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G.R. No. 97626 March 14, 1997 respondent with monthly statements showing its current accounts balances.

Unfortunately, it had never been the practice of Romeo Lipana to check these
PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE monthly statements of account reposing complete trust and confidence on petitioner
COMMERCIAL INTERNATIONAL BANK, ROGELIO LACSON, DIGNA DE LEON, bank.
MARIA ANGELITA PASCUAL, et al., petitioners,
vs. Irene Yabut's modus operandi is far from complicated. She would accomplish two (2)
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by copies of the deposit slip, an original and a duplicate. The original showed the name
ROMEO LIPANA, its President & General Manager, respondents. of her husband as depositor and his current account number. On the duplicate copy
was written the account number of her husband but the name of the account holder
HERMOSISIMA, JR., J.: was left blank. PBC's teller, Azucena Mabayad, would, however, validate and stamp
both the original and the duplicate of these deposit slips retaining only the original
copy despite the lack of information on the duplicate slip. The second copy was kept
Challenged in this petition for review is the Decision dated February 28, by Irene Yabut allegedly for record purposes. After validation, Yabut would then fill up
19911 rendered by public respondent Court of Appeals which affirmed the Decision the name of RMC in the space left blank in the duplicate copy and change the
dated November 15, 1985 of the Regional Trial Court, National Capital Judicial account number written thereon, which is that of her husband's, and make it appear to
Region, Branch CLX (160), Pasig City, in Civil Case No. 27288 entitled "Rommel's be RMC's account number, i.e., C.A. No. 53-01980-3. With the daily remittance
Marketing Corporation, etc. v. Philippine Bank of Commerce, now absorbed by records also prepared by Ms. Yabut and submitted to private respondent RMC
Philippine Commercial and Industrial Bank." together with the validated duplicate slips with the latter's name and account number,
she made her company believe that all the while the amounts she deposited were
The case stemmed from a complaint filed by the private respondent Rommel's being credited to its account when, in truth and in fact, they were being deposited by
Marketing Corporation (RMC for brevity), represented by its President and General her and credited by the petitioner bank in the account of Cotas. This went on in a
Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce span of more than one (1) year without private respondent's knowledge.
(PBC for brevity), now absorbed by the Philippine Commercial International Bank, the
sum of P304,979.74 representing various deposits it had made in its current account Upon discovery of the loss of its funds, RMC demanded from petitioner bank the
with said bank but which were not credited to its account, and were instead deposited return of its money, but as its demand went unheeded, it filed a collection suit before
to the account of one Bienvenido Cotas, allegedly due to the gross and inexcusable the Regional Trial Court of Pasig, Branch 160. The trial court found petitioner bank
negligence of the petitioner bank. negligent and ruled as follows:

RMC maintained two (2) separate current accounts, Current Account Nos. 53-01980- WHEREFORE, judgment is hereby rendered sentencing defendant
3 and 53-01748-7, with the Pasig Branch of PBC in connection with its business of Philippine Bank of Commerce, now absorbed by defendant
selling appliances. Philippine Commercial & Industrial Bank, and defendant Azucena
Mabayad to pay the plaintiff, jointly and severally, and without
In the ordinary and usual course of banking operations, current account deposits are prejudice to any criminal action which may be instituted if found
accepted by the bank on the basis of deposit slips prepared and signed by the warranted:
depositor, or the latter's agent or representative, who indicates therein the current
account number to which the deposit is to be credited, the name of the depositor or 1. The sum of P304,979.72, representing plaintiffs lost deposit, plus
current account holder, the date of the deposit, and the amount of the deposit either interest thereon at the legal rate from the filing of the complaint;
in cash or checks. The deposit slip has an upper portion or stub, which is detached
and given to the depositor or his agent; the lower portion is retained by the bank. In
some instances, however, the deposit slips are prepared in duplicate by the 2. A sum equivalent to 14% thereof, as exemplary damages;
depositor. The original of the deposit slip is retained by the bank, while the duplicate
copy is returned or given to the depositor. 3. A sum equivalent to 25% of the total amount due, as and for
attorney's fees; and
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have
entrusted RMC funds in the form of cash totalling P304,979.74 to his secretary, Irene 4. Costs.
Yabut, for the purpose of depositing said funds in the current accounts of RMC with
PBC. It turned out, however, that these deposits, on all occasions, were not credited Defendants' counterclaim is hereby dismissed for lack of merit. 2
to RMC's account but were instead deposited to Account No. 53-01734-7 of Yabut's
husband, Bienvenido Cotas who likewise maintains an account with the same bank.
During this period, petitioner bank had, however, been regularly furnishing private On appeal, the appellate court affirmed the foregoing decision with modifications, viz:
WHEREFORE, the decision appealed from herein is MODIFIED in Private respondent, on the other hand, maintains that the proximate cause of the loss
the sense that the awards of exemplary damages and attorney's was the negligent act of the bank, thru its teller Ms. Azucena Mabayad, in validating
fees specified therein are eliminated and instead, appellants are the deposit slips, both original and duplicate, presented by Ms. Yabut to Ms.
ordered to pay plaintiff, in addition to the principal sum of Mabayad, notwithstanding the fact that one of the deposit slips was not completely
P304,979.74 representing plaintiff's lost deposit plus legal interest accomplished.
thereon from the filing of the complaint, P25,000.00 attorney's fees
and costs in the lower court as well as in this Court.3 We sustain the private respondent.

Hence, this petition anchored on the following grounds: Our law on quasi-delicts states:

1) The proximate cause of the loss is the negligence of respondent Art. 2176. Whoever by act or omission causes damage to another,
Rommel Marketing Corporation and Romeo Lipana in entrusting there being fault or negligence, is obliged to pay for the damage
cash to a dishonest employee. done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
2) The failure of respondent Rommel Marketing Corporation to is governed by the provisions of this Chapter.
cross-check the bank's statements of account with its own records
during the entire period of more than one (1) year is the proximate There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b)
cause of the commission of subsequent frauds and fault or negligence of the defendant, or some other person for whose acts he must
misappropriation committed by Ms. Irene Yabut. respond; and (c) the connection of cause and effect between the fault or negligence
of the defendant and the damages incurred by the plaintiff. 7
3) The duplicate copies of the deposit slips presented by
respondent Rommel Marketing Corporation are falsified and are not In the case at bench, there is no dispute as to the damage suffered by the private
proof that the amounts appearing thereon were deposited to respondent (plaintiff in the trial court) RMC in the amount of P304,979.74. It is in
respondent Rommel Marketing Corporation's account with the ascribing fault or negligence which caused the damage where the parties point to
bank, each other as the culprit.

4) The duplicate copies of the deposit slips were used by Ms. Irene Negligence is the omission to do something which a reasonable man, guided by
Yabut to cover up her fraudulent acts against respondent Rommel those considerations which ordinarily regulate the conduct of human affairs, would do,
Marketing Corporation, and not as records of deposits she made or the doing of something which a prudent and reasonable man would do. The
with the bank.4 seventy-eight (78)-year-old, yet still relevant, case of Picart v. Smith,8 provides the
test by which to determine the existence of negligence in a particular case which may
The petition has no merit. be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in
Simply put, the main issue posited before us is: What is the proximate cause of the the same situation? If not, then he is guilty of negligence. The law here in effect
loss, to the tune of P304,979.74, suffered by the private respondent RMC — adopts the standard supposed to be supplied by the imaginary conduct of the
petitioner bank's negligence or that of private respondent's? 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
Petitioners submit that the proximate cause of the loss is the negligence of the man of ordinary intelligence and prudence and determines liability by that.
respondent RMC and Romeo Lipana in entrusting cash to a dishonest employee in
the person of Ms. Irene Yabut.5 According to them, it was impossible for the bank to
know that the money deposited by Ms. Irene Yabut belong to RMC; neither was the Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was
bank forewarned by RMC that Yabut will be depositing cash to its account. Thus, it negligent in validating, officially stamping and signing all the deposit slips prepared
was impossible for the bank to know the fraudulent design of Yabut considering that and presented by Ms. Yabut, despite the glaring fact that the duplicate copy was not
her husband, Bienvenido Cotas, also maintained an account with the bank. For the completely accomplished contrary to the self-imposed procedure of the bank with
bank to inquire into the ownership of the cash deposited by Ms. Irene Yabut would be respect to the proper validation of deposit slips, original or duplicate, as testified to by
irregular. Otherwise stated, it was RMC's negligence in entrusting cash to a dishonest Ms. Mabayad herself, thus:
employee which provided Ms. Irene Yabut the opportunity to defraud RMC. 6
Q: Now, as teller of PCIB, Pasig Branch, will you Q: Now what do you do upon presentment of the
please tell us Mrs. Mabayad your important deposit slip by the depositor or the depositor's
duties and functions? authorized representative?

A: I accept current and savings deposits from A: We see to it that the deposit slip9 is properly
depositors and encashments. accomplished and then we count the money and
then we tally it with the deposit slip sir.
Q: Now in the handling of current account
deposits of bank clients, could you tell us the Q: Now is the depositor's stub which you issued
procedure you follow? to your clients validated?

A: The client or depositor or the authorized A: Yes, sir. 10 [Emphasis ours]


representative prepares a deposit slip by filling up
the deposit slip with the name, the account Clearly, Ms. Mabayad failed to observe this very important procedure. The
number, the date, the cash breakdown, if it is fact that the duplicate slip was not compulsorily required by the bank in
deposited for cash, and the check number, the accepting deposits should not relieve the petitioner bank of responsibility.
amount and then he signs the deposit slip. The odd circumstance alone that such duplicate copy lacked one vital
information — that of the name of the account holder — should have already
Q: Now, how many deposit slips do you normally put Ms. Mabayad on guard. Rather than readily validating the incomplete
require in accomplishing current account deposit, duplicate copy, she should have proceeded more cautiously by being more
Mrs. Mabayad? probing as to the true reason why the name of the account holder in the
duplicate slip was left blank while that in the original was filled up. She
A: The bank requires only one copy of the should not have been so naive in accepting hook, line and sinker the too
deposit although some of our clients prepare the shallow excuse of Ms. Irene Yabut to the effect that since the duplicate copy
deposit slip in duplicate. was only for her personal record, she would simply fill up the blank space
later on. 11 A "reasonable man of ordinary prudence" 12 would not have given
credence to such explanation and would have insisted that the space left
Q: Now in accomplishing current account blank be filled up as a condition for validation. Unfortunately, this was not
deposits from your clients, what do you issue to how bank teller Mabayad proceeded thus resulting in huge losses to the
the depositor to evidence the deposit made? private respondent.

A: We issue or we give to the clients the Negligence here lies not only on the part of Ms. Mabayad but also on the part of the
depositor's stub as a receipt of the deposit. bank itself in its lackadaisical selection and supervision of Ms. Mabayad. This was
exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the Pasig
Q: And who prepares the deposit slip? Branch of the petitioner bank and now its Vice-President, to the effect that, while he
ordered the investigation of the incident, he never came to know that blank deposit
A: The depositor or the authorized representative slips were validated in total disregard of the bank's validation procedures, viz:
sir?
Q: Did he ever tell you that one of your cashiers
Q: Where does the depositor's stub comes (sic) affixed the stamp mark of the bank on the deposit
from Mrs. Mabayad, is it with the deposit slip? slips and they validated the same with the
machine, the fact that those deposit slips were
unfilled up, is there any report similar to that?
A: The depositor's stub is connected with the
deposit slip or the bank's copy. In a deposit slip,
the upper portion is the depositor's stub and the A: No, it was not the cashier but the teller.
lower portion is the bank's copy, and you can
detach the bank's copy from the depositor's stub Q: The teller validated the blank deposit slip?
by tearing it sir.
A: No it was not reported.
Q: You did not know that any one in the bank appellant bank could not have prevented the fraud and
tellers or cashiers validated the blank deposit misappropriation which Irene Yabut had already completed when
slip? she deposited plaintiff's money to the account of her husband
instead of to the latter's accounts. 18
A: I am not aware of that.
Furthermore, under the doctrine of "last clear chance" (also referred to, at times as
Q: It is only now that you are aware of that? "supervening negligence" or as "discovered peril"), petitioner bank was indeed the
culpable party. This doctrine, in essence, states that where both parties are negligent,
but the negligent act of one is appreciably later in time than that of the other, or when
A: Yes, sir. 13 it is impossible to determine whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to avoid the impending harm and
Prescinding from the above, public respondent Court of Appeals aptly observed: failed to do so is chargeable with the consequences thereof. 19Stated differently, the
rule would also mean that an antecedent negligence of a person does not preclude
xxx xxx xxx the recovery of damages for the supervening negligence of, or bar a defense against
liability sought by another, if the latter, who had the last fair chance, could have
avoided the impending harm by the exercise of due diligence. 20Here, assuming that
It was in fact only when he testified in this case in February, 1983, private respondent RMC was negligent in entrusting cash to a dishonest employee,
or after the lapse of more than seven (7) years counted from the thus providing the latter with the opportunity to defraud the company, as advanced by
period when the funds in question were deposited in plaintiff's the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the
accounts (May, 1975 to July, 1976) that bank manager Bonifacio last clear opportunity to avert the injury incurred by its client, simply by faithfully
admittedly became aware of the practice of his teller Mabayad of observing their self-imposed validation procedure.
validating blank deposit slips. Undoubtedly, this is gross, wanton,
and inexcusable negligence in the appellant bank's supervision of
its employees. 14 At this juncture, it is worth to discuss the degree of diligence ought to be exercised by
banks in dealing with their clients.

It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the
petitioner bank in the selection and supervision of its bank teller, which was the The New Civil Code provides:
proximate cause of the loss suffered by the private respondent, and not the latter's act
of entrusting cash to a dishonest employee, as insisted by the petitioners. Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
Proximate cause is determined on the facts of each case upon mixed considerations obligation and corresponds with the circumstances of the persons,
of logic, common sense, policy and precedent. 15 Vda. de Bataclan v. of the time and of the place. When negligence shows bad faith, the
Medina, 16 reiterated in the case of Bank of the Phil. Islands v. Court of provisions of articles 1171 and 2201, paragraph 2, shall apply.
Appeals, 17 defines proximate cause as "that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and If the law or contract does not state the diligence which is to be
without which the result would not have occurred. . . ." In this case, absent the act of observed in the performance, that which is expected of a good
Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit father of a family shall be required. (1104a)
slip, Ms. Irene Yabut would not have the facility with which to perpetrate her
fraudulent scheme with impunity. Apropos, once again, is the pronouncement made In the case of banks, however, the degree of diligence required is more than that of
by the respondent appellate court, to wit: a good father of a family. Considering the fiduciary nature of their relationship with
their depositors, banks are duty bound to treat the accounts of their clients with
. . . . Even if Yabut had the fraudulent intention to misappropriate the highest degree of care. 21
the funds entrusted to her by plaintiff, she would not have been
able to deposit those funds in her husband's current account, and As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in every
then make plaintiff believe that it was in the latter's accounts case, the depositor expects the bank to treat his account with the utmost fidelity,
wherein she had deposited them, had it not been for bank teller whether such account consists only of a few hundred pesos or of millions. The bank
Mabayad's aforesaid gross and reckless negligence. The latter's must record every single transaction accurately, down to the last centavo, and as
negligence was thus the proximate, immediate and efficient cause promptly as possible. This has to be done if the account is to reflect at any given time
that brought about the loss claimed by plaintiff in this case, and the the amount of money the depositor can dispose as he sees fit, confident that the bank
failure of plaintiff to discover the same soon enough by failing to will deliver it as and to whomever he directs. A blunder on the part of the bank, such
scrutinize the monthly statements of account being sent to it by
as the failure to duly credit him his deposits as soon as they are made, can cause the P25,000.00 attorney's fees, shall be borne by private respondent RMC; only
depositor not a little embarrassment if not financial loss and perhaps even civil and the balance of 60% needs to be paid by the petitioners. The award of
criminal litigation. attorney's fees shall be borne exclusively by the petitioners.

The point is that as a business affected with public interest and because of the nature WHEREFORE, the decision of the respondent Court of Appeals is modified by
of its functions, the bank is under obligation to treat the accounts of its depositors with reducing the amount of actual damages private respondent is entitled to by 40%.
meticulous care, always having in mind the fiduciary nature of their relationship. In the Petitioners may recover from Ms. Azucena Mabayad the amount they would pay the
case before us, it is apparent that the petitioner bank was remiss in that duty and private respondent. Private respondent shall have recourse against Ms. Irene Yabut.
violated that relationship. In all other respects, the appellate court's decision is AFFIRMED.

Petitioners nevertheless aver that the failure of respondent RMC to cross-check the Proportionate costs.
bank's statements of account with its own records during the entire period of more
than one (1) year is the proximate cause of the commission of subsequent frauds and SO ORDERED.
misappropriation committed by Ms. Irene Yabut.
Bellosillo, Vitug and Kapunan, JJ., concur.
We do not agree.

While it is true that had private respondent checked the monthly statements of
account sent by the petitioner bank to RMC, the latter would have discovered the loss
early on, such cannot be used by the petitioners to escape liability. This omission on
the part of the private respondent does not change the fact that were it not for the
wanton and reckless negligence of the petitioners' employee in validating the
incomplete duplicate deposit slips presented by Ms. Irene Yabut, the loss would not
have occurred. Considering, however, that the fraud was committed in a span of more
than one (1) year covering various deposits, common human experience dictates that
the same would not have been possible without any form of collusion between Ms.
Yabut and bank teller Mabayad. Ms. Mabayad was negligent in the performance of
her duties as bank teller nonetheless. Thus, the petitioners are entitled to claim
reimbursement from her for whatever they shall be ordered to pay in this case.

The foregoing notwithstanding, it cannot be denied that, indeed, private respondent


was likewise negligent in not checking its monthly statements of account. Had it done
so, the company would have been alerted to the series of frauds being committed
against RMC by its secretary. The damage would definitely not have ballooned to
such an amount if only RMC, particularly Romeo Lipana, had exercised even a little
vigilance in their financial affairs. This omission by RMC amounts to contributory
negligence which shall mitigate the damages that may be awarded to the private
respondent 23 under Article 2179 of the New Civil Code, to wit:

. . . When the plaintiff's own negligence was the immediate and


proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded.

In view of this, we believe that the demands of substantial justice are


satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the
damage awarded by the respondent appellate court, except the award of
[G.R. No. 108897. October 2, 1997] start. Petitioner, on the other hand, disowned any liability for the loss on the ground
that Fatima allegedly did not declare any excess baggage upon boarding its bus.
On June 15, 1988, after trial on the merits, the court a quo adjudged the case in
favor of herein respondents, viz:
SARKIES TOURS PHILIPPINES, INC. petitioner vs. HONORABLE COURT OF
APPEALS (TENTH DIVISION), DR. ELINO G. FORTADES, MARISOL A.
FORTADES and FATIMA A. FORTADES., respondent. PREMISES CONSIDERED, judgment is hereby rendered in favor of the plaintiffs
(herein respondents) and against the herein defendant Sarkies Tours Philippines,
Inc., ordering the latter to pay to the former the following sums of money, to wit:
DECISION
ROMERO, J.: 1. The sum of P30,000.00 equivalent to the value of the personal belongings of
plaintiff Fatima Minerva Fortades, etc. less the value of one luggage recovered;
This petition for review is seeking the reversal of the decision of the Court of
Appeals in CA-G.R. CV No. 18979 promulgated on January 13, 1993, as well as its 2. The sum of P90,000.00 for the transportation expenses, as well as moral damages;
resolution of February 19, 1993, denying petitioners motion for reconsideration for
being a mere rehash of the arguments raised in the appellants brief. 3. The sum of P10,000.00 by way of exemplary damages;
The case arose from a damage suit filed by private respondents Elino, Marisol,
and Fatima Minerva, all surnamed Fortades, against petitioner for breach of contract 4. The sum of P5,000.00 as attorneys fees; and
of carriage allegedly attended by bad faith.
5. The sum of P5,000.00 as litigation expenses or a total of One Hundred Forty
On August 31, 1984, Fatima boarded petitioners De Luxe Bus No. 5 in Manila
Thousand (P140,000.00) Pesos.
on her way to Legazpi City. Her brother Raul helped her load three pieces of luggage
containing all of her optometry review books, materials and equipment, trial lenses,
trial contact lenses, passport and visa, as well as her mother Marisols U.S. to be paid by herein defendant Sarkies Tours Philippines, Inc. to the herein plaintiffs
immigration (green) card, among other important documents and personal within 30 days from receipt of this Decision.
belongings. Her belongings was kept in the baggage compartment of the bus, but
during a stopover at Daet, it was discovered that all but one bag remained in the open SO ORDERED.
compartment. The others, including Fatimas things, were missing and could have
dropped along the way. Some of the passengers suggested retracing the route to try
On appeal, the appellate court affirmed the trial courts judgment, but deleted the
to recover the lost items, but the driver ignored them and proceeded to Legazpi City.
award of moral and exemplary damages. Thus,
Fatima immediately reported the loss to her mother who, in turn, went to
petitioners office in Legazpi City and later at its head office in Manila. The latter, WHEREFORE, premises considered, except as above modified, fixing the award for
however, merely offered her P1,000.00 for each piece of luggage lost, which she transportation expenses at P30,000.00 and the deletion of the award for moral and
turned down. After returning to Bicol disappointed but not defeated, they asked exemplary damages, the decision appealed from is AFFIRMED, with costs against
assistance from the radio stations and even from Philtranco bus drivers who plied the defendant-appellant.
same route on August 31st. The effort paid off when one of Fatimas bags was
recovered. Marisol also reported the incident to the National Bureau of Investigations
SO ORDERED."
field office in Legazpi City, and to the local police.
On September 20, 1984, respondents, through counsel, formally demanded Its motion for reconsideration having was likewise rejected by the Court of
satisfaction of their complaint from petitioner. In a letter dated October 1, 1984, the Appeals, so petitioner elevated its case to this Court for a review.
latter apologized for the delay and said that (a) team has been sent out to Bicol for
the purpose of recovering or at least getting the full detail [1] of the incident. After a careful scrutiny of the records of this case, we are convinced that the trial
and appellate courts resolved the issues judiciously based on the evidence at hand.
After more than nine months of fruitless waiting, respondents decided to file the
case below to recover the value of the remaining lost items, as well as moral and Petitioner claims that Fatima did not bring any piece of luggage with her, and
exemplary damages, attorneys fees and expenses of litigation. They claimed that the even if she did, none was declared at the start of the trip. The documentary and
loss was due to petitioners failure to observe extraordinary diligence in the care of testimonial evidence presented at the trial, however, established that Fatima indeed
Fatimas luggage and that petitioner dealt with them in bad faith from the boarded petitioners De Luxe Bus No. 5 in the evening of August 31, 1984, and she
brought three pieces of luggage with her, as testified by her brother Raul, [2] who
helped her pack her things and load them on said bus. One of the bags was even Court agrees with the Court of Appeals in awarding P30,000.00 for the lost items
recovered with the help of a Philtranco bus driver. In its letter dated October 1, 1984, and P30,000.00 for the transportation expenses, but disagrees with the deletion of the
petitioner tacitly admitted its liability by apologizing to respondents and assuring them award of moral and exemplary damages which, in view of the foregoing proven facts,
that efforts were being made to recover the lost items. with negligence and bad faith on the fault of petitioner having been duly established,
should be granted to respondents in the amount of P20,000.00 and P5,000.00,
The records also reveal that respondents went to great lengths just to salvage respectively.
their loss. The incident was reported to the police, the NBI, and the regional and head
offices of petitioner.Marisol even sought the assistance of Philtranco bus drivers and WHEREFORE, the assailed decision of the Court of Appeals dated January 13,
the radio stations. To expedite the replacement of her mothers lost U.S. immigration 1993, and its resolution dated February 19, 1993, are hereby AFFIRMED with the
documents, Fatima also had to execute an affidavit of loss. [3] Clearly, they would not MODIFICATION that petitioner is ordered to pay respondent an additional P20,000.00
have gone through all that trouble in pursuit of a fancied loss. as moral damages and P5,000.00 as exemplary damages. Costs against petitioner.
Fatima was not the only one who lost her luggage. Other passengers suffered a SO ORDERED.
similar fate: Dr. Lita Samarista testified that petitioner offered her P1,000.00 for her
lost baggage and she accepted it;[4] Carleen Carullo-Magno also lost her chemical
engineering review materials, while her brother lost abaca products he was
transporting to Bicol.[5]
Petitioners receipt of Fatimas personal luggage having been thus established, it
must now be determined if, as a common carrier, it is responsible for their loss. Under
the Civil Code, (c)ommon carriers, from the nature of their business and for reasons
of public policy, are bound to observe extraordinary diligence in the vigilance over the
goods x x x transported by them,[6] and this liability lasts from the time the goods are
unconditionally placed in the possession of, and received by the carrier for
transportation until the same are delivered, actually or constructively, by the carrier for
transportation until the same are delivered, actually or constructively, by the carrier
to x x x the person who has a right to receive them, [7] unless the loss is due to any of
the excepted causes under Article 1734 thereof.[8]
The cause of the loss in the case at bar was petitioners negligence in not
ensuring that the doors of the baggage compartment of its bus were securely
fastened. As a result of this lack of care, almost all of the luggage was lost, to the
prejudice of the paying passengers. As the Court of Appeals correctly observed:

x x x. Where the common carrier accepted its passengers baggage for transportation
and even had it placed in the vehicle by its own employee, its failure to collect the
freight charge is the common carriers own lookout. It is responsible for the
consequent loss of the baggage. In the instant case, defendant appellants employee
even helped Fatima Minerva Fortades and her brother load the luggages/baggages in
the bus baggage compartment, without asking that they be weighed, declared,
receipted or paid for (TSN, August 4, 1986, pp. 29, 34, 54, 57, 70; December 23,
1987, p. 35). Neither was this required of the other passengers (TSN, August 4, 1986,
p. 104; February 5, 1988, p. 13).

Finally, petitioner questions the award of actual damages to respondents. On


this point, we likewise agree with the trial and appellate courts conclusions. There is
no dispute that of the three pieces of luggage of Fatima, only one was recovered. The
other two contained optometry books, materials, equipment, as well as vital
documents and personal belongings.Respondents had to shuttle between Bicol and
Manila in their efforts to be compensated for the loss. During the trial, Fatima and
Marisol had to travel from the United States just to be able to testify. Expenses were
also incurred in reconstituting their lost documents. Under these circumstances, the
[G.R. No. 119197. May 16, 1997] complaint for damages against North Front Shipping Services, Inc., claiming that the
loss was exclusively attributable to the fault and negligence of the carrier. The Marine
Cargo Adjusters hired by the insurance companies conducted a survey and found
cracks in the bodega of the barge and heavy concentration of molds on the tarpaulins
and wooden boards. They did not notice any seals in the hatches. The tarpaulins
TABACALERA INSURANCE CO., PRUDENTIAL GUARANTEE & ASSURANCE,
were not brand new as there were patches on them, contrary to the claim of North
INC., and NEW ZEALAND INSURANCE CO., LTD., petitioners,
Front Shipping Services, Inc., thus making it possible for water to seep in. They also
vs. NORTH FRONT SHIPPING SERVICES, INC., and COURT OF
discovered that the bulkhead of the barge was rusty.
APPEALS, respondents.
North Front Shipping Services, Inc., averred in refutation that it could not be
DECISION made culpable for the loss and deterioration of the cargo as it was never
negligent. Captain Solomon Villanueva, master of the vessel, reiterated that the barge
BELLOSILLO, J.: was inspected prior to the actual loading and was found adequate and seaworthy. In
addition, they were issued a permit to sail by the Coast Guard. The tarpaulins were
TABACALERA INSURANCE CO., Prudential Guarantee & Assurance, Inc., and doubled and brand new and the hatches were properly sealed. They did not
New Zealand Insurance Co., Ltd., in this petition for review on certiorari, assail the 22 encounter big waves hence it was not possible for water to seep in. He further
December 1994 decision of the Court of Appeals and its Resolution of 16 February averred that the corn grains were farm wet and not properly dried when loaded.
1995 which affirmed the 1 June 1993 decision of the Regional Trial Court dismissing
The court below dismissed the complaint and ruled that the contract entered into
their complaint for damages against North Front Shipping Services, Inc. between North Front Shipping Services, Inc., and Republic Flour Mills Corporation
On 2 August 1990, 20,234 sacks of corn grains valued at P3,500,640.00 were was a charter-party agreement. As such, only ordinary diligence in the care of goods
shipped on board North Front 777, a vessel owned by North Front was required of North Front Shipping Services, Inc. The inspection of the barge by
Shipping Services, Inc. The cargo wasconsigned to Republic Flour Mills Corporation the shipper and the representatives of the shipping company before actual loading,
in Manila under Bill of Lading No. 001[1] and insured with the herein mentioned coupled with the Permit to Sail issued by the Coast Guard, sufficed to meet the
insurance companies. The vessel was inspected prior to actual loading by degree of diligence required of the carrier.
representatives of the shipper and was found fit to carry the merchandise. The cargo
On the other hand, the Court of Appeals ruled that as a common carrier required
was covered with tarpaulins and wooden boards. The hatches were sealed and could to observe a higher degree of diligence North Front 777 satisfactorily complied with all
only be opened by representatives of Republic Flour Mills Corporation. the requirements hence was issued a Permit to Sail after proper
The vessel left Cagayan de Oro City on 2 August 1990 and arrived Manila on 16 inspection. Consequently, the complaint was dismissed and the motion for
August 1990. Republic Flour Mills Corporation was advised of its arrival but it did not reconsideration rejected.
immediately commence the unloading operations. There were days when unloading
The charter-party agreement between North Front Shipping Services, Inc., and
had to be stopped due to variable weather conditions and sometimes for no apparent Republic Flour Mills Corporation did not in any way convert the common carrier into a
reason at all. When the cargo was eventually unloaded there was a shortage of private carrier. We have already resolved this issue with finality in Planters Products,
26.333 metric tons. The remaining merchandise was already moldy, rancid and Inc. v. Court of Appeals[2] thus -
deteriorating. The unloading operations were completed on 5 September 1990 or
twenty (20) days after the arrival of the barge at the wharf of Republic Flour Mills
Corporation in Pasig City. A 'charter-party' is defined as a contract by which an entire ship, or some principal
part thereof, is let by the owner to another person for a specified time or use; a
Precision Analytical Services, Inc., was hired to examine the corn grains and contract of affreightment by which the owner of a ship or other vessel lets the whole
determine the cause of deterioration. A Certificate of Analysis was issued indicating or a part of her to a merchant or other person for the conveyance of goods, on a
that the corn grains had 18.56% moisture content and the wetting was due to contact particular voyage, in consideration of the payment of freight x x x x Contract of
with salt water. The mold growth was only incipient and not sufficient to make the affreightment may either be time charter, wherein the vessel is leased to the charterer
corn grains toxic and unfit for consumption. In fact the mold growth could still be for a fixed period of time, or voyage charter, wherein the ship is leased for a single
arrested by drying. voyage. In both cases, the charter-party provides for the hire of the vessel only, either
for a determinate period of time or for a single or consecutive voyage, the ship owner
Republic Flour Mills Corporation rejected the entire cargo and formally to supply the ship's store, pay for the wages of the master of the crew, and defray the
demanded from North Front Shipping Services, Inc., payment for the damages expenses for the maintenance of the ship.
suffered by it. The demands however were unheeded. The insurance companies
were perforce obliged to pay Republic Flour Mills Corporation P2,189,433.40.
Upon the other hand, the term 'common or public carrier' is defined in Art. 1732 of the
By virtue of the payment made by the insurance companies they were Civil Code. The definition extends to carriers either by land, air or water which
subrogated to the rights of Republic Flour Mills Corporation. Thusly, they lodged a hold themselves out as ready to engage in carrying goods or transporting passengers
or both for compensation as a public employment and not as a casual occupation x x care. The proofs presented by North Front ShippingServices, Inc., were insufficient to
xx rebut the prima facie presumption of private respondent's negligence, more so if we
consider the evidence adduced by petitioners.
It is therefore imperative that a public carrier shall remain as such, notwithstanding It is not denied by the insurance companies that the vessel was indeed
the charter of the whole or portion of a vessel by one or more persons, provided the inspected before actual loading and that North Front 777 was issued a Permit to
charter is limited to the ship only, as in the case of a time-charter or voyage- Sail. They proved the fact of shipment and its consequent loss or damage while in the
charter (underscoring supplied). actual possession of the carrier. Notably, the carrier failed to volunteer any
explanation why there was spoilage and how it occurred. On the other hand, it was
North Front Shipping Services, Inc., is a corporation engaged in the business of shown during the trial that the vessel had rusty bulkheads and the wooden boards
transporting cargo and offers its services indiscriminately to the public. It is without and tarpaulins bore heavy concentration of molds. The tarpaulins used were not new,
doubt a common carrier. As such it is required to observe extraordinary diligence in contrary to the claim of North Front Shipping Services, Inc., as there were already
its vigilance over the goods it transports.[3]. When goods placed in its care are lost or several patches on them, hence, making it highly probable for water to enter.
damaged, the carrier is presumed to have been at fault or to have acted
negligently.[4] North Front Shipping Services, Inc., therefore has the burden of proving Laboratory analysis revealed that the corn grains were contaminated with salt
that it observed extraordinary diligence in order to avoid responsibility for the lost water. North Front Shipping Services, Inc., failed to rebut all these arguments. It did
cargo. not even endeavor to establish that the loss, destruction or deterioration of the goods
was due to the following: (a) flood, storm, earthquake, lightning, or other natural
North Front Shipping Services, Inc., proved that the vessel was inspected prior disaster or calamity; (b) act of the public enemy in war, whether international or civil;
to actual loading by representatives of the shipper and was found fit to take a load of (c) act or omission of the shipper or owner of the goods; (d) the character of the
corn grains. They were also issued Permit to Sail by the Coast goods or defects in the packing or in the containers; (e) order or act of competent
Guard. The master of the vessel testified that the corn grains were farm wet when public authority.[6] This is a closed list. If the cause of destruction, loss or deterioration
loaded. However, this testimony was disproved by the clean bill of lading issued by is other than the enumerated circumstances, then the carrier is rightly liable therefor.
North Front Shipping Services, Inc., which did not contain a notation that the corn
grains were wet and improperly dried. Having been in the service since 1968, the However, we cannot attribute the destruction, loss or deterioration of the cargo
master of the vessel would have known at the outset that corn grains that were farm solely to the carrier. We find the consignee Republic Flour Mills Corporation guilty of
wet and not properly dried would eventually deteriorate when stored in sealed and hot contributorynegligence. It was seasonably notified of the arrival of the barge but did
compartments as in hatches of a ship. Equipped with this knowledge, the master of not immediately start the unloading operations. No explanation was proffered by the
the vessel and his crew should have undertaken precautionary measures to avoid or consignee as to why there was a delay of six (6) days. Had the unloading been
lessen the cargo's possible deterioration as they were presumed knowledgeable commenced immediately the loss could have been completely avoided or at least
about the nature of such cargo. But none of such measures was taken. minimized. As testified to by the chemist who analyzed the corn samples, the mold
growth was only at its incipient stage and could still be arrested by drying. The corn
In Compania Maritima v. Court of Appeals[5] we ruled - grains were not yet toxic or unfit for consumption. For its contributory negligence,
Republic Flour Mills Corporation should share at least 40% of the loss. [7]
x x x x Mere proof of delivery of the goods in good order to a common carrier, and of WHEREFORE, the Decision of the Court of Appeals of 22 December 1994 and
their arrival at the place of destination in bad order, makes out prima facie case its Resolution of 16 February 1995 are REVERSED and SET ASIDE. Respondent
against the common carrier, so that if no explanation is given as to how the loss, North Front Shipping Services, Inc., is ordered to pay petitioners Tabacalera
deterioration or destruction of the goods occurred, the common carrier must be held Insurance Co., Prudential Guarantee & Assurance, Inc., and New Zealand Insurance
responsible. Otherwise stated, it is incumbent upon the common carrier to prove that Co. Ltd., P1,313,660.00 which is 60% of the amount paid by the insurance companies
the loss, deterioration or destruction was due to accident or some other to Republic Flour Mills Corporation, plus interest at the rate of 12% per annum from
circumstances inconsistent with its liability x x x x the time this judgment becomes final until full payment.

The extraordinary diligence in the vigilance over the goods tendered for shipment SO ORDERED.
requires the common carrier to know and to follow the required precaution for
avoiding damage to, or destruction of the goods entrusted to it for safe carriage and
delivery. It requires common carriers to render service with the greatest skill and
foresight and 'to use all reasonable means to ascertain the nature and characteristics
of goods tendered for shipment, and to exercise due care in the handling and
stowage, including such methods as their nature requires' (underscoring supplied).

