituted, the civil action for recovery of civil liability arising
from the offense charged is impliedly instituted with the criminal action, unless the
offended party expressly waives the civil action or reserves his right to institute it
separately.
Petitioners herein maintain that this provision is inapplicable to the present case and that the
Tactaquin case invoked by Judge Gaddi is not controlling in the one at bar, because, unlike said
petitioners, the offended party in the Tactaquin case had intervened actively through a private
prosecutor in the criminal case, and the defendant in the civil case had not only not been declared in
default, but, also, moved to dismiss said civil case. Indeed, the original decision of the Supreme Court
in the Tactaquin case was set aside in a subsequent resolution granting a reconsideration of said
decision and remanding the case to the lower court for further proceedings in the civil action, upon
the ground that the offended party had seasonably reserved, in the criminal case, her right to file a
separate civil action for damages. 2
Upon the other hand, herein respondents Francisco and Rustica Balanza and Alberto and Dorotea
David were not parties in the criminal case, so that, as to them, the plea of res adjudicata is
manifestly untenable. Moreover, these respondents and Luis Balanza were declared in default in the
lower court. Accordingly, even if they wanted to, they could not invoke the principle of res adjudicata,
which is deemed waived unless pleaded specifically
... for the principle of bar by prior judgment or res judirata to operate, there must be
identity of parties and of issues. Appellant Bachrach Motor Co. was not a party nor a coaccused in the criminal case. Not having been a party therein, it can not invoke the
judgment rendered in said case as res judicatain the present case. (Tan v. Standard
Vacuum Oil Co., et al., L-4160, July 29, 1952; also Quetulio v. Ver, L-6831, June 29,
1956; Bancairen, et al. v. Diones, L-8013, Dec. 20, 1955; Valdez v. Mendoza, L-2847,
May 28, 1951). Such a defense could have been availed of only by defendants Angeles
and De Guzman, the accused in the former criminal case, but as they were declared in
default in this civil action, they are deemed to have waived such defense. 3
Again, the information in the criminal case was filed without the intervention of petitioners herein, the
widow and children of the deceased. What is more, since the information was filed on December 27,
1968, and, evidently, the plea of guilty was entered by Luis Balanza a week later, or on January 4,
1969, before the identity of the deceased had been ascertained, petitioners herein were not included
in the list of witnesses at the foot of the information. None of them (petitioners), therefore, was notified
of the proceedings in the criminal case. For the same reason, the order of the city court, dated

January 4, 1969, setting forth the measures taken in respect of the criminal aspect of the case, and
awarding P6,000 as damages to the "heirs of the deceased did not state the latter's name. Not having
participated, in any manner whatsoever, in the criminal case, and having had no knowledge thereof,
at the time the proceedings therein took place, petitioners can not be deemed to have impliedly
instituted with said case the action for the recovery of damages, as provided in the above quoted
section 1 of Rule 111.
Under the foregoing circumstances, and considering that the aforementioned order of January 4,
1969, in the criminal case, had become immediately final and executory, Luis Balanza having
forthwith proceeded to comply with it, except as to the damages therein awarded, it would manifestly
be iniquitous to hold that Civil Case No. A-10 is barred by said order.
In Meneses v. Luat, 4 We held that .
... The mere appearance of private counsel in representation of the offended party (in
the criminal case) did not constitute such active intervention as could only import an
intention to press a claim for damages in the same action. It is as reasonable to indulge
the possibility that the private prosecutors appeared precisely to be able to make a
seasonable reservation of the right to file a separate civil action which, even if
unnecessary at the time would nevertheless have been the prudent and practical thing
to do for the purpose of better protecting the interest of their clients. But as matters
turned out, the accused pleaded guilty upon arraignment and was immediately
sentenced. Thereafter there was no chance to enter such a reservation in the record.
We do not believe that plaintiffs' substantive right to claim damages should necessarily
be foreclosed by the fact at best equivocal as to its purpose that private
prosecutors entered their appearance at the very inception of the proceeding, which
was then cut short at that stage. It cannot be said with any reasonable certainty that
plaintiffs had thereby committed themselves to the submission of their action for
damages in that action. The rule laid down in Roa vs. De la Cruz, supra, does not
govern this case. The ends of justice will be better served if plaintiffs are given their day
in court.
The foregoing view applies with greater force to the case at bar, for petitioners herein were not
reported by a private prosecutor in the criminal case. In this respect, their predicament is more like
that of the offended party inSan Jose v. Del Mundo, et al., 5 in which this Court, speaking through Mr.
Justice Guillermo Pablo, said:
... Si el demandante hubiera sido el que presento la denuncia ante el Juzgado de Paz,
sin decir nada en cuanto a la reclamacion civil, podriamos deducir que el renuncio
porque no se reservo su derecho de ejercitar civilmente una accion aparte; pero el que
actuo fue el jefe de policia, oficiosamente. For tanto, ni el demandante ni la ofendida
Carmelita, de 13 aos de edad, podian haber renunciado expresamente a su derecho a
incoar la accion civil, ni podian reservarlo porque no habian tenido participacion en la
actuacion criminal.

