1

G.R. No. 45985 May 18, 1990

CHINA AIR LINES, LTD., petitioner,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN,
PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU,respondents.
G.R. No. 46036 May 18, 1990
PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU, petitioners,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and
CHINA AIR LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air
Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners
in G.R. No. 46036.
Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:
These consolidated petitions seek the review of the
decision of respondent court in CA-G.R. No. 53023-R
entitled "Jose E. Pagsibigan, Plaintiff-Appellant, vs.
Philippine Air Lines, Inc. and Roberto Espiritu,
Defendants-Appellants; China Air Lines, Ltd.,
Defendant-Appellee," 1 the dispositive portion of which
declares:
WHEREFORE, except for a
modification of the judgment in the
sense that the award of P20,000.00 in
favor of the plaintiff shall be in the
concept of nominal damages instead
of exemplary damages, and that
defendant China Air Lines, Ltd. shall
likewise be liable with its two codefendants in a joint and solidary
capacity, the judgment appealed from
is hereby affirmed in all other
respects, without costs.2

The challenged decision of respondent court contains

a synthesis of the facts that spawned these cases and
the judgment of the court a quo which it affirmed with
modifications, thus:
On June 4, 1968, plaintiff Jose E.
Pagsibigan, then Vice-President and
General Manager of Rentokil (Phils.)
Inc., a local firm dealing in
insecticides, pesticides and related
services appurtenant thereto,
purchased a plane ticket for a ManilaTaipei-Hongkong-Manila flight from the
Transaire Travel Agency. The said
agency, through its Cecille Baron,
contacted the Manila Hotel branch of
defendant Philippine Air Lines which at
that time was a sales and ticketing
agent of defendant China Air lines. On
June 6, 1968, PAL, through its
ticketing clerk defendant Roberto
Espiritu, cut and issued PAL Ticket No.
01 7991 for a Manila-TaipeiHongkong-Manila flight. According to
the plane ticket, the plaintiff was
booked on CAL CI Flight No. 812 to
depart from Manila for Taipei on June
10, 1968 at 17:20 hours (5:20 p.m.),
Exhibit A.
On June 10, 1968, one hour before
the scheduled time of the flight as
stated in his ticket, the plaintiff arrived
at the airport to check in for CI Flight
No. 812. Upon arriving at the airport,
the plaintiff was informed that the
plane he was supposed to take for
Taipei had left at 10:20 in the morning
of that day. The PAL employees at the
airport made appropriate
arrangements for the plaintiff to take
PAL's flight to Taipei the following day,
June 11, 1968. The plaintiff took said
flight and arrived in Taipei around
noontime of the said date.
On July 8, 1968, the plaintiff, through
counsel, made formal demand on
defendant PAL, for moral damages in

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not less than P125,000.00 for what the
plaintiff allegedly suffered as a result
of his failure to take the flight as stated
in his plane ticket. (Exhibit E) After a
series of negotiations among the
plaintiff, PAL and CAL failed to reach
an amicable settlement, the plaintiff
instituted this action in the Court of
First Instance of Rizal on September
22, 1969. In his complaint, plaintiff
prays for the recovery of P125,000.00
as moral damages and P25,000.00 for
and as attorney's fees. The moral
damages allegedly arose from the
gross negligence of defendant
Roberto Espiritu in stating on the
plane ticket that the time of departure
was 17:20 hours, instead of 10:20
hours which was the correct time of
departure in the revised summer
schedule of CAL. Plaintiff claims that
by reason of his failure to take the
plane, he suffered besmirched
reputation, embarrassment, mental
anguish, wounded feelings and
sleepless nights, inasmuch as when
he went to the airport, he was
accompanied by his business
associates, close friends and relatives.
He further averred that his trip to
Taipei was for the purpose of
conferring with a certain Peng Siong
Lim, President of the Union Taiwan
Chemical Corporation, scheduled at
9:00 a.m. on June 11, 1968.
Defendant Philippine Air Lines alleged
in its answer that the departure time
indicated by Espiritu in the ticket was
furnished and confirmed by the
reservation office of defendant China
Air Lines. It further averred that CAL
had not informed PAL's Manila Hotel
Branch of the revised schedule of its
flight, nor provided it with revised
timetable; that when the travel agency
sought to purchase the ticket for the
plaintiff on CAL CI Flight No. 812 for
June 10, 1968, Espiritu who was then
the ticketing clerk on duty, checked

with the reservation office of CAL on

the availability of space, the date and
the time of said flight; that CAL's Dory
Chan informed Espiritu that the
departure time of Flight No. 812 on
June 10, 1968 was at 5:20 in the
afternoon of said date. PAL asserted a
cross-claim against CAL for attorney's
fees and for reimbursement of
whatever amount the court may
adjudge PAL to be liable to the
plaintiff. Defendant Espiritu adopted
the defenses of his co-defendant PAL.
Defendant China Air Lines, for its part,
disclaims liability for the negligence
and incompetence of the employees
of PAL. It avers that it had revised its
schedule since April 1, 1968, the same
to be effective on April 20, 1968, and
the said revised schedule was
adopted only after proper petition with
and approval of the Civil Aeronautics
Board of which all airlines, including
defendant PAL, were notified; that
both printed copies of the international
timetable and of the mimeographed
notices of the official schedule and
flight departure schedules were
distributed to all its sales agents,
including PAL, that after the effectivity
of the new time schedules, PAL's
Manila Hotel office had been issuing
and selling tickets based on the
revised time schedule; and that,
assuming that the plaintiff is entitled to
recover damages, the liability is on
PAL and not on CAL. A cross-claim
was likewise asserted by CAL against
its co-defendant PAL.
After due trial, the Court a
quo rendered judgment laying the
blame for the erroneous entry in the
ticket as to the time of departure to
defendant Roberto Espiritu, ticketing
agent of defendant PAL, and that no
employee of CAL contributed to such
erroneous entry. It was further ruled
that the plaintiff had no reason to

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claim moral damages but may be
entitled to recover exemplary
damages. The dispositive portion of
the decision makes the following
adjudication:
WHEREFORE,
premises considered,
judgment is hereby
rendered sentencing
the defendants
Philippine Air Lines,
Inc. and Roberto
Espiritu, to pay to
plaintiff Jose
Pagsibigan jointly and
severally, by way of
exemplary damages,
the sum of Twenty
Thousand Pesos
(P20,000.00) plus Two
Thousand Pesos
(P2,000.00) as
reimbursement for
attorney's fees and the
costs.
The complaint is
dismissed with respect
to the defendant China
Air Lines, Ltd. The
cross-claim filed by
defendant PAL and
Espiritu against
defendant CAL as well
as the cross-claim filed
by the defendant CAL
against defendant PAL
and Espiritu are also
hereby dismissed. 3
From said decision of the court below, all the parties,
except China Air Lines, Ltd. appealed to respondent
court which, however, sustained the ruling of the trial
court denying Pagsibigan's claim for moral damages.
It concluded that Roberto Espiritu did not act with
malice or in bad faith in making a wrong entry of the
time of departure on the ticket, and that the mistake
committed by Espiritu appears to be an honest one
done in good faith.

Respondent court also ruled out the claim for

exemplary damages for lack of legal basis.
Nonetheless, as earlier noted, it awarded Pagsibigan
P20,000.00 as nominal damages, under Article 2221
of the Civil Code, for the vindication of a legal wrong
committed against him. As regards the liability of the
parties, respondent court held:
There can be little question as to the
liability of PAL and Espiritu for the
damage caused to the plaintiff due to
the erroneous entry in the plane ticket
made by the latter. They seek to justify
the erroneous statement as to the time
of departure on the ground that such
was the time given by Dory Chan to
Espiritu when the latter called up for
the reservation in favor of plaintiff.
Aside from the fact that Dory Chan
had vigorously disclaimed having
given such information to Espiritu, We
are convinced that, as the trial court
had found, CAL had no share in the
error committed by Espiritu in
indicating the time of departure of
Flight No. 812. PAL had shown
through the testimony of Carmen
Ibazeta Gallaga, ticket representative
of PAL at the Manila Hotel Office, that
they received circulars and timetables
of airlines in the PAL main office. It
further appears that on two occasions,
defendant PAL cut and issued tickets
for CAL based on the new schedule
even before June 10, 1968. As a
matter of fact, the other entries of time
departures in the ticket issued to the
plaintiff are in accordance with the
revised schedule, and that the only
error therein was with respect to the
departure from Manila on June 10,
1968.
However, in proving that the fault lied
with Espiritu, defendant CAL derives
no solace nor gains an advantage. It
may not claim exemption from liability
by reason thereof. Espiritu was an
employee of PAL and whatever
negligence was committed by him is

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attributable to PAL. It is an admitted
fact that PAL is an authorized agent of
CAL. In this relationship, the
responsibility of defendant PAL for the
tortious act of its agent or
representative is inescapable. . . .
xxx xxx xxx
A similar principle is recognized in our
Civil Code in its Art. 2180 . . . . Unlike
in the doctrine ofrespondeat superior,
however, the Civil Code permits the
employer to escape this liability upon
proof of having observed all the
diligence of a good father of a family
to prevent the damage. We find the
evidence of defendant CAL to be
insufficient to overcome the
presumption of negligence on its part
for the act done by defendant Roberto
Espiritu. (Emphasis supplied)
The liability for the damage sustained
by the plaintiff should, therefore, be
borne by all of the defendants in a
joint and solidary capacity (Art. 2194).
The liability of an employer under Art.
2180 is primary and direct. . . .
xxx xxx xxx
It appearing that defendant CAL, as
employer or principal, did not
contribute to the negligence
committed by defendants PAL and
Roberto Espiritu, its liability to the
plaintiff could be passed on to said
defendants. Defendant CAL, however,
did not take an appeal and did not,
therefore, take exception to the
dismissal of its cross-claim against
defendants PAL and Espiritu. This
serves as an obstacle for a rendition
of judgment favorable to CAL on its
said counterclaim. 4
In its petition for review on certiorari in G.R. No. L45985, petitioner China Air Lines, Ltd. (CAL) relied on
the following grounds:

1. A principal cannot be held liable,

much less solidarily, for the negligence
of the sub-agent, where the former
never participated in, ratified or
authorized the latter's act or omission.
2. Dismissal of the cross-claim of
petitioner against the private
respondents Philippine Air Lines, Inc.
and Roberto Espiritu will not prevent
the release of the petitioner from
liability to the private respondent
Pagsibigan.
3. The award of damages was
unwarranted both legally and
factually. 5
On their part, petitioners Philippine Air Lines, Inc.
(PAL) and Roberto Espiritu made the following
submissions in G.R. No. L-46036, to wit:
1. The respondent Court of Appeals
erred in not holding that respondent
China Air Lines, Ltd., being the
principal, is solely liable to respondent
Pagsibigan.
2. The respondent Court of Appeals
erred in awarding respondent
Pagsibigan the sum of P20,000.00 as
nominal damages. 6
In G.R. No. L-45985, respondent Pagsibigan
contends, by way of refutation, that CAL's liability is
based on breach of contract of transportation which
was the proximate result of the negligence and/or
error committed by PAL and Espiritu; that even
assuming that CAL has no share in the negligence of
PAL and Espiritu, the liability of CAL does not cease
upon proof that it exercised all the diligence of a good
father of a family in the selection and supervision of
its employees. Traversing such contentions, CAL
argues that it can not be made liable under Article
2180 of the Civil Code because of the absence of
employer-employee relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent
Pagsibigan claims that PAL is liable under Article
1909 of the said code which holds an agent

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responsible not only for fraud but also for negligence
which shall be judged with more or less rigor by the
courts, according to whether the agency was or was
not for a compensation. PAL, however, maintains that
for lack of privity with Pagsibigan, the suit for breach
of contract should have been directed against CAL.
What surfaces as a procedural maneuver taken by
respondent Pagsibigan in the course of the
proceedings in these cases has confused the real
issues in the controversy subject of both petitions
before us.
Respondent Pagsibigan has opted to seek redress by
pursuing two remedies at the same time, that is, to
enforce the civil liability of CAL for breach of contract
and, likewise, to recover from PAL and Espiritu for tort
or culpa aquiliana. What he has overlooked is the
proscription against double recovery under Article
2177 of the Civil Code which, while not preventing
recourse to any appropriate remedy, prevents double
relief for a single wrong.
To avoid inequitable effects under such confluence of
remedies, the true nature of the action instituted by
respondent Pagsibigan must be determined. A careful
perusal of the complaint of respondent Pagsibigan will
readily disclose that the allegations thereof clearly
and unmistakably make out a case for a quasidelict in this wise:

as defendant as being the proximate

malfeasor in this cause of action;
xxx xxx xxx
12. That plaintiff missed the initial
Manila-Taipei leg (CI Flight 812) on
June 10, 1968, as set forth in his ticket
(Annex "A") solely and exclusively by
reason of gross incompetence and
inexcusable negligence amounting to
bad faith of defendant PAL acting,
through its sales representative, the
defendant Roberto Espiritu, of its
Manila Hotel branch office in the
discharge of its duties as sales agent
and/or ticketing agent for defendant
China Airlines Ltd. as principal.
13. That as a direct result of culpable
incompetence and negligence of
defendant Roberto Espiritu as sales
representative of defendant PAL,
plaintiff was unable to attend to
previously scheduled business
commitments in Taipei . . . resulting in
direct and indirect prejudice to plaintiff
that has yet to be fully assessed;
(Emphasis supplied) 7
xxx xxx xxx

4. That at all pertinent times

particularly in June of 1968, defendant
China Air Lines Ltd. has been
operating regular scheduled flights to
and from Manila, and has offered
accommodations thereon through,
among others, defendant PAL as its
authorized sales agent and/or ticketing
agent, such that China Airlines Ltd. is
here impleaded as being the principal
of defendant PAL;
5. That at all pertinent times,
particularly in June of 1968, defendant
Roberto Espiritu has been in the
employ of defendant PAL at its sales
counter at the PAL Manila Hotel
branch office and is here impleaded

Had the intention of respondent Pagsibigan been to

maintain an action based on breach of contract of
carriage, he could have sued CAL alone considering
that PAL is not a real party to the contract. Moreover,
in cases of such nature, the aggrieved party does not
have to prove that the common carrier was at fault or
was negligent. All he has to prove is the existence of
the contract and the fact of its non-performance by
the carrier. 8
The records disclose that the trial court delved much
into the issues of who was at fault, and its decision is
primarily anchored on its factual findings regarding
the civil liability arising from culpa aquiliana of the
erring party, to this effect:
Plaintiff said that the erroneous entry
in his ticket which made it appear that

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his CAL flight of June 10, 1968 was to
be at 5:20 in the afternoon was due to
the fault or negligence of PAL's
Roberto Espiritu, a co-defendant
herein, as well as the employees of
the defendant CAL. In making CAL coresponsible, plaintiff appears to rely on
the doctrine that the principal is
responsible for the act of an agent
done within the scope of the agency.

Respondent Pagsibigan insists that CAL was barred

from proving that it observed due diligence in the
selection and supervision of its employees. This
argument is obviously misplaced. CAL is not the
employer of PAL or Espiritu. In Duavit vs. The
Hon. Court of Appeals, et al., 11 we have stressed the
need of first establishing the existence of an
employer-employee relationship before an employer
may be vicariously liable under Article 2180 of the
Civil Code.

There is no proof extant that any of

the employees of PAL had contributed
to the erroneous entry in plaintiffs PAL
ticket for Taipei which placed his time
of departure to 5:20 o'clock in the
afternoon of June 10, 1968. Only
defendant Roberto Espiritu appears to
be solely and exclusively responsible
for such error and therefor the
conclusion becomes inevitable that
CAL must be absolved from any
blame because defendant Roberto
Espiritu who committed the error is not
an employee or agent of the
defendant CAL. 9

With respect to PAL and Espiritu, they disclaim any

liability on the theory that the former is merely an
agent of CAL and that the suit should have been
directed against CAL alone. There is no question that
the contractual relation between both airlines is one of
agency. Suffice it to say, however, that in an action
premised on the employee's negligence, whereby
respondent Pagsibigan seeks recovery for the
resulting damages from both PAL and Espiritu without
qualification, what is sought to be imposed is the
direct and primary liability of PAL as an employer
under said Article 2180.

It, therefore, becomes evident that respondent

Pagsibigan, having sensed that he can not hold CAL
liable on aquasi-delict, decided on appeal to instead
make a sinistral detour, so to speak, by claiming that
his action against CAL is based on a breach of
contract of carriage.
We can not permit respondent Pagsibigan to change
his theory at this stage; it would be unfair to the
adverse party who would have no more opportunity to
present further evidence, material to the new theory,
which it could have done had it been aware earlier of
the new theory at the time of the hearing before the
trial court. 10
There is indeed no basis whatsoever to hold CAL
liable on a quasi-delict or culpa aquiliana. As
hereinbefore stated, the court a quo absolved CAL of
any liability for fault or negligence. This finding was
shared by respondent court when it concluded that
defendant CAL did not contribute to the negligence
committed by therein defendants-appellants PAL and
Roberto Espiritu.

When an injury is caused by the negligence of an

employee, there instantly arises a presumption of law
that there was negligence on the part of the employer
either in the selection of the employee or in the
supervision over him after such selection. The
presumption, however, may be rebutted by a clear
showing on the part of the employer that it has
exercised the care and diligence of a good father of a
family in the selection and supervision of his
employee. 12
Hence, to escape solidary liability for the quasidelict committed by Espiritu, it is imperative that PAL
must adduce sufficient proof that it exercised such
degree of care. PAL failed to overcome the
presumption. As found by respondent court, CAL had
revised its schedule of flights since April 1, 1968; that
after the Civil Aeronautics Board had approved the
revised schedule of flights, PAL was duly informed
thereof and, in fact, PAL's Manila Hotel branch office
had been issuing and selling tickets based on the
revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a
general proposition, an agent who duly acts as such
is not personally liable to third persons. However,

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there are admitted exceptions, as in this case where
the agent is being sued for damages arising from a
tort committed by his employee.
The respondent court found that the mistake
committed by Espiritu was done in good faith. While
there is no evidence that he acted with malice, we can
not entirely condone his actuations. As an employee
of PAL, the nature of his functions requires him to
observe for the protection of the interests of another
person that degree of care, precaution and vigilance
which the circumstances justly demand. He
committed a clear neglect of duty.

Ltd. is hereby absolved from liability. Philippine Air

Lines, Inc. and Roberto Espiritu are declared jointly
and severally liable to pay the sum of P10,000.00 by
way of nominal damages, without prejudice to the
right of Philippine Air Lines, Inc. to recover from
Roberto Espiritu reimbursement of the damages that
it may pay respondent Jose Pagsibigan.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ.,
concur.
G.R. No. 96781 October 1, 1993

Ergo, for his negligence, Espiritu is primarily liable to

respondent Pagsibigan under Article 2176 of the Civil
Code. For the failure of PAL to rebut the legal
presumption of negligence in the selection and
supervision of its employee, it is also primarily liable
under Article 2180 of the same code which explicitly
provides that 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 the aforesaid provision, all that is required is
that the employee, by his negligence, committed
a quasi-delictwhich caused damage to another, and
this suffices to hold the employer primarily and
solidarity responsible for the tortious act of the
employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay
the offended party's claim. 13
On the issue of damages, we agree, except as to the
amount, that nominal damages may be awarded to
respondent Pagsibigan to vindicate the legal wrong
committed against him. It appearing that the wrong
committed was immediately rectified when PAL
promptly booked him for the next morning's flight to
Taipei where he arrived before noon of June 11, 1968
and was able to attend his scheduled conference, and
considering the concept and purpose of nominal
damages, the award of P20,000.00 must accordingly
be reduced to an amount equal or at least
commensurate to the injury sustained.
WHEREFORE, the decision of respondent Court of
Appeals is MODIFIED accordingly. China Air Lines,

EMILIANO MANUEL and SUPERLINES

TRANSPORTATION CO., INC., petitioners,
vs.
HONORABLE COURT OF APPEALS, ERNESTO A.
RAMOS substituted by Goyena Z. Ramos, Grace,
David, Jobet, Portia and Banjo, all surnamed
RAMOS; and GOYENA ZANAROSA-RAMOS, for
herself and as Guardian Ad Litem for the minors
JOBET, BANJO, DAVID and GRACE, all surnamed
RAMOS; FERNANDO ABCEDE, SR., for himself
and as Guardian Ad Litem for minor FERNANDO
G. ABCEDE, JR.; MIGUEL JERNZ MAGO, as
Guardian Ad Litem for minor ARLEEN R. MAGO,
and ANACLETA J. ZANAROSA,respondents.
Benito P. Fabie for petitioners.
Constante Banayos for private respondents.

