G.R. No. 84378 July 4, 1991
00 and overage
NENITA L. LEANO, petitioner,
vs.
HON. EUFEMIO C. DOMINGO, Chairman, Commission on Audit, HON.
BARTOLOME C. FERNANDEZ, JR., Commissioner on Audit, HON.
ALFREDO P. CRUZ, Commissioner on Audit, LUCILA B. AFRICA, Auditor
National Quarantine Office, MA. ATHENA O. FLORES, Director, National
Gov't. Audit Office II, COA, respondents.
PARAS, J.:p
This is a petition for review on certiorari seeking the annulment of the decision * Recommendation:
of the Commission on Audit (COA) denying the request for relief from
accountability for the loss, thru alleged robbery, of the amount of P12,500.00;
and the letter-reply of May 11, 1988 of COA denying the request for
reconsideration.
Herein petitioner Nenita L. Leano, in a Special Order No. 12 dated December 23,
1983 (Rollo, p.14), was designated Acting Cashier I of the Bureau of Quarantine,
effective January 1, 1984 and for the duration of the absence of the regular
cashier, Mrs. Adelaida Sanchez, who was then accused of Malversation of Public
Funds before the Tanodbayan and is still at large. Pursuant thereto, she
assumed and performed the duties of the said position.
The Cashier's Office, between 7:00 P.M. of December 17, 1984 to 8:45 A.M. of
December 18, 1984, was allegedly robbed of its cash amounting to P12,500.00
representing the year-end bonus of several employees who failed to get them
during office hours of December 17, 1984 (Ibid., p. 7; Petition, p. 2). The
incident was reported by Luisito Diaz, Payroll Clerk, to the Western Police
District at 10:00 A.M. of December 18, 1984, and the subsequent ocular
investigation conducted by the WPD police officers resulted in the following
findings: (1) the unknown suspects got inside the Cashier's Office thru the
teller's window and opened the steel cabinet, possibly with the use of the
original key which was left inside a small wooden box near the steel cabinet or
with the use of false key or other similar instrument since no sign of force on
the cabinet was traced; and (2) the cash amounting to P12,500. 00 was taken
by the suspects in the pay envelopes, leaving several envelopes with cash.
(Ibid., p. 19). Upon receipt of the report of the incident and request of petitioner
Leano, a cash count was conducted by the resident auditor on December 18,
1984, yielding the following findings and recommendations:
1. The Acting Cashier Ms. Nenita Leano incurred a shortage in her
accountabilities for account 8- 70-500 in the amount of P12,500.
for account 8-70400 in the amount of P16,910.00 (connection from Cagayan de
Oro).
Recommendation:
The agency should immediately relieve the defaulting officer from her duties as
accountable officer due to negligence.
2. The Acting Cashier did not use the safe in keeping the collections and other
cash items, but utilized instead a steel cabinet. Change of safe combination was
recommended several times.
The Cashier should utilize the safe in keeping the collections and other cash
items. Likewise, a new safe combination should be installed, the use of which
should be limited to the cashier.
3. Some subsidiary ledger entries were found erroneous and not kept up to
date.
Recommendation:
Subsidiary ledger entries found erroneous should be immediately adjusted and
kept up to date. (Rollo, p.15; p. 2, COA Decision)
On December 26, 1984, petitioner filed with COA a request for relief from
accountability of the P12,500.00 lost in the robbery (Ibid., p. 16).
The COA, in a 6th Indorsement dated September 7, 1987 (Ibid., pp. 19 and 15),
denied petitioner's request on the finding that
. . . Ms. Nenita Leano was negligent in the handling of her cash accountability.
She failed to use the safe for keeping her accountabilities as recommended by
the auditor. Instead she used said steel cabinet leaving the key inside a small
box placed near said steel cabinet. Also, she allowed other persons to have
access to the cash box with pay envelopes and releasing the same.
Section 105 (2) of P.D. 1445 provides that:
. . . Every person accountable for government funds shall be liable for all losses
resulting from the unlawful or improper deposit, use or application thereof and
for all loss attributable to negligence in keeping of the same. (Ibid., p. 15).
Petitioner requested for a reconsideration (Ibid., pp. 20-21), but the same was
denied (Ibid., p. 22). Hence, the instant petition.
This Court, after the respondents filed their comment which was considered as
answer to the petition, resolved to give due course to the petition and calendar
the case for deliberation (Ibid., p. 57).
The instant petition is devoid of merit.
The sole issue in this case is whether or not COA acted with grave abuse of
discretion in denying petitioner's request for relief from accountability of the
P12,500.00 lost in the robbery (Rollo, p. 9; p. 4, Petition).
It is the contention of petitioner that the decision of the COA has no basis in
fact. She argues that since the combination of the one and only safe previously
used by the former cashier was not entrusted to her, she had no other recourse
but to use the official steel cabinet which she considered under the prevailing
circumstances as the safest repository of her cash accounts. She further argues
that the use of said steel cabinet by other cashiering personnel with
accountabilities was a practice during the former cashier's (Mrs. Sanchez)
incumbency (Ibid., p. 7). She denied that the Auditor made any
recommendation or suggested the use of the safe before the robbery incident
(Ibid., p.11). With regard to the access to the cash box with pay envelopes and
the release of the same by other persons, she restated her argument in her
request for reconsideration, that
Allowing one or two employees of the Cashier's Office to give out pay envelopes
and handle minor cash disbursements is a very general practice in all cashiering
offices in the government service national, provincial, city or municipal. It is
anchored on eventualities, such as, when the Cashier is indisposed or not
available for several hours and there is immediate or emergency needs to give
the pay envelopes, disbursed (sic) funds and/or cash checks. This is a safety
measure intended to satisfy a need or requirement that may arise at any
inopportune (sic) time. It is not questioned by office superiors as in fact, it is Affairs of the Office of the President v. Court of Appeals, 169 SCRA 27 [1989];
being tolerated due to emergent necessities. (Ibid., p. 20; Petition, p. 6).
and added that, with the multi-faceted official activities of a Cashier, she is not
expected to "alone and exclusively handle payments and releases of personnel
salaries/bonuses, etc." (Ibid., p. 12).
Petitioner's contention is untenable.
Negligence is the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would
do. The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinary prudent person
would have used in the same situation? If not, he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman Law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that. (Layugan v.
Intermediate Appellate Court, 167 SCRA 363, 372-373 [1988]).
Applying the stated test to the facts of this case, it is evident that petitioner fell
short of the demands inherent in her position. As aptly argued by the Solicitor
General, an exercise of proper diligence expected of her position would have
compelled petitioner to request an immediate change of the combination of the
safe. However, the record is bare of any showing that petitioner had, at least,
exerted any effort to have the combination changed, content with the fact that,
according to her, the former cashier also used the steel cabinet as depository of
the funds. In addition, it was found that the use of the steel cabinet was not a
wise and prudent decision. The steel cabinet, even when locked, at times could
be pulled open, thus it can be surmised that even without the use of a key, the
robbery could be committed once the culprits succeed in entering the room
(Progress Report of the Police dated February 28, 1985). Moreover, the original
key of the steel cabinet was left inside a small wooden box placed near the steel
cabinet; it is therefore highly possible that the said steel cabinet was opened
with the use of its original key (Police Alarm Report).
Finally, it should be stated that the factual findings of administrative tribunal
must be respected as long as they are supported by substantial evidence, even
if not overwhelming or preponderant (Assistant Executive Secretary for Legal
and Relucio III v. Macaraig, Jr., 173 SCRA 635 [1989]). In the instant case, the
decision of COA is amply and substantially supported not only by its internal
records and findings, but by the Police Report as well.
PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 77679 September 30, 1987
VICENTE VERGARA, petitioner,
vs.
THE COURT OF APPEALS and AMADEO AZARCON, respondents.
RESOLUTION
PADILLA, J.:
An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was
filed by private respondent against petitioner. The action arose from a vehicular
accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin
Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-
on" the store-residence of the private respondent, causing damages thereto
which were inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that his driver
Martin Belmonte operated said cargo truck in a very diligent (and) careful
manner; that the steering wheel refused to respond to his effort and as a result
of a blown-out tire and despite application of his brakes, the said cargo truck hit
the store -residence of plaintiff (private respondent) and that the said accident
was an act of God for which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers Insurance and
Surety Corporation, alleging that said cargo truck involved in the vehicular
accident, belonging to the petitioner, was insured by the third party defendant
insurance company. Petitioner asked that the latter be ordered to pay him
whatever amount he may be ordered by the court to pay to the private
respondent.
The trial court rendered judgment in favor of private respondent. Upon appeal
to the Court of Appeals, the latter court affirmed in toto the decision of the trial
court, which ordered Petitioner to pay, jointly and severally with Travellers
Insurance and Surety Corporation, to the private, respondent the following: (a)
P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c)
P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's
fees and the costs. On the third party complaint, the insurance company was
sentenced to pay to the petitioner the following: (a) P50,000.00 for third party
liability under its comprehensive accident insurance policy; and (b) P3,000.00
for and as attorney's fees.
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred in finding him guilty of
fault or negligence is not tenable. It was established by competent evidence
that the requisites of a quasi-delict are present in the case at bar. These
requisites are: (1) damages to the plaintiff;
(2) negligence, by act or omission, of which defendant, or some person for
whose acts he must respond, was guilty; and (3) the connection of cause and
effect between such negligence and the damages.
It is undisputed that private respondent suffered damages as a result of an act
or omission of petitioner. The issue of whether or not this act or omission can be
considered as a "negligent" act or omission was passed upon by the trial court.
The findings of said court, affirmed by the respondent court, which we are not
prepared to now disturb, show that the fact of occurrence of the "vehicular
accident" was sufficiently established by the policy report and the testimony of
Patrolman Masiclat. And the fact of negligence may be deduced from the
surrounding circumstances thereof. According to the police report, "the cargo
truck was travelling on the right side of the road going to Manila and then it
crossed to the center line and went to the left side of the highway; it then
bumped a tricycle; and then another bicycle; and then said cargo truck rammed
the store warehouse of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes but the latter
did not work due to mechanical defect. Contrary to the claim of the petitioner, a
mishap caused by defective brakes can not be consideration as fortuitous in
character. Certainly, the defects were curable and the accident preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the
disputable presumption of negligence on his part in the selection and
supervision of his driver.
Based on the foregoing finding by the respondent Court that there was
negligence on the part of the petitioner, the petitioner's contention that the
respondent court erred in awarding private respondent actual, moral and
exemplary damages as well as attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
POLO S. PANTALEON,
Petitioner,
 slip, which was then electronically referred to AMEXs Amsterdam office at 9:20
a.m.[5]
- versus -
AMERICAN EXPRESS INTERNATIONAL, INC., At around 9:40 a.m., Coster had not received approval from AMEX for the
purchase so Pantaleon asked the store clerk to cancel the sale. The store
Respodent manager, however, convinced Pantaleon to wait a few more minutes.
Subsequently, the store manager informed Pantaleon that AMEX was asking for
x----------------------------------------------------------------------------------------x bank references; Pantaleon responded by giving the names of his Philippine
depository banks.
RESOLUTION
At around 10 a.m., or 45 minutes after Pantaleon presented his credit card,
AMEX still had not approved the purchase. Since the city tour could not begin
BRION, J.:
until the Pantaleons were onboard the tour bus, Coster decided to release at
around 10:05 a.m. the purchased items to Pantaleon even without AMEXs
We resolve the motion for reconsideration filed by respondent American Express approval.
International, Inc. (AMEX) dated June 8, 2009,[1] seeking to reverse our Decision
dated May 8, 2009 where we ruled that AMEX was guilty of culpable delay in
When the Pantaleons finally returned to the tour bus, they found their travel
fulfilling its obligation to its cardholder petitioner Polo Pantaleon. Based on this
companions visibly irritated. This irritation intensified when the tour guide
conclusion, we held AMEX liable for moral and exemplary damages, as well as
announced that they would have to cancel the tour because of lack of
attorneys fees and costs of litigation.[2]
time as they all had to be in Calais, Belgium by 3 p.m. to catch the ferry to
FACTUAL ANTECEDENTS
London.[6]
The established antecedents of the case are narrated below.
From the records, it appears that after Pantaleons purchase was transmitted for
approval to AMEXs Amsterdam office at 9:20 a.m.; was referred to AMEXs
AMEX is a resident foreign corporation engaged in the business of providing Manila office at 9:33 a.m.; and was approved by the Manila office at 10:19 a.m.
credit services through the operation of a charge card system. Pantaleon has At 10:38 a.m., AMEXs Manila office finally transmitted the Approval Code to
been an AMEX cardholder since 1980.[3] AMEXs Amsterdam office. In all, it took AMEX a total of 78 minutes to
approve Pantaleons purchase and to transmit the approval to the
In October 1991, Pantaleon, together with his wife (Julialinda), daughter jewelry store.[7]
(Regina), and son (Adrian Roberto), went on a guided European tour. On
October 25, 1991, the tour group arrived in Amsterdam. Due to their late After the trip to Europe, the Pantaleon family proceeded to the United States.
arrival, they postponed the tour of the city for the following day. [4] Again, Pantaleon experienced delay in securing approval for purchases using his
American Express credit card on two separate occasions. He experienced the
The next day, the group began their sightseeing at around 8:50 a.m. with a trip first delay when he wanted to purchase golf equipment in the amount of
to the Coster Diamond House (Coster). To have enough time for take a guided US$1,475.00 at the Richard Metz Golf Studio in New York on October 30, 1991.
city tour of Amsterdam before their departure scheduled on that day, the tour Another delay occurred when he wanted to purchase childrens shoes worth
group planned to leave Coster by 9:30 a.m. at the latest. US$87.00 at the Quiency Market in Boston on November 3, 1991.