La accion precipitada del jefe de policia y del fiscal provincial interino, sin dar
oportunidad a la parte agraviada de ser oida por el Juzgado, no es plausible. Es injusta.
Es contraria a la practica seguida en el foro. La ofendida, por el inexplicable deseo de
la acusacion de dar fin al asunto criminal, no debe ser privada del derecho a reclamar
la indemnizacion que le concede el articulo 100 del Codigo Penal Revisado que
dispone que "Toda persona responsable criminalmente de un delito lo es tambien
civilmente,' y el articulo 103 que hace responsable subsidiariamente a las empresas de
transportacion cuyo dependiente comete delito en el desempeo de su obligacion.
At any rate, the allegations in petitioners' complaint are such as to indicate clearly the intention to
base their action upon a quasi-delict and the provisions of Articles 33 and 2180 of our Civil Code, and

... (I)t has been consistently held, not only that "the responsibility arising from fault or
negligence inquasi-delict is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code," but, also, that at least, in cases instituted
before January 1, 1964 the failure to make, in the criminal action, the reservation
required in said Rule will not bar a separate civil action for quasi-delict, provided that the
injured party has not intervened "actually" or actively in the prosecution of said criminal
action. Hence, in Parker v. Panlilio, we said:
... . The failure, therefore, on the part of the petitioner to reserve her right to institute the
civil action in the criminal case cannot in any way be deemed as a waiver on her part to
institute a separate civil action against the respondent company based on its contractual
liability, or on culpa aquiliana under articles 1902 to 1910 of the Civil Code.
"It should be here emphasized that these two actions are separate and distinct and
should not be confused one with the other. In the supposition that the one accused in
the criminal case is a driver, employee, or dependent of the respondent company, the
failure to reserve the right to institute a separate civil action in the criminal case
would not necessarily constitute a bar to the institution of the civil action against said
respondent, for the cause of action in one is different from that in the other. These are
two independent actions based on distinct causes of action. This distinction is aptly
stated in the Barredo case (Barredo vs. Garcia and Almario, 73 Phil. 607). This Court
said: "There are two liabilities of Barredo: first, the subsidiary one because of the civil
liability of the taxi driver arising from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under Article 1903. The plaintiffs were free to
choose which course to take, and they preferred the second remedy. In so doing they
were acting within their rights." (pp. 614-615, id.).
"A distinction exists between the civil liability arising from a crime and
responsibility forcuasi-delitos or culpa extra-contractual. The same
negligent act causing damages may produce a civil liability arising from a
crime under article 100 of the Revised Penal Code, or create an action
for cuasi-delicto or culpa extra-contractual under articles 1902-1910 of the

Civil Code. Plaintiffs were free to choose which remedy to enforce"