QUIASON, J.:
This is an appeal by certiorari under Rule 45 of the
Revised Rules of Court from the decision of the Court
of Appeals in CA-G.R. CV No. 11780, and its
Resolution dated January 8, 1991, denying
petitioner's motion for reconsideration. The decision
subject of the appeal was an affirmation of the
judgement of the Court of First Instance of Camarines
Norte, in Civil Case No. 3020 and whose dispositive
portion states:
PREMISES CONSIDERED, judgment
is hereby rendered : (1) finding the

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defendant Emiliano Manuel negligent,
reckless and imprudent in the
operation of Superlines Bus No. 406,
which was the proximate cause of the
injuries suffered by the plaintiffs and
damage of the Scout Car in which
they were riding; (2) ordering the said
defendant, jointly and solidarily, with
the defendant Superlines Bus Co., Inc.
to pay plaintiffs the amounts of
P49,954,86, as itemized elsewhere in
this decision and the costs.
It appearing that the defendants
Superlines Transportation Co., Inc. is
insured with the defendant Perla
Compania de Seguros, which has
admitted such insurance, the latter is
hereby ordered to pay the former the
amounts so stated up to the extent of
its insurance coverage" (Rollo, pp. 7071).
The operative facts culled from the decision of the
Court of Appeals are as follows:
Private respondents were passengers of an
International Harvester Scout Car (Scout Car) owned
by respondent Ramos, which left Manila for
Camarines Norte in the morning of December 27,
1977 with respondent Fernando Abcede, Sr. as the
driver of the vehicle.
There was a drizzle at about 4:10 P.M. when the
Scout car, which was then negotiating the zigzag road
of Bo. Paraiso, Sta. Elena, Camarines Norte, was hit
on its left side by a bus. The bus was owned by
petitioner Emiliano Manuel. Due to the impact, the
Scout car was thrown backwards against a protective
railing. Were it not for the railing, the Scout car would
have fallen into a deep ravine. All its ten occupants,
which included four children were injured, seven of
the victims sustained serious physical injuries (Rollo,
p. 28).
Emiliano Manuel, the driver of the bus, was
prosecuted for multiple physical injuries through
reckless imprudence in the Municipal Court of Sta.
Elena, Camarines Norte. As he could not be found
after he ceased reporting for work a few days

following the incident, the private respondents filed

the instant action for damages based onquasi-delict.
After trial, the court a quo rendered judgment against
petitioners and Perla Compania de Seguros, that
covered the insurance of the bus. The court ordered
them to pay, jointly and severally, the amount of
P49,954.86 in damages to respondents.
On appeal, the Court of Appeals, affirmed the
decision of the trial court.
In their appeal before us, petitioners contend that it
was Fernando Abcede, Jr., driver of the Scout car,
who was at fault. Besides, petitioners claim the
Fernando Abcede, Jr., who was only 19-years old at
the time of the incident, did not have a driver's license
(Rollo, p. 10).
Proof of this, according to petitioners, was that:
Immediately after the incident, the bus
conductor Cesar Pica and
passengers, including Maximino Jaro,
alighted from the bus. A woman
passenger of the IH Scout car, Mrs.
Ramos, was heard saying: "Iyan na
nga ba ang sinasabi ko, napakalakas
ng loob," referring to young man,
Fernando Abcede, Jr. who was the
driver of the IH Scout car (tsn., p. 43,
November 19, 1979; tsn, p. 23-A.
February 7, 1980) . . . (Rollo, p. 75).
Likewise, petitioner questioned the accuracy of the
pictures and sketches submitted by private
respondents as evidence that the Superlines bus
encroached on the lane of the Scout car. According to
them, the sketch made by the police investigator
showing the skid marks of the bus, is inadmissible as
evidence because it was prepared the day after the
incident and the alleged "tell-tale" skid marks and
other details had already been obliterated by the
heavy downpour which lasted for at least an hour
after the accident (Rollo, p. 87). Likewise, they claim
that the policeman who prepared the sketch was not
the police officer assigned to conduct the investigation
(Rollo, pp. 88-89).

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While it may be accepted that some of the skid marks
may have been erased by the "heavy downpour" on
or about the time of the accident, it remains a
possibility that not all skid marks were washed away.
The strong presumption of regularity in the
performance of official duty (Rule 131, Sec. 3(m),
1989 Rules on Evidence) erases, in the absence of
evidence to the contrary, any suspicions that the
police investigator just invented the skid marks
indicated in his report.
Granting, however, that the skid marks in the
questioned sketch were inaccurate, nonetheless, the
finding of the Court of Appeals that the collision took
place within the lane of the Scout car was supported
by other conclusive evidence. "Indeed, a trail of
broken glass which was scattered along the car's side
of the road, whereas the bus lane was entirely clear of
debris (Exhibit "L-1," p. 34, Records, pp. 56-65; TSN,
Session of March 14, 1979)" (Rollo, p. 31).
Furthermore, the fact that the Scout car was found
after the impact at rest against the guard railing
shows that it must have been hit and thrown
backwards by the bus (Rollo, p. 103). The physical
evidence do not show that the Superlines Bus while
traveling at high speed, usurped a portion of the lane
occupied by the Scout car before hitting it on its left
side. On collision, the impact due to the force exerted
by a heavier and bigger passenger bus on the smaller
and lighter Scout car, heavily damaged the latter and
threw it against the guard railing.
Petitioner's contention that the Scout car must have
been moved backwards is not only a speculation but
is contrary to human experience. There was no
reason to move it backwards against the guard railing.
If the purpose was to clear the road, all that was done
was to leave it where it was at the time of the
collision, which was well inside its assigned lane.
Besides, even petitioners accept the fact that when
the police arrived at the scene of the accident, they
found no one thereat (Rollo, p. 13). This further
weakens the possibility that some persons moved the
Scout car to rest on the guard railing.
The evidence with respect to the issue that Fernando
Abcede, Jr. who was not duly licensed, was the one
driving the Scout car at the time of the accident, could
not simply exempt petitioner's liability because they

were parties at fault for encroaching on the Scout

car's lane (Rollo, pp. 29-30).
Nevertheless, the witnesses presented by petitioners
who allegedly saw "the younger Abcede pined behind
the driver's wheels," testified on matters that
transpired after the accident. Discrediting this
allegation, the Court of Appeals noted that none of the
aforesaid witnesses actually saw the younger Abcede
driving the car and that the younger Abcede could
have simply been thrown off his seat toward the
steering wheel (Rollo, p. 29).
Be that as it may, this Court has followed a wellentrenched principle that the factual findings of the
Court of Appeals are normally given great weight,
more so when the findings tally with the findings of the
trial court and are supported by the evidence
(Francisco v. Magbitang, 173 SCRA 382 [1989]; New
Owners/Management of TML Garments, Inc. v.
Zaragosa, 170 SCRA 563-564 [1989]).
The reason for this entrenched principle is given
in Chemplex (Phils.), Inc., et al. v. Ramon
C. Pamatian, et al., 57 SCRA 408 [1974], thus:
This Court is not a trier of facts, and it
is beyond its function to make its own
findings of certain vital facts different
from those of the trial court, especially
on the basis of the conflicting claims of
the parties and without the evidence
being properly before it. For this Court
to make such factual conclusions is
entirely unjustified first, because if
material facts are controverted, as in
this case, and they are issues being
litigated before the lower court, the
petition for certiorari would not be in
aid of the appellate jurisdiction of this
Court; and, secondly, because it
preempts the primary function of the
lower court, namely, to try the case on
the merits, receive all the evidence to
presented by the parties, and only
then come to a definite decision,
including either the maintenance or
the discharge of the preliminary
injunction it has issued.

10
Appellants, likewise, contested the awarded damages
as excessive and unsubstantiated. The trial court's
findings show otherwise, as can be gleaned from the
following excerpt of this decision:
Plaintiffs were able to prove their
injuries and submitted evidence to
show expenses for their treatment,
hospitalization and incidental
disbursement (Exhs. AA to HH and
their submarkings), having a total
amount of P12,204.86 which had
admittedly (sic) shouldered by plaintiff
Ernesto Ramos. Considering the
nature of the injuries as shown by the
respective Medical Certificates (Exhs.
A to J and their submarkings) said
amount is very reasonable. It was also
shown that the Scout car is a total
wreck, the value of which was
estimated to be P20,000.00 which
may be the same amount to put (sic)
into a running condition. We consider,
likewise said amount reasonable
taking into account its brand
(International Harvester Scout car).
The above mentioned damages are
considered actual or compensatory
(Par. 1 Art. 2197 in relation to Art.
2199, New Civil Code). Evidence was
also adduced showing that as a result
of the incident and the resultant
injuries there had been an impairment
on the earning capacity of some of the
plaintiffs (Fernando Abcede, Sr.,
Anacleta Zanarosa, Ernesto Ramos
and Goyena Ramos) which are
recoverable pursuant to Article 2205 of
the New Civil Code. Considering the
nature of their injuries one month each
loss of income seem reasonable.
Attorney's fees and expenses of
litigation is also proper. Since the act
complained of falls under the aegis
of quasi-delict (culpa aquilina), moral
damages is likewise available to
plaintiffs pursuant to Article 2219 also
of the New Civil Code (Rollo, pp. 113114).

In addition, moral damages may be recovered if they

are the proximate results of defendant's wrongful acts
or omission as in this case (Banson vs. CA, 175
SCRA 297 [1989]).
WHEREFORE, the petition is DENIED and the
Decision of the Court of Appeals is AFFIRMED, with
costs against petitioners.
SO ORDERED.
JARCO
MARKETING
CORPORATION,
LEONARDO KONG, JOSE TIOPE and ELISA
PANELO, petitioners,
vs. HONORABLE
COURT OF APPEALS, CONRADO C.
AGUILAR
and
CRISELDA
R.
AGUILAR, respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari under
Rule 45 of the Rules of Court, petitioners seek the
reversal of the 17 June 1996 decision [1] of the Court of
Appeals in C.A. G.R. No. CV 37937 and the
resolution[2]denying
their
motion
for
reconsideration. The assailed decision set aside the 15
January 1992 judgment of the Regional Trial Court
(RTC), Makati City, Branch 60 in Civil Case No. 7119
and ordered petitioners to pay damages and attorneys
fees to private respondents Conrado and Criselda
(CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the
owner of Syvels Department Store, Makati
City. Petitioners Leonardo Kong, Jose Tiope and Elisa
Panelo are the stores branch manager, operations
manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth
Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and
ZHIENETH were at the 2nd floor of Syvels
Department Store, Makati City. CRISELDA was
signing her credit card slip at the payment and
verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind
her. She then beheld her daughter ZHIENETH on the
floor, her young body pinned by the bulk of the stores

11
gift-wrapping counter/structure. ZHIENETH was
crying and screaming for help. Although shocked,
CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving
ZHIENETH from the floor.[3]
ZHIENETH was quickly rushed to the Makati
Medical Center where she was operated on. The next
day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic
slate. The injuries she sustained took their toil on her
young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She
was six years old.[4]
The cause of her death was attributed to the
injuries she sustained. The provisional medical
certificate[5] issued by ZHIENETHs attending doctor
described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due
to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private
respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and
wake and funeral expenses[6] which they had
incurred.Petitioners refused to pay. Consequently,
private respondents filed a complaint for damages,
docketed as Civil Case No. 7119 wherein they sought
the
payment
of P157,522.86
for
actual
damages,P300,000 for moral damages, P20,000 for
attorneys fees and an unspecified amount for loss of
income and exemplary damages.

In their answer with counterclaim, petitioners

denied any liability for the injuries and consequent
death of ZHIENETH. They claimed that CRISELDA
was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a
store
filled
with
glassware
and
appliances. ZHIENETH
too,
was
guilty
of
contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood
with a strong support; it never fell nor collapsed for
the past fifteen years since its construction.
Additionally,
petitioner
Jarco
Marketing
Corporation maintained that it observed the diligence
of a good father of a family in the selection,
supervision and control of its employees. The other
petitioners likewise raised due care and diligence in
the performance of their duties and countered that the
complaint was malicious for which they suffered
besmirched reputation and mental anguish.They
sought the dismissal of the complaint and an award of
moral and exemplary damages and attorneys fees in
their favor.
In its decision[7] the trial court dismissed the
complaint and counterclaim after finding that the
preponderance of the evidence favored petitioners. It
ruled that the proximate cause of the fall of the counter
on ZHIENETH was her act of clinging to it. It
believed petitioners witnesses who testified that
ZHIENETH clung to the counter, afterwhich the
structure and the girl fell with the structure falling on
top of her, pinning her stomach. In contrast, none of
private respondents witnesses testified on how the
counter fell. The trial court also held that CRISELDAs
negligence contributed to ZHIENETHs accident.
In absolving petitioners from any liability, the
trial court reasoned that the counter was situated at the
end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an
attractive nuisance.[8] The counter was higher than
ZHIENETH. It has been in existence for fifteen
years. Its
structure
was
safe
and
wellbalanced. ZHIENETH, therefore, had no business
climbing on and clinging to it.
Private respondents appealed the decision,
attributing as errors of the trial court its findings

12
that: (1) the proximate cause of the fall of the counter
was ZHIENETHs misbehavior; (2) CRISELDA was
negligent in her care of ZHIENETH; (3) petitioners
were not negligent in the maintenance of the counter;
and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that
ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is
incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already capable
of contributory negligence, still it was physically
impossible for her to have propped herself on the
counter. She had a small frame (four feet high and
seventy pounds) and the counter was much higher and
heavier than she was. Also, the testimony of one of the
stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to
the emergency room of the Makati Medical Center
belied petitioners theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was
asked by the doctor what she did, ZHIENETH replied,
[N]othing, I did not come near the counter and the
counter just fell on me. [9] Accordingly, Gonzales
testimony on ZHIENETHs spontaneous declaration
should not only be considered as part of res gestae but
also accorded credit.
Moreover, negligence could not be imputed to
CRISELDA for it was reasonable for her to have let go
of ZHIENETH at the precise moment that she was
signing the credit card slip.
Finally,
private
respondents
vigorously
maintained that the proximate cause of ZHIENETHs
death, was petitioners negligence in failing to institute
measures to have the counter permanently nailed.
On the other hand, petitioners argued that private
respondents raised purely factual issues which could
no longer be disturbed. They explained that
ZHIENETHs death while unfortunate and tragic, was
an accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial
courts rejection of Gonzales testimony as unworthy of
credence.

As to private respondents claim that the counter

should have been nailed to the ground, petitioners
justified that it was not necessary. The counter had
been in existence for several years without any prior
accident and was deliberately placed at a corner to
avoid such accidents. Truth to tell, they acted without
fault or negligence for they had exercised due
diligence on the matter. In fact, the criminal case[10] for
homicide through simple negligence filed by private
respondents against the individual petitioners was
dismissed; a verdict of acquittal was rendered in their
favor.
The Court of Appeals, however, decided in favor
of private respondents and reversed the appealed
judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter.The
counter was shaped like an inverted L[11] with a top
wider than the base. It was top heavy and the weight
of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was
defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the
front could cause the counter to fall. Two former
employees of petitioners had already previously
brought to the attention of the management the danger
the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners
for this omission, and concluded that the incident that
befell ZHIENETH could have been avoided had
petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for
some time without a prior incident.
The Court of Appeals declared that ZHIENETH,
who was below seven (7) years old at the time of the
incident, was absolutely incapable of negligence or
other tort. It reasoned that since a child under nine (9)
years could not be held liable even for an intentional
wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It
also absolved CRISELDA of any negligence, finding
nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the
document at the nearby counter.
The Court of Appeals also rejected the
testimonies of the witnesses of petitioners. It found
them biased and prejudiced. It instead gave credit to
the testimony of disinterested witness Gonzales. The

13
Court of Appeals then awarded P99,420.86 as actual
damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced
by the hospital's statement of account. [12]It denied an
award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory
damage of P50,000 was awarded for the death of
ZHIENETH.
We quote the dispositive portion of the assailed
decision,[13] thus:
WHEREFORE, premises considered, the judgment of
the lower court is SET ASIDE and another one is
entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the
following:
1. P50,000.00 by way of compensatory damages
for the death of Zhieneth Aguilar, with legal
interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for
hospitalization expenses incurred; with legal
interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees;
and
5. Costs.
Private respondents sought a reconsideration of
the decision but the same was denied in the Court of
Appeals resolution[14] of 16 July 1997.
Petitioners now seek the reversal of the Court of
Appeals decision and the reinstatement of the
judgment of the trial court. Petitioners primarily argue
that the Court of Appeals erred in disregarding the
factual findings and conclusions of the trial
court. They stress that since the action was based on
tort, any finding of negligence on the part of the
private respondents would necessarily negate their
claim for damages, where said negligence was the
proximate cause of the injury sustained. The injury in
the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETHs act of clinging to
the counter. This act in turn caused the counter to fall

on her. This and CRISELDAs contributory negligence,

through her failure to provide the proper care and
attention to her child while inside the store, nullified
private respondents claim for damages. It is also for
these reasons that parents are made accountable for the
damage or injury inflicted on others by their minor
children. Under these circumstances, petitioners could
not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales
who was already separated from Syvels at the time he
testified; hence, his testimony might have been
tarnished by ill-feelings against them.
For their part, private respondents principally
reiterated their arguments that neither ZHIENETH nor
CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record;
the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the
hospitals emergency room should receive credence;
and finally, ZHIENETHs part of the res
gestae declaration that she did nothing to cause the
heavy structure to fall on her should be considered as
the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the
death of ZHIENETH was accidental or attributable to
negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private
respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise
due and reasonable care while inside the store
premises.
An accident pertains to an unforeseen event in
which no fault or negligence attaches to the defendant.
[15]
It is a fortuitous circumstance, event or happening;
an event happening without any human agency, or if
happening wholly or partly through human agency, an
event which under the circumstances is unusual or
unexpected by the person to whom it happens.[16]
On the other hand, negligence is the omission to
do something which a reasonable man, guided by
those considerations which ordinarily regulate the

14
conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would
not do.[17] Negligence is the failure to observe, for the
protection of the interest of another person, that degree
of care, precaution and vigilance which the
circumstances justly demand, whereby such other
person suffers injury.[18]
Accident and negligence are intrinsically
contradictory; one cannot exist with the
other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault
of any person and which could not have been
prevented by any means suggested by common
prudence.[19]
The test in determining the existence of
negligence is enunciated in the landmark case
of Picart v. Smith,[20] thus: Did the defendant in doing
the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would
have used in the same situation? If not, then he is
guilty of negligence.[21]
We rule that the tragedy which befell
ZHIENETH was no accident and that ZHIENETHs
death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales
who was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you
hear or notice anything while the child was
being treated?
A At the emergency room we were all surrounding
the child. And when the doctor asked the
child what did you do, the child said nothing,
I did not come near the counter and the
counter just fell on me.
Q (COURT TO ATTY. BELTRAN)

COURT
Granted. Intercalate wala po, hindi po ako lumapit
doon. Basta bumagsak.[22]
This testimony of Gonzales pertaining to
ZHIENETHs statement formed (and should be
admitted as) part of the res gestae under Section 42,
Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while
a startling occurrence is taking place or immediately
prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as
part of the res gestae.
It is axiomatic that matters relating to
declarations of pain or suffering and statements made
to a physician are generally considered declarations
and admissions.[23] All that is required for their
admissibility as part of the res gestae is that they be
made or uttered under the influence of a startling event
before the declarant had the time to think and concoct
a falsehood as witnessed by the person who testified in
court. Under the circumstances thus described, it is
unthinkable for ZHIENETH, a child of such tender
age and in extreme pain, to have lied to a doctor whom
she trusted with her life. We therefore accord credence
to Gonzales testimony on the matter, i.e., ZHIENETH
performed no act that facilitated her tragic
death. Sadly, petitioners did, through their negligence
or omission to secure or make stable the counters base.
Gonzales earlier testimony on petitioners
insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their
negligence, thus:
Q When you assumed the position as gift wrapper at
the second floor, will you please describe the gift
wrapping counter, were you able to examine?

You want the words in Tagalog to be translated?

ATTY. BELTRAN

A Because every morning before I start working I used

to clean that counter and since it is not nailed and it
was only standing on the floor, it was shaky.

Yes, your Honor.

xxx

15
Q Will you please describe the counter at 5:00
oclock [sic] in the afternoon on [sic] May 9
1983?

Q When you said she, to whom are you referring to

[sic]?
A I am referring to Ms. Panelo, sir.

A At that hour on May 9, 1983, that counter was

standing beside the verification counter. And
since the top of it was heavy and considering
that it was not nailed, it can collapse at
anytime, since the top is heavy.
xxx

Q And what was the answer of Ms. Panelo when

you told her that the counter was shaky?
A She told me Why do you have to teach me. You
are only my subordinate and you are to teach
me? And she even got angry at me when I
told her that.

Q And what did you do?

xxx
A I informed Mr. Maat about that counter which
is [sic] shaky and since Mr. Maat is fond of
putting display decorations on tables, he even
told me that I would put some
decorations. But since I told him that it
not [sic] nailed and it is shaky he told me
better inform also the company about it. And
since the company did not do anything about
the counter, so I also did not do anything
about the counter.[24] [Emphasis supplied]
Ramon Guevarra, another former employee,
corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable
Court the counter where you were assigned in
January 1983?
xxx
A That counter assigned to me was when my
supervisor ordered me to carry that counter to
another place. I told him that the counter
needs nailing and it has to be nailed because
it might cause injury or accident to another
since it was shaky.
Q When that gift wrapping counter was transferred
at the second floor on February 12, 1983, will
you please describe that to the honorable
Court?
A I told her that the counter wrapper [sic] is really
in good [sic] condition; it was shaky. I told
her that we had to nail it.