In fine, we find that the carrier failed to observe the required extraordinary
diligence in the vigilance over the goods placed in its
[G.R. No. 118231. July 5, 1996] 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On
September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on the same
day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . . .
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains
APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. and complained of being feverish. She also gradually lost her appetite, so she
VILLEGAS, respondents. consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain
medicines . . . which she had been taking up to December, 1988.
DECISION
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin
DAVIDE, JR., J.: on October 31, 1988 . . . certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas
returned to her work at the Rural Bank of Ayungon, Negros Oriental.
Throughout history, patients have consigned their fates and lives to the skill of
their doctors. For a breach of this trust, men have been quick to demand The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no
retribution. Some 4,000 years ago, the Code of Hammurabi[1] then already provided: end and despite the medications administered by Dr. Batiquin. When the pains
"If a physician make a deep incision upon a man with his bronze lancet and cause the become unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud
man's death, or operate on the eye socket of a man with his bronze lancet and Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989.
destroy the man's eyes, they shall cut off his hand." [2] Subsequently,
Hippocrates[3] wrote what was to become part of the healer's oath: "I will follow that The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs.
method of treatment which according to my ability and judgment, I consider for the Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to
benefit of my patients, and abstain from whatever is deleterious and mischievous . . . be feverish, pale and was breathing fast. Upon examination she felt an abdominal
. While I continue to keep this oath unviolated may it be granted me to enjoy life and mass one finger below the umbilicus which she suspected to be either a tumor of the
practice the art, respected by all men at all times but should I trespass and violate this uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken
oath, may the reverse be my lot." At present, the primary objective of the medical of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A
profession is the preservation of life and maintenance of the health of the people.[4] blood count showed that Mrs. Villegas had [an] infection inside her abdominal
cavity. The result of all those examinations impelled Dr. Kho to suggest that Mrs.
Needless to say then, when a physician strays from his sacred duty and Villegas submit to another surgery to which the latter agreed.
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the punishment meted When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow
out by the ancients, neither will it and this Court, as this case would show, let the act discharge inside, an ovarian cyst on each of the left and right ovaries which gave out
go uncondemned. pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side
of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
The petitioners appeal from the decision[5] of the Court of Appeals of 11 May piece of rubber material which Dr. Kho described as a "foreign body" looked like a
1994 in CA-G.R. CV No. 30851, which reversed the decision[6] of 21 December 1990 piece of a "rubber glove" . . . and which is [sic] also "rubber-drain like . . . . It could
of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. have been a torn section of a surgeon's gloves or could have come from other
9492. sources. And this foreign body was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs. Villegas after her delivery on
The facts, as found by the trial court, are as follows: September 21, 1988.[7]
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, The piece of rubber allegedly found near private respondent Flotilde Villegas'
Dumaguete City from January 9, 1978 to September 1989. Between 1987 and
uterus was not presented in court, and although Dr. Ma. Salud Kho testified that she
September, 1989 she was also the Actg. Head of the Department of Obstetrics and sent it to a pathologist in Cebu City for examination, [8] it was not mentioned in the
Gynecology at the said Hospital. pathologist's Surgical Pathology Report.[9]
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal Aside from Dr. Kho's testimony, the evidence which mentioned the piece of
care as the latter's private patient sometime before September 21, 1988.
rubber are a Medical Certificate,[10] a Progress Record,[11] an Anesthesia Record,[12] a
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Nurse's Record,[13] and a Physician's Discharge Summary.[14] The trial court,
Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and however, regarded these documentary evidence as mere hearsay, "there being no
O.R. Nurse Arlene Diones and some student nurses performed a simple cesarean showing that the person or persons who prepared them are deceased or unable to
section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 testify on the facts therein stated . . . . Except for the Medical Certificate (Exhibit "F"),
minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that all the above documents were allegedly prepared by persons other than Dr. Kho, and
morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, she merely affixed her signature on some of them to express her agreement thereto .
. . ."[15] The trial court also refused to give weight to Dr. Kho's testimony regarding the of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees
subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" in the amount of P25,000.00.
thereof,[16] as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body The fact that appellant Flotilde can no longer bear children because her uterus and
that goes with the tissues but unluckily I don't know where the rubber ovaries were removed by Dr. Kho is not taken into consideration as it is not shown
was.[17] that the removal of said organs were the direct result of the rubber left by appellee Dr.
Batiquin near the uterus. What is established is that the rubber left by appellee cause
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear,
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was worry and anxiety . . . .
rubber indeed but that she threw it away."[18] This statement, the trial court noted, was
never denied nor disputed by Dr. Kho, leading it to conclude: WHEREFORE, the appealed judgment, dismissing the complaint for damages is
REVERSED and SET ASIDE. Another judgment is hereby entered ordering
There are now two different versions on the whereabouts of that offending "rubber" defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and
(1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for
(2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs exemplary damages; and P25,000.00 as and for attorney's fees plus the cost of
to reconcile these two different versions serve only to weaken their claim against litigation.
Defendant Batiquin.[19]
SO ORDERED.[21]
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even From the above judgment, the petitioners appealed to this Court claiming that
without admitting the private respondents' documentary evidence, deemed Dr. Kho's the appellate court; (1) committed grave abuse of discretion by resorting to findings of
positive testimony to definitely establish that a piece of rubber was found near private fact not supported by the evidence on record, and (2) exceeded its discretion,
respondent Villegas' uterus. Thus, the Court of Appeals reversed the decision of the amounting to lack or excess of jurisdiction, when it gave credence to testimonies
trial court, holding: punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of fact, which were not proper for review by this Court.
evidence. The trial court itself had narrated what happened to appellant Flotilde after
the cesarean operation made by appellee doctor . . . . After the second operation, While the rule is that only questions of law may be raised in a petition for review
appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused on certiorari, there are exceptions, among which are when the factual findings of the
by the infection due to the "rubber" that was left inside her abdomen.Both appellants trial court and the appellate court conflict, when the appealed decision is clearly
testified that after the operation made by appellee doctor, they did not go to any other contradicted by the evidence on record, or when the appellate court misapprehended
doctor until they finally decided to see another doctor in January, 1989 when she was the facts.[22]
not getting any better under the care of appellee Dr. Batiquin . . . . Appellee Dr. After deciphering the cryptic petition, we find that the focal point of the instant
Batiquin admitted on the witness stand that she alone decided when to close the appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that the
operating area; that she examined the portion she operated on before closing the Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
same . . . . Had she exercised due diligence, appellee Dr. Batiquin would have found
the rubber and removed it before closing the operating area.[20] Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would
The appellate court then ruled: turn out to be a medico-legal case, I have heard somebody that [sic] says
[sic] there is [sic] a foreign body that goes with the tissues but unluckily I
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of don't know where the rubber was. It was not in the Lab, it was not in
P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's Cebu.[23] (Italics supplied)
fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that
saved her life. The petitioners prefer the trial court's interpretation of the above testimony, i.e., that
Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that the underscored phrase was taken out of
For the miseries appellants endured for more than three (3) months, due to the context by the trial court. According to the Court of Appeals, the trial court should
negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount have likewise considered the other portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the operation on her? While the petitioners claim that contradictions and falsities punctured Dr. Kho's
testimony, a reading of the said testimony reveals no such infirmity and establishes
A Yes, I did. Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness
Q And what was the result? stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho,
leaving her trustworthiness unimpaired.[34] The trial court's following declaration
A Opening up her abdomen, there was whitish-yellow discharge inside the shows that while it was critical of the lack of care with which Dr. Kho handled the
abdomen, there was an ovarian cyst on the left and side and there was piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting
also an ovarian cyst on the right which, on opening up or freeing it up from out appraisal of Dr. Kho's trustworthiness:
the uterus, turned out to be pus. Both ovaries turned out . . . to have
pus. And then, cleaning up the uterus, at the back of the uterus it was very This is not to say that she was less than honest when she testified about her findings,
dirty, it was full of pus. And there was a [piece of] rubber, we found a but it can also be said that she did not take the most appropriate precaution to
[piece of] rubber on the right side.[24] preserve that "piece of rubber" as an eloquent evidence of what she would reveal
should there be a "legal problem" which she claim[s] to have anticipated.[35]
We agree with the Court of Appeals. The phrase relied upon by the trial court
does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Considering that we have assessed Dr. Kho to be a credible witness, her
Villegas' abdomen, and that she sent it to a laboratory and then to Cebu City for positive testimony [that a piece of rubber was indeed found in private respondent
examination by a pathologist.[25] Not even the Pathologist's Report, although devoid of Villegas' abdomen] prevails over the negative testimony in favor of the petitioners.
any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion
Kho's knowledge of the piece of rubber could not be based on other than first hand to delve into the nature and operation of this doctrine:
knowledge for, as she asserted before the trial court:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes
Q But you are sure you have seen [the piece of rubber]? injury is shown to be under the management of the defendant, and the accident is
A Oh yes. I was not the only one who saw it.[26] such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of an
The petitioners emphasize that the private respondents never reconciled Dr. explanation by the defendant, that the accident arose from want of care." Or
Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin as Black's Law Dictionary puts it:
confronted Dr. Kho about the foreign body, the latter said that there was a piece of
rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference
objected to, and hence, the same is admissible [27] but it carries no probative that defendant was negligent, which arises upon proof that [the] instrumentality
value.[28] Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the causing injury was in defendant's exclusive control, and that the accident was one
fact that Dr. Kho found a piece of rubber near private respondent Villegas' uterus. And which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule
even if we were to doubt Dr. Kho as to what she did to the piece of of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the]
rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in mere fact that [the] accident happened provided [the] character of [the] accident and
distrusting her as to her recovery of a piece of rubber from private respondent circumstances attending it lead reasonably to belief that in [the] absence of
Villegas' abdomen. On this score, it is perfectly reasonable to believe the testimony of negligence it would not have occurred and that thing which caused injury is shown to
a witness with respect to some facts and disbelieve his testimony with respect to have been under [the] management and control of [the] alleged wrongdoer . . .
other facts. And it has been aptly said that even when a witness is found to have . Under [this] doctrine . . . the happening of an injury permits an inference of
deliberately falsified in some material particulars, it is not required that the whole of negligence where plaintiff produces substantial evidence that [the] injury was caused
his uncorroborated testimony be rejected, but such portions thereof deemed worthy of by an agency or instrumentality under [the] exclusive control and management of
belief may be credited.[29] defendant, and that the occurrence [sic] was such that in the ordinary course of things
would not happen if reasonable care had been used.
It is here worth nothing that the trial court paid heed to the following portions of
Dr. Batiquin's testimony: that no rubber drain was used in the operation, [30] and that
there was neither any tear on Dr. Batiquin's gloves after the operation nor blood xxx xxx xxx
smears on her hands upon removing her gloves. [31] Moreover, the trial court pointed
out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
Batiquin's assistant during the operation on private respondent Villegas. [32] But the negligence which recognizes that prima facie negligence may be established without
trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials direct proof and furnishes a substitute for specific proof of negligence. The doctrine is
or negative testimonies. Well-settled is the rule that positive testimony is stronger not a rule of substantive law, but merely a mode of proof or a mere procedural
than negative testimony.[33] Of course, as the petitioners advocate, such positive convenience. The rule, when applicable to the facts and circumstances of a particular
testimony must come from a credible source, which leads us to the second assigned case, is not intended to and does not dispense with the requirement of proof of
error. culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a
breach of the duty of due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not readily
available.[36]
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the cesarean section were under the
exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of
direct evidence as to the actual culprit or the exact cause of the foreign object finding
its way into private respondent Villegas' body, which, needless to say, does not occur
unless through the intervention of negligence. Second, since aside from the cesarean
section, private respondent Villegas underwent no other operation which could have
caused the offending piece of rubber to appear in her uterus, it stands to reason that
such could only have been a by-product of the cesarean section performed by Dr.
Batiquin. The petitioners, in this regard, failed to overcome the presumption of
negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is
therefore liable for negligently leaving behind a piece of rubber in private respondent
Villegas' abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical
profession plays in the lives of the people, [37] and State's compelling interest to enact
measures to protect the public from "the potentially deadly effects of incompetence
and ignorance in those who would undertake to treat our bodies and minds for
disease or trauma."[38] Indeed, a physician is bound to serve the interest of his
patients "with the greatest of solicitude, giving them always his best talent and
skill."[39] Through her tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in contravention of the
legal standards set forth for professionals, in the general,[40] and members of the
medical profession,[41] in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals
in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
[G.R. No. 122445. November 18, 1997] The petitioner appealed her conviction to the Regional Trial Court (RTC) which
affirmed in toto the decision of the MTCC[7] prompting the petitioner to file a petition
DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA for review with the Court of Appeals but to no avail. Hence this petition for review
UMALI, respondents. on certiorari assailing the decision promulgated by the Court of Appeals on October
24, 1995 affirming petitioner's conviction with modification that she is further directed
to pay the heirs of Lydia Umali P50,000.00 as indemnity for her death.[8]
DECISION
In substance, the petition brought before this Court raises the issue of whether
FRANCISCO, J.: or not petitioner's conviction of the crime of reckless imprudence resulting in
homicide, arising from an alleged medical malpractice, is supported by the evidence
"Doctors are protected by a special law. They are not guarantors of care. They do not on record.
even warrant a good result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest mistake of judgment" [1] First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo,
The present case against petitioner is in the nature of a medical malpractice accompanied her mother to the Perpetual Help Clinic and General Hospital situated in
suit, which in simplest term is the type of claim which a victim has available to him or Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around
her to redress a wrong committed by a medical professional which has cause bodily 4:30 in the afternoon of the same day.[9] Prior to March 22, 1991, Lydia was examined
harm.[2] In this jurisdiction, however, such claims are most often brought as a civil by the petitioner who found a "myoma"[10] in her uterus, and scheduled her for a
action for damages under Article 2176 of the Civil Code,[3] and in some instances, as hysterectomy operation on March 23, 1991. [11] Rowena and her mother slept in the
a criminal case under Article 365 of the Revised Penal Code [4] with which the civil clinic on the evening of March 22, 1991 as the latter was to be operated on the next
action for damages is impliedly instituted. It is via the latter type of action that the day at 1:00 o'clock in the afternoon.[12] According to Rowena, she noticed that the
heirs of the deceased sought redress for the petitioner's alleged imprudence and clinic was untidy and the window and the floor were very dusty prompting her to ask
negligence in treating the deceased thereby causing her death. The petitioner and the attendant for a rag to wipe the window and the floor with. [13] Because of the untidy
one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of state of the clinic, Rowena tried to persuade her mother not to proceed with the
the deceased were charged with "reckless imprudence and negligence resulting to operation.[14] The following day, before her mother was wheeled into the operating
(sic) homicide" in an information which reads: room, Rowena asked the petitioner if the operation could be postponed. The
petitioner called Lydia into her office and the two had a conversation. Lydia then
informed Rowena that the petitioner told her that she must be operated on as
"That on or about March 23, 1991, in the City of San Pablo, Republic of the
scheduled.[15]
Philippines and within the jurisdiction of this Honorable Court, the accused
abovenamed, being then the attending anaesthesiologist and surgeon, respectively, Rowena and her other relatives, namely her husband, her sister and two aunts
did then and there, in a negligence (sic), careless, imprudent, and incompetent waited outside the operating room while Lydia underwent operation. While they were
manner, and failing to supply or store sufficient provisions and facilities necessary to waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet
meet any and all exigencies apt to arise before, during and/or after a surgical ampules which Rowena's sister immediately bought. About one hour had passed
operation causing by such negligence, carelessness, imprudence, and incompetence, when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They
and causing by such failure, including the lack of preparation and foresight needed to bought type "A" blood from the St. Gerald Blood Bank and the same was brought by
avert a tragedy, the untimely death of said Lydia Umali on the day following said the attendant into the operating room. After the lapse of a few hours, the petitioner
surgical operation."[5] informed them that the operation was finished. The operating staff then went inside
the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to brought out of the operating room in a stretcher and the petitioner asked Rowena and
the above-mentioned charge. On March 4, 1994, the Municipal Trial Court in Cities the other relatives to buy additional blood for Lydia. Unfortunately, they were not able
(MTCC) of San Pablo City rendered a decision, the dispositive portion of which is to comply with petitioner's order as there was no more type "A" blood available in the
hereunder quoted as follows: blood bank. Thereafter, a person arrived to donate blood which was later transfused
to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank,
gasping for breath. Apparently the oxygen supply had run out and Rowena's husband
"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense
together with the driver of the accused had to go to the San Pablo District Hospital to
charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is
get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived.[16] But
hereby held responsible for the death of Lydia Umali on March 24, 1991, and
at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to
therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby
60/50. Lydia's unstable condition necessitated her transfer to the San Pablo District
sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor
Hospital so she could be connected to a respirator and further examined. [17] The
with costs."[6]
transfer to the San Pablo City District Hospital was without the prior consent of
Rowena nor of the other relatives present who found out about the intended transfer
only when an ambulance arrived to take Lydia to the San Pablo District Hospital. the operating room? Were the surgical instruments properly sterilized? Could the
Rowena and her other relatives then boarded a tricycle and followed the conditions in the OR have contributed to the infection of the patient? Only the
ambulance.[18] petitioner could answer these, but she opted not to testify. This could only give rise to
the presumption that she has nothing good to testify on her defense. Anyway, the
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the alleged "unverified statement of the prosecution witness" remains unchallenged and
operating room and the petitioner and Dr. Ercillo re-operated on her because there unrebutted.
was blood oozing from the abdominal incision. [19] The attending physicians
summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Likewise undisputed is the prosecution's version indicating the following facts: that the
Lydia was already in shock and possibly dead as her blood pressure was already 0/0. accused asked the patient's relatives to buy Tagamet capsules while the operation
Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could was already in progress; that after an hour, they were also asked to buy type "A"
do to help save the patient.[20] While petitioner was closing the abdominal wall, the blood for the patient; that after the surgery, they were again asked to procure more
patient died.[21] Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali type "A" blood, but such was not anymore available from the source; that the oxygen
was pronounced dead. Her death certificate states "shock" as the immediate cause of given to the patient was empty; and that the son-in-law of the patient, together with a
death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent driver of the petitioner, had to rush to the San Pablo City District Hospital to get the
cause.[22] much-needed oxygen. All these conclusively show that the petitioner had not
prepared for any unforeseen circumstances before going into the first surgery, which
In convicting the petitioner, the MTCC found the following circumstances as was not emergency in nature, but was elective or pre-scheduled; she had no ready
sufficient basis to conclude that she was indeed negligent in the performance of the antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient
operation: oxygen supply.

"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to Moreover, there are a lot of questions that keep nagging Us. Was the patient given
prepare for any contingency that might happen during the operation. The manner and any cardio-pulmonary clearance, or at least a clearance by an internist, which are
the fact that the patient was brought to the San Pablo District Hospital for reoperation standard requirements before a patient is subjected to surgery. Did the petitioner
indicates that there was something wrong in the manner in which Dra. Cruz determine as part of the pre-operative evaluation, the bleeding parameters of the
conducted the operation. There was no showing that before the operation, accused patient, such as bleeding time and clotting time? There is no showing that these were
Dr. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of done. The petitioner just appears to have been in a hurry to perform the operation,
the patient. It was (sic) said in medical parlance that the "abdomen of the person is a even as the family wanted the postponement to April 6, 1991. Obviously, she did not
temple of surprises" because you do not know the whole thing the moment it was prepare the patient; neither did she get the family's consent to the operation.
open (sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) Moreover, she did not prepare a medical chart with instructions for the patient's care.
chart which is a public document was not presented because it is only there that we If she did all these, proof thereof should have been offered. But there is none. Indeed,
could determine the condition of the patient before the surgery. The court also noticed these are overwhelming evidence of recklessness and imprudence." [25]
in Exh. "F-1" that the sister of the deceased wished to postpone the operation but the
patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds This court, however, holds differently and finds the foregoing circumstances
that Lydia Umali died because of the negligence and carelessness of the surgeon insufficient to sustain a judgment of conviction against the petitioner for the crime of
Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased reckless imprudence resulting in homicide. The elements of reckless imprudence are:
for evident unpreparedness and for lack of skill, the reason why the patient was (1) that the offender does or fails to do an act; (2) that the doing or the failure to do
brought for operation at the San Pablo City District Hospital. As such, the surgeon that act is voluntary; (3) that it be without malice; (4) that material damage results
should answer for such negligence. With respect to Dra. Lina Ercillo, the from the reckless imprudence; and (5) that there is inexcusable lack of precaution on
anaesthesiologist, there is no evidence to indicate that she should be held jointly the part of the offender, taking into consideration his employment or occupation,
liable with Dra. Cruz who actually did the operation." [23] degree of intelligence, physical condition, and other circumstances regarding
persons, time and place.
The RTC reiterated the abovementioned findings of the MTCC and upheld the
latter's declaration of "incompetency, negligence and lack of foresight and skill of Whether or not a physician has committed an "inexcusable lack of precaution" in
appellant (herein petitioner) in handling the subject patient before and after the the treatment of his patient is to be determined according to the standard of care
operation."[24] And likewise affirming the petitioner's conviction, the Court of Appeals observed by other members of the profession in good standing under similar
echoed similar observations, thus: circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. [26] In the recent case of Leonila
Garcia-Rueda v. Wilfred L. Pacasio, et. al.,[27] this Court stated that in accepting a
"x x x. While we may grant that the untidiness and filthiness of the clinic may not by case, a doctor in effect represents that, having the needed training and skill
itself indicate negligence, it nevertheless shows the absence of due care and possessed by physicians and surgeons practicing in the same field, he will employ
supervision over her subordinate employees. Did this unsanitary condition permeate such training, care and skill in the treatment of his patients. He therefore has a duty to
use at least the same level of care that any other reasonably competent doctor would St Luke's Hospital, Inc.,[34] where the attending physician was absolved of liability for
use to treat a condition under the same circumstances. It is in this aspect of medical the death of the complainant's wife and newborn baby, this court held that:
malpractice that expert testimony is essential to establish not only the standard of
care of the profession but also that the physician's conduct in the treatment and care "In order that there may be a recovery for an injury, however, it must be shown that
falls below such standard.[28] Further, inasmuch as the causes of the injuries involved the 'injury for which recovery is sought must be the legitimate consequence of the
in malpractice actions are determinable only in the light of scientific knowledge, it has wrong done; the connection between the negligence and the injury must be a direct
been recognized that expert testimony is usually necessary to support the conclusion and natural sequence of events, unbroken by intervening efficient causes.' In other
as to causation.[29] words, the negligence must be the proximate cause of the injury. For, 'negligence, no
Immediately apparent from a review of the records of this case is the absence of matter in what it consists, cannot create a right of action unless it is the proximate
any expert testimony on the matter of the standard of care employed by other cause of the injury complained of.' And 'the proximate cause of an injury is that cause,
physicians of good standing in the conduct of similar operations. The prosecution's which, in natural and continuous sequence, unbroken by any efficient intervening
expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of cause, produces the injury, and without which the result would not have
the National Bureau of Investigation (NBI) only testified as to the possible cause of occurred.'''[35] (Underscoring supplied.)
death but did not venture to illuminate the court on the matter of the standard of care
that petitioner should have exercised. Dr. Arizala who conducted an autopsy on the body of the deceased summarized
his findings as follows:
All three courts below bewail the inadequacy of the facilities of the clinic and its
untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the "Atty. Cachero:
failure to subject the patient to a cardio-pulmonary test prior to the operation; the
omission of any form of blood typing before transfusion; and even the subsequent Q. You mentioned about your Autopsy Report which has been marked as
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by Exh. "A-1-b". There appears here a signature above the typewritten
the petitioner. But while it may be true that the circumstances pointed out by the name Floresto Arizala, Jr., whose signature is that?
courts below seemed beyond cavil to constitute reckless imprudence on the part of A. That is my signature, sir.
the surgeon, this conclusion is still best arrived at not through the educated surmises
nor conjectures of laymen, including judges, but by the unquestionable knowledge of Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
expert witnesses. For whether a physician or surgeon has exercised the requisite
degree of skill and care in the treatment of his patient is, in the generality of cases, a A. Only as to the autopsy report no. 91-09, the time and place and
matter of expert opinion.[30] The deference of courts to the expert opinion of qualified everything after the post mortem findings, sir.
physicians stems from its realization that the latter possess unusual technical skills
Q. You mentioned on your "Post Mortem Findings" about surgical incision,
which laymen in most instances are incapable of intelligently evaluating. [31] Expert
14:0 cm., infraumbilical area, anterior abdominal area, midline, will
testimony should have been offered to prove that the circumstances cited by the
you please explain that in your own language?
courts below are constitutive of conduct falling below the standard of care employed
by other physicians in good standing when performing the same operation. It must be A. There was incision wound (sic) the area just below the navel, sir.
remembered that when the qualifications of a physician are admitted, as in the instant
case, there is an inevitable presumption that in proper cases he takes the necessary Q. And the last paragraph of the postmortem findings which I read: Uterus,
precaution and employs the best of his knowledge and skill in attending to his clients, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some
unless the contrary is sufficiently established.[32] This presumption is rebuttable by surface nodulation of the fundic area posteriorly. Cut-section shows
expert opinion which is so sadly lacking in the case at bench. diffusely pale myometrium with areas of streak induration. The
ovaries and adnexal structures are missing with the raw surfaces
Even granting arguendo that the inadequacy of the facilities and untidiness of patched with clotted blood. Surgical sutures were noted on the
the clinic; the lack of provisions; the failure to conduct pre-operation tests on the operative site.
patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner do indicate, even without expert Intestines and mesenteries are pale with blood clots noted
testimony, that petitioner was recklessly imprudent in the exercise of her duties as a between the mesentric folds.
surgeon, no cogent proof exists that any of these circumstances caused petitioner's
death. Thus, the absence of the fourth element of reckless imprudence: that the injury Hemoperitonium: 300 s.s.,
to the person or property was a consequence of the reckless imprudence. right paracolic gutter,
In litigations involving medical negligence, the plaintiff has the burden of 50 c.c., left paracolic gutter
establishing appellant's negligence and for a reasonable conclusion of negligence,
there must be proof of breach of duty on the part of the surgeon as well as a casual 200 c.c., mesentric area,
connection of such breach and the resulting death of his patient. [33] In Chan Lugay v.
100 c.c., right pelvic gutter A. Yes, sir, and by virtue of the autopsy report in connection with your
pathology report.
stomach empty.
Q. What could have caused the death of the victim?
Other visceral organs, pale.',
A. This pathologic examination are (sic) compatible with the person who
will you please explain that on (sic) your own language or in ordinary died, sir.
A. There was a uterus which was not attached to the adnexal structures Q. Will you explain to us the meaning of hemorrhagic compatible?
namely ovaries which were not present and also sign of previous
surgical operation and there were (sic) clotted blood, sir. A. It means that a person died of blood loss. Meaning a person died of
non-replacement of blood and so the victim before she died there
Q. How about the ovaries and adnexal structures? was shock of diminish of blood of the circulation. She died most
A. They are missing, sir. probably before the actual complete blood loss, sir.

Q. You mean to say there are no ovaries? Court: Is it possible doctor that the loss of the blood was due on (sic)
operation?
A. During that time there are no ovaries, sir.
A. Based on my pathology findings, sir.
Q. And there were likewise sign of surgical sutures?
Q. What could have caused this loss of blood?
A. Yes, sir.
A. Many, sir. A patient who have undergone surgery. Another may be a
Q. How about the intestines and mesenteries are place (sic) with blood blood vessel may be cut while on operation and this cause (sic)
clots noted between the mesenteric folds, will you please explain on bleeding, or may be set in the course of the operation, or may be (sic)
(sic) this? he died after the operation. Of course there are other cause (sic).

A. In the peritoneal cavity, they are mostly perritonial blood. Atty. Cachero:

Q. And what could have caused this blood? Q. Especially so doctor when there was no blood replacement?

A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) A. Yes, sir."[37] (Underscoring supplied.)
outside as a result of the injuries which destroyed the integrity of the
vessel allowing blood to sip (sic) out, sir. The testimonies of both doctors establish hemorrhage or hemorrhagic shock as
the cause of death. However, as likewise testified to by the expert witnesses in open
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can court, hemorrhage or hemorrhagic shock during surgery may be caused by several
you tell the court the cause of death? different factors. Thus, Dr. Salvador's elaboration on the matter:

A. Yes, sir. The cause of death is: Gross findings are compatible with "Atty. Pascual:
hemorrhagic shock.
Q. Doctor, among the causes of hemorrhage that you mentioned you said
Q. Can you tell the us what could have caused this hemorrhagic shock? that it could be at the moment of operation when one losses (sic)
control of the presence, is that correct? During the operation there is
A. Well hemorrhagic shock is the result of blood loss. lost (sic) of control of the cut vessel?
Q. What could have the effect of that loss of blood? A. Yes, sir.
A. Unattended hemorrhage, sir.[36] (Underscoring supplied.) Q. Or there is a failure to ligate a vessel of considerable size?
The foregoing was corroborated by Dr. Nieto Salvador: A. Yes, sir.
"Q. And were you able to determine the cause of death by virtue of the Q. Or even if the vessel were ligated the knot may have slipped later on?
examination of the specimen submitted by Dr. Arizala?
A. Yes, sir.
A. Without knowledge of the autopsy findings it would be difficult for me to
determine the cause of death, sir. Q. And you also mentioned that it may be possible also to some clotting
defect, is that correct?
Q. Have you examined the post mortem of Dr. Arizala?
A. May be (sic)."[38] (Underscoring supplied). Q: As a matter of fact, you cannot recall because you did not even
bothered (sic) to examine, is that correct?
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
A: Well, I bothered enough to know that they were sutured, sir.
"Q. Doctor even a patient after an operations (sic) would suffer hemorrage
what would be the possible causes of such hemorrage (sic)? Q: So, therefore, Doctor, you would not know whether any of the cut
structures were not sutured or tied neither were you able to
A. Among those would be what we call Intravascular Coagulation and this determine whether any loose suture was found in the peritoneal
is the reason for the bleeding, sir, which cannot be prevented by cavity?
anyone, it will happen to anyone, anytime and to any persons (sic),
sir. A: I could not recall any loose sutured (sic), sir." [41]
COURT: On the other hand, the findings of all three doctors do not preclude the
probability that DIC caused the hemorrhage and consequently, Lydia's death. DIC
What do you think of the cause of the bleeding, the cutting or the which is a clotting defect creates a serious bleeding tendency and when massive DIC
operations done in the body? occurs as a complication of surgery leaving raw surface, major hemorrhage
A. Not related to this one, the bleeding here is not related to any cutting or occurs.[42] And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due
operation that I (sic) have done. to DIC "cannot be prevented, it will happen to anyone, anytime." [43] He testified
further:
Q. Aside from the DIC what could another causes (sic) that could be the
cause for the hemorrhage or bleeding in a patient by an operations "Q. Now, under the circumstance one of the possibility as you mentioned
(sic)? in (sic) DIC?

A. In general sir, if there was an operations (sic) and it is possible that the A. Yes, sir.
ligature in the suture was (sic) become (sic) loose, it is (sic) becomes Q. And you mentioned that it cannot be prevented?
loose if proven.
A. Yes, sir.
xxxxxxxxx
Q. Can you even predict if it really happen (sic)?
Q. If the person who performed an autopsy does not find any untight (sic)
clot (sic) blood vessel or any suture that become (sic) loose the A. Possible, sir.
cause of the bleeding could not be attributed to the fault of the
subject? Q. Are there any specific findings of autopsy that will tell you whether this
patient suffered among such things as DIC?
A. Definitely, sir."[39] (Underscoring supplied.)
A. Well, I did reserve because of the condition of the patient.
According to both doctors, the possible causes of hemorrhage during an
operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel; (2) Q. Now, Doctor you said that you went through the record of the deceased
allowing a cut blood vessel to get out of control; (3) the subsequent loosening of the Lydia Umali looking for the chart, the operated (sic) records, the post
tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. mortem findings on the histophanic (sic) examination based on your
It is significant to state at this juncture that the autopsy conducted by Dr. Arizala on examination of record, doctor, can you more or less says (sic) what
the body of Lydia did not reveal any untied or unsutured cut blood vessel nor was part are (sic) concerned could have been the caused (sic) of death of
there any indication that the tie or suture of a cut blood vessel had become loose this Lydia Umali?
thereby causing the hemorrhage.[40] Hence the following pertinent portion of Dr. A. As far as the medical record is concern (sic) the caused (sic) of death is
Arizala's testimony: dessimulated (sic) Intra Vascular Coagulation or the DIC which
"Q: Doctor, in examining these structures did you know whether these resulted to hemorrhage or bleedings, sir.
were sutured ligature or plain ligature Q. Doctor based on your findings then there is knowing (sic) the doctor
A: Ligature, sir. would say whether the doctor her (sic) has been (sic) fault?

Q: We will explain that later on. Did you recall if the cut structures were tied ATTY. MALVEDA:
by first suturing it and then tying a knot or the tie was merely placed We will moved (sic) to strike out the (sic) based on finding they just read
around the cut structure and tied? the chart as well as the other record.
A: I cannot recall, sir.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir." [44]
This court has no recourse but to rely on the expert testimonies rendered by
both prosecution and defense witnesses that substantiate rather than contradict
petitioner's allegation that the cause of Lydia's death was DIC which, as attested to by
an expert witness, cannot be attributed to the petitioner's fault or negligence. The
probability that Lydia's death was caused by DIC was unrebutted during trial and has
engendered in the mind of this Court a reasonable doubt as to the petitioner's guilt.
Thus, her acquittal of the crime of reckless imprudence resulting in homicide. While
we condole with the family of Lydia Umali, our hands are bound by the dictates of
justice and fair dealing which hold inviolable the right of an accused to be presumed
innocent until proven guilty beyond reasonable doubt. Nevertheless, this Court finds
the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a
crime requires proof beyond reasonable doubt, only a preponderance of evidence is
required to establish civil liability.[45]
The petitioner is a doctor in whose hands a patient puts his life and limb. For
insufficiency of evidence this Court was not able to render a sentence of conviction
but it is not blind to the reckless and imprudent manner in which the petitioner carried
out her duties. A precious life has been lost and the circumstances leading thereto
exacerbated the grief of those left behind. The heirs of the deceased continue to feel
the loss of their mother up to the present time[46] and this Court is aware that no
amount of compassion and commiseration nor words of bereavement can suffice to
assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is
hereby ACQUITTED of the crime of reckless imprudence resulting in homicide but is
ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY
THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND
PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages.
Let the copy of this decision be furnished to the Professional Regulation
Commission (PRC) for appropriate action.
SO ORDERED.
[G.R. No. 124354. December 29, 1999] (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided
that she should undergo a cholecystectomy operation after examining the documents
(findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS
anesthesiologists fee and which was to be paid after the operation (TSN, October 19,
and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS,
1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November
DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
9, 1989, pp. 3-4, 10, 17).
PERFECTA GUTIERREZ, respondents.

A day before the scheduled date of operation, she was admitted at one of the rooms
DECISION
of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,
KAPUNAN, J.: 1989, p. 11).

The Hippocratic Oath mandates physicians to give primordial consideration to At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared
the health and welfare of their patients. If a doctor fails to live up to this precept, he is for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the
made accountable for his acts. A mistake, through gross negligence or incompetence Dean of the College of Nursing at the Capitol Medical Center, was also there for
or plain human error, may spell the difference between life and death. In this sense, moral support. She reiterated her previous request for Herminda to be with her even
the doctor plays God on his patients fate.[1] during the operation. After praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating room (TSN, January 13,
In the case at bar, the Court is called upon to rule whether a surgeon, an 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p.
anesthesiologist and a hospital should be made liable for the unfortunate comatose 18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta
condition of a patient scheduled for cholecystectomy.[2] Gutierrez, the other defendant, who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced herself as Dean of the College of
Petitioners seek the reversal of the decision [3] of the Court of Appeals, dated 29 Nursing at the Capitol Medical Center who was to provide moral support to the
May 1995, which overturned the decision[4]of the Regional Trial Court, dated 30 patient, to them. Herminda was allowed to stay inside the operating room.
January 1992, finding private respondents liable for damages arising from negligence
in the performance of their professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition. At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka
who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
The antecedent facts as summarized by the trial court are reproduced informed Herminda Cruz about the prospect of a delay in the arrival of Dr.
hereunder: Hosaka. Herminda then went back to the patient who asked, Mindy, wala pa ba ang
Doctor? The former replied, Huwag kang mag-alaala, darating na iyon (ibid.).
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
A) robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of Thereafter, Herminda went out of the operating room and informed the patients
discomfort due to pains allegedly caused by the presence of a stone in her gall husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned
bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other to the operating room, the patient told her, Mindy, inip na inip na ako, ikuha mo ako
woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance ng ibang Doctor. So, she went out again and told Rogelio about what the patient said
Telephone Company, she has three children whose names are Rommel Ramos, Roy (id., p. 15). Thereafter, she returned to the operating room.
Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the
Because the discomforts somehow interfered with her normal ways, she sought arrival of the doctor even as he did his best to find somebody who will allow him to
professional advice. She was advised to undergo an operation for the removal of a pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also
stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of thought of the feeling of his wife, who was inside the operating room waiting for the
examinations which included blood and urine tests (Exhs. A and C) which indicated doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he
she was fit for surgery. (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. nurse remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing those
7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be words, he went down to the lobby and waited for the operation to be completed (id.,
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on pp. 16, 29-30).
June 10, 1985. They agreed that their date at the operating table at the DLSMC
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the constant medical attention, with her husband Rogelio incurring a monthly expense
patient, heard somebody say that Dr. Hosaka is already here. She then saw people ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
inside the operating room moving, doing this and that, [and] preparing the patient for also diagnosed to be suffering from diffuse cerebral parenchymal damage (Exh. G;
the operation (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda see also TSN, December 21, 1989, p. 6).[5]
Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O Thus, on 8 January 1986, petitioners filed a civil case [6] for damages with the
lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused Regional Trial Court of Quezon City against herein private respondents alleging
her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish negligence in the management and care of Erlinda Ramos.
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr.
Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to During the trial, both parties presented evidence as to the possible cause of
call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at Erlindas injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr.
the operating room, she saw this anesthesiologist trying to intubate the patient. The Mariano Gavino to prove that the damage sustained by Erlinda was due to lack of
patients nailbed became bluish and the patient was placed in a trendelenburg position oxygen in her brain caused by the faulty management of her airway by private
- a position where the head of the patient is placed in a position lower than her feet respondents during the anesthesia phase. On the other hand, private respondents
which is an indication that there is a decrease of blood supply to the patients brain primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to
(Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she the effect that the cause of brain damage was Erlindas allergic reaction to the
told Rogelio E. Ramos that something wrong was x x x happening (Ibid.). Dr. anesthetic agent, Thiopental Sodium (Pentothal).
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
After considering the evidence from both sides, the Regional Trial Court
rendered judgment in favor of petitioners, to wit:
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room.When informed by Herminda Cruz that something After evaluating the evidence as shown in the finding of facts set forth earlier, and
wrong was happening, he told her (Herminda) to be back with the patient inside the applying the aforecited provisions of law and jurisprudence to the case at bar, this
operating room (TSN, October 19, 1989, pp. 25-28). Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU). On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The fact that the patient was inside the operating room for almost three (3) hours. For after
latter informed the former that something went wrong during the intubation. Reacting she committed a mistake in intubating [the] patient, the patient's nailbed became
to what was told to him, Rogelio reminded the doctor that the condition of his wife bluish and the patient, thereafter, was placed in trendelenburg position, because of
would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist the decrease of blood supply to the patient's brain. The evidence further shows that
(TSN, October 19, 1989, p. 31). the hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what patient to become comatose.
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27). On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on part of his obligation to provide the patient a `good anesthesiologist', and for arriving
November 15, 1985, the patient was released from the hospital. for the scheduled operation almost three (3) hours late.

During the whole period of her confinement, she incurred hospital bills amounting On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
to P93,542.25 which is the subject of a promissory note and affidavit of undertaking negligence of the doctors in their `practice of medicine' in the operating
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of room. Moreover, the hospital is liable for failing through its responsible officials, to
June 17, 1985, she has been in a comatose condition. She cannot do anything. She cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.
cannot move any part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of the absence of oxygen In having held thus, this Court rejects the defense raised by defendants that they
in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being have acted with due care and prudence in rendering medical services to plaintiff-
discharged from the hospital, she has been staying in their residence, still needing
patient. For if the patient was properly intubated as claimed by them, the patient 1995. However, the appellate court denied the motion for extension of time in its
would not have become comatose. And, the fact that another anesthesiologist was Resolution dated 25 July 1995.[9] Meanwhile petitioners engaged the services of
called to try to intubate the patient after her (the patient's) nailbed turned bluish, belie another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August
their claim. Furthermore, the defendants should have rescheduled the operation to a 1995 a motion to admit the motion for reconsideration contending that the period to
later date. This, they should have done, if defendants acted with due care and file the appropriate pleading on the assailed decision had not yet commenced to run
prudence as the patient's case was an elective, not an emergency case. as the Division Clerk of Court of the Court of Appeals had not yet served a copy
thereof to the counsel on record. Despite this explanation, the appellate court still
xxx denied the motion to admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15)
period for filing a motion for reconsideration had already expired, to wit:
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the
plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, jointly
and severally, the former the following sums of money, to wit: We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p.
12) was denied. It is, on the other hand, admitted in the latter Motion that
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos plaintiffs/appellees received a copy of the decision as early as June 9,
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1995. Computation wise, the period to file a Motion for Reconsideration expired on
1992, subject to its being updated; June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that
2) the sum of P100,000.00 as reasonable attorney's fees; alone, the latter should be denied.

3) the sum of P800,000.00 by way of moral damages and the further sum Even assuming admissibility of the Motion for Reconsideration, but after considering
of P200,000.00 by way of exemplary damages; and, the Comment/Opposition, the former, for lack of merit, is hereby DENIED.

4) the costs of the suit. SO ORDERED.[10]

SO ORDERED.[7] A copy of the above resolution was received by Atty. Sillano on 11 April
1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion
Private respondents seasonably interposed an appeal to the Court of for extension of time to file the present petition for certiorari under Rule 45. The Court
Appeals. The appellate court rendered a Decision, dated 29 May 1995, reversing the granted the motion for extension of time and gave petitioners additional thirty (30)
findings of the trial court. The decretal portion of the decision of the appellate court days after the expiration of the fifteen-day (15) period counted from the receipt of the
reads: resolution of the Court of Appeals within which to submit the petition. The due date
fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended
period given by the Court.
WHEREFORE, for the foregoing premises the appealed decision is hereby
REVERSED, and the complaint below against the appellants is hereby ordered Petitioners assail the decision of the Court of Appeals on the following grounds:
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid I
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy. IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS
DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
SO ORDERED.[8]
II
The decision of the Court of Appeals was received on 9 June 1995 by petitioner
Rogelio Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT
the decision, however, was sent nor received by the Coronel Law Office, then counsel CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER
on record of petitioners. Rogelio referred the decision of the appellate court to a new ERLINDA RAMOS;
lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of
the reglementary period for filing a motion for reconsideration. On the same day, Atty. III
Ligsay, filed with the appellate court a motion for extension of time to file a motion for
reconsideration.The motion for reconsideration was submitted on 4 July
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.[11] The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as
a matter of common knowledge and experience, the very nature of certain types of
Before we discuss the merits of the case, we shall first dispose of the procedural occurrences may justify an inference of negligence on the part of the person who
issue on the timeliness of the petition in relation to the motion for reconsideration filed controls the instrumentality causing the injury in the absence of some explanation by
by petitioners with the Court of Appeals. In their Comment,[12] private respondents the defendant who is charged with negligence. [15] It is grounded in the superior logic
contend that the petition should not be given due course since the motion for of ordinary human experience and on the basis of such experience or common
reconsideration of the petitioners on the decision of the Court of Appeals was validly knowledge, negligence may be deduced from the mere occurrence of the accident
dismissed by the appellate court for having been filed beyond the reglementary itself.[16] Hence, res ipsa loquitur isapplied in conjunction with the doctrine of common
period. We do not agree. knowledge.

A careful review of the records reveals that the reason behind the delay in filing However, much has been said that res ipsa loquitur is not a rule of substantive
the motion for reconsideration is attributable to the fact that the decision of the Court law and, as such, does not create or constitute an independent or separate ground of
of Appeals was not sent to then counsel on record of petitioners, the Coronel Law liability.[17] Instead, it is considered as merely evidentiary or in the nature of a
Office. In fact, a copy of the decision of the appellate court was instead sent to and procedural rule.[18] It is regarded as a mode of proof, or a mere procedural
received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of
addressed as Atty. Rogelio Ramos. Based on the other communications received by producing specific proof of negligence.[19] In other words, mere invocation and
petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel application of the doctrine does not dispense with the requirement of proof of
on record. Thus, no copy of the decision of the appellate court was furnished to the negligence. It is simply a step in the process of such proof, permitting the plaintiff to
counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive present along with the proof of the accident, enough of the attending circumstances to
period for filing a motion for reconsideration, referred the same to a legal counsel only invoke the doctrine, creating an inference or presumption of negligence, and to
on 20 June 1995. thereby place on the defendant the burden of going forward with the proof. [20] Still,
before resort to the doctrine may be allowed, the following requisites must be
It is elementary that when a party is represented by counsel, all notices should satisfactorily shown:
be sent to the partys lawyer at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice at all. In the present case, 1. The accident is of a kind which ordinarily does not occur in the absence
since a copy of the decision of the appellate court was not sent to the counsel on of someones negligence;
record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in 2. It is caused by an instrumentality within the exclusive control of the
the filing of the motion for reconsideration cannot be taken against defendant or defendants; and
petitioner. Moreover, since the Court of Appeals already issued a second Resolution,
dated 29 March 1996, which superseded the earlier resolution issued on 25 July 3. The possibility of contributing conduct which would make the plaintiff
1995, and denied the motion for reconsideration of petitioner, we believe that the responsible is eliminated.[21]
receipt of the former should be considered in determining the timeliness of the filing of
the present petition. Based on this, the petition before us was submitted on time. In the above requisites, the fundamental element is the control of the
instrumentality which caused the damage.[22] Such element of control must be shown
After resolving the foregoing procedural issue, we shall now look into the merits to be within the dominion of the defendant. In order to have the benefit of the rule, a
of the case. For a more logical presentation of the discussion we shall first consider plaintiff, in addition to proving injury or damage, must show a situation where it is
the issue on the applicability of the doctrine of res ipsa loquitur to the instant applicable, and must establish that the essential elements of the doctrine were
case. Thereafter, the first two assigned errors shall be tackled in relation to the res present in a particular incident.[23]
ipsa loquitur doctrine.
Medical malpractice[24]cases do not escape the application of this
Res ipsa loquitur is a Latin phrase which literally means the thing or the doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant
transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that upon the harm are themselves of such a character as to justify an inference of
the fact of the occurrence of an injury, taken with the surrounding circumstances, may negligence as the cause of that harm.[25] The application of res ipsa loquitur in
permit an inference or raise a presumption of negligence, or make out a medical negligence cases presents a question of law since it is a judicial function to
plaintiffs prima facie case, and present a question of fact for defendant to meet with determine whether a certain set of circumstances does, as a matter of law, permit a
an explanation.[13] Where the thing which caused the injury complained of is shown to given inference.[26]
be under the management of the defendant or his servants and the accident is such
as in ordinary course of things does not happen if those who have its management or Although generally, expert medical testimony is relied upon in malpractice suits
control use proper care, it affords reasonable evidence, in the absence of explanation to prove that a physician has done a negligent act or that he has deviated from the
by the defendant, that the accident arose from or was caused by the defendants want standard medical procedure, when the doctrine of res ipsa loquitur is availed by the
of care.[14] plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence.[27] The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of activity in such operations, which, if unexplained would themselves reasonably speak
mankind which may be testified to by anyone familiar with the facts. [28] Ordinarily, only to the average man as the negligent cause or causes of the untoward
physicians and surgeons of skill and experience are competent to testify as to consequence.[41] If there was such extraneous interventions, the doctrine of res ipsa
whether a patient has been treated or operated upon with a reasonable degree of skill loquitur may be utilized and the defendant is called upon to explain the matter, by
and care. However, testimony as to the statements and acts of physicians and evidence of exculpation, if he could.[42]
surgeons, external appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses.[29] Hence, in cases where the res We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will
ipsa loquitur is applicable, the court is permitted to find a physician negligent upon hereinafter be explained, the damage sustained by Erlinda in her brain prior to a
proper proof of injury to the patient, without the aid of expert testimony, where the scheduled gall bladder operation presents a case for the application of res ipsa
court from its fund of common knowledge can determine the proper standard of loquitur.
care.[30] Where common knowledge and experience teach that a resulting injury would A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the
not have occurred to the patient if due care had been exercised, an inference of Kansas Supreme Court in applying the res ipsa loquitur stated:
negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred.[31] When the doctrine is appropriate, all that the The plaintiff herein submitted himself for a mastoid operation and delivered his person
patient must do is prove a nexus between the particular act or omission complained over to the care, custody and control of his physician who had complete and
of and the injury sustained while under the custody and management of the exclusive control over him, but the operation was never performed. At the time of
defendant without need to produce expert medical testimony to establish the standard submission he was neurologically sound and physically fit in mind and body, but he
of care. Resort to res ipsa loquitur is allowed because there is no other way, under suffered irreparable damage and injury rendering him decerebrate and totally
usual and ordinary conditions, by which the patient can obtain redress for injury incapacitated. The injury was one which does not ordinarily occur in the process of a
suffered by him. mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a
Thus, courts of other jurisdictions have applied the doctrine in the following person being put under anesthesia is not rendered decerebrate as a consequence of
situations: leaving of a foreign object in the body of the patient after an administering such anesthesia in the absence of negligence. Upon these facts and
operation,[32] injuries sustained on a healthy part of the body which was not under, or under these circumstances a layman would be able to say, as a matter of common
in the area, of treatment,[33] removal of the wrong part of the body when another part knowledge and observation, that the consequences of professional treatment were
was intended,[34] knocking out a tooth while a patients jaw was under anesthetic for not as such as would ordinarily have followed if due care had been exercised.
the removal of his tonsils,[35] and loss of an eye while the patient plaintiff was under
the influence of anesthetic, during or following an operation for appendicitis, [36] among Here the plaintiff could not have been guilty of contributory negligence because he
others. was under the influence of anesthetics and unconscious, and the circumstances are
Nevertheless, despite the fact that the scope of res ipsa loquitur has been such that the true explanation of event is more accessible to the defendants than to
measurably enlarged, it does not automatically apply to all cases of medical the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
negligence as to mechanically shift the burden of proof to the defendant to show that
he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary Upon all the facts, conditions and circumstances alleged in Count II it is held that a
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon cause of action is stated under the doctrine of res ipsa loquitur.[44]
the circumstances of each case. It is generally restricted to situations in malpractice
cases where a layman is able to say, as a matter of common knowledge and Indeed, the principles enunciated in the aforequoted case apply with equal force
observation, that the consequences of professional care were not as such as would here. In the present case, Erlinda submitted herself for cholecystectomy and
ordinarily have followed if due care had been exercised. [37] A distinction must be expected a routine general surgery to be performed on her gall bladder. On that
made between the failure to secure results, and the occurrence of something more fateful day she delivered her person over to the care, custody and control of private
unusual and not ordinarily found if the service or treatment rendered followed the respondents who exercised complete and exclusive control over her. At the time of
usual procedure of those skilled in that particular practice. It must be conceded that submission, Erlinda was neurologically sound and, except for a few minor
the doctrine of res ipsa loquitur can have no application in a suit against a physician discomforts, was likewise physically fit in mind and body. However, during the
or surgeon which involves the merits of a diagnosis or of a scientific treatment. [38] The administration of anesthesia and prior to the performance of cholecystectomy she
physician or surgeon is not required at his peril to explain why any particular suffered irreparable damage to her brain. Thus, without undergoing surgery, she went
diagnosis was not correct, or why any particular scientific treatment did not produce out of the operating room already decerebrate and totally incapacitated. Obviously,
the desired result.[39] Thus, res ipsa loquitur is not available in a malpractice suit if the brain damage, which Erlinda sustained, is an injury which does not normally occur in
only showing is that the desired result of an operation or treatment was not the process of a gall bladder operation. In fact, this kind of situation does not happen
accomplished.[40] The real question, therefore, is whether or not in the process of the in the absence of negligence of someone in the administration of anesthesia and in
operation any extraordinary incident or unusual event outside of the routine the use of endotracheal tube. Normally, a person being put under anesthesia is not
performance occurred which is beyond the regular scope of customary professional rendered decerebrate as a consequence of administering such anesthesia if the
proper procedure was followed. Furthermore, the instruments used in the In the instant case, the records are helpful in furnishing not only the logical
administration of anesthesia, including the endotracheal tube, were all under the scientific evidence of the pathogenesis of the injury but also in providing the Court the
exclusive control of private respondents, who are the physicians-in-charge. Likewise, legal nexus upon which liability is based. As will be shown hereinafter, private
petitioner Erlinda could not have been guilty of contributory negligence because she respondents own testimonies which are reflected in the transcript of stenographic
was under the influence of anesthetics which rendered her unconscious. notes are replete of signposts indicative of their negligence in the care and
management of Erlinda.
Considering that a sound and unaffected member of the body (the brain) is
injured or destroyed while the patient is unconscious and under the immediate and With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during
exclusive control of the physicians, we hold that a practical administration of justice the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to
dictates the application of res ipsa loquitur. Upon these facts and under these properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean
circumstances the Court would be able to say, as a matter of common knowledge and of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who
observation, if negligence attended the management and care of the was in the operating room right beside the patient when the tragic event
patient. Moreover, the liability of the physicians and the hospital in this case is not occurred. Witness Cruz testified to this effect:
predicated upon an alleged failure to secure the desired results of an operation nor on
an alleged lack of skill in the diagnosis or treatment as in fact no operation or ATTY. PAJARES:
treatment was ever performed on Erlinda. Thus, upon all these initial determination a Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
case is made out for the application of the doctrine of res ipsa loquitur.
A: In particular, I could see that she was intubating the patient.
Nonetheless, in holding that res ipsa loquitur is available to the present case we
are not saying that the doctrine is applicable in any and all cases where injury occurs Q: Do you know what happened to that intubation process administered by Dra.
to a patient while under anesthesia, or to any and all anesthesia cases. Each case Gutierrez?
must be viewed in its own light and scrutinized in order to be within the res ipsa
loquitur coverage. ATTY. ALCERA:

Having in mind the applicability of the res ipsa loquitur doctrine and the She will be incompetent Your Honor.
presumption of negligence allowed therein, the Court now comes to the issue of
COURT:
whether the Court of Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of the operation and, if in Witness may answer if she knows.
the affirmative, whether the alleged negligence was the proximate cause of Erlindas
comatose condition. Corollary thereto, we shall also determine if the Court of Appeals A: As I have said, I was with the patient, I was beside the stretcher holding the left
erred in relying on the testimonies of the witnesses for the private respondents. hand of the patient and all of a sudden I heard some remarks coming from
Dra. Perfecta Gutierrez herself. She was saying Ang hirap ma-intubate nito,
In sustaining the position of private respondents, the Court of Appeals relied on mali yata ang pagkakapasok. O lumalaki ang tiyan.
the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to
the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid xxx
enough to admit that she experienced some difficulty in the endotracheal
ATTY. PAJARES:
intubation[45]of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to Q: From whom did you hear those words lumalaki ang tiyan?
show that the brain damage sustained by Erlinda was not caused by the alleged
faulty intubation but was due to the allergic reaction of the patient to the drug A: From Dra. Perfecta Gutierrez.
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their
expert witness, Dr. Jamora. On the other hand, the appellate court rejected the xxx
testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the After hearing the phrase lumalaki ang tiyan, what did you notice on the
brain injury was traceable to the wrongful insertion of the tube since the latter, being a person of the patient?
nurse, was allegedly not knowledgeable in the process of intubation. In so holding,
the appellate court returned a verdict in favor of respondents physicians and hospital A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I
and absolved them of any liability towards Erlinda and her family. was at.
We disagree with the findings of the Court of Appeals. We hold that private Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
respondents were unable to disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the proximate cause of her piteous A: I saw him approaching the patient during that time.
condition.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon. unnecessary.[49] We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered
Q: Did Dr. Calderon, upon being called, arrive inside the operating room? properly. As such, it would not be too difficult to tell if the tube was properly
A: Yes sir. inserted. This kind of observation, we believe, does not require a medical degree to
be acceptable.
Q: What did [s]he do, if any?
At any rate, without doubt, petitioner's witness, an experienced clinical nurse
A: [S]he tried to intubate the patient. whose long experience and scholarship led to her appointment as Dean of the Capitol
Medical Center School of Nursing, was fully capable of determining whether or not
Q: What happened to the patient? the intubation was a success. She had extensive clinical experience starting as a staff
nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients
FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then
nailbed became bluish and I saw the patient was placed in trendelenburg
Dean of the Capitol Medical Center School of Nursing. [50]Reviewing witness Cruz'
position.
statements, we find that the same were delivered in a straightforward manner, with
xxx the kind of detail, clarity, consistency and spontaneity which would have been difficult
to fabricate. With her clinical background as a nurse, the Court is satisfied that she
Q: Do you know the reason why the patient was placed in that trendelenburg was able to demonstrate through her testimony what truly transpired on that fateful
position? day.
A: As far as I know, when a patient is in that position, there is a decrease of blood Most of all, her testimony was affirmed by no less than respondent Dra.
supply to the brain.[46] Gutierrez who admitted that she experienced difficulty in inserting the tube into
Erlindas trachea, to wit:
xxx
ATTY. LIGSAY:
The appellate court, however, disbelieved Dean Cruz's testimony in the trial
court by declaring that: Q: In this particular case, Doctora, while you were intubating at your first attempt
(sic), you did not immediately see the trachea?
A perusal of the standard nursing curriculum in our country will show that intubation is
DRA. GUTIERREZ:
not taught as part of nursing procedures and techniques. Indeed, we take judicial
notice of the fact that nurses do not, and cannot, intubate. Even on the assumption A: Yes sir.
that she is fully capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, Q: Did you pull away the tube immediately?
July 25, 1991, p. 13). More importantly, there is no evidence that she ever
A: You do not pull the ...
auscultated the patient or that she conducted any type of examination to check if the
endotracheal tube was in its proper place, and to determine the condition of the heart, Q: Did you or did you not?
lungs, and other organs. Thus, witness Cruz's categorical statements that appellant
Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. A: I did not pull the tube.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual
bases.[47] Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
In other words, what the Court of Appeals is trying to impress is that being a
nurse, and considered a layman in the process of intubation, witness Cruz is not Q: So, you found some difficulty in inserting the tube?
competent to testify on whether or not the intubation was a success. A: Yes, because of (sic) my first attempt, I did not see right away. [51]
We do not agree with the above reasoning of the appellate court. Although Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard
witness Cruz is not an anesthesiologist, she can very well testify upon matters on defense that she encountered hardship in the insertion of the tube in the trachea of
which she is capable of observing such as, the statements and acts of the physician Erlinda because it was positioned more anteriorly (slightly deviated from the normal
and surgeon, external appearances, and manifest conditions which are observable by anatomy of a person)[52] making it harder to locate and, since Erlinda is obese and
any one.[48] This is precisely allowed under the doctrine of res ipsa loquitur where the has a short neck and protruding teeth, it made intubation even more difficult.
testimony of expert witnesses is not required. It is the accepted rule that expert
testimony is not necessary for the proof of negligence in non-technical matters or The argument does not convince us. If this was indeed observed, private
those of which an ordinary person may be expected to have knowledge, or where the respondents adduced no evidence demonstrating that they proceeded to make a
lack of skill or want of care is so obvious as to render expert testimony thorough assessment of Erlindas airway, prior to the induction of anesthesia, even if
this would mean postponing the procedure. From their testimonies, it appears that the clearance like that, I usually don't do it except on emergency and on cases that have
observation was made only as an afterthought, as a means of defense. an abnormalities (sic).[58]
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic However, the exact opposite is true. In an emergency procedure, there is hardly
accidents. Pre-operative evaluation and preparation for anesthesia begins when the enough time available for the fastidious demands of pre-operative procedure so that
anesthesiologist reviews the patients medical records and visits with the patient, an anesthesiologist is able to see the patient only a few minutes before surgery, if at
traditionally, the day before elective surgery. [53] It includes taking the patients medical all. Elective procedures, on the other hand, are operative procedures that can wait for
history, review of current drug therapy, physical examination and interpretation of days, weeks or even months. Hence, in these cases, the anesthesiologist possesses
laboratory data.[54] The physical examination performed by the anesthesiologist is the luxury of time to make a proper assessment, including the time to be at the
directed primarily toward the central nervous system, cardiovascular system, lungs patient's bedside to do a proper interview and clinical evaluation. There is ample time
and upper airway.[55] A thorough analysis of the patient's airway normally involves to explain the method of anesthesia, the drugs to be used, and their possible hazards
investigating the following: cervical spine mobility, temporomandibular mobility, for purposes of informed consent. Usually, the pre-operative assessment is
prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the conducted at least one day before the intended surgery, when the patient is relaxed
thyromental distance.[56] Thus, physical characteristics of the patients upper airway and cooperative.
that could make tracheal intubation difficult should be studied. [57] Where the need Erlindas case was elective and this was known to respondent Dra.
arises, as when initial assessment indicates possible problems (such as the alleged Gutierrez. Thus, she had all the time to make a thorough evaluation of Erlindas case
short neck and protruding teeth of Erlinda) a thorough examination of the patients prior to the operation and prepare her for anesthesia.However, she never saw the
airway would go a long way towards decreasing patient morbidity and mortality. patient at the bedside. She herself admitted that she had seen petitioner only in the
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for operating room, and only on the actual date of the cholecystectomy. She negligently
the first time on the day of the operation itself, on 17 June 1985. Before this date, no failed to take advantage of this important opportunity. As such, her attempt to
prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until exculpate herself must fail.
the day of the operation, respondent Dra. Gutierrez was unaware of the physiological Having established that respondent Dra. Gutierrez failed to perform pre-
make-up and needs of Erlinda. She was likewise not properly informed of the possible operative evaluation of the patient which, in turn, resulted to a wrongful intubation, we
difficulties she would face during the administration of anesthesia to now determine if the faulty intubation is truly the proximate cause of Erlindas
Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an comatose condition.
hour before the scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning prudence and Private respondents repeatedly hammered the view that the cerebral anoxia
vigilance in dealing with human lives lie at the core of the physicians centuries-old which led to Erlindas coma was due to bronchospasm[59] mediated by her allergic
Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a response to the drug, Thiopental Sodium, introduced into her system. Towards this
clear indicia of her negligence. end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by private respondents' theory that the oxygen deprivation which led to anoxic
playing around with the trial court's ignorance of clinical procedure, hoping that she encephalopathy,[60] was due to an unpredictable drug reaction to the short-acting
could get away with it. Respondent Dra. Gutierrez tried to muddle the difference barbiturate. We find the theory of private respondents unacceptable.
between an elective surgery and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape unnoticed. In her testimony she First of all, Dr. Jamora cannot be considered an authority in the field of
asserted: anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of properly enlightening the court
ATTY. LIGSAY: about anesthesia practice and procedure and their complications. Dr. Jamora is
likewise not an allergologist and could not therefore properly advance expert opinion
on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such,
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day could not have been capable, as an expert would, of explaining to the court the
before so you can introduce yourself to establish good doctor-patient relationship and pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
gain the trust and confidence of the patient? (Pentothal).

DRA. GUTIERREZ: The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an
expert witness in the anesthetic practice of Pentothal administration is further
supported by his own admission that he formulated his opinions on the drug not from
A: As I said in my previous statement, it depends on the operative procedure of the the practical experience gained by a specialist or expert in the administration and use
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary of Sodium Pentothal on patients, but only from reading certain references, to wit:
ATTY. LIGSAY: Moreover, private respondents theory, that Thiopental Sodium may have
produced Erlinda's coma by triggering an allergic mediated response, has no support
Q: In your line of expertise on pulmonology, did you have any occasion to use in evidence. No evidence of stridor, skin reactions, or wheezing - some of the more
pentothal as a method of management? common accompanying signs of an allergic reaction - appears on record. No
DR. JAMORA: laboratory data were ever presented to the court.

A: We do it in conjunction with the anesthesiologist when they have to intubate In any case, private respondents themselves admit that Thiopental induced,
our patient. allergic-mediated bronchospasm happens only very rarely. If courts were to accept
private respondents' hypothesis without supporting medical proof, and against the
Q: But not in particular when you practice pulmonology? weight of available evidence, then every anesthetic accident would be an act of
God. Evidently, the Thiopental-allergy theory vigorously asserted by private
A: No. respondents was a mere afterthought. Such an explanation was advanced in order to
absolve them of any and all responsibility for the patients condition.
Q: In other words, your knowledge about pentothal is based only on what you
have read from books and not by your own personal application of the In view of the evidence at hand, we are inclined to believe petitioners stand that
medicine pentothal? it was the faulty intubation which was the proximate cause of Erlindas comatose
condition.
A: Based on my personal experience also on pentothal.
Proximate cause has been defined as that which, in natural and continuous
Q: How many times have you used pentothal?
sequence, unbroken by any efficient intervening cause, produces injury, and without
A: They used it on me. I went into bronchospasm during my appendectomy. which the result would not have occurred.[64] An injury or damage is proximately
caused by an act or a failure to act, whenever it appears from the evidence in the
Q: And because they have used it on you and on account of your own personal case, that the act or omission played a substantial part in bringing about or actually
experience you feel that you can testify on pentothal here with medical causing the injury or damage; and that the injury or damage was either a direct result
authority? or a reasonably probable consequence of the act or omission.[65] It is the dominant,
moving or producing cause.
A: No. That is why I used references to support my claims.[61]
Applying the above definition in relation to the evidence at hand, faulty
An anesthetic accident caused by a rare drug-induced bronchospasm properly
intubation is undeniably the proximate cause which triggered the chain of events
falls within the fields of anesthesia, internal medicine-allergy, and clinical leading to Erlindas brain damage and, ultimately, her comatosed condition.
pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are Private respondents themselves admitted in their testimony that the first
within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug- intubation was a failure. This fact was likewise observed by witness Cruz when she
induced, allergic mediated bronchospasm alleged in this case is within the disciplines heard respondent Dra. Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang
of anesthesiology, allergology and pharmacology. On the basis of the foregoing pagkakapasok. O lumalaki ang tiyan. Thereafter, witness Cruz noticed abdominal
transcript, in which the pulmonologist himself admitted that he could not testify about distention on the body of Erlinda. The development of abdominal distention, together
the drug with medical authority, it is clear that the appellate court erred in giving with respiratory embarrassment indicates that the endotracheal tube entered the
weight to Dr. Jamoras testimony as an expert in the administration of Thiopental esophagus instead of the respiratory tree. In other words, instead of the intended
Sodium. endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the
The provision in the rules of evidence[62]regarding expert witnesses states: gastrointestinal tract through the esophagus instead of the lungs through the
Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter trachea. Entry into the esophagus would certainly cause some delay in oxygen
requiring special knowledge, skill, experience or training which he is shown delivery into the lungs as the tube which carries oxygen is in the wrong place. That
to possess, may be received in evidence. abdominal distention had been observed during the first intubation suggests that the
length of time utilized in inserting the endotracheal tube (up to the time the tube was
Generally, to qualify as an expert witness, one must have acquired special withdrawn for the second attempt) was fairly significant. Due to the delay in the
knowledge of the subject matter about which he or she is to testify, either by the study delivery of oxygen in her lungs Erlinda showed signs of cyanosis. [66] As stated in the
of recognized authorities on the subject or by practical experience. [63] Clearly, Dr. testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed
Jamora does not qualify as an expert witness based on the above standard since he that the nailbeds of Erlinda were already blue. [67] However, private respondents
lacks the necessary knowledge, skill, and training in the field of anesthesiology.Oddly, contend that a second intubation was executed on Erlinda and this one was
apart from submitting testimony from a specialist in the wrong field, private successfully done. We do not think so. No evidence exists on record, beyond private
respondents intentionally avoided providing testimony by competent and independent respondents' bare claims, which supports the contention that the second intubation
experts in the proper areas. was successful. Assuming that the endotracheal tube finally found its way into the
proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the the hospital administration or by a review committee set up by the hospital who either
hallmark of a successful intubation. In fact, cyanosis was again observed immediately accept or reject the application.[75]This is particularly true with respondent hospital.
after the second intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation was After a physician is accepted, either as a visiting or attending consultant, he is
accomplished. Even granting that the tube was successfully inserted during the normally required to attend clinico-pathological conferences, conduct bedside rounds
second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda for clerks, interns and residents, moderate grand rounds and patient audits and
already suffered brain damage as a result of the inadequate oxygenation of her brain perform other tasks and responsibilities, for the privilege of being able to maintain a
for about four to five minutes.[68] clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In
addition to these, the physicians performance as a specialist is generally evaluated by
The above conclusion is not without basis. Scientific studies point out that a peer review committee on the basis of mortality and morbidity statistics, and
intubation problems are responsible for one-third (1/3) of deaths and serious injuries feedback from patients, nurses, interns and residents. A consultant remiss in his
associated with anesthesia.[69]Nevertheless, ninety-eight percent (98%) or the vast duties, or a consultant who regularly falls short of the minimum standards acceptable
majority of difficult intubations may be anticipated by performing a thorough to the hospital or its peer review committee, is normally politely terminated.
evaluation of the patients airway prior to the operation.[70] As stated beforehand,
respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which In other words, private hospitals, hire, fire and exercise real control over their
could have prevented this unfortunate incident. Had appropriate diligence and attending and visiting consultant staff. While consultants are not, technically
reasonable care been used in the pre-operative evaluation, respondent physician employees, a point which respondent hospital asserts in denying all responsibility for
could have been much more prepared to meet the contingency brought about by the the patients condition, the control exercised, the hiring, and the right to terminate
perceived anatomic variations in the patients neck and oral area, defects which would consultants all fulfill the important hallmarks of an employer-employee relationship,
have been easily overcome by a prior knowledge of those variations together with a with the exception of the payment of wages. In assessing whether such a relationship
change in technique.[71] In other words, an experienced anesthesiologist, adequately in fact exists, the control test is determining. Accordingly, on the basis of the
alerted by a thorough pre-operative evaluation, would have had little difficulty going foregoing, we rule that for the purpose of allocating responsibility in medical
around the short neck and protruding teeth. [72] Having failed to observe common negligence cases, an employer-employee relationship in effect exists between
medical standards in pre-operative management and intubation, respondent Dra. hospitals and their attending and visiting physicians. This being the case, the question
Gutierrez negligence resulted in cerebral anoxia and eventual coma of Erlinda. now arises as to whether or not respondent hospital is solidarily liable with
respondent doctors for petitioners condition.[76]
We now determine the responsibility of respondent Dr. Orlino Hosaka as the
head of the surgical team. As the so-called captain of the ship,[73] it is the surgeons The basis for holding an employer solidarily responsible for the negligence of its
responsibility to see to it that those under him perform their task in the proper employee is found in Article 2180 of the Civil Code which considers a person
manner. Respondent Dr. Hosakas negligence can be found in his failure to exercise accountable not only for his own acts but also for those of others based on the
the proper authority (as the captain of the operative team) in not determining if his formers responsibility under a relationship of patria potestas.[77] Such responsibility
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record ceases when the persons or entity concerned prove that they have observed the
exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez diligence of a good father of the family to prevent damage.[78] In other words, while
properly intubated the patient.Furthermore, it does not escape us that respondent Dr. the burden of proving negligence rests on the plaintiffs, once negligence is shown, the
Hosaka had scheduled another procedure in a different hospital at the same time as burden shifts to the respondents (parent, guardian, teacher or employer) who should
Erlindas cholecystectomy, and was in fact over three hours late for the latters prove that they observed the diligence of a good father of a family to prevent damage.
operation. Because of this, he had little or no time to confer with his anesthesiologist In the instant case, respondent hospital, apart from a general denial of its
regarding the anesthesia delivery. This indicates that he was remiss in his responsibility over respondent physicians, failed to adduce evidence showing that it
professional duties towards his patient.Thus, he shares equal responsibility for the exercised the diligence of a good father of a family in the hiring and supervision of the
events which resulted in Erlindas condition. latter. It failed to adduce evidence with regard to the degree of supervision which it
We now discuss the responsibility of the hospital in this particular incident. The exercised over its physicians. In neglecting to offer such proof, or proof of a similar
unique practice (among private hospitals) of filling up specialist staff with attending nature, respondent hospital thereby failed to discharge its burden under the last
and visiting consultants,[74] who are allegedly not hospital employees, presents paragraph of Article 2180. Having failed to do this, respondent hospital is
problems in apportioning responsibility for negligence in medical malpractice consequently solidarily responsible with its physicians for Erlindas condition.
cases. However, the difficulty is only more apparent than real. Based on the foregoing, we hold that the Court of Appeals erred in accepting
In the first place, hospitals exercise significant control in the hiring and firing of and relying on the testimonies of the witnesses for the private respondents. Indeed,
consultants and in the conduct of their work within the hospital premises. Doctors who as shown by the above discussions, private respondents were unable to rebut the
apply for consultant slots, visiting or attending, are required to submit proof of presumption of negligence. Upon these disquisitions we hold that private respondents
completion of residency, their educational qualifications; generally, evidence of are solidarily liable for damages under Article 2176[79] of the Civil Code.
accreditation by the appropriate board (diplomate), evidence of fellowship in most We now come to the amount of damages due petitioners. The trial court
cases, and references. These requirements are carefully scrutinized by members of awarded a total of P632,000.00 pesos (should be P616,000.00) in compensatory
damages to the plaintiff, subject to its being updated covering the period from 15 courts and invoke their aid in seeking adjustments to the compensatory damages
November 1985 up to 15 April 1992, based on monthly expenses for the care of the previously awarded - temperate damages are appropriate. The amount given as
patient estimated at P8,000.00. temperate damages, though to a certain extent speculative, should take into account
the cost of proper care.
At current levels, the P8000/monthly amount established by the trial court at the
time of its decision would be grossly inadequate to cover the actual costs of home- In the instant case, petitioners were able to provide only home-based nursing
based care for a comatose individual.The calculated amount was not even arrived at care for a comatose patient who has remained in that condition for over a
by looking at the actual cost of proper hospice care for the patient. What it reflected decade. Having premised our award for compensatory damages on the amount
were the actual expenses incurred and proved by the petitioners after they were provided by petitioners at the onset of litigation, it would be now much more in step
forced to bring home the patient to avoid mounting hospital bills. with the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally
And yet ideally, a comatose patient should remain in a hospital or be transferred specializes in such care. They should not be compelled by dire circumstances to
to a hospice specializing in the care of the chronically ill for the purpose of providing a provide substandard care at home without the aid of professionals, for anything less
proper milieu adequate to meet minimum standards of care. In the instant case for would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in
instance, Erlinda has to be constantly turned from side to side to prevent bedsores temperate damages would therefore be reasonable.[81]
and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation
should be normally made by a dietitian to provide her with the correct daily caloric In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation
requirements and vitamin supplements. Furthermore, she has to be seen on a regular where the injury suffered by the plaintiff would have led to expenses which were
basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to difficult to estimate because while they would have been a direct result of the injury
prevent the accumulation of secretions which can lead to respiratory complications. (amputation), and were certain to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in moral damages in that case.
Given these considerations, the amount of actual damages recoverable in suits
arising from negligence should at least reflect the correct minimum cost of proper Describing the nature of the injury, the Court therein stated:
care, not the cost of the care the family is usually compelled to undertake at home to
avoid bankruptcy. However, the provisions of the Civil Code on actual or As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
compensatory damages present us with some difficulties. amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full
Well-settled is the rule that actual damages which may be claimed by the ambulatory functions of her left extremity, even with the use of state of the
plaintiff are those suffered by him as he has duly proved. The Civil Code provides: art prosthetic technology. Well beyond the period of hospitalization (which
was paid for by Li), she will be required to undergo adjustments in her
Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate prosthetic devise due to the shrinkage of the stump from the process of
compensation only for such pecuniary loss suffered by him as he has duly healing.
proved. Such compensation is referred to as actual or compensatory damages. These adjustments entail costs, prosthetic replacements and months of
physical and occupational rehabilitation and therapy. During her lifetime, the
Our rules on actual or compensatory damages generally assume that at the time prosthetic devise will have to be replaced and readjusted to changes in the
of litigation, the injury suffered as a consequence of an act of negligence has been size of her lower limb effected by the biological changes of middle-age,
completed and that the cost can be liquidated. However, these provisions neglect to menopause and aging. Assuming she reaches menopause, for example,
take into account those situations, as in this case, where the resulting injury might be the prosthetic will have to be adjusted to respond to the changes in bone
continuing and possible future complications directly arising from the injury, while resulting from a precipitate decrease in calcium levels observed in the
certain to occur, are difficult to predict. bones of all post-menopausal women. In other words, the damage done to
her would not only be permanent and lasting, it would also be permanently
In these cases, the amount of damages which should be awarded, if they are to changing and adjusting to the physiologic changes which her body
adequately and correctly respond to the injury caused, should be one which would normally undergo through the years. The replacements, changes,
compensates for pecuniary loss incurred and proved, up to the time of trial; and one and adjustments will require corresponding adjustive physical and
which would meet pecuniary loss certain to be suffered but which could not, from the occupational therapy. All of these adjustments, it has been documented, are
nature of the case, be made with certainty.[80] In other words, temperate damages can painful.
and should be awarded on top of actual or compensatory damages in instances
where the injury is chronic and continuing. And because of the unique nature of such x x x.
cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases. A prosthetic devise, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the
As it would not be equitable - and certainly not in the best interests of the lower limb. The sensory functions are forever lost.The resultant anxiety,
administration of justice - for the victim in such cases to constantly come before the
sleeplessness, psychological injury, mental and physical pain are of the date of promulgation of this decision plus a monthly payment of P8,000.00 up
inestimable.[83] to the time that petitioner Erlinda Ramos expires or miraculously survives;
2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages;
The injury suffered by Erlinda as a consequence of private respondents 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5) the costs of
negligence is certainly much more serious than the amputation in the suit.
the Valenzuela case.
SO ORDERED.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She
has been in a comatose state for over fourteen years now. The burden of care has so
far been heroically shouldered by her husband and children, who, in the intervening
years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioners condition remains unchanged for
the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual injury would
not even scratch the surface of the resulting moral damage because it would be
highly speculative to estimate the amount of emotional and moral pain, psychological
damage and injury suffered by the victim or those actually affected by the victims
condition.[84] The husband and the children, all petitioners in this case, will have to live
with the day to day uncertainty of the patients illness, knowing any hope of recovery is
close to nil. They have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their life with a comatose
patient. They, not the respondents, are charged with the moral responsibility of the
care of the victim. The familys moral injury and suffering in this case is clearly a real
one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would
be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00
are hereby awarded. Considering the length and nature of the instant suit we are of
the opinion that attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases
because physicians are not insurers of life and, they rarely set out to intentionally
cause injury or death to their patients.However, intent is immaterial in negligence
cases because where negligence exists and is proven, the same automatically gives
the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are
devised for the purpose of preventing complications. A physicians experience with his
patients would sometimes tempt him to deviate from established community
practices, and he may end a distinguished career using unorthodox methods without
incident. However, when failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure and a nexus is made
between the deviation and the injury or damage, the physician would necessarily be
called to account for it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the intubation in a salutary way
was fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed from
are hereby modified so as to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as actual damages computed as
G.R. No. L-26001 October 29, 1968 are forged; (3) in not finding the PCIB liable to the PNB by virtue of the former's
warranty on the back of the check; (4) in not holding that "clearing" is not
PHILIPPINE NATIONAL BANK, petitioner, "acceptance", in contemplation of the Negotiable Instruments law; (5) in not finding
vs. that, since the check had not been accepted by the PNB, the latter is entitled to
THE COURT OF APPEALS and PHILIPPINE COMMERCIAL AND INDUSTRIAL reimbursement therefor; and (6) in denying the PNB's right to recover from the PCIB.
BANK, respondents.
The first assignment of error will be discussed later, together with the last,with which it
Tomas Besa, Jose B. Galang and Juan C. Jimenez for petitioner. is interrelated.
San Juan, Africa & Benedicto for respondents.
As regards the second assignment of error, the PNB argues that, since the signatures
CONCEPCION, C.J.: of the drawer are forged, so must the signatures of the supposed indorsers be; but
this conclusion does not necessarily follow from said premise. Besides, there is
absolutely no evidence, and the PNB has not even tried to prove that the
The Philippine National Bank — hereinafter referred to as the PNB — seeks the aforementioned indorsements are spurious. Again, the PNB refunded the amount of
review by certiorari of a decision of the Court of Appeals, which affirmed that of the the check to the GSIS, on account of the forgery in the signatures, not of the
Court of First Instance of Manila, dismissing plaintiff's complaint against the Philippine indorsers or supposed indorsers, but of the officers of the GSIS as drawer of the
Commercial and Industrial Bank — hereinafter referred to as the PCIB — for the instrument. In other words, the question whether or not the indorsements have been
recovery of P57,415.00. falsified is immaterial to the PNB's liability as a drawee, or to its right to recover from
the PCIB,1 for, as against the drawee, the indorsement of an intermediate bank does
A partial stipulation of facts entered into by the parties and the decision of the Court of not guarantee the signature of the drawer,2 since the forgery of the indorsement
Appeals show that, on about January 15, 1962, one Augusto Lim deposited in his is notthe cause of the loss.3
current account with the PCIB branch at Padre Faura, Manila, GSIS Check No.
645915- B, in the sum of P57,415.00, drawn against the PNB; that, following an With respect to the warranty on the back of the check, to which the third assignment
established banking practice in the Philippines, the check was, on the same date, of error refers, it should be noted that the PCIB thereby guaranteed "all
forwarded, for clearing, through the Central Bank, to the PNB, which did not return prior indorsements," not the authenticity of the signatures of the officers of the GSIS
said check the next day, or at any other time, but retained it and paid its amount to who signed on its behalf, because the GSIS is not an indorser of the check, but its
the PCIB, as well as debited it against the account of the GSIS in the PNB; that, drawer.4 Said warranty is irrelevant, therefore, to the PNB's alleged right to recover
subsequently, or on January 31, 1962, upon demand from the GSIS, said sum of from the PCIB. It could have been availed of by a subsequent indorsee 5 or a holder in
P57,415.00 was re-credited to the latter's account, for the reason that the signatures due course6 subsequent to the PCIB, but, the PNB is neither.7 Indeed, upon payment
of its officers on the check were forged; and that, thereupon, or on February 2, 1962, by the PNB, as drawee, the check ceased to be a negotiable instrument, and became
the PNB demanded from the PCIB the refund of said sum, which the PCIB refused to a mere voucher or proof of payment.8
do. Hence, the present action against the PCIB, which was dismissed by the Court of
First Instance of Manila, whose decision was, in turn, affirmed by the Court of
Appeals. Referring to the fourth and fifth assignments of error, we must bear in mind that, in
general, "acceptance", in the sense in which this term is used in the Negotiable
Instruments Law9 is not required for checks, for the same are payable on
It is not disputed that the signatures of the General Manager and the Auditor of the demand.10 Indeed, "acceptance" and "payment" are, within the purview of said Law,
GSIS on the check, as drawer thereof, are forged; that the person named in the check essentially different things, for the former is "a promise to perform an act," whereas
as its payee was one Mariano D. Pulido, who purportedly indorsed it to one Manuel the latter is the "actual performance" thereof.11 In the words of the Law,12 "the
Go; that the check purports to have been indorsed by Manuel Go to Augusto Lim, acceptance of a bill is the signification by the drawee of his assent to the order of the
who, in turn, deposited it with the PCIB, on January 15, 1962; that, thereupon, the drawer," which, in the case of checks, is the payment, on demand, of a given sum of
PCIB stamped the following on the back of the check: "All prior indorsements and/or money. Upon the other hand, actual payment of the amount of a check implies not
Lack of Endorsement Guaranteed, Philippine Commercial and Industrial Bank," Padre only an assent to said order of the drawer and a recognition of the drawer's obligation
Faura Branch, Manila; that, on the same date, the PCIB sent the check to the PNB, to pay the aforementioned sum, but, also, a compliance with such obligation.
for clearance, through the Central Bank; and that, over two (2) months before, or on
November 13, 1961, the GSIS had notified the PNB, which acknowledged receipt of
the notice, that said check had been lost, and, accordingly, requested that its Let us now consider the first and the last assignments of error. The PNB maintains
payment be stopped. that the lower court erred in not finding that the PCIB had been guilty of negligence in
not discovering that the check was forged. Assuming that there had been such
negligence on the part of the PCIB, it is undeniable, however, that the PNB has, also,
In its brief, the PNB maintains that the lower court erred: (1) in not finding the PCIB been negligent, with the particularity that the PNB had been guilty of a greater
guilty of negligence; (2) in not finding that the indorsements at the back of the check degree of negligence, because it had a previous and formal notice from the GSIS that
the check had been lost, with the request that payment thereof be stopped. Just as
important, if not more important and decisive, is the fact that the PNB's negligence
was the main or proximate cause for the corresponding loss.

In this connection, it will be recalled that the PCIB did not cash the check upon its
presentation by Augusto Lim; that the latter had merely deposited it in his current
account with the PCIB; that, on the same day, the PCIB sent it, through the Central
Bank, to the PNB, for clearing; that the PNB did not return the check to the PCIB the
next day or at any other time; that said failure to return the check to the PCIB implied,
under the current banking practice, that the PNB considered the check good and
would honor it; that, in fact, the PNB honored the check and paid its amount to the
PCIB; and that only then did the PCIB allow Augusto Lim to draw said amount from
his aforementioned current account.

Thus, by not returning the check to the PCIB, by thereby indicating that the PNB had
found nothing wrong with the check and would honor the same, and by actually
paying its amount to the PCIB, the PNB induced the latter, not only to believe that the
check was genuine and good in every respect, but, also, to pay its amount to Augusto
Lim. In other words, the PNB was the primary or proximate cause of the loss, and,
hence, may not recover from the PCIB.13

It is a well-settled maxim of law and equity that when one of two (2) innocent persons
must suffer by the wrongful act of a third person, the loss must be borne by the one
whose negligence was the proximate cause of the loss or who put it into the power of
the third person to perpetrate the wrong.14

Then, again, it has, likewise, been held that, where the collecting (PCIB) and the
drawee (PNB) banks are equally at fault, the court will leave the parties where it finds
them.15

Lastly, Section 62 of Act No. 2031 provides:

The acceptor by accepting the instrument engages that he will pay it


according to the tenor of his acceptance; and admits:

(a) The existence of the drawer, the genuineness of his signature, and his
capacity and authority to draw the instrument; and

(b) The existence of the payee and his then capacity to indorse.

The prevailing view is that the same rule applies in the case of a drawee who pays a
bill without having previously accepted it.16

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the
Philippine National Bank. It is so ordered.
G.R. No. L-24803 May 26, 1977 therein contained, the Court finds the same to be meritorious and
well-founded.
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito Elcano, deceased, plaintiffs-appellants, WHEREFORE, the Order of this Court on December 8, 1964 is
vs. hereby reconsidered by ordering the dismissal of the above entitled
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of case.
said minor, defendants-appellees.
SO ORDERED.
Cruz & Avecilla for appellants.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21,
Marvin R. Hill & Associates for appellees. Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for
Our resolution the following assignment of errors:
BARREDO, J.:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY
Appeal from the order of the Court of First Instance of Quezon City dated January 29, UPHOLDING THE CLAIM OF DEFENDANTS THAT -
1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing,
upon motion to dismiss of defendants, the complaint of plaintiffs for recovery of I
damages from defendant Reginald Hill, a minor, married at the time of the
occurrence, and his father, the defendant Marvin Hill, with whom he was living and THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
getting subsistence, for the killing by Reginald of the son of the plaintiffs, named VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE
Agapito Elcano, of which, when criminally prosecuted, the said accused was REVISED RULES OF COURT, AND THAT SECTION 3(c) OF
acquitted on the ground that his act was not criminal, because of "lack of intent to kill, RULE 111, RULES OF COURT IS APPLICABLE;
coupled with mistake."
II
Actually, the motion to dismiss based on the following grounds:
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS
1. The present action is not only against but a violation of section 1, NOW FINAL OR RES-ADJUDICTA;
Rule 107, which is now Rule III, of the Revised Rules of Court;
III
2. The action is barred by a prior judgment which is now final and or
in res-adjudicata;
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194
OF THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT
3. The complaint had no cause of action against defendant Marvin CASE; and
Hill, because he was relieved as guardian of the other defendant
through emancipation by marriage.
IV
(P. 23, Record [p. 4, Record on Appeal.])
THAT THE COMPLAINT STATES NO CAUSE OF ACTION
AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS
was first denied by the trial court. It was only upon motion for reconsideration of the RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT
defendants of such denial, reiterating the above grounds that the following order was THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
issued:
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant-
Considering the motion for reconsideration filed by the defendants appellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the
on January 14, 1965 and after thoroughly examining the arguments Court of First Instance of Quezon City. After due trial, he was acquitted on the ground
that his act was not criminal because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a copy of the decision of It is most significant that in the case just cited, this Court specifically
acquittal, presumably because appellants do not dispute that such indeed was the applied article 1902 of the Civil Code. It is thus that although J. V.
basis stated in the court's decision. And so, when appellants filed their complaint House could have been criminally prosecuted for reckless or simple
against appellees Reginald and his father, Atty. Marvin Hill, on account of the death of negligence and not only punished but also made civilly liable
their son, the appellees filed the motion to dismiss above-referred to. because of his criminal negligence, nevertheless this Court
awarded damages in an independent civil action for fault or
As We view the foregoing background of this case, the two decisive issues presented negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3
for Our resolution are:
The legal provisions, authors, and cases already invoked should
1. Is the present civil action for damages barred by the acquittal of Reginald in the ordinarily be sufficient to dispose of this case. But inasmuch as we
criminal case wherein the action for civil liability, was not reversed? are announcing doctrines that have been little understood, in the
past, it might not he inappropriate to indicate their foundations.
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against
Atty. Hill, notwithstanding the undisputed fact that at the time of the occurrence Firstly, the Revised Penal Code in articles 365 punishes not only
complained of. Reginald, though a minor, living with and getting subsistenee from his reckless but also simple negligence. If we were to hold that articles
father, was already legally married? 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, accordingly to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have
The first issue presents no more problem than the need for a reiteration and further very little scope and application in actual life. Death or injury to
clarification of the dual character, criminal and civil, of fault or negligence as a source persons and damage to property- through any degree of negligence
of obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 - even the slightest - would have to be Idemnified only through the
Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation principle of civil liability arising from a crime. In such a state of
by Justice Bocobo on the nature of culpa aquiliana in relation to culpa affairs, what sphere would remain for cuasi-delito or culpa
criminal or delito and mere culpa or fault, with pertinent citation of decisions of the aquiliana? We are loath to impute to the lawmaker any intention to
Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence bring about a situation so absurd and anomalous. Nor are we, in
of our own, that the same given act can result in civil liability not only under the Penal the interpretation of the laws, disposed to uphold the letter that
Code but also under the Civil Code. Thus, the opinion holds: killeth rather than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a principle
The, above case is pertinent because it shows that the same act of such ancient origin and such full-grown development as culpa
machinist. come under both the Penal Code and the Civil Code. In aquiliana or cuasi-delito, which is conserved and made enduring in
that case, the action of the agent killeth unjustified and fraudulent articles 1902 to 1910 of the Spanish Civil Code.
and therefore could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil action under Secondary, to find the accused guilty in a criminal case, proof of
article 1902 of the Civil Code. It is also to be noted that it was the guilt beyond reasonable doubt is required, while in a civil case,
employer and not the employee who was being sued. (pp. 615-616, preponderance of evidence is sufficient to make the defendant pay
73 Phil.). 1 in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be
It will be noticed that the defendant in the above case could have proved by a preponderance of evidence. In such cases, the
been prosecuted in a criminal case because his negligence causing defendant can and should be made responsible in a civil action
the death of the child was punishable by the Penal Code. Here is under articles 1902 to 1910 of the Civil Code. Otherwise. there
therefore a clear instance of the same act of negligence being a would be many instances of unvindicated civil wrongs. "Ubi jus
proper subject matter either of a criminal action with its consequent Idemnified remedium." (p. 620,73 Phil.)
civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of Fourthly, because of the broad sweep of the provisions of both the
the Civil Code. Thus, in this jurisdiction, the separate individuality of Penal Code and the Civil Code on this subject, which has given rise
a cuasi-delito or culpa aquiliana, under the Civil Code has been to the overlapping or concurrence of spheres already discussed,
fully and clearly recognized, even with regard to a negligent act for and for lack of understanding of the character and efficacy of the
which the wrongdoer could have been prosecuted and convicted in action for culpa aquiliana, there has grown up a common practice
a criminal case and for which, after such a conviction, he could to seek damages only by virtue of the civil responsibility arising
have been sued for this civil liability arising from his crime. (p. 617, from a crime, forgetting that there is another remedy, which is by
73 Phil.) 2
invoking articles 1902-1910 of the Civil Code. Although this habitual According to the Code Commission: "The foregoing provision (Article 2177) through
method is allowed by, our laws, it has nevertheless rendered at first sight startling, is not so novel or extraordinary when we consider the exact
practically useless and nugatory the more expeditious and effective nature of criminal and civil negligence. The former is a violation of the criminal law,
remedy based on culpa aquiliana or culpa extra-contractual. In the while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always
present case, we are asked to help perpetuate this usual course. had its own foundation and individuality, separate from criminal negligence. Such
But we believe it is high time we pointed out to the harms done by distinction between criminal negligence and "culpa extracontractual" or "cuasi-delito"
such practice and to restore the principle of responsibility for fault or has been sustained by decision of the Supreme Court of Spain and maintained as
negligence under articles 1902 et seq. of the Civil Code to its full clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist.
rigor. It is high time we caused the stream of quasi-delict or culpa Therefore, under the proposed Article 2177, acquittal from an accusation of criminal
aquiliana to flow on its own natural channel, so that its waters may negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent
no longer be diverted into that of a crime under the Penal Code. civil action, not for civil liability arising from criminal negligence, but for damages due
This will, it is believed, make for the better safeguarding or private to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.",
rights because it realtor, an ancient and additional remedy, and for (Report of the Code) Commission, p. 162.)
the further reason that an independent civil action, not depending
on the issues, limitations and results of a criminal prosecution, and Although, again, this Article 2177 does seem to literally refer to only acts of
entirely directed by the party wronged or his counsel, is more likely negligence, the same argument of Justice Bacobo about construction that upholds
to secure adequate and efficacious redress. (p. 621, 73 Phil.) "the spirit that giveth lift- rather than that which is literal that killeth the intent of the
lawmaker should be observed in applying the same. And considering that the
Contrary to an immediate impression one might get upon a reading of the foregoing preliminary chapter on human relations of the new Civil Code definitely establishes
excerpts from the opinion in Garcia that the concurrence of the Penal Code and the the separability and independence of liability in a civil action for acts criminal in
Civil Code therein referred to contemplate only acts of negligence and not intentional character (under Articles 29 to 32) from the civil responsibility arising from crime fixed
voluntary acts - deeper reflection would reveal that the thrust of the pronouncements by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under
therein is not so limited, but that in fact it actually extends to fault or culpa. This can Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more
be seen in the reference made therein to the Sentence of the Supreme Court of Spain congruent with the spirit of law, equity and justice, and more in harmony with modern
of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and
act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to
Garcia, provided textually that obligations "which are derived from acts or omissions "fault or negligencia covers not only acts "not punishable by law" but also acts
in which fault or negligence, not punishable by law, intervene shall be the subject of criminal in character, whether intentional and voluntary or negligent. Consequently, a
Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the separate civil action lies against the offender in a criminal act, whether or not he is
underline qualification, "not punishable by law", that Justice Bocobo emphasized criminally prosecuted and found guilty or acquitted, provided that the offended party is
could lead to an ultimo construction or interpretation of the letter of the law that not allowed, if he is actually charged also criminally, to recover damages on both
"killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use scores, and would be entitled in such eventuality only to the bigger award of the two,
the literal meaning of the law to smother and render almost lifeless a principle of such assuming the awards made in the two cases vary. In other words, the extinction of
ancient origin and such full-grown development as culpa aquiliana or quasi-delito, civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability
Code." And so, because Justice Bacobo was Chairman of the Code Commission that for the same act considered as a quasi-delict only and not as a crime is not
drafted the original text of the new Civil Code, it is to be noted that the said Code, estinguished even by a declaration in the criminal case that the criminal act charged
which was enacted after the Garcia doctrine, no longer uses the term, 11 not has not happened or has not been committed by the accused. Briefly stated, We here
punishable by law," thereby making it clear that the concept of culpa hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent
aquiliana includes acts which are criminal in character or in violation of the penal law, acts which may be punishable by law.4
whether voluntary or matter. Thus, the corresponding provisions to said Article 1093
in the new code, which is Article 1162, simply says, "Obligations derived from quasi- It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
delicto shall be governed by the provisions of Chapter 2, Title XVII of this Book, extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
(on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 action against him.
of the new code provides:
Coming now to the second issue about the effect of Reginald's emancipation by
ART. 2177. Responsibility for fault or negligence under the marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered
preceding article is entirely separate and distinct from the civil opinion that the conclusion of appellees that Atty. Hill is already free from
liability arising from negligence under the Penal Code. But the responsibility cannot be upheld.
plaintiff cannot recover damages twice for the same act or omission
of the defendant.
While it is true that parental authority is terminated upon emancipation of the child
(Article 327, Civil Code), and under Article 397, emancipation takes place "by the
marriage of the minor (child)", it is, however, also clear that pursuant to Article 399,
emancipation by marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary concession shall terminate parental
authority over the child's person. It shall enable the minor to administer his property
as though he were of age, but he cannot borrow money or alienate or encumber real
property without the consent of his father or mother, or guardian. He can sue and be
sued in court only with the assistance of his father, mother or guardian."