(Barredo vs. Garcia and Almario, 73 Phil. 607)."
In Azucena v. Potenciano, the language used was:
"This Court in Dyogi vs. Yatco, G.R. No. L-9623, Jan. 22, 1957, stated that
Article 33 constitutes a partial amendment of Rule 107. In Calo vs. Peggy,
G.R. No. L-10756, March 29, 1958, substantially the same situation as the
one now before us was passed upon by this Court. A minor son of the
defendant there, while driving a jeep belonging to the father, bumped and
injured plaintiff Romeo Calo. A criminal action for serious physical injuries
through reckless imprudence was instituted. While it was pending, a civil
action to recover damages on the theory of quasi-delict was filed against
the father of the accused. After a judgement of acquittal was rendered,
where it was intimated that the victim of the accident was the one at fault,
the defendant in the civil action moved for its dismissal, alleging that since
in the criminal case there was no reservation of the right to file a separate
civil action for damages the judgment of acquittal operated to extinguish
the civil liability of the defendant based on the same incident. The trial
court granted the motion to dismiss, but on appeal this Court reserved the
ruling on the ground that the civil action was entirely independent of the
criminal case according to Articles 33 and 2177 of the Civil Code. There
can indeed be no other logical conclusion than this, for to subordinate the
civil action contemplated in the said articles to the result of the criminal
prosecution whether it be conviction or acquittal would render
meaningless the independent character of the civil action and the clear
injunction in Article 31 that this action "may proceed independently of the
criminal proceedings and regardless of the result of the latter." To be sure,
an exception to this principle of separation and independence of the two
classes of actions from each other has been recognized, namely, when
the offended party not only fails to reserve the right to file a separate civil
action but intervenes actually in the criminal suit by appearing through a
private prosecutor for the purpose of recovering indemnity for damages
therein, in which case a judgment of acquittal bars a subsequent civil
action. Maria Roa vs. Segunda de la Cruz, et al., supra. The case at bar,
however, does not fall under the exception, for the plaintiff here did not so
intervene in the criminal action against defendant Potenciano." 6
In their second amended complaint, petitioners sought to recover the following as damages: .
a) For the death of Melquiades Guevarra P6,000.00
(Note: This is in accord with the judgment Annex "A" hereof).
b) Actual Damages P300.00

c) Moral, corrective and exemplary damages P2,000.00

d) Attorney's fees P1,600.00
e) Nominal, Temperate, and Liquidated Damages P2,000.00
T o t a l P11,300.00
In other words, they claimed P300 as actual damages, P1,000 as attorney's fees, and the aggregate
sum of P10,000 for the death of Melquiades Guevarra, including moral, corrective, exemplary,
nominal, temperate and liquidated damages. Upon the other hand, petitioners introduced oral
evidence to the effect that they had spent the total sum of P2,600 in connection with the interment of
the deceased; but, since the private respondents have been declared in default, the award for actual
damages can not exceed the sum of P300 alleged in the complaint. 7 Petitioners, likewise, proved that
the deceased used to earn P12 daily in construction work. Considering, however, that Melquiades
Guevarra was already 65 years old, at the time of the occurrence, and that "a judgment entered
against a party in default shall not exceed the amount ... prayed for," 8 We believe that the interest of
justice and equity would be served by awarding to the petitioners an aggregate indemnity of P10,000,
including moral damages, but, aside from P300 as actual damages and P1,000, as and for attorney's
fees. Springing, as it does, from a tort or quasi-delict, private respondent's liability therefor is
"solidary." 9
WHEREFORE, the decision appealed from is hereby reversed, and another one shall be entered,
sentencing private respondents herein namely, Luis, Francisco and Rustica Balanza, and Alberto
and Dorotea David to jointly and solidarily pay to petitioners herein the total sum of P11,300, with
interest thereon at the legal rate, from the date when this decision shall have become final, aside from
the costs. It is so ordered.
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