While at Coster, Mrs. Pantaleon decided to purchase some diamond pieces Upon return to Manila, Pantaleon sent AMEX a letter demanding an apology for
worth a total of US$13,826.00. Pantaleon presented his American Express credit the humiliation and inconvenience he and his family experienced due to the
card to the sales clerk to pay for this purchase. He did this at around 9:15 a.m. delays in obtaining approval for his credit card purchases. AMEX responded by
The sales clerk swiped the credit card and asked Pantaleon to sign the charge explaining that the delay in Amsterdam was due to the amount involved the
charged purchase of US$13,826.00 deviated from Pantaleons established
charge purchase pattern.Dissatisfied with this explanation, Pantaleon filed
an action for damages against the credit card company with the Makati City
Regional Trial Court (RTC).
On August 5, 1996, the RTC found AMEX guilty of delay, and awarded Pantaleon
P500,000.00 as moral damages, P300,000.00 as exemplary damages,
P100,000.00 as attorneys fees, and P85,233.01 as litigation expenses.
On appeal, the CA reversed the awards.[8] While the CA recognized that delay in
the nature of mora accipiendi or creditors default attended AMEXs approval of
Pantaleons purchases, it disagreed with the RTCs finding that AMEX had
breached its contract, noting that the delay was not attended by bad faith,
malice or gross negligence.The appellate court found that AMEX exercised
diligent efforts to effect the approval of Pantaleons purchases; the purchase at
Coster posed particularly a problem because it was at variance with Pantaleons
established charge pattern. As there was no proof that AMEX breached its
contract, or that it acted in a wanton, fraudulent or malevolent manner, the
appellate court ruled that AMEX could not be held liable for any form of
damages.
Pantaleon questioned this decision via a petition for review on certiorari with
this Court.
In our May 8, 2009 decision, we reversed the appellate courts decision and held
that AMEX was guilty of mora solvendi, or debtors default. AMEX, as debtor, had
an obligation as the credit provider to act on Pantaleons purchase requests,
whether to approve or disapprove them, with timely dispatch. Based on the
evidence on record, we found that AMEX failed to timely act on Pantaleons
purchases.
Based on the testimony of AMEXs credit authorizer Edgardo Jaurique, the
approval time for credit card charges would be three to four seconds under
regular circumstances. In Pantaleons case, it took AMEX 78 minutes to approve
the Amsterdam purchase. We attributed this delay to AMEXs Manila credit
authorizer, Edgardo Jaurique, who had to go over Pantaleons past credit history,
his payment record and his credit and bank references before he approved the
purchase. Finding this delay unwarranted, we reinstated the RTC decision and
awarded Pantaleon moral and exemplary damages, as well as attorneys fees
and costs of litigation.
THE MOTION FOR RECONSIDERATION
In its motion for reconsideration, AMEX argues that this Court erred when it
found AMEX guilty of culpable delay in complying with its obligation to act with
timely dispatch on Pantaleons purchases. While AMEX admits that it normally
takes seconds to approve charge purchases, it emphasizes that Pantaleon
experienced delay in Amsterdambecause his transaction was not a normal
one. To recall, Pantaleon
sought
to
charge
in a single
transaction jewelry items purchased from Coster
in
the
total
amount of
US$13,826.00 or P383,746.16. While
the total
amount
of
Pantaleons
previous purchases using his AMEX credit card did exceed US$13,826.00, AMEX
points out that these purchases were made in a span of more than 10 years, not
in a single transaction.
Because this was the biggest single transaction that Pantaleon ever made using
his AMEX credit card, AMEX argues that the transaction necessarily required the
credit authorizer to carefully review Pantaleons credit history and bank
references. AMEX maintains that it did this not only to ensure Pantaleons
protection (to minimize the possibility that a third party was fraudulently using
his credit card), but also to protect itself from the risk that Pantaleon might not
be able to pay for his purchases on credit. This careful review, according to
AMEX, is also in keeping with the extraordinary degree of diligence required of
banks in handling its transactions. AMEX concluded that in these lights, the
thorough review of Pantaleons credit record was motivated by legitimate
concerns and could not be evidence of any ill will, fraud, or negligence by AMEX.
AMEX further points out that the proximate cause of Pantaleons humiliation and
embarrassment was his own decision to proceed with the purchase despite his
awareness that the tour group was waiting for him and his wife. Pantaleon could
have prevented the humiliation had he cancelled the sale when he noticed that
the credit approval for the Coster purchase was unusually delayed.
In his Comment dated February 24, 2010, Pantaleon maintains that AMEX was
guilty of mora solvendi, or delay on the part of the debtor, in complying with its
obligation to him. Based on jurisprudence, a just cause for delay does not
relieve the debtor in delay from the consequences of delay; thus, even if AMEX
had a justifiable reason for the delay, this reason would not relieve it from the
liability arising from its failure to timely act on Pantaleons purchase.
In response to AMEXs assertion that the delay was in keeping with its duty to
perform its obligation with extraordinary diligence, Pantaleon claims that this
duty includes the timely or prompt performance of its obligation.
As to AMEXs contention that moral or exemplary damages cannot be awarded
absent a finding of malice, Pantaleon argues that evil motive or design is not
always necessary to support a finding of bad faith; gross negligence or wanton
disregard of contractual obligations is sufficient basis for the award of moral and
exemplary damages.
OUR RULING
the country, as evidenced by the surge in the number of credit card holders
then.[13]
To better understand the transactions, we turn to the United Bank v. McCray[14]
which explains:
The bank credit card system involves a tripartite relationship between the issuer
bank, the cardholder, and merchants participating in the system. The issuer
bank establishes an account on behalf of the person to whom the card is issued,
and the two parties enter into an agreement which governs their relationship.
This agreement provides that the bank will pay for cardholders account the
amount of merchandise or services purchased through the use of the credit card
and will also make cash loans available to the cardholder. It also states that the
cardholder shall be liable to the bank for advances and payments made by the
bank and that the cardholders obligation to pay the bank shall not be affected
or impaired by any dispute, claim, or demand by the cardholder with respect to
We adopted a similar view in CIR v. American Express International, Inc.
(Philippine branch),[15] where we also recognized that credit card issuers are not
limited to banks. We said:
Under RA 8484, the credit card that is issued by banks in general, or by non-
We GRANT the motion for reconsideration.
Brief historical background
A credit card is defined as any card, plate, coupon book, or other credit device
existing for the purpose of obtaining money, goods, property, labor or services
or anything of value on credit.[9] It traces its roots to the charge card first
introduced by the Diners Club in New York City in 1950.[10] American Express
followed suit by introducing its own charge card to the American market in
1958.[11]
In the Philippines, the now defunct Pacific Bank was responsible for bringing the
first credit card into the country in the 1970s. [12] However, it
was only in the early 2000s that credit card use gained wide acceptance in
Nature of Credit Card Transactions
dynamics involved in credit card States case of Harris Trust & Savings
any merchandise or service purchased.
The merchants participating in the system agree to honor the banks credit
cards. The bank irrevocably agrees to honor and pay the sales slips presented
by the merchant if the merchant performs his undertakings such as checking
the list of revoked cards before accepting the card. x x x.
These slips are forwarded to the member bank which originally issued the card.
The cardholder receives a statement from the bank periodically and may then
decide whether to make payment to the bank in full within a specified period,
free of interest, or to defer payment and ultimately incur an interest charge.
banks in particular, refers to any card x x x or other credit device existing for
the purpose of obtaining x x x goods x x x or services x x x on credit; and is
being used usually on a revolving basis. This means that the consumer-credit
arrangement that exists between the issuer and the holder of the credit card
enables the latter to procure goods or services on a continuing basis as long as
the outstanding balance does not exceed a specified limit. The card holder is,
therefore, given the power to obtain present control of goods or service on a
promise to pay for them in the future.
Business establishments may extend credit sales through the use of the credit
card facilities of a non-bank credit card company to avoid the risk of
uncollectible accounts from their customers. Under this system, the
establishments do not deposit in their bank accounts the credit card drafts that
arise from the credit sales. Instead, they merely record their receivables from
the credit card company and periodically send the drafts evidencing those
receivables to the latter.
The credit card company, in turn, sends checks as payment to these business
holder; and lastly, (c) the promise to pay between the credit card issuer and
the merchant or business establishment.[16]
Credit card issuer cardholder relationship
When a credit card company gives the holder the privilege of charging items at
establishments associated with the issuer,[17] a necessary question in a legal
analysis is when does this relationship begin? There are two diverging views on
the matter. In City Stores Co. v. Henderson,[18] another U.S. decision, held that:
The issuance of a credit card is but an offer to extend a line of open account
credit. It is unilateral and supported by no consideration. The offer may be
withdrawn at any time, without prior notice, for any reason or, indeed, for no
reason at all, and its withdrawal breaches no duty for there is no duty to
continue it and violates no rights.
We note that a card membership agreement is a contract of adhesion as its
terms are prepared solely by the credit card issuer, with the cardholder merely
affixing his signature signifying his adhesion to these terms. [22] This
circumstance, however, does not render the agreement void; we have uniformly
held that contracts of adhesion are as binding as ordinary
contracts, the reason being that the party who adheres to the contract is free to
reject it entirely.[23] The only effect is that the terms of the contract are
[24]
construed strictly against the party who drafted it.
establishments, but it does not redeem the drafts at full price. The agreement
between them usually provides for discounts to be taken by the company upon
its redemption of the drafts. At the end of each month, it then bills its credit
card holders for their respective drafts redeemed during the previous month. If
the holders fail to pay the amounts owed, the company sustains the loss.
Simply put, every credit card transaction involves three contracts, namely: (a)
the sales contract between the credit card holder and the merchant or the
business establishment which accepted the credit card; (b) the loan
agreement between the credit card issuer and the credit card
Thus, under this view, each credit card transaction is considered a separate
offer and acceptance.
Novack v. Cities Service Oil Co.[19] echoed this view, with the court ruling that
the mere issuance of a credit card did not create a contractual relationship with
the cardholder.
On the other end of the spectrum is Gray v. American Express Company[20]
which recognized the card membership agreement itself as a binding contract
between the credit card issuer and the card holder. Unlike in the Novack and the
City Stores cases, however, the cardholder in Gray paid an annual fee for the
privilege of being an American Express cardholder.
In our jurisdiction, we generally adhere to the Gray ruling, recognizing the
relationship between the credit card issuer and the credit card holder as a
contractual one that is governed by the terms and conditions found in the card
membership agreement.[21] This contract provides the rights and liabilities of a
credit card company to its cardholders and vice versa.
On AMEXs obligations to Pantaleon
We begin by identifying the two privileges that Pantaleon assumes he is entitled
to with the issuance of his AMEX credit card, and on which he anchors his
claims. First, Pantaleon presumes that since his credit card has no pre-set
spending limit, AMEX has the obligation to approve all his charge requests.
Conversely, even if AMEX has no such obligation, at the very least it is obliged
to act on his charge requests within a specific period of time.
i. Use of credit card a mere offer to enter into loan agreements
Although we recognize the existence of a relationship between the credit card
issuer and the credit card holder upon the acceptance by the cardholder of the
terms of the card membership agreement (customarily signified by the act of
From the loan agreement perspective, the contractual relationship begins to
exist only upon the meeting of the offer[25] and acceptance of the
parties involved. In more concrete terms, when cardholders use their credit
cards to pay for their purchases, they merely offer to enter into loan
agreements with the credit card company. Only after the latter approves the
purchase requests that the parties enter into binding loan contracts, in keeping
with Article 1319 of the Civil Code, which provides:
Article 1319. Consent is manifested by the meeting of the offer and the
acceptance upon the thing and the cause which are to constitute the contract.
The offer must be certain and the acceptance absolute. A qualified acceptance
constitutes a counter-offer.
This view finds support in the reservation found in the card membership
agreement itself, particularly paragraph 10, which clearly states that AMEX
reserve[s] the right to deny authorization for any requested Charge. By demandable and liquidated; (b) the debtor delays performance; and (c) the
so providing, AMEX made its position clear that it has no obligation to approve
Based on the above, the first requisite is no longer met because AMEX, by the
express terms of the credit card agreement, is not obligated to approve
Pantaleons purchase request. Without a demandable obligation, there can be no
finding of default.
Apart from the lack of any demandable obligation, we also find that Pantaleon
failed to make the demand required by Article 1169 of the Civil Code.
As previously established, the use of a credit card to pay for a purchase is only
an offer to the credit card company to enter a loan agreement with the credit
card holder. Before the credit card issuer accepts this offer, no
obligation relating to the loan agreement exists between them. On the
the cardholder in signing the back of the credit card), we have to distinguish
this contractual relationship from the creditor-debtor relationship
which only arises after the credit card issuer has approved the
cardholders purchase request. The first relates merely to an agreement
providing for credit facility to the cardholder. The latter involves the actual
credit on loan agreement involving three contracts, namely: the sales contract
between the credit card holder and the merchant or the business establishment
which accepted the credit card; the loan agreement between the credit card
issuer and the credit card holder; and the promise to pay between the credit
card issuer and the merchant or business establishment.
any and all charge requests made by its card holders.
ii. AMEX not guilty of culpable delay
Since AMEX has no obligation to approve the purchase requests of its credit
cardholders, Pantaleon cannot claim that AMEX defaulted in its obligation.
Article 1169 of the Civil Code, which provides the requisites to hold a debtor
guilty of culpable delay, states:
Article 1169. Those obliged to deliver or to do something incur in delay from the
time the obligee judicially or extrajudicially demands from them the fulfillment
of their obligation. x x x.
The three requisites for a finding of default are: (a) that the obligation is
creditor judicially or extrajudicially requires the debtors performance. [26]
other hand, a demand is defined as the assertion of a legal right; xxx an asking
with authority, claiming or challenging as due.[27] A demand presupposes the
existence of an obligation between the parties.
Thus, every time that Pantaleon used his AMEX credit card to pay for his
purchases, what the stores transmitted to AMEX were his offers to execute loan
contracts. These obviously could not be classified as the demand required by
law to make the debtor in default, given that no obligation could arise on the
part of AMEX until after AMEX transmitted its
acceptance of Pantaleons offers. Pantaleons act of insisting on and waiting for
the charge purchases to be approved by AMEX[28] is not the demand
contemplated by Article 1169 of the Civil Code.
For failing to comply with the requisites of Article 1169, Pantaleons charge that
AMEX is guilty of culpable delay in approving his purchase requests must fail.
Even assuming that AMEX had the right to review his credit card history before
it approved his purchase requests, Pantaleon insists that AMEX had an
obligation to act on his purchase requests, either to approve or deny, in a
matter of seconds or in timely dispatch. Pantaleon impresses upon us the
existence of this obligation by emphasizing two points: (a) his card has no pre-
set spending limit; and (b) in his twelve years of using his AMEX card, AMEX had
always approved his charges in a matter of seconds.
Pantaleons assertions fail to convince us.
We originally held that AMEX was in culpable delay when it acted on the Coster
transaction, as well as the two other transactions in the United States which
took AMEX approximately 15 to 20 minutes to approve. This conclusion appears
valid and reasonable at first glance, comparing the time it took to finally get the
Coster purchase approved (a total of 78 minutes), to AMEXs normal approval
time of three to four seconds (based on the testimony of Edgardo Jaurigue, as
a matter of seconds. For one, Pantaleon failed to present any evidence to
support his assertion that AMEX acted on purchase requests in a matter of three
or four seconds as an established practice. More importantly, even if Pantaleon
did prove that AMEX, as a matter of practice or custom, acted on its customers
purchase requests in a matter of seconds, this would still not be enough to
establish a legally demandable right; as a general rule, a practice or custom is
not a source of a legally demandable or enforceable right.[30]
We next examine the credit card membership agreement, the contract that
primarily governs the relationship between AMEX and Pantaleon. Significantly,
there is no provision in this agreement that obligates
AMEX to act on all cardholder purchase requests within a specifically
defined period of time. Thus, regardless of whether the obligation is worded
was to act in a matter of seconds or to act in timely dispatch, the fact remains
that no obligation exists on the part of AMEX to act within a specific period of
time. Even Pantaleon admits in his testimony that he could not recall any
provision in the Agreement that guaranteed AMEXs approval of his charge
Sentral ng Pilipinas (BSP).[34] BSP Circular No. 398 dated August 21, 2003
embodies the BSPs policy when it comes to credit cards
iii. On AMEXs obligation to act on the offer within a specific period of
time
well as Pantaleons previous experience). We come to a different result,
however, after a closer look at the factual and legal circumstances of the case.
AMEXs credit authorizer, Edgardo Jaurigue, explained that having no pre-set
spending limit in a credit card simply means that the charges made by the
cardholder are approved based on his ability to pay, as demonstrated by his
past spending, payment patterns, and personal resources.[29] Nevertheless,
every time Pantaleon charges a purchase on his credit card, the credit
card company still has to determine whether it will allow this charge,
based on his past credit history. This right to review a card holders credit
history, although not specifically set out in the card membership agreement, is
a necessary implication of AMEXs right to deny authorization for any requested
charge.
As for Pantaleons previous experiences with AMEX (i.e., that in the past 12
years, AMEX has always approved his charge requests in three or four seconds),
this record does not establish that Pantaleon had a legally enforceable
obligation to expect AMEX to act on his charge requests within
requests within a matter of minutes.[31]
Nor can Pantaleon look to the law or government issuances as the source of
AMEXs alleged obligation to act upon his credit card purchases within a matter
of seconds. As the following survey of Philippine law on credit card transactions
demonstrates, the State does not require credit card companies to act upon its
cardholders purchase requests within a specific period of time.
Republic Act No. 8484 (RA 8484), or the Access Devices Regulation Act of 1998,
approved on February 11, 1998, is the controlling legislation that regulates the
issuance and use of access devices,[32] including credit cards. The more salient
portions of this law include the imposition of the
obligation on a credit card company to disclose certain important financial
information[33] to credit card applicants, as well as a definition of the acts
that constitute access device fraud.
As financial institutions engaged in the business of providing credit, credit card
companies fall under the supervisory powers of the Bangko
The Bangko Sentral ng Pilipinas (BSP) shall foster the development of consumer
credit through innovative products such as credit cards under conditions of fair
and sound consumer credit practices. The BSP likewise encourages
competition and transparency to ensure more efficient delivery of services and
fair dealings with customers. (Emphasis supplied)
Based on this Circular, x x x [b]efore issuing credit cards, banks and/or their
subsidiary credit card companies must exercise proper diligence by ascertaining
that applicants possess good credit standing and are financially capable of
fulfilling their credit commitments.[35] As the above-quoted policy expressly
states, the general intent is to foster fair and sound consumer credit
practices.
Other than BSP Circular No. 398, a related circular is BSP Circular No. 454,
issued on September 24, 2004, but this circular merely enumerates the unfair
collection practices of credit card companies a matter not relevant to the issue
at hand.
In light of the foregoing, we find and so hold that AMEX is neither contractually
bound nor legally obligated to act on its cardholders purchase requests within
any specific period of time, much less a period of a matter of seconds that
Pantaleon uses as his standard. The standard therefore is implicit and, as in all
contracts, must be based on fairness and reasonableness, read in relation to the
Civil Code provisions on human relations, as will be discussed below.
AMEX acted with good faith
Thus far, we have already established that: (a) AMEX had neither a contractual
nor a legal obligation to act upon Pantaleons purchases within a specific period
of time; and (b) AMEX has a right to review a cardholders credit card history.
Our recognition of these entitlements, however, does not give AMEX an
unlimited right to put off action on cardholders

(a) act with justice, (b) give everyone his due, and (c) observe honesty and
purchase requests for indefinite periods of time. In acting on cardholders good faith. It is not because a person invokes his rights that he can do anything,
[37]
purchase requests, AMEX must take care not to abuse its rights and cause injury even to the prejudice and disadvantage of another.
to its clients and/or third persons. We cite in this regard Article 19, in
conjunction with Article 21, of the Civil Code, which provide: While Article 19 enumerates the standards of conduct, Article 21 provides the
remedy for the person injured by the willful act, an action for
Article 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and observe damages. We explained how these two provisions correlate with each other in
honesty and good faith. GF Equity, Inc. v. Valenzona:[38]

Article 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
Article 19 pervades the entire legal system and ensures that a person
suffering damage in the course of anothers exercise of right or performance of
duty, should find himself without relief.[36] It sets the standard for the
conduct of all persons, whether artificial or natural, and requires that everyone,
in the exercise of rights and the performance of obligations, must:
results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be held responsible. But while Article 19 lays
down a rule of conduct for the government of human relations and for the
maintenance of social order, it does not provide a remedy for its violation.
Generally, an action for damages under either Article 20 or Article 21 would be
proper.
[Article 19], known to contain what is commonly referred to as the principle of
abuse of rights, sets certain standards which must be observed not only in the
exercise of one's rights but also in the performance of one's duties. These
standards are the following: to act with justice; to give everyone his due; and to
observe honesty and good faith. The law, therefore, recognizes a primordial
limitation on all rights; that in their exercise, the norms of human conduct set
forth in Article 19 must be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless become the
source of some illegality. When a right is exercised in a manner which
does not conform with the norms enshrined in Article 19 and
In the context of a credit card relationship, although there is neither a
contractual stipulation nor a specific law requiring the credit card issuer to act
on the credit card holders offer within a definite period of time, these principles
provide the standard by which to judge AMEXs actions.
According to Pantaleon, even if AMEX did have a right to review his charge
purchases, it abused this right when it unreasonably delayed the processing of
the Coster charge purchase, as well as his purchase requests at the Richard
Metz Golf Studio and Kids Unlimited Store; AMEX should have known that its
failure to act immediately on charge referrals would entail inconvenience and
result in humiliation, embarrassment, anxiety and distress to its cardholders
who would be required to wait before closing their transactions. [39]
It is an elementary rule in our jurisdiction that good faith is presumed
and that the burden of proving bad faith rests upon the party alleging it. [40]
Although it took AMEX some time before it approved Pantaleons three
but natural for AMEX to want to ensure that it will extend credit only to people
who will have sufficient means to pay for their purchases. AMEX, after all, is
running a business, not a charity, and it would simply be ludicrous to suggest
that it would not want to earn profit for its services. Thus, so long as AMEX
exercises its rights, performs its obligations, and generally acts with good faith,
with no intent to cause harm, even if it may occasionally inconvenience others,
it cannot be held liable for damages.
We also cannot turn a blind eye to the circumstances surrounding the Coster
transaction which, in our opinion, justified the wait. In Edgardo Jaurigues own
words:
Q 21: With reference to the transaction at the Coster Diamond House covered
by Exhibit H, also Exhibit 4 for the defendant, the approval came at 2:19 a.m.
after the request was relayed at 1:33 a.m., can you explain why the approval
came after about 46 minutes, more or less?
A: It took time to review the account on credit, so, if there is any delinquencies
[sic] of the cardmember. There are factors on deciding the charge itself which
are standard measures in approving the authorization. Now in the case of Mr.
Pantaleon although his account is single charge purchase of US$13,826. [sic]
this is below the US$16,000. plus actually billed x x x we would have already
declined the charge outright and asked him his bank account to support his
charge. But due to the length of his membership as cardholder we had to make
a decision on hand.[42]
As Edgardo Jaurigue clarified, the reason why Pantaleon had to wait for AMEXs
approval was because he had to go over Pantaleons credit card history for the
past twelve months.[43] It would certainly be unjust for us to penalize AMEX for
merely exercising its right to review Pantaleons credit history meticulously.
charge requests, we find no evidence to suggest that it acted with deliberate
intent to cause Pantaleon any loss or injury, or acted in a manner that was
contrary to morals, good customs or public policy. We give credence to AMEXs
claim that its review procedure was done to ensure Pantaleons own protection
as a cardholder and to prevent the possibility that the credit card was being
fraudulently used by a third person.
Pantaleon countered that this review procedure is primarily intended to protect
AMEXs interests, to make sure that the cardholder making the purchase has
enough means to pay for the credit extended. Even if this were the case,
however, we do not find any taint of bad faith in such motive. It is
A21: Because we have to make certain considerations and evaluations of
[Pantaleons] past spending pattern with [AMEX] at that time before approving
plaintiffs request because [Pantaleon] was at that time making his very first
single charge purchase of US$13,826 [this is below the US$16,112.58
actually billed and paid for by the plaintiff because the difference was already
automatically approved by [AMEX] office in Netherland[s] and the record of
[Pantaleons] past spending with [AMEX] at that time does not
favorably support his ability to pay for such purchase. In fact, if the
foregoing internal policy of [AMEX] had been strictly followed, the transaction
would not have been approved at all considering that the past spending pattern
of the plaintiff with [AMEX] at that time does not support his ability to pay for
such purchase.[41]
xxxx
Q: Why did it take so long?
Finally, we said in Garciano v. Court of Appeals that the right to recover [moral
damages] under Article 21 is based on equity, and he who comes to court to
demand equity, must come with clean hands. Article 21 should be construed as
granting the right to recover damages to injured persons who are not
themselves at fault.[44] As will be discussed below, Pantaleon is not a blameless
party in all this.
Pantaleons action was the proximate cause for his injury
Pantaleon mainly anchors his claim for moral and exemplary damages on the
embarrassment and humiliation that he felt when the European tour group had
to wait for him and his wife for approximately 35 minutes, and eventually had to
cancel the Amsterdam city tour. After thoroughly reviewing the records of this
case, we have come to the conclusion that Pantaleon is the proximate cause for As borne by the records, Pantaleon knew even before entering Coster that the
this embarrassment and humiliation. tour group would have to leave the store by 9:30 a.m. to have

exposed himself to danger, even if he is not negligent in doing so.