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

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

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding
the emancipation by marriage of Reginald. However, inasmuch as it is evident that
Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become
milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to
proceed in accordance with the foregoing opinion. Costs against appellees.

Fernando (Chairman), Antonio, and Martin, JJ., concur.

Concepcion Jr., J, is on leave.

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


G.R. No. 108017 April 3, 1995 Defendant BENIGNO TORZUELA is of legal age, an employee of
defendant SAFEGUARD and/or defendant SUPERGUARD and, at
MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children the time of the incident complained of, was under their control and
KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed supervision. . . .
DULAY, petitioners,
vs. 3. On December 7, 1988 at around 8:00 a.m., defendant
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. TORZUELA, while he was on duty as security guard at the "Big
REGINO, in his capacity as Presiding Judge of the Regional Trial Court National Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot
Capital Region, Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND and killed NAPOLEON V. DULAY with a .38 caliber revolver
SECURITY CO., INC., and SUPERGUARD SECURITY belonging to defendant SAFEGUARD, and/or SUPERGUARD (per
CORPORATION, respondents. Police Report dated January 7, 1989, copy attached as Annex A);

4. The incident resulting in the death of NAPOLEON V. DULAY was


due to the concurring negligence of the defendants. Defendant
BIDIN, J.: TORZUELA'S wanton and reckless discharge of the firearm issued
to him by defendant SAFEGUARD and/or SUPERGUARD was the
immediate and proximate cause of the injury, while the negligence
This petition for certiorari prays for the reversal of the decision of the Court of Appeals of defendant SAFEGUARD and/or SUPERGUARD consists in its
dated October 29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the having failed to exercise the diligence of a good father of a family in
Regional Trial Court dismissing Civil Case No. Q-89-1751, and its resolution dated the supervision and control of its employee to avoid the injury.
November 17, 1991 denying herein, petitioner's motion for reconsideration.
xxx xxx xxx
The antecedent facts of the case are as follows:
(Rollo, pp. 117-118)
On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon
Dulay occurred at the "Big Bang Sa Alabang," Alabang Village, Muntinlupa as a result
of which Benigno Torzuela, the security guard on duty at the said carnival, shot and Petitioners prayed for actual, compensatory, moral and exemplary damages, and
killed Atty. Napoleon Dulay. attorney's fees. The said Civil Case No. Q-89-1751 was raffled to Branch 84 of the
Regional Trial Court of Quezon City, presided by respondent Judge Teodoro Regino.
Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in
her own behalf and in behalf of her minor children, filed on February 8, 1989 an action On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on
for damages against Benigno Torzuela and herein private respondents Safeguard the ground that the complaint does not state a valid cause of action. SUPERGUARD
Investigation and Security Co., Inc., ("SAFEGUARD") and/or Superguard Security claimed that Torzuela's act of shooting Dulay was beyond the scope of his duties, and
Corp. ("SUPERGUARD"), alleged employers of defendant Torzuela. The complaint, that since the alleged act of shooting was committed with deliberate intent (dolo), the
docketed as Civil Case No. Q-89-1751 among others alleges the following: civil liability therefor is governed by Article 100 of the Revised Penal Code, which
states:
1. . . .
Art. 100. Civil liability of a person guilty of a felony. — Every person
criminally liable for a felony is also civilly liable.
Defendants SAFEGUARD INVESTIGATION AND SECURITY CO.,
INC., (Defendant Safeguard) and SUPERGUARD SECURITY
CORPORATION (Defendant Superguard) are corporations duly Respondent SUPERGUARD further alleged that a complaint for damages based on
organized and existing in accordance with Philippine laws, with negligence under Article 2176 of the New Civil Code, such as the one filed by
offices at 10th Floor, Manufacturers Building, Inc., Plaza Santa petitioners, cannot lie, since the civil liability under Article 2176 applies only to quasi-
Cruz, Manila. They are impleaded as alternative defendants for, offenses under Article 365 of the Revised Penal Code. In addition, the private
while the former appears to be the employer of defendant respondent argued that petitioners' filing of the complaint is premature considering
BENIGNO TORZUELA (defendant TORZUELA), the latter impliedly that the conviction of Torzuela in a criminal case is a condition sine qua non for the
acknowledged responsibility for the acts of defendant TORZUELA employer's subsidiary liability (Rollo, p. 55-59).
by extending its sympathies to plaintiffs.
Respondent SAFEGUARD also filed a motion praying that it be excluded as WHEREFORE, this Court holds that in view of the material and
defendant on the ground that defendant Torzuela is not one of its employees (Rollo, ultimate facts alleged in the verified complaint and in accordance
p. 96). with the applicable law on the matter as well as precedents laid
down by the Supreme Court, the complaint against the alternative
Petitioners opposed both motions, stating that their cause of action against the private defendants Superguard Security Corporation and Safeguard
respondents is based on their liability under Article 2180 of the New Civil Code, which Investigation and Security Co., Inc., must be and (sic) it is hereby
provides: dismissed. (Rollo, p. 110)

Art. 2180. The obligation imposed by Article 2176 is demandable The above order was affirmed by the respondent court and petitioners' motion for
not only for one's own acts or omissions, but also for those of reconsideration thereof was denied.
persons for whom one is responsible.
Petitioners take exception to the assailed decision and insist that quasi-delicts are not
xxx xxx xxx limited to acts of negligence but also cover acts that are intentional and voluntary,
citing Andamo v. IAC (191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s
act of shooting Napoleon Dulay constitutes a quasi-delict actionable under Article
Employers shall be liable for the damages caused by their 2176 of the New Civil Code.
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or an industry. Petitioners further contend that under Article 2180 of the New Civil Code, private
respondents are primarily liable for their negligence either in the selection or
supervision of their employees. This liability is independent of the employee's own
xxx xxx xxx liability for fault or negligence and is distinct from the subsidiary civil liability under
Article 103 of the Revised Penal Code. The civil action against the employer may
(Emphasis supplied) therefore proceed independently of the criminal action pursuant to Rule 111 Section 3
of the Rules of Court. Petitioners submit that the question of whether Torzuela is an
Petitioners contended that a suit against alternative defendants is allowed under Rule employee of respondent SUPERGUARD or SAFEGUARD would be better resolved
3, Section 13 of the Rules of Court. Therefore, the inclusion of private respondents as after trial.
alternative defendants in the complaint is justified by the following: the Initial
Investigation Report prepared by Pat. Mario Tubon showing that Torzuela is an Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable
employee of SAFEGUARD; and through overt acts, SUPERGUARD extended its under Article 33 of the New Civil Code, to wit:
sympathies to petitioners (Rollo, pp. 64 and 98).
Art. 33. In cases of defamation, fraud, and physical injuries, a civil
Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with action for damages, entirely separate and distinct from the criminal
homicide was filed before the Regional Trial Court of Makati and was docketed as action, may be brought by the injured party. Such civil action shall
Criminal Case No. 89-1896. proceed independently of the criminal prosecution, and shall
require only a preponderance of evidence. (Emphasis supplied)
On April 13, 1989, respondent Judge Regino issued an order granting
SUPERGUARD'S motion to dismiss and SAFEGUARD'S motion for exclusion as In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which
defendant. The respondent judge held that the complaint did not state facts provides:
necessary or sufficient to constitute a quasi-delict since it does not mention any
negligence on the part of Torzuela in shooting Napoleon Dulay or that the same was Rule 111. . . . .
done in the performance of his duties. Respondent judge ruled that mere allegations
of the concurring negligence of the defendants (private respondents herein) without
stating the facts showing such negligence are mere conclusions of law (Rollo, p. 106). Sec. 3. When civil action may proceed independently — In the
Respondent judge also declared that the complaint was one for damages founded on cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code
crimes punishable under Articles 100 and 103 of the Revised Penal Code as of the Philippines, the independent civil action which has been
distinguished from those arising from, quasi-delict. The dispositive portion of the order reserved may be brought by the offended party, shall proceed
dated April 13, 1989 states: independently of the criminal action, and shall require only a
preponderance of evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held to include consummated, Article 2176 of the New Civil Code provides:
frustrated and attempted homicide. Thus, petitioners maintain that Torzuela's prior
conviction is unnecessary since the civil action can proceed independently of the Art. 2176. Whoever by act or omission causes damage to another,
criminal action. On the other hand, it is the private respondents' argument that since there being fault or negligence, is obliged to pay for the damage
the act was not committed with negligence, the petitioners have no cause of action done. Such fault or negligence, if there is no pre-existing
under Articles 2116 and 2177 of the New Civil Code. The civil action contemplated in contractual relation between the parties is called a quasi-delict and
Article 2177 is not applicable to acts committed with deliberate intent, but only applies is governed by the provisions of this Chapter.
to quasi-offenses under Article 365 of the Revised Penal Code. Torzuela's act of
shooting Atty. Dulay to death, aside from being purely personal, was done with
deliberate intent and could not have been part of his duties as security guard. And Contrary to the theory of private respondents, there is no justification for limiting the
since Article 2180 of the New Civil Code covers only: acts done within the scope of scope of Article 2176 of the Civil Code to acts or omissions resulting from negligence.
the employee's assigned tasks, the private respondents cannot be held liable for Well-entrenched is the doctrine that article 2176 covers not only acts committed with
damages. negligence, but also acts which are voluntary and intentional. As far back as the
definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that:
We find for petitioners.
. . . Article 2176, where it refers to "fault or negligence," covers not
only acts "not punishable by law" but also acts criminal in character;
It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal whether intentional and voluntary or negligent. Consequently, a
shooting of Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides: separate civil action against the offender in a criminal act, whether
or not he is criminally prosecuted and found guilty or acquitted,
Sec. 1. Institution of criminal and civil actions. When a criminal provided that the offended party is not allowed, if he is actually
action is instituted, the civil action for the recovery of civil liability is charged also criminally, to recover damages on both scores, and
impliedly instituted with the criminal action, unless the offended would be entitled in such eventuality only to the bigger award of the
party waives the civil action , reserves his right to institute it two, assuming the awards made in the two cases vary. In other
separately or institutes the civil action prior to the criminal action. words, the extinction of civil liability referred to in Par. (e) of Section
3, Rule 111, refers exclusively to civil liability founded on Article 100
Such civil action includes recovery of indemnity under the Revised of the Revised Penal Code, whereas the civil liability for the same
Penal Code, and damages under Articles 32, 33, 34, and 2176 of act considered as quasi-delict only and not as a crime is not
the Civil Code of the Philippines arising from the same act or extinguished even by a declaration in the criminal case that the
omission of the accused. (Emphasis supplied) criminal act charged has not happened or has not been committed
by the accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and negligent acts
It is well-settled that the filing of an independent civil action before the prosecution in which may be punishable by law. (Emphasis supplied)
the criminal action presents evidence is even far better than a compliance with the
requirement of express reservation (Yakult Philippines v. Court of Appeals, 190
SCRA 357 [1990]). This is precisely what the petitioners opted to do in this case. The same doctrine was echoed in the case of Andamo v. Intermediate Appellate
However, the private respondents opposed the civil action on the ground that the Court (191 SCRA 195 [1990]), wherein the Court held:
same is founded on a delict and not on a quasi-delict as the shooting was not
attended by negligence. What is in dispute therefore is the nature of the petitioner's Article 2176, whenever it refers to "fault or negligence," covers not
cause of action. only acts criminal in character, whether intentional and voluntary or
negligent. Consequently, a civil action lies against the offender in a
The nature of a cause of action is determined by the facts alleged in the complaint as criminal act, whether or not he is prosecuted or found guilty or
constituting the cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The acquitted, provided that the offended party is not allowed, (if the
purpose of an action or suit and the law to govern it is to be determined not by the tortfeasor is actually also charged criminally), to recover damages
claim of the party filing the action, made in his argument or brief, but rather by the on both scores, and would be entitled in such eventuality only to the
complaint itself, its allegations and prayer for relief. (De Tavera v. Philippine bigger award of the two, assuming the awards made in the two
Tuberculosis Society, 112 SCRA 243 [1982]). An examination of the complaint in the cases vary. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis
present case would show that the plaintiffs, petitioners herein, are invoking their right supplied)
to recover damages against the private respondents for their vicarious responsibility
for the injury caused by Benigno Torzuela's act of shooting and killing Napoleon Private respondents submit that the word "intentional" in the Andamo case is
Dulay, as stated in paragraphs 1 and 2 of the complaint. inaccurate obiter, and should be read as "voluntary" since intent cannot be coupled
with negligence as defined by Article 365 of the Revised Penal Code. In the absence
of more substantial reasons, this Court will not disturb the above doctrine on the Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the Philippines v.
coverage of Article 2176. Pundogar, 218 SCRA 118 [1993])

Private respondents further aver that Article 33 of the New Civil Code applies only to This Court finds, under the foregoing premises, that the complaint sufficiently alleged
injuries intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 an actionable breach on the part of the defendant Torzuela and respondents
[1983]), and that the actions for damages allowed thereunder are ex-delicto. SUPERGUARD and/or SAFEGUARD. It is enough that the complaint alleged that
However, the term "physical injuries" in Article 33 has already been construed to Benigno Torzuela shot Napoleon Dulay resulting in the latter's death; that the
include bodily injuries causing death (Capuno v. Pepsi-Cola Bottling Co. of the shooting occurred while Torzuela was on duty; and that either SUPERGUARD and/or
Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not SAFEGUARD was Torzuela's employer and responsible for his acts. This does not
the crime of physical injuries defined in the Revised Penal Code. It includes not only operate however, to establish that the defendants below are liable. Whether or not the
physical injuries but also consummated, frustrated, and attempted homicide (Madeja shooting was actually reckless and wanton or attended by negligence and whether it
v. Caro, 126 SCRA 293 [1983]). Although in the Marcia case (supra), it was held that was actually done within the scope of Torzuela's duties; whether the private
no independent civil action may be filed under Article 33 where the crime is the result respondents SUPERGUARD and/or SAFEGUARD failed to exercise the diligence of
of criminal negligence, it must be noted however, that Torzuela, the accused in the a good father of a family; and whether the defendants are actually liable, are
case at bar, is charged with homicide, not with reckless imprudence, whereas the questions which can be better resolved after trial on the merits where each party can
defendant in Marcia was charged with reckless imprudence. Therefore, in this case, a present evidence to prove their respective allegations and defenses. In determining
civil action based on Article 33 lies. whether the allegations of a complaint are sufficient to support a cause of action, it
must be borne in mind that the complaint does not have to establish or allege the
Private respondents also contend that their liability is subsidiary under the Revised facts proving the existence of a cause of action at the outset; this will have to be done
Penal Code; and that they are not liable for Torzuela's act which is beyond the scope at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the
of his duties as a security guard. It having been established that the instant action is allegations in a complaint can furnish a sufficient basis by which the complaint can be
not ex-delicto, petitioners may proceed directly against Torzuela and the private maintained, the same should not be dismissed regardless of the defenses that may
respondents. Under Article 2180 of the New Civil Code as aforequoted, when an be assessed by the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing
injury is caused by the negligence of the employee, there instantly arises a Consolidated Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]).
presumption of law that there was negligence on the part of the master or employer To sustain a motion to dismiss for lack of cause of action, the complaint must show
either in the selection of the servant or employee, or in supervision over him after that the claim for relief does not exist rather than that a claim has been defectively
selection or both (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). stated, is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50
The liability of the employer under Article 2180 is direct and immediate; it is not [1969]). Since the petitioners clearly sustained an injury to their rights under the law, it
conditioned upon prior recourse against the negligent employee and a prior showing would be more just to allow them to present evidence of such injury.
of the insolvency of such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA
792 [1989]). Therefore, it is incumbent upon the private respondents to prove that WHEREFORE, premises considered, the petition for review is hereby GRANTED.
they exercised the diligence of a good father of a family in the selection and The decision of the Court of Appeals as well as the Order of the Regional Trial Court
supervision of their employee. dated April 13, 1989 are hereby REVERSED and SET ASIDE. Civil Case No. Q-89-
1751 is remanded to the Regional Trial Court for trial on the merits. This decision is
Since Article 2176 covers not only acts of negligence but also acts which are immediately executory.
intentional and voluntary, it was therefore erroneous on the part of the trial court to
dismiss petitioner's complaint simply because it failed to make allegations of
attendant negligence attributable to private respondents.

With respect to the issue of whether the complaint at hand states a sufficient cause of
action, the general rule is that the allegations in a complaint are sufficient to constitute
a cause of action against the defendants if, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with the prayer therein. A
cause of action exist if the following elements are present, namely: (1) a right in favor
of the plaintiff by whatever means and under whatever law it arises or is created; (2)
an obligation on the part of the named defendant to respect or not to violate such
right; and (3) an act or omission on the part of such defendant violative of the right of
the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff
for which the latter may maintain an action for recovery of damages (Del Bros Hotel
G.R. No. L-65295 March 10, 1987 (2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00
as loss of expected income for plaintiff brought about the accident
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, in controversy and which is the result of the negligence of the
vs. defendants;
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents. (3) To pay the plaintiff jointly and severally the sum of P 10,000. as
moral damages for the unexpected and sudden withdrawal of
plaintiff from his lifetime career as a marketing man; mental
anguish, wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity, and the
FELICIANO, J: untold sorrows and frustration in life experienced by plaintiff and his
family since the accident in controversy up to the present time;
In the early morning of 15 November 1975 — at about 1:30 a.m. — private
respondent Leonardo Dionisio was on his way home — he lived in 1214-B Zamora (4) To pay plaintiff jointly and severally the sum of P 10,000.00 as
Street, Bangkal, Makati — from a cocktails-and-dinner meeting with his boss, the damages for the wanton disregard of defendants to settle amicably
general manager of a marketing corporation. During the cocktails phase of the this case with the plaintiff before the filing of this case in court for a
evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his smaller amount.
Volkswagen car and had just crossed the intersection of General Lacuna and General
Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down
General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He (5) To pay the plaintiff jointly and severally the sum of P 4,500.00
switched his headlights on "bright" and thereupon he saw a Ford dump truck looming due as and for attorney's fees; and
some 2-1/2 meters away from his car. The dump truck, owned by and registered in
the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right (6) The cost of suit. (Emphasis supplied)
hand side of General Lacuna Street (i.e., on the right hand side of a person facing in
the same direction toward which Dionisio's car was proceeding), facing the oncoming Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in
traffic. The dump truck was parked askew (not parallel to the street curb) in such a CA-G.R. No. 65476 affirmed the decision of the trial court but modified the award of
manner as to stick out onto the street, partly blocking the way of oncoming traffic. damages to the following extent:
There were no lights nor any so-called "early warning" reflector devices set anywhere
near the dump truck, front or rear. The dump truck had earlier that evening been
driven home by petitioner Armando U. Carbonel, its regular driver, with the 1. The award of P15,000.00 as compensatory
permission of his employer Phoenix, in view of work scheduled to be carried out early damages was reduced to P6,460.71, the latter
the following morning, Dionisio claimed that he tried to avoid a collision by swerving being the only amount that the appellate court
his car to the left but it was too late and his car smashed into the dump truck. As a found the plaintiff to have proved as actually
result of the collision, Dionisio suffered some physical injuries including some sustained by him;
permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures.
2. The award of P150,000.00 as loss of expected
Dionisio commenced an action for damages in the Court of First Instance of income was reduced to P100,000.00, basically
Pampanga basically claiming that the legal and proximate cause of his injuries was because Dionisio had voluntarily resigned his job
the negligent manner in which Carbonel had parked the dump truck entrusted to him such that, in the opinion of the appellate court,
by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that his loss of income "was not solely attributable to
the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the accident in question;" and
the time of the accident, while under the influence of liquor, without his headlights on
and without a curfew pass. Phoenix also sought to establish that it had exercised due 3. The award of P100,000.00 as moral damages
rare in the selection and supervision of the dump truck driver. was held by the appellate court as excessive and
unconscionable and hence reduced
The trial court rendered judgment in favor of Dionisio and against Phoenix and to P50,000.00.
Carbonel and ordered the latter:
The award of P10,000.00 as exemplary damages
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for and P4,500.00 as attorney's fees and costs
hospital bills and the replacement of the lost dentures of plaintiff; remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for effectivity of the supposed curfew pass. We find that private respondent Dionisio was
review. unable to prove possession of a valid curfew pass during the night of the accident and
that the preponderance of evidence shows that he did not have such a pass during
Both the trial court and the appellate court had made fairly explicit findings of fact that night. The relevance of possession or non-possession of a curfew pass that night
relating to the manner in which the dump truck was parked along General Lacuna lies in the light it tends to shed on the other related issues: whether Dionisio was
Street on the basis of which both courts drew the inference that there was negligence speeding home and whether he had indeed purposely put out his headlights before
on the part of Carbonel, the dump truck driver, and that this negligence was the the accident, in order to avoid detection and possibly arrest by the police in the
proximate cause of the accident and Dionisio's injuries. We note, however, that both nearby police station for travelling after the onset of curfew without a valid curfew
courts failed to pass upon the defense raised by Carbonel and Phoenix that the true pass.
legal and proximate cause of the accident was not the way in which the dump truck
had been parked but rather the reckless way in which Dionisio had driven his car that On the second issue — whether or not Dionisio was speeding home that night — both
night when he smashed into the dump truck. The Intermediate Appellate Court in its the trial court and the appellate court were completely silent.
questioned decision casually conceded that Dionisio was "in some way, negligent"
but apparently failed to see the relevance of Dionisio's negligence and made no The defendants in the trial court introduced the testimony of Patrolman Cuyno who
further mention of it. We have examined the record both before the trial court and the was at the scene of the accident almost immediately after it occurred, the police
Intermediate Appellate Court and we find that both parties had placed into the record station where he was based being barely 200 meters away. Patrolman Cuyno
sufficient evidence on the basis of which the trial court and the appellate court could testified that people who had gathered at the scene of the accident told him that
have and should have made findings of fact relating to the alleged reckless manner in Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio, on the
which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend other hand, claimed that he was travelling at a moderate speed at 30 kilometers per
that if there was negligence in the manner in which the dump truck was parked, that hour and had just crossed the intersection of General Santos and General Lacuna
negligence was merely a "passive and static condition" and that private respondent Streets and had started to accelerate when his headlights failed just before the
Dionisio's recklessness constituted an intervening, efficient cause determinative of the collision took place. 3
accident and the injuries he sustained. The need to administer substantial justice as
between the parties in this case, without having to remand it back to the trial court
after eleven years, compels us to address directly the contention put forward by the Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay
petitioners and to examine for ourselves the record pertaining to Dionisio's alleged and did not fag within any of the recognized exceptions to the hearsay rule since the
negligence which must bear upon the liability, or extent of liability, of Phoenix and facts he testified to were not acquired by him through official information and had not
Carbonel. been given by the informants pursuant to any duty to do so. Private respondent's
objection fails to take account of the fact that the testimony of Patrolman Cuyno is
admissible not under the official records exception to the hearsay rule 4 but rather as
There are four factual issues that need to be looked into: (a) whether or not private part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule
respondent Dionisio had a curfew pass valid and effective for that eventful night; (b) consists of excited utterances made on the occasion of an occurrence or event
whether Dionisio was driving fast or speeding just before the collision with the dump sufficiently startling in nature so as to render inoperative the normal reflective thought
truck; (c) whether Dionisio had purposely turned off his car's headlights before contact processes of the observer and hence made as a spontaneous reaction to the
with the dump truck or whether those headlights accidentally malfunctioned moments occurrence or event, and not the result of reflective thought. 6
before the collision; and (d) whether Dionisio was intoxicated at the time of the
accident.
We think that an automobile speeding down a street and suddenly smashing into a
stationary object in the dead of night is a sufficiently startling event as to evoke
As to the first issue relating to the curfew pass, it is clear that no curfew pass was spontaneous, rather than reflective, reactions from observers who happened to be
found on the person of Dionisio immediately after the accident nor was any found in around at that time. The testimony of Patrolman Cuyno was therefore admissible as
his car. Phoenix's evidence here consisted of the testimony of Patrolman Cuyno who part of the res gestae and should have been considered by the trial court. Clearly,
had taken Dionisio, unconscious, to the Makati Medical Center for emergency substantial weight should have been ascribed to such testimony, even though it did
treatment immediately after the accident. At the Makati Medical Center, a nurse took not, as it could not, have purported to describe quantitatively the precise velocity at
off Dionisio's clothes and examined them along with the contents of pockets together winch Dionisio was travelling just before impact with the Phoenix dump truck.
with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any
curfew pass during the trial. Instead, he offered the explanation that his family may
have misplaced his curfew pass. He also offered a certification (dated two years after A third related issue is whether Dionisio purposely turned off his headlights, or
the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police whether his headlights accidentally malfunctioned, just moments before the accident.
Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have The Intermediate Appellate Court expressly found that the headlights of Dionisio's car
authority to issue curfew passes for Pampanga and Metro Manila. This certification went off as he crossed the intersection but was non-committal as to why they did so.
was to the effect that private respondent Dionisio had a valid curfew pass. This It is the petitioners' contention that Dionisio purposely shut off his headlights even
certification did not, however, specify any pass serial number or date or period of before he reached the intersection so as not to be detected by the police in the police
precinct which he (being a resident in the area) knew was not far away from the created only a passive static condition which made the damage
intersection. We believe that the petitioners' theory is a more credible explanation possible, the defendant is said not to be liable. But so far as the fact
than that offered by private respondent Dionisio — i.e., that he had his headlights on of causation is concerned, in the sense of necessary antecedents
but that, at the crucial moment, these had in some mysterious if convenient way which have played an important part in producing the result it is
malfunctioned and gone off, although he succeeded in switching his lights on again at quite impossible to distinguish between active forces and passive
"bright" split seconds before contact with the dump truck. situations, particularly since, as is invariably the case, the latter are
the result of other active forces which have gone before. The
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the defendant who spills gasoline about the premises creates a
accident. The evidence here consisted of the testimony of Patrolman Cuyno to the "condition," but the act may be culpable because of the danger of
effect that private respondent Dionisio smelled of liquor at the time he was taken from fire. When a spark ignites the gasoline, the condition has done
his smashed car and brought to the Makati Medical Center in an unconscious quite as much to bring about the fire as the spark; and since that is
condition. 7This testimony has to be taken in conjunction with the admission of the very risk which the defendant has created, the defendant will
Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that not escape responsibility. Even the lapse of a considerable time
night. We do not believe that this evidence is sufficient to show that Dionisio was so during which the "condition" remains static will not necessarily
heavily under the influence of liquor as to constitute his driving a motor vehicle per se affect liability; one who digs a trench in the highway may still be
an act of reckless imprudence. 8 There simply is not enough evidence to show how liable to another who fans into it a month afterward. "Cause" and
much liquor he had in fact taken and the effects of that upon his physical faculties or "condition" still find occasional mention in the decisions; but the
upon his judgment or mental alertness. We are also aware that "one shot or two" of distinction is now almost entirely discredited. So far as it has any
hard liquor may affect different people differently. validity at all, it must refer to the type of case where the forces set
in operation by the defendant have come to rest in a position of
apparent safety, and some new force intervenes. But even in such
The conclusion we draw from the factual circumstances outlined above is that private cases, it is not the distinction between "cause" and "condition"
respondent Dionisio was negligent the night of the accident. He was hurrying home which is important but the nature of the risk and the character of the
that night and driving faster than he should have been. Worse, he extinguished his intervening cause. 9
headlights at or near the intersection of General Lacuna and General Santos Streets
and thus did not see the dump truck that was parked askew and sticking out onto the
road lane. We believe, secondly, that the truck driver's negligence far from being a "passive and
static condition" was rather an indispensable and efficient cause. The collision
between the dump truck and the private respondent's car would in an probability not
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate have occurred had the dump truck not been parked askew without any warning lights
Court that the legal and proximate cause of the accident and of Dionisio's injuries was or reflector devices. The improper parking of the dump truck created an unreasonable
the wrongful — or negligent manner in which the dump truck was parked in other risk of injury for anyone driving down General Lacuna Street and for having so
words, the negligence of petitioner Carbonel. That there was a reasonable created this risk, the truck driver must be held responsible. In our view, Dionisio's
relationship between petitioner Carbonel's negligence on the one hand and the negligence, although later in point of time than the truck driver's negligence and
accident and respondent's injuries on the other hand, is quite clear. Put in a slightly therefore closer to the accident, was not an efficient intervening or independent
different manner, the collision of Dionisio's car with the dump truck was a natural and cause. What the Petitioners describe as an "intervening cause" was no more than a
foreseeable consequence of the truck driver's negligence. foreseeable consequent manner which the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a duty to private respondent Dionisio and
The petitioners, however, urge that the truck driver's negligence was merely a others similarly situated not to impose upon them the very risk the truck driver had
"passive and static condition" and that private respondent Dionisio's negligence was created. Dionisio's negligence was not of an independent and overpowering nature as
an "efficient intervening cause and that consequently Dionisio's negligence must be to cut, as it were, the chain of causation in fact between the improper parking of the
regarded as the legal and proximate cause of the accident rather than the earlier dump truck and the accident, nor to sever the juris vinculum of liability. It is helpful to
negligence of Carbonel. We note that the petitioners' arguments are drawn from a quote once more from Professor and Keeton:
reading of some of the older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any validity for our Foreseeable Intervening Causes. If the intervening cause is one
jurisdiction. We note, firstly, that even in the United States, the distinctions between which in ordinary human experience is reasonably to be anticipated
"cause" and "condition" which the 'petitioners would have us adopt have already been or one which the defendant has reason to anticipate under the
"almost entirely discredited." Professors and Keeton make this quite clear: particular circumstances, the defendant may be negligence among
other reasons, because of failure to guard against it; or the
Cause and condition. Many courts have sought to distinguish defendant may be negligent only for that reason. Thus one who
between the active "cause" of the harm and the existing sets a fire may be required to foresee that an ordinary, usual and
"conditions" upon which that cause operated. If the defendant has customary wind arising later wig spread it beyond the defendant's
own property, and therefore to take precautions to prevent that harshness of another common law doctrine or rule that of contributory
event. The person who leaves the combustible or explosive negligence. 12 The common law rule of contributory negligence prevented any
material exposed in a public place may foresee the risk of fire from recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence
some independent source. ... In all of these cases there is an was relatively minor as compared with the wrongful act or omission of the
intervening cause combining with the defendant's conduct to defendant. 13 The common law notion of last clear chance permitted courts to grant
produce the result and in each case the defendant's negligence recovery to a plaintiff who had also been negligent provided that the defendant had
consists in failure to protect the plaintiff against that very risk. the last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is
difficult to see what role, if any, the common law last clear chance doctrine has to play
Obviously the defendant cannot be relieved from liability by the fact in a jurisdiction where the common law concept of contributory negligence as an
that the risk or a substantial and important part of the risk, to which absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in
the defendant has subjected the plaintiff has indeed come to pass. Article 2179 of the Civil Code of the Philippines. 15
Foreseeable intervening forces are within the scope original risk,
and hence of the defendant's negligence. The courts are quite Is there perhaps a general concept of "last clear chance" that may be extracted from
generally agreed that intervening causes which fall fairly in this its common law matrix and utilized as a general rule in negligence cases in a civil law
category will not supersede the defendant's responsibility. jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in
technical terms, is to determine whose negligence — the plaintiff's or the defendant's
Thus it has been held that a defendant will be required to anticipate — was the legal or proximate cause of the injury. That task is not simply or even
the usual weather of the vicinity, including all ordinary forces of primarily an exercise in chronology or physics, as the petitioners seem to imply by the
nature such as usual wind or rain, or snow or frost or fog or even use of terms like "last" or "intervening" or "immediate." The relative location in the
lightning; that one who leaves an obstruction on the road or a continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is
railroad track should foresee that a vehicle or a train will run into only one of the relevant factors that may be taken into account. Of more fundamental
it; ... importance are the nature of the negligent act or omission of each party and the
character and gravity of the risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and therefore his employer)
The risk created by the defendant may include the intervention of should be absolved from responsibility for his own prior negligence because the
the foreseeable negligence of others. ... [The standard of unfortunate plaintiff failed to act with that increased diligence which had become
reasonable conduct may require the defendant to protect the necessary to avoid the peril precisely created by the truck driver's own wrongful act or
plaintiff against 'that occasional negligence which is one of the omission. To accept this proposition is to come too close to wiping out the
ordinary incidents of human life, and therefore to be fundamental principle of law that a man must respond for the forseeable
anticipated.' Thus, a defendant who blocks the sidewalk and forces consequences of his own negligent act or omission. Our law on quasi-delicts seeks to
the plaintiff to walk in a street where the plaintiff will be exposed to reduce the risks and burdens of living in society and to allocate them among the
the risks of heavy traffic becomes liable when the plaintiff is run members of society. To accept the petitioners' pro-position must tend to weaken the
down by a car, even though the car is negligently driven; and one very bonds of society.
who parks an automobile on the highway without lights at night is
not relieved of responsibility when another negligently drives into it.
--- 10 Petitioner Carbonel's proven negligence creates a presumption of negligence on the
part of his employer Phoenix 16in supervising its employees properly and adequately.
The respondent appellate court in effect found, correctly in our opinion, that Phoenix
We hold that private respondent Dionisio's negligence was "only contributory," that was not able to overcome this presumption of negligence. The circumstance that
the "immediate and proximate cause" of the injury remained the truck driver's "lack of Phoenix had allowed its truck driver to bring the dump truck to his home whenever
due care" and that consequently respondent Dionisio may recover damages though there was work to be done early the following morning, when coupled with the failure
such damages are subject to mitigation by the courts (Article 2179, Civil Code of the to show any effort on the part of Phoenix to supervise the manner in which the dump
Philippines). truck is parked when away from company premises, is an affirmative showing
of culpa in vigilando on the part of Phoenix.
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine.
The theory here of petitioners is that while the petitioner truck driver was negligent, Turning to the award of damages and taking into account the comparative negligence
private respondent Dionisio had the "last clear chance" of avoiding the accident and of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix
hence his injuries, and that Dionisio having failed to take that "last clear chance" must upon the other hand, 17 we believe that the demands of substantial justice are
bear his own injuries alone. The last clear chance doctrine of the common law was satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the
imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate damages awarded by the respondent appellate court, except the award of
whether, or to what extent, it has found its way into the Civil Code of the Philippines. P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall
The historical function of that doctrine in the common law was to mitigate the be borne by private respondent Dionisio; only the balance of 80% needs to be paid by
petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former.
The award of exemplary damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course entitled to reimbursement from
Carbonel. 18 We see no sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing


the aggregate amount of compensatory damages, loss of expected income and moral
damages private respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.

SO ORDERED.
G.R. No. L-38088 August 30, 1974 jurisdiction over claims or suits for damages, such as moral,
exemplary and other related damages including attorney's fees,
JOVITO N. QUISABA, petitioner, arising out of employee-employer relationship, we regret to inform
vs. you that the National Labor Relations Commission has no such
STA. INES-MELALE VENEER & PLYWOOD, INC., et al., respondents. power.

Pedro F. Alcantara Jr. for petitioner. The Commission's disclaimer of jurisdiction notwithstanding, the court a quo, in an
order of September 18, 1973, granted the motion to dismiss on the ground that the
complaint basically involves an employee-employer relation.
Armando Dominguez for respondents.
Hence the present recourse.

The jurisdiction of the National Labor Relations Commission is defined by section 2 of


CASTRO, J.:p Presidential Decree No. 21 which reads:

In this special civil action for certiorari,1 the sole issue of law posed for resolution is SEC. 2. The Commission shall have original and exclusive
whether a complaint for moral damages, exemplary damages, termination pay and jurisdiction over the following.
attorney's fees, arising from an employer's constructive dismissal of an employee, is
exclusively cognizable by the regular courts of justice or by the National Labor
Relations Commission created by Presidential Decree No. 21, promulgated on (1) All matters involving employee employer relations including all
October 14, 1972.2 disputes and grievances which may otherwise lead to strikes and
lockouts under Republic Act No. 875;
On February 5, 1973 the petitioner Jovito N. Quisaba filed with the Court of First
Instance of Davao a complaint for moral damages, exemplary damages, termination (2) All strikes overtaken by Proclamation No. 1081; and
pay and attorney's fees against the Sta. Ines-Melale Veneer & Plywood, Inc. and its
vice-president Robert Hyde. The complaint avers that Quisaba, for eighteen years (3) All pending cases in the Bureau of Labor Relations.
prior to his dismissal, was in the employ of the defendant corporation; that on January
11, 1973 the respondent Robert Hyde instructed him to purchase logs for the Although the acts complained of seemingly appear to constitute "matters involving
company's plant; that he refused on the ground that the work of purchasing logs is employee-employer relations" as Quisaba's dismissal was the severance of a pre-
inconsistent with his position as internal auditor; that on the following day Hyde existing employee-employer relation, his complaint is grounded not on his
informed him of his temporary relief as internal auditor so that he could carry out dismissal per se as in fact he does not ask for reinstatement or backwages, but on
immediately the instructions thus given, and he was warned that his failure to comply the manner of his dismissal and the consequent effects of such dismissal.
would be considered a ground for his dismissal; that on January 16, 1973 he
responded with a plea for fairness and mercy as he would be without a job during an
economic crisis; that he was demoted from a position of dignity to a servile and Civil law consists of that "mass of precepts that determine or regulate the relations ...
menial job; that the defendants did not reconsider their "clever and subterfugial that exist between members of a society for the protection of private interests. 3
dismissal" of him which for all purposes constituted a "constructive discharge;" and
that because of the said acts of the defendants, he suffered mental anguish, serious The "right" of the respondents to dismiss Quisaba should not be confused with
anxiety, besmirched reputation, wounded feelings, moral shock and social humiliate the manner in which the right was exercised and the effects flowing therefrom. If the
on. The complaint does not pray for reinstatement or payment of backwages. dismissal was done anti-socially or oppressively, as the complaint alleges, then the
respondents violated article 1701 of the Civil Code which prohibits acts of oppression
After the defendants filed their answer, they moved to dismiss the complaint on the by either capital or labor against the other, and article 21, which makes a person
ground of lack of jurisdiction of the Davao Court of First Instance, asserting that the liable for damages if he wilfully causes loss or injury to another in a manner that is
proper forum is the National Labor Relations Commission established by Presidential contrary to morals, good customs or public policy, the sanction for which, by way of
Decree No. 21. Quisaba opposed the motion and at the same time informed the court moral damages, is provided in article 2219, no. 10.4
that in response to a "consults" presented by his counsel, the NLRC's authorized
representative in Davao City opined as follows: Art. 2219. Moral damages may be recovered in the following and
analogous cages:
In response to your query dated September 12, 1973, inquiring as
to whether or not the National Labor Relations Commission has
xxx xxx xxx

(10) Acts and actions referred to in articles 21, ....

The case at bar is intrinsically concerned with a civil (not a labor)


dispute;5 it has to do with an alleged violation of Quisaba's rights as
a member of society, and does not involve an existing employee-
employer relation within the meaning of section 2(1) of Presidential
Decree No. 21. The complaint is thus properly and exclusively
cognizable by the regular courts of justice, not by the National
Labor Relations Commission.

ACCORDINGLY, the order of September 18, 1973 is set aside, and this case is
hereby ordered remanded to the court a quo for further proceedings in accordance
with law. Costs against the private respondents.

Makalintal, C.J., Teehankee, Makasiar, Esguerra and Muñoz Palma, JJ., concur.
G.R. No. L-12191 October 14, 1918 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
JOSE CANGCO, plaintiff-appellant, stepped upon the platform. His statement that he failed to see these objects in the
vs. darkness is readily to be credited.
MANILA RAILROAD CO., defendant-appellee.
The plaintiff was drawn from under the car in an unconscious condition, and it
Ramon Sotelo for appellant. appeared that the injuries which he had received were very serious. He was therefore
Kincaid & Hartigan for appellee. brought at once to a certain hospital in the city of Manila where an examination was
made and his arm was amputated. The result of this operation was unsatisfactory,
and the plaintiff was then carried to another hospital where a second operation was
performed and the member was again amputated higher up near the shoulder. It
appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of
FISHER, J.: his curation.

