G.R. No.

182356

December 4, 2013

DRA, LEILA A DELA LLANO, Petitioner,

vs.
REBECCA BIONG, doing business under the name and
style of Pongkay Trading, Respondent.
DECISION
BRION, J.:
Very case essentially turns on two basic questions: questions
of fact and questions of law. Questions of fact are the parties
and their counsel to respond to, based on what supporting
facts the legal questions require; the court can only draw
conclusion from the facts or evidence adduced. When the facts
are lacking because of the deficiency of presented evidence,
then the court can only draw one conclusion: that the cause
must fail for lack of evidentiary support.
The present case is one such case as Dra. Leila A dela
Llanas(petitioner) petition for review on certorari1challenging
the February 11, 2008 Decision2 and the March 31, 2008
resolution3 of the Court of Appeals (CA) in CA-G.R. CV No.
89163.
The Factual Antecedents
On March 30, 2000, at around 11:00 p.m., Juan dela Llana was
driving a 1997 Toyota Corolla car along North Avenue, Quezon
City.4
His sister, Dra. dela Llana, was seated at the front passenger
seat while a certain Calimlim was at the backseat.5
Juan stopped the car across the Veterans Memorial Hospital
when the signal light turned red. A few seconds after the car
halted, a dump truck containing gravel and sand suddenly
rammed the cars rear end, violently pushing the car forward.
Due to the impact, the cars rear end collapsed and its rear
windshield was shattered. Glass splinters flew, puncturing Dra.
dela Llana. Apart from these minor wounds, Dra. dela Llana did
not appear to have suffered from any other visible physical
injuries.6
The traffic investigation report dated March 30, 2000 identified
the truck driver as Joel Primero. It stated that Joel was
recklessly imprudent in driving the truck.7

consulted with Dr. Rosalinda Milla, a rehabilitation medicine

specialist, to examine her condition. Dr. Milla told her that she
suffered from a whiplash injury, an injury caused by the
compression of the nerve running to her left arm and hand. Dr.
Milla required her to undergo physical therapy to alleviate her
condition. Dra. dela Llanas condition did not improve despite
three months of extensive physical therapy.9
She then consulted other doctors, namely, Drs. Willie Lopez,
Leonor Cabral-Lim and Eric Flores, in search for a cure. Dr.
Flores, a neuro-surgeon, finally suggested that she undergo a
cervical spine surgery to release the compression of her nerve.
On October 19, 2000, Dr. Flores operated on her spine and
neck, between the C5 and the C6 vertebrae.10
The operation released the impingement of the nerve, but
incapacitated Dra. dela Llana from the practice of her
profession since June 2000 despite the surgery.11
Dra. dela Llana, on October 16, 2000, demanded from
Rebecca compensation for her injuries, but Rebecca refused to
pay.12
Thus, on May 8, 2001, Dra. dela Llana sued Rebecca for
damages before the Regional Trial Court of Quezon City
(RTC). She alleged that she lost the mobility of her arm as a
result of the vehicular accident and claimed P150,000.00 for
her medical expenses (as of the filing of the complaint) and an
average monthly income of P30,000.00 since June 2000. She
further prayed for actual, moral, and exemplary damages as
well as attorneys fees.13
In defense, Rebecca maintained that Dra. dela Llana had no
cause of action against her as no reasonable relation existed
between the vehicular accident and Dra. dela Llanas injury.
She pointed out that Dra. dela Llanas illness became manifest
one month and one week from the date of the vehicular
accident. As a counterclaim, she demanded the payment of
attorneys fees and costs of the suit.14
At the trial, Dra. dela Llana presented herself as an ordinary
witness15 and Joel as a hostile witness.16
Dra. dela Llana reiterated that she lost the mobility of her arm
because of the vehicular accident. To prove her claim, she
identified and authenticated a medical certificate dated
November 20, 2000 issued by Dr. Milla. The medical certificate
stated that Dra. dela Llana suffered from a whiplash injury. It
also chronicled her clinical history and physical examinations.17

Joel later revealed that his employer was respondent Rebecca

Biong, doing business under the name and style of "Pongkay
Trading" and was engaged in a gravel and sand business.8

Meanwhile, Joel testified that his truck hit the car because the
trucks brakes got stuck.18

In the first week of May 2000, Dra. dela Llana began to feel
mild to moderate pain on the left side of her neck and shoulder.
The pain became more intense as days passed by. Her injury
became more severe. Her health deteriorated to the extent that
she could no longer move her left arm. On June 9, 2000, she

In defense, Rebecca testified that Dra. dela Llana was

physically fit and strong when they met several days after the
vehicular accident. She also asserted that she observed the
diligence of a good father of a family in the selection and
supervision of Joel. She pointed out that she required Joel to
submit a certification of good moral character as well as

barangay, police, and NBI clearances prior to his employment.

She also stressed that she only hired Primero after he
successfully passed the driving skills test conducted by Alberto
Marcelo, a licensed driver-mechanic.19
Alberto also took the witness stand. He testified that he
checked the truck in the morning of March 30, 2000. He
affirmed that the truck was in good condition prior to the
vehicular accident. He opined that the cause of the vehicular
accident was a damaged compressor. According to him, the
absence of air inside the tank damaged the compressor.20
RTC Ruling
The RTC ruled in favor of Dra. dela Llana and held that the
proximate cause of Dra. dela Llanas whiplash injury to be
Joels reckless driving.21
It found that a whiplash injury is an injury caused by the
sudden jerking of the spine in the neck area. It pointed out that
the massive damage the car suffered only meant that the truck
was over-speeding. It maintained that Joel should have driven
at a slower pace because road visibility diminishes at night. He
should have blown his horn and warned the car that his brake
was stuck and could have prevented the collision by swerving
the truck off the road. It also concluded that Joel was probably
sleeping when the collision occurred as Joel had been driving
for fifteen hours on that fateful day. The RTC further declared
that Joels negligence gave rise to the presumption that
Rebecca did not exercise the diligence of a good father of a
family in Joel's selection and supervision of Joel. Rebecca was
vicariously liable because she was the employer and she
personally chose him to drive the truck. On the day of the
collision, she ordered him to deliver gravel and sand to Muoz
Market, Quezon City. The Court concluded that the three
elements necessary to establish Rebeccas liability were
present: (1) that the employee was chosen by the employer,
personally or through another; (2) that the services were to be
rendered in accordance with orders which the employer had
the authority to give at all times; and (3) that the illicit act of the
employee was on the occasion or by reason of the functions
entrusted to him. The RTC thus awarded Dra. dela Llana the
amounts of P570,000.00 as actual damages, P250,000.00 as
moral damages, and the cost of the suit.22
CA Ruling
In a decision dated February 11, 2008, the CA reversed the
RTC ruling. It held that Dra. dela Llana failed to establish a
reasonable connection between the vehicular accident and her
whiplash injury by preponderance of evidence. Citing Nutrimix
Feeds Corp. v. Court of Appeals,23 it declared that courts will
not hesitate to rule in favor of the other party if there is no
evidence or the evidence is too slight to warrant an inference
establishing the fact in issue. It noted that the interval between
the date of the collision and the date when Dra. dela Llana
began to suffer the symptoms of her illness was lengthy. It
concluded that this interval raised doubts on whether Joels
reckless driving and the resulting collision in fact caused Dra.

dela Llanas injury. It also declared that courts cannot take

judicial notice that vehicular accidents cause whiplash injuries.
It observed that Dra. dela Llana did not immediately visit a
hospital to check if she sustained internal injuries after the
accident. Moreover, her failure to present expert witnesses was
fatal to her claim. It also gave no weight to the medical
certificate. The medical certificate did not explain how and why
the vehicular accident caused the injury.24
The Petition
Dra. dela Llana points out in her petition before this Court that
Nutrimix is inapplicable in the present case. She stresses that
Nutrimix involved the application of Article 1561 and 1566 of
the Civil Code, provisions governing hidden defects.
Furthermore, there was absolutely no evidence in Nutrimix that
showed that poisonous animal feeds were sold to the
respondents in that case. As opposed to the respondents in
Nutrimix, Dra. dela Llana asserts that she has established by
preponderance of evidence that Joels egligent act was the
proximate cause of her whiplash injury. First, pictures of her
damaged car show that the collision was strong. She posits
that it can be reasonably inferred from these pictures that the
massive impact resulted in her whiplash injury. Second, Dr.
Milla categorically stated in the medical certificate that Dra.
dela Llana suffered from whiplash injury. Third, her testimony
that the vehicular accident caused the injury is credible
because she was a surgeon.
Dra. dela Llana further asserts that the medical certificate has
probative value. Citing several cases, she posits that an
uncorroborated medical certificate is credible if
uncontroverted.25
She points out that expert opinion is unnecessary if the opinion
merely relates to matters of common knowledge. She
maintains that a judge is qualified as an expert to determine
the causation between Joels reckless driving and her whiplash
injury. Trial judges are aware of the fact that whiplash injuries
are common in vehicular collisions.
The Respondents Position
In her Comment,26 Rebecca points out that Dra. dela Llana
raises a factual issue which is beyond the scope of a petition
for review on certiorari under Rule 45 of the Rules of Court.
She maintains that the CAs findings of fact are final and
conclusive. Moreover, she stresses that Dra. dela Llanas
arguments are not substantial to merit this Courts
consideration.
The Issue
The sole issue for our consideration in this case is whether
Joels reckless driving is the proximate cause of Dra. dela
Llanas whiplash injury.
Our Ruling We find the petition unmeritorious.

The Supreme Court may review questions of fact in a petition

for review on certiorari when the findings of fact by the lower
courts are conflicting
The issue before us involves a question of fact and this Court
is not a trier of facts. As a general rule, the CAs findings of fact
are final and conclusive and this Court will not review them on
appeal. It is not the function of this Court to examine, review or
evaluate the evidence in a petition for review
on certiorari under Rule 45 of the Rules of Court. We can only
review the presented evidence, by way of exception, when the
conflict exists in findings of the RTC and the CA.27
We see this exceptional situation here and thus accordingly
examine the relevant evidence presented before the trial court.
Dra. dela Llana failed to establish her case by preponderance
of evidence
Article 2176 of the Civil Code provides that "[w]hoever 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 a quasi-delict." Under this provision, the
elements necessary to establish a quasi-delict case are:
(1) damages to the plaintiff;
(2) negligence, by act or omission, of the defendant or by some
person for whose acts the defendant must respond, was guilty;
and
(3) the connection of cause and effect between such
negligence and the damages.28

Under Article 2176 of the Civil Code, in relation with the fifth
paragraph of Article 2180, "an action predicated on an
employees act or omission may be instituted against the
employer who is held liable for the negligent act or omission
committed by his employee."32
The rationale for these graduated levels of analyses is that it is
essentially the wrongful or negligent act or omission itself
which creates the vinculum juris in extra-contractual
obligations.33
In civil cases, a party who alleges a fact has the burden of
proving it.
He who alleges has the burden of proving his allegation by
preponderance of evidence or greater weight of credible
evidence.34
The reason for this rule is that bare allegations,
unsubstantiated by evidence, are not equivalent to proof.
In short, mere allegations are not evidence.35
In the present case, the burden of proving the proximate
causation between Joels negligence and Dra. dela Llanas
whiplash injury rests on Dra. dela Llana. She must establish by
preponderance of evidence that Joels negligence, in its natural
and continuous sequence, unbroken by any efficient
intervening cause, produced her whiplash injury, and without
which her whiplash injury would not have occurred.36
Notably, Dra. dela Llana anchors her claim mainly on three
pieces of evidence:
(1) the pictures of her damaged car,

These elements show that the source of obligation in a quasidelict case is the breach or omission of mutual duties that
civilized society imposes upon its members, or which arise
from non-contractual relations of certain members of society to
others.29
Based on these requisites, Dra. dela Llana must first establish
by preponderance of evidence the three elements of quasidelict before we determine Rebeccas liability as Joels
employer.
She should show the chain of causation between Joels
reckless driving and her whiplash injury.
Only after she has laid this foundation can the presumption that Rebecca did not exercise the diligence of a good father of
a family in the selection and supervision of Joel - arise.30
Once negligence, the damages and the proximate causation
are established, this Court can then proceed with the
application and the interpretation of the fifth paragraph of
Article 2180 of the Civil Code.31

(2) the medical certificate dated November 20, 2000, and

(3) her testimonial evidence. However, none of these pieces of
evidence show the causal relation between the vehicular
accident and the whiplash injury. In other words,
Dra. dela Llana, during trial, did not adduce the factum probans
or the evidentiary facts by which the factum probandum or the
ultimate fact can be established, as fully discussed below.37
A.
The pictures of the damaged
car only demonstrate the
impact of the collision
Dra. dela Llana contends that the pictures of the damaged car
show that the massive impact of the collision caused her
whiplash injury. We are not persuaded by this bare claim. Her
insistence that these pictures show the causation grossly
belies common logic. These pictures indeed demonstrate the
impact of the collision. However, it is a far-fetched assumption

that the whiplash injury can also be inferred from these

pictures.
B.
The medical certificate cannot be
considered because it was
not admitted in evidence
Furthermore, the medical certificate, marked as Exhibit "H"
during trial, should not be considered in resolving this case for
the reason that it was not admitted in evidence by the RTC in
an order dated September 23, 2004.38
Thus, the CA erred in even considering this documentary
evidence in its resolution of the case. It is a basic rule that
evidence which has not been admitted cannot be validly
considered by the courts in arriving at their judgments.
However, even if we consider the medical certificate in the
disposition of this case, the medical certificate has no probative
value for being hearsay. It is a basic rule that evidence,
whether oral or documentary, is hearsay if its probative value is
not based on the personal knowledge of the witness but on the
knowledge of another person who is not on the witness stand.39
Hearsay evidence, whether objected to or not, cannot be given
credence40 except in very unusual circumstance that is not
found in the present case. Furthermore, admissibility of
evidence should not be equated with weight of evidence. The
admissibility of evidence depends on its relevance and
competence, while the weight of evidence pertains to evidence
already admitted and its tendency to convince and persuade.
Thus, a particular item of evidence may be admissible, but its
evidentiary weight depends on judicial evaluation within the
guidelines provided by the Rules of Court.41
During trial, Dra. dela Llana testified:
"Q: Did your physician tell you, more or less, what was the
reason why you were feeling that pain in your left arm?
A: Well, I got a certificate from her and in that certificate, she
stated that my condition was due to a compression of the
nerve, which supplied my left arm and my left hand.
Court: By the way, what is the name of this physician, Dra.?
Witness: Her name is Dra. Rosalinda Milla. She is a
Rehabilitation Medicine Specialist. Atty. Yusingco: You
mentioned that this Dra. Rosalinda Milla made or issued a
medical certificate. What relation does this medical certificate,
marked as Exhibit H have to do with that certificate, you said
was made by Dra. Milla?
Witness: This is the medical certificate that Dra. Milla made out
for me.

Atty. Yusingco: Your Honor, this has been marked as Exhibit H.

Atty. Yusingco: What other medical services were done on you,
Dra. dela Llana, as a result of that feeling, that pain that you
felt in your left arm?
Witness: Well, aside from the medications and physical
therapy, a re-evaluation of my condition after three months
indicated that I needed surgery.
Atty. Yusingco: Did you undergo this surgery?
Witness: So, on October 19, I underwent surgery on my neck,
on my spine.
Atty. Yusingco: And, what was the result of that surgical
operation?
Witness: Well, the operation was to relieve the compression on
my nerve, which did not resolve by the extensive and
prolonged physical therapy that I underwent for more than
three months."42(emphasis ours)
Evidently, it was Dr. Milla who had personal knowledge of the
contents of the medical certificate. However, she was not
presented to testify in court and was not even able to identify
and affirm the contents of the medical certificate. Furthermore,
Rebecca was deprived of the opportunity to cross-examine Dr.
Milla on the accuracy and veracity of her findings. We also
point out in this respect that the medical certificate nonetheless
did not explain the chain of causation in fact between Joels
reckless driving and Dra. dela Llanas whiplash injury. It did not
categorically state that the whiplash injury was a result of the
vehicular accident. A perusal of the medical certificate shows
that it only attested to her medical condition, i.e., that she was
suffering from whiplash injury. However, the medical certificate
failed to substantially relate the vehicular accident to Dra. dela
Llanas whiplash injury. Rather, the medical certificate
only chronicled
her medical history and physical examinations.
C.
Dra. dela Llanas opinion that
Joels negligence caused her
whiplash injury has no probative value
Interestingly, the present case is peculiar in the sense that Dra.
dela Llana, as the plaintiff in this quasi-delict case, was the
lone physician-witness during trial. Significantly, she merely
testified as an ordinary witness before the trial court. Dra. dela
Llana essentially claimed in her testimony that Joels reckless
driving caused her whiplash injury. Despite the fact that Dra.
dela Llana is a physician and even assuming that she is an
expert in neurology, we cannot give weight to her opinion that
Joels reckless driving caused her whiplash injury without
violating the rules on evidence. Under the Rules of Court, there

is a substantial difference between an ordinary witness and an

expert witness. The opinion of an ordinary witness may be
received in evidence regarding:
(a) the identity of a person about whom he has adequate
knowledge;
(b) a handwriting with which he has sufficient familiarity; and
(c) the mental sanity of a person with whom he is sufficiently
acquainted. Furthermore, the witness may also testify on his
impressions of the emotion, behavior, condition or appearance
of a person.43

her, our solemn duty to independently and impartially assess

the merits of the case binds us to rule against Dra. dela Llanas
favor. Her claim, unsupported by prepondernace of evidence,
is merely a bare assertion and has no leg to stand on.
WHEREFORE, presmises considered, the assailed Decision
dated February 11, 2008 and Resolution dated March 31, 2008
of the Court of Appeals are hereby AFFIRMED and the petition
is hereby DENIED for lack of merit.
SO ORDERED.

On the other hand, the opinion of an expert witness may be

received in evidence on a matter requiring special knowledge,
skill, experience or training which he shown to possess.44

G.R. No. 143008

However, courts do not immediately accord probative value to

an admitted expert testimony, much less to an unobjected
ordinary testimony respecting special knowledge. The reason
is that the probative value of an expert testimony does not lie in
a simple exposition of the expert's opinion. Rather, its weight
lies in the assistance that the expert witness may afford the
courts by demonstrating the facts which serve as a basis for
his opinion and the reasons on which the logic of his
conclusions is founded.45

PANGANIBAN, J.:

In the present case, Dra. dela Llanas medical opinion cannot

be given probative value for the reason that she was not
presented as an expert witness. As an ordinary witness, she
was not competent to testify on the nature, and the cause and
effects of whiplash injury. Furthermore, we emphasize that Dra.
dela Llana, during trial, nonetheless did not provide a medical
explanation on the nature as well as the cause and effects of
whiplash injury in her testimony.
The Supreme Court cannot take
judicial notice that vehicular
accidents cause whiplash injuries.
Indeed, a perusal of the pieces of evidence presented by the
parties before the trial court shows that Dra. Dela Llana did
not present any testimonial or documentary evidence that
directly shows the causal relation between the vehicular
accident and Dra. Dela Llanas injury. Her claim that Joels
negligence causes her whiplash injury was not established
because of the deficiency of the presented evidence during
trial. We point out in this respect that courts cannot take judicial
notice that vehicular ccidents cause whiplash injuries. This
proportion is not public knowledge, or is capable of
unquestionable demonstration, or ought to be known to judges
because of their judicial functions.46 We have no expertise in
the field of medicine. Justices and judges are only tasked to
apply and interpret the law on the basis of the parties pieces of
evidence and their corresponding legal arguments.
In sum, Dra. dela Llana miserably failed to establish her cause
by preponderance of evidence. While we commiserate with

June 10, 2002

SMITH BELL DODWELL SHIPPING AGENCY

CORPORATION, petitioner,
vs.
CATALINO BORJA and INTERNATIONAL TO WAGE AND
TRANSPORT CORPORATION, respondents.

The owner or the person in possession and control of a vessel

is liable for all natural and proximate damages caused to
persons and property by reason of negligence in its
management or navigation. The liability for the loss of the
earning capacity of the deceased is fixed by taking into account
the net income of the victim at the time of death -- of the
incident in this case -- and that person's probable life
expectancy.1wphi1.nt
The Case
Before us is a Petition for Review on Certiorari under Rule 45
of the Rules of Court, challenging the March 6, 2000
Decision1 and the April 25, 2000 Resolution2 of the Court of
Appeals3 (CA) in CA-GR CV No. 57470. The assailed Decision
disposed as follows:
"WHEREFORE, premises considered, the instant
appeal is hereby DENIED. The questioned decision of
the lower court is hereby AFFIRMED in toto. No
pronouncement as to costs."4
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
"It appears that on September 23, 1987, Smith Bell
[herein petitioner] filed a written request with the
Bureau of Customs for the attendance of the latter's
inspection team on vessel M/T King Family which was
due to arrive at the port of Manila on September 24,
1987.
"Said vessel contained 750 metric tons of alkyl
benzene and methyl methacrylate monomer.

"On the same day, Supervising Customs Inspector

Manuel Ma. D. Nalgan instructed [Respondent
Catalino Borja] to board said vessel and perform his
duties as inspector upon the vessel's arrival until its
departure. At that time, [Borja] was a customs
inspector of the Bureau of Customs receiving a salary
of P31,188.25 per annum.
"At about 11 o'clock in the morning on September 24,
1987, while M/T King Family was unloading chemicals
unto two (2) barges [--] ITTC 101 and CLC-1002 [--]
owned by [Respondent] ITTC, a sudden explosion
occurred setting the vessels afire. Upon hearing the
explosion, [Borja], who was at that time inside the
cabin preparing reports, ran outside to check what
happened. Again, another explosion was heard.
"Seeing the fire and fearing for his life, [Borja]
hurriedly jumped over board to save himself.
However, the [water] [was] likewise on fire due mainly
to the spilled chemicals. Despite the tremendous heat,
[Borja] swam his way for one (1) hour until he was
rescued by the people living in the squatters' area and
sent to San Juan De Dios Hospital.
"After weeks of intensive care at the hospital, his
attending physician diagnosed [Borja] to be
permanently disabled due to the incident. [Borja]
made demands against Smith Bell and ITTC for the
damages caused by the explosion. However, both
denied liabilities and attributed to each other
negligence."5

the testimonies of Borja and Eulogio Laurente (the eyewitness

of International Towage and Transport Corporation or ITTC) as
well as by the investigation conducted by the Special Board of
Marine Inquiry and affirmed by the secretary of the Department
of National Defense. On the other hand, the RTC, which the
CA sustained, had not given probative value to the evidence of
petitioner, whose sole eyewitness had not shown up for crossexamination.
Hence, this Petition.8
The Issues
In its Memorandum,9 petitioner raises the following issues:
"1. Whether petitioner should be held liable for the
injuries of Respondent Catalino Borja.
"2. Whether Respondent ITTC should be held liable
for the injuries of Respondent Catalino Borja.
"3. Assuming without admitting that Respondent
Catalino Borja is entitled to damages, whether
Respondent Borja is entitled to the amount of
damages awarded to him by the trial court."10
Simply put, these issues can be summed up in these two
questions: (1) Who, if any, is liable for Borja's injuries? (2) What
is the proper amount of liability?
This Court's Ruling

The trial court (RTC) ruled in favor of Respondent Borja and

held petitioner liable for damages and loss of income. The RTC
disposed as follows:
"WHEREFORE, premises considered, judgment is
hereby rendered ordering [Petitioner] Smith Bell
Dodwell [S]hipping Agency Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual
damages for loss of earning capacity:
2. The amount of P100,000.00 for moral
damages; and
3. The amount of P50,000.00 for and as
reasonable attorney's fees.
"The cross-claim of [Petitioner] Smith Bell Dodwell
Shipping Agency Corporation against co-defendant
International Towage and Transport Corporation and
the latter's counterclaim against [Borja] and crossclaim with compulsory counterclaim against Smith Bell
are hereby ordered dismissed."7
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner
that it be exonerated from liability for Respondent Borja's
injuries. Contrary to the claim of petitioner that no physical
evidence was shown to prove that the explosion had originated
from its vessel, the CA held that the fire had originated
from M/T King Family. This conclusion was amply supported by

The Petition is partly meritorious.