enough time to take the city tour of Amsterdam before they left the country.
After 9:30 a.m., Pantaleons son, who had boarded the bus ahead of his family,
returned to the store to inform his family that they were the only ones not on This doctrine, in our view, is wholly applicable to this case. Pantaleon himself
the bus and that the entire tour group was waiting for them. Significantly, testified that the most basic rule when travelling in a tour group is
Pantaleon tried to cancel the sale at 9:40 a.m. because he did not want
to cause any inconvenience to the tour group. However, when Costers that you must never be a cause of any delay because the schedule is very
sale manager asked him to wait a few more minutes for the credit card strict.[46] When Pantaleon made up his mind to push through with his
approval, he agreed, despite the knowledge that he had already caused a 10-
minute delay and that the city tour could not start without him. purchase, he must have known that the group would become annoyed and
irritated with him. This was the natural, foreseeable consequence of his decision
In Nikko Hotel Manila Garden v. Reyes,[45] we ruled that a person who knowingly to make them all wait.
and voluntarily exposes himself to danger cannot claim damages for the
resulting injury: We do not discount the fact that Pantaleon and his family did feel humiliated
and embarrassed when they had to wait for AMEX to approve the Coster
The doctrine of volenti non fit injuria (to which a person assents is not esteemed purchase in Amsterdam. We have to acknowledge, however, that Pantaleon was
in law as injury) refers to self-inflicted injury or to the consent to injury which not a helpless victim in this scenario at any time, he could have cancelled the
precludes the recovery of damages by one who has knowingly and voluntarily sale so that the group could go on with the city tour. But he did not.
plaintiff and legal responsibility by the person causing it. The underlying
More importantly, AMEX did not violate any legal duty to Pantaleon under the basis for the award of tort damages is the premise that an individual
circumstances under the principle of damnum absque injuria, or was injured in contemplation of law.Thus, there must first be a breach of
damages without legal wrong, loss without injury.[47] As we held in BPI Express some duty and the imposition of liability for that breach before damages may
Card v. CA:[48] be awarded; and the breach of such duty should be the proximate cause of the
injury.
We do not dispute the findings of the lower court that private respondent
suffered damages as a result of the cancellation of his credit card. However,
there is a material distinction between damages and injury. Injury is the illegal Pantaleon is not entitled to damages
invasion of a legal right; damage is the loss, hurt, or harm which results from
the injury; and damages are the recompense or compensation awarded for the
damage suffered. Thus, there can be damage without injury in those Because AMEX neither breached its contract with Pantaleon, nor acted with
instances in which the loss or harm was not the result of a violation of culpable delay or the willful intent to cause harm, we find the award of moral
a legal duty. In such cases, the consequences must be borne by the damages to Pantaleon unwarranted.
injured person alone, the law affords no remedy for damages resulting from
an act which does not amount to a legal injury or wrong. These situations are Similarly, we find no basis to award exemplary damages. In contracts,
often called damnum absque injuria. exemplary damages can only be awarded if a defendant acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner.[49] The plaintiff must also
In other words, in order that a plaintiff may maintain an action for the injuries of show that he is entitled to moral, temperate, or compensatory damages before
which he complains, he must establish that such injuries resulted from a breach the court may consider the question of whether or not exemplary damages
of duty which the defendant owed to the plaintiff - a concurrence of injury to the should be awarded.[50]