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of
Cangco, was in the employment of Manila Railroad Company in the capacity of clerk, the city of Manila to recover damages of the defendant company, founding his action
with a monthly wage of P25. He lived in the pueblo of San Mateo, in the province of upon the negligence of the servants and employees of the defendant in placing the
Rizal, which is located upon the line of the defendant railroad company; and in sacks of melons upon the platform and leaving them so placed as to be a menace to
coming daily by train to the company's office in the city of Manila where he worked, he the security of passenger alighting from the company's trains. At the hearing in the
used a pass, supplied by the company, which entitled him to ride upon the company's Court of First Instance, his Honor, the trial judge, found the facts substantially as
trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff above stated, and drew therefrom his conclusion to the effect that, although
arose from his seat in the second class-car where he was riding and, making, his exit negligence was attributable to the defendant by reason of the fact that the sacks of
through the door, took his position upon the steps of the coach, seizing the upright melons were so placed as to obstruct passengers passing to and from the cars,
guardrail with his right hand for support. nevertheless, the plaintiff himself had failed to use due caution in alighting from the
coach and was therefore precluded form recovering. Judgment was accordingly
On the side of the train where passengers alight at the San Mateo station there is a entered in favor of the defendant company, and the plaintiff appealed.
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 It can not be doubted that the employees of the railroad company were guilty of
sufficient to cover the length of several coaches. As the train slowed down another negligence in piling these sacks on the platform in the manner above stated; that their
passenger, named Emilio Zuñiga, also an employee of the railroad company, got off presence caused the plaintiff to fall as he alighted from the train; and that they
the same car, alighting safely at the point where the platform begins to rise from the therefore constituted an effective legal cause of the injuries sustained by the plaintiff.
level of the ground. When the train had proceeded a little farther the plaintiff Jose It necessarily follows that the defendant company is liable for the damage thereby
Cangco stepped off also, but one or both of his feet came in contact with a sack of occasioned unless recovery is barred by the plaintiff's own contributory negligence. In
watermelons with the result that his feet slipped from under him and he fell violently resolving this problem it is necessary that each of these conceptions of liability, to-wit,
on the platform. His body at once rolled from the platform and was drawn under the the primary responsibility of the defendant company and the contributory negligence
moving car, where his right arm was badly crushed and lacerated. It appears that of the plaintiff should be separately examined.
after the plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop. It is important to note that the foundation of the legal liability of the defendant is the
contract of carriage, and that the obligation to respond for the damage which plaintiff
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad has suffered arises, if at all, from the breach of that contract by reason of the failure of
station was lighted dimly by a single light located some distance away, objects on the defendant to exercise due care in its performance. That is to say, its liability is direct
platform where the accident occurred were difficult to discern especially to a person and immediate, differing essentially, in legal viewpoint from that presumptive
emerging from a lighted car. responsibility for the negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care in their selection
The explanation of the presence of a sack of melons on the platform where the and supervision. Article 1903 of the Civil Code is not applicable to obligations arising
plaintiff alighted is found in the fact that it was the customary season for harvesting ex contractu, but only to extra-contractual obligations — or to use the technical form
of expression, that article relates only to culpa aquiliana and not to culpa contractual.
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
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil by no contractual ties, and he incurs no liability whatever if, by reason of the
Code, clearly points out this distinction, which was also recognized by this Court in its negligence of his servants, even within the scope of their employment, such third
decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In person suffer damage. True it is that under article 1903 of the Civil Code the law
commenting upon article 1093 Manresa clearly points out the difference between creates a presumption that he has been negligent in the selection or direction of his
"culpa, substantive and independent, which of itself constitutes the source of an servant, but the presumption is rebuttable and yield to proof of due care and diligence
obligation between persons not formerly connected by any legal tie" in this respect.
and culpa considered as an accident in the performance of an obligation already
existing . . . ." 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-
In the Rakes case (supra) the decision of this court was made to rest squarely upon contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
the proposition that article 1903 of the Civil Code is not applicable to acts of
negligence which constitute the breach of a contract. 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
Upon this point the Court said: 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
The acts to which these articles [1902 and 1903 of the Civil Code] are employment. The Court, after citing the last paragraph of article 1903 of the Civil
applicable are understood to be those not growing out of pre-existing duties Code, said:
of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi-contract, then breaches of From this article two things are apparent: (1) That when an injury is caused
those duties are subject to article 1101, 1103, and 1104 of the same code. by the negligence of a servant or employee there instantly arises a
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.) 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
This distinction is of the utmost importance. The liability, which, under the Spanish over him after the selection, or both; and (2) that that presumption is juris
law, is, in certain cases imposed upon employers with respect to damages tantum and not juris et de jure, and consequently, may be rebutted. It follows
occasioned by the negligence of their employees to persons to whom they are not necessarily that if the employer shows to the satisfaction of the court that in
bound by contract, is not based, as in the English Common Law, upon the principle selection and supervision he has exercised the care and diligence of a good
of respondeat superior — if it were, the master would be liable in every case and father of a family, the presumption is overcome and he is relieved from
unconditionally — but upon the principle announced in article 1902 of the Civil Code, liability.
which imposes upon all persons who by their fault or negligence, do injury to another,
the obligation of making good the damage caused. One who places a powerful This theory bases the responsibility of the master ultimately on
automobile in the hands of a servant whom he knows to be ignorant of the method of his own negligence and not on that of his servant. This is the notable
managing such a vehicle, is himself guilty of an act of negligence which makes him peculiarity of the Spanish law of negligence. It is, of course, in striking
liable for all the consequences of his imprudence. The obligation to make good the contrast to the American doctrine that, in relations with strangers, the
damage arises at the very instant that the unskillful servant, while acting within the negligence of the servant in conclusively the negligence of the master.
scope of his employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in the The opinion there expressed by this Court, to the effect that in case of extra-
selection and direction of the servant, he is not liable for the acts of the latter, contractual culpa based upon negligence, it is necessary that there shall have been
whatever done within the scope of his employment or not, if the damage done by the some fault attributable to the defendant personally, and that the last paragraph of
servant does not amount to a breach of the contract between the master and the article 1903 merely establishes a rebuttable presumption, is in complete accord with
person injured. the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability
created by article 1903 is imposed by reason of the breach of the duties inherent in
It is not accurate to say that proof of diligence and care in the selection and control of the special relations of authority or superiority existing between the person called
the servant relieves the master from liability for the latter's acts — on the contrary, upon to repair the damage and the one who, by his act or omission, was the cause of
that proof shows that the responsibility has never existed. As Manresa says (vol. 8, p. it.
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 On the other hand, the liability of masters and employers for the negligent acts or
caused damage to another. A master who exercises all possible care in the selection omissions of their servants or agents, when such acts or omissions cause damages
of his servant, taking into consideration the qualifications they should possess for the which amount to the breach of a contact, is not based upon a mere presumption of
discharge of the duties which it is his purpose to confide to them, and directs them the master's negligence in their selection or control, and proof of exercise of the
with equal diligence, thereby performs his duty to third persons to whom he is bound
utmost diligence and care in this regard does not relieve the master of his liability for As it is not necessary for the plaintiff in an action for the breach of a contract to show
the breach of his contract. 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
Every legal obligation must of necessity be extra-contractual or contractual. Extra- the part of defendant that the negligence or omission of his servants or agents
contractual obligation has its source in the breach or omission of those mutual duties caused the breach of the contract would not constitute a defense to the action. If the
which civilized society imposes upon it members, or which arise from these relations, negligence of servants or agents could be invoked as a means of discharging the
other than contractual, of certain members of society to others, generally embraced in liability arising from contract, the anomalous result would be that person acting
the concept of status. The legal rights of each member of society constitute the through the medium of agents or servants in the performance of their contracts, would
measure of the corresponding legal duties, mainly negative in character, which the be in a better position than those acting in person. If one delivers a valuable watch to
existence of those rights imposes upon all other members of society. The breach of watchmaker who contract to repair it, and the bailee, by a personal negligent act
these general duties whether due to willful intent or to mere inattention, if productive causes its destruction, he is unquestionably liable. Would it be logical to free him from
of injury, give rise to an obligation to indemnify the injured party. The fundamental his liability for the breach of his contract, which involves the duty to exercise due care
distinction between obligations of this character and those which arise from contract, in the preservation of the watch, if he shows that it was his servant whose negligence
rests upon the fact that in cases of non-contractual obligation it is the wrongful or caused the injury? If such a theory could be accepted, juridical persons would enjoy
negligent act or omission itself which creates the vinculum juris, whereas in practically complete immunity from damages arising from the breach of their contracts
contractual relations the vinculum exists independently of the breach of the voluntary if caused by negligent acts as such juridical persons can of necessity only act through
duty assumed by the parties when entering into the contractual relation. 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
With respect to extra-contractual obligation arising from negligence, whether of act or negligence of some clerk employed by the bank, would it be just and reasonable to
omission, it is competent for the legislature to elect — and our Legislature has so permit the bank to relieve itself of liability for the breach of its contract to return the
elected — whom such an obligation is imposed is morally culpable, or, on the collateral upon the payment of the debt by proving that due care had been exercised
contrary, for reasons of public policy, to extend that liability, without regard to the lack in the selection and direction of the clerk?
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 This distinction between culpa aquiliana, as the source of an obligation, and culpa
Civil Code has elected to limit extra-contractual liability — with certain well-defined contractual as a mere incident to the performance of a contract has frequently been
exceptions — to cases in which moral culpability can be directly imputed to the recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November
persons to be charged. This moral responsibility may consist in having failed to 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it
exercise due care in the selection and control of one's agents or servants, or in the appeared that plaintiff's action arose ex contractu, but that defendant sought to avail
control of persons who, by reason of their status, occupy a position of dependency himself of the provisions of article 1902 of the Civil Code as a defense. The Spanish
with respect to the person made liable for their conduct. Supreme Court rejected defendant's contention, saying:

The position of a natural or juridical person who has undertaken by contract to render These are not cases of injury caused, without any pre-existing obligation, by
service to another, is wholly different from that to which article 1903 relates. When the fault or negligence, such as those to which article 1902 of the Civil Code
sources of the obligation upon which plaintiff's cause of action depends is a negligent relates, but of damages caused by the defendant's failure to carry out the
act or omission, the burden of proof rests upon plaintiff to prove the negligence — if undertakings imposed by the contracts . . . .
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 A brief review of the earlier decision of this court involving the liability of employers for
failed or refused to perform the contract, it is not necessary for plaintiff to specify in damage done by the negligent acts of their servants will show that in no case has the
his pleadings whether the breach of the contract is due to willful fault or to negligence court ever decided that the negligence of the defendant's servants has been held to
on the part of the defendant, or of his servants or agents. Proof of the contract and of constitute a defense to an action for damages for breach of contract.
its nonperformance is sufficient prima facie to warrant a recovery.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a
As a general rule . . . it is logical that in case of extra-contractual culpa, a carriage was not liable for the damages caused by the negligence of his driver. In that
suing creditor should assume the burden of proof of its existence, as the case the court commented on the fact that no evidence had been adduced in the trial
only fact upon which his action is based; while on the contrary, in a case of court that the defendant had been negligent in the employment of the driver, or that
negligence which presupposes the existence of a contractual obligation, if he had any knowledge of his lack of skill or carefulness.
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. In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep.,
76]). 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 to a person to whom it was bound by contract, and made reference to the
servants in the course of the performance of a contract of towage. The court held, fact that the defendant was negligent in the selection and control of its servants, that
citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a in such a case the court would have held that it would have been a good defense to
contract made between it and the plaintiff . . . we do not think that the provisions of the action, if presented squarely upon the theory of the breach of the contract, for
articles 1902 and 1903 are applicable to the case." defendant to have proved that it did in fact exercise care in the selection and control
of the servant.
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the
defendant to recover damages for the personal injuries caused by the negligence of The true explanation of such cases is to be found by directing the attention to the
defendant's chauffeur while driving defendant's automobile in which defendant was relative spheres of contractual and extra-contractual obligations. The field of non-
riding at the time. The court found that the damages were caused by the negligence contractual obligation is much more broader than that of contractual obligations,
of the driver of the automobile, but held that the master was not liable, although he comprising, as it does, the whole extent of juridical human relations. These two fields,
was present at the time, saying: 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
. . . unless the negligent acts of the driver are continued for a length of time person. When such a contractual relation exists the obligor may break the contract
as to give the owner a reasonable opportunity to observe them and to direct under such conditions that the same act which constitutes the source of an extra-
the driver to desist therefrom. . . . The act complained of must be continued contractual obligation had no contract existed between the parties.
in the presence of the owner for such length of time that the owner by his
acquiescence, makes the driver's acts his own. The contract of defendant to transport plaintiff carried with it, by implication, the duty
to carry him in safety and to provide safe means of entering and leaving its trains (civil
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. code, article 1258). That duty, being contractual, was direct and immediate, and its
(33 Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of the non-performance could not be excused by proof that the fault was morally imputable
defendant upon article 1903, although the facts disclosed that the injury complaint of to defendant's servants.
by plaintiff constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was that article 1903, The railroad company's defense involves the assumption that even granting that the
in dealing with the liability of a master for the negligent acts of his servants "makes negligent conduct of its servants in placing an obstruction upon the platform was a
the distinction between private individuals and public enterprise;" that as to the latter breach of its contractual obligation to maintain safe means of approaching and
the law creates a rebuttable presumption of negligence in the selection or direction of leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was
servants; and that in the particular case the presumption of negligence had not been his own contributory negligence in failing to wait until the train had come to a
overcome. complete stop before alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was caused by plaintiff's own
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's negligence, no liability is imposed upon defendant's negligence and plaintiff's
action as though founded in tort rather than as based upon the breach of the contract negligence merely contributed to his injury, the damages should be apportioned. It is,
of carriage, and an examination of the pleadings and of the briefs shows that the therefore, important to ascertain if defendant was in fact guilty of negligence.
questions of law were in fact discussed upon this theory. Viewed from the standpoint
of the defendant the practical result must have been the same in any event. The proof It may be admitted that had plaintiff waited until the train had come to a full stop
disclosed beyond doubt that the defendant's servant was grossly negligent and that before alighting, the particular injury suffered by him could not have occurred.
his negligence was the proximate cause of plaintiff's injury. It also affirmatively Defendant contends, and cites many authorities in support of the contention, that it is
appeared that defendant had been guilty of negligence in its failure to exercise proper negligence per se for a passenger to alight from a moving train. We are not disposed
discretion in the direction of the servant. Defendant was, therefore, liable for the injury to subscribe to this doctrine in its absolute form. We are of the opinion that this
suffered by plaintiff, whether the breach of the duty were to be regarded as proposition is too badly stated and is at variance with the experience of every-day life.
constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 In this particular instance, that the train was barely moving when plaintiff alighted is
and 69) whether negligence occurs an incident in the course of the performance of a shown conclusively by the fact that it came to stop within six meters from the place
contractual undertaking or its itself the source of an extra-contractual undertaking where he stepped from it. Thousands of person alight from trains under these
obligation, its essential characteristics are identical. There is always an act or conditions every day of the year, and sustain no injury where the company has kept
omission productive of damage due to carelessness or inattention on the part of the its platform free from dangerous obstructions. There is no reason to believe that
defendant. Consequently, when the court holds that a defendant is liable in damages plaintiff would have suffered any injury whatever in alighting as he did had it not been
for having failed to exercise due care, either directly, or in failing to exercise proper for defendant's negligent failure to perform its duty to provide a safe alighting place.
care in the selection and direction of his servants, the practical result is identical in
either case. Therefore, it follows that it is not to be inferred, because the court held in We are of the opinion that the correct doctrine relating to this subject is that
the Yamada case that defendant was liable for the damages negligently caused by its 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 of the platform where he was alighting. Our conclusion is that the conduct of the
negligence in attempting to alight from a moving railway train, is that of plaintiff in undertaking to alight while the train was yet slightly under way was not
ordinary or reasonable care. It is to be considered whether an ordinarily characterized by imprudence and that therefore he was not guilty of contributory
prudent person, of the age, sex and condition of the passenger, would have negligence.
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 The evidence shows that the plaintiff, at the time of the accident, was earning P25 a
should be used by the prudent man generally, but the care which a man of month as a copyist clerk, and that the injuries he has suffered have permanently
ordinary prudence would use under similar circumstances, to avoid injury." disabled him from continuing that employment. Defendant has not shown that any
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.) other gainful occupation is open to plaintiff. His expectancy of life, according to the
standard mortality tables, is approximately thirty-three years. We are of the opinion
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith that a fair compensation for the damage suffered by him for his permanent disability is
(37 Phil. rep., 809), we may say that the test is this; Was there anything in the the sum of P2,500, and that he is also entitled to recover of defendant the additional
circumstances surrounding the plaintiff at the time he alighted from the train which sum of P790.25 for medical attention, hospital services, and other incidental
would have admonished a person of average prudence that to get off the train under expenditures connected with the treatment of his injuries.
the conditions then existing was dangerous? If so, the plaintiff should have desisted
from alighting; and his failure so to desist was contributory negligence.1awph!l.net 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.
As the case now before us presents itself, the only fact from which a conclusion can
be drawn to the effect that plaintiff was guilty of contributory negligence is that he Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
stepped off the car without being able to discern clearly the condition of the platform
and while the train was yet slowly moving. In considering the situation thus presented,
it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that
the obstruction which was caused by the sacks of melons piled on the platform
existed; and as the defendant was bound by reason of its duty as a public carrier to
afford to its passengers facilities for safe egress from its trains, the plaintiff had a right
to assume, in the absence of some circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already stated, was dark, or dimly lighted,
and this also is proof of a failure upon the part of the defendant in the performance of
a duty owing by it to the plaintiff; for if it were by any possibility concede that it had
right to pile these sacks in the path of alighting passengers, the placing of them
adequately so that their presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in


this case the following circumstances are to be noted: The company's platform was
constructed upon a level higher than that of the roadbed and the surrounding ground.
The distance from the steps of the car to the spot where the alighting passenger
would place his feet on the platform was thus reduced, thereby decreasing the risk
incident to stepping off. The nature of the platform, constructed as it was of cement
material, also assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young manhood,
and it was by no means so risky for him to get off while the train was yet moving as
the same act would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act — that is to say, whether
the passenger acted prudently or recklessly — the age, sex, and physical condition of
the passenger are circumstances necessarily affecting the safety of the passenger,
and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their
wearing apparel obstructs the free movement of the limbs. Again, it may be noted that
the place was perfectly familiar to the plaintiff as it was his daily custom to get on and
of the train at this station. There could, therefore, be no uncertainty in his mind with
regard either to the length of the step which he was required to take or the character
G.R. No. 1719 January 23, 1907 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
M. H., RAKES, plaintiff-appellee, inspected the track after the typhoon or had any proper system of inspection.
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant. 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
A. D. Gibbs for appellant. transporting it, or to skillfully build the tramway or to maintain it in proper condition, or
F. G. Waite, & Thimas Kepner for appellee. 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.
TRACEY, J.:
This case presents many important matters for our decision, and first among them is
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the standard of duty which we shall establish in our jurisprudence on the part of
the employment of the defendant, was at work transporting iron rails from a barge in employees toward employees.
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, The lack or the harshness of legal rules on this subject has led many countries to
each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or enact designed to put these relations on a fair basis in the form of compensation or
sills secured to the cars, but without side pieces or guards to prevent them from liability laws or the institution of insurance. In the absence of special legislation we
slipping off. According to the testimony of the plaintiff, the men were either in the rear find no difficulty in so applying the general principles of our law as to work out a just
of the car or at its sides. According to that defendant, some of them were also in front, result.
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, Article 1092 of the Civil Code provides:
breaking his leg, which was afterwards amputated at about the knee.
Civil obligations, arising from crimes or misdemeanors, shall be governed by
This first point for the plaintiff to establish was that the accident happened through the the provisions of the Penal Code.
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 And article 568 of the latter code provides:
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 He who shall execute through reckless negligence an act that if done with
from 24 to 30 feet in length. On the across the stringers the parallel with the blocks malice would constitute a grave crime, shall be punished.
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 And article 590 provides that the following shall be punished:
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 4. Those who by simple imprudence or negligence, without committing any
were no side pieces or guards on the car; that where no ends of the rails of the track infraction of regulations, shall cause an injury which, had malice intervened,
met each other and also where the stringers joined, there were no fish plates. the would have constituted a crime or misdemeanor.
defendant has not effectually overcome the plaintiff's proof that the joints between the
rails were immediately above the joints between the underlying stringers.
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
The cause of the sagging of the tracks and the breaking of the tie, which was the character.
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 It is contented by the defendant, as its first defense to the action, that the necessary
by a recent typhoon. The superintendent of the company attributed it to the giving conclusion from these collated laws is that the remedy for injuries through negligence
way of the block laid in the sand. No effort was made to repair the injury at the time of lies only in a criminal action in which the official criminally responsible must be made
the occurrence. According to plaintiffs witnesses, a depression of the track, varying primarily liable and his employer held only subsidiarily to him. According to this theory
from one half inch to one inch and a half, was therafter apparent to the eye, and a the plaintiff should have procured the arrest of the representative of the company
fellow workman of the plaintiff swears that the day before the accident he called the accountable for not repairing the tract, and on his prosecution a suitable fine should
attention of McKenna, the foreman, to it and asked by simply straightening out the have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article An examination of this topic might be carried much further, but the citations of these
1093 of the Civil Code makes obligations arising from faults or negligence articles suffices to show that the civil liability was not intended to be merged in the
not punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section criminal nor even to be suspended thereby, except as expressly provided by law.
1902 of that chapter reads: 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
A person who by an act or omission causes damage to another when there prosecution must be a condition precedent to the enforcement of the civil right.
is fault or negligence shall be obliged to repair the damage so done.
Under article 20 of the Penal Code the responsibility of an employer may be regarded
SEC. 1903. The obligation imposed by the preceding article is demandable, as subsidiary in respect of criminal actions against his employees only while they are
not only for personal acts and omissions, but also for those of the persons process of prosecution, or in so far as they determinate the existence of the criminal
for whom they should be responsible. 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
The father, and on his death or incapacity, the mother, is liable for the not affect this action. This construction renders it unnecessary to finally determine
damages caused by the minors who live with them. 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
xxx xxx xxx in force in the Philippines.

Owners or directors of an establishment or enterprise are equally liable for The difficulty in construing the articles of the code above cited in this case appears
the damages caused by their employees in the service of the branches in from the briefs before us to have arisen from the interpretation of the words of article
which the latter may be employed or in the performance of their duties. 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
xxx xxx xxx 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
The liability referred to in this article shall cease when the persons fall within the class of acts unpunished by the law, the consequences of which are
mentioned therein prove that they employed all the diligence of a good father regulated by articles 1902 and 1903 of the Civil Code. The acts to which these
of a family to avoid the damages. articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to
As an answer to the argument urged in this particular action it may be sufficient to duties, whether springing from contract or quasi contract, then breaches of those
point out that nowhere in our general statutes is the employer penalized for failure to duties are subject to articles 1101, 1103, and 1104, of the same code. A typical
provide or maintain safe appliances for his workmen. His obligation therefore is one application of the distinction may be found in the consequences of a railway accident
"not punished by the law " and falls under civil rather than criminal jurisprudence. But due to defective machinery supplied by the employer. His liability to his employee
the answer may be a broader one. We should be reluctant, under any conditions, to would arise out of the contract of employment, that to the passengers out of the
adopt a forced construction of these scientific codes, such as is proposed by the contract for passage. while that to that injured bystander would originate in the
defendant, that would rob some of these articles of effect, would shut out litigants negligent act itself. This distinction is thus clearly set forth by Manresa in his
their will from the civil courts, would make the assertion of their rights dependent upon commentary on article 1093.
the selection for prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if We are with reference to such obligations, that culpa, or negligence, may be
these articles had always stood alone, such a construction would be unnecessary, but understood in two difference senses; either as culpa,
clear light is thrown upon their meaning by the provisions of the Law of Criminal substantive and independent, which on account of its origin arises in an
Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever in actual obligation between two persons not formerly bound by any other obligation;
force in these Islands, was formerly given a suppletory or explanatory effect. Under or as an incident in the performance of an obligation; or as already existed,
article 111 of this law, both classes of action, civil and criminal, might be prosecuted which can not be presumed to exist without the other, and which increases
jointly or separately, but while the penal action was pending the civil was suspended. the liability arising from the already exiting obligation.
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 the future. If the civil action alone was Of these two species of culpa the first one mentioned, existing by itself, may
prosecuted, arising out of a crime that could be enforced by only on private complaint, be also considered as a real source of an independent obligation, and, as
the penal action thereunder should be extinguished. These provisions are in harmony chapter 2, title 16 of this book of the code is devoted to it, it is logical to
with those of articles 23 and 133 of our Penal Code on the same subject. 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 act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the
of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p. fellow-servant, rule," we are not disposed to introduce into our jurisprudence. Adopted
29.) in England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby,
1) in 1837, it has since been effectually abrogated by "the Employers' Liability Acts"
And in his commentary on articles 1102 and 1104 he says that these two species of and the "Compensation Law." The American States which applied it appear to be
negligence may be somewhat inexactly described as contractual and extra- gradually getting rid of it; for instance, the New York State legislature of 1906 did
contractual, the letter being the culpa aquiliana of the Roman law and not entailing so away with it in respect to railroad companies, and had in hand a scheme for its total
strict an obligation as the former. This terminology is unreservedly accepted by abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol.
Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more
principle stated is supported be decisions of the supreme court of Spain, among them recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)
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 The French Cour de Cassation clearly laid down the contrary principle in its judgment
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.) of June 28, 1841, in the case of Reygasse, and has since adhered to it.

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of The most controverted question in the case is that of the negligence of the plaintiff,
January 30, 1900, throws uncertain light on the relation between master and contributing to the accident, to what extent it existed in fact and what legal effect is to
workman. Moved by the quick industrial development of their people, the courts of be given it. In two particulars is he charged with carelessness:
France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators. First. That having noticed the depression in the track he continued his work; and

The original French theory, resting the responsibility of owners of industrial Second. That he walked on the ends of the ties at the side of the car instead of along
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding the boards, either before or behind it.
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.) As to the first point, the depression in the track night indicate either a serious or a rival
difficulty. There is nothing in the evidence to show that the plaintiff did or could see
the displaced timber underneath the sleeper. The claim that he must have done so is
Later the hardships resulting from special exemptions inserted in contracts for a conclusion drawn from what is assumed to have been a probable condition of things
employment led to the discovery of a third basis for liability in an article of he French not before us, rather than a fair inference from the testimony. While the method of
Code making the possessor of any object answerable for damage done by it while in construction may have been known to the men who had helped build the road, it was
his charge. Our law having no counterpart of this article, applicable to every kind of otherwise with the plaintiff who had worked at this job less than two days. A man may
object, we need consider neither the theory growing out of it nor that of "professional easily walk along a railway without perceiving a displacement of the underlying
risk" more recently imposed by express legislation, but rather adopting the timbers. The foreman testified that he knew the state of the track on the day of the
interpretation of our Civil Code above given, find a rule for this case in the contractual accident and that it was then in good condition, and one Danridge, a witness for the
obligation. This contractual obligation, implied from the relation and perhaps so defendant, working on the same job, swore that he never noticed the depression in
inherent in its nature to be invariable by the parties, binds the employer to provide the track and never saw any bad place in it. The sagging of the track this plaintiff did
safe appliances for the use of the employee, thus closely corresponding to English perceive, but that was reported in his hearing to the foreman who neither promised
and American Law. On these principles it was the duty of the defendant to build and nor refused to repair it. His lack of caution in continuing at his work after noticing the
to maintain its track in reasonably sound condition, so as to protect its workingmen slight depression of the rail was not of so gross a nature as to constitute negligence,
from unnecessary danger. It is plain that in one respect or the other it failed in its duty, barring his recovery under the severe American rule. On this point we accept the
otherwise the accident could not have occurred; consequently the negligence of the conclusion of the trial judge who found as facts that "the plaintiff did not know the
defendant is established. cause of the one rail being lower than then other" and "it does not appear in this case
that the plaintiff knew before the accident occurred that the stringers and rails joined
Another contention of the defense is that the injury resulted to the plaintiff as a risk in the same place."
incident to his employment and, as such, one assumed by him. It is evident that this
can not be the case if the occurrence was due to the failure to repair the track or to Were we not disposed to agree with these findings they would, nevertheless, be
duly inspect, it for the employee is not presumed to have stipulated that the employer binding upon us, because not "plainly and manifestly against the weight of evidence,"
might neglect his legal duty. Nor may it be excused upon the ground that the as those words of section 497, paragraph 3 of the Code of Civil Procedure were
negligence leading to the accident was that of a fellow-servant of the injured man. It is interpreted by the Supreme Court of the United States in the De la Rama case (201
not apparent to us that the intervention of a third person can relieve the defendant U. S., 303).
from the performance of its duty nor impose upon the plaintiff the consequences of an
In respect of the second charge of negligence against the plaintiff, the judgment There are may cases in the supreme court of Spain in which the defendant was
below is not so specific. While the judge remarks that the evidence does not justify exonerated, but when analyzed they prove to have been decided either upon the
the finding that the car was pulled by means of a rope attached to the front end or to point that he was not negligent or that the negligence of the plaintiff was the
the rails upon it, and further that the circumstances in evidence make it clear that the immediate cause of the casualty or that the accident was due to casus fortuitus. Of
persons necessary to operate the car could not walk upon the plank between the rails the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No.
and that, therefore, it was necessary for the employees moving it to get hold upon it 70), in which a railway employee, standing on a car, was thrown therefrom and killed
as best they could, there is no specific finding upon the instruction given by the by the shock following the backing up of the engine. It was held that the management
defendant to its employees to walk only upon the planks, nor upon the necessity of of the train and engine being in conformity with proper rules of the company, showed
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. no fault on its part.
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 Of the second class are the decision of the 15th of January, the 19th of February, and
our inquiry. 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
While the plaintiff and his witnesses swear that not only were they not forbidden to breaking down of plaintiff's dam by the logs of the defendant impelled against it by the
proceed in this way, but were expressly directed by the foreman to do so, both the Tajo River, was held due to a freshet as a fortuitous cause.
officers of the company and three of the workmen testify that there was a general
prohibition frequently made known to all the gang against walking by the side of the The decision of the 7th of March, 1902, on which stress has been laid, rested on two
car, and the foreman swears that he repeated the prohibition before the starting of bases, one, that the defendant was not negligent, because expressly relieved by royal
this particular load. On this contradiction of proof we think that the preponderance is order from the common obligation imposed by the police law of maintaining a guard at
in favor of the defendant's contention to the extent of the general order being made the road crossing; the other, because the act of the deceased in driving over level
known to the workmen. If so, the disobedience of the plaintiff in placing himself in ground with unobstructed view in front of a train running at speed, with the engine
danger contributed in some degree to the injury as a proximate, although not as its whistle blowing was the determining cause of the accident. It is plain that the train
primary cause. This conclusion presents sharply the question, What effect is to be was doing nothing but what it had a right to do and that the only fault lay with the
given such an act of contributory negligence? Does it defeat a recovery, according to injured man. His negligence was not contributory, it was sole, and was of such an
the American rule, or is it to be taken only in reduction of damages? efficient nature that without it no catastrophe could have happened.

While a few of the American States have adopted to a greater or less extent the On the other hand, there are many cases reported in which it seems plain that the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act plaintiff sustaining damages was not free from contributory negligence; for instance,
contributed to his injury, provided his negligence was slight as compared with that of the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in
the defendant, and some others have accepted the theory of proportional damages, which the owner of a building was held liable for not furnishing protection to workmen
reducing the award to a plaintiff in proportion to his responsibility for the accident, yet engaged in hanging out flags, when the latter must have perceived beforehand the
the overwhelming weight of adjudication establishes the principle in American danger attending the work.
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 None of those cases define the effect to be given the negligence of a plaintiff which
Contributory Negligence.") 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 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: 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
Although the defendant's' negligence may have been the primary cause of man had the effect only of reducing the damages. The same principle was applied in
the injury complained of, yet an action for such injury can not be maintained the case of Recullet, November 10, 1888. and that of Laugier of the 11th of
if the proximate and immediate cause of the injury can be traced to the want November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor
of ordinary care and caution in the person injured; subject to this are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
qualification, which has grown up in recent years (having been first Responsibilite, 193, 198).
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 In the Canadian Province of Quebee, which has retained for the most part the French
avoided the consequences of the injured party's negligence. 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 The reason why, in cases of mutual concurring negligence, neither party can
Kings bench, otherwise known as the court of appeals, the highest authority in the maintain an action against the other, is, not the wrong of the one is set off
Dominion of Canada on points of French law, held that contributory negligence did against the wrong of the other; it that the law can not measure how much of
not exonerate the defendants whose fault had been the immediate cause of the the damage suffered is attributable to the plaintiff's own fault. If he were
accident, but entitled him to a reduction of damages. Other similar cases in the allowed to recover, it might be that he would obtain from the other party
provincial courts have been overruled by appellate tribunals made up of common law compensation for hiss own misconduct. (Heil vs. Glanding, 42 Penn. St.
judges drawn from other provinces, who have preferred to impose uniformally Rep., 493, 499.)
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 The parties being mutually in fault, there can be no appointment of
practice embodied in legislation; for instance, section 2 of article 2398 of the Code of damages. The law has no scales to determine in such cases whose
Portugal reads as follows: wrongdoing weighed most in the compound that occasioned the mischief.
(Railroad vs. Norton, 24 Penn. St. 565, 469.)
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 Experience with jury trials in negligence cases has brought American courts to review
reduced in the first case, and in the second case it shall be appropriated in to relax the vigor of the rule by freely exercising the power of setting aside verdicts
proportion to such fault or negligence as provided in paragraphs 1 and 2 of deemed excessive, through the device of granting new trials, unless reduced
section 2372. 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
And in article 1304 of the Austrian Code provides that the victim who is partly a moral logical basis and its judgment adjusted with greater nicety to the merits of the
changeable with the accident shall stand his damages in proportion to his fault, but litigants through the practice of offsetting their respective responsibilities. In the civil
when that proportion is incapable of ascertainment, he shall share the liability equally law system the desirable end is not deemed beyond the capacity of its tribunals.
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 Whatever may prove to be the doctrine finally adopted in Spain or in other countries
in admirality jurisdictions, whose principles are derived from the civil law, common under the stress and counter stress of novel schemers of legislation, we find the
fault in cases of collision have been disposed of not on the ground of contradictor theory of damages laid down in the judgment the most consistent with the history and
negligence, but on that of equal loss, the fault of the one part being offset against that the principals of our law in these Islands and with its logical development.
of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
The damage of both being added together and the sum equally divided, a decree is considered immediate causes of the accident. The test is simple. Distinction must be
entered in favor of the vessel sustaining the greater loss against the other for the between the accident and the injury, between the event itself, without which there
excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U. could have been no accident, and those acts of the victim not entering into it,
S., 97) 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
Exceptional practice appears to prevail in maritime law in other jurisdictions. The damages — that is, the shinking of the track and the sliding of the iron rails. To this
Spanish Code of Commerce, article 827, makes each vessel for its own damage event, the act of the plaintiff in walking by the side of the car did not contribute,
when both are the fault; this provision restricted to a single class of the maritime although it was an element of the damage which came to himself. Had the crosspiece
accidents, falls for short of a recognition of the principle of contributory negligence as been out of place wholly or partly thorough his act of omission of duty, the last would
understood in American Law, with which, indeed, it has little in common. This is a have been one of the determining causes of the event or accident, for which he would
plain from other articles of the same code; for instance, article 829, referring to have been responsible. Where he contributes to the principal occurrence, as one of
articles 826, 827, and 828, which provides: "In the cases above mentioned the civil its determining factors, he can not recover. Where, in conjunction with the
action of the owner against the person liable for the damage is reserved, as well as occurrence, he contributes only to his own injury, he may recover the amount that the
the criminal liability which may appear." defendant responsible for the event should pay for such injury, less a sum deemed a
suitable equivalent for his own imprudence.
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, Accepting, though with some hesitation, the judgment of the trial court, fixing the
which rendered difficult a nice balancing of responsibilities and which demanded an damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars,
inflexible standard as a safeguard against too ready symphaty for the injured. It was United States money, we deduct therefrom 2,500 pesos, the amount fairly attributable
assumed that an exact measure of several concurring faults was unattainable. 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.
G.R. No. L-30642 April 30, 1985 in paragraph 7 hereinabove, were left mercilessly to their fate,
notwithstanding the fact that up to then, a great many of them were
Rodolfo C. Pacampara for petitioners. still alive, entombed in the tunnels of the mine, but were not
rescued due to defendant PHILEX's decision to abandon rescue
operations, in utter disregard of its bounden legal and moral duties
Tito M. Villaluna for respondents. in the premises;

xxx xxx xxx

MAKASIAR, J.: 13. That defendant PHILEX not only violated the law and the rules
and regulations duly promulgated by the duly constituted authorities
This is a petition to review the order of the former Court of First Instance of Manila, as set out by the Special Committee above referred to, in their
Branch XIII, dated December 16, 1968 dismissing petitioners' complaint for damages Report of investigation, pages 7-13, Annex 'B' hereof, but also
on the ground of lack of jurisdiction. failed completely to provide its men working underground the
necessary security for the protection of their lives notwithstanding
Petitioners are the heirs of the deceased employees of Philex Mining Corporation the fact that it had vast financial resources, it having made, during
(hereinafter referred to as Philex), who, while working at its copper mines the year 1966 alone, a total operating income of P 38,220,254.00,
underground operations at Tuba, Benguet on June 28, 1967, died as a result of the or net earnings, after taxes of P19,117,394.00, as per its llth Annual
cave-in that buried them in the tunnels of the mine. Specifically, the complaint alleges Report for the year ended December 31, 1966, and with aggregate
that Philex, in violation of government rules and regulations, negligently and assets totalling P 45,794,103.00 as of December 31, 1966;
deliberately failed to take the required precautions for the protection of the lives of its
men working underground. Portion of the complaint reads: xxx xxx xxx

xxx xxx xxx (pp. 42-44, rec.)

9. That for sometime prior and up to June 28,1967, the defendant A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes
PHILEX, with gross and reckless negligence and imprudence and of action of petitioners based on an industrial accident are covered by the provisions
deliberate failure to take the required precautions for the due of the Workmen's Compensation Act (Act 3428, as amended by RA 772) and that the
protection of the lives of its men working underground at the time, former Court of First Instance has no jurisdiction over the case. Petitioners filed an
and in utter violation of the laws and the rules and regulations duly opposition dated May 27, 1968 to the said motion to dismiss claiming that the causes
promulgated by the Government pursuant thereto, allowed great of action are not based on the provisions of the Workmen's Compensation Act but on
amount of water and mud to accumulate in an open pit area at the the provisions of the Civil Code allowing the award of actual, moral and exemplary
mine above Block 43-S-1 which seeped through and saturated the damages, particularly:
600 ft. column of broken ore and rock below it, thereby exerting
tremendous pressure on the working spaces at its 4300 level, with Art. 2176. Whoever by act or omission causes damage to another,
the result that, on the said date, at about 4 o'clock in the afternoon, there being fault or negligence, is obliged to pay for the damage
with the collapse of all underground supports due to such done. Such fault or negligence, if there is no pre- existing
enormous pressure, approximately 500,000 cubic feet of broken contractual relation between the parties, is called a quasi-delict and
ores rocks, mud and water, accompanied by surface boulders, is governed by the provisions of this Chapter.
blasted through the tunnels and flowed out and filled in, in a matter
of approximately five (5) minutes, the underground workings, ripped
timber supports and carried off materials, machines and equipment Art. 2178. The provisions of articles 1172 to 1174 are also
which blocked all avenues of exit, thereby trapping within its tunnels applicable to a quasi-delict.
of all its men above referred to, including those named in the next
preceding paragraph, represented by the plaintiffs herein; (b) Art. 1173—The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
10. That out of the 48 mine workers who were then working at obligation and corresponds with the circumstances of the persons,
defendant PHILEX's mine on the said date, five (5) were able to of the time and of the place. When negligence shows bad faith, the
escape from the terrifying holocaust; 22 were rescued within the provisions of Articles 1171 and 2201, paragraph 2 shall apply.
next 7 days; and the rest, 21 in number, including those referred to
Art. 2201. x x x x x x x x x the provisions of the Workmen's Compensation Act. They point out that the complaint
alleges gross and brazen negligence on the part of Philex in failing to take the
In case of fraud, bad faith, malice or wanton attitude, the obligor necessary security for the protection of the lives of its employees working
shall be responsible for all damages which may be reasonably underground. They also assert that since Philex opted to file a motion to dismiss in
attributed to the non-performance of the obligation. the court a quo, the allegations in their complaint including those contained in the
annexes are deemed admitted.
Art. 2231. In quasi-delicts, exemplary damages may be granted if
the defendant acted with gross negligence. In the second assignment of error, petitioners asseverate that respondent Judge
failed to see the distinction between the claims for compensation under the
Workmen's Compensation Act and the claims for damages based on gross
After a reply and a rejoinder thereto were filed, respondent Judge issued an order negligence of Philex under the Civil Code. They point out that workmen's
dated June 27, 1968 dismissing the case on the ground that it falls within the compensation refers to liability for compensation for loss resulting from injury,
exclusive jurisdiction of the Workmen's Compensation Commission. On petitioners' disability or death of the working man through industrial accident or disease, without
motion for reconsideration of the said order, respondent Judge, on September 23, regard to the fault or negligence of the employer, while the claim for damages under
1968, reconsidered and set aside his order of June 27, 1968 and allowed Philex to file the Civil Code which petitioners pursued in the regular court, refers to the employer's
an answer to the complaint. Philex moved to reconsider the aforesaid order which liability for reckless and wanton negligence resulting in the death of the employees
was opposed by petitioners. and for which the regular court has jurisdiction to adjudicate the same.

On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction On the other hand, Philex asserts that work-connected injuries are compensable
and ruled that in accordance with the established jurisprudence, the Workmen's exclusively under the provisions of Sections 5 and 46 of the Workmen's
Compensation Commission has exclusive original jurisdiction over damage or Compensation Act, which read:
compensation claims for work-connected deaths or injuries of workmen or
employees, irrespective of whether or not the employer was negligent, adding that if
the employer's negligence results in work-connected deaths or injuries, the employer SEC. 5. Exclusive right to compensation.—The rights and remedies
shall, pursuant to Section 4-A of the Workmen's Compensation Act, pay additional granted by this Act to an employee by reason of a personal injury
compensation equal to 50% of the compensation fixed in the Act. entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil
Petitioners thus filed the present petition. Code and other laws because of said injury ...

In their brief, petitioners raised the following assignment of errors: SEC. 46. Jurisdiction.— The Workmen's Compensation
Commissioner shall have exclusive jurisdiction to hear and decide
I claims for compensation under the Workmen's Compensation Act,
subject to appeal to the Supreme Court, ...
THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS-
PETITIONERS' COMPLAINT FOR LACK OF JURISDICTION. Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was
held that "all claims of workmen against their employer for damages due to accident
II suffered in the course of employment shall be investigated and adjudicated by the
Workmen's Compensation Commission," subject to appeal to the Supreme Court.

THE LOWER COURT ERRED IN FAILING TO CONSIDER THE


CLEAR DISTINCTION BETWEEN CLAIMS FOR DAMAGES Philex maintains that the fact that an employer was negligent, does not remove the
UNDER THE CIVIL CODE AND CLAIMS FOR COMPENSATION case from the exclusive character of recoveries under the Workmen's Compensation
UNDER THE WORKMEN'S COMPENSATION ACT. Act; because Section 4-A of the Act provides an additional compensation in case the
employer fails to comply with the requirements of safety as imposed by law to prevent
accidents. In fact, it points out that Philex voluntarily paid the compensation due the
A petitioners and all the payments have been accepted in behalf of the deceased
miners, except the heirs of Nazarito Floresca who insisted that they are entitled to a
In the first assignment of error, petitioners argue that the lower court has jurisdiction greater amount of damages under the Civil Code.
over the cause of action since the complaint is based on the provisions of the Civil
Code on damages, particularly Articles 2176, 2178, 1173, 2201 and 2231, and not on
In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. and moral) in the total amount of eight hundred twenty-five thousand (P825,000.00)
Edgardo Angara, now President of the University of the Philippines, Justice Manuel pesos. Petitioners did not invoke the provisions of the Workmen's Compensation Act
Lazaro, as corporate counsel and Assistant General Manager of the GSIS Legal to entitle them to compensation thereunder. In fact, no allegation appeared in the
Affairs Department, and Commissioner on Elections, formerly UP Law Center Director complaint that the employees died from accident arising out of and in the course of
Froilan Bacungan, appeared as amici curiae and thereafter, submitted their their employments. The complaint instead alleges gross and reckless negligence and
respective memoranda. deliberate failure on the part of Philex to protect the lives of its workers as a
consequence of which a cave-in occurred resulting in the death of the employees
The issue to be resolved as WE stated in the resolution of November 26, 1976, is: working underground. Settled is the rule that in ascertaining whether or not the cause
of action is in the nature of workmen's compensation claim or a claim for damages
pursuant to the provisions of the Civil Code, the test is the averments or allegations in
Whether the action of an injured employee or worker or that of his the complaint (Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
heirs in case of his death under the Workmen's Compensation Act
is exclusive, selective or cumulative, that is to say, whether his or
his heirs' action is exclusively restricted to seeking the limited In the present case, there exists between Philex and the deceased employees a
compensation provided under the Workmen's Compensation Act or contractual relationship. The alleged gross and reckless negligence and deliberate
whether they have a right of selection or choice of action between failure that amount to bad faith on the part of Philex, constitute a breach of contract
availing of the worker's right under the Workmen's Compensation for which it may be held liable for damages. The provisions of the Civil Code on cases
Act and suing in the regular courts under the Civil Code for higher of breach of contract when there is fraud or bad faith, read:
damages (actual, moral and/or exemplary) from the employer by
virtue of negligence (or fault) of the employer or of his other Art. 2232. In contracts and quasi-contracts, the court may award
employees or whether they may avail cumulatively of both actions, exemplary damages if the defendant acted in a wanton, fraudulent,
i.e., collect the limited compensation under the Workmen's reckless, oppressive or malevolent manner.
Compensation Act and sue in addition for damages in the regular
courts. Art. 2201. In contracts and quasi-contracts, the damages for which
the obligor who acted in good faith is able shall be those that are
There are divergent opinions in this case. Justice Lazaro is of the opinion that an the natural and probable consequences of the breach of the
injured employee or worker, or the heirs in case of his death, may initiate a complaint obligation, and which the parties have foreseen or could have
to recover damages (not compensation under the Workmen's Compensation Act) with reasonably foreseen at the time the obligation was constituted.
the regular court on the basis of negligence of an employer pursuant to the Civil Code
provisions. Atty. Angara believes otherwise. He submits that the remedy of an injured In cases of fraud, bad faith, malice or wanton attitude, the obligor
employee for work-connected injury or accident is exclusive in accordance with shall be responsible for all damages which may be reasonably
Section 5 of the Workmen's Compensation Act, while Atty. Bacungan's position is that attributed to the non-performance of the obligation.
the action is selective. He opines that the heirs of the employee in case of his death
have a right of choice to avail themselves of the benefits provided under the
Workmen's Compensation Act or to sue in the regular court under the Civil Code for Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of
higher damages from the employer by virtue of negligence of the latter. Atty. Bocobo's damages, as assessed by the court.
stand is the same as that of Atty. Bacungan and adds that once the heirs elect the
remedy provided for under the Act, they are no longer entitled to avail themselves of The rationale in awarding compensation under the Workmen's Compensation Act
the remedy provided for under the Civil Code by filing an action for higher damages in differs from that in giving damages under the Civil Code. The compensation acts are
the regular court, and vice versa. based on a theory of compensation distinct from the existing theories of damages,
payments under the acts being made as compensation and not as damages (99
On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a C.J.S. 53). Compensation is given to mitigate the harshness and insecurity of
motion to dismiss on the ground that they have amicably settled their claim with industrial life for the workman and his family. Hence, an employer is liable whether
respondent Philex. In the resolution of September 7, 1978, WE dismissed the petition negligence exists or not since liability is created by law. Recovery under the Act is not
only insofar as the aforesaid petitioners are connected, it appearing that there are based on any theory of actionable wrong on the part of the employer (99 C.J.S. 36).
other petitioners in this case.
In other words, under the compensation acts, the employer is liable to pay
WE hold that the former Court of First Instance has jurisdiction to try the case, compensation benefits for loss of income, as long as the death, sickness or injury is
work-connected or work-aggravated, even if the death or injury is not due to the fault
of the employer (Murillo vs. Mendoza, 66 Phil. 689). On the other hand, damages are
It should be underscored that petitioners' complaint is not for compensation based on awarded to one as a vindication of the wrongful invasion of his rights. It is the
the Workmen's Compensation Act but a complaint for damages (actual, exemplary
indemnity recoverable by a person who has sustained injury either in his person, In Pacaña WE said:
property or relative rights, through the act or default of another (25 C.J.S. 452).
In the analogous case of Esguerra vs. Munoz Palma, involving the
The claimant for damages under the Civil Code has the burden of proving the causal application of Section 6 of the Workmen's Compensation Act on the
relation between the defendant's negligence and the resulting injury as well as the injured workers' right to sue third- party tortfeasors in the regular
damages suffered. While under the Workmen's Compensation Act, there is a courts, Mr. Justice J.B.L. Reyes, again speaking for the Court,
presumption in favor of the deceased or injured employee that the death or injury is pointed out that the injured worker has the choice of remedies but
work-connected or work-aggravated; and the employer has the burden to prove cannot pursue both courses of action simultaneously and thus
otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551; balanced the relative advantage of recourse under the Workmen's
Maria Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228). Compensation Act as against an ordinary action.