First Issue:
Responsibility for Injuries
Petitioner avers that both lower courts labored under a
misapprehension of the facts. It claims that the documents
adduced in the RTC conclusively revealed that the explosion
that caused the fire on M/T King Family had originated from the
barge ITTC-101, a conclusion based on three
grounds. First, the Survey Report (Exh. "10") dated October
21, 1987 submitted by the Admiral Surveyors and Adjusters,
Inc., showed that no part of M/T King Family sustained any
sharp or violent damage that would otherwise be observed if
indeed an explosion had occurred on it. On the other hand, the
fact that the vessel sustained cracks on its shell plating was
noted in two Survey Reports from Greutzman Divers
Underwater Specialist, dated October 6, 1987 (Exh. "11"), and
during the underwater inspection on the sunken barge ITTC101.
Second, external fire damage on the hull of M/T King
Family indicated that the fire had started from outside the
vessel and from ITTC-101. The port side of the vessel to which
the ITTC barge was tied was completely gutted by fire, while
the starboard side to which the barge CLC-1002 was tied
sustained only slight fire damage.
Third, testimonial evidence proved that the explosion came
from the barge of the ITTC and not from its vessel. Security
Guard Vivencio Estrella testified that he had seen the sudden
explosion of monomer on the barge with fire that went up to

about 60 meters. Third Mate Choi Seong Hwan and Second

Mate Nam Bang Choun of M/T King Family narrated that while
they were discharging the chemicals, they saw and heard an
explosion from the barge ITTC-101. Chief Security Guard
Reynaldo Patron, in turn, testified that he was 7 to 10 meters
away from the barge when he heard the explosion from the
port side of M/T King Family and saw the barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the
fire and the explosion had originated from petitioner's vessel.
Said the trial court:
"The attempts of [Petitioner] Smith Bell to shift the
blame on x x x ITTC were all for naught. First, the
testimony of its alleged eyewitness was stricken off
the record for his failure to appear for crossexamination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge
ITTC-101 were all denied admission by the [c]ourt for
being, in effect, hearsay (pp. 335 and 362). x x x
Thus, there is nothing in the record to support
[petitioner's] contention that the fire and explosion
originated from barge ITTC-101."11
We find no cogent reason to overturn these factual findings.
Nothing is more settled in jurisprudence than that this Court is
bound by the factual findings of the Court of Appeals when
these are supported by substantial evidence and are not under
any of the exceptions in Fuentes v. Court of Appeals;12 more
so, when such findings affirm those of the trial court.13 Verily,
this Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to
another. It is the failure to observe that degree of care,
precaution and vigilance that the circumstances justly demand,
whereby that other person suffers injury.14Petitioner's vessel
was carrying chemical cargo -- alkyl benzene and methyl
methacrylate monomer.15 While knowing that their vessel was
carrying dangerous inflammable chemicals, its officers and
crew failed to take all the necessary precautions to prevent an
accident. Petitioner was, therefore, negligent.
The three elements of quasi delict are: (a) damages suffered
by the plaintiff, (b) fault or negligence of the defendant, and (c)
the connection of cause and effect between the fault or
negligence of the defendant and the damages inflicted on the
plaintiff.16 All these elements were established in this case.
Knowing fully well that it was carrying dangerous chemicals,
petitioner was negligent in not taking all the necessary
precautions in transporting the cargo.
As a result of the fire and the explosion during the unloading of
the chemicals from petitioner's vessel, Respondent Borja
suffered the following damage: and injuries: "(1) chemical
burns of the face and arms; (2) inhalation of fumes from
burning chemicals; (3) exposure to the elements [while] floating
in sea water for about three (3) hours; (4)
homonymous hemianopsia or blurring of the right eye [which
was of] possible toxic origin; and (5) [c]erebral infract with neovascularization, left occipital region with right sided headache
and the blurring of vision of right eye."17
Hence, the owner or the person in possession and control of a
vessel and the vessel are liable for all natural and proximate
damage caused to persons and property by reason of
negligent management or navigation.18

Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of
damages awarded by the lower courts. It disputes the use of
his gross earning as basis for the computation of the award for
loss of earning capacity. Both courts, in computing the value of
such loss, used the remaining years of the victim as a
government employee and the amount he had been receiving
per annum at the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that
petitioner had no cause to complain, because the
miscomputation had ironically been in its favor. The multiplier
used in the computation was erroneously based on the
remaining years in government service, instead of the life
expectancy, of the victim. Borja's counsel also points out that
the award was based on the former's meager salary in 1987, or
about 23 years ago when the foreign exchange was still P14 to
$1. Hence, the questioned award is consistent with the primary
purpose of giving what is just, moral and legally due the victim
as the aggrieved party.
Both parties have a point. In determining the reasonableness
of the damages awarded under Article 1764 in conjunction with
Article 2206 of the Civil Code, the factors to be considered are:
(1) life expectancy (considering the health of the victim and the
mortality table which is deemed conclusive) and loss of earning
capacity; (b) pecuniary loss, loss of support and service; and
(c) moral and mental sufferings.19 The loss of earning capacity
is based mainly on the number of years remaining in the
person's expected life span. In turn, this number is the basis of
the damages that shall be computed and the rate at which the
loss sustained by the heirs shall be fixed.20
The formula for the computation of loss of earning capacity is
as follows:21
Net earning capacity
=
Life expectancy x
[Gross Annual Income - Living Expenses (50% of
gross annual income)], where life expectancy
=
2/3 (80 - the age of the deceased).22
Petitioner is correct in arguing that it is net income (or gross
income less living expenses) which is to be used in the
computation of the award for loss of income. Villa Rey Transit
v. Court of Appeals23 explained that "the amount recoverable is
not the loss of the entire earning, but rather the loss of that
portion of the earnings which the beneficiary would have
received." Hence, in fixing the amount of the said damages,
the necessary expenses of the deceased should be deducted
from his earnings.
In other words, only net earnings, not gross earnings, are to be
considered; that is, the total of the earnings less expenses
necessary in the creation of such earnings or income, less
living and other incidental expenses. When there is no showing
that the living expenses constituted a smaller percentage of the
gross income, we fix the living expenses at half of the gross
income. To hold that one would have used only a small part of
the income, with the larger part going to the support of one's
children, would be conjectural and unreasonable.24
Counsel for Respondent Borja is also correct in saying that life
expectancy should not be based on the retirement age of
government employees, which is pegged at 65. In Negros

Navigation Co, Inc. v. CA,25 the Court resolved that in

calculating the life expectancy of an individual for the purpose
of determining loss of earning capacity under Article 2206(1) of
the Civil Code, it is assumed that the deceased would have
earned income even after retirement from a particular
job.1wphi1.nt

vs.
SGT. AMANDO C. ALBAYDA, JR., Respondent.
DECISION
NACHURA, J.:

Respondent Borja should not be situated differently just

because he was a government employee. Private employees,
given the retirement packages provided by their companies,
usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after
the incident and, hence, his life expectancy of 80 years should
yield to the reality that he was only 59 when he actually died.
We disagree. The Court uses the American
Experience/Expectancy Table of Mortality or the Actuarial or
Combined Experience Table of Mortality, which consistently
pegs the life span of the average Filipino at 80 years, from
which it extrapolates the estimated income to be earned by the
deceased had he or she not been killed.26
Respondent Borja's demise earlier than the estimated life span
is of no moment. For purposes of determining loss of earning
capacity, life expectancy remains at 80. Otherwise, the
computation of loss of earning capacity will never become final,
being always subject to the eventuality of the victim's death.
The computation should not change even if Borja lived beyond
80 years. Fair is fair.
Based on the foregoing discussion, the award for loss of
earning capacity should be computed as follows:

Loss of earning
capacity

= [2 (80-50)] x [(P2,752x12)16,512]
3

= P330,240

Having been duly proven, the moral damages and attorney's

fees awarded are justified under the Civil Code's Article 2219,
paragraph 2; and Article 2208, paragraph 11, respectively.
WHEREFORE, the Petition is PARTLY GRANTED. The
assailed Decision is AFFIRMED with the
following MODIFICATIONS: petitioner is ordered to pay the
heirs of the victim damages in the amount of P320,240 as loss
of earning capacity, moral damages in the amount
of P100,000, plus another P50,000 as attorney's fees. Costs
against petitioner.
SO ORDERED.
G.R. No. 172200

July 6, 2010

THE HEIRS OF REDENTOR COMPLETO and ELPIDIO

ABIAD, Petitioners,

Before the Court is a petition for review on certiorari under Rule

45 of the Rules of Court, assailing the Decision1dated January
2, 2006 and the Resolution2 dated March 30, 2006 of the Court
of Appeals (CA) in CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master
Sergeant of the Philippine Air Force, 527th Base Security
Squadron, 520th Airbase, Philippine Air Force, located at
Villamor Air Base (VAB), Pasay City. Petitioner Redentor
Completo (Completo), now represented by his heirs, was the
taxi driver of a Toyota Corolla, bearing Plate No. PYD-128,
owned and operated by co-petitioner Elpidio Abiad
(Abiad).3 Albayda and Completo figured in an accident along
the intersection of 8th and 11th Streets, VAB. Albayda filed a
complaint for damages before the Regional Trial Court (RTC)
of Pasay City. The case was docketed as Civil Case No. 981333.4
The amended complaint alleged that, on August 27, 1997,
while Albayda was on his way to the office to report for duty,
riding a bicycle along 11th Street, the taxi driven by Completo
bumped and sideswiped him, causing serious physical injuries.
Albayda was brought to the Philippine Air Force General
Hospital (PAFGH) inside VAB. However, he was immediately
transferred to the Armed Forces of the Philippines Medical
Center (AFPMC) on V. Luna Road, Quezon City, because there
was a fracture in his left knee and there was no orthopedic
doctor available at PAFGH. From August 27, 1997 until
February 11, 1998, he was confined therein. He was again
hospitalized at PAFGH from February 23, 1998 until March 22,
1998.5
Conciliation between the parties before the barangay failed.
Thus, Albayda filed a complaint for physical injuries through
reckless imprudence against Completo before the Office of the
City Prosecutor of Pasay City. On the other hand, Completo
filed a counter-charge of damage to property through reckless
imprudence against Albayda. On January 13, 1998, the Office
of the City Prosecutor issued a resolution,6 recommending the
filing of an information for reckless imprudence resulting in
physical injuries against Completo. The counter-charge of
damage to property was recommended dismissed.7
The case was raffled to the Metropolitan Trial Court of Pasay
City, Branch 45, where Albayda manifested his reservation to
file a separate civil action for damages against petitioners
Completo and Abiad.8

Albayda alleged that the proximate cause of the incident which

necessitated his stay in the hospital for approximately seven
(7) months was the negligence of Completo who, at the time of
the accident, was in the employ of Abiad. The pain he suffered
required him to undergo medical physiotherapy for a number of
years to regain normality of his left knee joint, and he claimed
that he incurred actual damages totaling Two Hundred
Seventy-Six Thousand Five Hundred Fifty Pesos
(P276,550.00), inclusive of his anticipated operations.9
He further stated that aggravating the physical sufferings,
mental anguish, frights, serious anxiety, besmirched reputation,
wounded feelings, moral shock, and social humiliation resulting
from his injuries, his wife abandoned him in May 1998, and left
their children in his custody. He thus demanded the amount of
Six Hundred Thousand Pesos (P600,000.00) as moral
damages. He likewise asked for exemplary damages in the
amount of Two Hundred Thousand Pesos (P200,000.00) and
attorneys fees of Twenty-Five Thousand Pesos (P25,000.00),
plus One Thousand Pesos (P1,000.00) per court appearance.10
In his answer to the amended complaint, Completo alleged
that, on August 27, 1997, he was carefully driving the taxicab
along 8th Street, VAB, when suddenly he heard a strange
sound from the rear right side of the taxicab. When he stopped
to investigate, he found Albayda lying on the road and holding
his left leg. He immediately rendered assistance and brought
Albayda to PAFGH for emergency treatment.11
Completo also asserted that he was an experienced driver
who, in accordance with traffic rules and regulations and
common courtesy to his fellow motorists, had already reduced
his speed to twenty (20) kilometers per hour even before
reaching the intersection of 8th and 11th Streets. In contrast,
Albayda rode his bicycle at a very high speed, causing him to
suddenly lose control of the bicycle and hit the rear door on the
right side of the taxicab.12
The deep indentation on the rear right door of the taxicab was
caused by the impact of Albaydas body that hit the taxicab
after he had lost control of the bicycle; while the slight
indentation on the right front door of the taxicab was caused by
the impact of the bike that hit the taxicab after Albayda let go of
its handles when he had lost control of it.13
Completo maintained that Albayda had no cause of action. The
accident and the physical injuries suffered by Albayda were
caused by his own negligence, and his purpose in filing the
complaint was to harass petitioners and unjustly enrich himself
at their expense.14
After submission of the parties respective pleadings, a pretrial
conference was held. On December 8, 1998, the RTC issued a
pretrial order. Thereafter, trial on the merits ensued.15
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito
Barrosa, Jr. (Dr. Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny
Santiago, (Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr.
Magtira) as witnesses in open court.16

On direct examination, Navarro testified that, on August 27,

1997, at around 1:45 p.m., he saw a taxicab, with Plate No.
PYD-128, coming from 11th Street, running at an unusual
speed. The normal speed should have been twenty-five (25)
kilometers per hour. He was at the corner of 9th and 8th
Streets when the taxicab passed by him. The side of the
bicycle was hit by the taxicab at the intersection of 11th and 8th
Streets. He saw Albayda fall to the ground, grimacing in pain.
The taxicab at that moment was about ten (10) meters away
from Albayda. On cross-examination, Navarro reiterated that
the taxicab was running quite fast. The bicycle ridden by
Albayda reached the intersection of 8th and 11th Streets before
the taxicab hit it.17
Dr. Santiago, the orthopedic surgeon who treated Albayda
when the latter was admitted at AFPMC, testified that the
cause of the injury was "hard impact," and recommended an
operation to alleviate the suffering. On cross-examination, he
said that there was a separation of the fragments of the
proximal leg, the injured extremity, called levia. They placed
the victim on knee traction or calcaneal traction,18 in order to
avoid further swelling. They bore the calcanean bone with a
stainless steel pin so that they could put five percent (5%) of
the body weight of the patient to cool down the leg. He treated
Albayda for three (3) months. He recommended surgery, but
the victim had other medical problems, like an increase in
sugar level, and they were waiting for the availability of the
implant. The implant was supposed to be placed on the lateral
aspect of the proximal leg or the levia, the part with the
separation. It was a long implant with screws.19
Dr. Magtira testified that Albayda was readmitted at AFPMC on
January 25, 1999 because of complaints of pain and limitation
of motion on the knee joint. Upon evaluation, the pain was
caused by traumatic arthritis brought about by malunion of the
lateral trivial condial. An operation of the soft tissue release
was conducted for him to mobilize his knee joint and attain
proper range of motion. After the operation, Albayda attained
functional range of motion, but because of subsisting pain, they
had to do osteoplasty20 of the malunion, which was another
operation. On cross-examination, Dr. Magtira testified that he
rendered free medical service at AFPMC.21
Albayda testified that he was thirty-six (36) years old and a
soldier of the Armed Forces of the Philippines. On August 27,
1997, at around 1:40 p.m., he was riding his bike on his way to
the office, located on 916 Street, VAB. He had to stop at the
corner of 11th and 8th Streets because an oncoming taxicab
was moving fast. However, the taxicab still bumped the front
tire of his bike, hit his left knee and threw him off until he fell
down on the road. The taxicab stopped about ten meters away,
and then moved backwards. Its driver, Completo, just stared at
him. When somebody shouted to bring him to the hospital, two
(2) persons, one of whom was Dr. Barrosa, helped him and
carried him into the taxicab driven by Completo, who brought
him to PAFGH.22
Upon examination, it was found that Albayda suffered fracture
in his left knee and that it required an operation. No orthopedic

doctor was available at PAFGH. Thus, he was transferred that

same afternoon to AFPMC, where he was confined until
February 11, 1998.23
At AFPMC, Albaydas left leg was drilled on and attached to
traction. When his leg was drilled, it was so painful that he had
to shout. After his release from the hospital, he continued to
suffer pain in his leg. He underwent reflexology and therapy
which offered temporary relief from pain. But after some time,
he had to undergo therapy and reflexology again.24
On January 25, 1999, Albayda was readmitted at AFPMC and
operated on. On June 24, 1999, he was operated on again.
Wire and screw were installed so that he could bend his knee.
Nonetheless, he continued to suffer pain. As of the date of his
testimony in court, he was scheduled for another operation in
January 2000, when the steel that would be installed in his leg
arrives.25
For his food, Albayda spent Thirty Pesos (P30.00) each day
during his six (6) months of confinement; for his bed pan, One
Thousand Pesos (P1,000.00); for his twice weekly reflexology,
Three Hundred Pesos (P300.00) every session since April
1997; for his caretaker, P300.00 per day for six months. He
also asked for P600,000.00 in moral damages because
Completo did not lend him a helping hand, and he would be
suffering deformity for the rest of his life. He
demanded P25,000.00 as attorneys fees and P1,000.00 for
every court appearance of his lawyer.26
On cross-examination, Albayda testified that, on the date of the
incident, he was the base guard at VAB, and his duty was from
2 p.m. to 8 p.m. That afternoon, he was not in a hurry to go to
his place of work because it was only about 1:45 p.m., and his
place of work was only six (6) meters away. After the accident,
he was brought to PAFGH, and at 3:00 p.m., he was brought to
the AFPMC. When he was discharged from the hospital, he
could no longer walk.27
Dr. Barrosas testimony during cross-examination emphasized
that he was with 2 other persons when he carried Albayda into
the taxicab driven by Completo. He was certain that it was not
Completo who carried the victim into the taxicab. It was only a
matter of seconds when he rushed to the scene of the
accident. The taxicab backed up fifteen (15) seconds later.
Albayda lay 2 meters away from the corner of 8th and 11th
Streets.28

from the west. The bicycle was coming from 11th Street, while
he was travelling along 8th Street.30
On cross-examination, Completo testified that when Albayda
hit the rear right door of the taxicab, the latter fell to the ground.
When he heard a noise, he immediately alighted from the
taxicab. He denied that he stopped about 10 meters away from
the place where Albayda fell. He carried Albayda and drove
him to the hospital.31
Panican testified that he worked as an airconditioner technician
in a shop located on 8th Street corner 11th Street. On the date
and time of the incident, he was working in front of the shop
near the roadside. He saw a bicycle bump the rear right side of
the taxicab. Then, the driver of the taxicab alighted, carried
Albayda, and brought him to the hospital.32
When questioned by the trial court, Panican testified that the
bicycle was running fast and that he saw it bump the taxicab.
The taxicab already passed the intersection of 11th and 8th
Streets when the bicycle arrived.33
Abiad testified that, aside from being a soldier, he was also a
franchise holder of taxicabs and passenger jeepneys. When
Completo applied as a driver of the taxicab, Abiad required the
former to show his bio-data, NBI clearance, and drivers
license. Completo never figured in a vehicular accident since
the time he was employed in February 1997. Abiad averred
that Completo was a good driver and a good man. Being the
operator of taxicab, Abiad would wake up early and personally
check all the taxicabs.34
On July 31, 2000, the trial court rendered a decision,35 the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff [Albayda] and against the defendants [Completo and
Abiad]. Accordingly, the defendants [Completo and Abiad] are
hereby ordered to pay the plaintiff [Albayda] the following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]
3. P25,000.00 as attorneys fees.
Costs against the defendants [Completo and Abiad].

Completo, Abiad, and Benjamin Panican (Panican) testified for

the defense.29
Completo alleged that he had been employed as taxi driver of
FOJS Transport, owned by Abiad, since February 1997. On
August 27, 1997, he was driving the taxicab, with Plate No.
PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on his
way home when a bicycle bumped his taxicab at the
intersection of 8th and 11th Streets, VAB. The bicycle was
travelling from south to north, and he was going east coming

SO ORDERED.36
Completo and Abiad filed an appeal. The CA affirmed the trial
court with modification in a Decision37 dated January 2, 2006,
viz.:
WHEREFORE, premises considered, the appeal is DENIED for
lack of merit. The assailed Decision dated 31 July 2000
rendered by the Regional Trial Court of Pasay City, Branch

10

117, in Civil Case No. 98-1333 is hereby AFFIRMED with the

following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is
DELETED;
2. temperate damages in the amount of Php
40,000.00 is awarded in favor of appellee;
3. moral damages in favor of appellee is REDUCED
to Php 200,000.00;
4. appellants Redentor Completo and Elpidio Abiad
are solidarily liable to pay appellee Amando C.
Albayda, Jr. said temperate and moral damages, as
well as the attorneys fees in the amount of Php
25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal
interest at 6% per annum computed from the date of
promulgation of Our Decision;
6. upon finality of Our Decision, said moral and
temperate damages shall earn legal interest at the
rate of 12% per annum, in lieu of 6% per annum, until
full payment. Costs against appellants.
SO ORDERED.38
Hence, this petition.
The Issues
Petitioners presented the following issues for resolution: (1)
whether the CA erred in finding that Completo was the one who
caused the collision;
(2) whether Abiad failed to prove that he observed the diligence
of a good father of the family; and (3) whether the award of
moral and temperate damages and attorneys fees to Albayda
had no basis.39
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual
matters which were already passed upon by the RTC and the
CA. Conclusions and findings of fact of the trial court are
entitled to great weight on appeal and should not be disturbed
unless for strong and cogent reasons, because the trial court is
in a better position to examine real evidence, as well as to
observe the demeanor of the witnesses while testifying in the
case. The fact that the CA adopted the findings of fact of the
trial court makes the same binding upon this Court. Well-

settled is the rule that the Supreme Court is not a trier of

facts.40 To be sure, findings of fact of lower courts are deemed
conclusive and binding upon the Supreme Court, save only for
clear and exceptional reasons,41 none of which is present in the
case at bar.
The instant case involved a collision between a taxicab and a
bicycle which resulted in serious physical injuries to the bicycle
rider, Albayda. It is a rule in negligence suits that the plaintiff
has the burden of proving by a preponderance of evidence the
motorists breach in his duty of care owed to the plaintiff, that
the motorist was negligent in failing to exercise the diligence
required to avoid injury to the plaintiff, and that such negligence
was the proximate cause of the injury suffered.42
Article 2176 of the Civil Code provides that 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. In this regard, the
question of the motorist's negligence is a question of fact.
It was proven by a preponderance of evidence that Completo
failed to exercise reasonable diligence in driving the taxicab
because he was over-speeding at the time he hit the bicycle
ridden by Albayda. Such negligence was the sole and
proximate cause of the serious physical injuries sustained by
Albayda. Completo did not slow down even when he
approached the intersection of 8th and 11th Streets of VAB. It
was also proven that Albayda had the right of way, considering
that he reached the intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to
that of other vehicles lawfully on the highway, and it is fortified
by the fact that usually more will be required of a motorist than
a bicyclist in discharging his duty of care to the other because
of the physical advantages the automobile has over the
bicycle.43
At the slow speed of ten miles per hour, a bicyclist travels
almost fifteen feet per second, while a car traveling at only
twenty-five miles per hour covers almost thirty-seven feet per
second, and split-second action may be insufficient to avoid an
accident. It is obvious that a motor vehicle poses a greater
danger of harm to a bicyclist than vice versa. Accordingly, while
the duty of using reasonable care falls alike on a motorist and a
bicyclist, due to the inherent differences in the two vehicles,
more care is required from the motorist to fully discharge the
duty than from the bicyclist.44 Simply stated, the physical
advantages that the motor vehicle has over the bicycle make it
more dangerous to the bicyclist than vice versa.45
Under Article 2180 of the Civil Code, the obligation imposed by
Article 2176 is demandable not only for ones own acts or
omissions, but also for those persons for whom one is
responsible. Employers shall be liable for the damages caused
by their employees, but the employers responsibility shall
cease upon proof that they observed all the diligence of a good

11

father of the family in the selection and supervision of their

employees.
When an injury is caused by the negligence of an employee, a
legal presumption instantly arises that the employer was
negligent. This presumption may be rebutted only by a clear
showing on the part of the employer that he exercised the
diligence of a good father of a family in the selection and
supervision of his employee. If the employer successfully
overcomes the legal presumption of negligence, he is relieved
of liability. In other words, the burden of proof is on the
employer.46
The trial courts finding that Completo failed to exercise
reasonable care to avoid collision with Albayda at the
intersection of 11th and 8th Streets of VAB gives rise to liability
on the part of Completo, as driver, and his employer Abiad. The
responsibility of two or more persons who are liable for quasidelict is solidary.47 The civil liability of the employer for the
negligent acts of his employee is also primary and direct, owing
to his own negligence in selecting and supervising his
employee.48 The civil liability of the employer attaches even if
the employer is not inside the vehicle at the time of the
collision.49
In the selection of prospective employees, employers are
required to examine them as to their qualifications, experience,
and service records. On the other hand, with respect to the
supervision of employees, employers should formulate
standard operating procedures, monitor their implementation,
and impose disciplinary measures for breaches thereof. To
establish these factors in a trial involving the issue of vicarious
liability, employers must submit concrete proof, including
documentary evidence.50
Abiad testified that before he hired Completo, he required the
latter to show his bio-data, NBI clearance, and drivers license.
Abiad likewise stressed that Completo was never involved in a
vehicular accident prior to the instant case, and that, as
operator of the taxicab, he would wake up early to personally
check the condition of the vehicle before it is used.
The protestation of Abiad to escape liability is short of the
diligence required under the law. Abiads evidence consisted
entirely of testimonial evidence, and the unsubstantiated and
self-serving testimony of Abiad was insufficient to overcome
the legal presumption that he was negligent in the selection
and supervision of his driver.

While the amount of actual damages was not duly established

with certainty, the Court recognizes the fact that, indeed,
Albayda incurred a considerable amount for the necessary and
reasonable medical expenses, loss of salary and wages, loss
of capacity to earn increased wages, cost of occupational
therapy, and harm from conditions caused by prolonged
immobilization. Temperate damages, more than nominal but
less than compensatory damages, may be recovered when the
court finds that some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be proved with
certainty.52 Temperate damages must be reasonable under the
circumstances.53 Thus, the Court finds the award of One
Hundred Thousand Pesos (P100,000.00) as temperate
damages reasonable under the circumstances.
Doubtless, Albayda suffered immeasurable pain because of the
incident caused by petitioners negligence. The CA explained:
The court vicariously feels the pain the plaintiff [Albayda]
suffered a number of times. After he was bumped by
defendants cab, he cried in pain. When the doctors bore holes
into his left knee, he cried in pain. When he was tractioned,
when he was subjected to an operation after operation he
suffered pain. When he took the witness stand to testify, he
walked with crutches, his left knee in bandage, stiff and
unfuctional. Pain was written [on] his face. He does deserve
moral damages.54
Moral damages are awarded in quasi-delicts causing physical
injuries. The permanent deformity and the scar left by the
wounds suffered by Albayba will forever be a reminder of the
pain and suffering that he had endured and continues to
endure because of petitioners negligence. Thus, the award of
moral damages in the amount of Five Hundred Thousand
Pesos (P500,000.00) is proper.
Finally, an interest rate of six percent (6%) per annum is due
on the amount of P100,000.00, as temperate damages,
and P500,000.00, as moral damages, which we have awarded.
The 6% per annum interest rate on the temperate and moral
damages shall commence to run from the date of the
promulgation of this Decision. Upon finality of the Decision, an
interest rate of twelve percent (12%) per annum shall be
imposed on the amount of the temperate and moral damages
until full payment thereof.55
The award of attorneys fees is hereby deleted for failure to
prove that petitioners acted in bad faith in refusing to satisfy
respondents just and valid claim.

II. On Damages
The CA rightfully deleted the award of actual damages by the
RTC because Albayda failed to present documentary evidence
to establish with certainty the amount that he incurred during
his hospitalization and treatment for the injuries he suffered. In
the absence of stipulation, actual damages are awarded only
for such pecuniary loss suffered that was duly proved.51

WHEREFORE, in view of the foregoing, the Decision dated

January 2, 2006 and the Resolution dated March 30, 2006 of
the Court of Appeals in CA-G.R. CV No. 68405 are hereby
AFFIRMED with MODIFICATION, viz.:
(1) The estate of the late Redentor Completo and
Elpidio Abiad are solidarily liable to pay One Hundred
Thousand Pesos (P100,000.00), as temperate

12

damages, and Five Hundred Thousand Pesos

(P500,000.00), as moral damages;
(2) The temperate and moral damages hereby
awarded shall earn legal interest at the rate of six
percent (6%) per annum from the date of the
promulgation of this Decision. Upon finality of this
Decision, an interest rate of twelve percent (12%) per
annum shall be imposed on the amount of the
temperate and moral damages until full payment
thereof.
Costs against petitioners.
SO ORDERED.
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN
JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID,
GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.

PARAS, J.:
Sought to be reversed in this petition is the Decision * of the
respondent Court of Appeals' First Division, setting aside the
judgment of the then Court of First Instance (CFI) of Ilocos
Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is
hereby set aside and another rendered in its
stead whereby defendant is hereby
sentenced to pay plaintiffs actual damages of
P30,229.45; compensatory damages of
P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00;
plus the costs of suit in both instances. (p. 27
Rollo)
Basically, this case involves a clash of evidence whereby both
patties strive for the recognition of their respective versions of
the scenario from which the disputed claims originate. The
respondent Court of Appeals (CA) summarized the evidence of
the parties as follows:
From the evidence of plaintiffs it appears that
in the evening of June 28 until the early
morning of June 29, 1967 a strong typhoon
by the code name "Gening" buffeted the
province of Ilocos Norte, bringing heavy rains

and consequent flooding in its wake.