As previously discussed, it took AMEX some time to approve Pantaleons
purchase requests because it had legitimate concerns on the amount being
charged; no malicious intent was ever established here. In the absence of any
other damages, the award of exemplary damages clearly lacks legal basis.
Neither do we find any basis for the award of attorneys fees and costs of
litigation. No premium should be placed on the right to litigate and not every
winning party is entitled to an automatic grant of attorney's fees.[51] To be
entitled to attorneys fees and litigation costs, a party must show that he falls
under one of the instances enumerated in Article 2208 of the Civil Code. [52] This,
Pantaleon failed to do. Since we eliminated the award of moral and exemplary
damages, so must we delete the award for attorney's fees and litigation
expenses.
Lastly, although we affirm the result of the CA decision, we do so for the
reasons stated in this Resolution and not for those found in the CA decision.
WHEREFORE, premises considered, we SET ASIDE our May 8, 2009 Decision
and REGIONAL TRIAL COURT OF PASIG, METRO MANILA, BRANCH 181,
respondents.
DECISION
REGALADO, J.:
This petition for review on certiorari assails the decision of respondent Court of
Appeals in CA-G.R. CV No. 29115, promulgated on November 10, 1993, which
affirmed with modification the decision of the trial court, as well as its resolution
dated July 8, 1994 denying petitioners motion for reconsideration.[1]
On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right
of way was filed by Pacifico Mabasa against Cristino Custodio, Brigida R.
Custodio, Rosalina R. Morato, Lito Santos and Maria Cristina C. Santos before
the Regional Trial Court of Pasig and assigned to Branch 22 thereof. [2]
The generative facts of the case, as synthesized by the trial court and adopted
by the Court of Appeals, are as follows:
passageway, a less than a meter wide path through the septic tank and with 5-
6 meters in length has to be traversed.
and GRANT the present motion for reconsideration. The Court of Appeals
Decision dated August 18, 2006 is hereby AFFIRMED. No costs.
==========================
[G.R. No. 116100. February 9, 1996]
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and
MARIA CRISTINA SANTOS, petitioners, vs. COURT OF APPEALS, HEIRS
OF PACIFICO C. MABASA
Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa
died during the pendency of this case and was substituted by Ofelia Mabasa, his
surviving spouse [and children].
The plaintiff owns a parcel of land with a two-door apartment erected thereon
situated at Interior P. Burgos St., Palingon, Tipas, Taguig, Metro Manila. The
plaintiff was able to acquire said property through a contract of sale with
spouses Mamerto Rayos and Teodora Quintero as vendors last September 1981.
Said property may be described to be surrounded by other immovables
pertaining to defendants herein. Taking P. Burgos Street as the point of
reference, on the left side, going to plaintiffs property, the row of houses will be
as follows: That of defendants Cristino and Brigido Custodio, then that of Lito
and Maria Cristina Santos and then that of Ofelia Mabasa. On the right side (is)
that of defendant Rosalina Morato and then a Septic Tank (Exhibit D). As an
access to P. Burgos Street from plaintiffs property, there are two possible
passageways. The first passageway is approximately one meter wide and is
about 20 meters distan(t) from Mabasas residence to P. Burgos Street. Such
path is passing in between the previously mentioned row of houses. The second
passageway is about 3 meters in width and length from plaintiff Mabasas
residence to P. Burgos Street; it is about 26 meters. In passing thru said
When said property was purchased by Mabasa, there were tenants occupying
the premises and who were acknowledged by plaintiff Mabasa as tenants.
However, sometime in February, 1982. one of said tenants vacated the
apartment and when plaintiff Mabasa went to see the premises, he saw that
there had been built an adobe fence in the first passageway making it narrower
in width. Said adobe fence was first constructed by defendants Santoses along
their property which is also along the first passageway. Defendant Morato
constructed her adobe fence and even extended said fence in such a way that
the entire passageway was enclosed (Exhibit 1 -Santoses and Custodios, Exh. D
for plaintiff, Exhs. 1-C, 1 -D and I -E) And it was then that the remaining tenants
of said apartment vacated the area. Defendant Ma. Cristina Santos testified that
she constructed said fence because there was an incident when her daughter
was dragged by a bicycle pedalled by a son of one of the tenants in said
apartment along the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a pathway such as when
some of the tenants were drunk and would bang their doors and windows. Some
of their footwear were even lost. x x x[3] (Italics in original text; corrections in
parentheses supplied)
On February 27, 1990, a decision was rendered by the trial court, with this
dispositive part:
court with modification, the decretal portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED
WITH MODIFICATION only insofar as the herein grant of damages to plaintiffs-
appellants. The Court hereby orders defendants-appellees to pay plaintiffs-
appellants the sum of Sixty Five Thousand (P65,000) Pesos as Actual Damages,
Thirty Thousand (P30,000) Pesos as Moral Damages, and Ten Thousand
(P10,000) Pesos as Exemplary Damages. The rest of the appealed decision is
affirmed to all respects.[5]
On July 8, 1994, the Court of Appeals denied petitioners motion for
reconsideration.[6]Petitioners then took the present recourse to us, raising two
issues, namely, whether or not the grant of right of way to herein private
respondents is proper, and whether or not the award of damages is in order.
With respect to the first issue, herein petitioners are already barred from raising
the same. Petitioners did not appeal from the decision of the court a quo
granting private respondents the right of way, hence they are presumed to be
satisfied with the adjudication therein. With the finality of the judgment of the
respondents. The award of damages has no substantial legal basis. A reading of
the decision of the Court of Appeals will show that the award of damages was
based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred
losses in the form of unrealized rentals when the tenants vacated the leased
premises by reason of the closure of the passageway.
Accordingly, judgment is hereby rendered as follows:
Ordering defendants Custodios and Santoses to give plaintiff permanent access
- ingress and egress, to the public street;
Ordering the plaintiff to pay defendants Custodios and Santoses the sum of
Eight Thousand Pesos (P8,000) as indemnity for the permanent use of the
passageway.
The parties to shoulder their respective litigation expenses.[4]
Not satisfied therewith, therein plaintiff represented by his heirs, herein private
respondents, went to the Court of Appeals raising the sole issue of whether or
not the lower court erred in not awarding damages in their favor. On November
10, 1993, as earlier stated, the Court of Appeals rendered its decision affirming
the judgment of the trial
trial court as to petitioners, the issue of propriety of the grant of right of way
has already been laid to rest.
For failure to appeal the decision of the trial court to the Court of Appeals,
petitioners cannot obtain any affirmative relief other than those granted in the
decision of the trial court.That decision of the court below has become final as
against them and can no longer be reviewed, much less reversed, by this Court.
The rule in this jurisdiction is that whenever an appeal is taken in a civil case, an
appellee who has not himself appealed may not obtain from the appellate court
any affirmative relief other than what was granted in the decision of the lower
court. The appellee can only advance any argument that he may deem
necessary to defeat the appellants claim or to uphold the decision that is being
disputed, and he can assign errors in his brief if such is required to strengthen
the views expressed by the court a quo. These assigned errors, in turn, may be
considered by the appellate court solely to maintain the appealed decision on
other grounds, but not for the purpose of reversing or modifying the judgment
in the appellees favor and giving him other affirmative reliefs.[7]
However, with respect to the second issue, we agree with petitioners that the
Court of Appeals erred in awarding damages in favor of private
However, the mere fact that the plaintiff suffered losses does not give rise to a
right to recover damages. To warrant the recovery of damages, there must be
both a right of action for a legal wrong inflicted by the defendant, and damage
resulting to the plaintiff therefrom. Wrong without damage, or damage without
wrong, does not constitute a cause of action, since damages are merely part of
the remedy allowed for the injury caused by a breach or wrong. [8]
There is a material distinction between damages and injury. Injury is the illegal
invasion of a legal right; damage is the loss, hurt, or harm which results from
the injury; and damages are the recompense or compensation awarded for the
damage suffered. Thus, there can be damage without injury in those instances
in which the loss or harm was not the result of a violation of a legal duty. These
situations are often called damnum absque injuria.[9] in order that a plaintiff may
maintain an action for the injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the defendant owed to the
plaintiff - a concurrence of injury to the plaintiff and legal responsibility by the
person causing it.[10] The underlying basis for the award of tort damages is the
premise that an individual was injured in contemplation of law. Thus, there must
person sustains actual damage, that is, harm or loss to his person or property,
without sustaining any legal injury, that is, an act or omission which the law
does not deem an injury, the damage is regarded as damnum absque injuria.[14]
In the case at bar, although there was damage, there was no legal injury.
Contrary to the claim of private respondents, petitioners could not be said to
have violated the principle of abuse of right. In order that the principle of abuse
of right provided in Article 21 of the Civil Code can be applied, it is essential
that the following requisites concur: (1) The defendant should have acted in a
manner that is contrary to morals, good customs or public policy; (2) The acts
should be willful; and (3) There was damage or injury to the plaintiff. [15]
The act of petitioners in constructing a fence within their lot is a valid exercise
of their right as owners, hence not contrary to morals, good customs or public
policy. The law recognizes in the owner the right to enjoy and dispose of a thing,
without other limitations than those established by law.[16] It is within the right of
petitioners, as owners, to enclose and fence their property. Article 430 of the
Civil Code provides that (e)very owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges, or by any other
means without detriment to servitudes constituted thereon.
property is usually applied. As a general rule, therefore, there is no cause of
action for acts done by one person upon his own property in a lawful and proper
manner, although such acts incidentally cause damage or an unavoidable loss
to another, as such damage or loss is damnum absque injuria.[18] When the
owner of property makes use thereof in the general and ordinary manner in
which the property is used, such as fencing or enclosing the same as in this
case, nobody can complain of having been injured, because the inconvenience
arising from said use can be considered as a mere consequence of community
life.[19]
first be the breach of some duty and the imposition of liability for that breach
before damages may be awarded; it is not sufficient to state that there should
be tort liability merely because the plaintiff suffered some pain and suffering) [11]
Many accidents occur and many injuries are inflicted by acts or omissions which
cause damage or loss to another but which violate no legal duty to such other
person, and consequently create no cause of action in his favor. In such cases,
the consequences must be borne by the injured person alone. The law affords
no remedy for damages resulting from an act which does not amount to a legal
injury or wrong. [12]
In other words, in order that the law will give redress for an act causing
damage, that act must be not only hurtful, but wrongful. There must be
damnum et injuria.[13] If, as may happen in many cases, a
At the time of the construction of the fence, the lot was not subject to any
servitudes.There was no easement of way existing in favor of private
respondents, either by law or by contract. The fact that private respondents had
no existing right over the said passageway is confirmed by the very decision of
the trial court granting a compulsory right of way in their favor after payment of
just compensation. It was only that decision which gave private respondents the
right to use the said passageway after payment of the compensation and
imposed a corresponding duty on petitioners not to interfere in the exercise of
said right.
Hence, prior to said decision, petitioners had an absolute right over their
property and their act of fencing and enclosing the same was an act which they
may lawfully perform in the employment and exercise of said right. To repeat,
whatever injury or damage may have been sustained by private respondents by
reason of the rightful use of the said land by petitioners is damnum absque
injuria.[17]
A person has a right to the natural use and enjoyment of his own property,
according to his pleasure, for all the purposes to which such
The proper exercise of a lawful right cannot constitute a legal wrong for which
an action will lie,[20] although the act may result in damage to another, for no
legal right has been invaded[21] One may use any lawful means to accomplish a
lawful purpose and though the means adopted may cause damage to another,
no cause of action arises in the latters favor.Any injury or damage occasioned
thereby is damnum absque injuria. The courts can give no redress for hardship
to an individual resulting from action reasonably calculated to achieve a lawful
end by lawful means.[22]
WHEREFORE, under the compulsion of the foregoing premises, the appealed
decision of respondent Court of Appeals is hereby REVERSED and SET ASIDE
and the judgment of the trial court is correspondingly REINSTATED.
=======================================
G.R. No. L-12191
October 14, 1918
JOSE
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose
Cangco, was in the employment of Manila Railroad Company in the capacity of
clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in the
province of Rizal, which is located upon the line of the defendant railroad
company; and in coming daily by train to the company's office in the city of
Manila where he worked, he used a pass, supplied by the company, which
entitled him to ride upon the company's trains free of charge. Upon the
occasion in question, January 20, 1915, the plaintiff arose from his seat in the
second class- car where he was riding and, making, his exit through the door,
took his position upon the steps of the coach, seizing the upright guardrail with
his right hand for support.
On the side of the train where passengers alight at the San Mateo station there
is a cement platform which begins to rise with a moderate gradient some
distance away from the company's office and extends along in front of said
office for a distance sufficient to cover the length of several coaches. As the
train slowed down another passenger, named Emilio Zuiga, also an employee
of the railroad company, got off the same car, alighting safely at the point
where the platform begins to rise from the level of the ground. When the train
had proceeded a little farther the plaintiff Jose Cangco stepped off also, but one
or both of his feet came in contact with a sack of watermelons with the result
that his feet slipped from under him and he fell violently on the platform. His
body at once rolled from the platform and was drawn under the moving car,
CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon
Sotelo
for
appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
where his right arm was badly crushed and lacerated. It appears that after the
plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the
railroad station was lighted dimly by a single light located some distance away,
objects on the platform where the accident occurred were difficult to discern
especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the
plaintiff alighted is found in the fact that it was the customary season for
harvesting these melons and a large lot had been brought to the station for the
shipment to the market. They were contained in numerous sacks which has
been piled on the platform in a row one upon another. The testimony shows that
this row of sacks was so placed of melons and the edge of platform; and it is
clear that the fall of the plaintiff was due to the fact that his foot alighted upon
one of these melons at the moment he stepped upon the platform. His
statement that he failed to see these objects in the darkness is readily to be
credited.
The plaintiff was drawn from under the car in an unconscious condition, and it
appeared that the injuries which he had received were very serious. He was
therefore brought at once to a certain hospital in the city of Manila where an
examination was made and his arm was amputated. The result of this operation Upon August 31, 1915, he instituted this proceeding in the Court of First
was unsatisfactory, and the plaintiff was then carried to another hospital where Instance of the city of Manila to recover damages of the defendant company,
a second operation was performed and the member was again amputated founding his action upon the negligence of the servants and employees of the
higher up near the shoulder. It appears in evidence that the plaintiff expended defendant in placing the sacks of melons upon the platform and leaving them
the sum of P790.25 in the form of medical and surgical fees and for other so placed as to be a menace to the security of passenger alighting from the
expenses in connection with the process of his curation. company's trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew therefrom
his conclusion to the effect that, although negligence was attributable to the
defendant by reason of the fact that the sacks of melons were so placed as to Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the
obstruct passengers passing to and from the cars, nevertheless, the plaintiff Civil Code, clearly points out this distinction, which was also recognized by this
himself had failed to use due caution in alighting from the coach and was Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
therefore precluded form recovering. Judgment was accordingly entered in favor rep., 359). In commenting upon article 1093 Manresa clearly points out the
of the defendant company, and the plaintiff appealed. difference between "culpa, substantive and independent, which of itself
constitutes the source of an obligation between persons not formerly connected
It can not be doubted that the employees of the railroad company were guilty of by any legal tie" and culpa considered as an accident in the performance of an
negligence in piling these sacks on the platform in the manner above stated; obligation already existing . . . ."
that their presence caused the plaintiff to fall as he alighted from the train; and
that they therefore constituted an effective legal cause of the injuries sustained In the Rakes case (supra) the decision of this court was made to rest squarely
by the plaintiff. It necessarily follows that the defendant company is liable for upon the proposition that article 1903 of the Civil Code is not applicable to acts
the damage thereby occasioned unless recovery is barred by the plaintiff's own of negligence which constitute the breach of a contract.
contributory negligence. In resolving this problem it is necessary that each of
these conceptions of liability, to-wit, the primary responsibility of the defendant Upon this point the Court said:
company and the contributory negligence of the plaintiff should be separately
examined. The acts to which these articles [1902 and 1903 of the Civil Code] are
applicable are understood to be those not growing out of pre-existing duties of
It is important to note that the foundation of the legal liability of the defendant the parties to one another. But where relations already formed give rise to
is the contract of carriage, and that the obligation to respond for the damage duties, whether springing from contract or quasi -contract, then breaches of
which plaintiff has suffered arises, if at all, from the breach of that contract by those duties are subject to article 1101, 1103, and 1104 of the same code.
reason of the failure of defendant to exercise due care in its performance. That (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
is to say, its liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of its This distinction is of the utmost importance. The liability, which, under the
servants, imposed by article 1903 of the Civil Code, which can be rebutted by Spanish law, is, in certain cases imposed upon employers with respect to
proof of the exercise of due care in their selection and supervision. Article 1903 damages occasioned by the negligence of their employees to persons to whom
of the Civil Code is not applicable to obligations arising ex contractu, but only to they are not bound by contract, is not based, as in the English Common Law,
extra -contractual obligations or to use the technical form of expression, that upon the principle of respondeat superior if it were, the master would be
article relates only to culpa aquiliana and not to culpa contractual. liable in every case and unconditionally but upon the principle
announced in article 1902 of the Civil Code, which imposes upon all persons scope of his employment causes the injury. The liability of the master is
who by their fault or negligence, do injury to another, the obligation of making personal and direct. But, if the master has not been guilty of any negligence
good the damage caused. One who places a powerful automobile in the hands whatever in the selection and direction of the servant, he is not liable for the
of a servant whom he knows to be ignorant of the method of managing such a acts of the latter, whatever done within the scope of his employment or not, if
vehicle, is himself guilty of an act of negligence which makes him liable for all the damage done by the servant does not amount to a breach of the contract
the consequences of his imprudence. The obligation to make good the damage between the master and the person injured.
arises at the very instant that the unskillful servant, while acting within the
It is not accurate to say that proof of diligence and care in the selection and
control of the servant relieves the master from liability for the latter's acts on
the contrary, that proof shows that the responsibility has never existed. As
Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is
always based upon a voluntary act or omission which, without willful intent, but
by mere negligence or inattention, has caused damage to another. A master
who exercises all possible care in the selection of his servant, taking into
consideration the qualifications they should possess for the discharge of the
duties which it is his purpose to confide to them, and directs them with equal
diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the
negligence of his servants, even within the scope of their employment, such
third person suffer damage. True it is that under article 1903 of the Civil Code
the law creates a presumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to proof of
due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in
the Porto Rico Code, has held that these articles are applicable to cases of
extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports,
215.)
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have
been some fault attributable to the defendant personally, and that the last
paragraph of article 1903 merely establishes a rebuttable presumption, is in
complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. willful intent or to mere inattention, if productive of injury, give rise to an
611) that the liability created by article 1903 is imposed by reason of the breach obligation to indemnify the injured party. The fundamental distinction between
of the duties inherent in the special relations of authority or superiority existing obligations of this character and those which arise from contract, rests upon the
between the person called upon to repair the damage and the one who, by his
act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts assumed by the parties when entering into the contractual relation.
or omissions of their servants or agents, when such acts or omissions cause
damages which amount to the breach of a contact, is not based upon a mere
presumption of the master's negligence in their selection or control, and proof
of exercise of the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual.
Extra-contractual obligation has its source in the breach or omission of those
mutual duties which civilized society imposes upon it members, or which arise
from these relations, other than contractual, of certain members of society to
This distinction was again made patent by this Court in its decision in the case
of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action
brought upon the theory of the extra-contractual liability of the defendant to
respond for the damage caused by the carelessness of his employee while
acting within the scope of his employment. The Court, after citing the last
paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by
the negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either in
selection of the servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and not juris et
de jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and supervision
he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant. This is the notable peculiarity of the
Spanish law of negligence. It is, of course, in striking contrast to the American
doctrine that, in relations with strangers, the negligence of the servant in
conclusively the negligence of the master.
others, generally embraced in the concept of status . The legal rights of each
member of society constitute the measure of the corresponding legal duties,
mainly negative in character, which the existence of those rights imposes upon
all other members of society. The breach of these general duties whether due to
fact that in cases of non-contractual obligation it is the wrongful or negligent act
or omission itself which creates the vinculum juris, whereas in contractual
relations the vinculum exists independently of the breach of the voluntary duty
With respect to extra-contractual obligation arising from negligence, whether of
act or omission, it is competent for the legislature to elect and our Legislature
has so elected whom such an obligation is imposed is morally culpable, or, on
the contrary, for reasons of public policy, to extend that liability, without regard
to the lack of moral culpability, so as to include responsibility for the negligence
of those person who acts or mission are imputable, by a legal fiction, to others
who are in a position to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to limit extra-contractual
liability with certain well-defined exceptions to cases in which moral
culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the selection
and control of one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with respect to the
person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to
render service to another, is wholly different from that to which article 1903
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing
creditor should assume the burden of proof of its existence, as the only fact
upon which his action is based; while on the contrary, in a case of negligence
which presupposes the existence of a contractual obligation, if the creditor
shows that it exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to
show that the breach was due to the negligent conduct of defendant or of his
servants, even though such be in fact the actual cause of the breach, it is
obvious that proof on the part of defendant that the negligence or omission of
his servants or agents caused the breach of the contract would not constitute a
defense to the action. If the negligence of servants or agents could be invoked
as a means of discharging the liability arising from contract, the anomalous
result would be that person acting through the medium of agents or servants in
the performance of their contracts, would be in a better position than those
acting in person. If one delivers a valuable watch to watchmaker who contract
to repair it, and the bailee, by a personal negligent act causes its destruction,
he is unquestionably liable. Would it be logical to free him from his liability for
the breach of his contract, which involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his servant whose negligence
caused the injury? If such a theory could be accepted, juridical persons would
enjoy practically complete immunity from damages arising from the breach of
their contracts if caused by negligent acts as such juridical persons can of
necessity only act through agents or servants, and it would no doubt be true in
most instances that reasonable care had been taken in selection and direction
of such servants. If one delivers securities to a banking corporation as collateral,
and they are lost by reason of the negligence of some clerk employed by the
bank, would it be just and reasonable to permit the bank to relieve itself of
liability for the breach of its contract to return the collateral upon the payment
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil.
Rep., 215), the plaintiff sued the defendant for damages caused by the loss of a
barge belonging to plaintiff which was allowed to get adrift by the negligence of
defendant's servants in the course of the performance of a contract of towage.
relates. When the sources of the obligation upon which plaintiff's cause of action
depends is a negligent act or omission, the burden of proof rests upon plaintiff
to prove the negligence if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for the benefit of plaintiff,
and it is alleged that plaintiff has failed or refused to perform the contract, it is
not necessary for plaintiff to specify in his pleadings whether the breach of the
contract is due to willful fault or to negligence on the part of the defendant, or
of his servants or agents. Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.
of the debt by proving that due care had been exercised in the selection and
direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and
culpa contractual as a mere incident to the performance of a contract has
frequently been recognized by the supreme court of Spain. (Sentencias of June
27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of
November 20, 1896, it appeared that plaintiff's action arose ex contractu, but
that defendant sought to avail himself of the provisions of article 1902 of the
Civil Code as a defense. The Spanish Supreme Court rejected defendant's
contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by
fault or negligence, such as those to which article 1902 of the Civil Code relates,
but of damages caused by the defendant's failure to carry out the undertakings
imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of
employers for damage done by the negligent acts of their servants will show
that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the
owner of a carriage was not liable for the damages caused by the negligence of
his driver. In that case the court commented on the fact that no evidence had
been adduced in the trial court that the defendant had been negligent in the
employment of the driver, or that he had any knowledge of his lack of skill or
carefulness.
The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the
defendant grew out of a contract made between it and the plaintiff . . .
we do not think that the provisions of articles 1902 and 1903 are applicable to
the case." plaintiff's action as though founded in tort rather than as based upon the breach
of the contract of carriage, and an examination of the pleadings and of the
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the briefs shows that the questions of law were in fact discussed upon this theory.
defendant to recover damages for the personal injuries caused by the Viewed from the standpoint of the defendant the practical result must have
negligence of defendant's chauffeur while driving defendant's automobile in been the same in any event. The proof disclosed beyond doubt that the
which defendant was riding at the time. The court found that the damages were defendant's servant was grossly negligent and that his negligence was the
caused by the negligence of the driver of the automobile, but held that the proximate cause of plaintiff's injury. It also affirmatively appeared that
master was not liable, although he was present at the time, saying: defendant had been guilty of negligence in its failure to exercise proper
discretion in the direction of the servant. Defendant was, therefore, liable for
. . . unless the negligent acts of the driver are continued for a length of time as the injury suffered by plaintiff, whether the breach of the duty were to be
to give the owner a reasonable opportunity to observe them and to direct the regarded as constituting culpa aquiliana or culpa contractual. As Manresa points
driver to desist therefrom. . . . The act complained of must be continued in the out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course
presence of the owner for such length of time that the owner by his of the performance of a contractual undertaking or its itself the source of an
acquiescence, makes the driver's acts his own. extra-contractual undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of damage due to
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab carelessness or inattention on the part of the defendant. Consequently, when
Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion as to the the court holds that a defendant is liable in damages for having failed to
liability of the defendant upon article 1903, although the facts disclosed that exercise due care, either directly, or in failing to exercise proper care in the
the injury complaint of by plaintiff constituted a breach of the duty to him selection and direction of his servants, the practical result is identical in either
arising out of the contract of transportation. The express ground of the decision case. Therefore, it follows that it is not to be inferred, because the court held in
in this case was that article 1903, in dealing with the liability of a master for the the Yamada case that defendant was liable for the damages negligently caused
negligent acts of his servants "makes the distinction between private individuals by its servants to a person to whom it was bound by contract, and made
and public enterprise;" that as to the latter the law creates a rebuttable reference to the fact that the defendant was negligent in the selection and
presumption of negligence in the selection or direction of servants; and that in control of its servants, that in such a case the court would have held that it
the particular case the presumption of negligence had not been overcome. would have been a good defense to the action, if presented squarely upon the
theory of the breach of the contract, for defendant to have proved that it did in
fact exercise care in the selection and control of the servant.
It is evident, therefore that in its decision Yamada case, the court treated
The true explanation of such cases is to be found by directing the attention to
the relative spheres of contractual and extra-contractual obligations. The field of The railroad company's defense involves the assumption that even granting
non- contractual obligation is much more broader than that of contractual that the negligent conduct of its servants in placing an obstruction upon the
obligations, comprising, as it does, the whole extent of juridical human platform was a breach of its contractual obligation to maintain safe means of
relations. These two fields, figuratively speaking, concentric; that is to say, the approaching and leaving its trains, the direct and proximate cause of the injury
mere fact that a person is bound to another by contract does not relieve him suffered by plaintiff was his own contributory negligence in failing to wait until
from extra-contractual liability to such person. When such a contractual relation the train had come to a complete stop before alighting. Under the doctrine of
exists the obligor may break the contract under such conditions that the same comparative negligence announced in the Rakes case (supra), if the accident
act which constitutes the source of an extra-contractual obligation had no was caused by plaintiff's own negligence, no liability is imposed upon
contract existed between the parties. defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to
The contract of defendant to transport plaintiff carried with it, by implication, ascertain if defendant was in fact guilty of negligence.
the duty to carry him in safety and to provide safe means of entering and
leaving its trains (civil code, article 1258) . That duty, being contractual, was It may be admitted that had plaintiff waited until the train had come to a full
direct and immediate, and its non-performance could not be excused by proof stop before alighting, the particular injury suffered by him could not have
that the fault was morally imputable to defendant's servants. occurred. Defendant contends, and cites many authorities in support of the
contention, that it is negligence per se for a passenger to alight from a moving
train. We are not disposed to subscribe to this doctrine in its absolute form. We
are of the opinion that this proposition is too badly stated and is at variance
with the experience of every-day life. In this particular instance, that the train
was barely moving when plaintiff alighted is shown conclusively by the fact that
it came to stop within six meters from the place where he stepped from it.
Thousands of person alight from trains under these conditions every day of the
year, and sustain no injury where the company has kept its platform free from
dangerous obstructions. There is no reason to believe that plaintiff would have
suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting
place.
We are of the opinion that the correct doctrine relating to this subject is that
expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of
ordinary or reasonable care. It is to be considered whether an ordinarily prudent
person, of the age, sex and condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by the evidence. This care
has been defined to be, not the care which may or should be used by the
prudent man generally, but the care which a man of ordinary prudence would
use under similar circumstances, to avoid injury." (Thompson, Commentaries on
Negligence, vol. 3, sec. 3010.)

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. constructed as it was of cement material, also assured to the passenger a
Smith (37 Phil. rep., 809), we may say that the test is this; Was there anything stable and even surface on which to alight. Furthermore, the plaintiff was
in the circumstances surrounding the plaintiff at the time he alighted from the possessed of the vigor and agility of young manhood, and it was by no means
train which would have admonished a person of average prudence that to get so risky for him to get off while the train was yet moving as the same act would
off the train under the conditions then existing was dangerous? If so, the have been in an aged or feeble person. In determining the question of
plaintiff should have desisted from alighting; and his failure so to desist was contributory negligence in performing such act that is to say, whether the
contributory negligence. passenger acted prudently or recklessly the age, sex, and physical condition
of the passenger are circumstances necessarily affecting the safety of the
As the case now before us presents itself, the only fact from which a conclusion passenger, and should be considered. Women, it has been observed, as a
can be drawn to the effect that plaintiff was guilty of contributory negligence is general rule are less capable than men of alighting with safety under such
that he stepped off the car without being able to discern clearly the condition of conditions, as the nature of their wearing apparel obstructs the free movement
the platform and while the train was yet slowly moving. In considering the of the limbs. Again, it may be noted that the place was perfectly familiar to the
situation thus presented, it should not be overlooked that the plaintiff was, as plaintiff as it was his daily custom to get on and of the train at this station.
we find, ignorant of the fact that the obstruction which was caused by the sacks There could, therefore, be no uncertainty in his mind with regard either to the
of melons piled on the platform existed; and as the defendant was bound by length of the step which he was required to take or the character of the
reason of its duty as a public carrier to afford to its passengers facilities for safe platform where he was alighting. Our conclusion is that the conduct of the
egress from its trains, the plaintiff had a right to assume, in the absence of plaintiff in undertaking to alight while the train was yet slightly under way was
some circumstance to warn him to the contrary, that the platform was clear. not characterized by imprudence and that therefore he was not guilty of
The place, as we have already stated, was dark, or dimly lighted, and this also is contributory negligence.
proof of a failure upon the part of the defendant in the performance of a duty
owing by it to the plaintiff; for if it were by any possibility concede that it had The evidence shows that the plaintiff, at the time of the accident, was earning
right to pile these sacks in the path of alighting passengers, the placing of them P25 a month as a copyist clerk, and that the injuries he has suffered have
adequately so that their presence would be revealed. permanently disabled him from continuing that employment. Defendant has not
shown that any other gainful occupation is open to plaintiff. His expectancy of
As pertinent to the question of contributory negligence on the part of the life, according to the standard mortality tables, is approximately thirty -three
plaintiff in this case the following circumstances are to be noted: The company's years. We are of the opinion that a fair compensation for the damage suffered
platform was constructed upon a level higher than that of the roadbed and the by him for his permanent disability is the sum of P2,500, and that he is also
surrounding ground. The distance from the steps of the car to the spot where entitled to recover of defendant the additional sum of P790.25 for medical
the alighting passenger would place his feet on the platform was thus reduced, attention, hospital services, and other incidental expenditures connected with
thereby decreasing the risk incident to stepping off. The nature of the platform, the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered
plaintiff for the sum of P3,290.25, and for the costs of both instances. So
ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.
==============================
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A.
D.
Gibbs
for
appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
The cause of the sagging of the tracks and the breaking of the tie, which was
the immediate occasion of the accident, is not clear in the evidence, but is
found by the trial court and is admitted in the briefs and in the argument to
have been the dislodging of the crosspiece or piling under the stringer by the
water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort
was made to repair the injury at the time of the occurrence. According to
plaintiffs witnesses, a depression of the track, varying from one half inch to one
inch and a half, was therafter apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he called the attention of
McKenna, the foreman, to it and asked by simply straightening out the
This is an action for damages. The plaintiff, one of a gang of eight negro
laborers in the employment of the defendant, was at work transporting iron rails
from a barge in the harbor to the company's yard near the malecon in Manila.
Plaintiff claims that but one hand car was used in this work. The defendant has
proved that there were two immediately following one another, upon which
were piled lengthwise seven rails, each weighing 560 pounds, so that the ends
of the rails lay upon two crosspieces or sills secured to the cars, but without side
pieces or guards to prevent them from slipping off. According to the testimony
of the plaintiff, the men were either in the rear of the car or at its sides.
According to that defendant, some of them were also in front, hauling by a rope.
At a certain spot at or near the water's edge the track sagged, the tie broke, the
car either canted or upset, the rails slid off and caught the plaintiff, breaking his
leg, which was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened
through the negligence of the defendant. The detailed description by the
defendant's witnesses of the construction and quality of the track proves that if
was up to the general stranded of tramways of that character, the foundation
consisting on land of blocks or crosspieces of wood, by 8 inches thick and from
8 to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the
across the stringers the parallel with the blocks were the ties to which the
tracks were fastened. After the road reached the water's edge, the blocks or
crosspieces were replaced with pilling, capped by timbers extending from one
side to the other. The tracks were each about 2 feet wide and the two inside
rails of the parallel tracks about 18 inches apart. It was admitted that there
were no side pieces or guards on the car; that where no ends of the rails of the
track met each other and also where the stringers joined, there were no fish
plates. the defendant has not effectually overcome the plaintiff's proof that the
joints between the rails were immediately above the joints between the
underlying stringers.
crosspiece, resetting the block under the stringer and renewing the tie, but
otherwise leaving the very same timbers as before. It has not proven that the
company inspected the track after the typhoon or had any proper system of
inspection.
In order to charge the defendant with negligence, it was necessary to show a
breach of duty on its part in failing either to properly secure the load on iron to
vehicles transporting it, or to skillfully build the tramway or to maintain it in
proper condition, or to vigilantly inspect and repair the roadway as soon as the
depression in it became visible. It is upon the failure of the defendant to repair
the weakened track, after notice of its condition, that the judge below based his
judgment.
This case presents many important matters for our decision, and first among
them is the standard of duty which we shall establish in our jurisprudence on
the part of employees toward employees.
He who shall execute through reckless negligence an act that if done with
malice would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:

The lack or the harshness of legal rules on this subject has led many countries
to enact designed to put these relations on a fair basis in the form of
compensation or liability laws or the institution of insurance. In the absence of
special legislation we find no difficulty in so applying the general principles of
our law as to work out a just result.
Article 1092 of the Civil Code provides:
4. Those who by simple imprudence or negligence, without committing any
infraction of regulations, shall cause an injury which, had malice intervened,
would have constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the
faults of their servants and representatives is declared to be civil and subsidiary
in its character.