The claim of petitioners that the case is not cognizable by the Workmen's As applied to this case, petitioner Esguerra cannot maintain his
Compensation Commission then, now Employees Compensation Commission, is action for damages against the respondents (defendants below),
strengthened by the fact that unlike in the Civil Code, the Workmen's Compensation because he has elected to seek compensation under the
Act did not contain any provision for an award of actual, moral and exemplary Workmen's Compensation Law, and his claim (case No. 44549 of
damages. What the Act provided was merely the right of the heirs to claim limited the Compensation Commission) was being processed at the time
compensation for the death in the amount of six thousand (P6,000.00) pesos plus he filed this action in the Court of First Instance. It is argued for
burial expenses of two hundred (P200.00) pesos, and medical expenses when petitioner that as the damages recoverable under the Civil Code
incurred (Sections 8, 12 and 13, Workmen's Compensation Act), and an additional are much more extensive than the amounts that may be awarded
compensation of only 50% if the complaint alleges failure on the part of the employer under the Workmen's Compensation Act, they should not be
to "install and maintain safety appliances or to take other precautions for the deemed incompatible. As already indicated, the injured laborer was
prevention of accident or occupational disease" (Section 4-A, Ibid.). In the case at initially free to choose either to recover from the employer the fixed
bar, the amount sought to be recovered is over and above that which was provided amounts set by the Compensation Law or else, to prosecute an
under the Workmen's Compensation Act and which cannot be granted by the ordinary civil action against the tortfeasor for higher damages.
Commission. While perhaps not as profitable, the smaller indemnity obtainable
by the first course is balanced by the claimant's being relieved of
Moreover, under the Workmen's Compensation Act, compensation benefits should be the burden of proving the causal connection between the
paid to an employee who suffered an accident not due to the facilities or lack of defendant's negligence and the resulting injury, and of having to
facilities in the industry of his employer but caused by factors outside the industrial establish the extent of the damage suffered; issues that are apt to
plant of his employer. Under the Civil Code, the liability of the employer, depends on be troublesome to establish satisfactorily. Having staked his
breach of contract or tort. The Workmen's Compensation Act was specifically enacted fortunes on a particular remedy, petitioner is precluded from
to afford protection to the employees or workmen. It is a social legislation designed to pursuing the alternate course, at least until the prior claim is
give relief to the workman who has been the victim of an accident causing his death rejected by the Compensation Commission. Anyway, under the
or ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379). proviso of Section 6 aforequoted, if the employer Franklin Baker
Company recovers, by derivative action against the alleged
tortfeasors, a sum greater than the compensation he may have
WE now come to the query as to whether or not the injured employee or his heirs in paid the herein petitioner, the excess accrues to the latter.
case of death have a right of selection or choice of action between availing
themselves of the worker's right under the Workmen's Compensation Act and suing in
the regular courts under the Civil Code for higher damages (actual, moral and Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582),
exemplary) from the employers by virtue of that negligence or fault of the employers applies to third-party tortfeasor, said rule should likewise apply to the employer-
or whether they may avail themselves cumulatively of both actions, i.e., collect the tortfeasor.
limited compensation under the Workmen's Compensation Act and sue in addition for
damages in the regular courts. Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the
petition has been dismissed in the resolution of September 7, 1978 in view of the
In disposing of a similar issue, this Court in Pacana vs. Cebu Autobus Company, 32 amicable settlement reached by Philex and the said heirs.
SCRA 442, ruled that an injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmen's Compensation Act or to prosecute With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
an ordinary civil action against the tortfeasor for higher damages but he cannot dated May 14, 1968 before the court a quo, that the heirs of the deceased
pursue both courses of action simultaneously. employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and
Saturnino Martinez submitted notices and claims for compensation to the Regional
Office No. 1 of the then Department of Labor and all of them have been paid in full as disposition of private property and equitably diffuse property ownership and profits
of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid "establish, maintain and ensure adequate social services in, the field
in installments (pp. 106-107, rec.). Such allegation was admitted by herein petitioners of education, health, housing, employment, welfare and social security to guarantee
in their opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) in the enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II,
the lower court, but they set up the defense that the claims were filed under the 1973 Constitution); "... afford protection to labor, ... and regulate the relations between
Workmen's Compensation Act before they learned of the official report of the workers and employers ..., and assure the rights of workers to ... just and humane
committee created to investigate the accident which established the criminal conditions of work" (Sec. 9, Art. II, 1973 Constitution, emphasis supplied).
negligence and violation of law by Philex, and which report was forwarded by the
Director of Mines to the then Executive Secretary Rafael Salas in a letter dated The foregoing constitutional guarantees in favor of labor institutionalized in Section 9
October 19, 1967 only (p. 76, rec.). of Article 11 of the 1973 Constitution and re-stated as a declaration of basic policy in
Article 3 of the New Labor Code, thus:
WE hold that although the other petitioners had received the benefits under the
Workmen's Compensation Act, such may not preclude them from bringing an action Art. 3. Declaration of basic policy.—The State shall afford
before the regular court because they became cognizant of the fact that Philex has protection to labor, promote full employment, ensure equal work
been remiss in its contractual obligations with the deceased miners only after opportunities regardless of sex, race or creed, and regulate the
receiving compensation under the Act. Had petitioners been aware of said violation of relations between workers and employers. The State shall assure
government rules and regulations by Philex, and of its negligence, they would not the rights of workers to self-organization, collective bargaining,
have sought redress under the Workmen's Compensation Commission which security of tenure, and just and humane conditions of work.
awarded a lesser amount for compensation. The choice of the first remedy was based (emphasis supplied).
on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent
choice. The case should therefore be remanded to the lower court for further
proceedings. However, should the petitioners be successful in their bid before the The aforestated constitutional principles as implemented by the aforementioned
lower court, the payments made under the Workmen's Compensation Act should be articles of the New Civil Code cannot be impliedly repealed by the restrictive
deducted from the damages that may be decreed in their favor. provisions of Article 173 of the New Labor Code. Section 5 of the Workmen's
Compensation Act (before it was amended by R.A. No. 772 on June 20, 1952),
predecessor of Article 173 of the New Labor Code, has been superseded by the
B aforestated provisions of the New Civil Code, a subsequent law, which took effect on
August 30, 1950, which obey the constitutional mandates of social justice enhancing
Contrary to the perception of the dissenting opinion, the Court does not legislate in as they do the rights of the workers as against their employers. Article 173 of the New
the instant case. The Court merely applies and gives effect to the constitutional Labor Code seems to diminish the rights of the workers and therefore collides with
guarantees of social justice then secured by Section 5 of Article 11 and Section 6 of the social justice guarantee of the Constitution and the liberal provisions of the New
Article XIV of the 1935 Constitution, and now by Sections 6, 7, and 9 of Article 11 of Civil Code.
the DECLARATION OF PRINCIPLES AND STATE POLICIES of the 1973
Constitution, as amended, and as implemented by Articles 2176, 2177, 2178, 1173, The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the
2201, 2216, 2231 and 2232 of the New Civil Code of 1950. 1973 Constitution are statements of legal principles to be applied and enforced by the
courts. Mr. Justice Robert Jackson in the case of West Virginia State Board of
To emphasize, the 1935 Constitution declares that: Education vs. Barnette, with characteristic eloquence, enunciated:

Sec. 5. The promotion of social justice to insure the well-being and The very purpose of a Bill of Rights was to withdraw certain
economic security of all the people should be the concern of the subjects from the vicissitudes of political controversy, to place them
State (Art. II). beyond the reach of majorities and officials and to establish them
as legal principles to be applied by the courts. One's right to life,
Sec. 6. The State shall afford protection to labor, especially to liberty, and property, to free speech, a free press, freedom of
working women, and minors, and shall regulate the relations worship and assembly, and other fundamental rights may not be
between landowner and tenant, and between labor and capital in submitted to vote; they depend on the outcome of no elections (319
industry and in agriculture. The State may provide for compulsory U.S. 625, 638, 87 L.ed. 1638, emphasis supplied).
arbitration (Art. XIV).
In case of any doubt which may be engendered by Article 173 of the New Labor
The 1973 Constitution likewise commands the State to "promote social justice to Code, both the New Labor Code and the Civil Code direct that the doubts should be
insure the dignity, welfare, and security of all the people "... regulate the use ... and resolved in favor of the workers and employees.
Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. occurs, should such law be more favorable to them (As amended
442, as amended, promulgated on May 1, 1974, but which took effect six months by section 5 of Republic Act No. 772).
thereafter, provides that "all doubts in the implementation and interpretation of the
provisions of this Code, including its implementing rules and regulations, shall be Article 173 of the New Labor Code does not repeal expressly nor impliedly the
resolved in favor of labor" (Art. 2, Labor Code). applicable provisions of the New Civil Code, because said Article 173 provides:

Article 10 of the New Civil Code states: "In case of doubt in the interpretation or Art. 173. Exclusiveness of liability.- Unless otherwise provided, the
application of laws, it is presumed that the law-making body intended right and justice liability of the State Insurance Fund under this Title shall be
to prevail. " exclusive and in place of all other liabilities of the employer to the
employee, his dependents or anyone otherwise entitled to receive
More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of damages on behalf of the employee or his dependents. The
doubt, all labor legislation and all labor contracts shall be construed in favor of the payment of compensation under this Title shall bar the recovery of
safety and decent living of the laborer." benefits as provided for in Section 699 of the Revised
Administrative Code, Republic Act Numbered Eleven hundred sixty-
Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 one, as amended, Commonwealth Act Numbered One hundred
of the Workmen's Compensation Act provided: eighty- six, as amended, Commonwealth Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight
hundred Sixty-four, as amended, and other laws whose benefits are
Sec. 5. Exclusive right to compensation.- The rights and remedies administered by the System during the period of such payment for
granted by this Act to an employee by reason of a personal injury the same disability or death, and conversely (emphasis supplied).
entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil As above-quoted, Article 173 of the New Labor Code expressly repealed only Section
Code and other laws, because of said injury (emphasis supplied). 699 of the Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186,
as amended, R.A. No. 610, as amended, R.A. No. 4864, as amended, and all other
laws whose benefits are administered by the System (referring to the GSIS or SSS).
Employers contracting laborecsrs in the Philippine Islands for work
outside the same may stipulate with such laborers that the
remedies prescribed by this Act shall apply exclusively to injuries Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of
received outside the Islands through accidents happening in and the New Labor Code does not even remotely, much less expressly, repeal the New
during the performance of the duties of the employment; and all Civil Code provisions heretofore quoted.
service contracts made in the manner prescribed in this section
shall be presumed to include such agreement. It is patent, therefore, that recovery under the New Civil Code for damages arising
from negligence, is not barred by Article 173 of the New Labor Code. And the
Only the second paragraph of Section 5 of the Workmen's Compensation Act No. damages recoverable under the New Civil Code are not administered by the System
3428, was amended by Commonwealth Act No. 772 on June 20, 1952, thus: provided for by the New Labor Code, which defines the "System" as referring to the
Government Service Insurance System or the Social Security System (Art. 167 [c], [d]
and [e] of the New Labor Code).
Sec. 5. Exclusive right to compensation.- The rights and remedies
granted by this Act to an employee by reason of a personal injury
entitling him to compensation shall exclude all other rights and Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court
remedies accruing to the employee, his personal representatives, form part of the law of the land.
dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury. Article 8 of the New Civil Code provides:

Employers contracting laborers in the Philippine Islands for work Art. 8. Judicial decisions applying or interpreting the laws or the
outside the same shall stipulate with such laborers that the Constitution shall form a part of the legal system of the Philippines.
remedies prescribed by this Act shall apply to injuries received
outside the Island through accidents happening in and during the The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled:
performance of the duties of the employment. Such stipulation shall
not prejudice the right of the laborers to the benefits of the
Workmen's Compensation Law of the place where the accident
Article 8 of the Civil Code of the Philippines decrees that judicial from his gross or wanton fault or failure to provide safety devices for the protection of
decisions applying or interpreting the laws or the Constitution form his employees or workers against the dangers which are inherent in underground
part of this jurisdiction's legal system. These decisions, although in mining, is to deprive the deceased worker and his heirs of the right to recover
themselves not laws, constitute evidence of what the laws mean. indemnity for the loss of the life of the worker and the consequent loss to his family
The application or interpretation placed by the Court upon a law is without due process of law. The dissent in effect condones and therefore encourages
part of the law as of the date of the enactment of the said law since such gross or wanton neglect on the part of the employer to comply with his legal
the Court's application or interpretation merely establishes the obligation to provide safety measures for the protection of the life, limb and health of
contemporaneous legislative intent that the construed law purports his worker. Even from the moral viewpoint alone, such attitude is un-Christian.
to carry into effect" (65 SCRA 270, 272-273 [1975]).
It is therefore patent that giving effect to the social justice guarantees of the
WE ruled that judicial decisions of the Supreme Court assume the same authority as Constitution, as implemented by the provisions of the New Civil Code, is not an
the statute itself (Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763). exercise of the power of law-making, but is rendering obedience to the mandates of
the fundamental law and the implementing legislation aforementioned.
The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before
and after it was amended by Commonwealth Act No. 772 on June 20, 1952, limited The Court, to repeat, is not legislating in the instant case.
the right of recovery in favor of the deceased, ailing or injured employee to the
compensation provided for therein. Said Section 5 was not accorded controlling It is axiomatic that no ordinary statute can override a constitutional provision.
application by the Supreme Court in the 1970 case of Pacana vs. Cebu Autobus
Company (32 SCRA 442) when WE ruled that an injured worker has a choice of
either to recover from the employer the fixed amount set by the Workmen's The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the
Compensation Act or to prosecute an ordinary civil action against the tortfeasor for New Labor Code subvert the rights of the petitioners as surviving heirs of the
greater damages; but he cannot pursue both courses of action simultaneously. Said deceased mining employees. Section 5 of the Workmen's Compensation Act and
Pacana case penned by Mr. Justice Teehankee, applied Article 1711 of the Civil Article 173 of the New Labor Code are retrogressive; because they are a throwback
Code as against the Workmen's Compensation Act, reiterating the 1969 ruling in the to the obsolete laissez-faire doctrine of Adam Smith enunciated in 1776 in his treatise
case of Valencia vs. Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958 Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964), which has been
case of Esguerra vs. Munoz Palma (104 Phil. 582), both penned by Justice J.B.L. discarded soon after the close of the 18th century due to the Industrial Revolution that
Reyes. Said Pacana case was concurred in by Justices J.B.L. Reyes, Dizon, generated the machines and other mechanical devices (beginning with Eli Whitney's
Makalintal, Zaldivar, Castro, Fernando and Villamor. cotton gin of 1793 and Robert Fulton's steamboat of 1807) for production and
transportation which are dangerous to life, limb and health. The old socio-political-
economic philosophy of live-and-let-live is now superdesed by the benign Christian
Since the first sentence of Article 173 of the New Labor Code is merely a re- shibboleth of live-and-help others to live. Those who profess to be Christians should
statement of the first paragraph of Section 5 of the Workmen's Compensation Act, as not adhere to Cain's selfish affirmation that he is not his brother's keeper. In this our
amended, and does not even refer, neither expressly nor impliedly, to the Civil Code civilization, each one of us is our brother's keeper. No man is an island. To assert
as Section 5 of the Workmen's Compensation Act did, with greater reason said Article otherwise is to be as atavistic and ante-deluvian as the 1837 case of Prisley vs.
173 must be subject to the same interpretation adopted in the cases of Pacana, Fowler (3 MN 1,150 reprint 1030) invoked by the dissent, The Prisley case was
Valencia and Esguerra aforementioned as the doctrine in the aforesaid three (3) decided in 1837 during the era of economic royalists and robber barons of America.
cases is faithful to and advances the social justice guarantees enshrined in both the Only ruthless, unfeeling capitalistics and egoistic reactionaries continue to pay
1935 and 1973 Constitutions. obeisance to such un-Christian doctrine. The Prisley rule humiliates man and
debases him; because the decision derisively refers to the lowly worker as "servant"
It should be stressed likewise that there is no similar provision on social justice in the and utilizes with aristocratic arrogance "master" for "employer." It robs man of his
American Federal Constitution, nor in the various state constitutions of the American inherent dignity and dehumanizes him. To stress this affront to human dignity, WE
Union. Consequently, the restrictive nature of the American decisions on the only have to restate the quotation from Prisley, thus: "The mere relation of the master
Workmen's Compensation Act cannot limit the range and compass of OUR and the servant never can imply an obligation on the part of the master to take more
interpretation of our own laws, especially Article 1711 of the New Civil Code, vis-a-vis care of the servant than he may reasonably be expected to do himself." This is the
Article 173 of the New Labor Code, in relation to Section 5 of Article II and Section 6 very selfish doctrine that provoked the American Civil War which generated so much
of Article XIV of the 1935 Constitution then, and now Sections 6, 7 and 9 of the hatred and drew so much precious blood on American plains and valleys from 1861
Declaration of Principles and State Policies of Article II of the 1973 Constitution. to 1864.

The dissent seems to subordinate the life of the laborer to the property rights of the "Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of
employer. The right to life is guaranteed specifically by the due process clause of the the law insures man's survival and ennobles him. In the words of Shakespeare, "the
Constitution. To relieve the employer from liability for the death of his workers arising letter of the law killeth; its spirit giveth life."
C protection of the life, limb and health of the workers. Under either Section 5 or Article
173, the employer remains liable to pay compensation benefits to the employee
It is curious that the dissenting opinion clings to the myth that the courts cannot whose death, ailment or injury is work-connected, even if the employer has faithfully
legislate. and diligently furnished all the safety measures and contrivances decreed by the law
to protect the employee.
That myth had been exploded by Article 9 of the New Civil Code, which provides that
"No judge or court shall decline to render judgment by reason of the silence, obscurity The written word is no longer the "sovereign talisman." In the epigrammatic language
or insufficiency of the laws. " of Mr. Justice Cardozo, "the law has outgrown its primitive stage of formalism when
the precise word was the sovereign talisman, and every slip was fatal" (Wood vs. Duff
Gordon 222 NW 88; Cardozo, The Nature of the Judicial Process 100). Justice
Hence, even the legislator himself, through Article 9 of the New Civil Code, Cardozo warned that: "Sometimes the conservatism of judges has threatened for an
recognizes that in certain instances, the court, in the language of Justice Holmes, "do interval to rob the legislation of its efficacy. ... Precedents established in those items
and must legislate" to fill in the gaps in the law; because the mind of the legislator, like exert an unhappy influence even now" (citing Pound, Common Law and Legislation
all human beings, is finite and therefore cannot envisage all possible cases to which 21 Harvard Law Review 383, 387).
the law may apply Nor has the human mind the infinite capacity to anticipate all
situations.
Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted,
although with a cautionary undertone: "that judges do and must legislate, but they can
But about two centuries before Article 9 of the New Civil Code, the founding fathers of do so only interstitially they are confined from molar to molecular motions" (Southern
the American Constitution foresaw and recognized the eventuality that the courts may Pacific Company vs. Jensen, 244 US 204 1917). And in the subsequent case of
have to legislate to supply the omissions or to clarify the ambiguities in the American Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845, 852- 853), Justice
Constitution and the statutes. Holmes pronounced:

'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be The great ordinances of the Constitution do not establish and divide
justified but denies that the power of the Judiciary to nullify statutes may give rise to fields of black and white. Even the more specific of them are found
Judicial tyranny (The Federalist, Modern Library, pp. 503-511, 1937 ed.). Thomas to terminate in a penumbra shading gradually from one extreme to
Jefferson went farther to concede that the court is even independent of the Nation the other. x x x. When we come to the fundamental distinctions it is
itself (A.F.L. vs. American Sash Company, 1949 335 US 538). still more obvious that they must be received with a certain latitude
or our government could not go on.
Many of the great expounders of the American Constitution likewise share the same
view. Chief Justice Marshall pronounced: "It is emphatically the province and duty of To make a rule of conduct applicable to an individual who but for
the Judicial department to say what the law is (Marbury vs. Madison I Cranch 127 such action would be free from it is to legislate yet it is what the
1803), which was re-stated by Chief Justice Hughes when he said that "the judges do whenever they determine which of two competing
Constitution is what the judge says it is (Address on May 3, 1907, quoted by principles of policy shall prevail.
President Franklin Delano Roosevelt on March 9, 1937). This was reiterated by
Justice Cardozo who pronounced that "No doubt the limits for the judge are narrower.
He legislates only between gaps. He fills the open spaces in the law. " (The Nature of xxx xxx xxx
the Judicial Process, p. 113). In the language of Chief Justice Harlan F. Stone, "The
only limit to the judicial legislation is the restraint of the judge" (U.S. vs. Butler 297 It does not seem to need argument to show that however we may
U.S. 1 Dissenting Opinion, p. 79), which view is also entertained by Justice disguise it by veiling words we do not and cannot carry out the
Frankfurter and Justice Robert Jackson. In the rhetoric of Justice Frankfurter, "the distinction between legislative and executive action with
courts breathe life, feeble or strong, into the inert pages of the Constitution and all mathematical precision and divide the branches into waterlight
statute books." compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires.
It should be stressed that the liability of the employer under Section 5 of the
Workmen's Compensation Act or Article 173 of the New Labor Code is limited to True, there are jurists and legal writers who affirm that judges should not legislate, but
death, ailment or injury caused by the nature of the work, without any fault on the part grudgingly concede that in certain cases judges do legislate. They criticize the
of the employers. It is correctly termed no fault liability. Section 5 of the Workmen's assumption by the courts of such law-making power as dangerous for it may
Compensation Act, as amended, or Article 173 of the New Labor Code, does not degenerate into Judicial tyranny. They include Blackstone, Jeremy Bentham, Justice
cover the tortious liability of the employer occasioned by his fault or culpable Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald Dworkin, Rolf
negligence in failing to provide the safety devices required by the law for the Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or legal
commentators, who either deny the power of the courts to legislate in-between gaps social justice for the working man. The law fixing maximum hours of labor was
of the law, or decry the exercise of such power, have not pointed to examples of the invalidated. Justice Holmes was vindicated finally in 1936 in the case of West Coast
exercise by the courts of such law-making authority in the interpretation and Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American Supreme Court
application of the laws in specific cases that gave rise to judicial tyranny or upheld the rights of workers to social justice in the form of guaranteed minimum wage
oppression or that such judicial legislation has not protected public interest or for women and minors, working hours not exceeding eight (8) daily, and maternity
individual welfare, particularly the lowly workers or the underprivileged. leave for women employees.

On the other hand, there are numerous decisions interpreting the Bill of Rights and The power of judicial review and the principle of separation of powers as well as the
statutory enactments expanding the scope of such provisions to protect human rights. rule on political questions have been evolved and grafted into the American
Foremost among them is the doctrine in the cases of Miranda vs. Arizona (384 US Constitution by judicial decisions (Marbury vs. Madison, supra Coleman vs. Miller,
436 1964), Gideon vs. Wainright (372 US 335), Escubedo vs. Illinois (378 US 478), 307 US 433, 83 L. ed. 1385; Springer vs. Government, 277 US 210-212, 72 L. ed.
which guaranteed the accused under custodial investigation his rights to remain silent 852, 853).
and to counsel and to be informed of such rights as even as it protects him against
the use of force or intimidation to extort confession from him. These rights are not It is noteworthy that Justice Black, who seems to be against judicial legislation,
found in the American Bill of Rights. These rights are now institutionalized in Section penned a separate concurring opinion in the case of Coleman vs. Miller, supra,
20, Article IV of the 1973 Constitution. Only the peace-and-order adherents were affirming the doctrine of political question as beyond the ambit of judicial review.
critical of the activism of the American Supreme Court led by Chief Justice Earl There is nothing in both the American and Philippine Constitutions expressly
Warren. providing that the power of the courts is limited by the principle of separation of
powers and the doctrine on political questions. There are numerous cases
Even the definition of Identical offenses for purposes of the double jeopardy provision in Philippine jurisprudence applying the doctrines of separation of powers and political
was developed by American judicial decisions, not by amendment to the Bill of Rights questions and invoking American precedents.
on double jeopardy (see Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268).
And these judicial decisions have been re-stated in Section 7 of Rule 117 of the 1985 Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions
Rules on Criminal Procedure, as well as in Section 9 of Rule 117 of the 1964 Revised expressly vest in the Supreme Court the power to review the validity or
Rules of Court. In both provisions, the second offense is the same as the first offense constitutionality of any legislative enactment or executive act.
if the second offense is an attempt to commit the first or frustration thereof or
necessarily includes or is necessarily included in the first offense.
WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY
REVERSED AND SET ASIDE AND THE CASE IS REMANDED TO IT FOR
The requisites of double jeopardy are not spelled out in the Bill of Rights. They were FURTHER PROCEEDINGS. SHOULD A GREATER AMOUNT OF DAMAGES BE
also developed by judicial decisions in the United States and in the Philippines even DECREED IN FAVOR OF HEREIN PETITIONERS, THE PAYMENTS ALREADY
before people vs. Ylagan (58 Phil. 851-853). MADE TO THEM PURSUANT TO THE WORKMEN'S COMPENSATION ACT SHALL
BE DEDUCTED. NO COSTS.
Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson
(163 US 537) as securing to the Negroes equal but separate facilities, which doctrine SO ORDERED.
was revoked in the case of Brown vs. Maryland Board of Education (349 US 294),
holding that the equal protection clause means that the Negroes are entitled to attend
the same schools attended by the whites-equal facilities in the same school-which Fernando, C.J., Teehankee, Plana, Escolin, De la Fuente, Cuevas and Alampay JJ.,
was extended to public parks and public buses. concur.

De-segregation, not segregation, is now the governing principle. Concepcion, Jr., J., is on leave.

Among other examples, the due process clause was interpreted in the case of People Abad Santos and Relova, JJ., took no part.
vs. Pomar (46 Phil. 440) by a conservative, capitalistic court to invalidate a law
granting maternity leave to working women-according primacy to property rights over
human rights. The case of People vs. Pomar is no longer the rule.

As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937,
949), Justice Holmes had been railing against the conservatism of Judges perverting
the guarantee of due process to protect property rights as against human rights or
G.R. No. L-4977 March 22, 1910 opened one of the caps with a knife, and finding that it was filled with a yellowish
substance they got matches, and David held the cap while Manuel applied a lighted
DAVID TAYLOR, plaintiff-appellee, match to the contents. An explosion followed, causing more or less serious injuries to
vs. all three. Jessie, who when the boys proposed putting a match to the contents of the
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant. cap, became frightened and started to run away, received a slight cut in the neck.
Manuel had his hand burned and wounded, and David was struck in the face by
several particles of the metal capsule, one of which injured his right eye to such an
W. H. Lawrence, for appellant. extent as to the necessitate its removal by the surgeons who were called in to care for
W. L. Wright, for appellee. his wounds.

CARSON, J.: The evidence does definitely and conclusively disclose how the caps came to be on
the defendant's premises, nor how long they had been there when the boys found
An action to recover damages for the loss of an eye and other injuries, instituted by them. It appears, however, that some months before the accident, during the
David Taylor, a minor, by his father, his nearest relative. construction of the defendant's plant, detonating caps of the same size and kind as
those found by the boys were used in sinking a well at the power plant near the place
The defendant is a foreign corporation engaged in the operation of a street railway where the caps were found; and it also appears that at or about the time when these
and an electric light system in the city of Manila. Its power plant is situated at the caps were found, similarly caps were in use in the construction of an extension of
eastern end of a small island in the Pasig River within the city of Manila, known as the defendant's street car line to Fort William McKinley. The caps when found appeared
Isla del Provisor. The power plant may be reached by boat or by crossing a to the boys who picked them up to have been lying for a considerable time, and from
footbridge, impassable for vehicles, at the westerly end of the island. the place where they were found would seem to have been discarded as detective or
worthless and fit only to be thrown upon the rubbish heap.

The plaintiff, David Taylor, was at the time when he received the injuries complained
of, 15 years of age, the son of a mechanical engineer, more mature than the average No measures seems to have been adopted by the defendant company to prohibit or
boy of his age, and having considerable aptitude and training in mechanics. prevent visitors from entering and walking about its premises unattended, when they
felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true
that children in their play sometimes crossed the foot bridge to the islands;" and, we
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about may add, roamed about at will on the uninclosed premises of the defendant, in the
12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of neighborhood of the place where the caps were found. There is evidence that any
visiting one Murphy, an employee of the defendant, who and promised to make them effort ever was made to forbid these children from visiting the defendant company's
a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his premises, although it must be assumed that the company or its employees were
quarters, the boys, impelled apparently by youthful curiosity and perhaps by the aware of the fact that they not infrequently did so.
unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on a Sunday
afternoon, and it does not appear that they saw or spoke to anyone after leaving the Two years before the accident, plaintiff spent four months at sea, as a cabin boy on
power house where they had asked for Mr. Murphy. one of the interisland transports. Later he took up work in his father's office, learning
mechanical drawing and mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued in that employment
After watching the operation of the travelling crane used in handling the defendant's for six months at a salary of P2.50 a day; and it appears that he was a boy of more
coal, they walked across the open space in the neighborhood of the place where the than average intelligence, taller and more mature both mentally and physically than
company dumped in the cinders and ashes from its furnaces. Here they found some most boys of fifteen.
twenty or thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and each has
attached to it two long thin wires by means of which it may be discharged by the use The facts set out in the foregoing statement are to our mind fully and conclusively
of electricity. They are intended for use in the explosion of blasting charges of established by the evidence of record, and are substantially admitted by counsel. The
dynamite, and have in themselves a considerable explosive power. After some only questions of fact which are seriously disputed are plaintiff's allegations that the
discussion as to the ownership of the caps, and their right to take them, the boys caps which were found by plaintiff on defendant company's premises were the
picked up all they could find, hung them on stick, of which each took end, and carried property of the defendant, or that they had come from its possession and control, and
them home. After crossing the footbridge, they met a little girl named Jessie Adrian, that the company or some of its employees left them exposed on its premises at the
less than 9 years old, and all three went to the home of the boy Manuel. The boys point where they were found.
then made a series of experiments with the caps. They trust the ends of the wires into
an electric light socket and obtained no result. They next tried to break the cap with a The evidence in support of these allegations is meager, and the defendant company,
stone and failed. Manuel looked for a hammer, but could not find one. Then they apparently relying on the rule of law which places the burden of proof of such
allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff the record sufficiently establishes the contrary, and justifies the court in drawing the
failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a reasonable inference that the caps found on its premises were its property, and were
finding in accord with his allegations in this regard. left where they were found by the company or some of its employees.

It was proven that caps, similar to those found by plaintiff, were used, more or less Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's
extensively, on the McKinley extension of the defendant company's track; that some favor, upon the provisions of article 1089 of the Civil Code read together with articles
of these caps were used in blasting a well on the company's premises a few months 1902, 1903, and 1908 of that code.
before the accident; that not far from the place where the caps were found the
company has a storehouse for the materials, supplies and so forth, used by it in its ART. 1089 Obligations are created by law, by contracts, by quasi-contracts,
operations as a street railway and a purveyor of electric light; and that the place, in and illicit acts and omissions or by those in which any kind of fault or
the neighborhood of which the caps were found, was being used by the company as negligence occurs.
a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for
the discharge by electricity of blasting charges by dynamite are not articles in
common use by the average citizen, and under all the circumstances, and in the ART. 1902 A person who by an act or omission causes damage to another
absence of all evidence to the contrary, we think that the discovery of twenty or thirty when there is fault or negligence shall be obliged to repair the damage so
of these caps at the place where they were found by the plaintiff on defendant's done.
premises fairly justifies the inference that the defendant company was either the
owner of the caps in question or had the caps under its possession and control. We ART. 1903 The obligation imposed by the preceding article is demandable,
think also that the evidence tends to disclose that these caps or detonators were not only for personal acts and omissions, but also for those of the persons
willfully and knowingly thrown by the company or its employees at the spot where for whom they should be responsible.
they were found, with the expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood, they being old and The father, and on his death or incapacity the mother, is liable for the
perhaps defective; and, however this may be, we are satisfied that the evidence is damages caused by the minors who live with them.
sufficient to sustain a finding that the company or some of its employees either
willfully or through an oversight left them exposed at a point on its premises which the
general public, including children at play, where not prohibited from visiting, and over xxx xxx xxx
which the company knew or ought to have known that young boys were likely to roam
about in pastime or in play. Owners or directors of an establishment or enterprise are equally liable for
damages caused by their employees in the service of the branches in which
Counsel for appellant endeavors to weaken or destroy the probative value of the facts the latter may be employed or on account of their duties.
on which these conclusions are based by intimidating or rather assuming that the
blasting work on the company's well and on its McKinley extension was done by xxx xxx xxx
contractors. It was conclusively proven, however, that while the workman employed in
blasting the well was regularly employed by J. G. White and Co., a firm of contractors,
The liability referred to in this article shall cease when the persons
he did the work on the well directly and immediately under the supervision and control
mentioned therein prove that they employed all the diligence of a good father
of one of defendant company's foremen, and there is no proof whatever in the record
of a family to avoid the damage.
that the blasting on the McKinley extension was done by independent contractors.
Only one witness testified upon this point, and while he stated that he understood that
a part of this work was done by contract, he could not say so of his own knowledge, ART. 1908 The owners shall also be liable for the damage caused —
and knew nothing of the terms and conditions of the alleged contract, or of the
relations of the alleged contractor to the defendant company. The fact having been 1 By the explosion of machines which may not have been cared for with due
proven that detonating caps were more or less extensively employed on work done diligence, and for kindling of explosive substances which may not have been
by the defendant company's directions and on its behalf, we think that the company placed in a safe and proper place.
should have introduced the necessary evidence to support its contention if it wished
to avoid the not unreasonable inference that it was the owner of the material used in
Counsel for the defendant and appellant rests his appeal strictly upon his contention
these operations and that it was responsible for tortious or negligent acts of the
that the facts proven at the trial do not established the liability of the defendant
agents employed therein, on the ground that this work had been intrusted
company under the provisions of these articles, and since we agree with this view of
to independent contractors as to whose acts the maxim respondent superior should
the case, it is not necessary for us to consider the various questions as to form and
not be applied. If the company did not in fact own or make use of caps such as those
the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf
found on its premises, as intimated by counsel, it was a very simple matter for it to
prove that fact, and in the absence of such proof we think that the other evidence in
and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision machine, such as a turntable, left in such condition as to make it probable that
affirming the judgment of the court below. children in playing with it would be exposed to accident or injury therefrom and where
the infant did in fact suffer injury in playing with such machine.
We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under In these, and in great variety of similar cases, the great weight of authority holds the
consideration, in order to establish his right to a recovery, must establish by owner of the premises liable.
competent evidence:
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal
(1) Damages to the plaintiff. question was whether a railroad company was liable for in injury received by an infant
while upon its premises, from idle curiosity, or for purposes of amusement, if such
(2) Negligence by act or omission of which defendant personally, or some injury was, under circumstances, attributable to the negligence of the company), the
person for whose acts it must respond, was guilty. principles on which these cases turn are that "while a railroad company is not bound
to the same degree of care in regard to mere strangers who are unlawfully upon its
premises that it owes to passengers conveyed by it, it is not exempt from
(3) The connection of cause and effect between the negligence and the responsibility to such strangers for injuries arising from its negligence or from its
damage. tortious acts;" and that "the conduct of an infant of tender years is not to be judged by
the same rule which governs that of adult. While it is the general rule in regard to an
These proposition are, of course, elementary, and do not admit of discussion, the real adult that to entitle him to recover damages for an injury resulting from the fault or
difficulty arising in the application of these principles to the particular facts developed negligence of another he must himself have been free from fault, such is not the rule
in the case under consideration. in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case
It is clear that the accident could not have happened and not the fulminating caps by the circumstances of the case."
been left exposed at the point where they were found, or if their owner had exercised
due care in keeping them in an appropriate place; but it is equally clear that plaintiff The doctrine of the case of Railroad Company vs. Stout was vigorously controverted
would not have been injured had he not, for his own pleasure and convenience, and sharply criticized in several state courts, and the supreme court of Michigan in
entered upon the defendant's premises, and strolled around thereon without the the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the
express permission of the defendant, and had he not picked up and carried away the doctrine of the Turntable cases, especially that laid down in Railroad Company vs.
property of the defendant which he found on its premises, and had he not thereafter Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That
deliberately cut open one of the caps and applied a match to its contents. the owner of the land is not liable to trespassers thereon for injuries sustained by
them, not due to his wanton or willful acts; (2) that no exception to this rule exists in
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, favor of children who are injured by dangerous machinery naturally calculated to
his entry upon defendant company's premises, and the intervention of his action attract them to the premises; (3) that an invitation or license to cross the premises of
between the negligent act of defendant in leaving the caps exposed on its premises another can not be predicated on the mere fact that no steps have been taken to
and the accident which resulted in his injury should not be held to have contributed in interfere with such practice; (4) that there is no difference between children and adults
any wise to the accident, which should be deemed to be the direct result of as to the circumstances that will warrant the inference of an invitation or a license to
defendant's negligence in leaving the caps exposed at the place where they were enter upon another's premises.
found by the plaintiff, and this latter the proximate cause of the accident which
occasioned the injuries sustained by him. Similar criticisms of the opinion in the case of Railroad Company vs. Stout were
indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co.,
In support of his contention, counsel for plaintiff relies on the doctrine laid down in 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin,
many of the courts of last resort in the United States in the cases known as the Pennsylvania, New Hampshire, and perhaps in other States.
"Torpedo" and "Turntable" cases, and the cases based thereon.
On the other hand, many if not most of the courts of last resort in the United States,
In a typical cases, the question involved has been whether a railroad company is citing and approving the doctrine laid down in England in the leading case of Lynch
liable for an injury received by an infant of tender years, who from mere idle curiosity, vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that
or for the purposes of amusement, enters upon the railroad company's premises, at a announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the
place where the railroad company knew, or had good reason to suppose, children United States, in a unanimous opinion delivered by Justice Harlan in the case
would be likely to come, and there found explosive signal torpedoes left unexposed of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in
by the railroad company's employees, one of which when carried away by the visitor, Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of
exploded and injured him; or where such infant found upon the premises a dangerous
many of the adjudged cases, both English and American, formally declared that it resist, and putting him there by manual force?" What difference, in reason
adhered "to the principles announced in the case of Railroad Co. vs. Stout." we may observe in this case, is there between an express license to the
children of this village to visit the defendant's coal mine, in the vicinity of its
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as slack pile, and an implied license, resulting from the habit of the defendant to
follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, permit them, without objection or warning, to do so at will, for purposes of
entered upon and visited the defendant's premises, without defendant's express curiosity or pleasure? Referring it the case of Townsend vs. Wathen, Judge
permission or invitation, and while there, was by accident injured by falling into a Thompson, in his work on the Law of Negligence, volume 1, page 305, note,
burning slack pile of whose existence he had no knowledge, but which had been left well says: "It would be a barbarous rule of law that would make the owner of
by defendant on its premises without any fence around it or anything to give warning land liable for setting a trap thereon, baited with stinking meat, so that his
of its dangerous condition, although defendant knew or had reason the interest or neighbor's dog attracted by his natural instinct, might run into it and be killed,
curiosity of passers-by. On these facts the court held that the plaintiff could not be and which would exempt him from liability for the consequence of leaving
regarded as a mere trespasser, for whose safety and protection while on the exposed and unguarded on his land a dangerous machine, so that his
premises in question, against the unseen danger referred to, the defendant was neighbor's child attracted to it and tempted to intermeddle with it by instincts
under no obligation to make provision. equally strong, might thereby be killed or maimed for life."