Between 5:30 and 6:00 A.M. on June 29,
1967, after the typhoon had abated and
when the floodwaters were beginning to
recede the deceased Isabel Lao Juan, fondly
called Nana Belen, ventured out of the house
of her son-in-law, Antonio Yabes, on No. 19
Guerrero Street, Laoag City, and proceeded
northward towards the direction of the Five
Sisters Emporium, of which she was the
owner and proprietress, to look after the
merchandise therein that might have been
damaged. Wading in waist-deep flood on
Guerrero, the deceased was followed by
Aida Bulong, a Salesgirl at the Five Sisters
Grocery, also owned by the deceased, and
by Linda Alonzo Estavillo, a ticket seller at
the YJ Cinema, which was partly owned by
the deceased. Aida and Linda walked side by
side at a distance of between 5 and 6 meters
behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank
into the water. The two girls attempted to
help, but fear dissuaded them from doing so
because on the spot where the deceased
sank they saw an electric wire dangling from
a post and moving in snake-like fashion in
the water. Upon their shouts for help,
Ernesto dela Cruz came out of the house of
Antonio Yabes. Ernesto tried to go to the
deceased, but at four meters away from her
he turned back shouting that the water was
grounded. Aida and Linda prodded Ernesto
to seek help from Antonio Yabes at the YJ
Cinema building which was four or five
blocks away.
When Antonio Yabes was informed by
Ernesto that his mother-in law had been
electrocuted, he acted immediately. With his
wife Jane, together with Ernesto and one Joe
Ros, Yabes passed by the City Hall of Laoag
to request the police to ask the people of
defendant Ilocos Norte Electric Company or
INELCO to cut off the electric current. Then
the party waded to the house on Guerrero
Street. The floodwater was receding and the
lights inside the house were out indicating
that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish
for the body of the deceased. The body was
recovered about two meters from an electric
post.
In another place, at about 4:00 A.M. on that
fateful date, June 29, 1967, Engineer Antonio
Juan, Power Plant Engineer of the National
Power Corporation at the Laoag DieselElectric Plant, noticed certain fluctuations in
their electric meter which indicated such

13

abnormalities as grounded or short-circuited

lines. Between 6:00 and 6:30 A.M., he set
out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded
and disconnected lines. Electric lines were
hanging from the posts to the ground. Since
he could not see any INELCO lineman, he
decided to go to the INELCO Office at the
Life Theatre on Rizal Street by way of
Guerrero. As he turned right at the
intersection of Guerrero and Rizal, he saw
an electric wire about 30 meters long strung
across the street "and the other end was
seeming to play with the current of the
water." (p. 64, TSN, Oct. 24, 1972) Finding
the Office of the INELCO still closed, and
seeing no lineman therein, he returned to the
NPC Compound.
At about 8:10 A.M., Engr. Juan went out of
the compound again on another inspection
trip. Having learned of the death of Isabel
Lao Juan, he passed by the house of the
deceased at the corner of Guerrero and M.H.
del Pilar streets to which the body had been
taken. Using the resuscitator which was a
standard equipment in his jeep and
employing the skill he acquired from an in
service training on resuscitation, he tried to
revive the deceased. His efforts proved
futile. Rigor mortis was setting in. On the left
palm of the deceased, Engr. Juan noticed a
hollow wound. Proceeding to the INELCO
Office, he met two linemen on the way. He
told them about the grounded lines of the
INELCO In the afternoon of the same day, he
went on a third inspection trip preparatory to
the restoration of power. The dangling wire
he saw on Guerrero early in the morning of
June 29, 1967 was no longer there.
Many people came to the house at the
corner of Guerrero and M.H. del Pilar after
learning that the deceased had been
electrocuted. Among the sympathizers was
Dr. Jovencio Castro, Municipal Health Officer
of Sarrat, Ilocos Norte. Upon the request of
the relatives of the deceased, Dr. Castro
examined the body at about 8:00 A.M. on
June 29, 1967. The skin was grayish or, in
medical parlance, cyanotic, which indicated
death by electrocution. On the left palm, the
doctor found an "electrically charged wound"
(Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a
first degree burn. About the base of the
thumb on the left hand was a burned wound.
(Exh. C-2, pp. 102-103, Ibid.) The certificate
of death prepared by Dr. Castro stated the
cause of' death as ,'circulatory shock
electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant

presented the testimonies of its officers and
employees, namely, Conrado Asis, electric
engineer; Loreto Abijero, collector-inspector;
Fabico Abijero, lineman; and Julio Agcaoili,
president-manager of INELCO Through the
testimonies of these witnesses, defendant
sought to prove that on and even before
June 29, 1967 the electric service system of
the INELCO in the whole franchise area,
including Area No. 9 which covered the
residence of Antonio Yabes at No. 18
Guerrero Street, did not suffer from any
defect that might constitute a hazard to life
and property. The service lines, devices and
other INELCO equipment in Area No. 9 had
been newly-installed prior to the date in
question. As a public service operator and in
line with its business of supplying electric
current to the public, defendant had installed
safety devices to prevent and avoid injuries
to persons and damage to property in case
of natural calamities such as floods,
typhoons, fire and others. Defendant had 12
linesmen charged with the duty of making a
round-the-clock check-up of the areas
respectively assigned to them.
Defendant asserts that although a strong
typhoon struck the province of Ilocos Norte
on June 29, 1967, putting to streets of Laoag
City under water, only a few known places in
Laoag were reported to have suffered
damaged electric lines, namely, at the
southern approach of the Marcos Bridge
which was washed away and where the
INELCO lines and posts collapsed; in the
eastern part near the residence of the late
Governor Simeon Mandac; in the far north
near the defendant's power plant at the
corner of Segundo and Castro Streets,
Laoag City and at the far northwest side,
near the premises of the Ilocos Norte
National High School. Fabico Abijero,
testified that in the early morning before 6
o'clock on June 29, 1967 he passed by the
intersection of Rizal and Guerrero Streets to
switch off the street lights in Area No. 9. He
did not see any cut or broken wires in or near
the vicinity. What he saw were many people
fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio
Briones was presented by the defense to
show that the deceased could not have died
of electrocution Substantially, the testimony
of the doctor is as follows: Without an
autopsy on the cadaver of the victim, no
doctor, not even a medicolegal expert, can
speculate as to the real cause of death.

14

Cyanosis could not have been found in the

body of the deceased three hours after her
death, because cyanosis which means lack
of oxygen circulating in the blood and
rendering the color of the skin purplish,
appears only in a live person. The presence
of the elongated burn in the left palm of the
deceased (Exhibits C-1 and C-2) is not
sufficient to establish her death by
electrocution; since burns caused by
electricity are more or less round in shape
and with points of entry and exit. Had the
deceased held the lethal wire for a long time,
the laceration in her palm would have been
bigger and the injury more massive. (CA
Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000
was instituted by the heirs of the deceased with the aforesaid
CFI on June 24, 1968. In its Answer (Vide, Record on Appeal,
p. 55, Rollo), petitioner advanced the theory, as a special
defense, that the deceased could have died simply either by
drowning or by electrocution due to negligence attributable only
to herself and not to petitioner. In this regard, it was pointed out
that the deceased, without petitioner's knowledge, caused the
installation of a burglar deterrent by connecting a wire from the
main house to the iron gate and fence of steel matting, thus,
charging the latter with electric current whenever the switch is
on. Petitioner then conjectures that the switch to said burglar
deterrent must have been left on, hence, causing the
deceased's electrocution when she tried to open her gate that
early morning of June 29, 1967. After due trial, the CFI found
the facts in favor of petitioner and dismissed the complaint but
awarded to the latter P25,000 in moral damages and attorney's
fees of P45,000. An appeal was filed with the CA which issued
the controverted decision.
In this petition for review the petitioner assigns the following
errors committed by the respondent CA:
1. The respondent Court of
Appeals committed grave
abuse of discretion and
error in considering the
purely hearsay alleged
declarations of Ernesto de
la Cruz as part of the res
gestae.
2. The respondent Court of
Appeals committed grave
abuse of discretion and
error in holding that the
strong typhoon "Gening"
which struck Laoag City
and Ilocos Norte on June
29, 1967 and the flood and
deluge it brought in its
wake were not fortuitous

events and did not

exonerate petitionercompany from liability for
the death of Isabel Lao
Juan.
3. The respondent Court of
Appeals gravely abused its
discretion and erred in not
applying the legal principle
of "assumption of risk" in
the present case to bar
private respondents from
collecting damages from
petitioner company.
4. That the respondent
Court of Appeals gravely
erred and abused its
discretion in completely
reversing the findings of
fact of the trial court.
5. The findings of fact of
the respondent Court of
Appeals are reversible
under the recognized
exceptions.
6. The trial court did not err
in awarding moral
damages and attorney's
fees to defendant
corporation, now petitioner
company.
7. Assuming arguendo that
petitioner company may be
held liable from the death
of the late Isabel Lao Juan,
the damages granted by
respondent Court of
Appeals are improper and
exhorbitant. (Petitioners
Memorandum, p. 133,
Rollo)
Basically, three main issues are apparent: (1) whether or not
the deceased died of electrocution; (2) whether or not
petitioner may be held liable for the deceased's death; and (3)
whether or not the respondent CA's substitution of the trial
court's factual findings for its own was proper.
In considering the first issue, it is Our view that the same be
resolved in the affirmative. By a preponderance of evidence,
private respondents were able to show that the deceased died
of electrocution, a conclusion which can be primarily derived
from the photographed burnt wounds (Exhibits "C", "C-1", "C2") on the left palm of the former. Such wounds undoubtedly

15

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

gestae, be a startling occurrence; (2) that the statements were

made before the declarant had time to contrive or devise; (3)
that the statements made must concern the occurrence in
question and its immediately attending circumstances (People
vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959).
We do not find any abuse of discretion on the CA' part in view
of the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are
admitted in evidence precisely as an exception to the hearsay
rule on the grounds of trustworthiness and necessity.
"Trustworthiness" because the statements are made
instinctively (Wesley vs. State, 53 Ala. 182), and "necessity"
because such natural and spontaneous utterances are more
convincing than the testimony of the same person on the stand
(Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the
declarant, Ernesto de la Cruz, was not presented to testify
does not make the testimony of Linda Alonzo Estavillo and
Aida Bulong hearsay since the said declaration is part of
the res gestae. Similarly, We considered part of the res
gestae a conversation between two accused immediately after
commission of the crime as overheard by a prosecution
witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's
Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an
actual witness to the instant when the deceased sank into the
waist-deep water, he acted upon the call of help of Aida Bulong
and Linda Alonzo Estavillo with the knowledge of, and
immediately after, the sinking of the deceased. In fact the
startling event had not yet ceased when Ernesto de la Cruz
entered the scene considering that the victim remained
submerged. Under such a circumstance, it is undeniable that a
state of mind characterized by nervous excitement had been
triggered in Ernesto de la Cruz's being as anybody under the
same contingency could have experienced. As such, We
cannot honestly exclude his shouts that the water was
grounded from the res gestae just because he did not actually
see the sinking of the deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion
of Ernesto de la Cruz. While We concede to the submission
that the statement must be one of facts rather than opinion, We
cannot agree to the proposition that the one made by him was
a mere opinion. On the contrary, his shout was a translation of
an actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz'
testimony was suppressed by the private respondents, thus, is
presumed to be adverse to them pursuant to Section 5(e), Rule
131. For the application of said Rule as against a party to a
case, it is necessary that the evidence alleged to be
suppressed is available only to said party (People vs. Tulale, L7233, 18 May 1955, 97 Phil. 953). The presumption does not
operate if the evidence in question is equally available to both
parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36
Phil. 421). It is clear from the records that petitioner could have
called Ernesto de la Cruz to the witness stand. This, precisely,

16

was Linda Alonzo Estavillo's suggestion to petitioner's counsel

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

early morning of June 29, 1967, Engr.

Antonio Juan of the National Power
Corporation affirmed that when he first set
out on an inspection trip between 6:00 and
6:30 A.M. on June 29, 1967, he saw
grounded and disconnected electric lines of
the defendant but he saw no INELCO
lineman. The INELCO Office at the Life
theatre on Rizal Street was still closed. (pp.
63-64, TSN, Oct. 24, 1972) Even the
witnesses of defendant contradict the finding
of the lower court. Conrado Asis, defendant's
electrical engineer, testified that he
conducted a general inspection of the
franchise area of the INELCO only on June
30, 1967, the day following the typhoon. The
reason he gave for the delay was that all
their vehicles were submerged. (p. 337,
TSN, July 20, 1973) According to Asis, he
arrived at his office at 8:00 A.M. on June
30 and after briefing his men on what to do
they started out. (p. 338, lbid) One or two
days after the typhoon, the INELCO people
heard "rumors that someone was
electrocuted" so he sent one of his men to
the place but his man reported back that
there was no damaged wire. (p. 385, Id.)
Loreto Abijero, chief lineman of defendant,
corroborated Engr. Juan. He testified that at
about 8:00 A.M. on June 29, 1967 Engr.
Juan came to the INELCO plant and asked
the INELCO people to inspect their lines. He
went with Engr. Juan and their inspection
lasted from 8:00 A.M. to 12:00 noon. (pp.
460, 465, TSN, Jan. 28, 1975) Fabico Abijero
lineman of defendant, testified that at about
6:00 on June 29, 1967 the typhoon ceased.
At that time, he was at the main building of
the Divine Word College of Laoag where he
had taken his family for refuge. (pp. 510511, Ibid.)
In times of calamities such as the one which
occurred in Laoag City on the night of June
28 until the early hours of June 29, 1967,
extraordinary diligence requires a supplier
of electricity to be in constant vigil to prevent
or avoid any probable incident that might
imperil life or limb. The evidence does not
show that defendant did that. On the
contrary, evidence discloses that there were
no men (linemen or otherwise) policing the
area, nor even manning its office. (CA
Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was
negligent in seeing to it that no harm is done to the general
public"... considering that electricity is an agency, subtle and
deadly, the measure of care required of electric companies
must be commensurate with or proportionate to the danger.

17

The duty of exercising this high degree of diligence and care

extends to every place where persons have a right to be"
(Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of
petitioner having been shown, it may not now absolve itself
from liability by arguing that the victim's death was solely due
to a fortuitous event. "When an act of God combines or
concurs with the negligence of the defendant to produce an
injury, the defendant is liable if the injury would not have
resulted but for his own negligent conduct or omission" (38 Am.
Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by
petitioner finds no application in the case at bar. It is imperative
to note the surrounding circumstances which impelled the
deceased to leave the comforts of a roof and brave the
subsiding typhoon. As testified by Linda Alonzo Estavillo (see
TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26
Sept. 1972), the deceased, accompanied by the former two,
were on their way to the latter's grocery store "to see to it that
the goods were not flooded." As such, shall We punish her for
exercising her right to protect her property from the floods by
imputing upon her the unfavorable presumption that she
assumed the risk of personal injury? Definitely not. For it has
been held that a person is excused from the force of the rule,
that when he voluntarily assents to a known danger he must
abide by the consequences, if an emergency is found to exist
or if the life or property of another is in peril (65A C.S.C.
Negligence(174(5), p. 301), or when he seeks to rescue his
endangered property (Harper and James, "The Law of Torts."
Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an
emergency was at hand as the deceased's property, a source
of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident
occurred, was at a place where she had a right to be without
regard to petitioner's consent as she was on her way to protect
her merchandise. Hence, private respondents, as heirs, may
not be barred from recovering damages as a result of the death
caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in
completely reversing the trial court's findings of fact, pointing to
the testimonies of three of its employees its electrical engineer,
collector-inspector, lineman, and president-manager to the
effect that it had exercised the degree of diligence required of it
in keeping its electric lines free from defects that may imperil
life and limb. Likewise, the said employees of petitioner
categorically disowned the fatal wires as they appear in two
photographs taken on the afternoon of June 29, 1967 (Exhs.
"D" and "E"), suggesting that said wires were just hooked to
the electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the lower
court ... was based on what the defendant's employees were
supposed to do, not on what they actually did or failed to do on
the date in question, and not on the occasion of the emergency
situation brought about by the typhoon" (CA Decision, p. 25,
Rollo). And as found by the CA, which We have already
reiterated above, petitioner was in fact negligent. In a like
manner, petitioner's denial of ownership of the several wires
cannot stand the logical conclusion reached by the CA when it
held that "(t)he nature of the wounds as described by the

witnesses who saw them can lead to no other conclusion than

that they were 'burns', and there was nothing else in the street
where the victim was wading thru which could cause a burn
except the dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due
care requires prompt efforts to discover and repair broken
lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that
when Engineer Antonio Juan of the National Power
Corporation set out in the early morning of June 29, 1967 on
an inspection tour, he saw grounded and disconnected lines
hanging from posts to the ground but did not see any INELCO
lineman either in the streets or at the INELCO office (vide, CA
Decision, supra). The foregoing shows that petitioner's duty to
exercise extraordinary diligence under the circumstance was
not observed, confirming the negligence of petitioner. To
aggravate matters, the CA found:
. . .even before June 28 the people in Laoag
were already alerted about the impending
typhoon, through radio announcements.
Even the fire department of the city
announced the coming of the big flood. (pp.
532-534, TSN, March 13, 1975) At the
INELCO irregularities in the flow of electric
current were noted because "amperes of the
switch volts were moving". And yet, despite
these danger signals, INELCO had to wait
for Engr. Juan to request that defendant's
switch be cut off but the harm was done.
Asked why the delay, Loreto Abijero
answered that he "was not the machine
tender of the electric plant to switch off the
current." (pp. 467-468, Ibid.) How very
characteristic of gross inefficiency! (CA
Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its
discretion in reversing the trial court's findings but tediously
considered the factual circumstances at hand pursuant to its
power to review questions of fact raised from the decision of
the Regional Trial Court, formerly the Court of First Instance
(see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA
awarded the following in private respondent's favor:
P30,229.45 in actual damages (i.e., P12,000 for the victim's
death and P18,229.45 for funeral expenses); P50,000 in
compensatory damages, computed in accordance with the
formula set in the Villa-Rey Transit case (31 SCRA 511) with
the base of P15,000 as average annual income of the
deceased; P10,000 in exemplary damages; P3,000 attorney's
fees; and costs of suit. Except for the award of P12,000 as
compensation for the victim's death, We affirm the respondent
CA's award for damages and attorney's fees. Pusuant to recent
jurisprudence (People vs. Mananquil, 132 SCRA 196; People
vs. Traya, 147 SCRA 381), We increase the said award of
P12,000 to P30,000, thus, increasing the total actual damages
to P48,229.45.

18

The exclusion of moral damages and attorney's fees awarded

by the lower court was properly made by the respondent CA,
the charge of malice and bad faith on the part of respondents
in instituting his case being a mere product of wishful thinking
and speculation. Award of damages and attorney's fees is
unwarranted where the action was filed in good faith; there
should be no penalty on the right to litigate (Espiritu vs. CA,
137 SCRA 50). If damage results from a person's exercising
his legal rights, it is damnum absque injuria (Auyong Hian vs.
CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent,
except for the slight modification that actual damages be
increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 129015

August 13, 2004

SAMSUNG CONSTRUCTION COMPANY PHILIPPINES,

INC., petitioner,
vs.
FAR EAST BANK AND TRUST COMPANY AND COURT OF
APPEALS, respondents.

DECISION

TINGA, J.:
Called to fore in the present petition is a classic textbook
question if a bank pays out on a forged check, is it liable to
reimburse the drawer from whose account the funds were paid
out? The Court of Appeals, in reversing a trial court decision
adverse to the bank, invoked tenuous reasoning to acquit the
bank of liability. We reverse, applying time-honored principles
of law.
The salient facts follow.
Plaintiff Samsung Construction Company Philippines, Inc.
("Samsung Construction"), while based in Bian, Laguna,
maintained a current account with defendant Far East Bank
and Trust Company1 ("FEBTC") at the latters Bel-Air, Makati
branch.2 The sole signatory to Samsung Constructions
account was Jong Kyu Lee ("Jong"), its Project
Manager,3 while the checks remained in the custody of the
companys accountant, Kyu Yong Lee ("Kyu").4
On 19 March 1992, a certain Roberto Gonzaga presented for
payment FEBTC Check No. 432100 to the banks branch in
Bel-Air, Makati. The check, payable to cash and drawn against
Samsung Constructions current account, was in the amount of
Nine Hundred Ninety Nine Thousand Five Hundred Pesos
(P999,500.00). The bank teller, Cleofe Justiani, first checked
the balance of Samsung Constructions account. After
ascertaining there were enough funds to cover the check,5 she

compared the signature appearing on the check with the

specimen signature of Jong as contained in the specimen
signature card with the bank. After comparing the two
signatures, Justiani was satisfied as to the authenticity of the
signature appearing on the check. She then asked Gonzaga to
submit proof of his identity, and the latter presented three (3)
identification cards.6
At the same time, Justiani forwarded the check to the branch
Senior Assistant Cashier Gemma Velez, as it was bank policy
that two bank branch officers approve checks exceeding One
Hundred Thousand Pesos, for payment or encashment. Velez
likewise counterchecked the signature on the check as against
that on the signature card. He too concluded that the check
was indeed signed by Jong. Velez then forwarded the check
and signature card to Shirley Syfu, another bank officer, for
approval. Syfu then noticed that Jose Sempio III ("Sempio"),
the assistant accountant of Samsung Construction, was also in
the bank. Sempio was well-known to Syfu and the other bank
officers, he being the assistant accountant of Samsung
Construction. Syfu showed the check to Sempio, who vouched
for the genuineness of Jongs signature. Confirming the identity
of Gonzaga, Sempio said that the check was for the purchase
of equipment for Samsung Construction. Satisfied with the
genuineness of the signature of Jong, Syfu authorized the
banks encashment of the check to Gonzaga.
The following day, the accountant of Samsung Construction,
Kyu, examined the balance of the bank account and
discovered that a check in the amount of Nine Hundred Ninety
Nine Thousand Five Hundred Pesos (P999,500.00) had been
encashed. Aware that he had not prepared such a check for
Jongs signature, Kyu perused the checkbook and found that
the last blank check was missing.7 He reported the matter to
Jong, who then proceeded to the bank. Jong learned of the
encashment of the check, and realized that his signature had
been forged. The Bank Manager reputedly told Jong that he
would be reimbursed for the amount of the check.8 Jong
proceeded to the police station and consulted with his
lawyers.9 Subsequently, a criminal case for qualified theft was
filed against Sempio before the Laguna court.10
In a letter dated 6 May 1992, Samsung Construction, through
counsel, demanded that FEBTC credit to it the amount of Nine
Hundred Ninety Nine Thousand Five Hundred Pesos
(P999,500.00), with interest.11 In response, FEBTC said that it
was still conducting an investigation on the matter. Unsatisfied,
Samsung Construction filed a Complaint on 10 June 1992 for
violation of Section 23 of the Negotiable Instruments Law, and
prayed for the payment of the amount debited as a result of the
questioned check plus interest, and attorneys fees.12 The case
was docketed as Civil Case No. 92-61506 before the Regional
Trial Court ("RTC") of Manila, Branch 9.13
During the trial, both sides presented their respective expert
witnesses to testify on the claim that Jongs signature was
forged. Samsung Corporation, which had referred the check for
investigation to the NBI, presented Senior NBI Document
Examiner Roda B. Flores. She testified that based on her
examination, she concluded that Jongs signature had been
forged on the check. On the other hand, FEBTC, which had
sought the assistance of the Philippine National Police
(PNP),14 presented Rosario C. Perez, a document examiner
from the PNP Crime Laboratory. She testified that her findings
showed that Jongs signature on the check was genuine.15

19

Confronted with conflicting expert testimony, the RTC chose to

believe the findings of the NBI expert. In a Decisiondated 25
April 1994, the RTC held that Jongs signature on the check
was forged and accordingly directed the bank to pay or credit
back to Samsung Constructions account the amount of Nine
Hundred Ninety Nine Thousand Five Hundred Pesos
(P999,500.00), together with interest tolled from the time the
complaint was filed, and attorneys fees in the amount of
Fifteen Thousand Pesos (P15,000.00).
FEBTC timely appealed to the Court of Appeals. On 28
November 1996, the Special Fourteenth Division of the Court
of Appeals rendered a Decision,16 reversing the
RTC Decision and absolving FEBTC from any liability. The
Court of Appeals held that the contradictory findings of the NBI
and the PNP created doubt as to whether there was
forgery.17 Moreover, the appellate court also held that assuming
there was forgery, it occurred due to the negligence of
Samsung Construction, imputing blame on the accountant Kyu
for lack of care and prudence in keeping the checks, which if
observed would have prevented Sempio from gaining access
thereto.18 The Court of Appeals invoked the ruling in PNB v.
National City Bank of New York19 that, if a loss, which must be
borne by one or two innocent persons, can be traced to the
neglect or fault of either, such loss would be borne by the
negligent party, even if innocent of intentional fraud.20
Samsung Construction now argues that the Court of Appeals
had seriously misapprehended the facts when it overturned the
RTCs finding of forgery. It also contends that the appellate
court erred in finding that it had been negligent in safekeeping
the check, and in applying the equity principle enunciated
in PNB v. National City Bank of New York.
Since the trial court and the Court of Appeals arrived at
contrary findings on questions of fact, the Court is obliged to
examine the record to draw out the correct conclusions. Upon
examination of the record, and based on the applicable laws
and jurisprudence, we reverse the Court of Appeals.
Section 23 of the Negotiable Instruments Law states:
When a signature is forged or made without the
authority of the person whose signature it purports to
be, it is wholly inoperative, and no right to retain
the instrument, or to give a discharge therefor, or to
enforce payment thereof against any party thereto,
can be acquired through or under such signature,
unless the party against whom it is sought to enforce
such right is precluded from setting up the forgery or
want of authority. (Emphasis supplied)
The general rule is to the effect that a forged signature is
"wholly inoperative," and payment made "through or under
such signature" is ineffectual or does not discharge the
instrument.21 If payment is made, the drawee cannot charge it
to the drawers account. The traditional justification for the
result is that the drawee is in a superior position to detect a
forgery because he has the makers signature and is expected
to know and compare it.22 The rule has a healthy cautionary
effect on banks by encouraging care in the comparison of the
signatures against those on the signature cards they have on
file. Moreover, the very opportunity of the drawee to insure and
to distribute the cost among its customers who use checks
makes the drawee an ideal party to spread the risk to
insurance.23

Brady, in his treatise The Law of Forged and Altered Checks,

elucidates:
When a person deposits money in a general account
in a bank, against which he has the privilege of
drawing checks in the ordinary course of business,
the relationship between the bank and the depositor is
that of debtor and creditor. So far as the legal
relationship between the two is concerned, the
situation is the same as though the bank had
borrowed money from the depositor, agreeing to
repay it on demand, or had bought goods from the
depositor, agreeing to pay for them on demand. The
bank owes the depositor money in the same sense
that any debtor owes money to his creditor. Added to
this, in the case of bank and depositor, there is, of
course, the banks obligation to pay checks drawn by
the depositor in proper form and presented in due
course. When the bank receives the deposit, it
impliedly agrees to pay only upon the depositors
order. When the bank pays a check, on which the
depositors signature is a forgery, it has failed to
comply with its contract in this respect. Therefore, the
bank is held liable.
The fact that the forgery is a clever one is immaterial.
The forged signature may so closely resemble the
genuine as to defy detection by the depositor himself.
And yet, if a bank pays the check, it is paying out its
own money and not the depositors.
The forgery may be committed by a trusted employee
or confidential agent. The bank still must bear the
loss. Even in a case where the forged check was
drawn by the depositors partner, the loss was placed
upon the bank. The case referred to is Robinson v.
Security Bank, Ark., 216 S. W. Rep. 717. In this case,
the plaintiff brought suit against the defendant bank
for money which had been deposited to the plaintiffs
credit and which the bank had paid out on checks
bearing forgeries of the plaintiffs signature.
xxx
It was held that the bank was liable. It was further held
that the fact that the plaintiff waited eight or nine
months after discovering the forgery, before notifying
the bank, did not, as a matter of law, constitute a
ratification of the payment, so as to preclude the
plaintiff from holding the bank liable. xxx
This rule of liability can be stated briefly in these
words: "A bank is bound to know its depositors
signature." The rule is variously expressed in the
many decisions in which the question has been
considered. But they all sum up to the proposition that
a bank must know the signatures of those whose
general deposits it carries.24
By no means is the principle rendered obsolete with the advent
of modern commercial transactions. Contemporary texts still
affirm this well-entrenched standard. Nickles, in his
book Negotiable Instruments and Other Related Commercial
Paper wrote, thus:

20

The deposit contract between a payor bank and its

customer determines who can draw against the
customers account by specifying whose signature is
necessary on checks that are chargeable against the
customers account. Therefore, a check drawn against
the account of an individual customer that is signed by
someone other than the customer, and without
authority from her, is not properly payable and is not
chargeable to the customers account, inasmuch as
any "unauthorized signature on an instrument is
ineffective" as the signature of the person whose
name is signed.25
Under Section 23 of the Negotiable Instruments Law, forgery is
a real or absolute defense by the party whose signature is
forged.26 On the premise that Jongs signature was indeed
forged, FEBTC is liable for the loss since it authorized the
discharge of the forged check. Such liability attaches even if
the bank exerts due diligence and care in preventing such
faulty discharge. Forgeries often deceive the eye of the most
cautious experts; and when a bank has been so deceived, it is
a harsh rule which compels it to suffer although no one has
suffered by its being deceived.27 The forgery may be so near
like the genuine as to defy detection by the depositor himself,
and yet the bank is liable to the depositor if it pays the check.28
Thus, the first matter of inquiry is into whether the check was
indeed forged. A document formally presented is presumed to
be genuine until it is proved to be fraudulent. In a forgery trial,
this presumption must be overcome but this can only be done
by convincing testimony and effective illustrations.29
In ruling that forgery was not duly proven, the Court of Appeals
held:
[There] is ground to doubt the findings of the trial court
sustaining the alleged forgery in view of the conflicting
conclusions made by handwriting experts from the
NBI and the PNP, both agencies of the government.
xxx
These contradictory findings create doubt on whether
there was indeed a forgery. In the case of TenioObsequio v. Court of Appeals, 230 SCRA 550, the
Supreme Court held that forgery cannot be presumed;
it must be proved by clear, positive and convincing
evidence.
This reasoning is pure sophistry. Any litigator worth his or her
salt would never allow an opponents expert witness to stand
uncontradicted, thus the spectacle of competing expert
witnesses is not unusual. The trier of fact will have to decide
which version to believe, and explain why or why not such
version is more credible than the other. Reliance therefore
cannot be placed merely on the fact that there are colliding
opinions of two experts, both clothed with the presumption of
official duty, in order to draw a conclusion, especially one which
is extremely crucial. Doing so is tantamount to a jurisprudential
cop-out.
Much is expected from the Court of Appeals as it occupies the
penultimate tier in the judicial hierarchy. This Court has long
deferred to the appellate court as to its findings of fact in the
understanding that it has the appropriate skill and competence
to plough through the minutiae that scatters the factual field. In

failing to thoroughly evaluate the evidence before it, and relying

instead on presumptions haphazardly drawn, the Court of
Appeals was sadly remiss. Of course, courts, like humans, are
fallible, and not every error deserves a stern rebuke. Yet, the
appellate courts error in this case warrants special attention,
as it is absurd and even dangerous as a precedent. If this
rationale were adopted as a governing standard by every court
in the land, barely any actionable claim would prosper,
defeated as it would be by the mere invocation of the existence
of a contrary "expert" opinion.
On the other hand, the RTC did adjudge the testimony of the
NBI expert as more credible than that of the PNP, and
explained its reason behind the conclusion:
After subjecting the evidence of both parties to a
crucible of analysis, the court arrived at the conclusion
that the testimony of the NBI document examiner is
more credible because the testimony of the PNP
Crime Laboratory Services document examiner
reveals that there are a lot of differences in the
questioned signature as compared to the standard
specimen signature. Furthermore, as testified to by
Ms. Rhoda Flores, NBI expert, the manner of
execution of the standard signatures used reveals that
it is a free rapid continuous execution or stroke as
shown by the tampering terminal stroke of the
signatures whereas the questioned signature is a
hesitating slow drawn execution stroke. Clearly, the
person who executed the questioned signature was
hesitant when the signature was made.30
During the testimony of PNP expert Rosario Perez, the RTC
bluntly noted that "apparently, there [are] differences on that
questioned signature and the standard signatures."31 This
Court, in examining the signatures, makes a similar finding.
The PNP expert excused the noted "differences" by asserting
that they were mere "variations," which are normal deviations
found in writing.32 Yet the RTC, which had the opportunity to
examine the relevant documents and to personally observe the
expert witness, clearly disbelieved the PNP expert. The Court
similarly finds the testimony of the PNP expert as
unconvincing. During the trial, she was confronted several
times with apparent differences between strokes in the
questioned signature and the genuine samples. Each time, she
would just blandly assert that these differences were just
"variations,"33 as if the mere conjuration of the word would
sufficiently disquiet whatever doubts about the deviations.
Such conclusion, standing alone, would be of little or no value
unless supported by sufficiently cogent reasons which might
amount almost to a demonstration.34
The most telling difference between the questioned and
genuine signatures examined by the PNP is in the final upward
stroke in the signature, or "the point to the short stroke of the
terminal in the capital letter L," as referred to by the PNP
examiner who had marked it in her comparison chart as "point
no. 6." To the plain eye, such upward final stroke consists of a
vertical line which forms a ninety degree (90) angle with the
previous stroke. Of the twenty one (21) other genuine samples
examined by the PNP, at least nine (9) ended with an upward
stroke.35 However, unlike the questioned signature, the upward
strokes of eight (8) of these signatures are looped, while the
upward stroke of the seventh36 forms a severe forty-five degree
(45) with the previous stroke. The difference is glaring, and
indeed, the PNP examiner was confronted with the
inconsistency in point no. 6.

21

Q: Now, in this questioned document point no. 6, the

"s" stroke is directly upwards.
A: Yes, sir.
Q: Now, can you look at all these standard signature
(sic) were (sic) point 6 is repeated or the last stroke
"s" is pointing directly upwards?
A: There is none in the standard signature, sir.37
Again, the PNP examiner downplayed the uniqueness of the
final stroke in the questioned signature as a mere
variation,38 the same excuse she proffered for the other marked
differences noted by the Court and the counsel for petitioner.39
There is no reason to doubt why the RTC gave credence to the
testimony of the NBI examiner, and not the PNP experts. The
NBI expert, Rhoda Flores, clearly qualifies as an expert
witness. A document examiner for fifteen years, she had been
promoted to the rank of Senior Document Examiner with the
NBI, and had held that rank for twelve years prior to her
testimony. She had placed among the top five examinees in
the Competitive Seminar in Question Document Examination,
conducted by the NBI Academy, which qualified her as a
document examiner.40She had trained with the Royal
Hongkong Police Laboratory and is a member of the
International Association for Identification.41 As of the time she
testified, she had examined more than fifty to fifty-five thousand
questioned documents, on an average of fifteen to twenty
documents a day.42 In comparison, PNP document examiner
Perez admitted to having examined only around five hundred
documents as of her testimony.43
In analyzing the signatures, NBI Examiner Flores utilized the
scientific comparative examination method consisting of
analysis, recognition, comparison and evaluation of the writing
habits with the use of instruments such as a magnifying lense,
a stereoscopic microscope, and varied lighting substances.
She also prepared enlarged photographs of the signatures in
order to facilitate the necessary comparisons.44 She compared
the questioned signature as against ten (10) other sample
signatures of Jong. Five of these signatures were executed on
checks previously issued by Jong, while the other five
contained in business letters Jong had signed.45 The NBI found
that there were significant differences in the handwriting
characteristics existing between the questioned and the
sample signatures, as to manner of execution, link/connecting
strokes, proportion characteristics, and other identifying
details.46
The RTC was sufficiently convinced by the NBI examiners
testimony, and explained her reasons in its Decisions. While
the Court of Appeals disagreed and upheld the findings of the
PNP, it failed to convincingly demonstrate why such findings
were more credible than those of the NBI expert. As a
throwaway, the assailed Decision noted that the PNP, not the
NBI, had the opportunity to examine the specimen signature
card signed by Jong, which was relied upon by the employees
of FEBTC in authenticating Jongs signature. The distinction is
irrelevant in establishing forgery. Forgery can be established
comparing the contested signatures as against those of any
sample signature duly established as that of the persons
whose signature was forged.

FEBTC lays undue emphasis on the fact that the PNP

examiner did compare the questioned signature against the
bank signature cards. The crucial fact in question is whether
or not the check was forged, not whether the bank could
have detected the forgery. The latter issue becomes
relevant only if there is need to weigh the comparative
negligence between the bank and the party whose
signature was forged.
At the same time, the Court of Appeals failed to assess the
effect of Jongs testimony that the signature on the check was
not his.47 The assertion may seem self-serving at first blush,
yet it cannot be ignored that Jong was in the best position to
know whether or not the signature on the check was his. While
his claim should not be taken at face value, any averments he
would have on the matter, if adjudged as truthful, deserve
primacy in consideration. Jongs testimony is supported by the
findings of the NBI examiner. They are also backed by factual
circumstances that support the conclusion that the assailed
check was indeed forged. Judicial notice can be taken that is
highly unusual in practice for a business establishment to draw
a check for close to a million pesos and make it payable to
cash or bearer, and not to order. Jong immediately reported the
forgery upon its discovery. He filed the appropriate criminal
charges against Sempio, the putative forger.48
Now for determination is whether Samsung Construction was
precluded from setting up the defense of forgery under Section
23 of the Negotiable Instruments Law. The Court of Appeals
concluded that Samsung Construction was negligent, and
invoked the doctrines that "where a loss must be borne by one
of two innocent person, can be traced to the neglect or fault of
either, it is reasonable that it would be borne by him, even if
innocent of any intentional fraud, through whose means it has
succeeded49 or who put into the power of the third person to
perpetuate the wrong."50 Applying these rules, the Court of
Appeals determined that it was the negligence of Samsung
Construction that allowed the encashment of the forged check.
In the case at bar, the forgery appears to have been
made possible through the acts of one Jose Sempio
III, an assistant accountant employed by the plaintiff
Samsung [Construction] Co. Philippines, Inc. who
supposedly stole the blank check and who
presumably is responsible for its encashment through
a forged signature of Jong Kyu Lee. Sempio was
assistant to the Korean accountant who was in
possession of the blank checks and who through
negligence, enabled Sempio to have access to the
same. Had the Korean accountant been more careful
and prudent in keeping the blank checks Sempio
would not have had the chance to steal a page
thereof and to effect the forgery. Besides, Sempio was
an employee who appears to have had dealings with
the defendant Bank in behalf of the plaintiff
corporation and on the date the check was encashed,
he was there to certify that it was a genuine check
issued to purchase equipment for the company.51
We recognize that Section 23 of the Negotiable Instruments
Law bars a party from setting up the defense of forgery if it is
guilty of negligence.52 Yet, we are unable to conclude that
Samsung Construction was guilty of negligence in this case.
The appellate court failed to explain precisely how the Korean
accountant was negligent or how more care and prudence on
his part would have prevented the forgery. We cannot sustain
this "tar and feathering" resorted to without any basis.

22

The bare fact that the forgery was committed by an employee

of the party whose signature was forged cannot necessarily
imply that such partys negligence was the cause for the
forgery. Employers do not possess the preternatural gift of
cognition as to the evil that may lurk within the hearts and
minds of their employees. The Courts pronouncement in PCI
Bank v. Court of Appeals53 applies in this case, to wit:
[T]he mere fact that the forgery was committed by a
drawer-payors confidential employee or agent, who
by virtue of his position had unusual facilities for
perpetrating the fraud and imposing the forged paper
upon the bank, does not entitle the bank to shift the
loss to the drawer-payor, in the absence of some
circumstance raising estoppel against the drawer.54
Admittedly, the record does not clearly establish what
measures Samsung Construction employed to safeguard its
blank checks. Jong did testify that his accountant, Kyu, kept
the checks inside a "safety box,"55 and no contrary version was
presented by FEBTC. However, such testimony cannot prove
that the checks were indeed kept in a safety box, as Jongs
testimony on that point is hearsay, since Kyu, and not Jong,
would have the personal knowledge as to how the checks were
kept.
Still, in the absence of evidence to the contrary, we can
conclude that there was no negligence on Samsung
Constructions part. The presumption remains that every
person takes ordinary care of his concerns,56 and that the
ordinary course of business has been followed.57 Negligence is
not presumed, but must be proven by him who alleges
it.58 While the complaint was lodged at the instance of
Samsung Construction, the matter it had to prove was the
claim it had alleged - whether the check was forged. It cannot
be required as well to prove that it was not negligent, because
the legal presumption remains that ordinary care was
employed.
Thus, it was incumbent upon FEBTC, in defense, to prove the
negative fact that Samsung Construction was negligent. While
the payee, as in this case, may not have the personal
knowledge as to the standard procedures observed by the
drawer, it well has the means of disputing the presumption of
regularity. Proving a negative fact may be "a difficult
office,"59 but necessarily so, as it seeks to overcome a
presumption in law. FEBTC was unable to dispute the
presumption of ordinary care exercised by Samsung
Construction, hence we cannot agree with the Court of
Appeals finding of negligence.
The assailed Decision replicated the extensive efforts which
FEBTC devoted to establish that there was no negligence on
the part of the bank in its acceptance and payment of the
forged check. However, the degree of diligence exercised by
the bank would be irrelevant if the drawer is not precluded from
setting up the defense of forgery under Section 23 by his own
negligence. The rule of equity enunciated in PNB v. National
City Bank of New York, 60 as relied upon by the Court of
Appeals, deserves careful examination.
The point in issue has sometimes been said to be that
of negligence. The drawee who has paid upon the
forged signature is held to bear the loss, because
he has been negligent in failing to recognize that
the handwriting is not that of his customer. But it
follows obviously that if the payee, holder, or

presenter of the forged paper has himself been in

default, if he has himself been guilty of a negligence
prior to that of the banker, or if by any act of his own
he has at all contributed to induce the banker's
negligence, then he may lose his right to cast the loss
upon the banker.61 (Emphasis supplied)
Quite palpably, the general rule remains that the drawee who
has paid upon the forged signature bears the loss. The
exception to this rule arises only when negligence can be
traced on the part of the drawer whose signature was forged,
and the need arises to weigh the comparative negligence
between the drawer and the drawee to determine who should
bear the burden of loss. The Court finds no basis to conclude
that Samsung Construction was negligent in the safekeeping of
its checks. For one, the settled rule is that the mere fact that
the depositor leaves his check book lying around does not
constitute such negligence as will free the bank from liability to
him, where a clerk of the depositor or other persons, taking
advantage of the opportunity, abstract some of the check
blanks, forges the depositors signature and collect on the
checks from the bank.62 And for another, in point of fact
Samsung Construction was not negligent at all since it reported
the forgery almost immediately upon discovery.63
It is also worth noting that the forged signatures in PNB v.
National City Bank of New York were not of the drawer, but of
indorsers. The same circumstance attends PNB v. Court of
Appeals,64 which was also cited by the Court of Appeals. It is
accepted that a forged signature of the drawer differs in
treatment than a forged signature of the indorser.
The justification for the distinction between forgery of
the signature of the drawer and forgery of an
indorsement is that the drawee is in a position to
verify the drawers signature by comparison with one
in his hands, but has ordinarily no opportunity to verify
an indorsement.65
Thus, a drawee bank is generally liable to its
depositor in paying a check which bears either a
forgery of the drawers signature or a forged
indorsement. But the bank may, as a general rule,
recover back the money which it has paid on a check
bearing a forged indorsement, whereas it has not this
right to the same extent with reference to a check
bearing a forgery of the drawers signature.66
The general rule imputing liability on the drawee who paid out
on the forgery holds in this case.
Since FEBTC puts into issue the degree of care it exercised
before paying out on the forged check, we might as well
comment on the banks performance of its duty. It might be so
that the bank complied with its own internal rules prior to
paying out on the questionable check. Yet, there are several
troubling circumstances that lead us to believe that the bank
itself was remiss in its duty.
The fact that the check was made out in the amount of nearly
one million pesos is unusual enough to require a higher degree
of caution on the part of the bank. Indeed, FEBTC confirms this
through its own internal procedures. Checks below twenty-five
thousand pesos require only the approval of the teller; those
between twenty-five thousand to one hundred thousand pesos
necessitate the approval of one bank officer; and should the

23

amount exceed one hundred thousand pesos, the concurrence

of two bank officers is required.67
In this case, not only did the amount in the check nearly total
one million pesos, it was also payable to cash. That latter
circumstance should have aroused the suspicion of the bank,
as it is not ordinary business practice for a check for such large
amount to be made payable to cash or to bearer, instead of to
the order of a specified person.68Moreover, the check was
presented for payment by one Roberto Gonzaga, who was not
designated as the payee of the check, and who did not carry
with him any written proof that he was authorized by Samsung
Construction to encash the check. Gonzaga, a stranger to
FEBTC, was not even an employee of Samsung
Construction.69 These circumstances are already suspicious if
taken independently, much more so if they are evaluated in
concurrence. Given the shadiness attending Gonzagas
presentment of the check, it was not sufficient for FEBTC to
have merely complied with its internal procedures, but
mandatory that all earnest efforts be undertaken to ensure the
validity of the check, and of the authority of Gonzaga to collect
payment therefor.
According to FEBTC Senior Assistant Cashier Gemma Velez,
the bank tried, but failed, to contact Jong over the phone to
verify the check.70 She added that calling the issuer or drawer
of the check to verify the same was not part of the standard
procedure of the bank, but an "extra effort."71 Even assuming
that such personal verification is tantamount to extraordinary
diligence, it cannot be denied that FEBTC still paid out the
check despite the absence of any proof of verification from the
drawer. Instead, the bank seems to have relied heavily on the
say-so of Sempio, who was present at the bank at the time the
check was presented.
FEBTC alleges that Sempio was well-known to the bank
officers, as he had regularly transacted with the bank in behalf
of Samsung Construction. It was even claimed that everytime
FEBTC would contact Jong about problems with his account,
Jong would hand the phone over to Sempio.72 However, the
only proof of such allegations is the testimony of Gemma
Velez, who also testified that she did not know Sempio
personally,73 and had met Sempio for the first time only on the
day the check was encashed.74 In fact, Velez had to inquire
with the other officers of the bank as to whether Sempio was
actually known to the employees of the bank.75 Obviously,
Velez had no personal knowledge as to the past relationship
between FEBTC and Sempio, and any averments of her to that
effect should be deemed hearsay evidence. Interestingly,
FEBTC did not present as a witness any other employee of
their Bel-Air branch, including those who supposedly had
transacted with Sempio before.
Even assuming that FEBTC had a standing habit of dealing
with Sempio, acting in behalf of Samsung Construction, the
irregular circumstances attending the presentment of the
forged check should have put the bank on the highest degree
of alert. The Court recently emphasized that the highest degree
of care and diligence is required of banks.
Banks are engaged in a business impressed with
public interest, and it is their duty to protect in return
their many clients and depositors who transact
business with them. They have the obligation to treat
their clients account meticulously and with the highest
degree of care, considering the fiduciary nature of
their relationship. The diligence required of banks,

therefore, is more than that of a good father of a

family.76
Given the circumstances, extraordinary diligence dictates that
FEBTC should have ascertained from Jong personally that the
signature in the questionable check was his.
Still, even if the bank performed with utmost diligence, the
drawer whose signature was forged may still recover from the
bank as long as he or she is not precluded from setting up the
defense of forgery. After all, Section 23 of the Negotiable
Instruments Law plainly states that no right to enforce the
payment of a check can arise out of a forged signature. Since
the drawer, Samsung Construction, is not precluded by
negligence from setting up the forgery, the general rule should
apply. Consequently, if a bank pays a forged check, it must be
considered as paying out of its funds and cannot charge the
amount so paid to the account of the depositor.77 A bank is
liable, irrespective of its good faith, in paying a forged check.78
WHEREFORE, the Petition is GRANTED. The Decision of the
Court of Appeals dated 28 November 1996 is REVERSED, and
the Decision of the Regional Trial Court of Manila, Branch 9,
dated 25 April 1994 is REINSTATED. Costs against
respondent.
SO ORDERED.
G.R. No. 118492

August 15, 2001

GREGORIO H. REYES and CONSUELO PUYATREYES, petitioners,

vs.
THE HON. COURT OF APPEALS and FAR EAST BANK
AND TRUST COMPANY, respondents.
DE LEON, JR., J.:
Before us is a petition for review of the Decision1 dated July 22,
1994 and Resolution2 dated December 29, 1994 of the Court of
Appeals3 affirming with modification the Decision4 dated
November 12, 1992 of the Regional Trial Court of Makati,
Metro Manila, Branch 64, which dismissed the complaint for
damages of petitioners spouses Gregorio H. Reyes and
Consuelo Puyat-Reyes against respondent Far East Bank and
Trust Company.
The undisputed facts of the case are as follows:
In view of the 20th Asian Racing Conference then scheduled to
be held in September, 1988 in Sydney, Australia, the Philippine
Racing Club, Inc. (PRCI, for brevity) sent four (4) delegates to
the said conference. Petitioner Gregorio H. Reyes, as vicepresident for finance, racing manager, treasurer, and director of
PRCI, sent Godofredo Reyes, the club's chief cashier, to the
respondent bank to apply for a foreign exchange demand draft
in Australian dollars.
Godofredo went to respondent bank's Buendia Branch in
Makati City to apply for a demand draft in the amount One
Thousand Six Hundred Ten Australian Dollars (AU$1,610.00)

24

payable to the order of the 20th Asian Racing Conference

Secretariat of Sydney, Australia. He was attended to by
respondent bank's assistant cashier, Mr. Yasis, who at first
denied the application for the reason that respondent bank did
not have an Australian dollar account in any bank in Sydney.
Godofredo asked if there could be a way for respondent bank
to accommodate PRCI's urgent need to remit Australian dollars
to Sydney. Yasis of respondent bank then informed Godofredo
of a roundabout way of effecting the requested remittance to
Sydney thus: the respondent bank would draw a demand draft
against Westpac Bank in Sydney, Australia (Westpac-Sydney
for brevity) and have the latter reimburse itself from the U.S.
dollar account of the respondent in Westpac Bank in New York,
U.S.A. (Westpac-New York for brevity). This arrangement has
been customarily resorted to since the 1960's and the
procedure has proven to be problem-free. PRCI and the
petitioner Gregorio H. Reyes, acting through Godofredo,
agreed to this arrangement or approach in order to effect the
urgent transfer of Australian dollars payable to the Secretariat
of the 20th Asian Racing Conference.
On July 28, 1988, the respondent bank approved the said
application of PRCI and issued Foreign Exchange Demand
Draft (FXDD) No. 209968 in the sum applied for, that is, One
Thousand Six Hundred Ten Australian Dollars (AU$ 1,610.00),
payable to the order of the 20th Asian Racing Conference
Secretariat of Sydney, Australia, and addressed to WestpacSydney as the drawee bank.1wphi1.nt
On August 10, 1988, upon due presentment of the foreign
exchange demand draft, denominated as FXDD No. 209968,
the same was dishonored, with the notice of dishonor stating
the following: "xxx No account held with Westpac." Meanwhile,
on August 16, 1988, Wespac-New York sent a cable to
respondent bank informing the latter that its dollar account in
the sum of One Thousand Six Hundred Ten Australian Dollars
(AU$ 1,610.00) was debited. On August 19, 1988, in response
to PRCI's complaint about the dishonor of the said foreign
exchange demand draft, respondent bank informed WestpacSydney of the issuance of the said demand draft FXDD No.
209968, drawn against the Wespac-Sydney and informing the
latter to be reimbursed from the respondent bank's dollar
account in Westpac-New York. The respondent bank on the
same day likewise informed Wespac-New York requesting the
latter to honor the reimbursement claim of Wespac-Sydney. On
September 14, 1988, upon its second presentment for
payment, FXDD No. 209968 was again dishonored by
Westpac-Sydney for the same reason, that is, that the
respondent bank has no deposit dollar account with the drawee
Wespac-Sydney.
On September 17, 1988 and September 18, 1988, respectively,
petitioners spouses Gregorio H. Reyes and Consuelo PuyatReyes left for Australia to attend the said racing conference.
When petitioner Gregorio H. Reyes arrived in Sydney in the
morning of September 18, 1988, he went directly to the lobby
of Hotel Regent Sydney to register as a conference delegate.
At the registration desk, in the presence of other delegates
from various member of the conference secretariat that he
could not register because the foreign exchange demand draft

for his registration fee had been dishonored for the second
time. A discussion ensued in the presence and within the
hearing of many delegates who were also registering. Feeling
terribly embarrassed and humiliated, petitioner Gregorio H.
Reyes asked the lady member of the conference secretariat
that he be shown the subject foreign exchange demand draft
that had been dishonored as well as the covering letter after
which he promised that he would pay the registration fees in
cash. In the meantime he demanded that he be given his name
plate and conference kit. The lady member of the conference
secretariat relented and gave him his name plate and
conference kit. It was only two (2) days later, or on September
20, 1988, that he was given the dishonored demand draft and
a covering letter. It was then that he actually paid in cash the
registration fees as he had earlier promised.
Meanwhile, on September 19, 1988, petitioner Consuelo
Puyat-Reyes arrived in Sydney. She too was embarassed and
humiliated at the registration desk of the conference secretariat
when she was told in the presence and within the hearing of
other delegates that she could not be registered due to the
dishonor of the subject foreign exchange demand draft. She
felt herself trembling and unable to look at the people around
her. Fortunately, she saw her husband, coming toward her. He
saved the situation for her by telling the secretariat member
that he had already arranged for the payment of the
registration fee in cash once he was shown the dishonored
demand draft. Only then was petitioner Puyat-Reyes given her
name plate and conference kit.
At the time the incident took place, petitioner Consuelo PuyatReyes was a member of the House of Representatives
representing the lone Congressional District of Makati, Metro
Manila. She has been an officer of the Manila Banking
Corporation and was cited by Archbishop Jaime Cardinal Sin
as the top lady banker of the year in connection with her
conferment of the Pro-Ecclesia et Pontifice Award. She has
also been awarded a plaque of appreciation from the Philippine
Tuberculosis Society for her extraordinary service as the
Society's campaign chairman for the ninth (9th) consecutive
year.
On November 23, 1988, the petitioners filed in the Regional
Trial Court of Makati, Metro Manila, a complaint for damages,
docketed as Civil Case No. 88-2468, against the respondent
bank due to the dishonor of the said foreign exchange demand
draft issued by the respondent bank. The petitioners claim that
as a result of the dishonor of the said demand draft, they were
exposed to unnecessary shock, social humiliation, and deep
mental anguish in a foreign country, and in the presence of an
international audience.
On November 12, 1992, the trial court rendered judgment in
favor of the defendant (respondent bank) and against the
plaintiffs (herein petitioners), the dispositive portion of which
states:
WHEREFORE, judgment is hereby rendered in favor
of the defendant, dismissing plaintiff's complaint, and

25

ordering plaintiffs to pay to defendant, on its

counterclaim, the amount of P50,000.00, as
reasonable attorney's fees. Costs against the plaintiff.
SO ORDERED.5
The petitioners appealed the decision of the trial court to the
Court of Appeals. On July 22, 1994, the appellate court
affirmed the decision of the trial court but in effect deleted the
award of attorney's fees to the defendant (herein respondent
bank) and the pronouncement as to the costs. The decretal
portion of the decision of the appellate court states:
WHEREFORE, the judgment appealed from, insofar
as it dismissed plaintiff's complaint, is hereby
AFFIRMED, but is hereby REVERSED and SET
ASIDE in all other respect. No special pronouncement
as to costs.

documentary copies of the cable message sent to

Wespac-Sydney. Hence, if there was mistake
committed by Westpac-Sydney in decoding the cable
message which caused the Bank's message to be
sent to the wrong department, the mistake was
Westpac's, not the Bank's. The Bank had done what
an ordinary prudent person is required to do in the
particular situation, although appellants expect the
Bank to have done more. The Bank having done
everything necessary or usual in the ordinary course
of banking transaction, it cannot be held liable for any
embarrassment and corresponding damage that
appellants may have incurred.7
xxx

xxx

xxx

Hence, this petition, anchored on the following assignment of

errors:
I

SO ORDERED.6
According to the appellate court, there is no basis to hold the
respondent bank liable for damages for the reason that it
exerted every effort for the subject foreign exchange demand
draft to be honored. The appellate court found and declared
that:
xxx

xxx

xxx

Thus, the Bank had every reason to believe that the

transaction finally went through smoothly, considering
that its New York account had been debited and that
there was no miscommunication between it and
Westpac-New York. SWIFT is a world wide
association used by almost all banks and is known to
be the most reliable mode of communication in the
international banking business. Besides, the above
procedure, with the Bank as drawer and WestpacSydney as drawee, and with Westpac-New York as
the reimbursement Bank had been in place since
1960s and there was no reason for the Bank to
suspect that this particular demand draft would not be
honored by Westpac-Sydney.
From the evidence, it appears that the root cause of
the miscommunications of the Bank's SWIFT
message is the erroneous decoding on the part of
Westpac-Sydney of the Bank's SWIFT message as an
MT799 format. However, a closer look at the Bank's
Exhs. "6" and "7" would show that despite what
appears to be an asterick written over the figure
before "99", the figure can still be distinctly seen as a
number "1" and not number "7", to the effect that
Westpac-Sydney was responsible for the dishonor
and not the Bank.
Moreover, it is not said asterisk that caused the
misleading on the part of the Westpac-Sydney of the
numbers "1" to "7", since Exhs. "6" and "7" are just