Civil obligations, arising from crimes or misdemeanors, shall be governed by the It is contented by the defendant, as its first defense to the action, that the
provisions of the Penal Code. necessary conclusion from these collated laws is that the remedy for injuries
through negligence lies only in a criminal action in which the official criminally
And article 568 of the latter code provides: responsible must be made primarily
liable and his employer held only subsidiarily to him. According to this theory damages caused by their employees in the service of the branches in which the
the plaintiff should have procured the arrest of the representative of the latter may be employed or in the performance of their duties.
company accountable for not repairing the tract, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and xxx xxx xxx
secondarily by his employer.
The liability referred to in this article shall cease when the persons mentioned
This reasoning misconceived the plan of the Spanish codes upon this subject. therein prove that they employed all the diligence of a good father of a family to
Article 1093 of the Civil Code makes obligations arising from faults or avoid the damages.
negligence not punished by the law, subject to the provisions of Chapter 11 of
Title XVI. Section 1902 of that chapter reads: As an answer to the argument urged in this particular action it may be sufficient
to point out that nowhere in our general statutes is the employer penalized for
A person who by an act or omission causes damage to another when there is failure to provide or maintain safe appliances for his workmen. His obligation
fault or negligence shall be obliged to repair the damage so done. therefore is one "not punished by the law " and falls under civil rather than
criminal jurisprudence. But the answer may be a broader one. We should be
SEC. 1903. The obligation imposed by the preceding article is demandable, not reluctant, under any conditions, to adopt a forced construction of these
only for personal acts and omissions, but also for those of the persons for whom scientific codes, such as is proposed by the defendant, that would rob some of
they should be responsible. these articles of effect, would shut out litigants their will from the civil courts,
would make the assertion of their rights dependent upon the selection for
The father, and on his death or incapacity, the mother, is liable for the damages prosecution of the proper criminal offender, and render recovery doubtful by
caused by the minors who live with them. reason of the strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be unnecessary, but
xxx xxx xxx clear light is thrown upon their meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever in
Owners or directors of an establishment or enterprise are equally liable for the actual force in these Islands, was formerly given a suppletory or explanatory
effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once
started, the civil remedy should be sought therewith, unless it had been waived
by the party injured or been expressly reserved by him for civil proceedings for
An examination of this topic might be carried much further, but the citations of
these articles suffices to show that the civil liability was not intended to be
merged in the criminal nor even to be suspended thereby, except as expressly
provided by law. Where an individual is civilly liable for a negligent act or
omission, it is not required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be
regarded as subsidiary in respect of criminal actions against his employees only
while they are process of prosecution, or in so far as they determinate the
existence of the criminal act from which liability arises, and his obligation under
the civil law and its enforcement in the civil courts is not barred thereby unless
by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders
it unnecessary to finally determine here whether this subsidiary civil liability in
penal actions survived the laws that fully regulated it or has been abrogated by
the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of the
words of article 1093, "fault or negligence not punished by law," as applied to
the comprehensive definition of offenses in articles 568 and 590 of the Penal
Code. It has been shown that the liability of an employer arising out of his
relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1092 and
1093. More than this, however, it can not be said to fall within the class of acts
unpunished by the law, the consequences of which are regulated by articles
1902 and 1903 of the Civil Code. The acts to which these articles are applicable
are understood to be those and growing out of preexisting duties of the parties
the former. This terminology is unreservedly accepted by Sanchez-Roman
(Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the principle
stated is supported be decisions of the supreme court of Spain, among them
those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27,
1894 (75 Jurisprudencia Civil, No. 182) . The contract is one for hire and not one
of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law
of January 30, 1900, throws uncertain light on the relation between master and
the future. If the civil action alone was prosecuted, arising out of a crime that
could be enforced by only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those of articles
23 and 133 of our Penal Code on the same subject.
to one another. But were relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of those duties are
subject to articles 1101, 1103, and 1104, of the same code. A typical
application of the distinction may be found in the consequences of a railway
accident due to defective machinery supplied by the employer. His liability to
his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage. while that to that injured bystander
would originate in the negligent act itself. This distinction is thus clearly set
forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and
independent, which on account of its origin arises in an obligation between two
persons not formerly bound by any other obligation; or as an incident in the
performance of an obligation; or as already existed, which can not be presumed
to exist without the other, and which increases the liability arising from the
already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be
also considered as a real source of an independent obligation, and, as chapter
2, title 16 of this book of the code is devoted to it, it is logical to presume that
the reference contained in article 1093 is limited thereto and that it does not
extend to those provisions relating to the other species of culpa (negligence),
the nature of which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two
species of negligence may be somewhat inexactly described as contractual and
extra -contractual, the letter being the culpa aquiliana of the Roman law and not
entailing so strict an obligation as
workman. Moved by the quick industrial development of their people, the courts
of France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon,
corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon
yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
 risk incident to his employment and, as such, one assumed by him. It is evident
Later the hardships resulting from special exemptions inserted in contracts for that this can not be the case if the occurrence was due to the failure to repair
employment led to the discovery of a third basis for liability in an article of he the track or to duly inspect, it for the employee is not presumed to have
French Code making the possessor of any object answerable for damage done stipulated that the employer might neglect his legal duty. Nor may it be excused
by it while in his charge. Our law having no counterpart of this article, upon the ground that the negligence leading to the accident was that of a
applicable to every kind of object, we need consider neither the theory growing fellow-servant of the injured man. It is not apparent to us that the intervention
out of it nor that of "professional risk" more recently imposed by express of a third person can relieve the defendant from the performance of its duty nor
legislation, but rather adopting the interpretation of our Civil Code above given, impose upon the plaintiff the consequences of an act or omission not his own.
Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule," we
find a rule for this case in the contractual obligation. This contractual obligation,
implied from the relation and perhaps so inherent in its nature to be invariable are not disposed to introduce into our jurisprudence. Adopted in England by
by the parties, binds the employer to provide safe appliances for the use of the Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837,
employee, thus closely corresponding to English and American Law. On these it has since been effectually abrogated by "the Employers' Liability Acts" and
principles it was the duty of the defendant to build and to maintain its track in the "Compensation Law." The American States which applied it appear to be
reasonably sound condition, so as to protect its workingmen from unnecessary gradually getting rid of it; for instance, the New York State legislature of 1906
did away with it in respect to railroad companies, and had in hand a scheme for
danger. It is plain that in one respect or the other it failed in its duty, otherwise
the accident could not have occurred; consequently the negligence of the its total abolition. It has never found place in the civil law of continental Europe.
defendant is established. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title,
804. Also more recent instances in Fuzier-Herman, Title Responsibilite Civile,
Another contention of the defense is that the injury resulted to the plaintiff as a 710.)
The French Cour de Cassation clearly laid down the contrary principle in its track and never saw any bad place in it. The sagging of the track this plaintiff
judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it. did perceive, but that was reported in his hearing to the foreman who neither
promised nor refused to repair it. His lack of caution in continuing at his work
The most controverted question in the case is that of the negligence of the after noticing the slight depression of the rail was not of so gross a nature as to
plaintiff, contributing to the accident, to what extent it existed in fact and what constitute negligence, barring his recovery under the severe American rule. On
legal effect is to be given it. In two particulars is he charged with carelessness: this point we accept the conclusion of the trial judge who found as facts that
"the plaintiff did not know the cause of the one rail being lower than then other"
First. That having noticed the depression in the track he continued his work; and and "it does not appear in this case that the plaintiff knew before the accident
occurred that the stringers and rails joined in the same place."
Second. That he walked on the ends of the ties at the side of the car instead of
along the boards, either before or behind it. Were we not disposed to agree with these findings they would, nevertheless, be
binding upon us, because not "plainly and manifestly against the weight of
As to the first point, the depression in the track night indicate either a serious or evidence," as those words of section 497, paragraph 3 of the Code of Civil
a rival difficulty. There is nothing in the evidence to show that the plaintiff did or Procedure were interpreted by the Supreme Court of the United States in the De
could see the displaced timber underneath the sleeper. The claim that he must la Rama case (201 U. S., 303).
have done so is a conclusion drawn from what is assumed to have been a
probable condition of things not before us, rather than a fair inference from the In respect of the second charge of negligence against the plaintiff, the judgment
testimony. While the method of construction may have been known to the men below is not so specific. While the judge remarks that the evidence does not
who had helped build the road, it was otherwise with the plaintiff who had justify the finding that the car was pulled by means of a rope attached to the
worked at this job less than two days. A man may easily walk along a railway front end or to the rails upon it, and further that the circumstances in evidence
without perceiving a displacement of the underlying timbers. The foreman make it clear that the persons necessary to operate the car could not walk upon
testified that he knew the state of the track on the day of the accident and that the plank between the rails and that, therefore, it was necessary for the
it was then in good condition, and one Danridge, a witness for the defendant, employees moving it to get hold upon it as best they could, there is no specific
working on the same job, swore that he never noticed the depression in the finding upon the instruction given by the defendant to its employees to walk
only upon the planks, nor upon the necessity of the plaintiff putting himself
upon the ties at the side in order to get hold upon the car. Therefore the
findings of the judge below leave the conduct of the plaintiff in walking along
the side of the loaded car, upon the open ties, over the depressed track, free to
our inquiry.
made known to all the gang against walking by the side of the car, and the
foreman swears that he repeated the prohibition before the starting of this
particular load. On this contradiction of proof we think that the preponderance
is in favor of the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a proximate,
although not as its primary cause. This conclusion presents sharply the
question, What effect is to be given such an act of contributory negligence?
Does it defeat a recovery, according to the American rule, or is it to be taken
only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose
own act contributed to his injury, provided his negligence was slight as
compared with that of the defendant, and some others have accepted the
theory of proportional damages, reducing the award to a plaintiff in proportion
to his responsibility for the accident, yet the overwhelming weight of
adjudication establishes the principle in American jurisprudence that any
negligence, however slight, on the part of the person injured which is one of the
causes proximately contributing to his injury, bars his recovery. (English and
American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the
Supreme Court of the United States thus authoritatively states the present rule
of law:
Although the defendant's' negligence may have been the primary cause of the
injury complained of, yet an action for such injury can not be maintained if the
the determining cause of the accident. It is plain that the train was doing
nothing but what it had a right to do and that the only fault lay with the injured
man. His negligence was not contributory, it was sole, and was of such an
efficient nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that
the plaintiff sustaining damages was not free from contributory negligence; for
While the plaintiff and his witnesses swear that not only were they not forbidden
to proceed in this way, but were expressly directed by the foreman to do so,
both the officers of the company and three of the workmen testify that there
was a general prohibition frequently
proximate and immediate cause of the injury can be traced to the want of
ordinary care and caution in the person injured; subject to this qualification,
which has grown up in recent years (having been first enunciated in Davies vs.
Mann, 10 M. & W., 546) that the contributory negligence of the party injured will
not defeat the action if it be shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the injured
party's negligence.
There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon
the point that he was not negligent or that the negligence of the plaintiff was
the immediate cause of the casualty or that the accident was due to casus
fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car, was thrown
therefrom and killed by the shock following the backing up of the engine. It was
held that the management of the train and engine being in conformity with
proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of
February, and the 7th of March, 1902, stated in Alcubilla's Index of that year;
and of the third class the decision of the 4th of June, 1888 (64 Jurisprudencia
Civil, No. 1), in which the breaking down of plaintiff's dam by the logs of the
defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on
two bases, one, that the defendant was not negligent, because expressly
relieved by royal order from the common obligation imposed by the police law
of maintaining a guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in front of a train
running at speed, with the engine whistle blowing was
instance, the decision of the 14th of December, 1894 (76 Jurisprudencia Civil,
No. 134), in which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff
which contributed to his injury as one of its causes, though not the principal
one, and we are left to seek the theory of the civil law in the practice of other
countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held
that the carelessness of the victim did not civilly relieve the person without
whose fault the accident could not have happened, but that the contributory
negligence of the injured man had the effect only of reducing the damages. The
same principle was applied in the case of Recullet, November 10, 1888. and
that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title
Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18,
1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a
practice in accord with that of France is laid down in many cases collected in the
annotations to article 1053 of the code edited by Beauchamps, 1904. One of
these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6,
page 90, in which the court of Kings bench, otherwise known as the court of
appeals, the highest authority in the Dominion of Canada on points of French
law, held that contributory negligence did not exonerate the defendants whose
fault had been the immediate cause of the accident, but entitled him to a
reduction of damages. Other similar cases in the provincial courts have been
The damage of both being added together and the sum equally divided, a
decree is entered in favor of the vessel sustaining the greater loss against the
other for the excess of her damages over one-half of the aggregate sum. (The
Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions.
The Spanish Code of Commerce, article 827, makes each vessel for its own
damage when both are the fault; this provision restricted to a single class of the
maritime accidents, falls for short of a recognition of the principle of
contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for
instance, article 829, referring to articles 826, 827, and 828, which provides: "In
the cases above mentioned the civil action of the owner against the person
liable for the damage is reserved, as well as the criminal liability which may
appear."
The rule of the common law, a hard and fast one, not adjustable with respects
of the faults of the parties, appears to have grown out the original method of
trial by jury, which rendered difficult a nice balancing of responsibilities and
which demanded an inflexible standard as a safeguard against too ready
symphaty for the injured. It was assumed that an exact measure of several
overruled by appellate tribunals made up of common law judges drawn from
other provinces, who have preferred to impose uniformally throughout the
Dominion the English theory of contributory negligence. Such decisions throw
no light upon the doctrines of the civil law. Elsewhere we find this practice
embodied in legislation; for instance, section 2 of article 2398 of the Code of
Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person
injured or in the part of some one else, the indemnification shall be reduced in
the first case, and in the second case it shall be appropriated in proportion to
such fault or negligence as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault,
but when that proportion is incapable of ascertainment, he shall share the
liability equally with the person principally responsible. The principle of
proportional damages appears to be also adopted in article 51 of the Swiss
Code. Even in the United States in admirality jurisdictions, whose principles are
derived from the civil law, common fault in cases of collision have been
disposed of not on the ground of contradictor negligence, but on that of equal
loss, the fault of the one part being offset against that of the other. (Ralli vs.
Troop, 157 U. S. 386; 97.)
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can
maintain an action against the other, is, not the wrong of the one is set off
against the wrong of the other; it that the law can not measure how much of the
damage suffered is attributable to the plaintiff's own fault. If he were allowed to
recover, it might be that he would obtain from the other party compensation for
hiss own misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages.
The law has no scales to determine in such cases whose wrongdoing weighed
most in the compound that occasioned the mischief. (Railroad vs. Norton, 24
Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to
review to relax the vigor of the rule by freely exercising the power of setting
aside verdicts deemed excessive, through the device of granting new trials,
unless reduced damages are stipulated for, amounting to a partial revision of
damages by the courts. It appears to us that the control by the court of the
subject matter may be secured on a moral logical basis and its judgment
adjusted with greater nicety to the merits of the litigants through the practice of
offsetting their respective responsibilities. In the civil law system the desirable
end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other
countries under the stress and counter stress of novel schemers of legislation,
we find the theory of damages laid down in the judgment the most consistent
with the history and the principals of our law in these Islands and with its logical
development.
car did not contribute, although it was an element of the damage which came to
himself. Had the crosspiece been out of place wholly or partly thorough his act
of omission of duty, the last would have been one of the determining causes of
the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to
his own injury, he may recover the amount that the defendant responsible for
the event should pay for such injury, less a sum deemed a suitable equivalent
for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing
the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500
dollars, United States money, we deduct therefrom 2,500 pesos, the amount
fairly attributable to his negligence, and direct judgment to be entered in favor
of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances,
and ten days hereafter let the case be remanded to the court below for proper
action. So ordered.
Arellano, C.J. Torres and Mapa, JJ., concur.
Separate Opinions
WILLARD, J., dissenting:
And while operating it from the side it was necessary for you to step from board
to board on the cross-ties which extended out over the stringers?
Yes, sir.
And these were very of irregular shape, were they not?
Difficulty seems to be apprehended in deciding which acts of the injured party
shall be considered immediate causes of the accident. The test is simple.
Distinction must be between the accident and the injury, between the event
itself, without which there could have been no accident, and those acts of the
victim not entering into it, independent of it, but contributing under review was
the displacement of the crosspiece or the failure to replace it. this produced the
event giving occasion for damages that is, the shinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking by the
side of the
The knowledge which the plaintiff had in regard to the condition of the track is
indicated by his own evidence. He testified, among other things, as follows:
Now, describe the best you can the character of the track that ran from the
place where you loaded the irons from the barge up to the point where you
unloaded them on the ground.
Well, it was pretty bad character.
xxx xxx xxx
And you were familiar with the track before that its construction?
Familiar with what?
Well, you have described it here to the court.
Oh, yes; I knew the condition of the track.
You knew its conditions as you have described it here at the time you were
working around there?
Yes, sir.
xxx xxx
They were in pretty bad condition.
xxx xxx xxx
And it was not safe to walk along on the outside of these crosspieces?
 Why certainly, anybody could see it; but a workingman had to work in those
It was safe if the car stayed on the track. We didn't try to hold the load on. We days or get arrested for a vag here in Manila.
tried to hold the car back, keep it from going too fast, because we knew the
track was in bad condition just here, and going down too fast we could be liable The court below, while it found that the plaintiff knew in a general way of the
to run off most any time. bad condition of the track, found that he was not informed of the exact cause of
the accident, namely, the washing away of the large crosspiece laid upon the
You knew the track was in bad condition when you got hold? ground or placed upon the posts as the foundation upon which the stripers
rested. This finding of fact to my mind is plainly and manifestly against the
Sure, it was in bad condition. weight of the evidence. Ellis, a witness for the plaintiff, testified that on the
morning of the accident he called the attention of McKenna, the foreman, to the
xxx xxx xxx defective condition of the track at his precise point where the accident
happened. His testimony in part is as follows:
And the accident took place at that point where you believed it to be so
dangerous? A. I called Mr. McKenna. I showed him the track and told him I didn't think it was
safe working, and that if he didn't fix it he was liable to have an accident; I told
him I thought if he put fish plates on it would it. He said, you keep on fishing
Yes, sir.
around here for fish plates and you will be fishing for another job the first thing
you know." He says, "You see to much."
But you knew it was dangerous?
xxx xxx xxx
Who else was present at the time you had this conversation with Mr. McKenna? upright piece and then putting it up again.