We quote at length from the discussion by the court of the application of the principles Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the
involved to the facts in that case, because what is said there is strikingly applicable in case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
the case at bar, and would seem to dispose of defendant's contention that, the
plaintiff in this case being a trespasser, the defendant company owed him no duty, Children, wherever they go, must be expected to act upon childlike instincts
and in no case could be held liable for injuries which would not have resulted but for and impulses; and others who are chargeable with a duty of care and
the entry of plaintiff on defendant's premises. caution toward them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation of children anything
We adhere to the principles announced in Railroad Co. vs. Stout (supra). which would be tempting to them, and which they in their immature judgment
Applied to the case now before us, they require us to hold that the defendant might naturally suppose they were at liberty to handle or play with, they
was guilty of negligence in leaving unguarded the slack pile, made by it in should expect that liberty to be taken.
the vicinity of its depot building. It could have forbidden all persons from
coming to its coal mine for purposes merely of curiosity and pleasure. But it And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied
did not do so. On the contrary, it permitted all, without regard to age, to visit invitation to visit the premises of another, says:
its mine, and witness its operation. It knew that the usual approach to the
mine was by a narrow path skirting its slack pit, close to its depot building, at In the case of young children, and other persons not fully sui juris, an implied
which the people of the village, old and young, would often assemble. It license might sometimes arise when it would not on behalf of others. Thus
knew that children were in the habit of frequenting that locality and playing leaving a tempting thing for children to play with exposed, where they would
around the shaft house in the immediate vicinity of the slack pit. The be likely to gather for that purpose, may be equivalent to an invitation to
slightest regard for the safety of these children would have suggested that them to make use of it; and, perhaps, if one were to throw away upon his
they were in danger from being so near a pit, beneath the surface of which premises, near the common way, things tempting to children, the same
was concealed (except when snow, wind, or rain prevailed) a mass of implication should arise. (Chap. 10, p. 303.)
burning coals into which a child might accidentally fall and be burned to
death. Under all the circumstances, the railroad company ought not to be
heard to say that the plaintiff, a mere lad, moved by curiosity to see the The reasoning which led the Supreme Court of the United States to its conclusion in
mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs.
duty, or for whose protection it was under no obligation to make provisions. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that
wherein those cases originated. Children here are actuated by similar childish
instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth,
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man boys here as well as there will usually be found whenever the public is permitted to
dangerous traps, baited with flesh, in his own ground, so near to a highway, congregate. The movement of machinery, and indeed anything which arouses the
or to the premises of another, that dogs passing along the highway, or kept attention of the young and inquiring mind, will draw them to the neighborhood as
in his neighbors premises, would probably be attracted by their instinct into inevitably as does the magnet draw the iron which comes within the range of its
the traps, and in consequence of such act his neighbor's dogs be so magnetic influence. The owners of premises, therefore, whereon things attractive to
attracted and thereby injured, an action on the case would lie. "What children are exposed, or upon which the public are expressly or impliedly permitted to
difference," said Lord Ellenborough, C.J., "is there in reason between enter or upon which the owner knows or ought to know children are likely to roam
drawing the animal into the trap by means of his instinct which he can not about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say that of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that
because the child has entered upon his premises without his express permission he to entitle him to recover damages for an injury resulting from the fault or negligence of
is a trespasser to whom the owner owes no duty or obligation whatever. The owner's another he must himself have been free from fault, such is not the rule in regard to an
failure to take reasonable precautions to prevent the child from entering his premises infant of tender years. The care and caution required of a child is according to his
at a place where he knows or ought to know that children are accustomed to roam maturity and capacity only, and this is to be determined in each case by the
about of to which their childish instincts and impulses are likely to attract them is at circumstances of the case." As we think we have shown, under the reasoning on
least equivalent to an implied license to enter, and where the child does enter under which rests the doctrine of the Turntable and Torpedo cases, no fault which would
such conditions the owner's failure to take reasonable precautions to guard the child relieve defendant of responsibility for injuries resulting from its negligence can be
against injury from unknown or unseen dangers, placed upon such premises by the attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry
owner, is clearly a breach of duty, responsible, if the child is actually injured, without upon defendant's uninclosed premises without express permission or invitation' but it
other fault on its part than that it had entered on the premises of a stranger without his is wholly different question whether such youth can be said to have been free from
express invitation or permission. To hold otherwise would be expose all the children fault when he willfully and deliberately cut open the detonating cap, and placed a
in the community to unknown perils and unnecessary danger at the whim of the match to the contents, knowing, as he undoubtedly did, that his action would result in
owners or occupants of land upon which they might naturally and reasonably be an explosion. On this point, which must be determined by "the particular
expected to enter. circumstances of this case," the doctrine laid down in the Turntable and Torpedo
cases lends us no direct aid, although it is worthy of observation that in all of the
This conclusion is founded on reason, justice, and necessity, and neither is "Torpedo" and analogous cases which our attention has been directed, the record
contention that a man has a right to do what will with his own property or that children discloses that the plaintiffs, in whose favor judgments have been affirmed, were of
should be kept under the care of their parents or guardians, so as to prevent their such tender years that they were held not to have the capacity to understand the
entering on the premises of others is of sufficient weight to put in doubt. In this nature or character of the explosive instruments which fell into their hands.
jurisdiction as well as in the United States all private property is acquired and held
under the tacit condition that it shall not be so used as to injure the equal rights and In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15,
interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, more mature both mentally and physically than the average boy of his age; he had
1910), and except as to infants of very tender years it would be absurd and been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman
unreasonable in a community organized as is that in which we lived to hold that thirty days after the injury was incurred; and the record discloses throughout that he
parents or guardian are guilty of negligence or imprudence in every case wherein was exceptionally well qualified to take care of himself. The evidence of record leaves
they permit growing boys and girls to leave the parental roof unattended, even if in no room for doubt that, despite his denials on the witness stand, he well knew the
the event of accident to the child the negligence of the parent could in any event be explosive character of the cap with which he was amusing himself. The series of
imputed to the child so as to deprive it a right to recover in such cases — a point experiments made by him in his attempt to produce an explosion, as described by the
which we neither discuss nor decide. little girl who was present, admit of no other explanation. His attempt to discharge the
cap by the use of electricity, followed by his efforts to explode it with a stone or a
But while we hold that the entry of the plaintiff upon defendant's property without hammer, and the final success of his endeavors brought about by the application of a
defendant's express invitation or permission would not have relieved defendant from match to the contents of the caps, show clearly that he knew what he was about. Nor
responsibility for injuries incurred there by plaintiff, without other fault on his part, if can there be any reasonable doubt that he had reason to anticipate that the explosion
such injury were attributable to the negligence of the defendant, we are of opinion that might be dangerous, in view of the fact that the little girl, 9 years of age, who was
under all the circumstances of this case the negligence of the defendant in leaving the within him at the time when he put the match to the contents of the cap, became
caps exposed on its premises was not the proximate cause of the injury received by frightened and ran away.
the plaintiff, which therefore was not, properly speaking, "attributable to the
negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs True, he may not have known and probably did not know the precise nature of the
action in cutting open the detonating cap and putting match to its contents was the explosion which might be expected from the ignition of the contents of the cap, and of
proximate cause of the explosion and of the resultant injuries inflicted upon the course he did not anticipate the resultant injuries which he incurred; but he well knew
plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus that a more or less dangerous explosion might be expected from his act, and yet he
incurred. willfully, recklessly, and knowingly produced the explosion. It would be going far to
say that "according to his maturity and capacity" he exercised such and "care and
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that caution" as might reasonably be required of him, or that defendant or anyone else
because of plaintiff's youth the intervention of his action between the negligent act of should be held civilly responsible for injuries incurred by him under such
the defendant in leaving the caps exposed on its premises and the explosion which circumstances.
resulted in his injury should not be held to have contributed in any wise to the
accident; and it is because we can not agree with this proposition, although we accept The law fixes no arbitrary age at which a minor can be said to have the necessary
the doctrine of the Turntable and Torpedo cases, that we have thought proper to capacity to understand and appreciate the nature and consequences of his own acts,
discuss and to consider that doctrine at length in this decision. As was said in case so as to make it negligence on his part to fail to exercise due care and precaution in
the commission of such acts; and indeed it would be impracticable and perhaps According to ancient sages, when a man received an injury through his own
impossible so to do, for in the very nature of things the question of negligence acts the grievance should be against himself and not against another. (Law
necessarily depends on the ability of the minor to understand the character of his own 2, tit. 7 Partida 2.)
acts and their consequences; and the age at which a minor can be said to have such
ability will necessarily depends of his own acts and their consequences; and at the And while there does not appear to be anything in the Civil Code which expressly lays
age at which a minor can be said to have such ability will necessarily vary in down the law touching contributory negligence in this jurisdiction, nevertheless, the
accordance with the varying nature of the infinite variety of acts which may be done interpretation placed upon its provisions by the supreme court of Spain, and by this
by him. But some idea of the presumed capacity of infants under the laws in force in court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly
these Islands may be gathered from an examination of the varying ages fixed by our deny to the plaintiff in the case at bar the right to recover damages from the
laws at which minors are conclusively presumed to be capable of exercising certain defendant, in whole or in part, for the injuries sustained by him.
rights and incurring certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as that at bar, except
so far as they illustrate the rule that the capacity of a minor to become responsible for The judgment of the supreme court of Spain of the 7th of March, 1902
his own acts varies with the varying circumstances of each case. Under the (93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:
provisions of the Penal Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally responsible therefore, According to the doctrine expressed in article 1902 of the Civil Code, fault or
although the fact that he is less than eighteen years of age will be taken into negligence is a source of obligation when between such negligence and the
consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 injury there exists the relation of cause and effect; but if the injury produced
years of age a child may, under certain circumstances, choose which parent it prefers should not be the result of acts or omissions of a third party, the latter has no
to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment obligation to repair the same, although such acts or omission were
of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). imprudent or unlawful, and much less when it is shown that the immediate
And males of 14 and females of 12 are capable of contracting a legal marriage (Civil cause of the injury was the negligence of the injured party himself.
Code, art. 83; G. O., No. 68, sec. 1).
The same court, in its decision of June 12, 1900, said that "the existence of the
We are satisfied that the plaintiff in this case had sufficient capacity and alleged fault or negligence is not sufficient without proof that it, and no other cause,
understanding to be sensible of the danger to which he exposed himself when he put gave rise to the damage."
the match to the contents of the cap; that he was sui juris in the sense that his age
and his experience qualified him to understand and appreciate the necessity for the See also judgment of October 21, 1903.
exercise of that degree of caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by him must be held to have
been the direct and immediate result of his own willful and reckless act, so that while To similar effect Scaevola, the learned Spanish writer, writing under that title
it may be true that these injuries would not have been incurred but for the negligence in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on
act of the defendant in leaving the caps exposed on its premises, nevertheless the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise
plaintiff's own act was the proximate and principal cause of the accident which to an obligation when between it and the damage there exists the relation of
inflicted the injury. cause and effect; but if the damage caused does not arise from the acts or
omissions of a third person, there is no obligation to make good upon the
latter, even though such acts or omissions be imprudent or illegal, and much
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non less so when it is shown that the immediate cause of the damage has been
intelligitur sentire. (Digest, book 50, tit. 17 rule 203.) the recklessness of the injured party himself.

The Patidas contain the following provisions: And again —

The just thing is that a man should suffer the damage which comes to him In accordance with the fundamental principle of proof, that the burden
through his own fault, and that he can not demand reparation therefor from thereof is upon the plaintiff, it is apparent that it is duty of him who shall claim
another. (Law 25, tit. 5, Partida 3.)
damages to establish their existence. The decisions of April 9, 1896, and
March 18, July, and September 27, 1898, have especially supported the
And they even said that when a man received an injury through his own acts principle, the first setting forth in detail the necessary points of the proof,
the grievance should be against himself and not against another. (Law 2, tit. which are two: An act or omission on the part of the person who is to be
7, Partida 2.) charged with the liability, and the production of the damage by said act or
omission.
This includes, by inference, the establishment of a relation of cause or effect putting a match to the contents of the cap, and that having "contributed to the
between the act or omission and the damage; the latter must be the direct principal occurrence, as one of its determining factors, he can not recover."
result of one of the first two. As the decision of March 22, 1881, said, it is
necessary that the damages result immediately and directly from an act We have not deemed it necessary to examine the effect of plaintiff's action in picking
performed culpably and wrongfully; "necessarily presupposing a legal up upon defendant's premises the detonating caps, the property of defendant, and
ground for imputability." (Decision of October 29, 1887.) carrying the relation of cause and effect between the negligent act or omission of the
defendant in leaving the caps exposed on its premises and the injuries inflicted upon
Negligence is not presumed, but must be proven by him who alleges it. the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.) cases, such action on the part of an infant of very tender years would have no effect
in relieving defendant of responsibility, but whether in view of the well-known fact
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.) admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a
youth of the age and maturity of plaintiff should be deemed without fault in picking up
the caps in question under all the circumstances of this case, we neither discuss nor
Finally we think the doctrine in this jurisdiction applicable to the case at bar was decide.
definitely settled in this court in the maturely considered case of Rakes vs. Atlantic,
Gulf and Pacific Co. (supra), wherein we held that while "There are many cases
(personal injury cases) was exonerated," on the ground that "the negligence of the Twenty days after the date of this decision let judgment be entered reversing the
plaintiff was the immediate cause of the casualty" (decisions of the 15th of January, judgment of the court below, without costs to either party in this instance, and ten
the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that days thereafter let the record be returned to the court wherein it originated, where the
year); none of the cases decided by the supreme court of Spain "define the effect to judgment will be entered in favor of the defendant for the costs in first instance and
be given the negligence of its causes, though not the principal one, and we are left to the complaint dismissed without day. So ordered.
seek the theory of the civil law in the practice of other countries;" and in such cases
we declared that law in this jurisdiction to require the application of "the principle of Arellano, C.J., Torres and Moreland, JJ., concur.
proportional damages," but expressly and definitely denied the right of recovery when Johnson, J., concurs in the result.
the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

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 made 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 to his own proper hurt. For instance, the cause of the accident
under review was the displacement of the crosspiece or the failure to replace
it. This produces the event giving occasion for damages—that is, the sinking
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 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 through his act or omission of duty, that 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.

We think it is quite clear that under the doctrine thus stated, the immediate cause of
the explosion, the accident which resulted in plaintiff's injury, was in his own act in
G.R. No. L-48006 July 8, 1942 ... The Court of Appeals holds that the petitioner is being sued for his failure
to exercise all the diligence of a good father of a family in the selection and
FAUSTO BARREDO, petitioner, supervision of Pedro Fontanilla to prevent damages suffered by the
vs. respondents. In other words, The Court of Appeals insists on applying in the
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents. case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to
a civil liability arising from a crime as in the case at bar simply because
Celedonio P. Gloria and Antonio Barredo for petitioner. Chapter II of Title 16 of Book IV of the Civil Code, in the precise words of
Jose G. Advincula for respondents. article 1903 of the Civil Code itself, is applicable only to "those (obligations)
arising from wrongful or negligent acts or commission not punishable by law.
BOCOBO, J.:
The gist of the decision of the Court of Appeals is expressed thus:
This case comes up from the Court of Appeals which held the petitioner herein,
Fausto Barredo, liable in damages for the death of Faustino Garcia caused by the ... We cannot agree to the defendant's contention. The liability sought to be
negligence of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo. imposed upon him in this action is not a civil obligation arising from a felony
or a misdemeanor (the crime of Pedro Fontanilla,), but an obligation
At about half past one in the morning of May 3, 1936, on the road between Malabon imposed in article 1903 of the Civil Code by reason of his negligence in the
and Navotas, Province of Rizal, there was a head-on collision between a taxi of the selection or supervision of his servant or employee.
Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro
Dimapalis. The carretela was overturned, and one of its passengers, 16-year-old boy The pivotal question in this case is whether the plaintiffs may bring this separate civil
Faustino Garcia, suffered injuries from which he died two days later. A criminal action action against Fausto Barredo, thus making him primarily and directly, responsible
was filed against Fontanilla in the Court of First Instance of Rizal, and he was under article 1903 of the Civil Code as an employer of Pedro Fontanilla. The
convicted and sentenced to an indeterminate sentence of one year and one day to defendant maintains that Fontanilla's negligence being punishable by the Penal Code,
two years of prision correccional. The court in the criminal case granted the petition his (defendant's) liability as an employer is only subsidiary, according to said Penal
that the right to bring a separate civil action be reserved. The Court of Appeals code, but Fontanilla has not been sued in a civil action and his property has not been
affirmed the sentence of the lower court in the criminal case. Severino Garcia and exhausted. To decide the main issue, we must cut through the tangle that has, in the
Timotea Almario, parents of the deceased on March 7, 1939, brought an action in the minds of many confused and jumbled together delitos and cuasi delitos, or crimes
Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the under the Penal Code and fault or negligence under articles 1902-1910 of the Civil
Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Code. This should be done, because justice may be lost in a labyrinth, unless
Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal principles and remedies are distinctly envisaged. Fortunately, we are aided in our
interest from the date of the complaint. This decision was modified by the Court of inquiry by the luminous presentation of the perplexing subject by renown jurists and
Appeals by reducing the damages to P1,000 with legal interest from the time the we are likewise guided by the decisions of this Court in previous cases as well as by
action was instituted. It is undisputed that Fontanilla 's negligence was the cause of the solemn clarity of the consideration in several sentences of the Supreme Tribunal
the mishap, as he was driving on the wrong side of the road, and at high speed. As to of Spain.
Barredo's responsibility, the Court of Appeals found:
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a
... It is admitted that defendant is Fontanilla's employer. There is proof that separate legal institution under the Civil Code with a substantivity all its own, and
he exercised the diligence of a good father of a family to prevent damage. individuality that is entirely apart and independent from delict or crime. Upon this
(See p. 22, appellant's brief.) In fact it is shown he was careless in principle and on the wording and spirit article 1903 of the Civil Code, the primary and
employing Fontanilla who had been caught several times for violation of the direct responsibility of employers may be safely anchored.
Automobile Law and speeding (Exhibit A) — violation which appeared in the
records of the Bureau of Public Works available to be public and to himself.
Therefore, he must indemnify plaintiffs under the provisions of article 1903 of The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
the Civil Code.
CIVIL CODE
The main theory of the defense is that the liability of Fausto Barredo is governed by
the Revised Penal Code; hence, his liability is only subsidiary, and as there has been ART. 1089 Obligations arise from law, from contracts and quasi-contracts,
no civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot and from acts and omissions which are unlawful or in which any kind of fault
be held responsible in the case. The petitioner's brief states on page 10: or negligence intervenes.
xxx xxx xxx ART. 101. Rules regarding civil liability in certain cases. — The exemption
from criminal liability established in subdivisions 1, 2, 3, 5, and 6 of article 12
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be and in subdivision 4 of article 11 of this Code does not include exemption
governed by the provisions of the Penal Code. from civil liability, which shall be enforced to the following rules:

ART. 1093. Those which are derived from acts or omissions in which fault or First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts
negligence, not punishable by law, intervenes shall be subject to the committed by any imbecile or insane person, and by a person under nine
provisions of Chapter II, Title XVI of this book. years of age, or by one over nine but under fifteen years of age, who has
acted without discernment shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no fault
xxx xxx xxx or negligence on their part.

ART 1902. Any person who by an act or omission causes damage to Should there be no person having such insane, imbecile or minor under his
another by his fault or negligence shall be liable for the damage so done. authority, legal guardianship, or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
ART. 1903. The obligation imposed by the next preceding article is property exempt from execution, in accordance with the civil law.
enforcible, not only for personal acts and omissions, but also for those of
persons for whom another is responsible. Second. In cases falling within subdivision 4 of article 11, the person for
whose benefit the harm has been prevented shall be civilly liable in
The father and in, case of his death or incapacity, the mother, are liable for proportion to the benefit which they may have received.
any damages caused by the minor children who live with them.
The courts shall determine, in their sound discretion, the proportionate amount for
Guardians are liable for damages done by minors or incapacitated persons which each one shall be liable.
subject to their authority and living with them.
When the respective shares can not be equitably determined, even approximately, or
Owners or directors of an establishment or business are equally liable for when the liability also attaches to the Government, or to the majority of the inhabitants
any damages caused by their employees while engaged in the branch of the of the town, and, in all events, whenever the damage has been caused with the
service in which employed, or on occasion of the performance of their duties. consent of the authorities or their agents, indemnification shall be made in the manner
prescribed by special laws or regulations.
The State is subject to the same liability when it acts through a special
agent, but not if the damage shall have been caused by the official upon Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using
whom properly devolved the duty of doing the act performed, in which case violence or causing the fear shall be primarily liable and secondarily, or, if there be no
the provisions of the next preceding article shall be applicable. such persons, those doing the act shall be liable, saving always to the latter that part
of their property exempt from execution.
Finally, teachers or directors of arts trades are liable for any damages
caused by their pupils or apprentices while they are under their custody. ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishment. — In default of persons criminally liable,
The liability imposed by this article shall cease in case the persons innkeepers, tavern keepers, and any other persons or corporation shall be
mentioned therein prove that they are exercised all the diligence of a good civilly liable for crimes committed in their establishments, in all cases where
father of a family to prevent the damage. a violation of municipal ordinances or some general or special police
regulation shall have been committed by them or their employees.

ART. 1904. Any person who pays for damage caused by his employees may
recover from the latter what he may have paid. Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses lodging therein, or the person, or for the
payment of the value thereof, provided that such guests shall have notified in
REVISED PENAL CODE advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed the
ART. 100. Civil liability of a person guilty of felony. — Every person directions which such innkeeper or his representative may have given them
criminally liable for a felony is also civilly liable. with respect to the care of and vigilance over such goods. No liability shall
attach in case of robbery with violence against or intimidation against or governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This
intimidation of persons unless committed by the innkeeper's employees. portion of the Civil Code is exclusively devoted to the legal institution of culpa
aquiliana.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability
established in the next preceding article shall also apply to employers, Some of the differences between crimes under the Penal Code and the culpa
teachers, persons, and corporations engaged in any kind of industry for aquiliana or cuasi-delito under the Civil Code are:
felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties. 1. That crimes affect the public interest, while cuasi-delitos are only of private
concern.
xxx xxx xxx
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the
ART. 365. Imprudence and negligence. — Any person who, by reckless Civil Code, by means of indemnification, merely repairs the damage.
imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its 3. That delicts are not as broad as quasi-delicts, because the former are punished
maximum period to prision correccional in its minimum period; if it would only if there is a penal law clearly covering them, while the latter, cuasi-delitos,
have constituted a less grave felony, the penalty of arresto mayor in its include all acts in which "any king of fault or negligence intervenes." However, it
minimum and medium periods shall be imposed. should be noted that not all violations of the penal law produce civil responsibility,
such as begging in contravention of ordinances, violation of the game laws, infraction
Any person who, by simple imprudence or negligence, shall commit an act of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental
which would otherwise constitute a grave felony, shall suffer the penalty de Derecho Civil," Vol. 3, p. 728.)
of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum Let us now ascertain what some jurists say on the separate existence of quasi-delicts
period shall be imposed." and the employer's primary and direct liability under article 1903 of the Civil Code.

It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica
broad enough to cover the driver's negligence in the instant case, nevertheless article Española" (Vol. XXVII, p. 414) says:
1093 limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch
as article 365 of the Revised Penal Code punishes not only reckless but even simple
imprudence or negligence, the fault or negligence under article 1902 of the Civil Code El concepto juridico de la responsabilidad civil abarca diversos aspectos y
has apparently been crowded out. It is this overlapping that makes the "confusion comprende a diferentes personas. Asi, existe una responsabilidad civil
worse confounded." However, a closer study shows that such a concurrence of scope propiamente dicha, que en ningun casl lleva aparejada responsabilidad
in regard to negligent acts does not destroy the distinction between the civil liability criminal alguna, y otra que es consecuencia indeclinable de la penal que
arising from a crime and the responsibility for cuasi-delitos or culpa extra-contractual. nace de todo delito o falta."
The same negligent act causing damages may produce civil liability arising from a
crime under article 100 of the Revised Penal Code, or create an action for cuasi- The juridical concept of civil responsibility has various aspects and
delito or culpa extra-contractual under articles 1902-1910 of the Civil Code. comprises different persons. Thus, there is a civil responsibility, properly
speaking, which in no case carries with it any criminal responsibility, and
The individuality of cuasi-delito or culpa extra-contractual looms clear and another which is a necessary consequence of the penal liability as a result of
unmistakable. This legal institution is of ancient lineage, one of its early ancestors every felony or misdemeanor."
being the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminology, this
responsibility is often referred to as culpa aquiliana. The Partidas also contributed to Maura, an outstanding authority, was consulted on the following case: There had
the genealogy of the present fault or negligence under the Civil Code; for instance, been a collision between two trains belonging respectively to the Ferrocarril
Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier Cantabrico and the Ferrocarril del Norte. An employee of the latter had been
que el non fizo a sabiendas en daño al otro, pero acaescio por su culpa." prosecuted in a criminal case, in which the company had been made a party as
subsidiarily responsible in civil damages. The employee had been acquitted in the
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated.
1089, one of the five sources of obligations is this legal institution of cuasi- The question asked was whether the Ferrocarril Cantabrico could still bring a civil
delito or culpa extra-contractual: "los actos . . . en que intervenga cualquier genero de action for damages against the Ferrocarril del Norte. Maura's opinion was in the
culpa o negligencia." Then article 1093 provides that this kind of obligation shall be affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de fondo en distintos cuerpos legales, y diferentes modos de proceder,
los hechos, todavia menos parece sostenible que exista cosa habiendose, por añadidura, abstenido de asistir al juicio criminal la
juzgada acerca de la obligacion civil de indemnizar los quebrantos y Compañia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones,
menoscabos inferidos por el choque de los trenes. El titulo en que se funda parece innegable que la de indemnizacion por los daños y perjuicios que le
la accion para demandar el resarcimiento, no puede confundirse con las irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue
responsabilidades civiles nacidas de delito, siquiera exista en este, sea el sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de
cual sea, una culpa rodeada de notas agravatorias que motivan sanciones marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose
penales, mas o menos severas. La lesion causada por delito o falta en los mas arriba, que tal accion quedaba legitimamente reservada para despues
derechos civiles, requiere restituciones, reparaciones o indemnizaciones, del proceso; pero al declararse que no existio delito, ni responsabilidad
que cual la pena misma atañen al orden publico; por tal motivo vienen dimanada de delito, materia unica sobre que tenian jurisdiccion aquellos
encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta juzgadores, se redobla el motivo para la obligacion civil ex lege, y se
via se enmiendan los quebrantos y menoscabos, el agraviado excusa patentiza mas y mas que la accion para pedir su cumplimiento permanece
procurar el ya conseguido desagravio; pero esta eventual coincidencia de incolume, extraña a la cosa juzgada.
los efectos, no borra la diversidad originaria de las acciones civiles para
pedir indemnizacion. As things are, apropos of the reality pure and simple of the facts, it seems
less tenable that there should be res judicata with regard to the civil
Estas, para el caso actual (prescindiendo de culpas contractuales, que no obligation for damages on account of the losses caused by the collision of
vendrian a cuento y que tiene otro regimen), dimanan, segun el articulo the trains. The title upon which the action for reparation is based cannot be
1902 del Codigo Civil, de toda accion u omision, causante de daños o confused with the civil responsibilities born of a crime, because there exists
perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones in the latter, whatever each nature, a culpa surrounded with aggravating
semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, aspects which give rise to penal measures that are more or less severe. The
sin que la Justicia punitiva tenga que mezclarse en los asuntos. Los injury caused by a felony or misdemeanor upon civil rights requires
articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los restitutions, reparations, or indemnifications which, like the penalty itself,
fines sociales y politicos del mismo, desenvuelven y ordenan la materia de affect public order; for this reason, they are ordinarily entrusted to the office
responsabilidades civiles nacidas de delito, en terminos separados del of the prosecuting attorney; and it is clear that if by this means the losses
regimen por ley comun de la culpa que se denomina aquiliana, por alusion a and damages are repaired, the injured party no longer desires to seek
precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo another relief; but this coincidence of effects does not eliminate the peculiar
entre aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de nature of civil actions to ask for indemnity.
culpa civil; pero viene al caso y es necesaria una de las diferenciaciones
que en el tal paralelo se notarian. Such civil actions in the present case (without referring to contractual faults
which are not pertinent and belong to another scope) are derived, according
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las to article 1902 of the Civil Code, from every act or omission causing losses
responsabilidades civiles, entre los que sean por diversos conceptos and damages in which culpa or negligence intervenes. It is unimportant that
culpables del delito o falta, las hacen extensivas a las empresas y los such actions are every day filed before the civil courts without the criminal
establecimientos al servicio de los cuales estan los delincuentes; pero con courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean Code, bearing in mind the spirit and the social and political purposes of that
responsables criminalmente. No coincide en ello el Codigo Civil, cuyo Code, develop and regulate the matter of civil responsibilities arising from a
articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, crime, separately from the regime under common law, of culpa which is
no solo por los actos y omisiones propios, sino por los de aquellas personas known as aquiliana, in accordance with legislative precedent of the Corpus
de quienes se debe responder; personas en la enumeracion de las cuales Juris. It would be unwarranted to make a detailed comparison between the
figuran los dependientes y empleados de los establecimientos o empresas, former provisions and that regarding the obligation to indemnify on account
sea por actos del servicio, sea con ocasion de sus funciones. Por esto of civil culpa; but it is pertinent and necessary to point out to one of such
acontece, y se observa en la jurisprudencia, que las empresas, despues de differences.
intervenir en las causas criminales con el caracter subsidiario de su
responsabilidad civil por razon del delito, son demandadas y Articles 20 and 21 of the Penal Code, after distriburing in their own way the
condenadas directa y aisladamente, cuando se trata de la obligacion, ante civil responsibilities among those who, for different reasons, are guilty of
los tribunales civiles. felony or misdemeanor, make such civil responsibilities applicable to
enterprises and establishments for which the guilty parties render service,
Siendo como se ve, diverso el titulo de esta obligacion, y formando but with subsidiary character, that is to say, according to the wording of the
verdadero postulado de nuestro regimen judicial la separacion entre justicia Penal Code, in default of those who are criminally responsible. In this
punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de regard, the Civil Code does not coincide because article 1903 says: "The
obligation imposed by the next preceding article is demandable, not only for es subsidiaria? es principal? Para contestar a esta pregunta es necesario
personal acts and omissions, but also for those of persons for whom another saber, en primer lugar, en que se funda el precepto legal. Es que realmente
is responsible." Among the persons enumerated are the subordinates and se impone una responsabilidad por una falta ajena? Asi parece a primera
employees of establishments or enterprises, either for acts during their vista; pero semejante afirmacion seria contraria a la justicia y a la maxima
service or on the occasion of their functions. It is for this reason that it universal, segun la que las faltas son personales, y cada uno responde de
happens, and it is so observed in judicial decisions, that the companies or aquellas que le son imputables. La responsabilidad de que tratamos se
enterprises, after taking part in the criminal cases because of their subsidiary impone con ocasion de un delito o culpa, pero no por causa de ellos, sino
civil responsibility by reason of the crime, are sued and por causa del causi delito, esto es, de la imprudencia o de la negligencia del
sentenced directly and separately with regard to the obligation, before the padre, del tutor, del dueño o director del establecimiento, del maestro, etc.
civil courts. Cuando cualquiera de las personas que enumera el articulo citado (menores
de edad, incapacitados, dependientes, aprendices) causan un daño, la ley
Seeing that the title of this obligation is different, and the separation between presume que el padre, el tutor, el maestro, etc., han cometido una falta de
punitive justice and the civil courts being a true postulate of our judicial negligencia para prevenir o evitar el daño. Esta falta es la que la ley castiga.
system, so that they have different fundamental norms in different codes, as No hay, pues, responsabilidad por un hecho ajeno, sino en la apariencia; en
well as different modes of procedure, and inasmuch as the Compaña del realidad la responsabilidad se exige por un hecho propio. La idea de que
Ferrocarril Cantabrico has abstained from taking part in the criminal case esa responsabilidad sea subsidiaria es, por lo tanto, completamente
and has reserved the right to exercise its actions, it seems undeniable that inadmisible.
the action for indemnification for the losses and damages caused to it by the
collision was not sub judice before the Tribunal del Jurado, nor was it the Question No. 1. Is the responsibility declared in article 1903 for the acts or
subject of a sentence, but it remained intact when the decision of March 21 omissions of those persons for who one is responsible, subsidiary or
was rendered. Even if the verdict had not been that of acquittal, it has principal? In order to answer this question it is necessary to know, in the first
already been shown that such action had been legitimately reserved till after place, on what the legal provision is based. Is it true that there is a
the criminal prosecution; but because of the declaration of the non-existence responsibility for the fault of another person? It seems so at first sight; but
of the felony and the non-existence of the responsibility arising from the such assertion would be contrary to justice and to the universal maxim that
crime, which was the sole subject matter upon which the Tribunal del all faults are personal, and that everyone is liable for those faults that can be
Jurado had jurisdiction, there is greater reason for the civil obligation ex imputed to him. The responsibility in question is imposed on the occasion of
lege, and it becomes clearer that the action for its enforcement remain intact a crime or fault, but not because of the same, but because of the cuasi-
and is not res judicata. delito, that is to say, the imprudence or negligence of the father, guardian,
proprietor or manager of the establishment, of the teacher, etc. Whenever
Laurent, a jurist who has written a monumental work on the French Civil Code, on anyone of the persons enumerated in the article referred to (minors,
which the Spanish Civil Code is largely based and whose provisions on cuasi- incapacitated persons, employees, apprentices) causes any damage, the
delito or culpa extra-contractual are similar to those of the Spanish Civil Code, says, law presumes that the father, guardian, teacher, etc. have committed an act
referring to article 1384 of the French Civil Code which corresponds to article 1903, of negligence in not preventing or avoiding the damage. It is this fault that is
Spanish Civil Code: condemned by the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the responsibility exacted is for
one's own act. The idea that such responsibility is subsidiary is, therefore,
The action can be brought directly against the person responsible (for completely inadmissible.
another), without including the author of the act. The action against the
principal is accessory in the sense that it implies the existence of a
prejudicial act committed by the employee, but it is not subsidiary in the Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo
sense that it can not be instituted till after the judgment against the author of Civil Español," says in Vol. VII, p. 743:
the act or at least, that it is subsidiary to the principal action; the action for
responsibility (of the employer) is in itself a principal action. (Laurent, Es decir, no responde de hechos ajenos, porque se responde solo de su
Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.) propia culpa, doctrina del articulo 1902; mas por excepcion, se responde de
la ajena respecto de aquellas personas con las que media algun nexo o
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es
declares that the responsibility of the employer is principal and not subsidiary. He directa o es subsidiaria? En el orden penal, el Codigo de esta clase
writes: distingue entre menores e incapacitados y los demas, declarando directa la
primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el
orden civil, en el caso del articulo 1903, ha de entenderse directa, por el
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las tenor del articulo que impone la responsabilidad precisamente "por los actos
acciones u omisiones de aquellas personas por las que se debe responder, de aquellas personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is Considering that the first ground of the appeal is based on the mistaken
liable only for his own faults, this being the doctrine of article 1902; but, by supposition that the trial court, in sentencing the Compañia Madrileña to the
exception, one is liable for the acts of those persons with whom there is a payment of the damage caused by the death of Ramon Lafuente Izquierdo,
bond or tie which gives rise to the responsibility. Is this responsibility direct disregards the value and juridical effects of the sentence of acquittal
or subsidiary? In the order of the penal law, the Penal Code distinguishes rendered in the criminal case instituted on account of the same act, when it
between minors and incapacitated persons on the one hand, and other is a fact that the two jurisdictions had taken cognizance of the same act in its
persons on the other, declaring that the responsibility for the former is direct different aspects, and as the criminal jurisdiction declared within the limits of
(article 19), and for the latter, subsidiary (articles 20 and 21); but in the its authority that the act in question did not constitute a felony because there
scheme of the civil law, in the case of article 1903, the responsibility should was no grave carelessness or negligence, and this being the only basis of
be understood as direct, according to the tenor of that articles, for precisely it acquittal, it does no exclude the co-existence of fault or negligence which is
imposes responsibility "for the acts of those persons for whom one should be not qualified, and is a source of civil obligations according to article 1902 of
responsible." the Civil Code, affecting, in accordance with article 1903, among other
persons, the managers of establishments or enterprises by reason of the
Coming now to the sentences of the Supreme Tribunal of Spain, that court has damages caused by employees under certain conditions, it is manifest
upheld the principles above set forth: that a quasi-delict or culpa extra-contractual is a that the civil jurisdiccion in taking cognizance of the same act in this latter
separate and distinct legal institution, independent from the civil responsibility arising aspect and in ordering the company, appellant herein, to pay an indemnity
from criminal liability, and that an employer is, under article 1903 of the Civil Code, for the damage caused by one of its employees, far from violating said legal
primarily and directly responsible for the negligent acts of his employee. provisions, in relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading attributes which are
beyond its own jurisdiction, and without in any way contradicting the decision
One of the most important of those Spanish decisions is that of October 21, 1910. In in that cause. (Emphasis supplied.)
that case, Ramon Lafuente died as the result of having been run over by a street car
owned by the "compañia Electric Madrileña de Traccion." The conductor was
prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil It will be noted, as to the case just cited:
action against the street car company, paying for damages in the amount of 15,000
pesetas. The lower court awarded damages; so the company appealed to the First. That the conductor was not sued in a civil case, either separately or with the
Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code street car company. This is precisely what happens in the present case: the driver,
because by final judgment the non-existence of fault or negligence had been Fontanilla, has not been sued in a civil action, either alone or with his employer.
declared. The Supreme Court of Spain dismissed the appeal, saying:
Second. That the conductor had been acquitted of grave criminal negligence, but the
Considerando que el primer motivo del recurso se funda en el equivocado Supreme Tribunal of Spain said that this did not exclude the co-existence of fault or
supuesto de que el Tribunal a quo, al condonar a la compañia Electrica negligence, which is not qualified, on the part of the conductor, under article 1902 of
Madrileña al pago del daño causado con la muerte de Ramon La fuente the Civil Code. In the present case, the taxi driver was found guilty of criminal
Izquierdo, desconoce el valor y efectos juridicos de la sentencia absolutoria negligence, so that if he had even sued for his civil responsibility arising from the
deictada en la causa criminal que se siguio por el mismo hecho, cuando es crime, he would have been held primarily liable for civil damages, and Barredo would
lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as have been held subsidiarily liable for the same. But the plaintiffs are directly suing
pectos, y como la de lo criminal declrao dentro de los limites de su Barredo, on his primary responsibility because of his own presumed negligence —
competencia que el hecho de que se trata no era constitutivo de delito por which he did not overcome — under article 1903. Thus, there were two liabilities of
no haber mediado descuido o negligencia graves, lo que no excluye, siendo Barredo: first, the subsidiary one because of the civil liability of the taxi driver arising
este el unico fundamento del fallo absolutorio, el concurso de la culpa o from the latter's criminal negligence; and, second, Barredo's primary liability as an
negligencia no califacadas, fuente de obligaciones civiles segun el articulo employer under article 1903. The plaintiffs were free to choose which course to take,
1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los and they preferred the second remedy. In so doing, they were acting within their
Directores de establecimientos o empresas por los daños causados por sus rights. It might be observed in passing, that the plaintiff choose the more expeditious
dependientes en determinadas condiciones, es manifesto que la de lo civil, and effective method of relief, because Fontanilla was either in prison, or had just
al conocer del mismo hehco baho este ultimo aspecto y al condenar a la been released, and besides, he was probably without property which might be seized
compañia recurrente a la indemnizacion del daño causado por uno de sus in enforcing any judgment against him for damages.
empleados, lejos de infringer los mencionados textos, en relacion con el
articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido Third. That inasmuch as in the above sentence of October 21, 1910, the employer
estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, was held liable civilly, notwithstanding the acquittal of the employee (the conductor) in
ni contrariar en lo mas minimo el fallo recaido en la causa. a previous criminal case, with greater reason should Barredo, the employer in the
case at bar, be held liable for damages in a civil suit filed against him because his taxi
driver had been convicted. The degree of negligence of the conductor in the Spanish caused him losses and damages of considerable importance, as he was a
case cited was less than that of the taxi driver, Fontanilla, because the former was wholesale vendor of wines and liquors and he failed to realize the profits
acquitted in the previous criminal case while the latter was found guilty of criminal when he was unable to fill the orders sent to him by the consignors of the
negligence and was sentenced to an indeterminate sentence of one year and one day receptacles:
to two years of prision correccional.
Considering that upon this basis there is need of upholding the four
(See also Sentence of February 19, 1902, which is similar to the one above quoted.) assignments of error, as the original complaint did not contain any cause of
action arising from non-fulfillment of a contract of transportation, because the
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action action was not based on the delay of the goods nor on any contractual
was brought against a railroad company for damages because the station agent, relation between the parties litigant and, therefore, article 371 of the Code of
employed by the company, had unjustly and fraudulently, refused to deliver certain Commerce, on which the decision appealed from is based, is not applicable;
articles consigned to the plaintiff. The Supreme Court of Spain held that this action but it limits to asking for reparation for losses and damages produced on the
was properly under article 1902 of the Civil Code, the court saying: patrimony of the plaintiff on account of the unjustified and fraudulent
refusal of the carrier to deliver the goods consigned to the plaintiff as stated
by the sentence, and the carrier's responsibility is clearly laid down in article
Considerando que la sentencia discutida reconoce, en virtud de los hechos 1902 of the Civil Code which binds, in virtue of the next article, the defendant
que consigna con relacion a las pruebas del pleito: 1.º, que las expediciones company, because the latter is connected with the person who caused the
facturadas por la compañia ferroviaria a la consignacion del actor de las damage by relations of economic character and by administrative hierarchy.
vasijas vacias que en su demanda relacionan tenian como fin el que este las (Emphasis supplied.)
devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a su
destino tales mercanias no se quisieron entregar a dicho consignatario por
el jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que The above case is pertinent because it shows that the same act may come under
la falta de entrega de estas expediciones al tiempo de reclamarlas el both the Penal Code and the Civil Code. In that case, the action of the agent was
demandante le originaron daños y perjuicios en cantidad de bastante unjustified and fraudulent and therefore could have been the subject of a criminal
importancia como expendedor al por mayor que era de vinos y alcoholes por action. And yet, it was held to be also a proper subject of a civil action under article
las ganancias que dejo de obtener al verse privado de servir los pedidos 1902 of the Civil Code. It is also to be noted that it was the employer and not the
que se le habian hecho por los remitentes en los envases: employee who was being sued.

Considerando que sobre esta base hay necesidad de estimar los cuatro Let us now examine the cases previously decided by this Court.
motivos que integran este recurso, porque la demanda inicial del pleito a
que se contrae no contiene accion que nazca del incumplimiento del In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365
contrato de transporte, toda vez que no se funda en el retraso de la llegada [year 1907]), the trial court awarded damages to the plaintiff, a laborer of the
de las mercancias ni de ningun otro vinculo contractual entre las partes defendant, because the latter had negligently failed to repair a tramway in
contendientes, careciendo, por tanto, de aplicacion el articulo 371 del consequence of which the rails slid off while iron was being transported, and caught
Codigo de Comercio, en que principalmente descansa el fallo recurrido, sino the plaintiff whose leg was broken. This Court held:
que se limita a pedir la reparaction de los daños y perjuicios producidos en
el patrimonio del actor por la injustificada y dolosa negativa del porteador a It is contended by the defendant, as its first defense to the action that the
la entrega de las mercancias a su nombre consignadas, segun lo reconoce necessary conclusion from these collated laws is that the remedy for injuries
la sentencia, y cuya responsabilidad esta claramente sancionada en el through negligence lies only in a criminal action in which the official
articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compañia criminally responsible must be made primarily liable and his employer held
demandada como ligada con el causante de aquellos por relaciones de only subsidiarily to him. According to this theory the plaintiff should have
caracter economico y de jurarquia administrativa. procured the arrest of the representative of the company accountable for not
repairing the track, and on his prosecution a suitable fine should have been
Considering that the sentence, in question recognizes, in virtue of the facts imposed, payable primarily by him and secondarily by his employer.
which it declares, in relation to the evidence in the case: (1) that the invoice
issued by the railroad company in favor of the plaintiff contemplated that the This reasoning misconceived the plan of the Spanish codes upon this
empty receptacles referred to in the complaint should be returned to the subject. Article 1093 of the Civil Code makes obligations arising from faults
consignors with wines and liquors; (2) that when the said merchandise or negligence not punished by the law, subject to the provisions of Chapter II
reached their destination, their delivery to the consignee was refused by the of Title XVI. Section 1902 of that chapter reads:
station agent without justification and with fraudulent intent, and (3) that the
lack of delivery of these goods when they were demanded by the plaintiff
"A person who by an act or omission causes damage to another An examination of this topic might be carried much further, but the citation of
when there is fault or negligence shall be obliged to repair the these articles suffices to show that the civil liability was not intended to be
damage so done. merged in the criminal nor even to be suspended thereby, except as
expressly provided in the law. Where an individual is civilly liable for a
"SEC. 1903. The obligation imposed by the preceeding article is negligent act or omission, it is not required that the injured party should seek
demandable, not only for personal acts and omissions, but also for out a third person criminally liable whose prosecution must be a condition
those of the persons for whom they should be responsible. precedent to the enforcement of the civil right.

"The father, and on his death or incapacity, the mother, is liable for Under article 20 of the Penal Code the responsibility of an employer may be
the damages caused by the minors who live with them. regarded as subsidiary in respect of criminal actions against his employees
only while they are in process of prosecution, or in so far as they determine
the existence of the criminal act from which liability arises, and his obligation
xxx xxx xxx under the civil law and its enforcement in the civil courts is not barred
thereby unless by the election of the injured person. Inasmuch as no criminal
"Owners or directors of an establishment or enterprise are equally proceeding had been instituted, growing our of the accident in question, the
liable for the damages caused by their employees in the service of provisions of the Penal Code can not affect this action. This construction
the branches in which the latter may be employed or in the renders it unnecessary to finally determine here whether this subsidiary civil
performance of their duties. liability in penal actions has survived the laws that fully regulated it or has
been abrogated by the American civil and criminal procedure now in force in
xxx xxx xxx the Philippines.