THE HONORABLE COURT OF APPEALS ERRED IN

FINDING PRIVATE RESPONDENT NOT
NEGLIGENT BY ERRONEOUSLY APPLYING THE
STANDARD OF DILIGENCE OF AN "ORDINARY
PRUDENT PERSON" WHEN IN TRUTH A HIGHER
DEGREE OF DILIGENCE IS IMPOSED BY LAW
UPON THE BANKS.
II
THE HONORABLE COURT OF APPEALS ERRED IN
ABSOLVING PRIVATE RESPONDENT FROM
LIABILITY BY OVERLOOKING THE FACT THAT THE
DISHONOR OF THE DEMAND DRAFT WAS A
BREACH OF PRIVATE RESPONDENT'S
WARRANTY AS THE DRAWER THEREOF.
III
THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT AS SHOWN
OVERWHELMINGLY BY THE EVIDENCE, THE
DISHONOR OF THE DEMAND DRAFT AS DUE TO
PRIVATE RESPONDENT'S NEGLIGENCE AND NOT
THE DRAWEE BANK.8
The petitioners contend that due to the fiduciary nature of the
relationship between the respondent bank and its clients, the
respondent should have exercised a higher degree of diligence
than that expected of an ordinary prudent person in the
handling of its affairs as in the case at bar. The appellate court,
according to petitioners, erred in applying the standard of
diligence of an ordinary prudent person only. Petitioners also
claim that the respondent bank violate Section 61 of the
Negotiable Instruments Law9 which provides the warranty of a
drawer that "xxx on due presentment, the instrument will be
accepted or paid, or both, according to its tenor xxx." Thus, the
petitioners argue that respondent bank should be held liable for

26

damages for violation of this warranty. The petitioners pray this

Court to re-examine the facts to cite certain instances of
negligence.
It is our view and we hold that there is no reversible error in the
decision of the appellate court.
Section 1 of Rule 45 of the Revised Rules of Court provides
that "(T)he petition (for review) shall raise only questions of
law which must be distinctly set forth." Thus, we have ruled that
factual findings of the Court of Appeals are conclusive on the
parties and not reviewable by this Court and they carry even
more weight when the Court of Appeals affirms the factual
findings of the trial court.10
The courts a quo found that respondent bank did not
misrepresent that it was maintaining a deposit account with
Westpac-Sydney. Respondent bank's assistant cashier
explained to Godofredo Reyes, representing PRCI and
petitioner Gregorio H. Reyes, how the transfer of Australian
dollars would be effected through Westpac-New York where
the respondent bank has a dollar account to Westpac-Sydney
where the subject foreign exchange demand draft (FXDD No.
209968) could be encashed by the payee, the 20th Asian
Racing Conference Secretariat. PRCI and its Vice-President
for finance, petitioner Gregorio H. Reyes, through their said
representative, agreed to that arrangement or procedure. In
other words, the petitioners are estopped from denying the said
arrangement or procedure. Similar arrangements have been a
long standing practice in banking to facilitate international
commercial transactions. In fact, the SWIFT cable message
sent by respondent bank to the drawee bank, WestpacSydney, stated that it may claim reimbursement from its New
York branch, Westpac-New York, where respondent bank has a
deposit dollar account. The facts as found by the courts a
quo show that respondent bank did not cause an erroneous
transmittal of its SWIFT cable message to Westpac-Sydney. It
was the erroneous decoding of the cable message on the part
of Westpac-Sydney that caused the dishonor of the subject
foreign exchange demand draft. An employee of WestpacSydney in Sydney, Australia mistakenly read the printed figures
in the SWIFT cable message of respondent bank as "MT799"
instead of as "MT199". As a result, Westpac-Sydney construed
the said cable message as a format for a letter of credit, and
not for a demand draft. The appellate court correct found that
"the figure before '99' can still be distinctly seen as a number '1'
and not number '7'." Indeed, the line of a "7" is in a slanting
position while the line of a "1" is in a horizontal position. Thus,
the number "1" in "MT199" cannot be construed as "7".11
The evidence also shows that the respondent bank exercised
that degree of diligence expected of an ordinary prudent
person under the circumstances obtaining. Prior to the first
dishonor of the subject foreign exchange demand draft, the
respondent bank advised Westpac-New York to honor the
reimbursement claim of Westpac-Sydney and to debit the
dollar account12 of respondent bank with the former. As soon as
the demand draft was dishonored, the respondent bank,
thinking that the problem was with the reimbursement and

without any idea that it was due to miscommunication, reconfirmed the authority of Westpac-New York to debit its dollar
account for the purpose of reimbursing WestpacSydney.13 Respondent bank also sent two (2) more cable
messages to Westpac-New York inquiring why the demand
draft was not honored.14
With these established facts, we now determine the degree of
diligence that banks are required to exert in their commercial
dealings. In Philippine Bank of Commerce v. Court of
Appeals15 upholding a long standing doctrine, we ruled that the
degree of diligence required of banks, is more than that of
a good father of a family where the fiduciary nature of their
relationship with their depositors is concerned. In other words
banks are duty bound to treat the deposit accounts of their
depositors with the highest degree of care. But the said ruling
applies only to cases where banks act under their fiduciary
capacity, that is, as depositary of the deposits of their
depositors. But the same higher degree of diligence is not
expected to be exerted by banks in commercial transactions
that do not involve their fiduciary relationship with their
depositors.
Considering the foregoing, the respondent bank was not
required to exert more than the diligence of a good father of a
family in regard to the sale and issuance of the subject foreign
exchange demand draft. The case at bar does not involve the
handling of petitioners' deposit, if any, with the respondent
bank. Instead, the relationship involved was that of a buyer and
seller, that is, between the respondent bank as the seller of the
subject foreign exchange demand draft, and PRCI as the buyer
of the same, with the 20th Asian Racing conference Secretariat
in Sydney, Australia as the payee thereof. As earlier
mentioned, the said foreign exchange demand draft was
intended for the payment of the registration fees of the
petitioners as delegates of the PRCI to the 20th Asian Racing
Conference in Sydney.
The evidence shows that the respondent bank did everything
within its power to prevent the dishonor of the subject foreign
exchange demand draft. The erroneous reading of its cable
message to Westpac-Sydney by an employee of the latter
could not have been foreseen by the respondent bank. Being
unaware that its employee erroneously read the said cable
message, Westpac-Sydney merely stated that the respondent
bank has no deposit account with it to cover for the amount of
One Thousand Six Hundred Ten Australian Dollar (AU
$1610.00) indicated in the foreign exchange demand draft.
Thus, the respondent bank had the impression that WestpacNew York had not yet made available the amount for
reimbursement to Westpac-Sydney despite the fact that
respondent bank has a sufficient deposit dollar account with
Westpac-New York. That was the reason why the respondent
bank had to re-confirm and repeatedly notify Westpac-New
York to debit its (respondent bank's) deposit dollar account with
it and to transfer or credit the corresponding amount to
Westpac-Sydney to cover the amount of the said demand draft.

27

In view of all the foregoing, and considering that the dishonor

of the subject foreign exchange demand draft is not attributable
to any fault of the respondent bank, whereas the petitioners
appeared to be under estoppel as earlier mentioned, it is no
longer necessary to discuss the alleged application of Section
61 of the Negotiable Instruments Law to the case at bar. In any
event, it was established that the respondent bank acted in
good faith and that it did not cause the embarrassment of the
petitioners in Sydney, Australia. Hence, the Court of Appeals
did not commit any reversable error in its challenged decision.

hundred twenty-one (1,921) votes as reflected in the Statement

of Votes by Precincts with Serial No. 008423 and Certificate of
Canvass with Serial No. 436156 with a difference of five
thousand seventy-seven (5,077) votes.

WHEREFORE, the petition is hereby DENIED, and the

assailed decision of the Court of Appeals is AFFIRMED. Costs
against the petitioners.

xxx

SO ORDERED.
G.R. No. 157171

March 14, 2006

ARSENIA B. GARCIA, Petitioner,

vs.
HON. COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, Respondents
DECISION
QUISUMBING, J.:
This petition seeks the review of the judgment of the Court of
Appeals in CA-G.R. CR No. 245471that affirmed the conviction
of petitioner by the Regional Trial Court2of Alaminos City,
Pangasinan, Branch 54, for violation of Section 27(b) of
Republic Act No. 6646.3

CONTRARY TO LAW.4
In a Decision dated September 11, 2000, the RTC acquitted all
the accused for insufficiency of evidence, except petitioner who
was convicted as follows:

5. And finally, on the person of Arsenia B. Garcia, the Court

pronounces her GUILTY beyond reasonable doubt, of the
crime defined under Republic Act 6646, Section 27 (b) for
decreasing the votes of Senator Pimentel in the total of 5,034
and in relation to BP Blg. 881, considering that this finding is a
violation of Election Offense, she is thus sentenced to suffer an
imprisonment of SIX (6) YEARS as maximum, but applying the
INDETERMINATE SENTENCE LAW, the minimum penalty is
the next degree lower which is SIX (6) MONTHS; however,
accused Arsenia B. Garcia is not entitled to probation; further,
she is sentenced to suffer disqualification to hold public office
and she is also deprived of her right of suffrage.
The bailbond posted by her is hereby ordered cancelled, and
the Provincial Warden is ordered to commit her person to the
Bureau of Correctional Institution for Women, at Metro Manila,
until further orders from the court.
No pronouncement as to costs.
IT IS SO ORDERED.5

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr.,

who ran in the 1995 senatorial elections, an information dated
March 30, 1998, was filed in the Regional Trial Court of
Alaminos, charging Herminio R. Romero, Renato R. Viray,
Rachel Palisoc and Francisca de Vera, and petitioner, with
violation of Section 27(b). The information reads:
That on or about May 11, 1995, which was within the
canvassing period during the May 8, 1995 elections, in the
Municipality of Alaminos, Province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, Election Officer Arsenia B. Garcia, Municipal
Treasurer Herminio R. Romero, Public School District
Supervisor Renato R. Viray, Chairman, Vice-Chairman, and
Member-Secretary, respectively, of the Municipal Board of
Canvassers of Alaminos, Pangasinan, tabulators Rachel
Palisoc and Francisca de Vera, conspiring with, confederating
together and mutually helping each other, did, then and there,
willfully, and unlawfully decrease[d] the votes received by
senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand
nine hundred ninety-eight (6,998) votes, as clearly disclosed in
the total number of votes in the one hundred fifty-nine (159)
precincts of the Statement of Votes by Precincts of said
municipality, with Serial Nos. 008417, 008418, 008419,
008420, 008421, 008422 and 008423 to one thousand nine

Petitioner appealed before the Court of Appeals which affirmed

with modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision is
hereby affirmed with modification, increasing the minimum
penalty imposed by the trial court from six (6) months to one
(1) year.
SO ORDERED.6
The Court of Appeals likewise denied the motion for
reconsideration. Hence, this appeal assigning the following as
errors of the appellate court:
I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY
THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT
HAVE BEEN SECRETARY VIRAY WHO DECREASED THE
VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY
RELIED ON WHAT THE PETITIONER DICTATED, AND THAT
IT COULD NOT HAVE ALSO BEEN THE TABULATORS

28

BECAUSE PETITIONER WAS THE ONE WHO READ THE

ADDING [MACHINE] TAPE.
II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID
NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE
IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.
III
ON THE FOURTH GROUND, NAMELY, THAT THE
PETITIONER WAS THE ONE WHO ENTERED THE
REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF
CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF
THE SECRETARY OF THE BOARD.
IV

(b) Any member of the board of election inspectors or board of

canvassers who tampers, increases, or decreases the votes
received by a candidate in any election or any member of the
board who refuses, after proper verification and hearing, to
credit the correct votes or deduct such tampered votes.
xxx
Clearly, the acts prohibited in Section 27(b) are mala in
se.12For otherwise, even errors and mistakes committed due to
overwork and fatigue would be punishable. Given the volume
of votes to be counted and canvassed within a limited amount
of time, errors and miscalculations are bound to happen. And it
could not be the intent of the law to punish unintentional
election canvass errors. However, intentionally increasing or
decreasing the number of votes received by a candidate is
inherently immoral, since it is done with malice and intent to
injure another.

THE REDUCTION OF THE VOTES OF CANDIDATE

PIMENTEL WAS CLEARLY NOT WILLFUL OR
INTENTIONAL.7

Criminal intent is presumed to exist on the part of the person

who executes an act which the law punishes, unless the
contrary shall appear.13Thus, whoever invokes good faith as a
defense has the burden of proving its existence.

Petitioner contends that (1) the Court of Appeals judgment is

erroneous, based on speculations, surmises and conjectures,
instead of substantial evidence; and (2) there was no motive on
her part to reduce the votes of private complainant.

Records show that the canvassing of votes on May 11, 1995

before the Board of Canvassers of the Municipality of
Alaminos, Pangasinan was conducted as follows:

Respondent on the other hand contends that good faith is not a

defense in the violation of an election law, which falls under the
class of mala prohibita.

1. After the votes in the 159 precincts of the

municipality of Alaminos were tallied, the results
thereof were sealed and forwarded to the Municipal
Board of Canvassers for canvassing;

The main issue is, Is a violation of Section 27(b) of Rep. Act

No. 6646, classified under mala in se or mala prohibita? Could
good faith and lack of criminal intent be valid defenses?
Generally, mala in se felonies are defined and penalized in the
Revised Penal Code. When the acts complained of are
inherently immoral, they are deemed mala in se, even if they
are punished by a special law.8Accordingly, criminal intent must
be clearly established with the other elements of the crime;
otherwise, no crime is committed. On the other hand, in crimes
that are mala prohibita, the criminal acts are not inherently
immoral but become punishable only because the law says
they are forbidden. With these crimes, the sole issue is
whether the law has been violated.9Criminal intent is not
necessary where the acts are prohibited for reasons of public
policy.10
Section 27(b) of Republic Act No. 664611provides:
SEC. 27. Election Offenses.- In addition to the prohibited acts
and election offenses enumerated in Sections 261 and 262 of
Batas Pambansa Blg. 881, as amended, the following shall be
guilty of an election offense:

2. The number of votes received by each candidate in

each precinct was then recorded in the Statement of
Votes with appellant, in her capacity as Chairman,
reading the figures appearing in the results from the
precincts and accused Viray, in his capacity as
secretary of the Board, entering the number in the
Statements of Votes as read by the appellant. Six
Statements of Votes were filled up to reflect the votes
received by each candidate in the 159 precincts of the
Municipality of Alaminos, Pangasinan.
3. After the number of votes received by each
candidate for each precincts were entered by accused
Viray in the Statements of Votes, these votes were
added by the accused Palisoc and de Vera with the
use of electrical adding machines.
4. After the tabulation by accused Palisoc and de
Vera, the corresponding machine tapes were handed
to appellant who reads the subtotal of votes received
by each candidate in the precincts listed in each
Statement of Votes. Accused Viray [then] records the
subtotal in the proper column in the Statement of
Votes.

xxx

29

5. After the subtotals had been entered by accused

Viray, tabulators accused Palisoc and de Vera added
all the subtotals appearing in all Statement of Votes.
6. After the computation, the corresponding machine
tape on which the grand total was reflected was
handed to appellant who reads the same and accused
Viray enters the figure read by appellant in the column
for grand total in the Statement of Votes.14

Public policy dictates that extraordinary diligence should be

exercised by the members of the board of canvassers in
canvassing the results of the elections. Any error on their part
would result in the disenfranchisement of the voters. The
Certificate of Canvass for senatorial candidates and its
supporting statements of votes prepared by the municipal
board of canvassers are sensitive election documents whose
entries must be thoroughly scrutinized.22
In our review, the votes in the SOV should total 6,998.23

Neither the correctness of the number of votes entered in the

Statement of Votes (SOV) for each precinct, nor of the number
of votes entered as subtotals of votes received in the precincts
listed in SOV Nos. 008417 to 008422 was raised as an issue.
At first glance, however, there is a noticeable discrepancy in
the addition of the subtotals to arrive at the grand total of votes
received by each candidate for all 159 precincts in SOV No.
008423.15The grand total of the votes for private complainant,
Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or
5,000 votes less than the number of votes private complainant
actually received. This error is also evident in the Certificate of
Canvass (COC) No. 436156 signed by petitioner, Viray and
Romero.16
During trial of this case, petitioner admitted that she was
indeed the one who announced the figure of 1,921, which was
subsequently entered by then accused Viray in his capacity as
secretary of the board.17Petitioner likewise admitted that she
was the one who prepared the COC (Exhibit A-7), though it
was not her duty. To our mind, preparing the COC even if it
was not her task, manifests an intention to perpetuate the
erroneous entry in the COC.18
Neither can this Court accept petitioners explanation that the
Board of Canvassers had no idea how the SOV (Exhibit "6")
and the COC reflected that private complainant had only 1,921
votes instead of 6,921 votes. As chairman of the Municipal
Board of Canvassers, petitioners concern was to assure
accurate, correct and authentic entry of the votes. Her failure to
exercise maximum efficiency and fidelity to her trust deserves
not only censure but also the concomitant sanctions as a
matter of criminal responsibility pursuant to the dictates of the
law.19
The fact that the number of votes deducted from the actual
votes received by private complainant, Sen. Aquilino Pimentel,
Jr. was not added to any senatorial candidate does not relieve
petitioner of liability under Section 27(b) of Rep. Act No. 6646.
The mere decreasing of the votes received by a candidate in
an election is already punishable under the said provision.20
At this point, we see no valid reason to disturb the factual
conclusions of the appellate court. The Court has consistently
held that factual findings of the trial court, as well as of the
Court of Appeals are final and conclusive and may not be
reviewed on appeal, particularly where the findings of both the
trial court and the appellate court on the matter coincide.21

As between the grand total of votes alleged to have been

received by private complainant of 6,921 votes and statement
of his actual votes received of 6,998 is a difference of 77 votes.
The discrepancy may be validly attributed to mistake or error
due to fatigue. However, a decrease of 5,000 votes as reflected
in the Statement of Votes and Certificate of Canvass is
substantial, it cannot be allowed to remain on record
unchallenged, especially when the error results from the mere
transfer of totals from one document to another.
WHEREFORE, the instant petition is DENIED. The assailed
Decision of the Court of Appeals sustaining petitioners
conviction but increasing the minimum penalty in her sentence
to one year instead of six months is AFFIRMED.
SO ORDERED.
*G.R. No. 178497

February 4, 2014

EDITA T. BURGOS, Petitioner,

vs.
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P.
TOLENTINO, MAJ. GEN. JUANITO GOMEZ, MAJ. GEN.
DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL.
MELQUIADES FELICIANO, and DIRECTOR GENERAL
OSCAR CALDERON, Respondents.
x-----------------------x
G.R. No. 183711
EDITA T. BURGOS, Petitioner,
vs.
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P.
TOLENTINO, MAJ. GEN. JUANITO GOMEZ, MAJ. GEN.
DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL.
MELQUIADES FELICIANO, and DIRECTOR GENERAL
OSCAR CALDERON, Respondents.
x-----------------------x
G.R. No. 183712
EDITA T. BURGOS, Petitioner,
vs.
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P.
TOLENTINO, MAJ. GEN. JUANITO GOMEZ, LT. COL.
MELQUIADES FELICIANO, and LT. COL. NOEL
CLEMENT, Respondents.

30

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

based on their interview with the eyewitnesses to the

abduction.

*G.R. No. 178497 is included.

G.R. No. 183713
EDITA T. BURGOS, Petitioner,
vs.
CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES, GEN. HERMOGENES ESPERON, JR.;
Commanding General of the Philippine Army, LT. GEN.
ALEXANDER YANO; and Chief of the Philippine National
Police, DIRECTOR GENERAL AVELINO RAZON,
JR., Respondents.

In this same Resolution, we also affirmed the CAs dismissal of

the petitions for Contempt and issuance of a Writ of Amparo
with respect to President Macapagal-Arroyo who was then
entitled, as President, to immunity from suit.
The March 15, 2011 CHR Report
On March 15, 2011, the CHR submitted to the Court its
Investigation Report on the Enforced Disappearance of Jonas
Burgos (CHR Report), in compliance with our June 22, 2010
Resolution. On the basis of the gathered evidence, the CHR
submitted the following findings:

RESOLUTION
BRION, J.:
We resolve in this Resolution all the pending incidents in this
case, specifically:
(a) The determination of the relevance and
advisability of the public disclosure of the documents
submitted by respondents President Gloria
Macapagal-Arroyo, Lt. Gen. Romeo P. Tolentino, Maj.
Gen. Juanito Gomez, Maj. Gen. Delfin Bangit, Lt. Col.
Noel Clement, Lt. Col. Melquiades Feliciano, Director
General Oscar Calderon, Chief of Staff of the Armed
Forces of the Philippines, Gen. Hermogenes Esperon,
Jr.; Commanding General of the Philippine Army, Lt.
Gen. Alexander Yano; and Chief of the Philippine
National Police, Director General Avelino Razon, Jr. to
this Court per paragraph III (i) of the fallo of our July 5,
2011 Resolution; and
(b) The Urgent Ex Parle Motion Ex Abundanti
Cautela1 (together with sealed attachments) filed by
petitioner Edita T. Burgos praying that the Court: (1)
order the persons named in the sealed documents
impleaded in CA-G.R. SP No. 00008-WA and G.R.
No. 183713; (2) issue a writ of Amparo on the basis of
the newly discovered evidence (the sealed
attachments to the motion); and (3) refer the cases to
the Court of Appeals (CA) for further hearings on the
newly discovered evidence.
FACTUAL ANTECEDENTS
A. The Courts June 22, 2010 Resolution
These incidents stemmed from our June 22, 2010 Resolution
referring the present case to the Commission on Human Rights
(CHR) as the Courts directly commissioned agency, tasked
with the continuation of the investigation of Jonas Joseph T.
Burgos abduction with the obligation to report its factual
findings and recommendations to this Court. This referral was
necessary as the investigation by the Philippine National
Police-Criminal Investigation and Detection Group (PNPCIDG), by the Armed Forces of the Philippines (AFP) Provost
Marshal, and even the initial CHR investigation had been less
than complete. In all of them, there were significant lapses in
the handling of the investigation. In particular, we highlighted
the PNP-CIDGs failure to identify the cartographic sketches of
two (one male and one female) of the five abductors of Jonas,

Based on the facts developed by evidence obtaining in this

case, the CHR finds that the enforced disappearance of Jonas
Joseph T. Burgos had transpired; and that his constitutional
rights to life liberty and security were violated by the
Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on that
fateful day of April 28, 2007 the forcible abduction of Jonas
Burgos by a group of about seven (7) men and a woman from
the extension portion of Hapag Kainan Restaurant, located at
the ground floor of Ever Gotesco Mall, Commonwealth Avenue,
Quezon City.
xxxx
The eyewitnesses mentioned above were Jeffrey Cabintoy
(Jeffrey) and Elsa Agasang (Elsa), who at the time of the
abduction were working as busboy and Trainee-Supervisor,
respectively, at Hapag Kainan Restaurant.
In his Sinumpaang Salaysay, Jeffrey had a clear recollection of
the face of HARRY AGAGEN BALIAGA, JR. as one of the
principal abductors, apart from the faces of the two abductors
in the cartographic sketches that he described to the police,
after he was shown by the Team the pictures in the PMA Year
Book of Batch Sanghaya 2000 and group pictures of men
taken some years thereafter.
The same group of pictures were shown to detained former
56th IB Army trooper Edmond M. Dag-uman (Dag-uman), who
also positively identified Lt. Harry Baliaga, Jr. Dagumans
Sinumpaang Salaysay states that he came to know Lt. Baliaga
as a Company Commander in the 56th IB while he was still in
the military service (with Serial No. 800693, from 1997 to 2002)
also with the 56th IB but under 1Lt. Usmalik Tayaban, the
Commander of Bravo Company. When he was arrested and
brought to the 56th IB Camp in April 2005, he did not see Lt.
Baliaga anymore at the said camp. The similar reaction that the
pictures elicited from both Jeffrey and Daguman did not pass
unnoticed by the Team. Both men always look pensive,
probably because of the pathetic plight they are in right now. It
came as a surprise therefore to the Team when they could
hardly hide their smile upon seeing the face of Baliaga, as if
they know the man very well.
Moreover, when the Team asked how certain Jeffrey was or
[sic] that it was indeed Baliaga that he saw as among those
who actually participated in Jonas abduction. Jeffrey was able
to give a graphic description and spontaneously, to boot, the
blow by blow account of the incident, including the initial