Well, at that conversation as far as I can remember, we were all walking down
the track and I know that McCoy and Mr. Blakes was along at the time. I
remember them two, but we were all walking down the track in a bunch, but I
disremember them.
xxx xxx xxx
Was that the exact language that you used, that you wanted some fish plates
put on?
No, sir: I told him to look at that track. I says get some fish plates. I says if there
was any fish plates we would fix that.
What did the fish plates have to do with that?
It would have strengthened that joint.
Why didn't you put the 8 by 8 which was washed crossways in place?
That would have been taken the raising of the track and digging out along this
The plaintiff himself testified that he was present with Ellis at the time this
conversation was had with McKenna. It thus appears that on the morning in
question the plaintiff and McKenna were standing directly over the place where
the accident happened later in the day. The accident was caused, as the court
below found, by the washing away or displacement of the large 8 by 8 piece of
timber. This track was constructed as all other tracks are, all of it open work,
with no floor over the ties, and of course see the ground and the entire
construction of the road, including these large 8 by 8 pieces, the long stringers
placed thereon, the ties placed on these stringers, and the rails placed on the
ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was
out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement
was more markedly apparent even than it would appear from the testimony of
the defendant's witnesses. According to the plaintiff's witnesses, the water at
high tide reached the place in question and these 8 by 8 pieces were therefore
not laid upon the ground but were placed upon posts driven into the ground, the
height of the posts at this particular place being, according to the testimony of
the plaintiff's witnesses, from a foot to two feet and a half. As has been said,
Ellis testified that the reason why they did not put the 8 by 8 back in its place
was because that would have required the raising up of the track and digging
out along this upright piece and then putting it up again. McKenna to repair the track.

It conclusively appears from the evidence that the plaintiff, before the accident
happened, knew the exact condition of the track and was informed and knew of
the defect which caused the accident. There was no promise on the part of
reached this point in the track where the two stringers were without any
support of their ends. He either should have refused to work at all or he should
have placed himself behind the car, on the other side of it, or in front of it,
drawing it with a rope. He was guilty of contributory negligence and is not
entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a
case like this is no defense under the law in force in these Islands. To this
proposition I can not agree. The liability of the defendant is based in the
majority opinion upon articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its
negligence caused the accident. The reason why contradictory negligence on
the part of the plaintiff is a defense in this class of cases is that the negligence
of the defendant did not alone cause the accident. If nothing but that
negligence had existed, the accident would not have happened and, as I
understand it, in every case in which contradictory negligence is a defense it is
made so because the negligence of the plaintiff is the cause of the accident, to
this extent, that if the plaintiff had not been negligent the accident would not
have happened, although the defendant was also negligent. In other words, the
negligence of the defendant is not alone sufficient to cause the accident. It
requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory
negligence. The rule of the Roman law was: "Quod quis ex culap sua damnum
sentit, no intelligitur damnum sentire." (Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
Under the circumstances the plaintiff was negligent in placing himself on the
side of the car where he knew that he would be injured by the falling of the rails
from the car when they
The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from
another. (Law 25, tit. 5, partida 3.)
And they even said that when a man received an injury through his own acts,
the grievance should be against himself and not against another. (Law 2, tit. 7,
partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that
the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th
of June, 1888, and of the 20th of February, 1887, and in the criminal judgments
of the 20th of February 1888, the 90th of March, 1876, and the 6th of October,
1882. These cases do not throw much light upon the subject. The judgment of
the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in
point. In that case the supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the
injury thereby caused there exists the relation of cause and effect; but in the
injury caused should not be the result of acts or omissions of a third party, the
latter has no obligation to repair the same, even though such acts or omissions
were imprudent or unlawful, and much less when it is shown that the immediate
cause of the injury was the negligence of the injured person party himself.
Found the reasons above stated, and the court below having found that the
death of the deceased was due to his own imprudence, and not therefore due to
the absence of a guard at the grade crossing where the accident occurred, it
seems clear that