Q From February 12, 1983 up to May 9, 1983,

what if any, did Ms. Panelo or any employee
of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only
nailed the counter after the accident
happened.[25] [Emphasis supplied]
Without doubt, petitioner Panelo and another
store supervisor were personally informed of the
danger posed by the unstable counter. Yet, neither
initiated any concrete action to remedy the situation
nor ensure the safety of the stores employees and
patrons as a reasonable and ordinary prudent man
would have done. Thus, as confronted by the situation
petitioners miserably failed to discharge the due
diligence required of a good father of a family.
On the issue of the credibility of Gonzales and
Guevarra, petitioners failed to establish that the
formers testimonies were biased and tainted with
partiality. Therefore, the allegation that Gonzales and
Guevarras testimonies were blemished by ill feelings
against petitioners since they (Gonzales and Guevarra)
were already separated from the company at the time
their testimonies were offered in court was but mere
speculation and deserved scant consideration.
It is settled that when the issue concerns the
credibility of witnesses, the appellate courts will not as
a general rule disturb the findings of the trial court,

16
which is in a better position to determine the
same. The trial court has the distinct advantage of
actually hearing the testimony of and observing the
deportment of the witnesses.[26] However, the rule
admits of exceptions such as when its evaluation was
reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and
substance which could affect the result of the case.
[27]
In the instant case, petitioners failed to bring their
claim within the exception.
Anent the negligence imputed to ZHIENETH, we
apply the conclusive presumption that favors children
below nine (9) years old in that they are incapable of
contributory negligence. In his book,[28]former Judge
Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without
discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a
person over nine and under fifteen years of age, unless
it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of
a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is
that a child under nine years of age must be
conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to
ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and
sturdy. For if that was the truth, a frail six-year old
could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court
and Court of Appeals and a scrutiny of the
evidence[29]on record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted L, the
counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting
area and its base was not secured.[30]

CRISELDA too, should be absolved from any

contributory negligence. Initially, ZHIENETH held on
to CRISELDAs waist, later to the latters hand.
[31]
CRISELDA momentarily released the childs hand
from her clutch when she signed her credit card
slip. At this precise moment, it was reasonable and
usual for CRISELDA to let go of her child. Further, at
the time ZHIENETH was pinned down by the counter,
she was just a foot away from her mother; and the giftwrapping counter was just four meters away from
CRISELDA.[32] The time and distance were both
significant. ZHIENETH was near her mother and did
not loiter as petitioners would want to impress upon
us. She even admitted to the doctor who treated her at
the hospital that she did not do anything; the counter
just fell on her.
WHEREFORE, in view of all the foregoing, the
instant petition is DENIED and the challenged
decision of the Court of Appeals of 17 June 1996 in
C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

G.R. No. 89880

February 6, 1991
EMMA ADRIANO BUSTAMANTE, in her own behalf
as Guardian-Ad-Litem of minors: ROSSEL,
GLORIA, YOLANDA, ERIC SON and EDERIC, all
surnamed BUSTAMANTE, Spouses SALVADOR
JOCSON and PATRIA BONE-JOCSON, Spouses
JOSE RAMOS and ENRIQUETA CEBU-RAMOS,
Spouses NARCISO-HIMAYA and ADORACION
MARQUEZ-HIMAYA, and Spouses JOSE
BERSAMINA and MA. COMMEMORACION PEREABUSTAMANTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS,
FEDERICO DEL PILAR AND EDILBERTO
MONTESIANO,respondents.
Dolorfino and Dominguez Law Offices for petitioners.
J.C. Baldoz & Associates for private respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari seeking the
reversal of the decision of the respondent Court of
Appeals dated February 15, 1989 which reversed and
set aside the decision of the Regional Trial Court of
Cavite, Branch XV ordering the defendants to pay
jointly and severally the plaintiffs indemnity for death

17
and damages; and in further dismissing the complaint
insofar as defendants-appellants Federico del Pilar
and Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the motion
for reconsideration for lack of merit.
The facts giving rise to the controversy at bar are
recounted by the trial court as follows:
At about 6:30 in the morning of April 20, 1983,
a collision occurred between a gravel and
sand truck, with Plate No. DAP 717, and a
Mazda passenger bus with Motor No. Y2231
and Plate No. DVT 259 along the national
road at Calibuyo, Tanza, Cavite. The front left
side portion (barandilla) of the body of the
truck sideswiped the left side wall of the
passenger bus, ripping off the said wall from
the driver's seat to the last rear seat.
Due to the impact, several passengers of the
bus were thrown out and died as a result of
the injuries they sustained, Among those killed
were the following:
1. Rogelio Bustamante, 40, husband of
plaintiff Emma Adriano Bustamante and father
of plaintiffs Rossel, Gloria, Yolanda, Ericson,
and Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of
plaintiffs spouses Salvador and Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs
spouses Jose and Enriqueta Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses
Narciso and Adoracion Himaya; and
5. Noel Bersamina, 17, son of plaintiffs
spouses Jose and Ma. Commemoracion
Bersamina. (Rollo, p. 48)
During the incident, the cargo truck was driven by
defendant Montesiano and owned by defendant Del
Pilar; while the passenger bus was driven by
defendant Susulin. The vehicle was registered in the
name of defendant Novelo but was owned and/or
operated as a passenger bus jointly by defendants
Magtibay and Serrado, under a franchise, with a line
from Naic, Cavite, to Baclaran, Paranaque, Metro
Manila, and vice versa, which Novelo sold to
Magtibay on November 8, 1981, and which the latter
transferred to Serrado (Cerrado) on January 18,
1983.
Immediately before the collision, the cargo truck and
the passenger bus were approaching each other,
coming from the opposite directions of the highway.
While the truck was still about 30 meters away,
Susulin, the bus driver, saw the front wheels of the
vehicle wiggling. He also observed that the truck was
heading towards his lane. Not minding this
circumstance due to his belief that the driver of the
truck was merely joking, Susulin shifted from fourth to
third gear in order to give more power and speed to
the bus, which was ascending the inclined part of the

road, in order to overtake or pass a Kubota hand

tractor being pushed by a person along the shoulder
of the highway. While the bus was in the process of
overtaking or passing the hand tractor and the truck
was approaching the bus, the two vehicles
sideswiped each other at each other's left side. After
the impact, the truck skidded towards the other side of
the road and landed on a nearby residential lot, hitting
a coconut tree and felling it." (Rollo, pp. 48-50)
After a careful perusal of the circumstances of the
case, the trial court reached the conclusion "that the
negligent acts of both drivers contributed to or
combined with each other in directly causing the
accident which led to the death of the aforementioned
persons. It could not be determined from the evidence
that it was only the negligent act of one of them which
was the proximate cause of the collision. In view of
this, the liability of the two drivers for their negligence
must be solidary. (Rollo, pp. 50-51) Accordingly, the
trial court rendered a decision on March 7, 1986, the
dispositive portion is hereunder quoted as follows:
WHEREFORE, defendants Valeriano
Magtibay, Simplicio Serrado, Ricardo Susulin,
Efren Novelo, Federico del Pilar and Edilberto
Montesiano are hereby ordered to pay jointly
and severally to the plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and
her minor children, the sum of P30,000.00 as
indemnity for the death of Rogelio
Bustamante; U.S. $127,680.00 as indemnity
for the loss of the earning capacity of the said
deceased, at its prevailing rate in pesos at the
time this decision shall have become final and
executory; P10,000.00 as moral damages;
and P5,000.00 as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson, the
sum of P30,000.00 as indemnity for the death
of their daughter, Maria Corazon Jocson;
P10,000.00 as moral damages; and
P5,000.00 as exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the
sum of P30,000.00 as indemnity for the death
of their daughter, Jolet Ramos; P10,000.00 as
moral damages; and P5,000.00 as exemplary
damages; and
4. To plaintiffs Narciso and Adoracion Himaya,
the amount of P30,000.00 as indemnity for the
death of their son, Enrico Himaya, P10,000.00
as moral damages; and P5,000.00 as
exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion
Bersamina, the sum of P30,000.00 as
indemnity for the death of their son, Noel
Bersamina, P10,000.00 as moral damages
and P5,000.00 as exemplary damages.

18
The defendants are also required to pay the
plaintiffs the sum of P10,000.00 as attorney's
fees and to pay the costs of the suit.
The cross-claim of defendant Novelo is
hereby allowed, and defendants Magtibay and
Serrado, the actual owners and/or operators
of the passenger bus concerned, are hereby
ordered to indemnify Novelo in such amount
as he may be required to pay as damages to
the plaintiffs.
The cross-claims and counter-claims of the
other defendants are hereby dismissed for
lack of merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del
Pilar and Edilberto Montesiano, owner and driver,
respectively, of the sand and gravel truck have
interposed an appeal before the respondent Court of
Appeals. The Court of Appeals decided the appeal on
a different light. It rendered judgment on February 15,
1989, to wit:
WHEREFORE, the appealed judgment is
hereby REVERSED and SET ASIDE and the
complaint dismissed insofar as defendantsappellants Federico del Pilar and Edilberto
Montesiano are concerned. No costs in this
instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a
motion for reconsideration of the aforementioned
Court of Appeals' decision. However, respondent
Court of Appeals in a resolution dated August 17,
1989 denied the motion for lack of merit. Hence, this
petition.
Petitioners raised the following questions of law,
namely:
First. Whether the respondent Court can
legally and validly absolve defendantsappellants from liability despite its own finding,
as well as that of the trial court that defendantappellant Edilberto Montesiano, the cargo
truck driver, was driving an old vehicle very
fast, with its wheels already wiggling, such
that he had no more control of his truck.
Second. Whether the respondent court can
validly and legally disregard the findings of
fact made by the trial court which was in a
better position to observe the conduct and
demeanor of the witnesses, particularly
appellant Edilberto Montesiano, cargo truck
driver, and which conclusively found appellant
Montesiano as jointly and severally negligent
in driving his truck very fast and had lost
control of his truck.
Third. Whether the respondent court has
properly and legally applied the doctrine of
"last clear chance" in the present case despite

its own finding that appellant cargo truck

driver Edilberto Montesiano was admittedly
negligent in driving his cargo truck very fast
on a descending road and in the presence of
the bus driver coming from the opposite
direction.
Fourth. Whether the respondent court has
applied the correct law and the correct
doctrine so as to reverse and set aside the
judgment with respect to defendantsappellants. (Rollo, pp. 133-134)
As a rule, findings of fact of the Court of Appeals are
final and conclusive and cannot be reviewed on
appeal, provided, they are borne out by the record or
are based on substantial evidence However, this rule
admits of certain exceptions, as when the findings of
facts are conclusions without citation of specific
evidence on which they are based; or the appellate
court's findings are contrary to those of the trial court.
(Sese v. Intermediate Appellate Court, G.R. 66168, 31
July 1987, 152 SCRA 585).
Furthermore, only questions of law may be raised in a
petition for review on certiorari under Rule 45 of the
Revised Rules of Court. The jurisdiction of the
Supreme Court in cases brought to it from the Court
of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being
conclusive. It is not the function of the Supreme Court
to analyze or weigh such evidence all over again, its
jurisdiction being limited to reviewing errors of law that
might have been committed. Barring, therefore, a
showing that the findings complained of are totally
devoid of support in the records, or that they are so
glaringly erroneous as to constitute serious abuse of
discretion, such findings must stand for the Supreme
Court is not expected or required to examine or
contrast the oral and documentary evidence
submitted by the parties. (Andres v. Manufacturers
Hanover and Trust Corp., G.R. 82670, 15 September
1989, 177 SCRA 618).
Bearing in mind these basic principles, We have
opted to re-examine the findings of fact mainly
because the appellate court's findings are contrary to
those of the trial court.
The trial court, in declaring that the negligent acts of
both drivers directly caused the accident which led to
the death of the aforementioned persons, considered
the following:
It was negligent on the part of driver
Montesiano to have driven his truck fast,
considering that it was an old vehicle, being a
1947 model as admitted by its owner,
defendant Del Pilar; that its front wheels were
wiggling; that the road was descending; and
that there was a passenger bus approaching
it. Likewise, driver Susulin was also guilty of
negligence in not taking the necessary

19
precaution to avoid the collision, in the light of
his admission that, at a distance of 30 meters,
he already saw the front wheels of the truck
wiggling and that the vehicle was usurping his
lane coming towards his direction. Had he
exercised ordinary prudence, he could have
stopped his bus or swerved it to the side of
the road even down to its shoulder. And yet,
Susulin shifted to third gear so as to, as
claimed by him, give more power and speed
to his bus in overtaking or passing a hand
tractor which was being pushed along the
shoulder of the road. (Rollo, p. 50)
The respondent Court of Appeals ruling on the
contrary, opined that "the bus driver had the last clear
chance to avoid the collision and his reckless
negligence in proceeding to overtake the hand tractor
was the proximate cause of the collision." (Rollo, p.
95). Said court also noted that "the record also
discloses that the bus driver was not a competent and
responsible driver. His driver's license was
confiscated for a traffic violation on April 17, 1983 and
he was using a ticket for said traffic violation on the
day of the accident in question (pp. 16-18, TSN, July
23, 1984). He also admitted that he was not a regular
driver of the bus that figured in the mishap and was
not given any practical examination. (pp. 11, 96, TSN,
supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CAG.R. 11114-41-CR, August 28, 1975 held that "We are
not prepared to uphold the trial court's finding that the
truck was running fast before the impact. The national
road, from its direction, was descending. Courts can
take judicial notice of the fact that a motor vehicle
going down or descending is more liable to get out of
control than one that is going up or ascending for the
simple reason that the one which is going down gains
added momentum while that which is going up loses
its initial speeding in so doing."
On the other hand, the trial court found and We are
convinced that the cargo truck was running fast. It did
not overlook the fact that the road was descending as
in fact it mentioned this circumstance as one of the
factors disregarded by the cargo truck driver along
with the fact that he was driving an old 1947 cargo
truck whose front wheels are already wiggling and the
fact that there is a passenger bus approaching it. In
holding that the driver of the cargo truck was
negligent, the trial court certainly took into account all
these factors so it was incorrect for the respondent
court to disturb the factual findings of the trial court,
which is in a better position to decide the question,
having heard the witness themselves and observed
their deportment.
The respondent court adopted the doctrine of "last
clear chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a

recovery for the negligence of the defendant where it

appears that the defendant, by exercising reasonable
care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the
plaintiff's negligence. In other words, the doctrine of
last clear chance means that even though a person's
own acts may have placed him in a position of peril,
and an injury results, the injured person is entitled to
recovery. As the doctrine is usually stated, a person
who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent
acts of his opponent or that of a third person imputed
to the opponent is considered in law solely
responsible for the consequences of the accident.
(Sangco,Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent
defendant is held liable to a negligent plaintiff, or even
to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiffs peril, or
according to some authorities, should have been
aware of it in the reasonable exercise of due case,
had in fact an opportunity later than that of the plaintiff
to avoid an accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc.
v. Intermediate Appellate Court, et al. (G.R. Nos.
66102-04, August 30, 1990), the Court citing the
landmark decision held in the case of Anuran, et al. v.
Buno, et al. (123 Phil. 1073) ruled that the principle of
"last clear chance" applies "in a suit between the
owners and drivers of colliding vehicles. It does not
arise where a passenger demands responsibility from
the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of
the jeepney and its owners on the ground that the
other driver was likewise guilty of negligence."
Furthermore, "as between defendants: The doctrine
cannot be extended into the field of joint tortfeasors
as a test of whether only one of them should be held
liable to the injured person by reason of his discovery
of the latter's peril, and it cannot be invoked as
between defendants concurrently negligent. As
against third persons, a negligent actor cannot defend
by pleading that another had negligently failed to take
action which could have avoided the injury." (57 Am.
Jur. 2d, pp. 806-807).
All premises considered, the Court is convinced that
the respondent Court committed an error of law in
applying the doctrine of last clear chance as between
the defendants, since the case at bar is not a suit
between the owners and drivers of the colliding
vehicles but a suit brought by the heirs of the
deceased passengers against both owners and
drivers of the colliding vehicles. Therefore, the
respondent court erred in absolving the owner and
driver of the cargo truck from liability.
Pursuant to the new policy of this Court to grant an
increased death indemnity to the heirs of the

20
deceased, their respective awards of P30,000.00 are
hereby increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the
appealed judgment and resolution of the Court of
Appeals are hereby REVERSED and SET ASIDE and
the judgment of the lower court is REINSTATED with
the modification on the indemnity for death of each of
the victims which is hereby increased to P50,000.00
each. No pronouncement as to costs.
SO ORDERED.
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH
MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME
TAYAG and ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA
KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO
KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME
TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

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

which led to the deaths of Jose Koh, Kim Koh McKee

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

21
approach of the bridge, two (2) boys suddenly darted
from the right side of the road and into the lane of the
car. The boys were moving back and forth, unsure of
whether to cross all the way to the other side or turn
back. Jose Koh blew the horn of the car, swerved to
the left and entered the lane of the truck; he then
switched on the headlights of the car, applied the
brakes and thereafter attempted to return to his lane.
Before he could do so, his car collided with the truck.
The collision occurred in the lane of the truck, which
was the opposite lane, on the said bridge.
The incident was immediately reported to the police
station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the
spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be
sixty (60) "footsteps" long and fourteen (14)
"footsteps" wide seven (7) "footsteps" from the
center line to the inner edge of the side walk on both
sides. 2 Pulong Pulo Bridge, which spans a dry brook,
is made of concrete with soft shoulders and concrete
railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that
the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while
its left front portion was touching the center line of the
bridge, with the smashed front side of the car resting
on its front bumper. The truck was about sixteen (16)
"footsteps" away from the northern end of the bridge
while the car was about thirty-six (36) "footsteps" from
the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps",
while skid marks produced by the left front tire
measured five (5) "footsteps." The two (2) rear tires of
the truck, however, produced no skid marks.
In his statement to the investigating police officers
immediately after the accident, Galang admitted that
he was traveling at thirty (30) miles (48 kilometers)
per hour.
As a consequence of the collision, two (2) cases, Civil
Case No. 4477 and No. 4478, were filed on 31
January 1977 before the then Court of First Instance
of Pampanga and were raffled to Branch III and
Branch V of the said court, respectively. In the first,
herein petitioners in G.R. No. 68103 prayed for the
award of P12,000.00 as indemnity for the death of

Jose Koh, P150,000.00 as moral damages,

P60,000.00 as exemplary damages, P10,000.00 for
litigation expenses, P6,000.00 for burial expenses,
P3,650.00 for the burial lot and P9,500.00 for the
tomb, plus attorney's fees. 3 In the second case,
petitioners in G.R. No. 68102 prayed for the following:
(a) in connection with the death of Kim McKee, the
sum of P12,000.00 as death benefit, P3,150.00 for
funeral services, P3,650.00 for the cemetery lot,
P3,000.00 for the tomb, P50,000.00 as moral
damages, P10,000.00 as exemplary damages and
P2,000.00 as miscellaneous damages; (b) in the case
of Araceli Koh McKee, in connection with the serious
physical injuries suffered, the sum of P100,000.00 as
moral damages, P20,000.00 as exemplary damages,
P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of
the complaint; and (c) with respect to George McKee,
Jr., in connection with the serious physical injuries
suffered, the sum of P50,000.00 as moral damages,
P20,000.00 as exemplary damages and the following
medical expenses: P3,400 payable to the Medical
Center, P3,500.00 payable to the St. Francis Medical
Center, P5,175.00 payable to the Clark Air Base
Hospital, and miscellaneous expenses amounting to
P5,000.00. They also sought an award of attorney's
fees amounting to 25% of the total award plus
traveling and hotel expenses, with costs. 4
On 1 March 1977, an Information charging Ruben
Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical
Injuries and Damage to Property" was filed with the
trial court. It was docketed as Criminal Case No. 3751
and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No.
4477, private respondents asserted that it was the
Ford Escort car which "invaded and bumped (sic) the
lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as
attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and
P30,000.00 as business losses. 6 In Civil Case No.
4478, private respondents first filed a motion to
dismiss on grounds of pendency of another action
(Civil Case No. 4477) and failure to implead an
indispensable party, Ruben Galang, the truck driver;
they also filed a motion to consolidate the case with

22
Civil Case No. 4477 pending before Branch III of the
same court, which was opposed by the
plaintiffs. 7 Both motions were denied by Branch V,
then presided over by Judge Ignacio Capulong.
Thereupon, private respondents filed their Answer
with Counter-claim 8 wherein they alleged that Jose
Koh was the person "at fault having approached the
lane of the truck driven by Ruben Galang, . . . which
was on the right lane going towards Manila and at a
moderate speed observing all traffic rules and
regulations applicable under the circumstances then
prevailing;" in their counterclaim, they prayed for an
award of damages as may be determined by the court
after due hearing, and the sums of P10,000.00 as
attorney's fees and P5,000.00 as expenses of
litigation.
Petitioners filed their Answers to the Counterclaims in
both cases.
To expedite the proceedings, the plaintiffs in Civil
Case No. 4478 filed on 27 March 1978 a motion to
adopt the testimonies of witnesses taken during the
hearing of Criminal Case No. 3751, which private
respondents opposed and which the court
denied. 9 Petitioners subsequently moved to
reconsider the order denying the motion for
consolidation, 10 which Judge Capulong granted in the
Order of 5 September 1978; he then directed that
Civil Case No. 4478 be consolidated with Civil Case
No. 4477 in Branch III of the court then presided over
by Judge Mario Castaeda, Jr.
Left then with Branch V of the trial court was Criminal
Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses
Araceli Koh McKee, Fernando Nuag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco,
Carmen Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private
respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as
witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert
Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday,
Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel,
Rogelio Pineda, Benito Caraan and Eugenio

Tanhueco, and offered several documentary

exhibits. 13 Upon the other hand, the defense
presented the accused Ruben Galang, Luciano
Punzalan, Zenaida Soliman and Roman Dayrit, and
offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a
decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of the
decision reads as follows:
WHEREFORE, in view of the
foregoing, judgment is hereby
rendered finding the accused Ruben
Galang guilty beyond reasonable
doubt of the crime charged in the
information and after applying the
provisions of Article 365 of the
Revised Penal Code and
indeterminate sentence law, this
Court, imposes upon said accused
Ruben Galang the penalty of six (6)
months of arresto mayor as minimum
to two (2) years, four (4) months and
one (1) day of prision correccional as
maximum; the accused is further
sentenced to pay and indemnify the
heirs of Loida Bondoc the amount of
P12,000.00 as indemnity for her
death; to reimburse the heirs of Loida
Bondoc the amount of P2,000.00
representing the funeral expenses; to
pay the heirs of Loida Bondoc the
amount of P20,000.00 representing
her loss of income; to indemnify and
pay the heirs of the deceased Jose
Koh the value of the car in the amount
of P53,910.95, and to pay the costs. 15
The aforecited decision was promulgated only on 17
November 1980; on the same day, counsel for
petitioners filed with Branch III of the court where
the two (2) civil cases were pending a
manifestation to that effect and attached thereto a
copy of the decision. 16
Upon the other hand, Judge Mario Castaeda, Jr.
dismissed the two (2) civil cases on 12 November
1980 and awarded the private respondents moral
damages, exemplary damages and attorney's

23
fees. 17 The dispositive portion of the said decision
reads as follows:
WHEREFORE, finding the
preponderance of evidence to be in
favor of the defendants and against
the plaintiffs, these cases are hereby
ordered DISMISSED with costs
against the plaintiffs. The defendants
had proven their counter-claim, thru
evidences (sic) presented and
unrebutted. Hence, they are hereby
awarded moral and exemplary
damages in the amount of
P100,000.00 plus attorney's fee of
P15,000.00 and litigation expenses for
(sic) P2,000.00. The actual damages
claimed for (sic) by the defendants is
(sic) hereby dismissing for lack of
proof to that effect (sic). 18
A copy of the decision was sent by registered mail to
the petitioners on 28 November 1980 and was
received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of
conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was
assigned to the court's Third Division. Plaintiffs in Civil
Cases Nos. 4477 and 4478 likewise separately
appealed the 12 November 1980 decision to the
appellate court. The appeals were docketed as C.A.G.R. No. 69041-R and C.A.-G.R. No. 69040-R,
respectively, and were assigned to the Fourth Civil
Cases Division.