31

positioning of the actors, specially Baliaga, who even

approached, talked to, and prevented him from interfering in
their criminal act.
A Rebel-returnee (RR) named Maria Vita Lozada y Villegas
@KA MY, has identified the face of the female in the
cartographic sketch as a certain Lt. Fernando. While Lozada
refuses to include her identification of Lt. Fernando in her
Sinumpaang Salaysay for fear of a backlash, she told the Team
that she was certain it was Lt. Fernando in the cartographic
sketch since both of them were involved in counter-insurgency
operations at the 56th IB, while she was under the care of the
battalion from March 2006 until she left the 56th IB
Headquarters in October 2007. Lozadas involvement in
counter-insurgency operations together with Lt. Fernando was
among the facts gathered by the CHR Regional Office 3
Investigators, whose investigation into the enforced
disappearance of Jonas Joseph Burgos was documented by
way of an After Mission Report dated August 13, 2008.
Most if not all the actual abductors would have been identified
had it not been for what is otherwise called as evidentiary
difficulties shamelessly put up by some police and military
elites. The deliberate refusal of TJAG Roa to provide the CHR
with the requested documents does not only defy the Supreme
Court directive to the AFP but ipso facto created a disputable
presumption that AFP personnel were responsible for the
abduction and that their superiors would be found accountable,
if not responsible, for the crime committed. This observation
finds support in the disputable presumption "That evidence
willfully suppressed would be adverse if produced." (Paragraph
(e), Section 3, Rule 131 on Burden of Proof and Presumptions,
Revised Rules on Evidence of the Rules of Court of the
Philippines).
In saying that the requested document is irrelevant, the Team
has deemed that the requested documents and profiles would
help ascertain the true identities of the cartographic sketches of
two abductors because a certain Virgilio Eustaquio has claimed
that one of the intelligence operatives involved in the 2007
ERAP 5 case fits the description of his abductor.
As regards the PNP CIDG, the positive identification of former
56th IB officer Lt. HARRY A. BALIAGA, JR. as one of the
principal abductors has effectively crushed the theory of the
CIDG witnesses that the NPAs abducted Jonas. Baliagas true
identity and affiliation with the military have been established
by overwhelming evidence corroborated by detained former
Army trooper Dag-uman.
For lack of material time, the Commission will continue to
investigate the enforced disappearance of Jonas Burgos as an
independent body and pursuant to its mandate under the 1987
Constitution. Of particular importance are the identities and
locations of the persons appearing in the cartographic
sketches; the allegations that CIDG Witnesses Emerito G. Lipio
and Meliza Concepcion-Reyes are AFP enlisted personnel and
the alleged participation of Delfin De Guzman @ Ka Baste in
the abduction of Jonas Burgos whose case for Murder and
Attempted Murder was dismissed by the court for failure of the
lone witness, an army man of the 56th IB to testify against him.
Interview with Virgilio Eustaquio, Chairman of the Union
Masses for Democracy and Justice (UMDJ), revealed that the
male abductor of Jonas Burgos appearing in the cartographic
sketch was among the raiders who abducted him and four

others, identified as Jim Cabauatan, Jose Curament, Ruben

Dionisio and Dennis Ibona otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge
Advocate General (TJAG) turned down the request of the
Team for a profile of the operatives in the so-called "Erap 5"
abduction on the ground of relevancy and branded the request
as a fishing expedition per its Disposition Form dated
September 21, 2010.
Efforts to contact Virgilio Eustaquio to secure his affidavit
proved futile, as his present whereabouts cannot be
determined. And due to lack of material time, the Commission
decided to pursue the same and determine the whereabouts of
the other members of the "Erap 5" on its own time and
authority as an independent body.2
B. The Courts July 5, 2011 Resolution
On July 5, 2011, in light of the new evidence and leads the
CHR uncovered, we issued a Resolution: (1) issuing anew a
Writ of Habeas Corpus and referring the habeas corpus
petition to the CA; (2) holding in abeyance our ruling on the
merits of the Amparo aspect of the case; referring back the
same to the CA in order to allow Lt. Harry A. Baliaga, Jr. and
the present Amparo respondents to file their Comments on the
CHR Report; and ordering Lt. Baliaga to be impleaded as a
party to the Amparo petition; and (3) affirming the dismissal of
the petitioners petition for Contempt, without prejudice to the
re-filing of the contempt charge as may be warranted by the
results of the subsequent CHR investigation. To quote the
exact wording of our Resolution:
WHEREFORE, in the interest of justice and for the foregoing
reasons, we RESOLVE to:
I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CAG.R. SP No. 99839)
a. ISSUE a Writ of Habeas Corpus anew,
returnable to the Presiding Justice of the
Court of Appeals who shall immediately refer
the writ to the same Division that decided the
habeas corpus petition;
b. ORDER Lt. Harry A. Baliaga, Jr.
impleaded in CA-G.R. SP No. 99839 and
G.R. No. 183711, and REQUIRE him,
together with the incumbent Chief of Staff,
Armed Forces of the Philippines; the
incumbent Commanding General, Philippine
Army; and the Commanding Officer of the
56th IB, 7th Infantry Division, Philippine Army
at the time of the disappearance of Jonas
Joseph T. Burgos, Lt. Col. Melquiades
Feliciano, to produce the person of Jonas
Joseph T. Burgos under the terms the Court
of Appeals shall prescribe, and to show
cause why Jonas Joseph T. Burgos should
not be released from detention;
c. REFER back the petition for habeas
corpus to the same Division of the Court of
Appeals which shall continue to hear this
case after the required Returns shall have
been filed and render a new decision within

32

thirty (30) days after the case is submitted for

decision; and
d. ORDER the Chief of Staff of the Armed
Forces of the Philippines and the
Commanding General of the Philippine Army
to be impleaded as parties, separate from
the original respondents impleaded in the
petition, and the dropping or deletion of
President Gloria Macapagal-Arroyo as partyrespondent.
II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE,
CA-G.R. SP No. 100230)
e. AFFIRM the dismissal of the petitioners
petition for Contempt in CA-G.R. SP No.
100230, without prejudice to the re-filing of
the contempt charge as may be warranted
by the results of the subsequent CHR
investigation this Court has ordered; and
f. ORDER the dropping or deletion of former
President Gloria Macapagal-Arroyo as partyrespondent, in light of the unconditional
dismissal of the contempt charge against
her.
III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CAG.R. SP No. 00008-WA)
g. ORDER Lt. Harry A. Baliaga, Jr.,
impleaded in CA-G.R. SP No. 00008-WA and
G.R. No. 183713, without prejudice to similar
directives we may issue with respect to
others whose identities and participation may
be disclosed in future investigations and
proceedings;
h. DIRECT Lt. Harry A. Baliaga, Jr., and the
present Amparo respondents to file their
Comments on the CHR report with the Court
of Appeals, within a non-extendible period of
fifteen (15) days from receipt of this
Resolution.
i. REQUIRE General Roa of the Office of the
Judge Advocate General, AFP; the Deputy
Chief of Staff for Personnel, JI, AFP, at the
time of our June 22, 2010 Resolution; and
then Chief of Staff, AFP, Gen. Ricardo David,
(a) to show cause and explain to this Court,
within a non-extendible period of fifteen (15)
days from receipt of this Resolution, why
they should not be held in contempt of this
Court for their defiance of our June 22, 2010
Resolution; and (b) to submit to this Court,
within a non-extendible period of fifteen (15)
days from receipt of this Resolution, a copy
of the documents requested by the CHR,
particularly:
1) The profile and Summary of
Information and pictures of T/Sgt.
Jason Roxas (Philippine Army); Cpl.
Maria Joana Francisco (Philippine

Air Force); M/Sgt. Aron Arroyo

(Philippine Air Force); an alias T.L. all reportedly assigned with Military
Intelligence Group 15 of Intelligence
Service of the Armed Forces of the
Philippines - and 2Lt. Fernando, a
lady officer involved in the counterinsurgency operations of the 56th IB
in 2006 to 2007;
2) Copies of the records of the 2007
ERAP 5 incident in Kamuning,
Quezon City and the complete list
of the intelligence operatives
involved in that said covert military
operation, including their respective
Summary of Information and
individual pictures; and
3) Complete list of the officers,
women and men assigned at the
56th and 69th Infantry Battalion and
the 7th Infantry Division from
January 1, 2004 to June 30, 2007
with their respective profiles,
Summary of Information and
pictures; including the list of
captured rebels and rebels who
surrendered to the said camps and
their corresponding pictures and
copies of their Tactical Interrogation
Reports and the cases filed against
them, if any.
These documents shall be released
exclusively to this Court for our examination
to determine their relevance to the present
case and the advisability of their public
disclosure.
j. ORDER the Chief of Staff of the Armed
Forces of the Philippines and the
Commanding General of the Philippine Army
to be impleaded as parties, in representation
of their respective organizations, separately
from the original respondents impleaded in
the petition; and the dropping of President
Gloria Macapagal-Arroyo as partyrespondent;
k. REFER witnesses Jeffrey T. Cabintoy and
Elsa B. Agasang to the Department of
Justice for admission to the Witness
Protection Security and Benefit Program,
subject to the requirements of Republic Act
No. 6981; and
l. NOTE the criminal complaint filed by the
petitioner with the DOJ which the latter may
investigate and act upon on its own pursuant
to Section 21 of the Rule on the Writ of
Amparo.3
C. The Courts August 23, 2011 Resolution

33

On August 23, 2011, we issued a Resolution resolving among

others:
(a) to NOTE the Explanation separately filed
by Brigadier Gen. Gilberto Jose C. Roa,
Armed Forces of the Philippines (AFP),
General Ricardo A. David, Jr., AFP (ret.), and
Rear Admiral Cornelio A. dela Cruz, Jr., AFP;
xxxx
(c) to LIMIT the documents to be submitted
to this Court to those assigned at the 56th
Infantry Battalion (IB) from January 1, 2004
to June 30, 2007, and to SUBMIT these
materials within ten (10) days from notice of
this Resolution, without prejudice to the
submission of the other documents required
under the Courts July 5, 2011 Resolution,
pertaining to those assigned at the other
units of the AFP, should the relevance of
these documents be established during the
Court of Appeals hearing;
(d) to REQUIRE the submission, within ten
(10) days from notice of this Resolution, of
the Summary of Information and individual
pictures of the intelligence operatives
involved in the ERAP 5 incident, in
compliance with the Courts July 5, 2011
Resolution;
(e) to REQUIRE the submission, within ten
(10) days from notice of this Resolution, of
the profile and Summary of Information and
pictures of an alias T.L., reportedly assigned
with Military Intelligence Group 15 of the
Intelligence Service of the AFP and of a 2Lt.
Fernando, a lady officer in the counterinsurgency operations of the 56th IB in 2006
to 2007, in compliance with the Courts July
5, 2011 Resolution.4
The Respondents September 23, 2011 Manifestation and
Motion
On September 23, 2011, the respondents submitted a
Manifestation and Motion in compliance with the Courts
August 23, 2011 Resolution. Attached to this Manifestation and
Motion are the following documents:
a. The Summary of Information (SOI) of the
officers and enlisted personnel of the 56th
IB, 7th ID from January 1, 2004 to June 30,
2007;
b. The Summary of Information (SOI) of the
intelligence operatives who were involved in
the ERAP 5 incident; and
c. The Summary of Information (SOI) of 2Lt.
Fernando, who was a member of the 56th IB,
7th ID.5
D. The Courts September 6, 2011 Resolution

On August 19, 2011, the petitioner filed a Manifestation and a

Motion for Clarificatory Order praying among others that she be
allowed to examine the documents submitted to the Court
pursuant to paragraph III (i) of the Courts July 5, 2011
Resolution. In our September 6, 2011 Resolution, we resolved,
among others, to:
(3) DENY the petitioners request to be allowed to examine the
documents submitted to this Court per paragraph (i) of the fallo
of our July 5, 2011 Resolution, without prejudice to our later
determination of the relevance and of the advisability of public
disclosure of those documents/materials;6
E. The Courts October 11, 2011 Resolution
On October 11, 2011, we issued a Resolution requiring the
CHR to secure Virgilio Eustaquios affidavit, and to submit a
report of its ongoing investigation of Jonas abduction, viz:
(1) REQUIRE the Commission on Human
Rights to undertake all available measures to
obtain the affidavit of witness Virgilio
Eustaquio in connection with his allegation
that one of the male abductors of Jonas
Joseph T. Burgos, appearing in the
cartographic sketch, was among the
"raiders" who abducted him and four others,
identified as Jim Cabauatan, Jose Curament,
Ruben Dionisio and Dennis Ibona (otherwise
known as the "ERAP FIVE");
(2) DIRECT the Commission on Human
Rights to submit to this Court, within thirty
(30) days from receipt of this Resolution, a
Report, with its recommendations of its
ongoing investigation of Burgos abduction,
and the affidavit of Virgilio Eustaquio, if any,
copy furnished the petitioner, the Court of
Appeals, the incumbent Chiefs of the AFP,
the PNP and the PNP-CIDG, and all the
present respondents before the Court of
Appeals.7
F. The Courts November 29, 2011 Resolution
On November 2, 2011, we received a letter dated
October 28, 2011 from Commissioner Jose Manuel S.
Mamauag, Team Leader, CHR Special Investigation
Team, requesting photocopies of the following
documents:
i. SOI of the officers and enlisted personnel
of the 56th IB, 7th ID from January 1, 2004 to
June 30, 2007;
ii. SOI of the intelligence operatives who
were involved in the ERAP 5 incident; and
iii. SOI of 2Lt. Fernando who was a member
of the 56th IB, 7th ID.8
In our November 29, 2011 Resolution, we denied the
CHR's request considering the confidential nature of
the requested documents and because the relevance
of these documents to the present case had not been

34

established. We referred the CHR to our July 5, 2011

Resolution where we pointedly stated that these
documents shall be "released exclusively to this Court
for our examination to determine their relevance to the
present case and the advisability of their public
disclosure."9
We held that "[w]e see no reason at this time to
release these confidential documents since their
relevance to the present case has not been
established to our satisfaction. It is precisely for this
reason that we issued our October 24, 2011
Resolution and directed the CHR to submit to this
Court, within thirty (30) days from receipt of the
Resolution, a Report with its recommendations of its
ongoing investigation of Jonas Burgos abduction, and
the affidavit of Virgilio Eustaquio, if any. Simply stated,
it is only after the CHR's faithful compliance with our
October 24, 2011 Resolution that we will be able to
determine the relevance of the requested documents
to the present case."10
G. The March 20, 2012 CHR Progress Report and Eustaquios
Affidavit
On March 20, 2012, the CHR submitted its Progress Report
detailing its efforts to secure the affidavit of witness Eustaquio
in relation with his allegation that one of the male abductors of
Jonas, appearing in the cartographic sketch, was among the
raiders who abducted him and four others, identified as Jim
Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona
(otherwise known as the "ERAP FIVE"). Attached to this Report
is Eustaquios sworn affidavit dated March 16, 2012, which
pertinently stated:
1. I was one of the victims in the abduction
incident on May 22, 2006 otherwise known
as ERAP 5 and because of that, we filed a
case with the Ombudsman against
Commodore Leonardo Calderon, et al., all
then ISAFP elements, docketed as OMB-PC-06-04050-E for Arbitrary Detention,
Unlawful Arrest, Maltreatment of Prisoners,
Grave Threats, Incriminatory Machination,
and Robbery.
2. On March 16, 2012, I was approached
again by the CHR Special Investigation
Team regarding the information I have
previously relayed to them sometime in
September 2010 as to the resemblance of
the cartographic sketch of the man as
described by the two eyewitnesses Elsa
Agasang and Jeffrey Cabintoy in the
abduction case of Jonas Burgos;
3. I can say that the male abductor of Jonas
Burgos appearing in the cartographic sketch
is among the raiders who abducted me and
my four other companions because the
cartographic sketch almost exactly matched
and/or resembled to the cartographic sketch
that I also provided and described in relation
to the said incident at my rented house in
Kamuning, Quezon City on May 22, 2006.

4. I am executing this affidavit voluntarily,

freely and attest to the truth of the
foregoing.11
H. The March 18, 2013 CA Decision
On March 18, 2013, the CA issued its decision pursuant to the
Courts July 5, 2011 Resolution referring the Amparo and
Habeas Corpus aspects of the case to the CA for appropriate
hearings and ruling on the merits of the petitions.
Petition for Habeas Corpus
The CA held that the issue in the petition for habeas corpus is
not the illegal confinement or detention of Jonas, but his
enforced disappearance. Considering that Jonas was a victim
of enforced disappearance, the present case is beyond the
ambit of a petition for habeas corpus.
Petition for the Writ of Amparo
Based on its finding that Jonas was a victim of enforced
disappearance, the CA concluded that the present case falls
within the ambit of the Writ of Amparo. The CA found that the
totality of the evidence supports the petitioners allegation that
the military was involved in the enforced disappearance of
Jonas. The CA took note of Jeffrey Cabintoys positive
identification of Lt. Baliaga as one of the abductors who
approached him and told him not to interfere because the man
being arrested had been under surveillance for drugs; he also
remembered the face of Lt. Baliaga the face he identified in
the pictures because he resembles his friend Raven. The CA
also held that Lt. Baliagas alibi and corroborative evidence
cannot prevail over Cabintoys positive identification,
considering especially the absence of any indication that he
was impelled by hatred or any improper motive to testify
against Lt. Baliaga. Thus, the CA held that Lt. Baliaga was
responsible and the AFP and the PNP were accountable for
the enforced disappearance of Jonas.
Based on these considerations, the CA resolved to:
1) RECOGNIZING the abduction of Jonas Burgos as
an enforced disappearance covered by the Rule on
the Writ of Amparo;
2) With regard to authorship,
a) DECLARING Maj. Harry A. Baliaga, Jr.
RESPONSIBLE for the enforced
disappearance of Jonas Burgos; and
b) DECLARING the Armed Forces of the
Philippines and elements of the Armed
Forces of the Philippines, particularly the
Philippine Army, ACCOUNTABLE for the
enforced disappearance of Jonas Burgos;
3) DECLARING the Philippine National Police
ACCOUNTABLE for the conduct of an exhaustive
investigation of the enforced disappearance of Jonas
Burgos. To this end, the PNP through its investigative
arm, the PNP-CIDG, is directed to exercise
extraordinary diligence to identify and locate the
abductors of Jonas Burgos who are still at large and

35

to establish the link between the abductors of Jonas

Burgos and those involved in the ERAP 5 incident.
(4) DIRECTING the incumbent Chief of Staff of the
Armed Forces of the Philippines and the Director
General of the Philippine National Police, and their
successors, to ensure the continuance of their
investigation and coordination on the enforced
disappearance of Jonas Burgos until the persons
found responsible are brought before the bar of
justice;
(5) DIRECTING the Commission on Human Rights to
continue with its own independent investigation on the
enforced disappearance of Jonas Burgos with the
same degree of diligence required under the Rule on
the Writ of Amparo; and
(6) DIRECTING the Armed Forces of the Philippines
and the Philippine National Police to extend full
assistance to the Commission on Human Rights in the
conduct of the latters investigation.
The Chief of Staff, Armed Forces of the Philippines, the
Director General, Philippine National Police and the Chairman,
Commission on Human Rights are hereby DIRECTED to
submit a quarterly report to this Court on the results of their
respective investigation.
The filing of petitioners Affidavit-Complaint against Maj. Harry
A. Baliaga, Jr., et al. before the Department of Justice on June
9, 2011 is NOTED. Petitioner is DIRECTED to immediately
inform this Court of any development regarding the outcome of
the case.12
The Respondents April 3, 2013 Motion for Partial
Reconsideration
The Solicitor General, in behalf of the public respondents (the
AFP Chief of Staff and the PNP Director General), filed a
motion for partial reconsideration of the March 18, 2013 CA
decision. The motion made the following submissions:

The AFP and the Philippine Army conducted a

thorough investigation to determine the veracity of the
allegations implicating some of its officers and
personnel. After the conduct of the same, it is the
conclusion of the Armed Forces of the Philippines and
the Philippine Army, based on the evidence they
obtained, that Jonas Burgos has never been in
custody.
7. The Chief of Staff, AFP, also respectfully takes
exception to the finding of the Honorable Court
"recognizing the abduction of Jonas Burgos as an
enforced disappearance."
xxxx
That the Honorable Court found a member of the Philippine
Army or even a group of military men to be responsible for the
abduction of Jonas Burgos, does not necessarily make the
same a case of "enforced disappearance" involving the State.
There is dearth of evidence to show that the government is
involved. Respondent Baliagas alleged participation in the
abduction and his previous membership in the 56th Infantry
Battalion of the Philippine Army, by themselves, do not prove
the participation or acquiescence of the State.13
I. The CA Resolution dated May 23, 2013
On May 23, 2013, the CA issued its resolution denying the
respondents motion for partial reconsideration. The CA ruled
that as far as the PNP was concerned, its failure to elicit leads
and information from Cabintoy who witnessed Jonas abduction
is eloquent proof of its failure to exercise extraordinary
diligence in the conduct of its investigation. As far as the AFP
was concerned, the CA held that the fact that Lt. Baliaga of the
Philippine Army was positively identified as one of the
abductors of Jonas, coupled with the AFPs lack of serious
effort to conduct further investigation, spoke loudly of the AFP
leaderships accountability.
To date, the respondents have not appealed to this Court, as
provided under Section 19 of the Rule on the Writ of Amparo.14

5. x x x[T]he Director General, PNP, respectfully takes

exception to the Honorable Courts findings that the
PNP, specifically the CIDG, "failed to exercise
extraordinary diligence in the conduct of its
investigation." x x x [T]hat this Honorable Court
arrived at a conclusion different from that of the CIDG,
or accorded different credence to the statements of
the witnesses presented by the parties, does not
necessarily translate to the CIDGs failure to exercise
extraordinary diligence.

J. The Petitioners Urgent Ex Parte Motion Ex Abundanti

Cautela dated April 1, 2013

6. The Chief of Staff, AFP also takes exception to the

Honorable Courts findings that the "Chief of Staff of
the Armed Forces of the Philippines and the
Commanding General should be held accountable for
Jonas Burgos disappearance for failing to exercise
extraordinary diligence in conducting an internal
investigation on the matter. The unwillingness of the
respondent officers of the 56th IB to cooperate in the
investigation conducted by the CHR is a persuasive
proof of the alleged cover up of the militarys
involvement in the enforced disappearance of Jonas
Burgos."

The petitioner alleged that she received from a source (who

requested to remain anonymous) documentary evidence
proving that an intelligence unit of the 7th Infantry Division of
the Philippine Army and 56th Infantry Battalion, operating
together, captured Jonas on April 28, 2007 at Ever Gotesco
Mall, Commonwealth Avenue, Quezon City. This documentary
evidence consists of: (1) After Apprehension Report dated April
30, 2007; (2) Psycho Social Processing Report dated April 28,
2007; and (3) Autobiography of Jonas. The petitioner also
claimed that these are copies of confidential official reports on
file with the Philippine Army.

On April 1, 2013, the petitioner filed an Ex Parte Motion Ex

Abundanti Cautela asking the Court to: (1) order the persons
named in the sealed documents to be impleaded in CA-G.R.
SP No. 00008-WA and G.R. No. 183713; (2) issue a writ of
Amparo on the basis of the newly discovered evidence (the
sealed attachment to the motion); and (3) refer the cases to the
CA for further hearing on the newly discovered evidence.

36

i. After Apprehension Report dated April 30,

2007
This report is a photocopy consisting six
pages dated April 30, 2007, addressed to the
Commanding Officer, 7MIB, 7ID, LA, Fort
Magsaysay, NE. The report detailed the
planning and the objective of apprehending
target communist leaders, among them, one
alias "Ramon" who was captured at Ever
Gotesco Mall, Commonwealth, Quezon City
on April 28, 2007 by joint elements of the 72
MICO and S2, 56th IB. This report also listed
the names of the military personnel
belonging to task organization 72 MICO and
56th IB who conducted the operation.
ii. Psycho Social Processing Report dated
April 28, 2007
This report details Jonas abduction and
"neutralization"; the results of his
interrogation and the intelligence gathered
on his significant involvements/activities
within the CPP/NPA/NDF organization.
iii. Undated Autobiography
This autobiography narrates how Jonas
started as a student activist, his recruitment
and eventual ascent in the CPP/NPA as an
intelligence officer.
K. The Courts April 11, 2013 Resolution
In our April 11, 2013 Resolution, the Court resolved to require
the respondents to Comment on the petitioners Urgent Ex
Parte Motion Ex Abundanti Cautela and its attachments, within
ten (10) days from receipt of the Resolution. In the same
Resolution, the Court:
(1) required BGen. Roa and Lt. Gen.
Emmanuel T. Bautista to fully comply with
the terms of Section III (i) of the dispositive
portion of our July 5, 2011 Resolution within
fifteen (15) days from receipt of the
resolution;
(2) required Lt. Gen. Emmanuel T. Bautista
to submit a written assurance within fifteen
(15) days from receipt of the Resolution that
the military personnel listed in the submitted
After Apprehension Report can be located
and be served with the processes that the
Court may serve;

(5) directed the NBI to coordinate and

provide direct investigative assistance to the
CHR as it may require pursuant to the
authority granted under the Courts June 22,
2010 Resolution.15
i. The respondents Comment from the petitioners Urgent Ex
Parte Motion Ex Abundanti Cautela dated June 6, 2013
On June 6, 2013, the respondents, through the Office of the
Solicitor General, filed their comments on the petitioners
Urgent Ex Parte Motion Ex Abundanti Cautela.
First, the respondents alleged that the documents submitted by
the petitioner do not exist in the concerned military units
respective records, nor are they in the custody or possession
of their respective units. To support their allegations, the
respondents submitted the following:
a. Certification dated May 29, 2013 from Maj.
Gen. Gregorio Pio P. Catapang, Jr.
Commander, 7th Infantry Division, Philippine
Army stating that the documents16 submitted
by the petitioner "do not exist nor in the
possession/custody of this Headquarters."
b. Certification dated May 29, 2013, from Lt.
Col. Louie D.S. Villanueva, Assistant Chief of
Staff, Office of the Assistant Chief of Staff for
Personnel, G1, 7th Infantry Division,
Philippine Army stating that the documents
submitted by the petitioner "could not be
found nor do they exist in the records of this
Command."
c. Certification dated May 24, 2013 from Lt.
Col. Bernardo M. Ona, Commanding Officer,
56th Infantry Battalion, 7th Infantry Division,
Philippine Army stating that the documents
submitted by the petitioner "do not exist at
this unit."
d. Certification dated May 24, 2013 from 1Lt.
Donal S. Frias, Acting Commanding Officer,
72nd Military Intelligence Company, 7th
Military Intelligence Battalion, 7th Infantry
Division, Philippine Army stating that the
documents submitted by the petitioner "do
not exist at the records or in the possession
of this unit."17
The respondents also submitted the affidavits of Lt. Col.
Melquiades Feliciano, Maj. Allan M. Margarata and Cpl. Ruby
Benedicto, viz:
a. In his June 3, 2013 Affidavit, Col. Feliciano stated:

(3) issued a Temporary Protection Order in

favor of the petitioner and all the members of
her immediate family;
(4) directed the DOJ and the NBI to provide
security and protection to the petitioner and
her immediate family and to submit a
confidential memorandum on the security
arrangements made;

1. That I was assigned as Battalion

Commander of 56th Infantry Division, 7th
Infantry Division, PA last 17 January 2007 to
17 August 2007.
2. That I was showed a photocopy of the
After Apprehension Report dated 30 April

37

2007 wherein members of 56th IB, 7ID, PA

were included therein.
3. I vehemently oppose to (sic) the existence
of the said document and the participation of
my men listed thereat. There were no military
operations that I have authorized or
approved regarding Jonas Burgos. The
contents thereof are false and utter
fabrication of facts.
b. In his May 31, 2013 Affidavit, Maj. Margarata stated:
1. That I was assigned at 72nd Military
Intelligence Company (72MICO), 7th Infantry
Division, PA from 01 July 2006 to 01 July
2008.
2. That I was showed a photocopy of the
Psycho-Social Processing Report dated 28
April 2007 and After Apprehension Report
dated 30 April 2007, both of which
purportedly came from 72MICO, 7th Infantry
Division, Philippine Army and that on the last
page of the Pyscho-Social Processing
Report appears my name therein.
3. I vehemently oppose to (sic) the existence
of the said documents and the implication of
my name in the said documents. The
contents thereof are purely a product of wild
imagination. I have never seen such
document until now.
4. I can only surmise that these are plainly a
fishing expedition on the part of Mrs. Edita
Burgos. A ploy to implicate any military
personnel especially those belonging to the
7th Infantry Division, Philippine Army.
c. In her May 31, 2013 Affidavit, Cpl. Benedicto stated:
1. That I was never assigned at 72nd Military
Intelligence Company, 7th Infantry Division,
PA.
2. That I was showed a photocopy of the
Psycho-Social Processing Report dated 28
April 2007 and After Apprehension Report
dated 30 April 2007, both of which
purportedly came from 72MICO, 7th Infantry
Division, Philippine Army and that on the last
page of the Psycho-Social Processing
Report appears my name therein.
3. I vehemently oppose to (sic) the existence
of the said documents and the implication of
my name in the said documents. The
contents thereof are false and utter
fabrication of facts. How can I ever be at
72MICO if I was never assigned thereat.
4. I have never been an interrogator in my
entire military service. I have never been a
member of any operation which involves the

name of Jonas Burgos or any other military

operation for that matter. I have never seen
such document until now.
5. Furthermore, I have never worked with
Maj. Allan Margarata or of his unit,
72MICO.18
Second, the respondents note that none of the documents
submitted by the petitioner were signed; a writ of Amparo
cannot be issued and the investigation cannot progress on the
basis of false documents and false information.
Lastly, the respondents argue that since the National Bureau of
Investigation (NBI) and CHR are conducting their own
investigations of the case, the petitioners motion at this point is
premature; the proceedings to be conducted by the CA will be
at the very least redundant.
ii. The Respondents Compliance dated June 7, 2013
On June 7, 2013, the respondents, through the Office of Judge
Advocate General, complied with our April 11, 2013 Resolution
by submitting the following documents:
a. Profile/Summary of Information (SOI) with
pictures of the personnel of 56th Infantry
Battalion (IB), 69th IB, and 7th Infantry
Division, Philippine Army (PA). These
documents were submitted by the 7th ID in
sealed nine (9) small and three (3) big boxes
(total of twelve (12) sealed boxes);
b. Investigation Report of the Intelligence
Service, Armed Forces of the Philippines
(ISAFP) on the 2007 "ERAP 5" incident in
Kamuning, Quezon City; Profile/Summary of
Information (SOI) with pictures of the Intel
Operatives involved in the "ERAP 5"
incident; and certification issued by the
Command Adjutant of ISAFP concerning
T/Sgt. Jason Roxas (Philippine Army), Cpl.
Maria Joana Francisco (Philippine Air Force),
M/Sgt. Aron Arroyo (Philippine Air Force), an
alias T.L., all reportedly assigned with the
Military Intelligence Group 15 of the
Intelligence Service, AFP (MIG 15, ISAFP).
These documents were submitted by ISAFP
in a sealed envelope;
c. Profile/Summary of Information (SOI) with
a picture of 2LT Fernando PA. This
document was submitted by Deputy Chief of
Staff for Personnel, G1, PA in a sealed
envelope;
d. A certification issued by 56IB and 69IB,
7ID, PA concerning captured/surrendered
rebels;
e. A certification stating the present location
and whereabouts of military personnel listed
in the submitted After Apprehension Report,
dated April 30, 2007, allegedly identified as
members of the Task Organization -72 MICO
and 56th IB with the inclusion of four (4)