court in acquitting the railroad company of the complaint filed by the widow did
not violate the provisions of the aforesaid article of the Civil Code. It appears that the accident in this case took place at a grade crossing where,
according to the claim of the plaintiff, it was the duty of the railroad company to
For the same reason, although the authority granted to the railroad company to maintain husband was injured by a train at this crossing, his negligence
open the grade crossing without a special guard was nullified by the subsequent contributing to the injury according to the ruling of the court below. This
promulgation of the railroad police law and the regulations for the execution of judgment, then, amounts to a holding that a contributory negligence is a
the same, the result would be identical, leaving one of the grounds upon which defense according to the law of Spain. (See also judgment of the 21st of
the judgment of acquittal is based, to wit, that the accident was caused by the October, 1903, vol. 96 p. 400, Jurisprudencia Civil.)
imprudence of the injured party himself, unaffected.
Although in the Civil Code there is no express provision upon the subject, in the majority opinion, a rule dimetrically opposed to that put in force by the Code of
Code of Commerce there is found a distinct declaration upon it in reference to Commerce.
damages caused by collission at sea. Article 827 of the Code of Commerce is as
follows: The chief, is not the only, reason stated in the opinion for adopting the rule that
contradictory negligence is not a defense seems to be that such is the holding
If both vessels may be blamed for the collission, each one shall for liable for his of the later French decisions.
own damages, and both shall jointly responsible for the loss and damages
suffered to their cargoes. As to whether, if any liability existed in this case, it would be necessary in
accordance with the provisions of the Penal Code, or primary, in accordance
That article is an express recognition of the fact that in collision cases with the provision of the Civil Code, I express no opinion.
contributory negligence is a defense,
The judgment should, I think, be reversed and the defendant acquitted of the
I do not think that this court is justified in view of the Roman law, of the complaint.
provisions of the Partidas, of the judgment of March 7, 1902, of article 827 of
the Code of Commerce, and in the absence of any declaration upon the subject Carson, J., concurs.
in the Civil Code, in saying that it was the intention rule announced in the
========================== Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of
Appeals justice) Regina Ordoez-Benitez, for damages against the said PSBA
and its corporate officers. At the time of his death, Carlitos was enrolled in the
third year commerce course at the PSBA. It was established that his assailants
G.R. No. 84698 February 4, 1992 were not members of the school's academic community but were elements from
outside the school.
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM,
BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and Specifically, the suit impleaded the PSBA and the following school authorities:
LT. M. SORIANO, petitioners, Juan D. Lim (President), Benjamin P. Paulino (Vice -President), Antonio M.
vs. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M.
Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private
respondents) sought to adjudge them liable for the victim's untimely demise
COURT OF APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her capacity
due to their alleged negligence, recklessness and lack of security precautions,
as Presiding Judge of Branch 47, Regional Trial Court, Manila,
means and methods before, during and after the attack on the victim. During
SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents.
the proceedings a quo, Lt. M. Soriano terminated his relationship with the other
petitioners by resigning from his position in the school.
Balgos and Perez for petitioners.
Defendants a quo (now petitioners) sought to have the suit dismissed, alleging
Collantes, Ramirez & Associates for private respondents. that since they are presumably sued under Article 2180 of the Civil Code, the
complaint states no cause of action against them, as jurisprudence on the
subject is to the effect that academic institutions, such as the PSBA, are beyond
the ambit of the rule in the afore-stated article.
PADILLA, J.:
The respondent trial court, however, overruled petitioners' contention and thru
A stabbing incident on 30 August 1985 which caused the death of Carlitos an order dated 8 December 1987, denied their motion to dismiss. A subsequent
Bautista while on the second-floor premises of the Philippine School of Business motion for reconsideration was similarly dealt with by an order dated 25 January
Administration (PSBA) prompted the parents of the deceased to file suit in the 1988. Petitioners then assailed the trial court's disposition before the
respondent appellate court which, in a decision * promulgated on 10 June 1988,
1988, the respondent appellate court resolved to deny the petitioners' motion
for reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent appellate court primarily
anchored its decision on the law of quasi-delicts, as enunciated in Articles 2176
and 2180 of the Civil Code. 1 Pertinent portions of the appellate court's now
assailed ruling state:
Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old
Spanish Civil Code. The comments of Manresa and learned authorities on its
meaning should give way to present day changes. The law is not fixed and
flexible (sic); it must be dynamic. In fact, the greatest value and significance of
law as a rule of conduct in (sic) its flexibility to adopt to changing social
conditions and its capacity to meet the new challenges of progress.
Construed in the light of modern day educational system, Article 2180 cannot
be construed in its narrow concept as
held in the old case
of Exconde
vs. Capuno 2 and Mercado vs. Court
of
Appeals; 3hence, the
ruling in
the Palisoc 4 case that it should apply
to
all kinds of educational
institutions,
academic or vocational.
At any rate, the law holds the teachers and heads of the school staff liable
unless they relieve themselves of such liability pursuant to the last paragraph of
Article 2180 by "proving that they observed all the diligence to prevent
damage." This can only be done at a trial on the merits of the case. 5
mathematics or explore the realm of the arts and other sciences when bullets
are flying or grenades exploding in the air or where there looms around the
school premises a constant threat to life and limb. Necessarily, the school must
ensure that adequate steps are taken to maintain peace and order within the
campus premises and to prevent the breakdown thereof.
Because the circumstances of the present case evince a contractual relation
between the PSBA and Carlitos Bautista, the rules on quasi-delict do not really
govern. 8 A perusal of Article
affirmed the trial court's orders. On 22 August
While we agree with the respondent appellate court that the motion to dismiss
the complaint was correctly denied and the complaint should be tried on the
merits, we do not however agree with the premises of the appellate court's
ruling.
Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the
rule of in loco parentis. This Court discussed this doctrine in the afore-cited
cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court of
Appeals. 6 In all such cases, it had been stressed that the law (Article 2180)
plainly provides that the damage should have been caused or inflicted by pupils
or students of he educational institution sought to be held liable for the acts of
its pupils or students while in its custody. However, this material situation does
not exist in the present case for, as earlier indicated, the assailants of Carlitos
were not students of the PSBA, for whose acts the school could be made liable.
However, does the appellate court's failure to consider such material facts
mean the exculpation of the petitioners from liability? It does not necessarily
follow.
When an academic institution accepts students for enrollment, there is
established a contract between them, resulting in bilateral obligations which
both parties are bound to comply with. 7 For its part, the school undertakes to
provide the student with an education that would presumably suffice to equip
him with the necessary tools and skills to pursue higher education or a
profession. On the other hand, the student covenants to abide by the school's
academic requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of
providing their students with an atmosphere that promotes or assists in
attaining its primary undertaking of imparting knowledge. Certainly, no student
can absorb the intricacies of physics or higher
2176 shows that obligations arising from quasi-delicts or tort, also known as
extra-contractual obligations, arise only between parties not otherwise bound
by contract, whether express or implied. However, this impression has not
prevented this Court from determining the existence of a tort even when there
obtains a contract. In Air France vs . Carrascoso (124 Phil. 722), the private
respondent was awarded damages for his unwarranted expulsion from a first-
class seat aboard the petitioner airline. It is noted, however, that the Court
referred to the petitioner-airline's liability as one arising from tort, not one
arising from a contract of carriage. In effect, Air France is authority for the view
that liability from tort may exist even if there is a contract, for the act that
breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas,
248 Fed. 231).
This view was not all that revolutionary, for even as early as 1918, this Court
was already of a similar mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr.
Justice Fisher elucidated thus:
The field of non-contractual obligation is much broader than that of contractual
obligation, comprising, as it does, the whole extent of juridical human relations.
These two fields, figuratively speaking, concentric; that is to say, the mere fact
that a person is bound to another by contract does not relieve him from extra-
contractual liability to such person. When such a contractual relation exists the
obligor may break the contract under such conditions that the same act which
constitutes a breach of the contract would have constituted the source of an
extra-contractual obligation had no contract existed between the parties.
Immediately what comes to mind is the chapter of the Civil Code on Human
Relations, particularly Article 21, which provides:
Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good custom or public policy shall compensate the latter for
This Court is not unmindful of the attendant difficulties posed by the obligation
of schools, above-mentioned, for conceptually a school, like a common carrier,
cannot be an insurer of its students against all risks. This is specially true in the
populous student communities of the so-called "university belt" in Manila where
there have been reported several incidents ranging from gang wars to other
forms of hooliganism. It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their premises, for notwithstanding
the security measures installed, the same may still fail against an individual or
group determined to carry out a nefarious deed inside school premises and
environs. Should this be the case, the school may still avoid liability by proving
that the breach of its contractual obligation to the students was not due to its
negligence, here statutorily defined to be the omission of that degree of
diligence which is required by the nature of the obligation and corresponding to
the circumstances of persons, time and place. 9
As the proceedings a quo have yet to commence on the substance of the
private respondents' complaint, the record is bereft of all the material facts.
Obviously, at this stage, only the trial court can make such a determination
from the evidence still to unfold.
the damage. (emphasis supplied).
Air France penalized the racist policy of the airline which emboldened the
petitioner's employee to forcibly oust the private respondent to cater to the
comfort of a white man who allegedly "had a better right to the seat." In Austro-
American, supra, the public embarrassment caused to the passenger was the
justification for the Circuit Court of Appeals, (Second Circuit), to award damages
to the latter. From the foregoing, it can be concluded that should the act which
breaches a contract be done in bad faith and be violative of Article 21, then
there is a cause to view the act as constituting a quasi-delict.
In the circumstances obtaining in the case at bar, however, there is, as yet, no
finding that the contract between the school and Bautista had been breached
thru the former's negligence in providing proper security measures. This would
be for the trial court to determine. And, even if there be a finding of negligence,
the same could give rise generally to a breach of contractual obligation only.
Using the test of Cangco, supra, the negligence of the school would not be
relevant absent a contract. In fact, that negligence becomes material only
because of the contractual relation between PSBA and Bautista. In other words,
a contractual relation is a condition sine qua non to the school's liability. The
negligence of the school cannot exist independently of the contract, unless the
negligence occurs under the circumstances set out in Article 21 of the Civil
Code.
WHEREFORE, the foregoing premises considered, the petition is DENIED. The
court of origin (RTC, Manila, Br. 47) is hereby ordered to continue proceedings
consistent with this ruling of the Court. Costs against the petitioners.
SO ORDERED.
==================================
G.R. No. L-47745 April 15, 1988
JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR.,
NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY
A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA,
SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A.
AMADORA, petitioners vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE- RECOLETOS,
VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO
ABELLANA, PABLITO DAFFON thru his parents and natural guardians,
MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his
guardian, A. FRANCISCO ALONSO, respondents.
Jose S. Amadora & Associates for petitioners.
Padilla Law Office for respondents.
a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his
expectations and his life as well. The victim was only seventeen years old. 1
Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the
herein petitioners, as the victim's parents, filed a civil action for damages under
Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its
rector the high school principal, the dean of boys, and the physics teacher,
together with Daffon and two other students, through their respective parents.
The complaint against the students was later dropped. After trial, the Court of
First Instance of Cebu held the remaining defendants liable to the plaintiffs in
the sum of P294,984.00, representing death compensation, loss of earning
capacity, costs of litigation, funeral expenses, moral damages, exemplary
damages, and attorney's fees . 3 On appeal to the respondent court, however,
the decision was reversed and all the defendants were completely absolved . 4
In its decision, which is now the subject of this petition for certiorari under Rule that had been confiscated from Gumban and that their son would not have been
45 of the Rules of Court, the respondent court found that Article 2180 was not
applicable as the Colegio de San Jose-Recoletos was not a school of arts and
trades but an academic institution of learning. It also held that the students
were not in the custody of the school at the time of the incident as the semester
had already ended, that there was no clear identification of the fatal gun and
that in any event the defendant, had exercised the necessary diligence in
preventing the injury. 5
The basic undisputed facts are that Alfredo Amadora went to the San Jose-
Recoletos on April 13, 1972, and while in its auditorium was shot to death by
Pablito Daffon, a classmate. On the implications and consequences of these
facts, the parties sharply disagree.
Three cases have so far been decided by the Court in connection with the
above-quoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of
Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this
opinion for a better resolution of the case at bar.
CRUZ, J.:
Like any prospective graduate, Alfredo Amadora was looking forward to the
commencement exercises where he would ascend the stage and in the
presence of his relatives and friends receive his high school diploma. These
ceremonies were scheduled on April 16, 1972. As it turned out, though, fate
would intervene and deny him that awaited experience. On April 13, 1972, while
they were in the auditorium of their school, the Colegio de San Jose-Recoletos,
The petitioners contend that their son was in the school to show his physics
experiment as a prerequisite to his graduation; hence, he was then under the
custody of the private respondents. The private respondents submit that Alfredo
Amadora had gone to the school only for the purpose of submitting his physics
report and that he was no longer in their custody because the semester had
already ended.
There is also the question of the identity of the gun used which the petitioners
consider important because of an earlier incident which they claim underscores
the negligence of the school and at least one of the private respondents. It is
not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the
dean of boys, confiscated from Jose Gumban an unlicensed pistol but later
returned it to him without making a report to the principal or taking any further
action . 6 As Gumban was one of the companions of Daffon when the latter fired
the gun that killed Alfredo, the petitioners contend that this was the same pistol
killed if it had not been returned by Damaso. The respondents say, however,
that there is no proof that the gun was the same firearm that killed Alfredo.
Resolution of all these disagreements will depend on the interpretation of Article
2180 which, as it happens, is invoked by both parties in support of their
conflicting positions. The pertinent part of this article reads as follows:
Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices so long as they
remain in their custody.
In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary
School and a Boy Scout, attended a Rizal Day parade on instructions of the city
school supervisor. After the parade, the boy boarded a jeep, took over its wheel
and drove it so recklessly that it turned turtle, resulting in the death of two of its not take part but the other members of the court concurred in this decision
passengers. Dante was found guilty of double homicide with reckless promulgated on May 30, 1960.
imprudence. In the separate civil action flied against them, his father was held
solidarily liable with him in damages under Article 1903 (now Article 2180) of In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was
the Civil Code for the tort committed by the 15-year old boy. killed by a classmate with fist blows in the laboratory of the Manila Technical
Institute. Although the wrongdoer who was already of age was not
This decision, which was penned by Justice Bautista Angelo on June 29,1957, boarding in the school, the head thereof and the teacher in charge were held
exculpated the school in an obiter dictum (as it was not a party to the case) on solidarily liable with him. The Court declared through Justice Teehankee:
the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with
whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that The phrase used in the cited article "so long as (the students) remain in their
it was the school authorities who should be held liable Liability under this rule, custody" means the protective and supervisory custody that the school and
he said, was imposed on (1) teachers in general; and (2) heads of schools of its heads and teachers exercise over the pupils and students for as long as they
arts and trades in particular. The modifying clause "of establishments of arts are at attendance in the school, including recess time. There is nothing in the
and trades" should apply only to "heads" and not "teachers." law that requires that for such liability to attach, the pupil or student who
commits the tortious act must live and board in the school, as erroneously held
Exconde was reiterated in the Mercado Case, and with an elaboration. A student by the lower court, and the dicta in Mercado (as well as in Exconde) on which it
cut a classmate with a razor blade during recess time at the Lourdes Catholic relied, must now be deemed to have been set aside by the present decision.
School in Quezon City, and the parents of the victim sued the culprits parents
for damages. Through Justice Labrador, the Court declared in another obiter (as This decision was concurred in by five other members, 10 including Justice J.B.L.
the school itself had also not been sued that the school was not liable because Reyes, who stressed, in answer to the dissenting opinion, that even students
it was not an establishment of arts and trades. Moreover, the custody already of age were covered by the provision since they were equally in the
requirement had not been proved as this "contemplates a situation where the custody of the school and subject to its discipline. Dissenting with three others,
student lives and boards with the teacher, such that the control, direction and 11
Justice Makalintal was for retaining the custody interpretation in
influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did
Mercado and submitted that the rule should apply only to torts committed by After an exhaustive examination of the problem, the Court has come to the
students not yet of age as the school would be acting only in loco parentis. conclusion that the provision in question should apply to all schools, academic
as well as non-academic. Where the school is academic rather than technical or
In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the vocational in nature, responsibility for the tort committed by the student will
Exconde Case but added that "since the school involved at bar is a non- attach to the teacher in charge of such student, following the first part of the
academic school, the question as to the applicability of the cited codal provision provision. This is the general rule. In the case of establishments of arts and
to academic institutions will have to await another case wherein it may properly trades, it is the head thereof, and only he, who shall be held liable as an
be raised." exception to the general rule. In other words, teachers in general shall be liable
for the acts of their students except where the school is technical in nature, in
This is the case. which case it is the head thereof who shall be answerable. Following the canon
of reddendo singula singulis "teachers" should apply to the words "pupils and
Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been students" and "heads of establishments of arts and trades" to the word
directly impleaded and is sought to be held liable under Article 2180; and unlike "apprentices."
in Palisoc, it is not a school of arts and trades but an academic institution of
learning. The parties herein have also directly raised the question of whether or The Court thus conforms to the dissenting opinion expressed by Justice J.B.L.
not Article 2180 covers even establishments which are technically not schools Reyes in Exconde where he said in part:
of arts and trades, and, if so, when the offending student is supposed to be "in
its custody." I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers
of arts and trades and not to academic ones. What substantial difference is
there between them insofar as concerns the proper supervision and vice over
their pupils? It cannot be seriously contended that an academic teacher is
exempt from the duty of watching that his pupils do not commit a tort to the
detriment of third Persons, so long as they are in a position to exercise authority
and Supervision over the pupil. In my opinion, in the phrase "teachers or heads
of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the
words "arts and trades" does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version of the equivalent terms
"preceptores y artesanos" used in the Italian and French Civil Codes.
school nor with the authority and supervision of the teacher while the child is
under instruction. And if there is no authority, there can be no responsibility.
There is really no substantial distinction between the academic and the non-
academic schools insofar as torts committed by their students are concerned.
The same vigilance is expected from the teacher over the students under his
control and supervision, whatever the nature of the school where he is teaching.
The suggestion in the Exconde and Mercado Cases is that the provision would
make the teacher or even the head of the school of arts and trades liable for an
injury caused by any student in its custody but if that same tort were
committed in an academic school, no liability would attach to the teacher or the
school head. All other circumstances being the same, the teacher or the head of
the academic school would be absolved whereas the teacher and the head of
the non-academic school would be held liable, and simply because the latter is
a school of arts and trades.
The Court cannot see why different degrees of vigilance should be exercised by persons directly dealing with the students. The head of the academic school had
the school authorities on the basis only of the nature of their respective schools. then (as now) only a vicarious relationship with the students. Consequently,
There does not seem to be any plausible reason for relaxing that vigilance
simply because the school is academic in nature and for increasing such
vigilance where the school is non-academic. Notably, the injury subject of
liability is caused by the student and not by the school itself nor is it a result of
the operations of the school or its equipment. The injury contemplated may be
caused by any student regardless of the school where he is registered. The
teacher certainly should not be able to excuse himself by simply showing that
he is teaching in an academic school where, on the other hand, the head would contract of their heads with the students. Article 2180, however, remains
be held liable if the school were non-academic.
These questions, though, may be asked: If the teacher of the academic school is account the charges in the situation subject to be regulated, sees fit to enact
The other matter to be resolved is the duration of the responsibility of the
teacher or the head of the school of arts and trades over the students. Is such
responsibility co-extensive with the period when the student is actually
undergoing studies during the school term, as contended by the respondents
If, as conceded by all commentators, the basis of the presumption of negligence
of Art. 1903 in some culpa in vigilando that the parents, teachers, etc. are
supposed to have incurred in the exercise of their authority, it would seem clear
that where the parent places the child under the effective authority of the
teacher, the latter, and not the parent, should be the one answerable for the
torts committed while under his custody, for the very reason/that the parent is
not supposed to interfere with the discipline of the
to be held answerable for the torts committed by his students, why is it the
head of the school only who is held liable where the injury is caused in a school
of arts and trades? And in the case of the academic or non- technical school,
why not apply the rule also to the head thereof instead of imposing the liability
only on the teacher?
The reason for the disparity can be traced to the fact that historically the head
of the school of arts and trades exercised a closer tutelage over his pupils than
the head of the academic school. The old schools of arts and trades were
engaged in the training of artisans apprenticed to their master who personally
and directly instructed them on the technique and secrets of their craft. The
head of the school of arts and trades was such a master and so was personally
involved in the task of teaching his students, who usually even boarded with
him and so came under his constant control, supervision and influence. By
contrast, the head of the academic school was not as involved with his students
and exercised only administrative duties over the teachers who were the
while he could not be directly faulted for the acts of the students, the head of
the school of arts and trades, because of his closer ties with them, could be so
blamed.
It is conceded that the distinction no longer obtains at present in view of the
expansion of the schools of arts and trades, the consequent increase in their
enrollment, and the corresponding diminution of the direct and personal
unchanged. In its present state, the provision must be interpreted by the Court
according to its clear and original mandate until the legislature, taking into
the necessary amendment.
and impliedly admitted by the petitioners themselves?
From a reading of the provision under examination, it is clear that while the
custody requirement, to repeat Palisoc v. Brillantes , does not mean that the
student must be boarding with the school authorities, it does signify that the
student should be within the control and under the influence of the school
authorities at the time of the occurrence of the injury. This does not necessarily
mean that such, custody be co-terminous with the semester, beginning with the
start of classes and ending upon the close thereof, and excluding the time
before or after such period, such as the period of registration, and in the case of
graduating students, the period before the commencement exercises. In the
view of the Court, the student is in the custody of the school authorities as long
as he is under the control and influence of the school and within its premises,
whether the semester has not yet begun or has already ended.
It is too tenuous to argue that the student comes under the discipline of the
school only upon the start of classes notwithstanding that before that day he
has already registered and thus placed himself under its rules. Neither should
such discipline be deemed ended upon the last day of classes notwithstanding
that there may still be certain requisites to be satisfied for completion of the
course, such as submission of reports, term papers, clearances and the like.
During such periods, the student is still subject to the disciplinary authority of
the school and cannot consider himself released altogether from observance of
its rules.
As long as it can be shown that the student is in the school premises in
pursuance of a legitimate student objective, in the exercise of a legitimate
student right, and even in the enjoyment of a legitimate student right, and even
in the enjoyment of a legitimate student privilege, the responsibility of the
school authorities over the student continues. Indeed, even if the student
Such defense is, of course, also available to the teacher or the head of the
school of arts and trades directly held to answer for the tort committed by the
student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from
the liability imposed by Article 2180, which also states that:
The responsibility treated of in this article shall cease when the Persons herein
mentioned prove that they observed all the diligence of a good father of a
family to prevent damages.
In this connection, it should be observed that the teacher will be held liable not
only when he is acting in loco parentis for the law does not require that the
offending student be of minority age. Unlike the parent, who wig be liable only if
his child is still a minor, the teacher is held answerable by the law for the act of
the student under him regardless of the student's age. Thus, in the Palisoc Case,
liability attached to the teacher and the head of the technical school although
the wrongdoer was already of age. In this sense, Article 2180 treats the parent
should be doing nothing more than relaxing in the campus in the company of
his classmates and friends and enjoying the ambience and atmosphere of the
school, he is still within the custody and subject to the discipline of the school
authorities under the provisions of Article 2180.
During all these occasions, it is obviously the teacher-in-charge who must
answer for his students' torts, in practically the same way that the parents are
responsible for the child when he is in their custody. The teacher -in -charge is
the one designated by the dean, principal, or other administrative superior to
exercise supervision over the pupils in the specific classes or sections to which
they are assigned. It is not necessary that at the time of the injury, the teacher
be physically present and in a position to prevent it. Custody does not connote
immediate and actual physical control but refers more to the influence exerted
on the child and the discipline instilled in him as a result of such influence. Thus,
for the injuries caused by the student, the teacher and not the parent shag be
held responsible if the tort was committed within the premises of the school at
any time when its authority could be validly exercised over him.
In any event, it should be noted that the liability imposed by this article is
supposed to fall directly on the teacher or the head of the school of arts and
trades and not on the school itself. If at all, the school, whatever its nature, may
be held to answer for the acts of its teachers or even of the head thereof under
the general principle of respondeat superior, but then it may exculpate itself
from liability by proof that it had exercised the diligence of a bonus
paterfamilias.
more favorably than the teacher.
The Court is not unmindful of the apprehensions expressed by Justice Makalintal
in his dissenting opinion in Palisoc that the school may be unduly exposed to
liability under this article in view of the increasing activism among the students
that is likely to cause violence and resulting injuries in the school premises. That
is a valid fear, to be sure. Nevertheless, it should be repeated that, under the
present ruling, it is not the school that will be held directly liable. Moreover, the
defense of due diligence is available to it in case it is sought to be held
answerable as principal for the acts or omission of its head or the teacher in its
employ.
The school can show that it exercised proper measures in selecting the head or
its teachers and the appropriate supervision over them in the custody and
instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these
measures are effected through the assistance of an adequate security force to
help the teacher physically enforce those rules upon the students. Ms should
bolster the claim of the school that it has taken adequate steps to prevent any
injury that may be committed by its students.
A fortiori, the teacher himself may invoke this defense as it would otherwise be
unfair to hold him directly answerable for the damage caused by his students as
long as they are in the school premises and presumably under his influence. In
this respect, the Court is disposed not to expect from the teacher the same
measure of responsibility imposed on the parent for their influence over the
child is not equal in degree. Obviously, the parent can expect more obedience
from the child because the latter's dependence on him is greater than on the
teacher. It need not be stressed that such dependence includes the child's
support and sustenance whereas submission to the teacher's influence, besides
is no longer under the former's control, there is then all the more reason for
leniency in assessing the teacher's responsibility for the acts of the student.
Applying the foregoing considerations, the Court has arrived at the following
conclusions:
At the time Alfredo Amadora was fatally shot, he was still in the custody of the
authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth
year classes had formally ended. It was immaterial if he was in the school
auditorium to finish his physics experiment or merely to submit his physics
report for what is important is that he was there for a legitimate purpose. As
previously observed, even the mere savoring of the company of his friends in
the premises of the school is a legitimate purpose that would have also brought
him in the custody of the school authorities.
The rector, the high school principal and the dean of boys cannot be held liable
because none of them was the teacher-in-charge as previously defined. Each of
them was exercising only a general authority over the student body and not the
direct control and influence exerted by the teacher placed in charge of
particular classes or sections and thus immediately involved in its discipline.
The evidence of the parties does not disclose who the teacher-in-charge of the
offending student was. The mere fact that Alfredo Amadora had gone to school
that day in connection with his physics report did not necessarily make the
physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's
killer.
At any rate, assuming that he was the teacher-in-charge, there is no showing
that Dicon was negligent in enforcing discipline upon Daffon or that he had
waived observance of the rules and regulations of the school or condoned their
non-observance. His absence when the tragedy happened cannot be considered
being coterminous with the period of custody is usually enforced only because
of the students' desire to pass the course. The parent can instill more las
discipline on the child than the teacher and so should be held to a greater
accountability than the teacher for the tort committed by the child.
And if it is also considered that under the article in question, the teacher or the
head of the school of arts and trades is responsible for the damage caused by
the student or apprentice even if he is already of age and therefore less
tractable than the minor then there should all the more be justification to
require from the school authorities less accountability as long as they can prove
reasonable diligence in preventing the injury. After all, if the parent himself is no
longer liable for the student's acts because he has reached majority age and so
against him because he was not supposed or required to report to school on
that day. And while it is true that the offending student was still in the custody
of the teacher-in-charge even if the latter was physically absent when the tort
was committed, it has not been established that it was caused by his laxness in
enforcing discipline upon the student. On the contrary, the private respondents
have proved that they had exercised due diligence, through the enforcement of
the school regulations, in maintaining that discipline.
In the absence of a teacher-in-charge, it is probably the dean of boys who
should be held liable especially in view of the unrefuted evidence that he had
earlier confiscated an unlicensed gun from one of the students and returned the
same later to him without taking disciplinary action or reporting the matter to
higher authorities. While this was clearly negligence on his part, for which he
deserves sanctions from the school, it does not necessarily link him to the
shooting of Amador as it has not been shown that he confiscated and returned
pistol was the gun that killed the petitioners' son.
Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be
held directly liable under the article because only the teacher or the head of the
school of arts and trades is made responsible for the damage caused by the
student or apprentice. Neither can it be held to answer for the tort committed
by any of the other private respondents for none of them has been found to
have been charged with the custody of the offending student or has been
remiss in the discharge of his duties in connection with such custody.
In sum, the Court finds under the facts as disclosed by the record and in the
light of the principles herein announced that none of the respondents is liable
for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the
latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13,
1972. While we deeply sympathize with the
petitioners over the loss of their son under the tragic circumstances here
related, we nevertheless are unable to extend them the material relief they
seek, as a balm to their grief, under the law they have invoked.
WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It
is so ordered.
Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Grio-
Aquino, JJ., concur.
Fernan, Padilla and Teehankee, C.J., JJ, took no part.
Separate Opinions
MELENCIO-HERRERA, J., concurring and dissenting:
Art. 362. The relations between teacher and pupil, professor and student, are
fixed by government regulations and those of each school or institution....
But even such rules and regulations as may be fixed can not contravene the
concept of substitute parental authority.
The rationale of liability of school heads and teachers for the tortious acts of
their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus:
The protective custody of the school heads and teachers is mandatorily
substituted for that of the parents, and hence, it becomes their obligation as
well as that of the school itself to provide proper supervision of the students'
activities during the whole time that they are at attendance in the school,
including recess time , as well as to take the necessary precautions to protect
the students in their custody from dangers and hazards that would reasonably
I concur, except with respect to the restricted meaning given the term "teacher"
in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability
to occasions where there are classes under the immediate charge of a teacher,
which does not seem to be the intendment of the law.
As I understand it, the philosophy of the law is that whoever stands in loco
parentis will have the same duties and obligations as parents whenever in such
a standing. Those persons are mandatorily held liable for the tortious acts of
pupils and students so long as the latter remain in their custody, meaning their
protective and supervisory custody.
Thus Article 349 of the Civil Code enumerates the persons who stand in loco
parentis and thereby exercise substitute parental authority:
Art. 349 The following persons shall exercise substitute parental authority:
xxx xxx xxx
2) Teachers and professors
xxx xxx xxx
4) Directors of trade establishments, with regard to apprentices;'
Article 352 of the Civil Code further provides:
be anticipated, including injuries that some students themselves may inflict
wilfully or through negligence on their fellow students. (Emphasis supplied)
Of course, as provided for in the same Article 2180, the responsibility treated of
shall cease when the persons mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
And while a school is, admittedly, not directly liable since Article 2180 speaks
only of teachers and schools heads, yet, by virtue of the same provision, the
school, as their employer, may be held liable for the failure of its teachers or
school heads to perform their mandatory legal duties as substitute parents
(Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the
school may exculpate itself from liability by proving that it had exercised the
diligence of a good father of the family.
Art. 2180. x x x