1982. 22 A petition for its review 23 was filed with this

Court; said petition was subsequently denied. A
motion for its reconsideration was denied with finality
in the Resolution of 20 April 1983. 24
On 29 November 1983, respondent Court, by then
known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV
Nos. 69040 and 69041, 25 the dispositive portion of
which reads:
WHEREFORE, the decision appealed
from it hereby reversed and set aside
and another one is rendered, ordering
defendants-appellees to pay plaintiffsappellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral
damages
P 12,000.00 as death
indemnity
P 16,000.00 for the lot
and tomb (Exhs. U and
U-1)
P 4,000.00 expenses
for holding a wake (p.
9, tsn April 19, 1979)
P 950.00 for the casket
(Exh. M)
P 375.00 for the vault
services (Exhs. V and
V-1)
For the death of Kim Koh McKee:

On 4 October 1982, the respondent Court

promulgated its decision 20 in C.A.-G.R. Blg. 24764CR affirming the conviction of Galang. 21 The
dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng
naritong paghahabol ay Aming
pinagtitibay sa kanyang kabuuan. Ang
naghahabol pa rin ang pinagbabayad
ng gugol ng paghahabol.
A motion for reconsideration of the decision was
denied by the respondent Court in
its Kapasiyahan promulgated on 25 November

P 50,000.00 as moral
damages
P 12,000.00 as death
indemnity
P 1,000.00 for the
purchase of the burial
lot (Exh. M)
P 950.00 for funeral
services (Exh. M-1)
P 375.00 for vault
services (Exhs. V and
V-1)

24
For the physical injuries suffered by
George Koh McKee:

No pronouncement as to costs.
SO ORDERED. 26

P 25,000.00 as moral
damages
P 672.00 for Clark
Field Hospital (Exh. E)
P 4,384.00 paid to
Angeles Medical Clinic
(Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St.
Francis Medical Center
(Exhs. B and B-1)
For the physical injuries suffered by
Araceli Koh McKee:
P 25,000.00 as moral
damages
P 1,055.00 paid to St.
Francis Medical Center
(Exhs. G and
G-1)
P 75.00 paid to St.
Francis Medical Center
(Exhs. G-2 and G-3)
P 428.00 to Carmelite
General Hospital (Exh.
F)
P 114.20 to Muoz
Clinic (Exh. MM)
For the physical injuries suffered by
Christopher Koh McKee:
P 10,000.00 as moral
damages
P 1,231.10 to St.
Francis Medical Center
(Exhs. L and L-1)
P 321.95 to F.C.E.A.
Hospital (Exhs. G and
D-1)
In addition, We award P10,000.00 as
counsel (sic) fees in Civil Case No.
4477 and another P10,000.00; as
counsel (sic) fees in Civil Case No.
4478.

The decision is anchored principally on the

respondent Court's findings that it was Ruben
Galang's inattentiveness or reckless imprudence
which caused the accident. The appellate court
further said that the law presumes negligence on the
part of the defendants (private respondents), as
employers of Galang, in the selection and supervision
of the latter; it was further asserted that these
defendants did not allege in their Answers the
defense of having exercised the diligence of a good
father of a family in selecting and supervising the said
employee. 27 This conclusion of reckless imprudence
is based on the following findings of fact:
In the face of these diametrically
opposed judicial positions, the
determinative issue in this appeal is
posited in the fourth assigned error as
follows:
IV
THE TRIAL COURT ERRED WHEN IT
HELD THE (sic) DRIVER OF THE
TRUCK STOPPED HIS TRUCK
BLEW HIS HORN SWITCHED ON
HIS HEADLIGHTS AND COULD NOT
SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness
Araceli Koh McKee testified thus:
Q What happened
after that, as you
approached the
bridge?
A When we were
approaching the
bridge, two (2) boys
tried to cross the right
lane on the right side
of the highway going
to San Fernando. My
father, who is (sic) the
driver of the car tried to

25
avoid the two (2) boys
who were crossing, he
blew his horn and
swerved to the left to
avoid hitting the two
(2) boys. We noticed
the truck, he switched
on the headlights to
warn the truck driver,
to slow down to give
us the right of way to
come back to our right
lane.
Q Did the truck slow
down?
A No, sir, it did not, just
(sic) continued on its
way.
Q What happened
after that?
A After avoiding the
two (2) boys, the car
tried to go back to the
right lane since the
truck is (sic) coming,
my father stepped on
the brakes and all
what (sic) I heard is
the sound of impact
(sic), sir. (tsn, pp. 5-6,
July 22, 1977); or
(Exhibit "O" in these
Civil Cases).

"1," how did you know

(sic)?
A It just kept on
coming, sir. If only he
reduced his speed, we
could have got (sic)
back to our right lane
on side (sic) of the
highway, sir. (tsn. pp.
33-34 July 22, 1977)
or (Exhibit "O" in these
Civil Cases) (pp. 3031, Appellants' Brief).
Plaintiffs' version was successfully corroborated to
Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the
mishap, Eugenio Tanhueco, declared
that the truck stopped only when it had
already collided with the car:
xxx xxx xxx
Tanhueco repeated the same
testimony during the hearing in the
criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as
an accommodation witness because
he was one of the first to arrive at the
scene of the accident. As a matter of
fact, he brought one of the injured
passengers to the hospital.

xxx xxx xxx

Q Mrs. how did you
know that the truck
driven by the herein
accused, Ruben
Galang did not reduce
its speed before the
actual impact of
collision (sic) as you
narrated in this Exhibit

We are not prepared to accord faith

and credit to defendants' witnesses,
Zenaida Soliman, a passenger of the
truck, and Roman Dayrit, who
supposedly lived across the street.
Regarding Soliman, experience has
shown that in the ordinary course of
events people usually take the side of
the person with whom they are
associated at the time of the accident,

26
because, as a general rule, they do
not wish to be identified with the
person who was at fault. Thus an
imaginary bond is unconsciously
created among the several persons
within the same group (People vs.
Vivencio, CA-G.R. No. 00310-CR,
Jan. 31, 1962).
With respect to Dayrit, We can not
help suspecting (sic) that he is an
accommodation witness. He did not
go to the succor of the injured
persons. He said he wanted to call the
police authorities about the mishap,
but his phone had no dial tone. Be this
(sic) as it may, the trial court in the
criminal case acted correctly in
refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang,
does not include the claim that Galang
stopped his truck at a safe distance
from the car, according to plaintiffs (p.
25, Appellants' Brief). This contention
of appellants was completely
passed sub-silencio or was not refuted
by appellees in their brief. Exhibit 2 is
one of the exhibits not included in the
record. According to the Table of
Contents submitted by the court
below, said Exhibit 2 was not
submitted by defendants-appellees. In
this light, it is not far-fetched to
surmise that Galang's claim that he
stopped was an eleventh-hour
desperate attempt to exculpate
himself from imprisonment and
damages.
3. Galang divulged that he stopped
after seeing the car about 10 meters
away:
ATTY. SOTTO:
Q Do I understand
from your testimony
that inspite of the fact
that you admitted that

the road is straight and

you may be able to
(sic) see 500-1000
meters away from you
any vehicle, you first
saw that car only
about ten (10) meters
away from you for the
first time?
xxx xxx xxx
A I noticed it, sir, that it
was about ten (10)
meters away.
ATTY. SOTTO:
Q So, for clarification,
you clarify and state
under your oath that
you have (sic) not
noticed it before that
ten (10) meters? (Tsn.
3 to 5, Sept. 18, 1979).
(p. 16, Appellants'
Brief)
Galang's testimony substantiate (sic)
Tanhueco's statement that Galang
stopped only because of the impact.
At ten (10) meters away, with the truck
running at 30 miles per hour, as
revealed in Galang's affidavit (Exh. 2;
p. 25, Appellants' brief), it is well-nigh
impossible to avoid a collision on a
bridge.
5. Galang's truck stopped because of
the collision, and not because he
waited for Jose Koh to return to his
proper lane. The police investigator,
Pfc. Fernando L. Nuag, stated that
he found skid marks under the truck
but there were not (sic) skid marks
behind the truck (pp. 19-20, t.s.n.,
Nov. 3, 1978). The presence of skid
marks show (sic) that the truck was
speeding. Since the skid marks were
found under the truck and none were

27
found at the rear of the truck, the
reasonable conclusion is that the skid
marks under the truck were caused by
the truck's front wheels when the
trucks (sic) suddenly stopped seconds
before the mishap in an endeavor to
avoid the same. But, as aforesaid,
Galang saw the car at barely 10
meters away, a very short distance to
avoid a collision, and in his futile
endeavor to avoid the collision he
abruptly stepped on his brakes but the
smashup happened just the same.
For the inattentiveness or reckless
imprudence of Galang, the law
presumes negligence on the part of
the defendants in the selection of their
driver or in the supervision over him.
Appellees did not allege such defense
of having exercised the duties of a
good father of a family in the selection
and supervision of their employees in
their answers. They did not even
adduce evidence that they did in fact
have methods of selection and
programs of supervision. The
inattentiveness or negligence of
Galang was the proximate cause of
the mishap. If Galang's attention was
on the highway, he would have
sighted the car earlier or at a very safe
distance than (sic) 10 meters. He
proceeded to cross the bridge, and
tried to stop when a collision was
already inevitable, because at the time
that he entered the bridge his attention
was not riveted to the road in front of
him.
On the question of damages, the
claims of appellants were amply
proven, but the items must be
reduced. 28
A motion for reconsideration alleging improper
appreciation of the facts was subsequently filed by
private respondents on the basis of which the
respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November

1983 decision and affirmed in toto the trial court's

judgment of 12 November 1980. A motion to
reconsider this Resolution was denied by the
respondent Court on 4 July 1984. 30
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS
AND GRAVE ERROR WHEN IT
TOTALLY REVERSED ITS DECISION
BY MERELY BASING IT FROM (sic) A
MERE "PRESUMPTION," TOTALLY
DISREGARDING THE PRIVATE
RESPONDENTS' DRIVER'S
ADMISSIONS AND CONFESSIONS,
WHO EXCLUSIVELY COMMITTED
THE PROXIMATE CAUSE OF THE
ACCIDENT (sic), FURTHER, IT ALSO
DISREGARDED THE EVIDENCE
ADDUCED AND FOUND IN THE
RECORDS; THEREFORE,
RESPONDENT COURT'S
RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY
ERRONEOUS, PURELY BASED ON
SPECULATIONS, CONJECTURES
AND WITHOUT SURE FOUNDATION
IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS
DISCRETION AND ERRED WHEN IN
EFFECT IT DISREGARDED A
DOCTRINE LAID DOWN BY THIS
HONORABLE COURT BY STATING
AMONG OTHERS, "IT CANNOT
CATEGORICALLY ADOPT THE
FINDINGS OF GUILT IN THE
CRIMINAL CASE WHERE THE
DRIVER OF THE TRUCK INVOLVED
IN THE ACCIDENT WAS INDICTED.
III

28
. . . PATENTLY COMMITTED GRAVE
ABUSE OF DISCRETION AND MADE
A MISLEADING PRONOUNCEMENT,
WHEN IT HELD: "IT IS THUS
INCUMBENT UPON THE
PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY
MENTIONED IN THE RESOLUTION)
TO PROVE THEIR ALLEGATIONS
THAT THE PROXIMATE CAUSE OF
THE ACCIDENT WAS THE
NEGLIGENCE OF PRIVATE
RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER
GRIEVIOUS (sic) ERROR;
COMMITTED GRAVE ABUSE OF
DISCRETION AND CITED ANOTHER
CASE WHICH IS CLEARLY
INAPPLICABLE TO THESE CASES.
V
. . . COMMITTED A PATENT ERROR
AND GRAVELY ABUSED ITS
DISCRETION IN ADOPTING THE
FINDINGS OF THE TRIAL COURT
WHICH ARE CLEARLY ERRONEOUS
AND CONTRARY TO THE
EVIDENCE FOUND IN THE
RECORDS, SPECIALLY THEY (sic)
ARE CONTRARY TO THE ADMITTED
FACTS AND JUDICIAL ADMISSIONS
MADE BY THE PRIVATE
RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION,
COMMITTED GRAVE ABUSE OF
DISCRETION AND GRAVELY ERRED
WHEN IT AWARDED DAMAGES TO
THE PRIVATE RESPONDENTS
WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE
RECORDS, AND SAID AWARD IS
NOT ALLOWED BY LAW AND THE

CONSISTENT DECISIONS OF THIS

HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION,
COMMITTED GRAVE ABUSE OF
DISCRETION AND GRAVELY ERRED
WHEN IT ERRONEOUSLY SET
ASIDE ITS DECISION AWARDING
DAMAGES TO PETITIONERS
WHICH IS CLEARLY IN
ACCORDANCE WITH THE
EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO
THE AWARD OF DAMAGES. 31
In the Resolution of 12 September 1984, We required
private respondents to Comment on the
petition. 32 After the said Comment 33 was filed,
petitioners submitted a Reply 34 thereto; this Court
then gave due course to the instant petitions and
required petitioners to file their Brief, 35 which they
accordingly complied with.
There is merit in the petition. Before We take on the
main task of dissecting the arguments and counterarguments, some observations on the procedural
vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the
recovery of civil liability arising from a quasidelict under Article 2176 in relation to Article 2180 of
the Civil Code, were filed ahead of Criminal Case No.
3751. Civil Case No. 4478 was eventually
consolidated with Civil Case No. 4477 for joint trial in
Branch III of the trial court. The records do not
indicate any attempt on the part of the parties, and it
may therefore be reasonably concluded that none
was made, to consolidate Criminal Case No. 3751
with the civil cases, or vice-versa. The parties may
have then believed, and understandably so, since by
then no specific provision of law or ruling of this Court
expressly allowed such a consolidation, that an
independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the
civil cases in this case, cannot be consolidated with
the criminal case. Indeed, such consolidation could
have been farthest from their minds as Article 33 itself
expressly provides that the "civil action shall proceed

29
independently of the criminal prosecution, and shall
require only a preponderance of evidence." Be that as
it may, there was then no legal impediment against
such consolidation. Section 1, Rule 31 of the Rules of
Court, which seeks to avoid a multiplicity of suits,
guard against oppression and abuse, prevent delays,
clear congested dockets to simplify the work of the
trial court, or in short, attain justice with the least
expense to the parties litigants, 36 would have easily
sustained a consolidation, thereby preventing the
unseeming, if no ludicrous, spectacle of two (2)
judges appreciating, according to their respective
orientation, perception and perhaps even prejudice,
the same facts differently, and thereafter
rendering conflicting decisions. Such was what
happened in this case. It should not, hopefully,
happen anymore. In the recent case of Cojuangco vs.
Court or Appeals, 37 this Court held that the present
provisions of Rule 111 of the Revised Rules of Court
allow a consolidation of an independent civil action for
the recovery of civil liability authorized under Articles
32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final
judgment has been rendered in that criminal case.
Let it be stressed, however, that the judgment in
Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue
of the denial by no less than this Court of his last
attempt to set aside the respondent Court's
affirmance of the verdict of conviction, has no
relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the
responsibility arising from fault or negligence in
a quasi-delict is entirely separate and distinct from the
civil liability arising from negligence under the Penal
Code. And, as more concretely stated in the
concurring opinion of Justice J.B.L. Reyes, "in the
case of independent civil actions under the new Civil
Code, the result of the criminal case, whether
acquittal or conviction, would be entirely irrelevant to
the civil action." 39 In Salta vs. De Veyra and PNB vs.
Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to
conclude that the civil actions
mentioned in Article 33, permitted in
the same manner to be filed
separately from the criminal case, may

proceed similarly regardless of the

result of the criminal case.
Indeed, when the law has allowed a
civil case related to a criminal case, to
be filed separately and to proceed
independently even during the
pendency of the latter case, the
intention is patent to make the court's
disposition of the criminal case of no
effect whatsoever on the separate civil
case. This must be so because the
offenses specified in Article 33 are of
such a nature, unlike other offenses
not mentioned, that they may be made
the subject of a separate civil action
because of the distinct separability of
their respective juridical cause or
basis of action . . . .
What remains to be the most important consideration
as to why the decision in the criminal case should not
be considered in this appeal is the fact that private
respondents were not parties therein. It would have
been entirely different if the petitioners' cause of
action was for damages arising from a delict, in which
case private respondents' liability could only be
subsidiary pursuant to Article 103 of the Revised
Penal Code. In the absence of any collusion, the
judgment of conviction in the criminal case against
Galang would have been conclusive in the civil cases
for the subsidiary liability of the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the
principal issue raised in this petition is whether or not
respondent Court's findings in its challenged
resolution are supported by evidence or are based on
mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not
a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of
Court, only questions of law may be raised. The
resolution of factual issues is the function of the lower
courts whose findings on these matters are received
with respect and are, as a rule, binding on this
Court. 42

30
The foregoing rule, however, is not without
exceptions. Findings of facts of the trial courts and the
Court of Appeals may be set aside when such
findings are not supported by the evidence or when
the trial court failed to consider the material facts
which would have led to a conclusion different from
what was stated in its judgment. 43The same is true
where the appellate court's conclusions are grounded
entirely on conjectures, speculations and
surmises44 or where the conclusions of the lower
courts are based on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case
qualifies as one of the aforementioned exceptions as
the findings and conclusions of the trial court and the
respondent Court in its challenged resolution are not
supported by the evidence, are based on an
misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent
Court's decision of 29 November 1983 makes the
correct findings of fact.
In the assailed resolution, the respondent Court held
that the fact that the car improperly invaded the lane
of the truck and that the collision occurred in said lane
gave rise to the presumption that the driver of the car,
Jose Koh, was negligent. On the basis of this
presumed negligence, the appellate court immediately
concluded that it was Jose Koh's negligence that was
the immediate and proximate cause of the collision.
This is an unwarranted deduction as the evidence for
the petitioners convincingly shows that the car
swerved into the truck's lane because as it
approached the southern end of the bridge, two (2)
boys darted across the road from the right sidewalk
into the lane of the car. As testified to by petitioner
Araceli Koh McKee:
Q What happened
after that, as you
approached the
bridge?
A When we were
approaching the
bridge, two (2) boys
tried to cross the right
lane on the right side
of the highway going
to San Fernando. My

father, who is (sic) the

driver of the car tried to
avoid the two (2) boys
who were crossing, he
blew his horn and
swerved to the left to
avoid hitting the two
(2) boys. We noticed
the truck, he switched
on the headlights to
warn the truck driver,
to slow down to give
us the right of way to
come back to our right
lane.
Q Did the truck slow
down?
A No sir, it did not, just
(sic) continued on its
way.
Q What happened
after that?
A After avoiding the
two (2) boys, the car
tried to go back to the
right lane since the
truck is (sic) coming,
my father stepped on
the brakes and all
what (sic) I heard is
the sound of impact
(sic), sir. 46
Her credibility and testimony remained intact even
during cross examination. Jose Koh's entry into the
lane of the truck was necessary in order to avoid what
was, in his mind at that time, a greater peril death
or injury to the two (2) boys. Such act can hardly be
classified as negligent.
Negligence was defined and described by this Court
in Layugan vs. Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do
something which a reasonable man,
guided by those considerations which

31
ordinarily regulate the conduct of
human affairs, would do, or the doing
of something which a prudent and
reasonable man would not do (Black's
Law Dictionary, Fifth Edition, 930), or
as Judge Cooley defines it, "(T)he
failure to observe for the protection of
the interests of another person, that
degree of care, precaution, and
vigilance which the circumstances
justly demand, whereby such other
person suffers injury." (Cooley on
Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813),
decided more than seventy years ago
but still a sound rule, (W)e held:
The test by which to
determine the
existence of
negligence in a
particular case may be
stated as follows: Did
the defendant in doing
the alleged negligent
act use
that(reasonable care
and caution which an
ordinarily prudent
person would have
used in the same
situation?) If not, then
he is guilty of
negligence. The law
here in effect adopts
the standard supposed
to be supplied by the
imaginary conduct of
the
discreet paterfamiliaso
f the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care
required by the circumstances. It is a
relative or comparative, not an
absolute, term and its application

depends upon the situation of the

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

32
proximate legal cause is that acting
first and producing the injury, either
immediately or by setting other events
in motion, all constituting a natural and
continuous chain of events, each
having a close causal connection with
its immediate predecessor, the final
event in the chain immediately
effecting the injury as a natural and
probable result of the cause which first
acted, under such circumstances that
the person responsible for the first
event should, as an ordinary prudent
and intelligent person, have
reasonable ground to expect at the
moment of his act or default that an
injury to some person might probably
result therefrom. 50
Applying the above definition, although it may be said
that the act of Jose Koh, if at all negligent, was the
initial act in the chain of events, it cannot be said that
the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening
event, the negligent act of the truck driver, which was
the actual cause of the tragedy. The entry of the car
into the lane of the truck would not have resulted in
the collision had the latter heeded the emergency
signals given by the former to slow down and give the
car an opportunity to go back into its proper lane.
Instead of slowing down and swerving to the far right
of the road, which was the proper precautionary
measure under the given circumstances, the truck
driver continued at full speed towards the car. The
truck driver's negligence becomes more apparent in
view of the fact that the road is 7.50 meters wide
while the car measures 1.598 meters and the truck,
2.286 meters, in width. This would mean that both car
and truck could pass side by side with a clearance of
3.661 meters to spare. 51 Furthermore, the bridge has
a level sidewalk which could have partially
accommodated the truck. Any reasonable man finding
himself in the given situation would have tried to avoid
the car instead of meeting it head-on.
The truck driver's negligence is apparent in the
records. He himself said that his truck was running at
30 miles (48 kilometers) per hour along the bridge
while the maximum speed allowed by law on a
bridge 52 is only 30 kilometers per hour. Under Article