38

separate certifications from Commander,

7ID, PA, Office of the Assistant Chief of Staff
for Personnel, G1, 7ID, PA, Commanding
Officer, 72 MICO, and 56Ib, 71ID, PA,
respectively, stating the non-existence of the
following documents: Psycho-Social
Processing Report dated 28 April 2007;
After-Apprehension Report dated 30 April
2007; Autobiography of Jonas Burgos; and
Picture of Jonas Burgos;
f. Affidavit of Compliance of General
Emmanuel T. Bautista, AFP, the Chief of
Staff, assuring that the active military
personnel mentioned in the purported
apprehension report can be located at their
given locations and be served with the
processes that may be issued by the
Honorable Court.19
OUR RULING
A. On the relevancy and disclosure of the documents
submitted to this Court per paragraph III(i) of the fallo of our
July 5, 2011 Resolution
The directive for the submission of the above-mentioned
documents arose from our determination in our June 22, 2010
Resolution that the PNP-CIDG failed to identify the
cartographic sketches of two (one male and one female) of the
five abductors of Jonas, based on their interview with
eyewitnesses to the abduction. For this reason, the Court
directly commissioned the CHR to continue the investigation of
Jonas abduction and the gathering of evidence.
Based on its March 15, 2011 Report, the CHR uncovered a
lead a claim made by Eustaquio, Chairman of the Union
Masses for Democracy and Justice, that the male abductor of
Jonas appearing in the cartographic sketch was among the
raiders who abducted him and four others, known as the
"ERAP FIVE."
This prompted the CHR to request copies of the documents
embodied in par. III(i) of the fallo of the Courts July 5, 2011
Resolution from General Gilberto Jose C. Roa of the Office of
the Judge Advocate General, AFP. Gen. Roa initially denied
this request but eventually complied with the Courts directive
of July 5, 2011 to submit the documents via the September 23,
2011 Manifestation and Motion and the June 7, 2013
Compliance. In the same July 5, 2011 Resolution, the Court
made it plain that these documents shall be released
exclusively to the Court for its examination to determine their
relevance to the present case and the advisability of their
public disclosure.

to him by the CHR was among the raiders who abducted him
and his four companions because it resembled the
cartographic sketch he described in relation to the ERAP FIVE
incident on May 22, 2006.
After reviewing the submissions of both the respondents20 and
the CHR21 pursuant to the Courts July 5, 2011, August 23,
2011 and October 11, 2011 Resolutions, we resolve to grant
the CHR access to these requested documents to allow them
the opportunity to ascertain the true identities of the persons
depicted in the cartographic sketches.
At this point, we emphasize that the sworn affidavit of
Eustaquio (that attests to the resemblance of one of Jonas
abductors to the abductors of the ERAP FIVE) constitutes the
sought-after missing link that establishes the relevance of the
requested documents to the present case. We note that this
lead may help the CHR ascertain the identities of those
depicted in the cartographic sketches as two of Jonas
abductors (one male and one female) who, to this day, remain
unidentified.
In view of the sensitive and confidential nature of the requested
documents, we direct the Clerk of Court of the Supreme Court
to allow the duly-authorized representatives of the CHR to
inspect the requested documents in camera within five (5) days
from receipt of this Resolution.
The documents shall be examined and compared with the
cartographic sketches of the two abductors of Jonas, without
copying and without bringing the documents outside the
premises of the Office of the Clerk of Court of the Supreme
Court. The inspection of the documents shall be within office
hours and for a reasonable period of time sufficient to allow the
CHR to comprehensively investigate the lead provided by
Eustaquio.
To fully fulfill the objective of the Rule on the Writ of Amparo,
further investigation using the standard of extraordinary
diligence should be undertaken by the CHR to pursue the lead
provided by Eustaquio. We take judicial notice of the ongoing
investigation being conducted by the Department of Justice
(DOJ), through the NBI, on the disappearance of Jonas.22 In
this regard, we direct the NBI to coordinate and provide direct
investigative assistance to the CHR as the latter may require,
pursuant to the authority granted under the Courts June 22,
2010 Resolution.
For this purpose, we require the CHR to submit a supplemental
investigation report to the DOJ, copy furnished the petitioner,
the NBI, the incumbent Chiefs of the AFP, the PNP and the
PNP-CIDG, and all the respondents within sixty days (60) days
from receipt of this Resolution.
B. On the Urgent Ex Parte Motion Ex Abundanti Cautela

Pursuant to the Courts October 11, 2011 Resolution, the CHR

submitted its March 20, 2012 Progress Report on its continuing
investigation of Jonas abduction. Attached to this Progress
Report was Virgilio Eustaquios sworn affidavit stating that: (1)
he was one of the victims of the abduction incident on May 22,
2006, otherwise known as the "ERAP FIVE" incident; (2) as a
result of this incident, they filed a case with the Ombudsman
against Commodore Leonardo Calderon and other members of
the Intelligence Service, AFP (ISAFP) for arbitrary detention,
unlawful arrest, maltreatment of prisoners, grave threats,
incriminatory machination and robbery; and (3) the male
abductor of Jonas appearing in the cartographic sketch shown

After reviewing the newly discovered evidence submitted by

the petitioner and considering all the developments of the case,
including the March 18, 2013 CA decision that confirmed the
validity of the issuance of the Writ of Amparo in the present
case, we resolve to deny the petitioners Urgent Ex Parte
Motion Ex Abundanti Cautela.
We note and conclude, based on the developments highlighted
above, that the beneficial purpose of the Writ of Amparo has
been served in the present case. As we held in Razon, Jr. v.

39

Tagitis,23 the writ merely embodies the Courts directives to

police agencies to undertake specified courses of action to
address the enforced disappearance of an individual. The Writ
of Amparo serves both a preventive and a curative role. It is
curative as it facilitates the subsequent punishment of
perpetrators through the investigation and remedial action that
it directs.24The focus is on procedural curative remedies rather
than on the tracking of a specific criminal or the resolution of
administrative liabilities. The unique nature of Amparo
proceedings has led us to define terms or concepts specific to
what the proceedings seek to achieve. In Razon Jr., v.
Tagitis,25 we defined what the terms "responsibility" and
"accountability" signify in an Amparo case. We said:
Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall
craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the
level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the
enforced disappearance.26
In the present case, while Jonas remains missing, the series of
calculated directives issued by the Court outlined above and
the extraordinary diligence the CHR demonstrated in its
investigations resulted in the criminal prosecution of Lt.
Baliaga. We take judicial notice of the fact that the Regional
Trial Court, Quezon City, Branch 216, has already found
probable cause for arbitrary detention against Lt. Baliaga and
has ordered his arrest in connection with Jonas
disappearance.27
We also emphasize that the CA in its March 18, 2013 decision
already ruled with finality on the entities responsible and
accountable (as these terms are defined in Razon, Jr. v.
Tagitis) for the enforced disappearance of Jonas. In its March
18, 2013 decision, the CA found, by substantial evidence, that
Lt. Baliaga participated in the abduction on the basis of
Cabintoys positive identification that he was one of the
abductors of Jonas who told him not to interfere because the
latter had been under surveillance for drugs. In the same
Decision, the CA also held the AFP and the PNP accountable
for having failed to discharge the burden of extraordinary
diligence in the investigation of the enforced disappearance of
Jonas. Thus, the CA issued the following directives to address
the enforced disappearance of Jonas:
(1) DIRECT the PNP through its investigative arm, the
PNP-CIDG, to identify and locate the abductors of
Jonas Burgos who are still at large and to establish
the link between the abductors of Jonas Burgos and
those involved in the ERAP 5 incident;
(2) DIRECT the incumbent Chief of Staff of the Armed
Forces of the Philippines and the Director General of
the Philippines National Police, and their successors,
to ensure the continuance of their investigation and
coordination on the enforced disappearance of Jonas

Burgos until the persons found responsible are

brought before the bar of justice;
(3) DIRECT the Commission on Human Rights to
continue with its own independent investigation on the
enforced disappearance of Jonas Burgos with the
same degree of diligence required under the Rule on
the Writ of Amparo;
(4) DIRECT the Armed Forces of the Philippines and
the Philippine National Police to extend full assistance
to the Commission on Human Rights in the conduct of
the latters investigation; and
(5) DIRECT the Chief of Staff, Armed Forces of the
Philippines, the Director General, Philippine National
Police and the Chairman, Commission on Human
Rights to submit a quarterly report to the Court on the
results of their respective investigation.28
We note that the respondents did not appeal the March 18,
2013 CA decision and the May 23, 2013 CA resolution denying
their motion for partial reconsideration.
Based on the above considerations, in particular, the final
ruling of the CA that confirmed the validity of the issuance of
the Writ of Amparo and its determination of the entities
responsible for the enforced disappearance of Jonas, we
resolve to deny the petitioners prayer to issue the writ of
Amparo anew and to refer the case to the CA based on the
newly discovered evidence. We so conclude as the petitioners
request for the reissuance of the writ and for the rehearing of
the case by the CA would be redundant and superfluous in light
of: (1) the ongoing investigation being conducted by the DOJ
through the NBI; (2) the CHR investigation directed by the
Court in this Resolution; and (3) the continuing investigation
directed by the CA in its March 18, 2013 decision.
We emphasize that while the Rule on the Writ of Amparo
accords the Court a wide latitude in crafting remedies to
address an enforced disappearance, it cannot (without violating
the nature of the writ of Amparo as a summary remedy that
provides rapid judicial relief) grant remedies that would
complicate and prolong rather than expedite the investigations
already ongoing. Note that the CA has already determined with
finality that Jonas was a victim of enforced disappearance.
We clarify that by denying the petitioners motion, we do not
thereby rule on the admissibility or the merits of the newly
discovered evidence submitted by the petitioner. We likewise
do not foreclose any investigation by the proper investigative
and prosecutory agencies of the other entities whose identities
and participation in the enforced disappearance of Jonas may
be disclosed in future investigations and proceedings.
Considering that the present case has already reached the
prosecution stage, the petitioners motion should have been
filed with the proper investigative and prosecutory agencies of
the government.
To expedite proceedings, we refer the petitioners motion, this
Resolution and its covered cases to the DOJ for investigation,
for the purpose of filing the appropriate criminal charges in the
proper courts against the proper parties, if warranted, based on
the gathered evidence. For this purpose, we direct the
petitioner to furnish the DOJ and the NBI copies of her Urgent
Ex Parte Motion Ex Abundanti Cautela, together with the

40

sealed attachments to the Motion, within five (5) days from

receipt of this Resolution.
As mentioned, we take judicial notice of the ongoing
investigation by the DOJ, through the NBI, of the
disappearance of Jonas. This DOJ investigation is without
prejudice to the Office of the Ombudsmans exercise of its
primary jurisdiction over the investigation of the criminal aspect
of this case should the case be determined to be cognizable by
the Sandiganbayan.29
As we direct below, further investigation for purposes of the
present proceedings shall continue to be undertaken by the
CHR, in close coordination with the NBI, for the completion of
the investigation under the terms of our June 22, 2010
Resolution and the additional directives under the present
Resolution.
As a final note, we emphasize that our ROLE in a writ of
Amparo proceeding is merely to determine whether an
enforced disappearance has taken place; to determine who is
responsible or accountable; and to define and impose the
appropriate remedies to address the disappearance.1wphi1
As shown above, the beneficial purpose of the Writ of Amparo
has been served in the present case with the CAs final
determination of the persons responsible and accountable for
the enforced disappearance of Jonas and the commencement
of criminal action against Lt. Baliaga. At this stage, criminal,
investigation and prosecution proceedings are already beyond
the reach of the Writ of Amparo proceeding now before us.

cartographic sketches of the two abductors of Jonas

Burgos without copying and bringing the documents
outside the premises of the Office of the Clerk of
Court of the Supreme Court. The inspection of the
documents shall be conducted within office hours and
for a reasonable period of time that would allow the
Commission on Human Rights to comprehensively
investigate the lead provided by Virgilio Eustaquio;
(5) DIRECT the National Bureau of Investigation to
coordinate and provide direct investigative assistance
to the Commission on Human Rights as the latter may
require, pursuant to the authority granted under the
Court's June 22, 2010 Resolution.
(6) REQUIRE the Commission on Human Rights to
submit a supplemental investigation report to the
Department of Justice, copy furnished the petitioner,
the National Bureau of Investigation, the incumbent
Chiefs of the Armed Forces of the Philippines, the
Philippine National Police and the Philippine National
Police-Criminal Investigation and Detection Group,
and all the respondents, within sixty (60) days from
receipt of this Resolution.
(7) DECLARE this Writ of Amparo proceeding closed
and terminated, without prejudice to the concerned
parties' compliance with the above directives and
subject to the Court's continuing jurisdiction to enforce
compliance with this Resolution.
SO ORDERED.

Based on the above developments, we now hold that the full

extent of the remedies envisioned by the Rule on the Writ of
Amparo has been served and exhausted.
Considering the foregoing, the Court RESOLVES to:
(1) DENY petitioner Edita Burgos Urgent Ex Parte
Motion Ex Abundanti Cautela;
(2) REFER the petitioners Urgent Ex Parte Motion Ex
Abundanti Cautela, this Resolution and its covered
cases to the Department of Justice for investigation
for the purpose of filing the appropriate criminal
charges in the proper courts against the proper
parties if such action is warranted by the gathered
evidence. The referral to the Department of Justice is
without prejudice to the Office of the Ombudsmans
exercise of its primary jurisdiction over the
investigation should the case be determined to be
cognizable by the Sandiganbayan;
(3) DIRECT the petitioner to furnish the Department of
Justice and the National Bureau of Investigation
copies of her Urgent Ex Parte Motion Ex Abundanti
Cautela, together with the sealed attachments to the
Motion, within five (5) days from receipt of this
Resolution;
(4) DIRECT the Clerk of Court of the Supreme Court
to allow the duly-authorized representatives of the
Commission on Human Rights to inspect the
requested documents in camera within five (5) days
from receipt of this Resolution. For this purpose, the
documents shall be examined and compared with the

G.R. No. 108017 April 3, 1995

MARIA BENITA A. DULAY, in her own behalf and in behalf
of the minor children KRIZTEEN ELIZABETH, BEVERLY
MARIE and NAPOLEON II, all surnamed DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON.
TEODORO P. REGINO, in his capacity as Presiding Judge
of the Regional Trial Court National Capital Region,
Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND
SECURITY CO., INC., and SUPERGUARD SECURITY
CORPORATION, respondents.

BIDIN, J.:
This petition for certiorari prays for the reversal of the decision
of the Court of Appeals dated October 29, 1991 in CA-G.R. CV
No. 24646 which affirmed the order of the Regional Trial Court
dismissing Civil Case No. Q-89-1751, and its resolution dated
November 17, 1991 denying herein, petitioner's motion for
reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno
Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang
Sa Alabang," Alabang Village, Muntinlupa as a result of which

41

Benigno Torzuela, the security guard on duty at the said

carnival, shot and killed Atty. Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the deceased
Napoleon Dulay, in her own behalf and in behalf of her minor
children, filed on February 8, 1989 an action for damages
against Benigno Torzuela and herein private respondents
Safeguard Investigation and Security Co., Inc.,
("SAFEGUARD") and/or Superguard Security Corp.
("SUPERGUARD"), alleged employers of defendant Torzuela.
The complaint, docketed as Civil Case No. Q-89-1751 among
others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION
AND SECURITY CO., INC., (Defendant
Safeguard) and SUPERGUARD SECURITY
CORPORATION (Defendant Superguard)
are corporations duly organized and existing
in accordance with Philippine laws, with
offices at 10th Floor, Manufacturers Building,
Inc., Plaza Santa Cruz, Manila. They are
impleaded as alternative defendants for,
while the former appears to be the employer
of defendant BENIGNO TORZUELA
(defendant TORZUELA), the latter impliedly
acknowledged responsibility for the acts of
defendant TORZUELA by extending its
sympathies to plaintiffs.
Defendant BENIGNO TORZUELA is of legal
age, an employee of defendant
SAFEGUARD and/or defendant
SUPERGUARD and, at the time of the
incident complained of, was under their
control and supervision. . . .
3. On December 7, 1988 at around 8:00
a.m., defendant TORZUELA, while he was
on duty as security guard at the "Big Bang sa
Alabang," Alabang Village, Muntinlupa, Metro
Manila shot and killed NAPOLEON V.
DULAY with a .38 caliber revolver belonging
to defendant SAFEGUARD, and/or
SUPERGUARD (per Police Report dated
January 7, 1989, copy attached as Annex A);
4. The incident resulting in the death of
NAPOLEON V. DULAY was due to the
concurring negligence of the defendants.
Defendant TORZUELA'S wanton and
reckless discharge of the firearm issued to
him by defendant SAFEGUARD and/or
SUPERGUARD was the immediate and
proximate cause of the injury, while the
negligence of defendant SAFEGUARD
and/or SUPERGUARD consists in its having
failed to exercise the diligence of a good

father of a family in the supervision and

control of its employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and
exemplary damages, and attorney's fees. The said Civil Case
No. Q-89-1751 was raffled to Branch 84 of the Regional Trial
Court of Quezon City, presided by respondent Judge Teodoro
Regino.
On March 2, 1989, private respondent SUPERGUARD filed a
Motion to Dismiss on the ground that the complaint does not
state a valid cause of action. SUPERGUARD claimed that
Torzuela's act of shooting Dulay was beyond the scope of his
duties, and that since the alleged act of shooting was
committed with deliberate intent (dolo), the civil liability therefor
is governed by Article 100 of the Revised Penal Code, which
states:
Art. 100. Civil liability of a person guilty of a
felony. Every person criminally liable for a
felony is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint
for damages based on negligence under Article 2176 of the
New Civil Code, such as the one filed by petitioners, cannot lie,
since the civil liability under Article 2176 applies only to quasioffenses under Article 365 of the Revised Penal Code. In
addition, the private respondent argued that petitioners' filing of
the complaint is premature considering that the conviction of
Torzuela in a criminal case is a condition sine qua non for the
employer's subsidiary liability (Rollo, p. 55-59).
Respondent SAFEGUARD also filed a motion praying that it be
excluded as defendant on the ground that defendant Torzuela
is not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of
action against the private respondents is based on their liability
under Article 2180 of the New Civil Code, which provides:
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 an industry.
xxx xxx xxx

42

(Emphasis supplied)
Petitioners contended that a suit against alternative defendants
is allowed under Rule 3, Section 13 of the Rules of Court.
Therefore, the inclusion of private respondents as alternative
defendants in the complaint is justified by the following: the
Initial Investigation Report prepared by Pat. Mario Tubon
showing that Torzuela is an employee of SAFEGUARD; and
through overt acts, SUPERGUARD extended its sympathies to
petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989 charging
Benigno Torzuela with homicide was filed before the Regional
Trial Court of Makati and was docketed as Criminal Case No.
89-1896.
On April 13, 1989, respondent Judge Regino issued an order
granting SUPERGUARD'S motion to dismiss and
SAFEGUARD'S motion for exclusion as defendant. The
respondent judge held that the complaint did not state facts
necessary or sufficient to constitute a quasi-delict since it does
not mention any negligence on the part of Torzuela in shooting
Napoleon Dulay or that the same was done in the performance
of his duties. Respondent judge ruled that mere allegations of
the concurring negligence of the defendants (private
respondents herein) without stating the facts showing such
negligence are mere conclusions of law (Rollo, p. 106).
Respondent judge also declared that the complaint was one for
damages founded on crimes punishable under Articles 100 and
103 of the Revised Penal Code as distinguished from those
arising from, quasi-delict. The dispositive portion of the order
dated April 13, 1989 states:
WHEREFORE, this Court holds that in view
of the material and ultimate facts alleged in
the verified complaint and in accordance with
the applicable law on the matter as well as
precedents laid down by the Supreme Court,
the complaint against the alternative
defendants Superguard Security Corporation
and Safeguard Investigation and Security
Co., Inc., must be and (sic) it is hereby
dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court and
petitioners' motion for reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist
that quasi-delicts are not limited to acts of negligence but also
cover acts that are intentional and voluntary, citing Andamo v.
IAC (191 SCRA 195 [1990]). Thus, petitioners insist that
Torzuela' s act of shooting Napoleon Dulay constitutes a quasidelict actionable under Article 2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the New
Civil Code, private respondents are primarily liable for their
negligence either in the selection or supervision of their
employees. This liability is independent of the employee's own
liability for fault or negligence and is distinct from the subsidiary

civil liability under Article 103 of the Revised Penal Code. The
civil action against the employer may therefore proceed
independently of the criminal action pursuant to Rule 111
Section 3 of the Rules of Court. Petitioners submit that the
question of whether Torzuela is an employee of respondent
SUPERGUARD or SAFEGUARD would be better resolved
after trial.
Moreover, petitioners argue that Torzuela's act of shooting
Dulay is also actionable under Article 33 of the New Civil Code,
to wit:
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. (Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of the
Rules of Court which provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed
independently In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines, the independent
civil action which has been reserved may be
brought by the offended party, shall proceed
independently of the criminal action, and
shall require only a preponderance of
evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held to
include consummated, frustrated and attempted homicide.
Thus, petitioners maintain that Torzuela's prior conviction is
unnecessary since the civil action can proceed independently
of the criminal action. On the other hand, it is the private
respondents' argument that since the act was not committed
with negligence, the petitioners have no cause of action under
Articles 2116 and 2177 of the New Civil Code. The civil action
contemplated in Article 2177 is not applicable to acts
committed with deliberate intent, but only applies to quasioffenses under Article 365 of the Revised Penal Code.
Torzuela's act of shooting Atty. Dulay to death, aside from
being purely personal, was done with deliberate intent and
could not have been part of his duties as security guard. And
since Article 2180 of the New Civil Code covers only: acts done
within the scope of the employee's assigned tasks, the private
respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for
homicide for the fatal shooting of Napoleon Dulay. Rule 111 of
the Rules on Criminal Procedure provides:

43

Sec. 1. Institution of criminal and civil

actions. When a criminal action is instituted,
the civil action for the recovery of civil liability
is impliedly instituted with the criminal
action, unless the offended party waives the
civil action , reserves his right to institute it
separately or institutes the civil action prior
to the criminal action.
Such civil action includes recovery of
indemnity under the Revised Penal Code,
and damages under Articles 32, 33, 34, and
2176 of the Civil Code of the Philippines
arising from the same act or omission of the
accused. (Emphasis supplied)
It is well-settled that the filing of an independent civil action
before the prosecution in the criminal action presents evidence
is even far better than a compliance with the requirement of
express reservation (Yakult Philippines v. Court of Appeals,
190 SCRA 357 [1990]). This is precisely what the petitioners
opted to do in this case. However, the private respondents
opposed the civil action on the ground that the same is
founded on a delict and not on a quasi-delict as the shooting
was not attended by negligence. What is in dispute therefore is
the nature of the petitioner's cause of action.
The nature of a cause of action is determined by the facts
alleged in the complaint as constituting the cause of action
(Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of
an action or suit and the law to govern it is to be determined
not by the claim of the party filing the action, made in his
argument or brief, but rather by the complaint itself, its
allegations and prayer for relief. (De Tavera v. Philippine
Tuberculosis Society, 112 SCRA 243 [1982]). An examination
of the complaint in the present case would show that the
plaintiffs, petitioners herein, are invoking their right to recover
damages against the private respondents for their vicarious
responsibility for the injury caused by Benigno Torzuela's act of
shooting and killing Napoleon Dulay, as stated in paragraphs 1
and 2 of the complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission
causes damage to another, there being fault
or negligence, is obliged to pay for the
damage done. Such fault or negligence, if
there is no pre-existing contractual relation
between the parties is called a quasi-delict
and is governed by the provisions of this
Chapter.