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
xxx xxx xxx
Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it
is apparent that the Code Commission had already segregated the classification
of "teachers and professors" vis-a-vis their pupils, from "directors of trade
and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is bound to
result in mischief and injustice.
First, we no longer have masters and apprentices toiling in schools of arts and
trades. Students in "technological" colleges and universities are no different
from students in liberal arts or professional schools. Apprentices now work in
regular shops and factories and their relationship to the employer is covered by
laws governing the employment relationship and not by laws governing the
teacherstudent relationship.
Second, except for kindergarten, elementary, and perhaps early high school
students, teachers are often no longer objects of veneration who are given the
respect due to substitute parents. Many students in their late teens or early
adult years view some teachers as part of a bourgeois or reactionary group
whose advice on behaviour, deportment, and other non-academic matters is not
only resented but actively rejected. It ,seems most unfair to hold teachers liable
on a presumption juris tantum of negligence for acts of students even under
circumstances where strictly speaking there could be no in loco parentis
relationship. Why do teachers have to prove the contrary of negligence to be
freed from solidary liability for the acts f bomb-throwing or pistol packing
students who would just as soon hurt them as they would other members of the
so-called-establishment.
The ordinary rules on quasi-delicta should apply to teachers and schools of
whatever nature insofar as grown up students are concerned. The provision of
Art. 2180 of the Civil Code involved in this case has outlived its purpose. The
Court cannot make law. It can only apply the law with its imperfections.
However, the Court can suggest that such a law should be amended or
repealed.
2) Teachers and professors
xxx xxx xxx
establishments, with regard to their apprentices."
GUTIERREZ, JR., J., concurring:
I concur in the Court's opinion so carefully analyzed and crafted by Justice
Isagani A. Cruz. However, I would like to stress the need for a major amendment
to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it
refers to teachers or heads of establishments of arts and trades in relation to
pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic
of the past and contemplates a situation long gone
Separate Opinions
MELENCIO-HERRERA, J., concurring and dissenting:
I concur, except with respect to the restricted meaning given the term "teacher"
in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability
to occasions where there are classes under the immediate charge of a teacher,
which does not seem to be the intendment of the law.
As I understand it, the philosophy of the law is that whoever stands in loco
parentis will have the same duties and obligations as parents whenever in such
a standing. Those persons are mandatorily held liable for the tortious acts of
pupils and students so long as the latter remain in their custody, meaning their
protective and supervisory custody.
Thus Article 349 of the Civil Code enumerates the persons who stand in loco
parentis and thereby exercise substitute parental authority:
Art. 349 The following persons shall exercise substitute parental authority:
xxx xxx xxx
4) Directors of trade establishments, with regard to apprentices;'
Article 352 of the Civil Code further provides:
Art. 362. The relations between teacher and pupil, professor and student, are
And while a school is, admittedly, not directly liable since Article 2180 speaks
fixed by government regulations and those of each school or institution.... only of teachers and schools heads, yet, by virtue of the same provision, the
school, as their employer, may be held liable for the failure of its teachers or
But even such rules and regulations as may be fixed can not contravene the school heads to perform their mandatory legal duties as substitute parents
concept of substitute parental authority. (Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the
school may exculpate itself from liability by proving that it had exercised the
The rationale of liability of school heads and teachers for the tortious acts of diligence of a good father of the family.
their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus:
Art. 2180. x x x
The protective custody of the school heads and teachers is mandatorily
substituted for that of the parents, and hence, it becomes their obligation as Employers shall be liable for the damages caused by their employees and
well as that of the school itself to provide proper supervision of the students' household helpers acting within the scope of their assigned tasks, even though
activities during the whole time that they are at attendance in the school, the former are not engaged in any business or industry.
including recess time , as well as to take the necessary precautions to protect
the students in their custody from dangers and hazards that would reasonably xxx xxx xxx
be anticipated, including injuries that some students themselves may inflict
wilfully or through negligence on their fellow students. (Emphasis supplied) Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it
is apparent that the Code Commission had already segregated the classification
Of course, as provided for in the same Article 2180, the responsibility treated of of "teachers and professors" vis-a-vis their pupils, from "directors of trade
shall cease when the persons mentioned prove that they observed all the establishments, with regard to their apprentices."
diligence of a good father of a family to prevent damage.
GUTIERREZ, JR., J., concurring: adult years view some teachers as part of a bourgeois or reactionary group
whose advice on behaviour, deportment, and other non-academic matters is not
I concur in the Court's opinion so carefully analyzed and crafted by Justice only resented but actively rejected. It ,seems most unfair to hold teachers liable
Isagani A. Cruz. However, I would like to stress the need for a major amendment on a presumption juris tantum of negligence for acts of students even under
to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it circumstances where strictly speaking there could be no in loco parentis
refers to teachers or heads of establishments of arts and trades in relation to relationship. Why do teachers have to prove the contrary of negligence to be
pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic freed from solidary liability for the acts f bomb-throwing or pistol packing
of the past and contemplates a situation long gone and out of date. In a Palisoc students who would just as soon hurt them as they would other members of the
v. Brillantes (41 SCRA 548) situation, it is bound to result in mischief and so-called-establishment.
injustice.
The ordinary rules on quasi-delicta should apply to teachers and schools of
First, we no longer have masters and apprentices toiling in schools of arts and whatever nature insofar as grown up students are concerned. The provision of
trades. Students in "technological" colleges and universities are no different Art. 2180 of the Civil Code involved in this case has outlived its purpose. The
from students in liberal arts or professional schools. Apprentices now work in Court cannot make law. It can only apply the law with its imperfections.
regular shops and factories and their relationship to the employer is covered by However, the Court can suggest that such a law should be amended or
laws governing the employment relationship and not by laws governing the repealed.
teacherstudent relationship.

Second, except for kindergarten, elementary, and perhaps early high school
students, teachers are often no longer objects of veneration who are given the ============================
respect due to substitute parents. Many students in their late teens or early

G.R. No. 112576 October 26, 1994
Fornier, Lava & Fornier for private respondents.
ROMERO, J.:
This petition for certiorari seeks to annul the decision of respondent Court of
Appeals dated October 29, 1992 in CA GR CV No. 26571 affirming the
decision of the Regional Trial Court of Lipa, Batangas Branch XIII for damages,
and the Resolution dated November 11, 1993 denying petitioner's motion for
reconsideration of the aforesaid decision.
The case emanated from a dispute between the Rural Bank of Padre Garcia, Inc.
(RBPG) and Metropolitan Bank and Trust Company (MBTC) relative to a credit
memorandum dated April 5, 1982 from the Central Bank in the amount of
P304,000.00 in favor of RBPG.
The records show that Isabel Katigbak is the president and director of RBPG,
owning 65% of the shares thereof. Metropolitan Bank and Trust Company
(MBTC) is the rural bank's depository bank, where Katigbak maintains current
accounts with MBTC's main office in Makati as well as its Lipa City branch.
On April 6, 1982, MBTC received from the Central Bank a credit memo dated
April 5, 1982 that its demand deposit account was credited with P304,000.00
for the account of RBPG, representing loans granted by the Central Bank to
RBPG. On the basis of said credit memo, Isabel Katigbak issued several checks
against its account with MBTC in the total amount of P300,000.00, two (2) of
which (Metrobank Check Nos. 0069 and 0070) were payable to Dr. Felipe C.
Roque and Mrs. Eliza Roque for P25,000.00 each. Said checks issued to Dr. and
received another insulting call from Mr. Dungo ("Bakit kayo nag-issue ng tseke
na wala namang pondo, Three Hundred Thousand na .") 1 When Mrs. San Juan
(CA-GR CV No. 26571)
METROPOLITAN BANK AND TRUST COMPANY, petitioner,
vs.
THE HON. COURT OF APPEALS, RURAL BANK OF PADRE GARCIA, INC.
and ISABEL R. KATIGBAK, respondents.
Makalintal, Barot, Torres & Ibarra for petitioner.
Mrs. Roque were deposited by the Roques with the Philippine Banking
Corporation, Novaliches Branch in Quezon City. When these checks were
forwarded to MBTC on April 12, 1982 for payment (six (6) days from receipt of
the Credit Memo), the checks were returned by MBTC with the annotations
"DAIF TNC" (Drawn Against Insufficient Funds Try Next Clearing) so they
were redeposited on April 14, 1982. These were however again dishonored and
returned unpaid for the following reason: "DAIF TNC
NO ADVICE FROM CB."
After the second dishonor of the two (2) checks, Dr. Felipe Roque, a member of
the Board of Directors of Philippine Banking Corporation, allegedly went to the
Office of Antonio Katigbak, an officer of RBPG, chiding him for the bouncing
checks. In order to appease the doctor, RBPG paid Dr. Roque P50,000.00 in cash
to replace the aforesaid checks.
On April 13, 1982, Isabel Katigbak who was in Hongkong on a business-vacation
trip together with her sons Alfredo and Antonio, both of whom were also officers
of RBPG, received overseas phone calls from Mrs. Maris Katigbak -San Juan at
her residence in San Lorenzo Village, Makati, informing Isabel Katigbak that a
certain Mr. Rizal Dungo, Assistant Cashier of MBTC insisted on talking to her
(Mrs. San Juan), berating her about the checks which bounced, saying "Nag-
issue kayo ng tseke, wala namang pondo," even if it was explained to Mr. Dungo
that Mrs. San Juan was not in any way connected with RBPG.
Mrs. Katigbak testified that she informed Mrs. San Juan to request defendant
MBTC to check and verify the records regarding the aforementioned Central
Bank credit memo for P304,000.00 in favor of RBPG as she was certain that the
checks were sufficiently covered by the CB credit memo as early as April 6,
1994, but the following day, Mrs. San Juan
explained to him the need to verify the records regarding the Central Bank
memo, he merely brushed it aside, telling her sarcastically that he was very
sure that no such credit memo existed. Mrs. San Juan was constrained to place
another long distance call to Mrs. Katigbak in Hongkong that evening. Tense and
angered, the Katigbaks had to cut short their Hongkong stay with their
respective families and flew back to Manila, catching the first available flight on
April 15, 1982.
Immediately upon arrival, Mrs. Katigbak called up MBTC, through a Mr. Cochico,
for a re -examination of the records of MBTC regarding the Central Bank credit
memo dated April 5, 1982 for P304,000.00. Mr. Dungo, to whom Cochico
handed over the phone, allegedly arrogantly said: "Bakit kayo magagalit , wala
naman kayong pondo?" These remarks allegedly so shocked Mrs. Katigbak that
her blood pressure rose to a dangerous level and she had to undergo medical
treatment at the Makati Medical Center for two (2) days.
Metrobank not only dishonored the checks issued by RBPG, the latter was
issued four (4) debit memos representing service and penalty charges for the
returned checks.
RBPG and Isabel Katigbak filed Civil Case No. V-329 in the RTC of Lipa, Batangas
Branch XIII against the Metropolitan Bank and Trust Company for damages on
April 26, 1983.
The ultimate facts as alleged by the defendant MBTC in its answer are as
follows: that on April 6, 1982, its messenger, Elizer Gonzales, received from the
Central Bank several credit advices on rural bank accounts, which included that
of plaintiff RBPG in the amount of P304,000.00; that due to the inadvertence of
pay P500,000.00 as moral damages, considering that RBPG's credit standing
and business reputation were damaged by the wrongful acts of defendant's
employees, coupled with the rude treatment received by Isabel Katigbak at the
hands of Mr. Dungo, all of which impelled her to seek medical treatment;
pay P100,000.00 as attorney's fees and litigation expenses; and.
pay the costs of suit.
The lower court did not award actual damages in the amount of P50,000.00
representing the amount of the two (2) checks payable to Dr. Felipe C. Roque
and Mrs. Elisa Roque for P25,000 each, as it found no showing that Mr. Antonio
Katigbak who allegedly paid the amount was actually reimbursed by plaintiff
RBPG. Moreover, the court held that no actual damages could have been
suffered by plaintiff RBPG because on April 15, 1982, the Central Bank credit
said messenger, the credit advice issued in favor of plaintiff RBPG was not
delivered to the department in charge of processing the same; consequently,
when MBTC received from the clearing department the checks in question, the
stated balance in RBPG's account was only P5,498.58 which excluded the
unprocessed credit advice of P304,000.00 resulting in the dishonor of the
aforementioned checks; that as regards the P304,000.00 which was a re-
discounting loan from the Central Bank, the same was credited only on April 15,
1982 after the Central Bank finally confirmed that a credit advice was indeed
issued in favor of RBPG; that after the confirmation, MBTC credited the amount
of the credit advice to plaintiff RBPG's account and thru its officers, allegedly
conveyed personally on two occasions its apologies to plaintiffs to show that the
bank and its officers acted with no deliberate intent on their part to cause injury
or damage to plaintiffs, explaining the circumstances that gave rise to the
bouncing checks situation. Metrobank's negligence arising from their
messenger's misrouting of the credit advice resulting in the return of the checks
in question, despite daily reporting of credit memos and a corresponding daily
radio message confirmation, (as shown by Exhibit "I," the Investigation Report
of the bank's Mr. Valentino Elevado) and Mr. Dungo's improper handling of
clients led to the messenger's dismissal from service and Mr. Dungo's transfer
from Metro Manila to Mindoro.
The threshold issue was whether or not, under the facts and circumstances of
the case, plaintiff may be allowed to recover actual, moral and exemplary
damages, including attorney's fees, litigation expenses and the costs of the suit.
On August 25, 1989, the RTC of Lipa City rendered a decision 2 in favor of
plaintiffs and against the defendant MBTC, ordering the latter to:
1. pay plaintiff Isabel Katigbak P50,000.00 as temperate damages;
advice in the amount of P304,000 which included the two (2) checks issued to
the Roque spouses in the sum of P50,000.00 were already credited to the
account of RBPG and the service, as well as penalty charges, were all reversed.
MBTC appealed from the decision to the Court of Appeals in CA GR CV No.
26571, alleging that the trial court erred in awarding temperate and moral
damages, as well as attorney's fees, plus costs and expenses of litigation
without factual or legal basis therefor.
On October 29, 1992, the Court of Appeals rendered a decision 3 affirming that
of the trial court, except for the deletion of the award of temperate damages,
the reduction of moral damages from P500,000.00 to P50,000.00 in favor of
RBPG and P100,000.00 for Isabel Katigbak and P50,000.00, as attorney's fees.
Plaintiffs-appellees filed a motion for reconsideration of the decision,
questioning the deletion of the award of temperate damages and the reduction
of the award of moral damages and attorney's fees. The motion was denied.
MBTC filed this petition, presenting the following issues for resolution:
whether or not private respondents RBPG and Isabel Rodriguez are legally
entitled to moral damages and attorney's fees, and
assuming that they are so entitled, whether or not the amounts awarded are
excessive and unconscionable.
The petition is devoid of merit.
Article 1173 of the Civil Code only requires it to exercise the diligence of a good
pater familias.
As borne out by the records, the dishonoring of the respondent's checks
committed through negligence by the petitioner bank on April 6, 1982 was
rectified only on April 15, 1992 or nine
(9) days after receipt of the credit memo. Clearly, petitioner bank was remiss in
its duty and obligation to treat private respondent's account with the highest
degree of care, considering the fiduciary nature of their relationship. The bank is
under obligation to treat the accounts of its depositors with meticulous care,
whether such account consists only of a few hundred pesos or of millions. It
must bear the blame for failing to discover the mistake of its employee despite
the established procedure requiring bank papers to pass through bank
personnel whose duty it is to check and countercheck them for possible errors. 4
Responsibility arising from negligence in the performance of every kind of
obligation is demandable. 5 While the bank's negligence may not have been
attended with malice and bad faith, nevertheless, it caused serious anxiety,
embarrassment and humiliation to private respondents for which they are
entitled to recover reasonable moral damages. 6
As the records bear out, insult was added to injury by petitioner bank's issuance
of debit memoranda representing service and penalty charges for the returned
checks, not to mention the insulting remarks from its Assistant Cashier.
7
In the case of Leopoldo Araneta v. Bank of America, we held that:
The financial credit of a businessman is a prized and valuable asset, it being a
significant part of the foundation of his business. Any adverse reflection thereon
constitutes some financial loss to him. As stated in the case of Atlanta National
The case at bench was instituted to seek damages caused by the dishonor
through negligence of respondent bank's checks which were actually sufficiently
funded, and the insults from petitioner bank's officer directed against private
respondent Isabel R. Katigbak. The presence of malice and the evidence of
besmirched reputation or loss of credit and business standing, as well as a
reappraisal of its probative value, involves factual matters which, having been
already thoroughly discussed and analyzed in the courts below, are no longer
reviewable here. While this rule admits of exceptions, this case does not fall
under any of these.
There is no merit in petitioner's argument that it should not be considered
negligent, much less be held liable for damages on account of the inadvertence
of its bank employee as
Bank vs. Davis , 96 Ga 334, 23 SE 190, citing 2 Morse Banks, Sec. 458, "it can
hardly be possible that a customer's check can be wrongfully refused payment
without some impeachment of his credit, which must in fact be an actual injury,
though he cannot, from the nature of the case, furnish independent, distinct
proof thereof".
It was established that when Mrs. Katigbak learned that her checks were not
being honored and Mr. Dungo repeatedly made the insulting phone calls, her
wounded feelings and the mental anguish suffered by her caused her blood
pressure to rise beyond normal limits, necessitating medical attendance for two
(2) days at a hospital.
The damage to private respondents' reputation and social standing entitles
them to moral damages. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury. 8 Temperate or moderate
damages which are more than nominal but less than compensatory damages,
may be recovered when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be proved with
certainty. 9 Temperate damages may be allowed in cases where from the nature
of the case, definite proof of pecuniary loss cannot be adduced, although the
court is convinced that there has been such loss. The appellate court, however,
justified its deletion when MBTC reasoned out that the amount of P50,000.00 is
not part of the relief prayed for in the complaint, aside from the fact that the
amount allegedly suffered by Mrs. Katigbak is susceptible of proof. 10
Moral and temperate damages which are not susceptible of pecuniary
estimation are not awarded to penalize the petitioner but to compensate the
respondents for injuries suffered as a result of the former's fault and negligence,
taking into account the latter's credit and social standing in the banking
community, particularly since this is the very first time such
humiliation has befallen private respondents. The amount of such losses need just and equitable that attorney's fees in the amount of P50,000.00 be awarded.
not be established with exactitude, precisely due to their nature. 11
WHEREFORE, the decision of respondent Court of Appeals is AFFIRMED in all
The carelessness of petitioner bank, aggravated by the lack of promptness in respects.
repairing the error and the arrogant attitude of the bank officer handling the
matter, justifies the grant of moral damages, which are clearly not excessive SO ORDERED.
and unconscionable.
Bidin, Melo and Vitug, JJ., concur.
Moreover, considering the nature and extent of the services rendered by private
respondent's counsel, both in the trial and appellate courts, the Court deems it Feliciano, J., is on leave.