2185 of the Civil Code, a person driving a vehicle is

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

33
Q When you saw the
truck, how was it
moving?
A It was moving 50 to
60 kilometers per hour,
sir.
Q Immediately after
you saw this truck, do
you know what
happened?
A I saw the truck and a
car collided (sic), sir,
and I went to the place
to help the victims.
(tsn. 28, April 19,
1979)
xxx xxx xxx
Q From the time you
saw the truck to the
time of the impact, will
you tell us if the said
truck ever stopped?
A I saw it stopped (sic)
when it has (sic)
already collided with
the car and it was
already motionless.
(tsn. 31, April 19, 1979;
Emphasis Supplied).
(p. 27, Appellants'
Brief). 55
Clearly, therefore, it was the truck driver's
subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the
collision which was the proximate cause of the
resulting accident.
Even if Jose Koh was indeed negligent, the doctrine
of last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states
that the contributory negligence of the party injured
will not defeat the claim for damages if it is shown that
the defendant might, by the exercise of reasonable

care and prudence, have avoided the consequences

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

34
The doctrine of last clear chance was
defined by this Court in the case of
Ong v. Metropolitan Water District, 104
Phil. 397 (1958), in this wise:
The doctrine of the last
clear chance simply,
means that the
negligence of a
claimant does not
preclude a recovery for
the negligence of
defendant where it
appears that the latter,
by exercising
reasonable care and
prudence, might have
avoided injurious
consequences to
claimant
notwithstanding his
negligence.
The doctrine applies only in a situation
where the plaintiff was guilty of prior or
antecedent negligence but the
defendant, who had the last fair
chance to avoid the impending harm
and failed to do so, is made liable for
all the consequences of the accident
notwithstanding the prior negligence of
the plaintiff [Picart v. Smith, 37 Phil.
809 (1918); Glan People's Lumber
and Hardware, et al. vs. Intermediate
Appellate Court, Cecilia Alferez Vda.
de Calibo, et al., G.R. No. 70493, May,
18, 1989]. The subsequent negligence
of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff
becomes the immediate or proximate
cause of the accident which
intervenes between the accident and
the more remote negligence of the
plaintiff, thus making the defendant
liable to the plaintiff [Picart v.
Smith, supra].
Generally, the last clear chance
doctrine is invoked for the purpose of
making a defendant liable to a plaintiff

who was guilty of prior or antecedent

negligence, although it may also be
raised as a defense to defeat claim
(sic) for damages.
Applying the foregoing doctrine, it is not difficult to
rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the
collision which was, in law, the proximate cause of the
collision. As employers of the truck driver, the private
respondents are, under Article 2180 of the Civil Code,
directly and primarily liable for the resulting damages.
The presumption that they are negligent flows from
the negligence of their employee. That presumption,
however, is only juris tantum, not juris et de
jure. 59 Their only possible defense is that they
exercised all the diligence of a good father of a family
to prevent the damage. Article 2180 reads as follows:
The obligation imposed by Article
2176 is demandable not only for one's
own acts or omissions, but also for
those of persons for whom one is
responsible.
xxx xxx xxx
Employers shall be liable for the
damages caused by their employees
and household helpers acting within
the scope of their assigned tasks,
even though the former are not
engaged in any business or industry.
xxx xxx xxx
The responsibility treated of in this
article shall cease when the persons
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damage.
The diligence of a good father referred to means the
diligence in the selection and supervision of
employees. 60The answers of the private respondents
in Civil Cases Nos. 4477 and 4478 did not interpose
this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision
of 29 November 1983 in reversing the decision of the

35
trial court which dismissed Civil Cases Nos. 4477 and
4478. Its assailed Resolution of 3 April 1984 finds no
sufficient legal and factual moorings.
In the light of recent decisions of this Court, 61 the
indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The
assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November
1983 in C.A.-G.R. CV Nos. 69040-41 is
REINSTATED, subject to the modification that the
indemnity for death is increased from P12,000.00 to
P50,000.00 each for the death of Jose Koh and Kim
Koh McKee.
Costs against private respondents.
SO ORDERED.
G.R. No. L-19331

On January 5, 1953 Elordi was charged with triple

homicide through reckless imprudence in the Court of
First Instance of Pampanga (criminal case No. 1591).
The information was subsequently amended to
include claims for damages by the heirs of the three
victims.
It is urged for the applicant that no opposition has
been registered against his petition on the issues
above-discussed. Absence of opposition, however,
does not preclude the scanning of the whole record
by the appellate court, with a view to preventing the
conferment of citizenship to persons not fully qualified
therefor (Lee Ng Len vs. Republic, G.R. No. L-20151,
March 31, 1965). The applicant's complaint of
unfairness could have some weight if the objections
on appeal had been on points not previously passed
upon. But the deficiencies here in question are not
new but well-known, having been ruled upon
repeatedly by this Court, and we see no excuse for
failing to take them into account.1wph1.t

April 30, 1965

VICTORIA G. CAPUNO and JOSEPHINE G.

CAPUNO, plaintiffs-appellants,
vs.
PEPSI-COLA BOTTLING COMPANY OF THE
PHILIPPINES and JON ELORDI, defendantsappellees.
Federico Andres for plaintiffs-appellants.
Vicente J. Francisco for defendants-appellees.
MAKALINTAL, J.:
This appeal (in forma pauperis), certified here by the
Court of Appeals, is from the order of the Court of
First Instance of Tarlac dismissing appellant's
complaint in Civil Case No. 3315 for recovery of
damages for the death of Cipriano Capuno.
The case arose from a vehicular collision which
occurred on January 3, 1953 in Apalit, Pampanga.
Involved were a Pepsi-Cola delivery truck driven by
Jon Elordi and a private car driven by Capuno. The
collision proved fatal to the latter as well as to his
passengers, the spouses Florencio Buan and Rizalina
Paras.

On October 1, 1953, while the criminal case was

pending, the Intestate Estate of the Buan spouses
and their heirs filed a civil action, also for damages, in
the Court of First Instance of Tarlac against the PepsiCola Bottling Company of the Philippines and Jon
Elordi (civil case No. 838). Included in the complaint
was a claim for indemnity in the sum of P2,623.00
allegedly paid by the Estate to the heirs of Capuno
under the Workmen's Compensation Act.
In the criminal case both the heirs of Capuno and the
Estate of Buan the former being appellants herein
were represented by their respective counsel as
private prosecutors: Attorney Ricardo Y. Navarro and
Attorneys Jose W. Diokno and Augusto M. Ilagan. In
view of the filing of the civil action the accused Jon
Elordi moved to strike out the appearances of these
private prosecutors in the criminal case. Grounds for
the motion were (1) that as the Capuno heirs were
concerned, they no longer had any interest to protect
in the criminal case since they had already claimed
and received compensation for the death of their
decedent; and (2) that on the part of the Estate of
Buan its right to intervene in said case had been
abated by the civil action.
The appearance and intervention of Attorneys Diokno
and Ilagan was disallowed by the Court in an order

36
dated September 23, 1953, and that of Attorney
Navarro was disallowed in an amending order dated
October 23, 1954. No appeal was taken from either of
the two orders.
On June 11, 1958 the parties in Civil Case No. 838
entered into a "Compromise and Settlement." For
P290,000.00 the Buan Estate gave up its claims for
damages, including the claim for reimbursement of
the sum of P2,623.00 previously paid to the heirs of
Capuno "under the Workmen's Compensation Act."
The Court approved the compromise and accordingly
dismissed the case on the following June 17.
At that time the criminal case was still pending;
judgment was rendered only on April 15, 1959,
wherein the accused Elordi was acquitted of the
charges against him. Prior thereto, or on September
26, 1958, however, herein appellants commenced a
civil action for damages against the Pepsi-Cola
Bottling Company of the Philippines and Jon Elordi.
This is the action which, upon appellees' motion, was
dismissed by the Court a quo in its order of February
29, 1960, from which order the present appeal has
been taken.
The grounds upon which appellees based their
motion for dismissal and which the Court found to be
"well taken" were; (1) that the action had already
prescribed; and (2) that appellees had been released
from appellants' claim for damages by virtue of the
payment to the latter of the sum of P2,623.00 by the
Buan Estate under the Workmen's Compensation Act,
which sum, in turn, was sought to be recovered by the
said Estate from appellees in Civil Case No. 838 but
finally settled by them in their compromise.
The ruling of the court below on both points is now
assailed by appellants as erroneous. In our opinion
the question of prescription is decisive. There can be
no doubt that the present action is one for recovery of
damages based on a quasi-delict, which action must
be instituted within four (4) years (Article 1146, Civil
Code). Appellants originally sought to enforce their
claim ex-delicto, that is, under the provisions of the
Penal Code, when they intervened in the criminal
case against Jon Elordi. The information therein, it
may be recalled, was amended precisely to include
an allegation concerning damages suffered by the
heirs of the victims of the accident for which Elordi

was being prosecuted. But appellants' intervention

was subsequently disallowed and they did not appeal
from the Court's order to the effect. And when they
commenced the civil action on September 26, 1958
the criminal case was still pending, showing that
appellants then chose to pursue the remedy afforded
by the Civil Code, for otherwise that action would
have been premature and in any event would have
been concluded by the subsequent judgment of
acquittal in the criminal case.
In filing the civil action as they did appellants correctly
considered it as entirely independent of the criminal
action, pursuant to Articles 31 and 33 of the Civil
Code, which read:
ART. 31. When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action
may proceed independently of the criminal
proceedings and regardless of the result of
the latter.
ART. 33. In cases of defamation, fraud, and
physical injuries, a civil action for damages,
entirely separate and distinct from the criminal
action, may be brought by the injured party.
Such civil action shall proceed independently
of the criminal prosecution, and shall require
only a preponderance of evidence.
The term "physical injuries" in Article 33 includes
bodily injuries causing death (Dyogi v. Yatco, G.R. No.
L-9623, Jan. 22, 1957, 22 L.J. 175). In other words,
the civil action for damages could have been
commenced by appellants immediately upon the
death of their decedent, Cipriano Capuno, on January
3, 1953 or thereabouts, and the same would not have
been stayed by the filing of the criminal action for
homicide through reckless imprudence. But the
complaint here was filed only on September 26, 1958,
or after the lapse of more than five years.
In the case of Diocosa Paulan, et al. vs. Zacarias
Sarabia, et al., G.R. No. L-10542, promulgated July
31, 1958, this Court held that an action based on
a quasi-delict is governed by Article 1150 of the Civil
Code as to the question of when the prescriptive
period of four years shall begin to run, that is, "from
the day (the action) may be brought," which means

37
from the day the quasi-delict occurred or was
committed.
The foregoing considerations dispose of appellants'
contention that the four-year period of prescription in
this case was interrupted by the filing of the criminal
action against Jon Elordi inasmuch as they had
neither waived the civil action nor reserved the right to
institute it separately. Such reservation was not then
necessary; without having made it they could file
as in fact they did a separate civil action even
during the pendency of the criminal case (Pacheco v.
Tumangday, L-14500, May 25, 1960; Azucena v.
Potenciano, L-14028, June 30, 1962); and
consequently, as held in Paulan v. Sarabia,
supra, "the institution of a criminal action cannot have
the effect of interrupting the institution of a civil action
based on a quasi-delict."
As to whether or not Rule 111, Section 2, of the
Revised Rules of Court which requires the reservation
of the right to institute a separate and independent
civil action in the cases provided for in Articles 31, 32,
33, 34, and 2177 of the Civil Code affects the
question of prescription, we do not now decide. The
said rule does not apply in the present case.
Having found the action of appellants barred by the
statute of limitations, we do not consider it necessary
to pass upon the other issues raised in their brief.
The order appealed from is affirmed, without costs.
G.R. No. L-10134
June 29, 1957
SABINA EXCONDE, plaintiff-appellant,
vs.
DELFIN CAPUNO and DANTE
CAPUNO, defendants-appellees.
Magno T. Bueser for appellant.
Alver Law Offices and Edon B. Brion and Vencedor A.
Alimario for appellees.
BAUTISTA ANGELO, J.:
Dante Capuno, son of Delfin Capuno, was accused of
double homicide through reckless imprudence for the
death of Isidoro Caperina and Amado Ticzon on
March 31, 1949 in the Court of First Instance of
Laguna (Criminal Case No. 15001). During the trial,
Sabina Exconde, as mother of the deceased Isidoro
Caperina, reserved her right to bring a separate civil
action for damages against the accused. After trial,
Dante Capuno was found guilty of the crime charged
and, on appeal, the Court Appeals affirmed the

decision. Dante Capuno was only (15) years old when

he committed the crime.
In line with her reservation, Sabina Exconde filed the
present action against Delfin Capuno and his son
Dante Capuno asking for damages in the aggregate
amount of P2,959.00 for the death of her son Isidoro
Caperia. Defendants set up the defense that if any
one should be held liable for the death of Isidoro
Caperina, he is Dante Capuno and not his father
Delfin because at the time of the accident, the former
was not under the control, supervision and custody, of
the latter. This defense was sustained by the lower
court and, as a consequence it only convicted Dante
Capuno to pay the damages claimed in the complaint.
From decision, plaintiff appealed to the Court of
Appeals but the case was certified to us on the
ground that the appeal only involves questions of law.
It appears that Dante Capuno was a member of the
Boy Scouts Organization and a student of the
Bilintawak Elementary School situated in a barrio in
the City of San Pablo and on March 31, 1949 he
attended a parade in honor of Dr. Jose Rizal in said
city upon instruction of the city school's supervisor.
From the school Dante, with other students, boarded
a jeep and when the same started to run, he took hold
of the wheel and drove it while the driver sat on his
left side. They have not gone far when the jeep turned
turtle and two of its passengers, Amado Ticzon and
Isidore Caperia, died as a consequence. It further
appears that Delfin Capuno, father of Dante, was not
with his son at the time of the accident, nor did he
know that his son was going to attend a parade. He
only came to know it when his son told him after the
accident that he attended the parade upon instruction
of his teacher.
The only issue involved in this appeal is whether
defendant Delfin Capuno can be held civilly liable,
jointly and severally with his son Dante, for damages
resulting from the death of Isidoro Caperia caused
by the negligent act of minor Dante Capuno.
The case comes under Article 1903 of the Spanish
Civil Code, paragraph 1 and 5, which provides:
ART. 1903. The obligation impossed by the
next preceding articles is enforceable not only
for personal acts and omissions, but also for
those of persons for whom another is
responsible.
The father, and, in case of his death or
incapacity, the mother, are liable for any
damages caused by the minor children who
live with them.
xxx
xxx
xxx
Finally, teachers or directors of arts and trades
are liable for any damages caused by their
pupils or apprentices while they are under
their custody.

38
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
extra-curricular activity, he attended the parade in
honor of Dr. Jose Rizal upon instruction of the city
school's supervisor. And it was in connection with that
parade that Dante boarded a jeep with some
companions and while driving it, the accident
occurred. In the circumstances, it is clear that neither
the head of that school, nor the city school's
supervisor, could be held liable for the negligent act of
Dante because he was not then a student of an
institute of arts and trades as provided by law.
The civil liability which the law impose upon the father,
and, in case of his death or incapacity, the mother, for
any damages that may be caused by the minor
children who live with them, is obvious. This is
necessary consequence of the parental authority they
exercise over them which imposes upon the parents
the "duty of supporting them, keeping them in their
company, educating them and instructing them in
proportion to their means", while, on the other hand,
gives them the "right to correct and punish them in
moderation" (Articles 154 and 155, Spanish Civil
Code). The only way by which they can relieve
themselves of this liability is if they prove that they
exercised all the diligence of a good father of a family
to prevent the damage(Article 1903, last paragraph,
Spanish Civil Code). This defendants failed to prove.
WHEREFORE, the decision appealed from is
modified in the sense that defendants Delfin Capuno
and Dante Capuno shall pay to plaintiff, jointly and
severally, the sum of P2,959.00 as damages, and the
costs of action.
Bengzon, Montemayor, Labrador and Endencia,
JJ., concur.
Paras, C.J., concurs in the result.
Separate Opinions
REYES, J.B.L., J., dissenting:

After mature consideration I believe we should affirm

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

39
G.R. No. L-24101 September 30, 1970
MARIA TERESA Y. CUADRA, minor represented
by her father ULISES P. CUADRA, ET AL., plaintiffsappellees,
vs.
ALFONSO MONFORT, defendant-appellant.
Rodolfo J. Herman for plaintiffs-appellees.
Luis G. Torres and Abraham E. Tionko for defendantappellant.

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 quasidelict 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

40
2176, fault or negligence, which is presumed from
that which accompanied the causative act or
omission. The presumption is merely prima facie and
may therefore be rebutted. This is the clear and
logical inference that may be drawn from the last
paragraph of Article 2180, which states "that the
responsibility treated of in this Article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family
to prevent damage."
Since the fact thus required to be proven is a matter
of defense, the burden of proof necessarily rests on
the defendant. But what is the exact degree of
diligence contemplated, and how does a parent prove
it in connection with a particular act or omission of a
minor child, especially when it takes place in his
absence or outside his immediate company?
Obviously there can be no meticulously calibrated
measure applicable; and when the law simply refers
to "all the diligence of a good father of the family to
prevent damage," it implies a consideration of the
attendant circumstances in every individual case, to
determine whether or not by the exercise of such
diligence the damage could have been prevented.
In the present case there is nothing from which it may
be inferred that the defendant could have prevented
the damage by the observance of due care, or that he
was in any way remiss in the exercise of his parental
authority in failing to foresee such damage, or the act
which caused it. On the contrary, his child was at
school, where it was his duty to send her and where
she was, as he had the right to expect her to be,
under the care and supervision of the teacher. And as
far as the act which caused the injury was concerned,
it was an innocent prank not unusual among children
at play and which no parent, however careful, would
have any special reason to anticipate much less
guard against. Nor did it reveal any mischievous
propensity, or indeed any trait in the child's character
which would reflect unfavorably on her upbringing and
for which the blame could be attributed to her parents.
The victim, no doubt, deserves no little commiseration
and sympathy for the tragedy that befell her. But if the
defendant is at all obligated to compensate her
suffering, the obligation has no legal sanction
enforceable in court, but only the moral compulsion of
good conscience.

The decision appealed from is reversed, and the

complaint is dismissed, without pronouncement as to
costs.
Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro,
Teehankee, Villamor and Makasiar, JJ., concur.
Concepcion, C.J., is on leave.
Fernando, J., took no part.

Separate Opinions

BARREDO, J., dissenting:

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

# Separate Opinions
BARREDO, J., dissenting:

41
I am afraid I cannot go along with my esteemed
colleagues in holding that the act of appellant's
daughter does not constitute fault within the
contemplation of our law or torts. She was 13 years
and should have known that by jokingly saying "aloud
that she had found an earthworm and, evidently to
frighten the Cuadra girl, tossed the object at her," it
was likely that something would happen to her friend,
as in fact, she was hurt.
As to the liability of appellant as father, I prefer to hold
that there being no evidence that he had properly
advised his daughter to behave properly and not to
play dangerous jokes on her classmate and
playmates, he can be liable under Article 2180 of the
Civil Code. There is nothing in the record to show that
he had done anything at all to even try to minimize the
damage caused upon plaintiff child.
G.R. No. 75112 October 16, 1990
FILAMER CHRISTIAN INSTITUTE, petitioner,
vs.
HONORABLE COURT OF APPEALS, HONORABLE
ENRIQUE P. SUPLICO, in his capacity as Judge of
the Regional Trial Court,. Branch XIV, Roxas City
and the late POTENCIANO KAPUNAN, SR., as
substituted by his heirs, namely: LEONA
KAPUNAN TIANGCO, CICERO KAPUNAN, JESUS
KAPUNAN, SANTIAGO KAPUNAN, POTENCIANO
KAPUNAN, JR., PAZ KAPUNAN PUBLICO, SUSA
KAPUNAN GENUINO and ERLINDA KAPUNAN
TESORO, respondents.
Aquilina B. Brotarlo for petitioner.
Rhodora G. Kapunan for the Substituted Heirs of the
late respondent.