Contrary to the theory of private respondents, there is no

justification for limiting the scope of Article 2176 of the Civil
Code to acts or omissions resulting from negligence. Wellentrenched is the doctrine that article 2176 covers not only acts
committed with negligence, but also acts which are voluntary
and intentional. As far back as the definitive case of Elcano v.
Hill (77 SCRA 98 [1977]), this Court already held that:
. . . Article 2176, where it refers to "fault or
negligence," covers not only acts "not
punishable by law" but also acts criminal in
character; whether intentional and voluntary
or negligent. Consequently, a separate civil
action against the offender in a criminal act,
whether or not he is criminally prosecuted
and found guilty or acquitted, provided that
the offended party is not allowed, if he is
actually charged also criminally, to recover
damages on both scores, and would be
entitled in such eventuality only to the bigger
award of the two, assuming the awards
made in the two cases vary. In other words,
the extinction of civil liability referred to in
Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the
civil liability for the same act considered as
quasi-delict only and not as a crime is not
extinguished even by a declaration in the
criminal case that the criminal act charged
has not happened or has not been
committed by the accused. Briefly stated, We
here hold, in reiteration of Garcia, that culpa
aquiliana includes voluntary and negligent
acts which may be punishable by law.
(Emphasis supplied)
The same doctrine was echoed in the case of Andamo v.
Intermediate Appellate Court (191 SCRA 195 [1990]), wherein
the Court held:
Article 2176, whenever it refers to "fault or
negligence," covers not only acts criminal in
character, whether intentional and voluntary
or negligent. Consequently, a civil action lies
against the offender in a criminal act,
whether or not he is prosecuted or found
guilty or acquitted, provided that the offended
party is not allowed, (if the tortfeasor is
actually also charged criminally), to recover
damages on both scores, and would be
entitled in such eventuality only to the bigger
award of the two, assuming the awards
made in the two cases vary. [citing Virata v.
Ochoa, 81 SCRA 472] (Emphasis supplied)
Private respondents submit that the word "intentional" in
the Andamo case is inaccurate obiter, and should be read as
"voluntary" since intent cannot be coupled with negligence as

44

defined by Article 365 of the Revised Penal Code. In the

absence of more substantial reasons, this Court will not disturb
the above doctrine on the coverage of Article 2176.
Private respondents further aver that Article 33 of the New Civil
Code applies only to injuries intentionally committed pursuant
to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that
the actions for damages allowed thereunder are ex-delicto.
However, the term "physical injuries" in Article 33 has already
been construed to include bodily injuries causing death
(Capuno v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil.
638 [1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not
the crime of physical injuries defined in the Revised Penal
Code. It includes not only physical injuries but also
consummated, frustrated, and attempted homicide (Madeja v.
Caro, 126 SCRA 293 [1983]). Although in the Marcia case
(supra), it was held that no independent civil action may be
filed under Article 33 where the crime is the result of criminal
negligence, it must be noted however, that Torzuela, the
accused in the case at bar, is charged with homicide, not with
reckless imprudence, whereas the defendant in Marcia was
charged with reckless imprudence. Therefore, in this case, a
civil action based on Article 33 lies.
Private respondents also contend that their liability is
subsidiary under the Revised Penal Code; and that they are
not liable for Torzuela's act which is beyond the scope of his
duties as a security guard. It having been established that the
instant action is not ex-delicto, petitioners may proceed directly
against Torzuela and the private respondents. Under Article
2180 of the New Civil Code as aforequoted, when an injury is
caused by the negligence of the employee, there instantly
arises a presumption of law that there was negligence on the
part of the master or employer either in the selection of the
servant or employee, or in supervision over him after selection
or both (Layugan v. Intermediate Appellate Court, 167 SCRA
363 [1988]). The liability of the employer under Article 2180 is
direct and immediate; it is not conditioned upon prior recourse
against the negligent employee and a prior showing of the
insolvency of such employee (Kapalaran Bus Lines v.
Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent
upon the private respondents to prove that they exercised the
diligence of a good father of a family in the selection and
supervision of their employee.
Since Article 2176 covers not only acts of negligence but also
acts which are intentional and voluntary, it was therefore
erroneous on the part of the trial court to dismiss petitioner's
complaint simply because it failed to make allegations of
attendant negligence attributable to private respondents.
With respect to the issue of whether the complaint at hand
states a sufficient cause of action, the general rule is that the
allegations in a complaint are sufficient to constitute a cause of
action against the defendants if, admitting the facts alleged, the
court can render a valid judgment upon the same in
accordance with the prayer therein. A cause of action exist if
the following elements are present, namely: (1) a right in favor
of the plaintiff by whatever means and under whatever law it

arises or is created; (2) an obligation on the part of the named

defendant to respect or not to violate such right; and (3) an act
or omission on the part of such defendant violative of the right
of the plaintiff or constituting a breach of the obligation of the
defendant to the plaintiff for which the latter may maintain an
action for recovery of damages (Del Bros Hotel Corporation v.
CA, 210 SCRA 33 [1992]); Development Bank of the
Philippines v. Pundogar, 218 SCRA 118 [1993])
This Court finds, under the foregoing premises, that the
complaint sufficiently alleged an actionable breach on the part
of the defendant Torzuela and respondents SUPERGUARD
and/or SAFEGUARD. It is enough that the complaint alleged
that Benigno Torzuela shot Napoleon Dulay resulting in the
latter's death; that the shooting occurred while Torzuela was on
duty; and that either SUPERGUARD and/or SAFEGUARD was
Torzuela's employer and responsible for his acts. This does not
operate however, to establish that the defendants below are
liable. Whether or not the shooting was actually reckless and
wanton or attended by negligence and whether it was actually
done within the scope of Torzuela's duties; whether the private
respondents SUPERGUARD and/or SAFEGUARD failed to
exercise the diligence of a good father of a family; and whether
the defendants are actually liable, are questions which can be
better resolved after trial on the merits where each party can
present evidence to prove their respective allegations and
defenses. In determining whether the allegations of a complaint
are sufficient to support a cause of action, it must be borne in
mind that the complaint does not have to establish or allege the
facts proving the existence of a cause of action at the outset;
this will have to be done at the trial on the merits of the case
(Del Bros Hotel Corporation v. CA, supra). If the allegations in
a complaint can furnish a sufficient basis by which the
complaint can be maintained, the same should not be
dismissed regardless of the defenses that may be assessed by
the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992]
citing Consolidated Bank & Trust Corporation v. Court of
Appeals, 197 SCRA 663 [1991]). To sustain a motion to
dismiss for lack of cause of action, the complaint must show
that the claim for relief does not exist rather than that a claim
has been defectively stated, is ambiguous, indefinite or
uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]). Since
the petitioners clearly sustained an injury to their rights under
the law, it would be more just to allow them to present evidence
of such injury.
WHEREFORE, premises considered, the petition for review is
hereby GRANTED. The decision of the Court of Appeals as
well as the Order of the Regional Trial Court dated April 13,
1989 are hereby REVERSED and SET ASIDE. Civil Case No.
Q-89-1751 is remanded to the Regional Trial Court for trial on
the merits. This decision is immediately executory.
SO ORDERED.
G.R. No. 190696

August 3, 2010

ROLITO CALANG and PHILTRANCO SERVICE

ENTERPRISES, INC., Petitioners,

45

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
BRION, J.:
We resolve the motion for reconsideration filed by the
petitioners, Philtranco Service Enterprises, Inc. (Philtranco)
and Rolito Calang, to challenge our Resolution of February 17,
2010. Our assailed Resolution denied the petition for review on
certiorari for failure to show any reversible error sufficient to
warrant the exercise of this Courts discretionary appellate
jurisdiction.
Antecedent Facts
At around 2:00 p.m. of April 22, 1989, Rolito Calang was
driving Philtranco Bus No. 7001, owned by Philtranco along
Daang Maharlika Highway in Barangay Lambao, Sta.
Margarita, Samar when its rear left side hit the front left portion
of a Sarao jeep coming from the opposite direction. As a result
of the collision, Cresencio Pinohermoso, the jeeps driver, lost
control of the vehicle, and bumped and killed Jose Mabansag,
a bystander who was standing along the highways shoulder.
The jeep turned turtle three (3) times before finally stopping at
about 25 meters from the point of impact. Two of the jeeps
passengers, Armando Nablo and an unidentified woman, were
instantly killed, while the other passengers sustained serious
physical injuries.
The prosecution charged Calang with multiple homicide,
multiple serious physical injuries and damage to property thru
reckless imprudence before the Regional Trial Court (RTC),
Branch 31, Calbayog City. The RTC, in its decision dated May
21, 2001, found Calang guilty beyond reasonable doubt of
reckless imprudence resulting to multiple homicide, multiple
physical injuries and damage to property, and sentenced him to
suffer an indeterminate penalty of thirty days of arresto menor,
as minimum, to four years and two months of prision
correccional, as maximum. The RTC ordered Calang and
Philtranco, jointly and severally, to pay P50,000.00 as death
indemnity to the heirs of Armando; P50,000.00 as death
indemnity to the heirs of Mabansag; and P90,083.93 as actual
damages to the private complainants.

The petitioners appealed the RTC decision to the Court of

Appeals (CA), docketed as CA-G.R. CR No. 25522. The CA, in
its decision dated November 20, 2009, affirmed the RTC
decision in toto. The CA ruled that petitioner Calang failed to
exercise due care and precaution in driving the Philtranco bus.
According to the CA, various eyewitnesses testified that the
bus was traveling fast and encroached into the opposite lane
when it evaded a pushcart that was on the side of the road. In
addition, he failed to slacken his speed, despite admitting that
he had already seen the jeep coming from the opposite
direction when it was still half a kilometer away. The CA further
ruled that Calang demonstrated a reckless attitude when he
drove the bus, despite knowing that it was suffering from loose
compression, hence, not roadworthy.
The CA added that the RTC correctly held Philtranco jointly
and severally liable with petitioner Calang, for failing to prove
that it had exercised the diligence of a good father of the family
to prevent the accident.
The petitioners filed with this Court a petition for review on
certiorari. In our Resolution dated February 17, 2010, we
denied the petition for failure to sufficiently show any reversible
error in the assailed decision to warrant the exercise of this
Courts discretionary appellate jurisdiction.
The Motion for Reconsideration
In the present motion for reconsideration, the petitioners claim
that there was no basis to hold Philtranco jointly and severally
liable with Calang because the former was not a party in the
criminal case (for multiple homicide with multiple serious
physical injuries and damage to property thru reckless
imprudence) before the RTC.
The petitioners likewise maintain that the courts below
overlooked several relevant facts, supported by documentary
exhibits, which, if considered, would have shown that Calang
was not negligent, such as the affidavit and testimony of
witness Celestina Cabriga; the testimony of witness Rodrigo
Bocaycay; the traffic accident sketch and report; and the
jeepneys registration receipt. The petitioners also insist that
the jeeps driver had the last clear chance to avoid the collision.
We partly grant the motion.
Liability of Calang
We see no reason to overturn the lower courts finding on
Calangs culpability. The finding of negligence on his part by
the trial court, affirmed by the CA, is a question of fact that we
cannot pass upon without going into factual matters touching
on the finding of negligence. In petitions for review on certiorari
under Rule 45 of the Revised Rules of Court, this Court is
limited to reviewing only errors of law, not of fact, unless the
factual findings complained of are devoid of support by the
evidence on record, or the assailed judgment is based on a
misapprehension of facts.

46

Liability of Philtranco
We, however, hold that the RTC and the CA both erred in
holding Philtranco jointly and severally liable with Calang. We
emphasize that Calang was charged criminally before the RTC.
Undisputedly, Philtranco was not a direct party in this case.
Since the cause of action against Calang was based on delict,
both the RTC and the CA erred in holding Philtranco jointly and
severally liable with Calang, based on quasi-delict under
Articles 21761 and 21802 of the Civil Code. Articles 2176 and
2180 of the Civil Code pertain to the vicarious liability of an
employer for quasi-delicts that an employee has committed.
Such provision of law does not apply to civil liability arising
from delict.
If at all, Philtrancos liability may only be subsidiary. Article 102
of the Revised Penal Code states the subsidiary civil liabilities
of innkeepers, tavernkeepers and proprietors of
establishments, as follows:

their duties; and (4) the execution against the latter has not
been satisfied due to insolvency. The determination of these
conditions may be done in the same criminal action in which
the employees liability, criminal and civil, has been
pronounced, in a hearing set for that precise purpose, with due
notice to the employer, as part of the proceedings for the
execution of the judgment.4
WHEREFORE, we PARTLY GRANT the present motion. The
Court of Appeals decision that affirmed in toto the RTC
decision, finding Rolito Calang guilty beyond reasonable doubt
of reckless imprudence resulting in multiple homicide, multiple
serious physical injuries and damage to property, is
AFFIRMED, with the MODIFICATION that Philtrancos liability
should only be subsidiary. No costs.
SO ORDERED.
G.R. No. L-12986

March 31, 1966

In default of the persons criminally liable, innkeepers,

tavernkeepers, and any other persons or corporations shall be
civilly liable for crimes committed in their establishments, in all
cases where a violation of municipal ordinances or some
general or special police regulations shall have been
committed by them or their employees.1avvphil

THE SPOUSES BERNABE AFRICA and SOLEDAD C.

AFRICA, and the HEIRS OF DOMINGA ONG, petitionersappellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT
OF APPEALS, respondents-appellees.

Innkeepers are also subsidiary liable for the restitution of goods

taken by robbery or theft within their houses from guests
lodging therein, or for the payment of the value thereof,
provided that such guests shall have notified in advance the
innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore
have followed the directions which such innkeeper or his
representative may have given them with respect to the care of
and vigilance over such goods. No liability shall attach in case
of robbery with violence against or intimidation of persons
unless committed by the innkeepers employees.

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

The foregoing subsidiary liability applies to employers,

according to Article 103 of the Revised Penal Code, which
reads:
The subsidiary liability established in the next preceding article
shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
The provisions of the Revised Penal Code on subsidiary
liability Articles 102 and 103 are deemed written into the
judgments in cases to which they are applicable. Thus, in the
dispositive portion of its decision, the trial court need not
expressly pronounce the subsidiary liability of the
employer.3 Nonetheless, before the employers subsidiary
liability is enforced, adequate evidence must exist establishing
that (1) they are indeed the employers of the convicted
employees; (2) they are engaged in some kind of industry; (3)
the crime was committed by the employees in the discharge of

MAKALINTAL., J.:
This case is before us on a petition for review of the decision of
the Court of Appeals, which affirmed that of the Court of First
Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the
old Civil Code. It appears that in the afternoon of March 18,
1948 a fire broke out at the Caltex service station at the corner
of Antipolo street and Rizal Avenue, Manila. It started while
gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank
where the nozzle of the hose was inserted. The fire spread to
and burned several neighboring houses, including the personal
properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and
Mateo Boquiren, the first as alleged owner of the station and
the second as its agent in charge of operation. Negligence on
the part of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners
failed to prove negligence and that respondents had exercised
due care in the premises and with respect to the supervision of
their employees.
The first question before Us refers to the admissibility of certain
reports on the fire prepared by the Manila Police and Fire

47

Departments and by a certain Captain Tinio of the Armed

Forces of the Philippines. Portions of the first two reports are
as follows:
1. Police Department report:
Investigation disclosed that at about 4:00
P.M. March 18, 1948, while Leandro Flores
was transferring gasoline from a tank truck,
plate No. T-5292 into the underground tank
of the Caltex Gasoline Station located at the
corner of Rizal Avenue and Antipolo Street,
this City, an unknown Filipino lighted a
cigarette and threw the burning match stick
near the main valve of the said underground
tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro
Flores in pulling off the gasoline hose
connecting the truck with the underground
tank prevented a terrific explosion. However,
the flames scattered due to the hose from
which the gasoline was spouting. It burned
the truck and the following accessorias and
residences.
2. The Fire Department report:

ground that they were hearsay and that they were "irrelevant,
immaterial and impertinent." Indeed, in the court's resolution
only Exhibits J, K, K-5 and X-6 were admitted without
objection; the admission of the others, including the disputed
ones, carried no such explanation.
On the second point, although Detective Capacillo did take the
witness stand, he was not examined and he did not testify as to
the facts mentioned in his alleged report (signed by Detective
Zapanta). All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he need be
cross-examined; and the contents of the report, as to which he
did not testify, did not thereby become competent evidence.
And even if he had testified, his testimony would still have been
objectionable as far as information gathered by him from third
persons was concerned.
Petitioners maintain, however, that the reports in themselves,
that is, without further testimonial evidence on their contents,
fall within the scope of section 35, Rule 123, which provides
that "entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."

In connection with their allegation that the premises

was (sic) subleased for the installation of a coca-cola
and cigarette stand, the complainants furnished this
Office a copy of a photograph taken during the fire
and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola
cooler and a rack which according to information
gathered in the neighborhood contained cigarettes
and matches, installed between the gasoline pumps
and the underground tanks.

There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or
by another person specially enjoined by law to do so; (b) that it
was made by the public officer in the performance of his duties,
or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3
[1957] p. 398).

The report of Captain Tinio reproduced information given by a

certain Benito Morales regarding the history of the gasoline
station and what the chief of the fire department had told him
on the same subject.

Of the three requisites just stated, only the last need be

considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted
the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts
the sources thereof are not even identified. Others are
attributed to Leopoldo Medina, referred to as an employee at
the gas station were the fire occurred; to Leandro Flores, driver
of the tank truck from which gasoline was being transferred at
the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to
Exhibit V-Africa, give any reason as to the origin of the fire. To
qualify their statements as "official information" acquired by the
officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for
record.1

The foregoing reports were ruled out as "double hearsay" by

the Court of Appeals and hence inadmissible. This ruling is
now assigned as error. It is contended: first, that said reports
were admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report
(Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine
him although they had the opportunity to do so; and thirdly, that
in any event the said reports are admissible as an exception to
the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The
transcript of the hearing of September 17, 1953 (pp. 167-170)
shows that the reports in question, when offered as evidence,
were objected to by counsel for each of respondents on the

The reports in question do not constitute an exception to the

hearsay rule; the facts stated therein were not acquired by the

48

reporting officers through official information, not having been

given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the
cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part
of appellees. Both the trial court and the appellate court
refused to apply the doctrine in the instant case on the grounds
that "as to (its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not prohibit its
adoption in appropriate cases, "in the case at bar, however, we
find no practical use for such doctrine." The question deserves
more than such summary dismissal. The doctrine has actually
been applied in this jurisdiction, in the case of Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No. 3240-R,
September 20, 1949), wherein the decision of the Court of
Appeals was penned by Mr. Justice J.B.L. Reyes now a
member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiffappellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the
province of Laguna, with clear weather and without
any wind blowing, an electric transmission wire,
installed and maintained by the defendant Philippine
Power and Development Co., Inc. alongside the road,
suddenly parted, and one of the broken ends hit the
head of the plaintiff as he was about to board the
truck. As a result, plaintiff received the full shock of
4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge
coursed through his body and caused extensive and
serious multiple burns from skull to legs, leaving the
bone exposed in some parts and causing intense pain
and wounds that were not completely healed when
the case was tried on June 18, 1947, over one year
after the mishap.
The defendant therein disclaimed liability on the ground that
the plaintiff had failed to show any specific act of negligence,
but the appellate court overruled the defense under the
doctrine of res ipsa loquitur. The court said:

The first point is directed against the sufficiency of

plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that
in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to
establish that the proximate cause of his injury was
the negligence of the defendant, it is also a
recognized principal that "where the thing which
caused injury, without fault of the injured person, is
under the exclusive control of the defendant and the
injury is such as in the ordinary course of things does
not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's
want of care."
And the burden of evidence is shifted to him to
establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v. Requena,
244, U.S. 89, 56 L. ed. 680.) This rule is known by the
name of res ipsa loquitur (the transaction speaks for
itself), and is peculiarly applicable to the case at bar,
where it is unquestioned that the plaintiff had every
right to be on the highway, and the electric wire was
under the sole control of defendant company. In the
ordinary course of events, electric wires do not part
suddenly in fair weather and injure people, unless
they are subjected to unusual strain and stress or
there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of
the warehouse windows to injure passersby, unless
some one was negligent. (Byrne v. Boadle, 2 H & Co.
722; 159 Eng. Reprint 299, the leading case that
established that rule). Consequently, in the absence
of contributory negligence (which is admittedly not
present), the fact that the wire snapped suffices to
raise a reasonable presumption of negligence in its
installation, care and maintenance. Thereafter, as
observed by Chief Baron Pollock, "if there are any
facts inconsistent with negligence, it is for the
defendant to prove."
It is true of course that decisions of the Court of Appeals do not
lay down doctrines binding on the Supreme Court, but we do
not consider this a reason for not applying the particular
doctrine of res ipsa loquitur in the case at bar. Gasoline is a
highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not
considered a fortuitous event, as it arises almost invariably
from some act of man. A case strikingly similar to the one
before Us is Jones vs. Shell Petroleum Corporation, et al., 171
So. 447:
Arthur O. Jones is the owner of a building in the city of
Hammon which in the year 1934 was leased to the
Shell Petroleum Corporation for a gasoline filling
station. On October 8, 1934, during the term of the
lease, while gasoline was being transferred from the
tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a

49

fire started with resulting damages to the building

owned by Jones. Alleging that the damages to his
building amounted to $516.95, Jones sued the Shell
Petroleum Corporation for the recovery of that
amount. The judge of the district court, after hearing
the testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit
reversed this judgment, on the ground the testimony
failed to show with reasonable certainty any
negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees.
Plaintiff applied to this Court for a Writ of Review
which was granted, and the case is now before us for
decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of
Louisiana held:
Plaintiff's petition contains two distinct charges of
negligence one relating to the cause of the fire and
the other relating to the spreading of the gasoline
about the filling station.
Other than an expert to assess the damages caused
plaintiff's building by the fire, no witnesses were
placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to
the cause of the fire, we find it established by the
record that the filling station and the tank truck were
under the control of the defendant and operated by its
agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that
fire started in the underground tank attached to the
filling station while it was being filled from the tank
truck and while both the tank and the truck were in
charge of and being operated by the agents or
employees of the defendant, extended to the hose
and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the
building owned by the plaintiff.
Predicated on these circumstances and the further
circumstance of defendant's failure to explain the
cause of the fire or to show its lack of knowledge of
the cause, plaintiff has evoked the doctrine of res ipsa
loquitur. There are many cases in which the doctrine
may be successfully invoked and this, we think, is one
of them.
Where the thing which caused the injury complained
of is shown to be under the management of defendant
or his servants and the accident is such as in the
ordinary course of things does not happen if those
who have its management or control use proper care,
it affords reasonable evidence, in absence of
explanation by defendant, that the accident arose
from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has

been widely approved and adopted by the courts of
last resort. Some of the cases in this jurisdiction in
which the doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann. 1153,
25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111
La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep.
505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38
So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with
equal force here. The gasoline station, with all its appliances,
equipment and employees, was under the control of appellees.
A fire occurred therein and spread to and burned the
neighboring houses. The persons who knew or could have
known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It
is a fair and reasonable inference that the incident happened
because of want of care.
In the report submitted by Captain Leoncio Mariano of the
Manila Police Department (Exh. X-1 Africa) the following
appears:
Investigation of the basic complaint disclosed that the
Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a
very busy business district near the Obrero Market, a
railroad crossing and very thickly populated
neighborhood where a great number of people mill
around t
until
gasoline
tever be theWactjvities of these peopleor lighting a
cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn
endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by
its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high
at most and cannot avoid the flames from leaping
over it in case of fire.
Records show that there have been two cases of fire
which caused not only material damages but
desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated,
this gasoline service station is also used by its
operator as a garage and repair shop for his fleet of
taxicabs numbering ten or more, adding another risk
to the possible outbreak of fire at this already small
but crowded gasoline station.

50

The foregoing report, having been submitted by a police officer

in the performance of his duties on the basis of his own
personal observation of the facts reported, may properly be
considered as an exception to the hearsay rule. These facts,
descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question,
strengthen the presumption of negligence under the doctrine of
res ipsa loquitur, since on their face they called for more
stringent measures of caution than those which would satisfy
the standard of due diligence under ordinary circumstances.
There is no more eloquent demonstration of this than the
statement of Leandro Flores before the police investigator.
Flores was the driver of the gasoline tank wagon who, alone
and without assistance, was transferring the contents thereof
into the underground storage when the fire broke out. He said:
"Before loading the underground tank there were no people,
but while the loading was going on, there were people who
went to drink coca-cola (at the coca-cola stand) which is about
a meter from the hole leading to the underground tank." He
added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to
the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent omission
on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping
over it. As it was the concrete wall was only 2-1/2 meters high,
and beyond that height it consisted merely of galvanized iron
sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore,
was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended

answer to the second amended complaint that "the fire was
caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the
gasoline station and negligently threw a lighted match in the
premises." No evidence on this point was adduced, but
assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren
it does not extenuate his negligence. A decision of the
Supreme Court of Texas, upon facts analogous to those of the
present case, states the rule which we find acceptable here. "It
is the rule that those who distribute a dangerous article or
agent, owe a degree of protection to the public proportionate to
and commensurate with a danger involved ... we think it is the
generally accepted rule as applied to torts that 'if the effects of
the actor's negligent conduct actively and continuously operate
to bring about harm to another, the fact that the active and
substantially simultaneous operation of the effects of a third
person's innocent, tortious or criminal act is also a substantial
factor in bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184,
#439). Stated in another way, "The intention of an unforeseen
and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly
and proximately cooperates with the independent cause in the
resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation,
153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the
damages caused to appellants. This issue depends on whether
Boquiren was an independent contractor, as held by the Court
of Appeals, or an agent of Caltex. This question, in the light of
the facts not controverted, is one of law and hence may be
passed upon by this Court. These facts are: (1) Boquiren made
an admission that he was an agent of Caltex; (2) at the time of
the fire Caltex owned the gasoline station and all the
equipment therein; (3) Caltex exercised control over Boquiren
in the management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX
painted on it; and (5) the license to store gasoline at the station
was in the name of Caltex, which paid the license fees. (Exhibit
T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended
complaint, he denied that he directed one of his drivers to
remove gasoline from the truck into the tank and alleged that
the "alleged driver, if one there was, was not in his employ, the
driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on
amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then
again, in his motion to dismiss appellants' second amended
complaint the ground alleged was that it stated no cause of
action since under the allegations thereof he was merely acting
as agent of Caltex, such that he could not have incurred
personal liability. A motion to dismiss on this ground is deemed
to be an admission of the facts alleged in the complaint.

51

Caltex admits that it owned the gasoline station as well as the

equipment therein, but claims that the business conducted at
the service station in question was owned and operated by
Boquiren. But Caltex did not present any contract with
Boquiren that would reveal the nature of their relationship at
the time of the fire. There must have been one in existence at
that time. Instead, what was presented was a license
agreement manifestly tailored for purposes of this case, since it
was entered into shortly before the expiration of the one-year
period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29,
1948, but made effective as of January 1, 1948 so as to cover
the date of the fire, namely, March 18, 1948. This retroactivity
provision is quite significant, and gives rise to the conclusion
that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause
that Caltex "shall not be liable for any injury to person or
property while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is not an
employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren
can hardly be considered an independent contractor. Under
that agreement Boquiren would pay Caltex the purely nominal
sum of P1.00 for the use of the premises and all the equipment
therein. He could sell only Caltex Products. Maintenance of the
station and its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or transfer
his rights as licensee without the consent of Caltex. The
license agreement was supposed to be from January 1, 1948
to December 31, 1948, and thereafter until terminated by
Caltex upon two days prior written notice. Caltex could at any
time cancel and terminate the agreement in case Boquiren
ceased to sell Caltex products, or did not conduct the business
with due diligence, in the judgment of Caltex. Termination of
the contract was therefore a right granted only to Caltex but not
to Boquiren. These provisions of the contract show the extent
of the control of Caltex over Boquiren. The control was such
that the latter was virtually an employee of the former.
Taking into consideration the fact that the operator
owed his position to the company and the latter could
remove him or terminate his services at will; that the
service station belonged to the company and bore its
tradename and the operator sold only the products of
the company; that the equipment used by the operator
belonged to the company and were just loaned to the
operator and the company took charge of their repair
and maintenance; that an employee of the company
supervised the operator and conducted periodic
inspection of the company's gasoline and service
station; that the price of the products sold by the
operator was fixed by the company and not by the
operator; and that the receipts signed by the operator
indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the
company and not an independent contractor should
not be disturbed.

To determine the nature of a contract courts do not

have or are not bound to rely upon the name or title
given it by the contracting parties, should thereby a
controversy as to what they really had intended to
enter into, but the way the contracting parties do or
perform their respective obligations stipulated or
agreed upon may be shown and inquired into, and
should such performance conflict with the name or
title given the contract by the parties, the former must
prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of
Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the
purpose of creating the apparent relationship of
employer and independent contractor, and of avoiding
liability for the negligence of the employees about the
station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct
the method by which the work contracted for should
be performed. By reserving the right to terminate the
contract at will, it retained the means of compelling
submission to its orders. Having elected to assume
control and to direct the means and methods by which
the work has to be performed, it must be held liable
for the negligence of those performing service under
its direction. We think the evidence was sufficient to
sustain the verdict of the jury. (Gulf Refining Company
v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station
belonged to Boquiren. But no cash invoices were presented to
show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of
P9,005.80, after deducting the amount of P2,000.00 collected
by them on the insurance of the house. The deduction is now
challenged as erroneous on the ground that Article 2207 of the
New Civil Code, which provides for the subrogation of the
insurer to the rights of the insured, was not yet in effect when
the loss took place. However, regardless of the silence of the
law on this point at that time, the amount that should be
recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong
P7,500.00 was adjudged by the lower court on the basis of the
assessed value of the property destroyed, namely, P1,500.00,
disregarding the testimony of one of the Ong children that said
property was worth P4,000.00. We agree that the court erred,
since it is of common knowledge that the assessment for
taxation purposes is not an accurate gauge of fair market
value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled
to P10,000.00.
Wherefore, the decision appealed from is reversed and
respondents-appellees are held liable solidarily to appellants,

52

and ordered to pay them the aforesaid sum of P9,005.80 and

P10,000.00, respectively, with interest from the filing of the
complaint, and costs.

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