FERNAN, C.J.:
This is a petition for review of the decision 1 of the
Court of Appeals affirming the judgment of the
Regional Trial Court (RTC) of Roxas City, Branch 14
in Civil Case No. V-4222 which found petitioner
Filamer Christian Institute and Daniel Funtecha
negligent and therefore answerable for the resulting

injuries caused to private respondent Potenciano

Kapunan, Sr.
Private respondent Potenciano Kapunan, Sr., an
eighty-two-year old retired schoolteacher (now
deceased), was struck by the Pinoy jeep owned by
petitioner Filamer and driven by its alleged employee,
Funtecha, as Kapunan, Sr. was walking along Roxas
Avenue, Roxas City at 6:30 in the evening of October
20, 1977. As a result of the accident, Kapunan, Sr.
suffered multiple injuries for which he was
hospitalized for a total of twenty (20) days.
Evidence showed that at the precise time of the
vehicular accident, only one headlight of the jeep was
functioning. Funtecha, who only had a student driver's
permit, was driving after having persuaded Allan
Masa, the authorized driver, to turn over the wheels to
him. The two fled from the scene after the incident. A
tricycle driver brought the unconscious victim to the
hospital.
Thereafter, Kapunan, Sr. instituted a criminal case
against Funtecha alone in the City Court of Roxas
City for serious physical injuries through reckless
imprudence. Kapunan, Sr. reserved his right to file an
independent civil action. The inferior court found
Funtecha guilty as charged and on appeal, his
conviction was affirmed by the then Court of First
Instance of Capiz. 2
Pursuant to his reservation, Kapunan, Sr. commenced
a civil case for damages 3 before the RTC of Roxas
City. Named defendants in the complaint were
petitioner Filamer and Funtecha. Also included was
Agustin Masa, the director and president of Filamer
Christian Institute, in his personal capacity in that he
personally authorized and allowed said Daniel
Funtecha who was his houseboy at the time of the
incident, to drive the vehicle in question despite his
knowledge and awareness that the latter did not have
the necessary license or permit to drive said vehicle.
His son, Allan Masa, who was with Funtecha at the
time of the accident, was not impleaded as a codefendant. 4
On December 14, 1983, the trial court rendered
judgment finding not only petitioner Filamer and
Funtecha to be at fault but also Allan Masa, a nonparty. Thus:

42
WHEREFORE, finding the averments in the complaint
as supported by preponderance of evidence to be
reasonable and justified, and that defendants Daniel
Funtecha, Filamer Christian Institute and Allan Masa
are at fault and negligent of the acts complained of
which causes (sic) injury to plaintiff, judgment is
hereby rendered in favor of the plaintiff and against
the defendants, namely: Daniel Funtecha and Filamer
Christian Institute, the employer whose liability is
primary and direct, jointly and severally, to pay plaintiff
the following:
(1) to pay the sum of TWO
THOUSAND NINE HUNDRED FIFTY
PESOS AND FIFTY CENTAVOS
(P2,950.50) as medical expenses
(Exh. "A");
(2) to pay TWO HUNDRED FORTY
ONE PESOS (P241.00) as doctor's
fee (Exh. "C");
(3) to pay THREE HUNDRED NINETY
PESOS (P390.00) as additional
expenses incurred for thirty-nine days
at P10.00 a day, for remuneration of
plaintiff's helper while recuperating;
(4) to pay FOUR THOUSAND PESOS
(P4,000.00) as Court litigation
expenses;
(5) to pay THREE THOUSAND
PESOS (P3,000.00) as loss of
earnings capacity;
(6) to pay TWENTY THOUSAND
(P20,000.00) pesos as moral
damages;
(7) to pay FOUR THOUSAND FIVE
HUNDRED PESOS (P4,500.00) as
attorney's fees;
(8) to pay TWENTY THOUSAND
PESOS (P20,000.00)as insurance
indemnity on the policy contract;
and without prejudice to the right of
defendant Filamer Christian Institute

to demand from co-defendant Daniel

Funtecha part-time employee and/or
Allan Masa a full time employee
reimbursement of the damages paid to
herein plaintiff.
The defendant Agustin Masa as
director of defendant Filamer Christian
Institute has also failed to exercise the
diligence required of a good father of a
family in the supervision of his
employee Allan Masa, being his son.
However, the court absolved
defendant Agustin Masa from any
personal liability with respect to the
complaint filed against him in his
personal and private capacity, cause
he was not in the vehicle during the
alleged incident.
For failure to prove their respective
counterclaims filed by the defendant
Daniel Funtecha, Dr. Agustin Masa,
and Filamer Christian Institute, as
against the herein plaintiff, same are
hereby dismissed.
The Zenith Insurance Corporation as
third party defendant has failed to
prove that there was a policy violation
made by the defendant Filamer
Christian Institute which absolves
them from liability under the aforesaid
insurance policy. The record shows
that the defendant Daniel Funtecha
while driving the said vehicle was
having a student drivers license
marked Exh. "1" and accompanied by
Allan Masa who is the authorized
driver of said vehicle with a
professional drivers license as shown
by Exh. "3".
This Court finds that defendant Daniel
Funtecha while driving the said vehicle
is considered as authorized driver in
accordance with the policy in question
marked Exh. "2-Masa and FCI".

43
Finding the averments in the third
party complaint filed by defendant
Filamer Christian Institute as
supported by preponderance of
evidence as shown by their exhibits to
be reasonable and justified, judgment
is hereby rendered in favor of the said
defendant and third party plaintiff
Filamer Christian Institute as against
third party defendant Zenith Insurance
Corporation.
The Zenith Insurance Corporation as
third party defendant is hereby
ordered to pay in favor of the
defendant and third party plaintiff,
Filamer Christian Institute, the
following:
(1) to pay TWENTY
THOUSAND PESOS
(P20,000.00) as third
party liability as
provided in the Zenith
Insurance Corporation
policy (Exh. "2");
(2) to pay TEN
THOUSAND PESOS
(P10,000.00)as moral
damages;
(3) to pay FOUR
THOUSAND PESOS
(P4,000.00) as Court
litigation and actual
expenses;
(4) to pay THREE
THOUSAND PESOS
(P3,000.00) as
attorney's fees;
The defendants Daniel Funtecha,
Filamer Christian Institute and third
party defendant Zenith Insurance
Corporation are hereby ordered jointly
and severally, to pay the costs of the
suit. 5

Only petitioner Filamer and third-party defendant

Zenith Insurance Corporation appealed the lower
court's judgment to the Court of Appeals and as a
consequence, said lower court's decision became
final as to Funtecha. For failure of the insurance firm
to pay the docket fees, its appeal was dismissed on
September 18, 1984. On December 17, 1985, the
Appellate Court rendered the assailed judgment
affirming the trial court's decision in toto.6 Hence the
present recourse by petitioner Filamer.
It is petitioner Filamer's basic contention that it cannot
be held responsible for the tortious act of Funtecha on
the ground that there is no existing employeremployee relationship between them. We agree.
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 preexisting 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
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
observe all the diligence of a good

44
father of a family to prevent damage.
(Emphasis supplied).
The legal issue in this appeal is whether or not the
term "employer" as used in Article 2180 is applicable
to petitioner Filamer with reference to Funtecha.
In disclaiming liability, petitioner Filamer has invoked
the provisions of the Labor Code, 7 specifically
Section 14, Rule X of Book III which reads:
Sec. 14. Working scholars. There
is no employer-employee relationship
between students on the one hand,
and schools, colleges or universities
on the other, where students work for
the latter in exchange for the privilege
to study free of charge; provided the
students are given real opportunity,
including such facilities as may be
reasonable, necessary to finish their
chosen court under such
arrangement. (Emphasis supplied).
It is manifest that under the just-quoted provision of
law, petitioner Filamer cannot be considered as
Funtecha's employer. Funtecha belongs to that
special category of students who render service to the
school in exchange for free tuition Funtecha worked
for petitioner for two hours daily for five days a week.
He was assigned to clean the school passageways
from 4:00 a.m. to 6:00 a.m. with sufficient time to
prepare for his 7:30 a.m. classes. As admitted by
Agustin Masa in open court, Funtecha was not
included in the company payroll. 8
The wording of Section 14 is clear and explicit and
leaves no room for equivocation. To dismiss the
implementing rule as one which governs only the
"personal relationship" between the school and its
students and not where there is already a third person
involved, as espoused by private respondents, is to
read into the law something that was not legislated
there in the first place. The provision of Section 14 is
obviously intended to eliminate an erstwhile gray area
in labor relations and seeks to define in categorical
terms the precise status of working scholars in
relation to the learning institutions in which they work
for the privilege of a free education.

But even if we were to concede the status of an

employee on Funtecha, still the primary responsibility
for his wrongdoing cannot be imputed to petitioner
Filamer for the plain reason that at the time of the
accident, it has been satisfactorily shown that
Funtecha was not acting within the scope of his
supposed employment. His duty was to sweep the
school passages for two hours every morning before
his regular classes. Taking the wheels of the Pinoy
jeep from the authorized driver at 6:30 in the evening
and then driving the vehicle in a reckless manner
resulting in multiple injuries to a third person were
certainly not within the ambit of his assigned tasks. In
other words, at the time of the injury, Funtecha was
not engaged in the execution of the janitorial services
for which he was employed, but for some purpose of
his own. It is but fair therefore that Funtecha should
bear the full brunt of his tortious negligence. Petitioner
Filamer cannot be made liable for the damages he
had caused.
Private respondents' attempt to hold petitioner Filamer
directly and primarily answerable to the injured party
under Article 2180 of the Civil Code would have
prospered had they proceeded against Allan Masa,
the authorized driver of the Pinoy jeep and
undisputably an employee of petitioner. It was Allan's
irresponsible act of entrusting the wheels of the
vehicle to the inexperienced Funtecha which set into
motion the chain of events leading to the accident
resulting in injuries to Kapunan, Sr. But under the
present set of circumstances, even if the trial court did
find Allan guilty of negligence, such conclusion would
not be binding on Allan. It must be recalled that Allan
was never impleaded in the complaint for damages
and should be considered as a stranger as far as the
trial court's judgment is concerned. It is axiomatic that
no man shall be affected by a proceeding to which he
is a stranger. 9
WHEREFORE, in view of the foregoing, the decision
under review of the Court of Appeals is hereby SET
ASIDE. The complaint for damages 10 is ordered
DISMISSED as against petitioner Filamer Christian
Institute for lack of cause of action. No costs.
G.R. No. 66207 May 18, 1992
MAXIMINO SOLIMAN, JR., represented by his
judicial guardian VIRGINIA C. SOLIMAN, petitioner,

45
vs.
HON. JUDGE RAMON TUAZON, Presiding Judge
of Branch LXI, Regional Trial Court of Region III,
Angeles City, and the REPUBLIC CENTRAL
COLLEGES, represented by its
President, respondents.

doctor's opinion, the plaintiff may not

be able to attend to his regular classes
and will be incapacitated in the
performance of his usual work for a
duration of from three to four months
before his wounds would be
completely healed. 1

Mariano Y. Navarro for Republic Central Colleges.

RESOLUTION

FELICIANO, J.:
On 22 March 1983, petitioner Soliman, Jr. filed a civil
complaint for damages against private respondent
Republic Central Colleges ("Colleges"), the R.L.
Security Agency Inc. and one Jimmy B. Solomon, a
security guard, as defendants. The complaint alleged
that:
. . . on 13 August 1982, in the morning
thereof, while the plaintiff was in the
campus ground and premises of the
defendant, REPUBLIC CENTRAL
COLLEGES, as he was and is still a
regular enrolled student of said school
taking his morning classes, the
defendant, JIMMY B. SOLOMON, who
was on said date and hour in the
premises of said school performing his
duties and obligations as a duly
appointed security guard under the
employment, supervision and control
of his employer-defendant R.L.
SECURITY AGENCY, INC., headed by
Mr. Benjamin Serrano, without any
provocation, in a wanton, fraudulent,
reckless, oppressive or malevolent
manner, with intent to kill, attack,
assault, strike and shoot the plaintiff
on the abdomen with a .38 Caliber
Revolver, a deadly weapon, which
ordinarily such wound sustained would
have caused plaintiff's death were it
not for the timely medical assistance
given to him. The plaintiff was treated
and confined at Angeles Medical
Center, Angeles City, and, as per

Private respondent Colleges filed a motion to dismiss,

contending that the complaint stated no cause of
action against it. Private respondent argued that it is
free from any liability for the injuries sustained by
petitioner student for the reason that private
respondent school was not the employer of the
security guard charged, Jimmy Solomon, and hence
was not responsible for any wrongful act of Solomon.
Private respondent school further argued that Article
2180, 7th paragraph, of the Civil Code did not apply,
since said paragraph holds teachers and heads of
establishment of arts and trades liable for damages
caused by their pupils and students or apprentices,
while security guard Jimmy Solomon was not a pupil,
student or apprentice of the school.
In an order dated 29 November 1983, respondent
Judge granted private respondent school's motion to
dismiss, holding that security guard Jimmy Solomon
was not an employee of the school which accordingly
could not be held liable for his acts or omissions.
Petitioner moved for reconsideration, without success.
In this Petition for Certiorari and Prohibition, it is
contended that respondent trial judge committed a
grave abuse of discretion when he refused to apply
the provisions of Article 2180, as well as those of
Articles 349, 350 and 352, of the Civil Code and
granted the school's motion to dismiss.
Under Article 2180 of the Civil Code, the obligation to
respond for damage inflicted by one against another
by fault or negligence exists not only for one's own act
or omission, but also for acts or omissions of a person
for whom one is by law responsible. Among the
persons held vicariously responsible for acts or
omissions of another person are the following:
xxx xxx xxx
Employers shall be liable for the
damages caused by their employees

46
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
Lastly, teachers or heads of
establishments of arts and trades shall
be liable for damages caused by their
pupils, their students or apprentices,
so long as they remain in their
custody.
xxx xxx xxx

The first paragraph quoted above offers no basis for

holding the Colleges liable for the alleged wrongful
acts of security guard Jimmy B. Solomon inflicted
upon petitioner Soliman, Jr. Private respondent school
was not the employer of Jimmy Solomon. The
employer of Jimmy Solomon was the R.L. Security
Agency Inc., while the school was the client or
customer of the R.L. Security Agency Inc. It is settled
that where the security agency, as here, recruits, hires
and assigns the work of its watchmen or security
guards, the agency is the employer of such guards or
watchmen. 2 Liability for illegal or harmful acts
committed by the security guards attaches to the
employer agency, and not to the clients or customers
of such agency. 3 As a general rule, a client or
customer of a security agency has no hand in
selecting who among the pool of security guards or
watchmen employed by the agency shall be assigned
to it; the duty to observe the diligence of a good father
of a family in the selection of the guards cannot, in the
ordinary course of events, be demanded from the
client whose premises or property are protected by
the security guards. The fact that a client company
may give instructions or directions to the security
guards assigned to it, does not, by itself, render the
client responsible as an employer of the security
guards concerned and liable for their wrongful acts or
omissions. Those instructions or directions are
ordinarily no more than requests commonly
envisaged in the contract for services entered into
with the security agency. There being no employeremployee relationship between the Colleges and
Jimmy Solomon, petitioner student cannot impose
vicarious liability upon the Colleges for the acts of
security guard Solomon.
Since there is no question that Jimmy Solomon was
not a pupil or student or an apprentice of the
Colleges, he being in fact an employee of the R.L.
Security Agency Inc., the other above-quoted
paragraph of Article 2180 of the Civil Code is similarly
not available for imposing liability upon the Republic
Central Colleges for the acts or omissions of Jimmy
Solomon.
The relevant portions of the other Articles of the Civil
Code invoked by petitioner are as follows:
Art. 349. The following persons shall
exercise substitute parental authority:

47
xxx xxx xxx
(2) Teachers and professors;
xxx xxx xxx
(4) Directors of trade establishments
with regard to apprentices;

Clearly, within the confines of its limited logic, i.e.,

treating the petitioner's claim as one based wholly and
exclusively on Article 2180 of the Civil Code, the order
of the respondent trial judge was correct. Does it
follow, however, that respondent Colleges could not
be held liable upon any other basis in law, for or in
respect of the injury sustained by petitioner, so as to
entitle respondent school to dismissal of petitioner's
complaint in respect of itself?

xxx xxx xxx

Art. 350. The persons named in the
preceding article shall exercise
reasonable supervision over the
conduct of the child.
xxx xxx xxx
Art. 352. The relations between
teacher and pupil, professor and
student are fixed by government
regulations and those of each school
or institution. In no case shall corporal
punishment be countenanced. The
teacher or professor shall cultivate the
best potentialities of the heart and
mind of the pupil or student.
In Palisoc v. Brillantes, 4 invoked by petitioner, the
Court held the owner and president of a school of arts
and trades known as the "Manila Technical Institute,"
Quezon Blvd., Manila, responsible in damages for the
death of Dominador Palisoc, a student of Institute,
which resulted from fist blows delivered by Virgilio L.
Daffon, another student of the Institute. It will be seen
that the facts of Palisoc v. Brillantes brought it
expressly within the 7th paragraph of Article 2180,
quoted above; but those facts are entirely different
from the facts existing in the instant case.
Persons exercising substitute parental authority are
made responsible for damage inflicted upon a third
person by the child or person subject to such
substitute parental authority. In the instant case, as
already noted, Jimmy Solomon who committed
allegedly tortious acts resulting in injury to petitioner,
was not a pupil, student or apprentice of the Republic
Central Colleges; the school had no substitute
parental authority over Solomon.

The very recent case of the Philippine School of

Business Administration (PSBA) v. Court of
Appeals, 5 requires us to give a negative answer to
that question.
In PSBA, the Court held that Article 2180 of the Civil
Code was not applicable where a student had been
injured by one who was an outsider or by one over
whom the school did not exercise any custody or
control or supervision. At the same time, however, the
Court stressed that an implied contract may be held to
be established between a school which accepts
students for enrollment, on the one hand, and the
students who are enrolled, on the other hand, which
contract results in obligations for both parties:
When an academic institution accepts
students for enrollment, there is
established a contract between them,
resulting in bilateral obligations which
parties are bound to comply with. 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

48
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. 6
In that case, the Court was careful to point out that:
In the circumstances obtaining in the
case at bar, however, there is, as yet,
no finding that the contract between
the school and Bautista had been
breached thru the former's negligence
in providing proper security measures.
This would be for the trial court to
determine. And, even if there be a
finding of negligence, the same could
give rise generally to a breach of
contractual obligation only. Using the
test of Cangco, supra, the negligence
of the school would not be relevant
absent a contract. In fact, that
negligence becomes material only
because of the contractual relation
between PSBA and Bautista. In other
words, a contractual relation is a
condition sine qua non to the school's
liability. The negligence of the school
cannot exist independently of the
contract, unless the negligence occurs
under the circumstances set out in
Article 21 of the Civil Code.
The 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 obligation
and corresponding to the
circumstances of person, time and
place. 7
In the PSBA case, the trial court had denied the
school's motion to dismiss the complaint against it,
and both the Court of Appeals and this Court affirmed
the trial court's order. In the case at bar, the court a
quo granted the motion to dismiss filed by respondent
Colleges, upon the assumption that petitioner's cause
of action was based, and could have been based,
only on Article 2180 of the Civil Code. As PSBA,
however, states, acts which are tortious or allegedly
tortious in character may at the same time constitute
breach of a contractual, or other legal, obligation.
Respondent trial judge was in serious error when he
supposed that petitioner could have no cause of
action other than one based on Article 2180 of the
Civil Code. Respondent trial judge should not have
granted the motion to dismiss but rather should have,
in the interest of justice, allowed petitioner to prove
acts constituting breach of an obligation ex
contractu or ex lege on the part of respondent
Colleges.
In line, therefore, with the most recent jurisprudence
of this Court, and in order to avoid a possible
substantial miscarriage of justice, and putting aside
technical considerations, we consider that respondent
trial judge committed serious error correctible by this
Court in the instant case.
ACCORDINGLY, the Court Resolved to GRANT DUE
COURSE to the Petition, to TREAT the comment of
respondent Colleges as its answer, and to REVERSE

49
and SET ASIDE the Order dated 29 November 1983.
This case is REMANDED to the court a quo for further
proceedings consistent with this Resolution.
G.R. No. L-11154

March 21, 1916

E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE
ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avancea for defendant..
TRENT, J.:
This is an appeal by both parties from a judgment of
the Court of First Instance of the city of Manila in favor
of the plaintiff for the sum of P14,741, together with
the costs of the cause.
Counsel for the plaintiff insist that the trial court erred
(1) "in limiting the general damages which the plaintiff
suffered to P5,000, instead of P25,000 as claimed in
the complaint," and (2) "in limiting the time when
plaintiff was entirely disabled to two months and
twenty-one days and fixing the damage accordingly in
the sum of P2,666, instead of P6,000 as claimed by
plaintiff in his complaint."
The Attorney-General on behalf of the defendant
urges that the trial court erred: (a) in finding that the
collision between the plaintiff's motorcycle and the
ambulance of the General Hospital was due to the
negligence of the chauffeur; (b) in holding that the
Government of the Philippine Islands is liable for the
damages sustained by the plaintiff as a result of the
collision, even if it be true that the collision was due to
the negligence of the chauffeur; and (c) in rendering
judgment against the defendant for the sum of
P14,741.
The trial court's findings of fact, which are fully
supported by the record, are as follows:
It is a fact not disputed by counsel for the
defendant that when the plaintiff, riding on a
motorcycle, was going toward the western
part of Calle Padre Faura, passing along the
west side thereof at a speed of ten to twelve

miles an hour, upon crossing Taft Avenue and

when he was ten feet from the southwestern
intersection of said streets, the General
Hospital ambulance, upon reaching said
avenue, instead of turning toward the south,
after passing the center thereof, so that it
would be on the left side of said avenue, as is
prescribed by the ordinance and the Motor
Vehicle Act, turned suddenly and
unexpectedly and long before reaching the
center of the street, into the right side of Taft
Avenue, without having sounded any whistle
or horn, by which movement it struck the
plaintiff, who was already six feet from the
southwestern point or from the post place
there.
By reason of the resulting collision, the plaintiff
was so severely injured that, according to Dr.
Saleeby, who examined him on the very same
day that he was taken to the General Hospital,
he was suffering from a depression in the left
parietal region, a would in the same place and
in the back part of his head, while blood
issued from his nose and he was entirely
unconscious.
The marks revealed that he had one or more
fractures of the skull and that the grey matter
and brain was had suffered material injury. At
ten o'clock of the night in question, which was
the time set for performing the operation, his
pulse was so weak and so irregular that, in his
opinion, there was little hope that he would
live. His right leg was broken in such a way
that the fracture extended to the outer skin in
such manner that it might be regarded as
double and the would be exposed to infection,
for which reason it was of the most serious
nature.
At another examination six days before the
day of the trial, Dr. Saleeby noticed that the
plaintiff's leg showed a contraction of an inch
and a half and a curvature that made his leg
very weak and painful at the point of the
fracture. Examination of his head revealed a
notable readjustment of the functions of the
brain and nerves. The patient apparently was
slightly deaf, had a light weakness in his eyes

50
and in his mental condition. This latter
weakness was always noticed when the
plaintiff had to do any difficult mental labor,
especially when he attempted to use his
money for mathematical calculations.
According to the various merchants who
testified as witnesses, the plaintiff's mental
and physical condition prior to the accident
was excellent, and that after having received
the injuries that have been discussed, his
physical condition had undergone a
noticeable depreciation, for he had lost the
agility, energy, and ability that he had
constantly displayed before the accident as
one of the best constructors of wooden
buildings and he could not now earn even a
half of the income that he had secured for his
work because he had lost 50 per cent of his
efficiency. As a contractor, he could no longer,
as he had before done, climb up ladders and
scaffoldings to reach the highest parts of the
building.
As a consequence of the loss the plaintiff
suffered in the efficiency of his work as a
contractor, he had to dissolved the partnership
he had formed with the engineer. Wilson,
because he was incapacitated from making
mathematical calculations on account of the
condition of his leg and of his mental faculties,
and he had to give up a contract he had for
the construction of the Uy Chaco building."
We may say at the outset that we are in full accord
with the trial court to the effect that the collision
between the plaintiff's motorcycle and the ambulance
of the General Hospital was due solely to the
negligence of the chauffeur.
The two items which constitute a part of the P14,741
and which are drawn in question by the plaintiff are
(a) P5,000, the award awarded for permanent injuries,
and (b) the P2,666, the amount allowed for the loss of
wages during the time the plaintiff was incapacitated
from pursuing his occupation. We find nothing in the
record which would justify us in increasing the amount
of the first. As to the second, the record shows, and
the trial court so found, that the plaintiff's services as
a contractor were worth P1,000 per month. The court,

however, limited the time to two months and twentyone days, which the plaintiff was actually confined in
the hospital. In this we think there was error, because
it was clearly established that the plaintiff was wholly
incapacitated for a period of six months. The mere
fact that he remained in the hospital only two months
and twenty-one days while the remainder of the six
months was spent in his home, would not prevent
recovery for the whole time. We, therefore, find that
the amount of damages sustained by the plaintiff,
without any fault on his part, is P18,075.
As the negligence which caused the collision is a tort
committed by an agent or employee of the
Government, the inquiry at once arises whether the
Government is legally-liable for the damages resulting
therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit
against the Government of the Philippine
Islands and authorizing the Attorney-General
of said Islands to appear in said suit.
Whereas a claim has been filed against the
Government of the Philippine Islands by Mr. E.
Merritt, of Manila, for damages resulting from
a collision between his motorcycle and the
ambulance of the General Hospital on March
twenty-fifth, nineteen hundred and thirteen;
Whereas it is not known who is responsible for
the accident nor is it possible to determine the
amount of damages, if any, to which the
claimant is entitled; and
Whereas the Director of Public Works and the
Attorney-General recommended that an Act
be passed by the Legislature authorizing Mr.
E. Merritt to bring suit in the courts against the
Government, in order that said questions may
be decided: Now, therefore,
By authority of the United States, be it
enacted by the Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized to
bring suit in the Court of First Instance of the
city of Manila against the Government of the

51
Philippine Islands in order to fix the
responsibility for the collision between his
motorcycle and the ambulance of the General
Hospital, and to determine the amount of the
damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the
Attorney-General of the Philippine Islands is
hereby authorized and directed to appear at
the trial on the behalf of the Government of
said Islands, to defendant said Government at
the same.
SEC. 2. This Act shall take effect on its
passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act,
simply waive its immunity from suit or did it also
concede its liability to the plaintiff? If only the former,
then it cannot be held that the Act created any new
cause of action in favor of the plaintiff or extended the
defendant's liability to any case not previously
recognized.
All admit that the Insular Government (the defendant)
cannot be sued by an individual without its consent. It
is also admitted that the instant case is one against
the Government. As the consent of the Government to
be sued by the plaintiff was entirely voluntary on its
part, it is our duty to look carefully into the terms of
the consent, and render judgment accordingly.
The plaintiff was authorized to bring this action
against the Government "in order to fix the
responsibility for the collision between his motorcycle
and the ambulance of the General Hospital and to
determine the amount of the damages, if any, to
which Mr. E. Merritt is entitled on account of said
collision, . . . ." These were the two questions
submitted to the court for determination. The Act was
passed "in order that said questions may be decided."
We have "decided" that the accident was due solely to
the negligence of the chauffeur, who was at the time
an employee of the defendant, and we have also fixed
the amount of damages sustained by the plaintiff as a
result of the collision. Does the Act authorize us to
hold that the Government is legally liable for that
amount? If not, we must look elsewhere for such
authority, if it exists.

The Government of the Philippine Islands having

been "modeled after the Federal and State
Governments in the United States," we may look to
the decisions of the high courts of that country for aid
in determining the purpose and scope of Act No.
2457.
In the United States the rule that the state is not liable
for the torts committed by its officers or agents whom
it employs, except when expressly made so by
legislative enactment, is well settled. "The
Government," says Justice Story, "does not undertake
to guarantee to any person the fidelity of the officers
or agents whom it employs, since that would involve it
in all its operations in endless embarrassments,
difficulties and losses, which would be subversive of
the public interest." (Claussen vs. City of Luverne,
103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat,
720; 6 L. Ed., 199; and Beers vs. States, 20 How.,
527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the
plaintiff sought to recover damages from the state for
personal injuries received on account of the
negligence of the state officers at the state fair, a state
institution created by the legislature for the purpose of
improving agricultural and kindred industries; to
disseminate information calculated to educate and
benefit the industrial classes; and to advance by such
means the material interests of the state, being
objects similar to those sought by the public school
system. In passing upon the question of the state's
liability for the negligent acts of its officers or agents,
the court said:
No claim arises against any government is
favor of an individual, by reason of the
misfeasance, laches, or unauthorized exercise
of powers by its officers or agents. (Citing
Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs.
State, 86 N. C., 51, 53; 41 Am. Rep., 440;
Chapman vs. State, 104 Cal., 690; 43 Am. St.
Rep., 158; Green vs. State, 73 Cal., 29; Bourn
vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203;
Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting
individuals to sue the state where the cause of action
arises out of either fort or contract, the rule is stated in
36 Cyc., 915, thus:

52
By consenting to be sued a state simply
waives its immunity from suit. It does not
thereby concede its liability to plaintiff, or
create any cause of action in his favor, or
extend its liability to any cause not previously
recognized. It merely gives a remedy to
enforce a preexisting liability and submits itself
to the jurisdiction of the court, subject to its
right to interpose any lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced
sheets), decided April 16, 1915, the Act of 1913,
which authorized the bringing of this suit, read:
SECTION 1. Authority is hereby given to
George Apfelbacher, of the town of Summit,
Waukesha County, Wisconsin, to bring suit in
such court or courts and in such form or forms
as he may be advised for the purpose of
settling and determining all controversies
which he may now have with the State of
Wisconsin, or its duly authorized officers and
agents, relative to the mill property of said
George Apfelbacher, the fish hatchery of the
State of Wisconsin on the Bark River, and the
mill property of Evan Humphrey at the lower
end of Nagawicka Lake, and relative to the
use of the waters of said Bark River and
Nagawicka Lake, all in the county of
Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this
law the legislature admitted liability on the part
of the state for the acts of its officers, and that
the suit now stands just as it would stand
between private parties. It is difficult to see
how the act does, or was intended to do, more
than remove the state's immunity from suit. It
simply gives authority to commence suit for
the purpose of settling plaintiff's controversies
with the estate. Nowhere in the act is there a
whisper or suggestion that the court or courts
in the disposition of the suit shall depart from
well established principles of law, or that the
amount of damages is the only question to be
settled. The act opened the door of the court
to the plaintiff. It did not pass upon the
question of liability, but left the suit just where

it would be in the absence of the state's

immunity from suit. If the Legislature had
intended to change the rule that obtained in
this state so long and to declare liability on the
part of the state, it would not have left so
important a matter to mere inference, but
would have done so in express terms.
(Murdock Grate Co. vs. Commonwealth, 152
Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the provisions of
the Act of 1893, relied upon and considered, are as
follows:
All persons who have, or shall hereafter have,
claims on contract or for negligence against
the state not allowed by the state board of
examiners, are hereby authorized, on the
terms and conditions herein contained, to
bring suit thereon against the state in any of
the courts of this state of competent
jurisdiction, and prosecute the same to final
judgment. The rules of practice in civil cases
shall apply to such suits, except as herein
otherwise provided.
And the court said:
This statute has been considered by this court
in at least two cases, arising under different
facts, and in both it was held that said statute
did not create any liability or cause of action
against the state where none existed before,
but merely gave an additional remedy to
enforce such liability as would have existed if
the statute had not been enacted. (Chapman
vs. State, 104 Cal., 690; 43 Am. St. Rep., 158;
Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to
the superior court "jurisdiction of all claims against the
commonwealth, whether at law or in equity," with an
exception not necessary to be here mentioned. In
construing this statute the court, in Murdock Grate
Co. vs. Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no
intention to create against the state a new and
heretofore unrecognized class of liabilities, but
only an intention to provide a judicial tribunal

53
where well recognized existing liabilities can
be adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of
the canal claims had, by the terms of the statute of
New York, jurisdiction of claims for damages for
injuries in the management of the canals such as the
plaintiff had sustained, Chief Justice Ruger remarks:
"It must be conceded that the state can be made
liable for injuries arising from the negligence of its
agents or servants, only by force of some positive
statute assuming such liability."
It being quite clear that Act No. 2457 does not operate
to extend the Government's liability to any cause not
previously recognized, we will now examine the
substantive law touching the defendant's liability for
the negligent acts of its officers, agents, and
employees. Paragraph 5 of article 1903 of the Civil
Code reads:
The state is liable in this sense when it acts
through a special agent, but not when the
damage should have been caused by the
official to whom properly it pertained to do the
act performed, in which case the provisions of
the preceding article shall be applicable.
The supreme court of Spain in defining the scope of
this paragraph said:
That the obligation to indemnify for damages
which a third person causes to another by his
fault or negligence is based, as is evidenced
by the same Law 3, Title 15, Partida 7, on that
the person obligated, by his own fault or
negligence, takes part in the act or omission
of the third party who caused the damage. It
follows therefrom that the state, by virtue of
such provisions of law, is not responsible for
the damages suffered by private individuals in
consequence of acts performed by its
employees in the discharge of the functions
pertaining to their office, because neither fault
nor even negligence can be presumed on the
part of the state in the organization of
branches of public service and in the
appointment of its agents; on the contrary, we
must presuppose all foresight humanly
possible on its part in order that each branch

of service serves the general weal an that of

private persons interested in its operation.
Between these latter and the state, therefore,
no relations of a private nature governed by
the civil law can arise except in a case where
the state acts as a judicial person capable of
acquiring rights and contracting obligations.
(Supreme Court of Spain, January 7, 1898; 83
Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book
4, regulates the obligations which arise out of
fault or negligence; and whereas in the first
article thereof. No. 1902, where the general
principle is laid down that where a person who
by an act or omission causes damage to
another through fault or negligence, shall be
obliged to repair the damage so done,
reference is made to acts or omissions of the
persons who directly or indirectly cause the
damage, the following articles refers to this
persons and imposes an identical obligation
upon those who maintain fixed relations of
authority and superiority over the authors of
the damage, because the law presumes that
in consequence of such relations the evil
caused by their own fault or negligence is
imputable to them. This legal presumption
gives way to proof, however, because, as held
in the last paragraph of article 1903,
responsibility for acts of third persons ceases
when the persons mentioned in said article
prove that they employed all the diligence of a
good father of a family to avoid the damage,
and among these persons, called upon to
answer in a direct and not a subsidiary
manner, are found, in addition to the mother
or the father in a proper case, guardians and
owners or directors of an establishment or
enterprise, the state, but not always, except
when it acts through the agency of a special
agent, doubtless because and only in this
case, the fault or negligence, which is the
original basis of this kind of objections, must
be presumed to lie with the state.
That although in some cases the state might
by virtue of the general principle set forth in
article 1902 respond for all the damage that is
occasioned to private parties by orders or

54
resolutions which by fault or negligence are
made by branches of the central
administration acting in the name and
representation of the state itself and as an
external expression of its sovereignty in the
exercise of its executive powers, yet said
article is not applicable in the case of
damages said to have been occasioned to the
petitioners by an executive official, acting in
the exercise of his powers, in proceedings to
enforce the collections of certain property
taxes owing by the owner of the property
which they hold in sublease.
That the responsibility of the state is limited by
article 1903 to the case wherein it
acts through a special agent (and a special
agent, in the sense in which these words are
employed, is one who receives a definite and
fixed order or commission, foreign to the
exercise of the duties of his office if he is a
special official) so that in representation of the
state and being bound to act as an agent
thereof, he executes the trust confided to him.
This concept does not apply to any executive
agent who is an employee of the acting
administration and who on his own
responsibility performs the functions which are
inherent in and naturally pertain to his office
and which are regulated by law and the
regulations." (Supreme Court of Spain, May
18, 1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903
of the Civil Code and the principle laid down in
a decision, among others, of the 18th of May,
1904, in a damage case, the responsibility of
the state is limited to that which it contracts
through a special agent, duly empowered by
a definite order or commission to perform
some act or charged with some definite
purpose which gives rise to the claim, and not
where the claim is based on acts or omissions
imputable to a public official charged with
some administrative or technical office who
can be held to the proper responsibility in the
manner laid down by the law of civil
responsibility. Consequently, the trial court in
not so deciding and in sentencing the said
entity to the payment of damages, caused by

an official of the second class referred to, has

by erroneous interpretation infringed the
provisions of articles 1902 and 1903 of the
Civil Code. (Supreme Court of Spain, July 30,
1911; 122 Jur. Civ., 146.)
It is, therefore, evidence that the State (the
Government of the Philippine Islands) is only liable,
according to the above quoted decisions of the
Supreme Court of Spain, for the acts of its agents,
officers and employees when they act as special
agents within the meaning of paragraph 5 of article
1903, supra, and that the chauffeur of the ambulance
of the General Hospital was not such an agent.
For the foregoing reasons, the judgment appealed
from must be reversed, without costs in this instance.
Whether the Government intends to make itself
legally liable for the amount of damages above set
forth, which the plaintiff has sustained by reason of
the negligent acts of one of its employees, by
legislative enactment and by appropriating sufficient
funds therefor, we are not called upon to determine.
This matter rests solely with the Legislature and not
with the courts.
G.R. No. L-55963 December 1, 1989
SPOUSES JOSE FONTANILLA AND VIRGINIA
FONTANILLA, petitioners,
vs.
HONORABLE INOCENCIO D. MALIAMAN and
NATIONAL IRRIGATION
ADMINISTRATION, respondents.
G.R. No. L-61045 December 1, 1989
NATIONAL IRRIGATION
ADMINISTRATION, appellant,
vs.
SPOUSES JOSE FONTANILLA and VIRGINIA
FONTANILLA, appellees.
Cecilio V. Suarez, Jr. for Spouses Fontanilla.
Felicisimo C. Villaflor for NIA.

PARAS, J.:

55
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

56
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

57
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

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.)

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.

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

58
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. ThusSec. 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

59
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.
SO ORDERED.
G.R. No. L-47745 April 15, 1988
JOSE S. AMADORA, LORETA A. AMADORA, JOSE
A. AMADORA JR., NORMA A. YLAYA PANTALEON
A. AMADORA, JOSE A. AMADORA III, LUCY A.
AMADORA, ROSALINDA A. AMADORA,
PERFECTO A. AMADORA, SERREC A. AMADORA,
VICENTE A. AMADORA and MARIA TISCALINA A.
AMADORA,petitioners

vs.
HONORABLE COURT OF APPEALS, COLEGIO DE
SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO
P. DLMASO JR., CELESTINO DICON, ANIANO
ABELLANA, PABLITO DAFFON thru his parents
and natural guardians, MR. and MRS. NICANOR
GUMBAN, and ROLANDO VALENCIA, thru his
guardian, A. FRANCISCO ALONSO, respondents.
Jose S. Amadora & Associates for petitioners.
Padilla Law Office for respondents.

CRUZ, J.:
Like any prospective graduate, Alfredo Amadora was
looking forward to the commencement exercises
where he would ascend the stage and in the presence
of his relatives and friends receive his high school
diploma. These ceremonies were scheduled on April
16, 1972. As it turned out, though, fate would
intervene and deny him that awaited experience. On
April 13, 1972, while they were in the auditorium of
their school, the Colegio de San Jose-Recoletos, a
classmate, Pablito Damon, fired a gun that mortally hit
Alfredo, ending all his expectations and his life as
well. The victim was only seventeen years old. 1
Daffon was convicted of homicide thru reckless
imprudence . 2 Additionally, the herein petitioners, as
the victim's parents, filed a civil action for damages
under Article 2180 of the Civil Code against the
Colegio de San Jose-Recoletos, its rector the high
school principal, the dean of boys, and the physics
teacher, together with Daffon and two other students,
through their respective parents. The complaint
against the students was later dropped. After trial, the
Court of First Instance of Cebu held the remaining
defendants liable to the plaintiffs in the sum of
P294,984.00, representing death compensation, loss
of earning capacity, costs of litigation, funeral
expenses, moral damages, exemplary damages, and
attorney's fees . 3 On appeal to the respondent court,
however, the decision was reversed and all the
defendants were completely absolved . 4
In its decision, which is now the subject of this petition
for certiorari under Rule 45 of the Rules of Court, the

60
respondent court found that Article 2180 was not
applicable as the Colegio de San Jose-Recoletos was
not a school of arts and trades but an academic
institution of learning. It also held that the students
were not in the custody of the school at the time of the
incident as the semester had already ended, that
there was no clear identification of the fatal gun and
that in any event the defendant, had exercised the
necessary diligence in preventing the injury. 5
The basic undisputed facts are that Alfredo Amadora
went to the San Jose-Recoletos on April 13, 1972,
and while in its auditorium was shot to death by
Pablito Daffon, a classmate. On the implications and
consequences of these facts, the parties sharply
disagree.
The petitioners contend that their son was in the
school to show his physics experiment as a
prerequisite to his graduation; hence, he was then
under the custody of the private respondents. The
private respondents submit that Alfredo Amadora had
gone to the school only for the purpose of submitting
his physics report and that he was no longer in their
custody because the semester had already ended.
There is also the question of the identity of the gun
used which the petitioners consider important
because of an earlier incident which they claim
underscores the negligence of the school and at least
one of the private respondents. It is not denied by the
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

61
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.

of the cited codal provision to academic institutions

will have to await another case wherein it may
properly be raised."

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:

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."

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 nonacademic school, the question as to the applicability

This is the case.

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

62
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 nonacademic. Notably, the injury subject of liability is
caused by the student and not by the school itself nor
is it a result of the operations of the school or its
equipment. The injury contemplated may be caused
by any student regardless of the school where he is
registered. The teacher certainly should not be able to
excuse himself by simply showing that he is teaching
in an academic school where, on the other hand, the
head would be held liable if the school were nonacademic.
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 nontechnical 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.

63
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
repeatPalisoc 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 teacherin-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.

64
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

65
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-incharge, 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 Jose-Recoletos on
April 13, 1972. While we deeply sympathize with the
petitioners over the loss of their son under the tragic
circumstances here related, we nevertheless are
unable to extend them the material relief they seek,
as a balm to their grief, under the law they have
invoked.
WHEREFORE, the petition is DENIED, without any
pronouncement as to costs. It is so ordered.
Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin,
Sarmiento, Cortes and Grio-Aquino, JJ., concur.
Fernan, Padilla and Teehankee, C.J., JJ, took no part.

Separate Opinions

MELENCIO-HERRERA, J., concurring and

dissenting:

66
I concur, except with respect to the restricted meaning
given the term "teacher" in Article 2180 of the Civil
Code as "teacher-in-charge." This would limit liability
to occasions where there are classes under the
immediate charge of a teacher, which does not seem
to be the intendment of the law.
As I understand it, the philosophy of the law is that
whoever stands in loco parentis will have the same
duties and obligations as parents whenever in such a
standing. Those persons are mandatorily held liable
for the tortious acts of pupils and students so long as
the latter remain in their custody, meaning their
protective and supervisory custody.
Thus Article 349 of the Civil Code enumerates the
persons who stand in loco parentis and thereby
exercise substitute parental authority:
Art. 349 The following persons shall
exercise substitute parental authority:
xxx xxx xxx
2) Teachers and professors
xxx xxx xxx
4) Directors of trade establishments,
with regard to apprentices;'

hence, it becomes their obligation as

well as that of the school itself to
provide proper supervision of the
students' activities during the whole
time that they are at attendance in the
school,including recess time, as well
as to take the necessary precautions
to protect the students in their custody
from dangers and hazards that would
reasonably be anticipated, including
injuries that some students
themselves may inflict wilfully or
through negligence on their fellow
students. (Emphasis supplied)
Of course, as provided for in the same Article 2180,
the responsibility treated of shall cease when the
persons mentioned prove that they observed all the
diligence of a good father of a family to prevent
damage.
And while a school is, admittedly, not directly liable
since Article 2180 speaks only of teachers and
schools heads, yet, by virtue of the same provision,
the school, as their employer, may be held liable for
the failure of its teachers or school heads to perform
their mandatory legal duties as substitute parents
(Sangco, Philippine Law on Torts & Damages, 1978
ed., p. 201). Again, the school may exculpate itself
from liability by proving that it had exercised the
diligence of a good father of the family.

Article 352 of the Civil Code further provides:

Art. 2180. x x x
Art. 362. The relations between
teacher and pupil, professor and
student, are fixed by government
regulations and those of each school
or institution....
But even such rules and regulations as may be fixed
can not contravene the concept of substitute parental
authority.
The rationale of liability of school heads and teachers
for the tortious acts of their pupils was explained
in Palisoc vs. Brillantes (41 SCRA 548), thus:
The protective custody of the school
heads and teachers is mandatorily
substituted for that of the parents, and

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
Parenthetically, from the enumeration in Article 349 of
the Civil Code, supra, it is apparent that the Code
Commission had already segregated the classification
of "teachers and professors" vis-a-vis their pupils,
from "directors of trade establishments, with regard to
their apprentices."

67
GUTIERREZ, JR., J., concurring:
I concur in the Court's opinion so carefully analyzed
and crafted by Justice Isagani A. Cruz. However, I
would like to stress the need for a major amendment
to, if not a complete scrapping of, Article 2180 of the
Civil Code insofar as it refers to teachers or heads of
establishments of arts and trades in relation to pupils
and students or apprentices. The seventh paragraph
of Art. 2180 is a relic of the past and contemplates a
situation long gone and out of date. In a Palisoc v.
Brillantes (41 SCRA 548) situation, it is bound to
result in mischief and injustice.

The ordinary rules on quasi-delicta should apply to

teachers and schools of whatever nature insofar as
grown up students are concerned. The provision of
Art. 2180 of the Civil Code involved in this case has
outlived its purpose. The Court cannot make law. It
can only apply the law with its imperfections.
However, the Court can suggest that such a law
should be amended or repealed.

Separate Opinions
First, we no longer have masters and apprentices
toiling in schools of arts and trades. Students in
"technological" colleges and universities are no
different from students in liberal arts or professional
schools. Apprentices now work in regular shops and
factories and their relationship to the employer is
covered by laws governing the employment
relationship and not by laws governing the teacher
student relationship.
Second, except for kindergarten, elementary, and
perhaps early high school students, teachers are
often no longer objects of veneration who are given
the respect due to substitute parents. Many students
in their late teens or early adult years view some
teachers as part of a bourgeois or reactionary group
whose advice on behaviour, deportment, and other
non-academic matters is not only resented but
actively rejected. It ,seems most unfair to hold
teachers liable on a presumption juris tantum of
negligence for acts of students even under
circumstances where strictly speaking there could be
no in loco parentis relationship. Why do teachers
have to prove the contrary of negligence to be freed
from solidary liability for the acts f bomb-throwing or
pistol packing students who would just as soon hurt
them as they would other members of the so-calledestablishment.

MELENCIO-HERRERA, J., concurring and

dissenting:
I concur, except with respect to the restricted meaning
given the term "teacher" in Article 2180 of the Civil
Code as "teacher-in-charge." This would limit liability
to occasions where there are classes under the
immediate charge of a teacher, which does not seem
to be the intendment of the law.
As I understand it, the philosophy of the law is that
whoever stands in loco parentis will have the same
duties and obligations as parents whenever in such a
standing. Those persons are mandatorily held liable
for the tortious acts of pupils and students so long as
the latter remain in their custody, meaning their
protective and supervisory custody.
Thus Article 349 of the Civil Code enumerates the
persons who stand in loco parentis and thereby
exercise substitute parental authority:
Art. 349 The following persons shall
exercise substitute parental authority:
xxx xxx xxx
2) Teachers and professors
xxx xxx xxx
4) Directors of trade establishments,
with regard to apprentices;'

68
Article 352 of the Civil Code further provides:
Art. 362. The relations between
teacher and pupil, professor and
student, are fixed by government
regulations and those of each school
or institution....
But even such rules and regulations as may be fixed
can not contravene the concept of substitute parental
authority.
The rationale of liability of school heads and teachers
for the tortious acts of their pupils was explained
in Palisoc vs. Brillantes (41 SCRA 548), thus:
The protective custody of the school
heads and teachers is mandatorily
substituted for that of the parents, and
hence, it becomes their obligation as
well as that of the school itself to
provide proper supervision of the
students' activities during the whole
time that they are at attendance in the
school,including recess time, as well
as to take the necessary precautions
to protect the students in their custody
from dangers and hazards that would
reasonably be anticipated, including
injuries that some students
themselves may inflict wilfully or
through negligence on their fellow
students. (Emphasis supplied)
Of course, as provided for in the same Article 2180,
the responsibility treated of shall cease when the
persons mentioned prove that they observed all the
diligence of a good father of a family to prevent
damage.
And while a school is, admittedly, not directly liable
since Article 2180 speaks only of teachers and
schools heads, yet, by virtue of the same provision,
the school, as their employer, may be held liable for
the failure of its teachers or school heads to perform
their mandatory legal duties as substitute parents
(Sangco, Philippine Law on Torts & Damages, 1978
ed., p. 201). Again, the school may exculpate itself
from liability by proving that it had exercised the
diligence of a good father of the family.

Art. 2180. x x x
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
Parenthetically, from the enumeration in Article 349 of
the Civil Code, supra, it is apparent that the Code
Commission had already segregated the classification
of "teachers and professors" vis-a-vis their pupils,
from "directors of trade establishments, with regard to
their apprentices."
GUTIERREZ, JR., J., concurring:
I concur in the Court's opinion so carefully analyzed
and crafted by Justice Isagani A. Cruz. However, I
would like to stress the need for a major amendment
to, if not a complete scrapping of, Article 2180 of the
Civil Code insofar as it refers to teachers or heads of
establishments of arts and trades in relation to pupils
and students or apprentices. The seventh paragraph
of Art. 2180 is a relic of the past and contemplates a
situation long gone and out of date. In a Palisoc v.
Brillantes (41 SCRA 548) situation, it is bound to
result in mischief and injustice.
First, we no longer have masters and apprentices
toiling in schools of arts and trades. Students in
"technological" colleges and universities are no
different from students in liberal arts or professional
schools. Apprentices now work in regular shops and
factories and their relationship to the employer is
covered by laws governing the employment
relationship and not by laws governing the teacher
student relationship.
Second, except for kindergarten, elementary, and
perhaps early high school students, teachers are
often no longer objects of veneration who are given
the respect due to substitute parents. Many students
in their late teens or early adult years view some
teachers as part of a bourgeois or reactionary group
whose advice on behaviour, deportment, and other
non-academic matters is not only resented but

69
actively rejected. It ,seems most unfair to hold
teachers liable on a presumption juris tantum of
negligence for acts of students even under
circumstances where strictly speaking there could be
no in loco parentis relationship. Why do teachers
have to prove the contrary of negligence to be freed
from solidary liability for the acts f bomb-throwing or
pistol packing students who would just as soon hurt
them as they would other members of the so-calledestablishment.
The ordinary rules on quasi-delicta should apply to
teachers and schools of whatever nature insofar as
grown up students are concerned. The provision of
Art. 2180 of the Civil Code involved in this case has
outlived its purpose. The Court cannot make law. It
can only apply the law with its imperfections.
However, the Court can suggest that such a law
should be amended or repealed.
G.R. No. 70458 October 5, 1988
BENJAMIN SALVOSA and BAGUIO COLLEGES
FOUNDATION, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT,
EDUARDO B. CASTRO, DIOMEDES B. CASTRO,
VIRGINIA B. CASTRO and RODOLFO B.
CASTRO., respondents.
Edilberto B. Tenefrancia for petitioners.
Leonardo L. Cocjin Jr. for respondents.

PADILLA, J.:
In this petition for review on certiorari, petitioners seek
the reversal of the
decision 1 of respondent Intermediate Appellate Court,
dated 7 December 1984, in AC-G.R. No. CV 69876, in
so far as it affirmed the decision 2 of the Court of First
Instance of Tarlac (hereinafter referred to as the Trial
Court), which held, among others, petitioners
solidarily hable with Jimmy B. Abon, under Art. 2180
of the Civil Code.
The relevant facts, as found by the Trial Court and
adopted by reference by the respondent Court, are:

... Baguio Colleges Foundation (BCF, hereafter) is an

academic institution ... [However], it is also an
institution of arts and trade. It has so advertised itself,
as its own evidence shows. Its brochure (Exh. 2)
shows that BCF has a full-fledged technicalvocational department offer Communication,
Broadcast and Teletype Technician courses as well as
Electronics Serviceman and Automotive Mechanics
courses... these courses divest BCF of the nature or
character of being purely or exclusively an academic
institution. 3
Within the premises of the BCF is an ROTC Unit, the
Baguio Colleges Foundation Reserve Officers
Training Corps (ROTC) Unit, which is under the fifth
control of the Armed Forces of the Philippines. 4 The
ROTC Unit, by way of accommodation to the Armed
Forces of the Philippines (AFP), pursuant to
Department Order No. 14, Series of 1975 of the
Department of Education and Culture, 5 is provided by
the BCF an office and an armory located at the
basement of its main building. 6
The Baguio Colleges Foundation ROTC Unit had
Jimmy B. Abon as its duly appointed armorer. 7 As
armorer of the ROTC Unit, Jimmy B. Abon received
his appointment from the AFP. Not being an employee
of the BCF, he also received his salary from the
AFP, 8 as well as orders from Captain Roberto C.
Ungos, the Commandant of the Baguio Colleges
Foundation ROTC Unit, concurrent Commandant of
other ROTC units in Baguio and an employee (officer)
of the AFP. 9Jimmy B. Abon was also a commerce
student of the BCF. 10
On 3 March 1977, at around 8:00 p.m., in the parking
space of BCF, Jimmy B. Abon shot Napoleon Castro a
student of the University of Baguio with an unlicensed
firearm which the former took from the armory of the
ROTC Unit of the BCF. 11 As a result, Napoleon
Castro died and Jimmy B. Abon was prosecuted for,
and convicted of the crime of Homicide by Military
Commission No. 30, AFP. 12
Subsequently, the heirs of Napoleon Castro sued for
damages, impleading Jimmy B. Abon, Roberto C.
Ungos (ROTC Commandant Benjamin Salvosa
(President and Chairman of the Board of BCF), Jesus
Salvosa (Executive Vice President of BCF), Libertad
D. Quetolio (Dean of the College of Education and

70
Executive Trustee of BCF) and the Baguio Colleges
Foundation Inc. as party defendants. After hearing,
the Trial Court rendered a decision, (1) sentencing
defendants Jimmy B. Abon, Benjamin Salvosa and
Baguio Colleges Foundation, Inc., jointly and
severally, to pay private respondents, as heirs of
Napoleon Castro: a) P12,000.00 for the death of
Napoleon Castro, (b) P316,000.00 as indemnity for
the loss of earning capacity of the deceased, (c)
P5,000.00 as moral damages, (d) P6,000.00 as actual
damages, and (e) P5,000.00 as attorney's fees, plus
costs; (2) absolving the other defendants; and (3)
dismissing the defendants' counterclaim for lack of
merit. 13 On appeal by petitioners, the respondent
Court affirmed with modification the decision of the
Trial Court. The modification consisted in reducing the
award for loss of earning capacity of the deceased
from P316,000.00 to P30,000.00 by way of temperate
damages, and increasing the indemnity for the death
of Napoleon Castro from P12,000.00 to P30,000.00.
Hence, this petition.
The central issue in this case is whether or not
petitioners can be held solidarity hable with Jimmy B.
Abon for damages under Article 2180 of the Civil
Code, as a consequence of the tortious act of Jimmy
B. Abon.
Under the penultimate paragraph of Art. 2180 of the
Civil Code, teachers or heads of establishments of
arts and trades are hable for "damages caused by
their pupils and students or apprentices, so long as
they remain in their custody." The rationale of such
liability is that so long as the student remains in the
custody of a teacher, the latter "stands, to a certain
extent, in loco parentis [as to the student] and [is]
called upon to exercise reasonable supervision over
the conduct of the [student]." 14 Likewise, "the phrase
used in [Art. 2180 '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." 15
In the case at bar, in holding that Jimmy B. Abon was
stin in the protective and supervisory custody of the
Baguio Colleges Foundation when he shot Napoleon
Castro, the respondent Court ruled that:

it is true that Abon was not attending

any class or school function at the
time of the shooting incident, which
was at about 8 o'clock in the evening;
but considering that Abon was
employed as an armorer and property
custodian of the BCF ROTC unit, he
must have been attending night
classes and therefore that hour in the
evening was just about dismissal time
for him or soon thereafter. The time
interval is safely within the "recess
time" that the trial court spoke of and
envisioned by the Palisoc case,
supra. 16 (Emphasis supplied)
In line with the case of Palisoc, 17 a student not "at
attendance in the school" cannot be in "recess"
thereat. A "recess," as the concept is embraced in the
phrase "at attendance in the school," contemplates a
situation of temporary adjournment of school activities
where the student still remains within call of his
mentor and is not permitted to leave the school
premises, or the area within which the school activity
is conducted. Recess by its nature does not include
dismissal. 18Likewise, the mere fact of being enrolled
or being in the premises of a school without more
does not constitute "attending school" or being in the
"protective and supervisory custody' of the school, as
contemplated in the law.
Upon the foregoing considerations, we hold that
Jimmy B. Abon cannot be considered to have been
"at attendance in the school," or in the custody of
BCF, when he shot Napoleon Castro. Logically,
therefore, petitioners cannot under Art. 2180 of the
Civil Code be held solidarity liable with Jimmy B. Abon
for damages resulting from his acts.
Besides, the record shows that before the shooting
incident, Roberto B. Ungos ROTC Unit Commandant,
AFP, had instructed Jimmy B. Abon "not to leave the
office and [to keep the armory] well guarded." 19 Apart
from negating a finding that Jimmy B. Abon was under
the custody of the school when he committed the act
for which the petitioners are sought to be held liable,
this circumstance shows that Jimmy B. Abon was
supposed to be working in the armory with definite
instructions from his superior, the ROTC
Commandant, when he shot Napoleon Castro.

71
Petitioners also raise the issue that, under Art. 2180
of the Civil Code, a school which offers both academic
and technical/vocational courses cannot be held liable
for a tort committed by a student enrolled only in its
academic program; however, considering that Jimmy
B. Abon was not in the custody of BCF when he shot
Napoleon Castro, the Court deems it unnecessary to
pass upon such other issue. 20
WHEREFORE, the decision appealed from is hereby
REVERSED in so far as it holds petitioners solidarily
liable with Jimmy B. Abon for his tortious act in the
killing of Napoleon Castro. No costs.
SO ORDERED.

forehead" 1 and administered an anti-rabies vaccine

by Dr. Antonio Tautjo. She was discharged after nine
days but was readmitted one week later due to
"vomiting of saliva." 2 The following day, on August 15,
1975, the child died. The cause of death was certified
as broncho-pneumonia. 3
Seven months later, the Uys sued for damages,
alleging that the Vestils were liable to them as the
possessors of "Andoy," the dog that bit and eventually
killed their daughter. The Vestils rejected the charge,
insisting that the dog belonged to the deceased
Vicente Miranda, that it was a tame animal, and that
in any case no one had witnessed it bite Theness.
After trial, Judge Jose R. Ramolete of the Court of
First Instance of Cebu sustained the defendants and
dismissed the complaint. 4

G.R. No. 74431 November 6, 1989

PURITA MIRANDA VESTIL and AGUSTIN
VESTIL, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, DAVID UY
and TERESITA UY, respondents.
Pablo P. Garcia for petitioners.
Roberto R. Palmares for private respondents.

CRUZ, J.:
Little Theness Tan Uy was dead at the age of three.
Her parents said she died because she was bitten by
a dog of the petitioners, but the latter denied this,
claiming they had nothing to do with the dog. The Uys
sued the Vestils, who were sustained by the trial
court. On appeal, the decision of the court a quo was
reversed in favor of the Uys. The Vestils are now
before us. They ask us to set aside the judgment of
the respondent court and to reinstate that of the trial
court.
On July 29, 1915, Theness was bitten by a dog while
she was playing with a child of the petitioners in the
house of the late Vicente Miranda, the father of Purita
Vestil, at F. Ramos Street in Cebu City. She was
rushed to the Cebu General Hospital, where she was
treated for "multiple lacerated wounds on the

The respondent court arrived at a different conclusion

when the case was appealed. 5 It found that the
Vestils were in possession of the house and the dog
and so should be responsible under Article 2183 of
the Civil Code for the injuries caused by the dog. It
also held that the child had died as a result of the dog
bites and not for causes independent thereof as
submitted by the appellees. Accordingly, the Vestils
were ordered to pay the Uys damages in the amount
of P30,000.00 for the death of Theness, P12,000.00
for medical and hospitalization expenses, and
P2,000.00 as attorney's fees.
In the proceedings now before us, Purita Vestil insists
that she is not the owner of the house or of the dog
left by her father as his estate has not yet been
partitioned and there are other heirs to the property.
Pursuing the logic of the Uys, she claims, even her
sister living in Canada would be held responsible for
the acts of the dog simply because she is one of
Miranda's heirs. However, that is hardly the point.
What must be determined is the possession of the
dog that admittedly was staying in the house in
question, regardless of the ownership of the dog or of
the house.
Article 2183 reads as follows:
The possessor of an animal or
whoever may make use of the same is
responsible for the damage which it
may cause, although it may escape or

72
be lost. 'This responsibility shall cease
only in case the damages should
come from force majeure from the
fault of the person who has suffered
damage.
Thus, in Afialda v. Hisole, 6 a person hired as
caretaker of a carabao gored him to death and his
heirs thereupon sued the owner of the animal for
damages. The complaint was dismissed on the
ground that it was the caretaker's duty to prevent the
carabao from causing injury to any one, including
himself.
Purita Vestil's testimony that she was not in
possession of Miranda's house is hardly credible. She
said that the occupants of the house left by her father
were related to him ("one way or the other") and
maintained themselves out of a common fund or by
some kind of arrangement (on which, however, she
did not elaborate ). 7 She mentioned as many as ten
of such relatives who had stayed in the house at one
time or another although they did not appear to be
close kin. 8 She at least implied that they did not pay
any rent, presumably because of their relation with
Vicente Miranda notwithstanding that she herself did
not seem to know them very well.
There is contrary evidence that the occupants of the
house, were boarders (or more of boarders than
relatives) who paid the petitioners for providing them
with meals and accommodations. It also appears that
Purita Vestil had hired a maid, Dolores Jumao-as,
who did the cooking and cleaning in the said house
for its occupants. 9 Her mother, Pacita, who was a
nursemaid of Purita herself, categorically declared
that the petitioners were maintaining boarders in the
house where Theness was bitten by a dog. 10 Another
witness, Marcial Lao, testified that he was indeed a
boarder and that the Vestils were maintaining the
house for business purposes. 11 And although Purita
denied paying the water bills for the house, the private
respondents submitted documentary evidence of her
application for water connection with the Cebu Water
District, which strongly suggested that she was
administering the house in question. 12
While it is true that she is not really the owner of the
house, which was still part of Vicente Miranda's
estate, there is no doubt that she and her husband

were its possessors at the time of the incident in

question. She was the only heir residing in Cebu City
and the most logical person to take care of the
property, which was only six kilometers from her own
house. 13 Moreover, there is evidence showing that
she and her family regularly went to the house, once
or twice weekly, according to at least one
witness, 14 and used it virtually as a second house.
Interestingly, her own daughter was playing in the
house with Theness when the little girl was bitten by
the dog. 15 The dog itself remained in the house even
after the death of Vicente Miranda in 1973 and until
1975, when the incident in question occurred. It is
also noteworthy that the petitioners offered to assist
the Uys with their hospitalization expenses although
Purita said she knew them only casually. 16
The petitioners also argue that even assuming that
they were the possessors of the dog that bit Theness
there was no clear showing that she died as a result
thereof. On the contrary, the death
certificate 17 declared that she died of bronchopneumonia, which had nothing to do with the dog
bites for which she had been previously hospitalized.
The Court need not involve itself in an extended
scientific discussion of the causal connection between
the dog bites and the certified cause of death except
to note that, first, Theness developed hydrophobia, a
symptom of rabies, as a result of the dog bites, and
second, that asphyxia broncho-pneumonia, which
ultimately caused her death, was a complication of
rabies. That Theness became afraid of water after she
was bitten by the dog is established by the following
testimony of Dr. Tautjo:
COURT: I think there was mention of
rabies in the report in the second
admission?
A: Now, the child was continuously
vomiting just before I referred to Dr.
Co earlier in the morning and then the
father, because the child was asking
for water, the father tried to give the
child water and this child went under
the bed, she did not like to drink the
water and there was fright in her
eyeballs. For this reason, because I
was in danger there was rabies, I
called Dr. Co.

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

Q: Would you say therefore that

persons who have rabies may die of
respiratory failure which leave in the
form of bronco-pneumonia?
A: Broncho-pneumonia can be a
complication of rabies. 19
On the strength of the foregoing testimony, the Court
finds that the link between the dog bites and the
certified cause of death has beep satisfactorily
established. We also reiterate our ruling in Sison v.
Sun Life Assurance Company of Canada, 20 that the
death certificate is not conclusive proof of the cause
of death but only of the fact of death. Indeed, the
evidence of the child's hydrophobia is sufficient to
convince us that she died because she was bitten by
the dog even if the death certificate stated a different
cause of death. The petitioner's contention that they
could not be expected to exercise remote control of
the dog is not acceptable. In fact, Article 2183 of the
Civil Code holds the possessor liable even if the
animal should "escape or be lost" and so be removed
from his control. And it does not matter either that, as
the petitioners also contend, the dog was tame and
was merely provoked by the child into biting her. The
law does not speak only of vicious animals but covers
even tame ones as long as they cause injury. As for
the alleged provocation, the petitioners forget that
Theness was only three years old at the time she was
attacked and can hardly be faulted for whatever she
might have done to the animal.
It is worth observing that the above defenses of the
petitioners are an implied rejection of their original
posture that there was no proof that it was the dog in
their father's house that bit Theness.
According to Manresa the obligation imposed by
Article 2183 of the Civil Code is not based on the
negligence or on the presumed lack of vigilance of the
possessor or user of the animal causing the damage.
It is based on natural equity and on the principle of
social interest that he who possesses animals for his
utility, pleasure or service must answer for the
damage which such animal may cause. 21
We sustain the findings of the Court of Appeals and
approve the monetary awards except only as to the
medical and hospitalization expenses, which are

74
reduced to P2,026.69, as prayed for in the complaint.
While there is no recompense that can bring back to
the private respondents the child they have lost, their
pain should at least be assuaged by the civil damages
to which they are entitled.

WHEREFORE, the challenged decision is AFFIRMED

as above modified. The petition is DENIED, with costs
against the petitioners. It is so ordered.