"The liability referred to in this article shall cease when the persons The difficulty in construing the articles of the code above cited in this case
mentioned therein prove that they employed all the diligence of a appears from the briefs before us to have arisen from the interpretation of
good father of a family to avoid the damage." 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
As an answer to the argument urged in this particular action it may be out of his relation to his employee who is the offender is not to be regarded
sufficient to point out that nowhere in our general statutes is the employer as derived from negligence punished by the law, within the meaning of
penalized for failure to provide or maintain safe appliances for his workmen. articles 1902 and 1093. More than this, however, it cannot be said to fall
His obligation therefore is one 'not punished by the laws' and falls under civil within the class of acts unpunished by the law, the consequence of which
rather than criminal jurisprudence. But the answer may be a broader one. are regulated by articles 1902 and 1903 of the Civil Code. The acts to which
We should be reluctant, under any conditions, to adopt a forced construction these articles are applicable are understood to be those not growing out of
of these scientific codes, such as is proposed by the defendant, that would pre-existing duties of the parties to one another. But where relations already
rob some of these articles of effect, would shut out litigants against their will formed give rise to duties, whether springing from contract or quasi contract,
from the civil courts, would make the assertion of their rights dependent then breaches of those duties are subject to articles 1101, 1103, and 1104 of
upon the selection for prosecution of the proper criminal offender, and the same code. A typical application of this distinction may be found in the
render recovery doubtful by reason of the strict rules of proof prevailing in consequences of a railway accident due to defective machinery supplied by
criminal actions. Even if these articles had always stood alone, such a the employer. His liability to his employee would arise out of the contract of
construction would be unnecessary, but clear light is thrown upon their employment, that to the passengers out of the contract for passage, while
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley that to the injured bystander would originate in the negligent act itself.
de Enjuiciamiento Criminal), which, though never in 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 In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old
prosecuted jointly or separately, but while the penal action was pending the child Salvador Bona brought a civil action against Moreta to recover damages
civil was suspended. According to article 112, the penal action once started, resulting from the death of the child, who had been run over by an automobile driven
the civil remedy should be sought therewith, unless it had been waived by and managed by the defendant. The trial court rendered judgment requiring the
the party injured or been expressly reserved by him for civil proceedings for defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in affirming
the future. If the civil action alone was prosecuted, arising out of a crime that the judgment, said in part:
could be enforced only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those of If it were true that the defendant, in coming from the southern part of Solana
articles 23 and 133 of our Penal Code on the same subject. Street, had to stop his auto before crossing Real Street, because he had met
vehicles which were going along the latter street or were coming from the Although the trial judge made the findings of fact hereinbefore outlined, he
opposite direction along Solana Street, it is to be believed that, when he nevertheless was led to order the dismissal of the action because of the
again started to run his auto across said Real Street and to continue its way contributory negligence of the plaintiffs. It is from this point that a majority of
along Solana Street northward, he should have adjusted the speed of the the court depart from the stand taken by the trial judge. The mother and her
auto which he was operating until he had fully crossed Real Street and had child had a perfect right to be on the principal street of Tacloban, Leyte, on
completely reached a clear way on Solana Street. But, as the child was run the evening when the religious procession was held. There was nothing
over by the auto precisely at the entrance of Solana Street, this accident abnormal in allowing the child to run along a few paces in advance of the
could not have occurred if the auto had been running at a slow speed, aside mother. No one could foresee the coincidence of an automobile appearing
from the fact that the defendant, at the moment of crossing Real Street and and of a frightened child running and falling into a ditch filled with hot water.
entering Solana Street, in a northward direction, could have seen the child in The doctrine announced in the much debated case of Rakes vs. Atlantic Gulf
the act of crossing the latter street from the sidewalk on the right to that on and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code
the left, and if the accident had occurred in such a way that after the must again be enforced. The contributory negligence of the child and her
automobile had run over the body of the child, and the child's body had mother, if any, does not operate as a bar to recovery, but in its strictest
already been stretched out on the ground, the automobile still moved along a sense could only result in reduction of the damages.
distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed without It is most significant that in the case just cited, this Court specifically applied article
the defendant having blown the horn. If these precautions had been taken by 1902 of the Civil Code. It is thus that although J. V. House could have been criminally
the defendant, the deplorable accident which caused the death of the child prosecuted for reckless or simple negligence and not only punished but also made
would not have occurred. civilly liable because of his criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or negligence under article 1902 of
It will be noticed that the defendant in the above case could have been prosecuted in the Civil Code.
a criminal case because his negligence causing the death of the child was punishable
by the Penal Code. Here is therefore a clear instance of the same act of negligence In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for
being a proper subject-matter either of a criminal action with its consequent civil damages for the death of the plaintiff's daughter alleged to have been caused by the
liability arising from a crime or of an entirely separate and independent civil action for negligence of the servant in driving an automobile over the child. It appeared that the
fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the cause of the mishap was a defect in the steering gear. The defendant Leynes had
separate individually of a cuasi-delito or culpa aquiliana under the Civil Code has rented the automobile from the International Garage of Manila, to be used by him in
been fully and clearly recognized, even with regard to a negligent act for which the carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the
wrongdoer could have been prosecuted and convicted in a criminal case and for lower court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed
which, after such a conviction, he could have been sued for this civil liability arising the judgment as to Leynes on the ground that he had shown that the exercised the
from his crime. care of a good father of a family, thus overcoming the presumption of negligence
under article 1903. This Court said:
Years later (in 1930) this Court had another occasion to apply the same doctrine.
In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., As to selection, the defendant has clearly shown that he exercised the care
327, the parents of the five-year-old child, Purificacion Bernal, brought a civil action to and diligence of a good father of a family. He obtained the machine from a
recover damages for the child's death as a result of burns caused by the fault and reputable garage and it was, so far as appeared, in good condition. The
negligence of the defendants. On the evening of April 10, 1925, the Good Friday workmen were likewise selected from a standard garage, were duly licensed
procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter by the Government in their particular calling, and apparently thoroughly
Purificacion Bernal had come from another municipality to attend the same. After the competent. The machine had been used but a few hours when the accident
procession the mother and the daughter with two others were passing along Gran occurred and it is clear from the evidence that the defendant had no notice,
Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned either actual or constructive, of the defective condition of the steering gear.
by defendants J. V. House, when an automobile appeared from the opposite
direction. The little girl, who was slightly ahead of the rest, was so frightened by the
automobile that she turned to run, but unfortunately she fell into the street gutter The legal aspect of the case was discussed by this Court thus:
where hot water from the electric plant was flowing. The child died that same night
from the burns. The trial courts dismissed the action because of the contributory Article 1903 of the Civil Code not only establishes liability in cases of
negligence of the plaintiffs. But this Court held, on appeal, that there was no negligence, but also provides when the liability shall cease. It says:
contributory negligence, and allowed the parents P1,000 in damages from J. V.
House who at the time of the tragic occurrence was the holder of the franchise for the "The liability referred to in this article shall cease when the persons
electric plant. This Court said in part: mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused vessel of any tonnage, and that the appellee contracted his services
by the negligence of a servant or employee there instantly arises a because of his reputation as a captain, according to F. C. Cadwallader. This
presumption of law that there was negligence on the part of the matter or being so, we are of the opinion that the presumption of liability against the
employer either in the selection of the servant or employee, or in supervision defendant has been overcome by the exercise of the care and diligence of a
over him after the selection, or both; and (2) that presumption is juris good father of a family in selecting Captain Lasa, in accordance with the
tantum and not juris et de jure, and consequently, may be rebutted. It follows doctrines laid down by this court in the cases cited above, and the defendant
necessarily that if the employer shows to the satisfaction of the court that in is therefore absolved from all liability.
selection and supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is relieve from It is, therefore, seen that the defendant's theory about his secondary liability is
liability. negatived by the six cases above set forth. He is, on the authority of these cases,
primarily and directly responsible in damages under article 1903, in relation to article
This theory bases the responsibility of the master ultimately on his own 1902, of the Civil Code.
negligence and not on that of his servant.
Let us now take up the Philippine decisions relied upon by the defendant. We study
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision
Phil., 37 [year 1915]). In the latter case, the complaint alleged that the defendant's between a truck of the City of Manila and a street car of the Manila Electric Co. took
servant had so negligently driven an automobile, which was operated by defendant as place on June 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto
a public vehicle, that said automobile struck and damaged the plaintiff's motorcycle. Eustaquio, the motorman, was prosecuted for the crime of damage to property and
This Court, applying article 1903 and following the rule in Bahia vs. Litonjua and slight injuries through reckless imprudence. He was found guilty and sentenced to
Leynes, said in part (p. 41) that: pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio,
The master is liable for the negligent acts of his servant where he is the the City of Manila filed an action against the Manila Electric Company to obtain
owner or director of a business or enterprise and the negligent acts are payment, claiming that the defendant was subsidiarily liable. The main defense was
committed while the servant is engaged in his master's employment as such that the defendant had exercised the diligence of a good father of a family to prevent
owner. the damage. The lower court rendered judgment in favor of the plaintiff. This Court
held, in part, that this case was governed by the Penal Code, saying:
Another case which followed the decision in Bahia vs. Litonjua and Leynes was
Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an With this preliminary point out of the way, there is no escaping the
action for damages brought by Cuison for the death of his seven-year-old son Moises. conclusion that the provisions of the Penal Code govern. The Penal Code in
The little boy was on his way to school with his sister Marciana. Some large pieces of easily understandable language authorizes the determination of subsidiary
lumber fell from a truck and pinned the boy underneath, instantly killing him. Two liability. The Civil Code negatives its application by providing that civil
youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an obligations arising from crimes or misdemeanors shall be governed by the
employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide provisions of the Penal Code. The conviction of the motorman was a
through reckless negligence and were sentenced accordingly. This Court, applying misdemeanor falling under article 604 of the Penal Code. The act of the
articles 1902 and 1903, held: motorman was not a wrongful or negligent act or omission not punishable by
law. Accordingly, the civil obligation connected up with the Penal Code and
not with article 1903 of the Civil Code. In other words, the Penal Code
The basis of civil law liability is not respondent superior but the relationship affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a
of pater familias. This theory bases the liability of the master ultimately on case of criminal negligence out of which civil liability arises and not a case of
his own negligence and not on that of his servant. (Bahia vs.Litonjua and civil negligence.
Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38
Phil., 768.)
xxx xxx xxx
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year
1930) the plaintiff brought an action for damages for the demolition of its wharf, which Our deduction, therefore, is that the case relates to the Penal Code and not
had been struck by the steamer Helen C belonging to the defendant. This Court held to the Civil Code. Indeed, as pointed out by the trial judge, any different
(p. 526): ruling would permit the master to escape scot-free by simply alleging and
proving that the master had exercised all diligence in the selection and
training of its servants to prevent the damage. That would be a good
The evidence shows that Captain Lasa at the time the plaintiff's wharf defense to a strictly civil action, but might or might not be to a civil action
collapsed was a duly licensed captain, authorized to navigate and direct a either as a part of or predicated on conviction for a crime or misdemeanor.
(By way of parenthesis, it may be said further that the statements here made The foregoing authorities clearly demonstrate the separate individuality of cuasi-
are offered to meet the argument advanced during our deliberations to the delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a
effect that article 0902 of the Civil Code should be disregarded and codal distinction between civil liability arising from criminal negligence (governed by the
articles 1093 and 1903 applied.) Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of
the Civil Code, and that the same negligent act may produce either a civil liability
It is not clear how the above case could support the defendant's proposition, because arising from a crime under the Penal Code, or a separate responsibility for fault or
the Court of Appeals based its decision in the present case on the defendant's negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the
primary responsibility under article 1903 of the Civil Code and not on his subsidiary authorities above cited render it inescapable to conclude that the employer — in this
liability arising from Fontanilla's criminal negligence. In other words, the case of City case the defendant-petitioner — is primarily and directly liable under article 1903 of
of Manila vs. Manila Electric Co., supra, is predicated on an entirely different theory, the Civil Code.
which is the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the The legal provisions, authors, and cases already invoked should ordinarily be
present case is the employer's primary liability under article 1903 of the Civil Code. sufficient to dispose of this case. But inasmuch as we are announcing doctrines that
We have already seen that this is a proper and independent remedy. have been little understood in the past, it might not be inappropriate to indicate their
foundations.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the
defendant. A motorman in the employ of the Manila Electric Company had been Firstly, the Revised Penal Code in article 365 punishes not only reckless but also
convicted o homicide by simple negligence and sentenced, among other things, to simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer
pay the heirs of the deceased the sum of P1,000. An action was then brought to only to fault or negligence not punished by law, according to the literal import of article
enforce the subsidiary liability of the defendant as employer under the Penal Code. 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little
The defendant attempted to show that it had exercised the diligence of a good father scope and application in actual life. Death or injury to persons and damage to
of a family in selecting the motorman, and therefore claimed exemption from civil property through any degree of negligence — even the slightest — would have to be
liability. But this Court held: indemnified only through the principle of civil liability arising from a crime. In such a
state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are
In view of the foregoing considerations, we are of opinion and so hold, (1) loath to impute to the lawmaker any intention to bring about a situation so absurd and
that the exemption from civil liability established in article 1903 of the Civil anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter
Code for all who have acted with the diligence of a good father of a family, is that killeth rather than the spirit that giveth life. We will not use the literal meaning of
not applicable to the subsidiary civil liability provided in article 20 of the the law to smother and render almost lifeless a principle of such ancient origin and
Penal Code. such full-grown development as culpa aquiliana or cuasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
The above case is also extraneous to the theory of the defendant in the instant case,
because the action there had for its purpose the enforcement of the defendant's Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's cause reasonable doubt is required, while in a civil case, preponderance of evidence is
of action is based on the defendant's primary and direct responsibility under article sufficient to make the defendant pay in damages. There are numerous cases of
1903 of the Civil Code. In fact, the above case destroys the defendant's contention criminal negligence which can not be shown beyond reasonable doubt, but can be
because that decision illustrates the principle that the employer's primary proved by a preponderance of evidence. In such cases, the defendant can and
responsibility under article 1903 of the Civil Code is different in character from his should be made responsible in a civil action under articles 1902 to 1910 of the Civil
subsidiary liability under the Penal Code. Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus
ibi remedium.

In trying to apply the two cases just referred to, counsel for the defendant has failed to
recognize the distinction between civil liability arising from a crime, which is governed Thirdly, to hold that there is only one way to make defendant's liability effective, and
by the Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the that is, to sue the driver and exhaust his (the latter's) property first, would be
Civil Code, and has likewise failed to give the importance to the latter type of civil tantamount to compelling the plaintiff to follow a devious and cumbersome method of
action. obtaining relief. True, there is such a remedy under our laws, but there is also a more
expeditious way, which is based on the primary and direct responsibility of the
defendant under article 1903 of the Civil Code. Our view of the law is more likely to
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case facilitate remedy for civil wrongs, because the procedure indicated by the defendant is
need not be set forth. Suffice it to say that the question involved was also civil liability wasteful and productive of delay, it being a matter of common knowledge that
arising from a crime. Hence, it is as inapplicable as the two cases above discussed. professional drivers of taxis and similar public conveyance usually do not have
sufficient means with which to pay damages. Why, then, should the plaintiff be
required in all cases to go through this roundabout, unnecessary, and probably
useless procedure? In construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility of
employers and their presumed negligence are principles calculated to protect society.
Workmen and employees should be carefully chosen and supervised in order to avoid
injury to the public. It is the masters or employers who principally reap the profits
resulting from the services of these servants and employees. It is but right that they
should guarantee the latter's careful conduct for the personnel and patrimonial safety
of others. As Theilhard has said, "they should reproach themselves, at least, some for
their weakness, others for their poor selection and all for their negligence." And
according to Manresa, "It is much more equitable and just that such responsibility
should fall upon the principal or director who could have chosen a careful and prudent
employee, and not upon the injured person who could not exercise such selection
and who used such employee because of his confidence in the principal or director."
(Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the
employer on the principle of representation of the principal by the agent. Thus,
Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the
employer and employee "vienen a ser como una sola personalidad, por refundicion
de la del dependiente en la de quien le emplea y utiliza." ("become as one personality
by the merging of the person of the employee in that of him who employs and utilizes
him.") All these observations acquire a peculiar force and significance when it comes
to motor accidents, and there is need of stressing and accentuating the responsibility
of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and
the Civil Code on this subject, which has given rise to the overlapping or concurrence
of spheres already discussed, and for lack of understanding of the character and
efficacy of the action for culpa aquiliana, there has grown up a common practice to
seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by our laws, it has nevertheless
rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are
asked to help perpetuate this usual course. But we believe it is high time we pointed
out to the harm done by such practice and to restore the principle of responsibility for
fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for the better safeguarding of
private rights because it re-establishes an ancient and additional remedy, and for the
further reason that an independent civil action, not depending on the issues,
limitations and results of a criminal prosecution, and entirely directed by the party
wronged or his counsel, is more likely to secure adequate and efficacious redress.

In view of the foregoing, the judgment of the Court of Appeals should be and is
hereby affirmed, with costs against the defendant-petitioner.
G.R. No. 84516 December 5, 1989 imposed upon him by the court. The private prosecutor, however, did not move for the
appearance of Eduardo Toribio.
DIONISIO CARPIO, petitioner,
vs. The civil aspect of the above-quoted decision was appealed by the private prosecutor
HON. SERGIO DOROJA, (Presiding Judge, MTC, Branch IV, Zamboanga City) to the Regional Trial Court Branch XVI, appellant praying for moral damages in the
and EDWIN RAMIREZ Y WEE, respondents. amount of P 10,000.00, compensatory damages at P6,186.40, and attorney's fees of
P 5,000.00. The appellate court, on January 20, 1988, modified the trial court's
decision, granting the appellant moral damages in the amount of Five Thousand
Pesos (P 5,000.00), while affirming all other civil liabilities.
PARAS, J.:
Thereafter, a writ of execution dated March 10, 1988 was duly served upon the
accused but was, however, returned unsatisfied due to the insolvency of the accused
Before us is a petition to review by certiorari the decision of the Municipal Trial Court as shown by the sheriffs return. Thus, complainant moved for a subsidiary writ of
of Zamboanga City, Branch IV, which denied petitioner's motion for subsidiary writ of execution against the subsidiary liability of the owner-operator of the vehicle. The
execution against the owner-operator of the vehicle which figured in the accident. same was denied by the trial court on two grounds, namely, the decision of the
appellate court made no mention of the subsidiary liability of Eduardo Toribio, and the
The facts of the case are undisputed. nature of the accident falls under "culpa-aquiliana" and not culpa-contractual." A
motion for reconsideration of the said order was disallowed for the reason that
Sometime on October 23, 1985, accused-respondent Edwin Ramirez, while driving a complainant having failed to raise the matter of subsidiary liability with the appellate
passenger Fuso Jitney owned and operated by Eduardo Toribio, bumped Dionisio court, said court rendered its decision which has become final and executory and the
Carpio, a pedestrian crossing the street, as a consequence of which the latter trial court has no power to alter or modify such decision.
suffered from a fractured left clavicle as reflected in the medico-legal certificate and
sustained injuries which required medical attention for a period of (3) three months. Hence, the instant petition.

An information for Reckless Imprudence Resulting to Serious Physical Injuries was Petitioner relies heavily on the case of Pajarito v. Seneris, 87 SCRA 275, which
filed against Edwin Ramirez with the Municipal Trial Court of Zamboanga City, Branch enunciates that "the subsidiary liability of the owner-operator is fixed by the judgment,
IV. On January 14, 1987, the accused voluntarily pleaded guilty to a lesser offense because if a case were to be filed against said operator, the court called upon to act
and was accordingly convicted for Reckless Imprudence Resulting to Less Serious thereto has no other function than to render a decision based on the indemnity award
Physical Injuries under an amended information punishable under Article 365 of the in the criminal case without power to amend or modify it even if in his opinion an error
Revised Penal Code. The dispositive portion of the decision handed down on May 27, has been committed in the decision." Petitioner maintains that the tenor of the
1987 reads as follows: aforesaid decision implies that the subsidiary liability of the owner-operator may be
enforced in the same proceeding and a separate action is no longer necessary in
WHEREFORE, finding the accused EDWIN RAMIREZ y WEE guilty as a principal order to avoid undue delay, notwithstanding the fact that said employer was not made
beyond reasonable doubt of the Amended Information to which he voluntarily pleaded a party in the criminal action.
guilty and appreciating this mitigating circumstance in his favor, hereby sentences
him to suffer the penalty of One (1) month and One (1) day to Two (2) months of It is the theory of respondent that the owner-operator cannot be validly held
Arresto Mayor in its minimum period. The accused is likewise ordered to indemnify subsidiarily liable for the following reasons, namely: (a) the matter of subsidiary
the complainant Dionisio A. Carpio the amount of P45.00 representing the value of liability was not raised on appeal; (b) contrary to the case of Pajarito v. Seneris, the
the 1/2 can of tomatoes lost; the amount of P200.00 which complainant paid to the injuries sustained by the complainant did not arise from the so-called "culpa-
Zamboanga General Hospital, to pay complainant the amount of Pl,500.00 as contractual" but from "culpa-aquiliana"; (c) the judgments of appellate courts may not
attorney's fees and to pay the cost of this suit. SO ORDERED. (p. 7, Rollo) be altered, modified, or changed by the court of origin; and (d) said owner was never
made a party to the criminal proceedings.
Thereafter, the accused filed an application for probation.
Thus, the underlying issue raised in this case is; whether or not the subsidiary liability
At the early stage of the trial, the private prosecutor manifested his desire to present of the owner-operator may be enforced in the same criminal proceeding against the
evidence to establish the civil liability of either the accused driver or the owner- driver where the award was given, or in a separate civil action.
operator of the vehicle. Accused's counsel moved that the court summon the owner of
the vehicle to afford the latter a day in court, on the ground that the accused is not The law involved in the instant case is Article 103 in relation to Article 100, both of the
only indigent but also jobless and thus cannot answer any civil liability that may be Revised Penal Code, which reads thus:
Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established subsidiary liability is already implied from the appellate court's decision. In the recent
in the next preceding article shall apply to employers, teachers, persons, and case of Vda. de Paman v. Seneris, 115 SCRA 709, this Court reiterated the following
corporations engaged in any kind of industry for felonies committed by their servants, pronouncement: "A judgment of conviction sentencing a defendant employer to pay
pupils, workmen, apprentices, or employees in the discharge of their duties. an indemnity in the absence of any collusion between the defendant and the offended
party, is conclusive upon the employer in an action for the enforcement of the latter's
Respondent contends that the case of Pajarito v. Seneris cannot be applied to the subsidiary liability not only with regard to the civil liability, but also with regard to its
present case, the former being an action involving culpa-contractual, while the latter amount." This being the case, this Court stated in Rotea v. Halili, 109 Phil. 495, "that
being one of culpa-aquiliana. Such a declaration is erroneous. The subsidiary liability the court has no other function than to render decision based upon the indemnity
in Art. 103 should be distinguished from the primary liability of employers, which is awarded in the criminal case and has no power to amend or modify it even if in its
quasi-delictual in character as provided in Art. 2180 of the New Civil Code. Under Art. opinion an error has been committed in the decision. A separate and independent
103, the liability emanated from a delict. On the other hand, the liability under Art. action is, therefore, unnecessary and would only unduly prolong the agony of the
2180 is founded on culpa-aquiliana. The present case is neither an action for culpa- heirs of the victim."
contractual nor for culpa-aquiliana. This is basically an action to enforce the civil
liability arising from crime under Art. 100 of the Revised Penal Code. In no case can Finally, the position taken by the respondent appellate court that to grant the motion
this be regarded as a civil action for the primary liability of the employer under Art. for subsidiary writ of execution would in effect be to amend its decision which has
2180 of the New Civil Code, i.e., action for culpa-aquiliana. already become final and executory cannot be sustained. Compelling the owner-
operator to pay on the basis of his subsidiary liability does not constitute an
In order that an employer may be held subsidiarily liable for the employee's civil amendment of the judgment because in an action under Art. 103 of the Revised
liability in the criminal action, it should be shown (1) that the employer, etc. is Penal Code, once all the requisites as earlier discussed are met, the employer
engaged in any kind of industry, (2) that the employee committed the offense in the becomes ipso facto subsidiarily liable, without need of a separate action. Such being
discharge of his duties and (3) that he is insolvent (Basa Marketing Corp. v. Bolinao, the case, the subsidiary liability can be enforced in the same case where the award
117 SCRA 156). The subsidiary liability of the employer, however, arises only after was given, and this does not constitute an act of amending the decision. It becomes
conviction of the employee in the criminal action. All these requisites present, the incumbent upon the court to grant a motion for subsidiary writ of execution (but only
employer becomes ipso facto subsidiarily liable upon the employee's conviction and after the employer has been heard), upon conviction of the employee and after
upon proof of the latter's insolvency. Needless to say, the case at bar satisfies all execution is returned unsatisfied due to the employee's insolvency.
these requirements.
WHEREFORE, the order of respondent court disallowing the motion for subsidiary
Furthermore, we are not convinced that the owner-operator has been deprived of his writ of execution is hereby SET ASIDE. The Court a quo is directed to hear and
day in court, because the case before us is not one wherein the operator is sued for a decide in the same proceeding the subsidiary liability of the alleged owner-operator of
primary liability under the Civil Code but one in which the subsidiary civil liability the passenger jitney. Costs against private respondent.
incident to and dependent upon his employee's criminal negligence is sought to be
enforced. Considering the subsidiary liability imposed upon the employer by law, he is
in substance and in effect a party to the criminal case. Ergo, the employer's
subsidiary liability may be determined and enforced in the criminal case as part of the
execution proceedings against the employee. This Court held in the earlier case
of Pajarito v. Seneris, supra, that "The proceeding for the enforcement of the
subsidiary civil liability may be considered as part of the proceeding for the execution
of the judgment. A case in which an execution has been issued is regarded as still
pending so that all proceedings on the execution are proceedings in the suit. There is
no question that the court which rendered the judgment has a general supervisory
control over its process of execution, and this power carries with it the right to
determine every question of fact and law which may be involved in the execution."

The argument that the owner-operator cannot be held subsidiarily liable because the
matter of subsidiary liability was not raised on appeal and in like manner, the
appellate court's decision made no mention of such subsidiary liability is of no
moment. As already discussed, the filing of a separate complaint against the operator
for recovery of subsidiary liability is not necessary since his liability is clear from the
decision against the accused. Such being the case, it is not indispensable for the
question of subsidiary liability to be passed upon by the appellate court. Such
G.R. No. 108164 February 23, 1995 Anthony King, Food and Beverage Manager of the Intercontinental Hotel, wrote back
to say that the credibility of private respondent had never been "in question." A copy
FAR EAST BANK AND TRUST COMPANY, petitioner, of this reply was sent to Luis by Festejo.
vs.
THE HONORABLE COURT OF APPEALS, LUIS A. LUNA and CLARITA S. Still evidently feeling aggrieved, private respondents, on 05 December 1988, filed a
LUNA, respondents. complaint for damages with the Regional Trial Court ("RTC") of Pasig against FEBTC.

On 30 March 1990, the RTC of Pasig, given the foregoing factual settings, rendered a
decision ordering FEBTC to pay private respondents (a) P300,000.00 moral
VITUG, J.: damages; (b) P50,000.00 exemplary damages; and (c) P20,000.00 attorney's fees.

Some time in October 1986, private respondent Luis A. Luna applied for, and was On appeal to the Court of Appeals, the appellate court affirmed the decision of the
accorded, a FAREASTCARD issued by petitioner Far East Bank and Trust Company trial court.
("FEBTC") at its Pasig Branch. Upon his request, the bank also issued a
supplemental card to private respondent Clarita S. Luna. Its motion for reconsideration having been denied by the appellate court, FEBTC has
come to this Court with this petition for review.
In August 1988, Clarita lost her credit card. FEBTC was forthwith informed. In order to
replace the lost card, Clarita submitted an affidavit of loss. In cases of this nature, the There is merit in this appeal.
bank's internal security procedures and policy would appear to be to meanwhile so
record the lost card, along with the principal card, as a "Hot Card" or "Cancelled Card" In culpa contractual, moral damages may be recovered where the defendant is shown
in its master file. to have acted in bad faith or with malice in the breach of the contract. 2 The Civil
Code provides:
On 06 October 1988, Luis tendered a despedida lunch for a close friend, a Filipino-
American, and another guest at the Bahia Rooftop Restaurant of the Hotel Art. 2220. Willful injury to property may be a legal ground for awarding moral
Intercontinental Manila. To pay for the lunch, Luis presented his FAREASTCARD to damages if the court should find that, under the circumstances, such
the attending waiter who promptly had it verified through a telephone call to the damages are justly due. The same rule applies to breaches of contract
bank's Credit Card Department. Since the card was not honored, Luis was forced to where the defendant acted fraudulently or in bad faith. (Emphasis supplied)
pay in cash the bill amounting to P588.13. Naturally, Luis felt embarrassed by this
incident.
Bad faith, in this context, includes gross, but not simple, negligence.3 Exceptionally, in
a contract of carriage, moral damages are also allowed in case of death of a
In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel, passenger attributable to the fault (which is presumed 4 ) of the common carrier.5
demanded from FEBTC the payment of damages. Adrian V. Festejo, a vice-president
of the bank, expressed the bank's apologies to Luis. In his letter, dated 03 November
1988, Festejo, in part, said: Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his
own card's cancellation. Nothing in the findings of the trial court and the appellate
court, however, can sufficiently indicate any deliberate intent on the part of FEBTC to
In cases when a card is reported to our office as lost, FAREASTCARD cause harm to private respondents. Neither could FEBTC's negligence in failing to
undertakes the necessary action to avert its unauthorized use (such as give personal notice to Luis be considered so gross as to amount to malice or bad
tagging the card as hotlisted), as it is always our intention to protect our faith.
cardholders.
Malice or bad faith implies a conscious and intentional design to do a wrongful act for
An investigation of your case however, revealed that FAREASTCARD failed a dishonest purpose or moral obliquity; it is different from the negative idea of
to inform you about its security policy. Furthermore, an overzealous negligence in that malice or bad faith contemplates a state of mind affirmatively
employee of the Bank's Credit Card Department did not consider the operating with furtive design or ill will.6
possibility that it may have been you who was presenting the card at that
time (for which reason, the unfortunate incident occurred). 1
We are not unaware of the previous rulings of this Court, such as in American
Express International, Inc., vs. Intermediate Appellate Court (167 SCRA 209)
Festejo also sent a letter to the Manager of the Bahia Rooftop Restaurant to assure and Bank of Philippine Islands vs. Intermediate Appellate Court (206 SCRA 408),
the latter that private respondents were "very valued clients" of FEBTC. William
sanctioning the application of Article 21, in relation to Article 2217 and Article 2219 7 of (a) In case of breach of contract (including one of transportation) proof of
the Civil Code to a contractual breach similar to the case at bench. Article 21 states: bad faith or fraud (dolus), i.e., wanton or deliberately injurious conduct, is
essential to justify an award of moral damages; and
Art. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate (b) That a breach of contract can not be considered included in the
the latter for the damage. descriptive term "analogous cases" used in Art. 2219; not only because Art.
2220 specifically provides for the damages that are caused contractual
Article 21 of the Code, it should be observed, contemplates a conscious act to cause breach, but because the definition of quasi-delict in Art. 2176 of the Code
harm. Thus, even if we are to assume that the provision could properly relate to a expressly excludes the cases where there is a "preexisitng contractual
breach of contract, its application can be warranted only when the defendant's relations between the parties."
disregard of his contractual obligation is so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad faith. Most importantly, Article Art. 2176. Whoever by act or omission causes damage to
21 is a mere declaration of a general principle in human relations that clearly must, in another, there being fault or negligence, is obliged to pay
any case, give way to the specific provision of Article 2220 of the Civil Code for the damage done. Such fault or negligence, if there is
authorizing the grant of moral damages in culpa contractual solely when the breach is no pre-existing contractual relation between the parties, is
due to fraud or bad faith. called a quasi-delict and is governed by the provisions of
this Chapter.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. Miranda8 explained with
great clarity the predominance that we should give to Article 2220 in contractual The exception to the basic rule of damages now under consideration is a
relations; we quote: mishap resulting in the death of a passenger, in which case Article 1764
makes the common carrier expressly subject to the rule of Art. 2206, that
Anent the moral damages ordered to be paid to the respondent, the same entitles the spouse, descendants and ascendants of the deceased
must be discarded. We have repeatedly ruled (Cachero vs. Manila Yellow passenger to "demand moral damages for mental anguish by reason of the
Taxicab Co. Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599; Necesito, et al. vs. death of the deceased" (Necesito vs. Paras, 104 Phil. 84, Resolution on
Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023), that moral damages are not motion to reconsider, September 11, 1958). But the exceptional rule of Art.
recoverable in damage actions predicated on a breach of the contract of 1764 makes it all the more evident that where the injured passenger does
transportation, in view of Articles 2219 and 2220 of the new Civil Code, not die, moral damages are not recoverable unless it is proved that the
which provide as follows: carrier was guilty of malice or bad faith. We think it is clear that the mere
carelessness of the carrier's driver does not per se constitute or justify an
inference of malice or bad faith on the part of the carrier; and in the case at
Art. 2219. Moral damages may be recovered in the bar there is no other evidence of such malice to support the award of moral
following and analogous cases: damages by the Court of Appeals. To award moral damages for breach of
contract, therefore, without proof of bad faith or malice on the part of the
(1) A criminal offense resulting in physical injuries; defendant, as required by Art. 2220, would be to violate the clear provisions
of the law, and constitute unwarranted judicial legislation.
(2) Quasi-delicts causing physical injuries;
xxx xxx xxx
xxx xxx xxx
The distinction between fraud, bad faith or malice in the sense of deliberate
Art. 2220. Wilful injury to property may be a legal ground or wanton wrong doing and negligence (as mere carelessness) is too
for awarding moral damages if the court should find that, fundamental in our law to be ignored (Arts. 1170-1172); their consequences
under the circumstances, such damages are justly due. being clearly differentiated by the Code.
The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith. Art. 2201. In contracts and quasi-contracts, the damages
for which the obligor who acted in good faith is liable shall
By contrasting the provisions of these two articles it immediately becomes be those that are the natural and probable consequences
apparent that: of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time
the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card
obligor shall be responsible for all damages which may be issued to private respondent Luis should entitle him to recover a measure of damages
reasonably attributed to the non-performance of the sanctioned under Article 2221 of the Civil Code providing thusly:
obligation.
Art. 2221. Nominal damages are adjudicated in order that a right of the
It is to be presumed, in the absence of statutory provision to the contrary, plaintiff, which has been violated or invaded by the defendant, may be
that this difference was in the mind of the lawmakers when in Art. 2220 they vindicated or recognized, and not for the purpose of indemnifying the plaintiff
limited recovery of moral damages to breaches of contract in bad faith. It is for any loss suffered by him.
true that negligence may be occasionally so gross as to amount to malice;
but the fact must be shown in evidence, and a carrier's bad faith is not to be Reasonable attorney's fees may be recovered where the court deems such recovery
lightly inferred from a mere finding that the contract was breached through to be just and equitable (Art. 2208, Civil Code). We see no issue of sound discretion
negligence of the carrier's employees. on the part of the appellate court in allowing the award thereof by the trial court.

The Court has not in the process overlooked another rule that a quasi-delict can be WHEREFORE, the petition for review is given due course. The appealed decision is
the cause for breaching a contract that might thereby permit the application of MODIFIED by deleting the award of moral and exemplary damages to private
applicable principles on tort9 even where there is a pre-existing contract between the respondents; in its stead, petitioner is ordered to pay private respondent Luis A. Luna
plaintiff and the defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA 143; an amount of P5,000.00 by way of nominal damages. In all other respects, the
Singson vs. Bank of Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18 appealed decision is AFFIRMED. No costs.
SCRA 155). This doctrine, unfortunately, cannot improve private respondents' case
for it can aptly govern only where the act or omission complained of would constitute
an actionable tort independently of the contract. The test (whether a quasi-delict can
be deemed to underlie the breach of a contract) can be stated thusly: Where, without
a pre-existing contract between two parties, an act or omission can nonetheless
amount to an actionable tort by itself, the fact that the parties are contractually bound
is no bar to the application of quasi-delict provisions to the case. Here, private
respondents' damage claim is predicated solely on their contractual relationship;
without such agreement, the act or omission complained of cannot by itself be held to
stand as a separate cause of action or as an independent actionable tort.

The Court finds, therefore, the award of moral damages made by the court a quo,
affirmed by the appellate court, to be inordinate and substantially devoid of legal
basis.

Exemplary or corrective damages, in turn, are intended to serve as an example or as


correction for the public good in addition to moral, temperate, liquidated or
compensatory damages (Art. 2229, Civil Code; see Prudenciado vs. Alliance
Transport System, 148 SCRA 440; Lopez vs. Pan American World Airways, 16 SCRA
431). In criminal offenses, exemplary damages are imposed when the crime is
committed with one or more aggravating circumstances (Art. 2230, Civil Code).
In quasi-delicts, such damages are granted if the defendant is shown to have been so
guilty of gross negligence as to approximate malice (See Art. 2231, Civil Code; CLLC
E.G. Gochangco Workers Union vs. NLRC, 161 SCRA 655; Globe Mackay Cable and
Radio Corp. vs. CA, 176 SCRA 778). In contracts and quasi-contracts, the court may
award exemplary damages if the defendant is found to have acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner (Art. 2232, Civil Code; PNB
vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).

Given the above premises and the factual circumstances here obtaining, it would also
be just as arduous to sustain the exemplary damages granted by the courts below
(see De Leon vs. Court of Appeals, 165 SCRA 166).
[G.R. No. 145804. February 6, 2003] 3) Indemnity for the death of Nicanor Navidad in the sum of
P50,000.00;

b) Moral damages of P50,000.00;


LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs. MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & c) Attorneys fees of P20,000;
PRUDENT SECURITY AGENCY, respondents.
d) Costs of suit.
DECISION
VITUG, J.: The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack
of merit.
The case before the Court is an appeal from the decision and resolution of the
Court of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively, in The compulsory counterclaim of LRTA and Roman are likewise dismissed. [1]
CA-G.R. CV No. 60720, entitled Marjorie Navidad and Heirs of the Late Nicanor
Navidad vs. Rodolfo Roman, et. al., which has modified the decision of 11 August Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate
1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent court promulgated its now assailed decision exonerating Prudent from any liability for
Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) the death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and
and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad. severally liable thusly:
On 14 October 1993, about half an hour past seven oclock in the evening,
Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a token WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the
(representing payment of the fare). While Navidad was standing on the platform near appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees
the LRT tracks, Junelito Escartin, the security guard assigned to the area approached Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his
Navidad. A misunderstanding or an altercation between the two apparently ensued death and are hereby directed to pay jointly and severally to the plaintiffs-appellees,
that led to a fist fight. No evidence, however, was adduced to indicate how the fight the following amounts:
started or who, between the two, delivered the first blow or how Navidad later fell on
the LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by a) P44,830.00 as actual damages;
petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train,
and he was killed instantaneously.
b) P50,000.00 as nominal damages;
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie
Navidad, along with her children, filed a complaint for damages against Junelito c) P50,000.00 as moral damages;
Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro
Transit), and Prudent for the death of her husband. LRTA and Roman filed a
d) P50,000.00 as indemnity for the death of the deceased; and
counterclaim against Navidad and a cross-claim against Escartin and
Prudent. Prudent, in its answer, denied liability and averred that it had exercised due
diligence in the selection and supervision of its security guards. e) P20,000.00 as and for attorneys fees.[2]

The LRTA and Roman presented their evidence while Prudent and Escartin,
The appellate court ratiocinated that while the deceased might not have then as
instead of presenting evidence, filed a demurrer contending that Navidad had failed to
yet boarded the train, a contract of carriage theretofore had already existed when the
prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial
victim entered the place where passengers were supposed to be after paying the fare
court rendered its decision; it adjudged:
and getting the corresponding token therefor. In exempting Prudent from liability, the
court stressed that there was nothing to link the security agency to the death of
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the
defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly victim and the evidence merely established the fact of death of Navidad by reason of
and severally the plaintiffs the following: his having been hit by the train owned and managed by the LRTA and operated at the
time by Roman. The appellate court faulted petitioners for their failure to present
a) 1) Actual damages of P44,830.00; expert evidence to establish the fact that the application of emergency brakes could
not have stopped the train.
2) Compensatory damages of P443,520.00;
The appellate court denied petitioners motion for reconsideration in its resolution Article 1759. Common carriers are liable for the death of or injuries to passengers
of 10 October 2000. through the negligence or willful acts of the formers employees, although such
employees may have acted beyond the scope of their authority or in violation of the
In their present recourse, petitioners recite alleged errors on the part of the orders of the common carriers.
appellate court; viz:
I. This liability of the common carriers does not cease upon proof that they exercised all
the diligence of a good father of a family in the selection and supervision of their
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING employees.
THE FINDINGS OF FACTS BY THE TRIAL COURT
Article 1763. A common carrier is responsible for injuries suffered by a passenger on
II. account of the willful acts or negligence of other passengers or of strangers, if the
common carriers employees through the exercise of the diligence of a good father of
a family could have prevented or stopped the act or omission.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
The law requires common carriers to carry passengers safely using the utmost
diligence of very cautious persons with due regard for all circumstances. [5] Such duty
III. of a common carrier to provide safety to its passengers so obligates it not only during
the course of the trip but for so long as the passengers are within its premises and
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT where they ought to be in pursuance to the contract of carriage.[6] The statutory
RODOLFO ROMAN IS AN EMPLOYEE OF LRTA.[3] provisions render a common carrier liable for death of or injury to passengers
(a) through the negligence or wilful acts of its employees or b) on account of
wilful acts or negligence of other passengers or of strangers if the common
Petitioners would contend that the appellate court ignored the evidence and the
carriers employees through the exercise of due diligence could have prevented
factual findings of the trial court by holding them liable on the basis of a sweeping
or stopped the act or omission.[7] In case of such death or injury, a carrier is
conclusion that the presumption of negligence on the part of a common carrier was
presumed to have been at fault or been negligent, and [8] by simple proof of injury, the
not overcome. Petitioners would insist that Escartins assault upon Navidad, which
passenger is relieved of the duty to still establish the fault or negligence of the carrier
caused the latter to fall on the tracks, was an act of a stranger that could not have
or of its employees and the burden shifts upon the carrier to prove that the injury is
been foreseen or prevented. The LRTA would add that the appellate courts
due to an unforeseen event or to force majeure. [9] In the absence of satisfactory
conclusion on the existence of an employer-employee relationship between Roman
explanation by the carrier on how the accident occurred, which petitioners, according
and LRTA lacked basis because Roman himself had testified being an employee of
to the appellate court, have failed to show, the presumption would be that it has been
Metro Transit and not of the LRTA.
at fault,[10] an exception from the general rule that negligence must be proved.[11]
Respondents, supporting the decision of the appellate court, contended that a
The foundation of LRTAs liability is the contract of carriage and its obligation to
contract of carriage was deemed created from the moment Navidad paid the fare at
indemnify the victim arises from the breach of that contract by reason of its failure to
the LRT station and entered the premises of the latter, entitling Navidad to all the
exercise the high diligence required of the common carrier. In the discharge of its
rights and protection under a contractual relation, and that the appellate court had
commitment to ensure the safety of passengers, a carrier may choose to hire its own
correctly held LRTA and Roman liable for the death of Navidad in failing to exercise
employees or avail itself of the services of an outsider or an independent firm to
extraordinary diligence imposed upon a common carrier.
undertake the task. In either case, the common carrier is not relieved of its
Law and jurisprudence dictate that a common carrier, both from the nature of its responsibilities under the contract of carriage.
business and for reasons of public policy, is burdened with the duty of exercising
Should Prudent be made likewise liable? If at all, that liability could only be for
utmost diligence in ensuring the safety of passengers. [4] The Civil Code, governing
tort under the provisions of Article 2176[12] and related provisions, in conjunction with
the liability of a common carrier for death of or injury to its passengers, provides:
Article 2180,[13] of the Civil Code. The premise, however, for the employers liability is
negligence or fault on the part of the employee. Once such fault is established, the
Article 1755. A common carrier is bound to carry the passengers safely as far as employer can then be made liable on the basis of the presumption juris tantum that
human care and foresight can provide, using the utmost diligence of very cautious the employer failed to exercise diligentissimi patris families in the selection and
persons, with a due regard for all the circumstances. supervision of its employees. The liability is primary and can only be negated by
showing due diligence in the selection and supervision of the employee, a factual
Article 1756. In case of death of or injuries to passengers, common carriers are matter that has not been shown. Absent such a showing, one might ask further, how
presumed to have been at fault or to have acted negligently, unless they prove that then must the liability of the common carrier, on the one hand, and an independent
they observed extraordinary diligence as prescribed in articles 1733 and 1755. contractor, on the other hand, be described? It would be solidary. A contractual
obligation can be breached by tort and when the same act or omission causes the
injury, one resulting in culpa contractual and the other in culpa aquiliana, Article
2194[14] of the Civil Code can well apply.[15]In fine, a liability for tort may arise even
under a contract, where tort is that which breaches the contract.[16] Stated differently,
when an act which constitutes a breach of contract would have itself constituted the
source of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules on tort
to apply.[17]
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the
late Nicanor Navidad, this Court is concluded by the factual finding of the Court of
Appeals that there is nothing to link (Prudent) to the death of Nicanor (Navidad), for
the reason that the negligence of its employee, Escartin, has not been duly proven x x
x. This finding of the appellate court is not without substantial justification in our own
review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is
guilty of any culpable act or omission, he must also be absolved from
liability. Needless to say, the contractual tie between the LRT and Navidad is not itself
a juridical relation between the latter and Roman; thus, Roman can be made liable
only for his own fault or negligence.
The award of nominal damages in addition to actual damages is
untenable. Nominal damages are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered
by him.[18] It is an established rule that nominal damages cannot co-exist with
compensatory damages.[19]
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with
MODIFICATION but only in that (a) the award of nominal damages is DELETED and
(b) petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.
G.R. No. L-21438 September 28, 1966 his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane.3
AIR FRANCE, petitioner,
vs. 1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of
RAFAEL CARRASCOSO and the HONORABLE COURT OF respondent Court of Appeals. Petitioner charges that respondent court failed to make
APPEALS, respondents. complete findings of fact on all the issues properly laid before it. We are asked to
consider facts favorable to petitioner, and then, to overturn the appellate court's
Lichauco, Picazo and Agcaoili for petitioner. decision.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
Coming into focus is the constitutional mandate that "No decision shall be rendered
by any court of record without expressing therein clearly and distinctly the facts and
the law on which it is based". 5 This is echoed in the statutory demand that a judgment
determining the merits of the case shall state "clearly and distinctly the facts and the
law on which it is based"; 6 and that "Every decision of the Court of Appeals shall
SANCHEZ, J.: contain complete findings of fact on all issues properly raised before it". 7

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael A decision with absolutely nothing to support it is a nullity. It is open to direct
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary attack. 8 The law, however, solely insists that a decision state the "essential ultimate
damages; P393.20 representing the difference in fare between first class and tourist facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound
class for the portion of the trip Bangkok-Rome, these various amounts with interest at to write in its decision every bit and piece of evidence 10 presented by one party and
the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for the other upon the issues raised. Neither is it to be burdened with the obligation "to
attorneys' fees; and the costs of suit. specify in the sentence the facts" which a party "considered as proved". 11 This is but
a part of the mental process from which the Court draws the essential ultimate facts.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on A decision is not to be so clogged with details such that prolixity, if not confusion, may
Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed result. So long as the decision of the Court of Appeals contains the necessary facts to
decision "in all other respects", with costs against petitioner. warrant its conclusions, it is no error for said court to withhold therefrom "any specific
finding of facts with respect to the evidence for the defense". Because as this Court
The case is now before us for review on certiorari. well observed, "There is no law that so requires". 12 Indeed, "the mere failure to
specify (in the decision) the contentions of the appellant and the reasons for refusing
to believe them is not sufficient to hold the same contrary to the requirements of the
The facts declared by the Court of Appeals as " fully supported by the evidence of provisions of law and the Constitution". It is in this setting that in Manigque, it was
record", are: held that the mere fact that the findings "were based entirely on the evidence for the
prosecution without taking into consideration or even mentioning the appellant's side
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims in the controversy as shown by his own testimony", would not vitiate the
that left Manila for Lourdes on March 30, 1958. judgment. 13 If the court did not recite in the decision the testimony of each witness
for, or each item of evidence presented by, the defeated party, it does not mean that
the court has overlooked such testimony or such item of evidence. 14 At any rate, the
On March 28, 1958, the defendant, Air France, through its authorized agent,
legal presumptions are that official duty has been regularly performed, and that all the
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane
matters within an issue in a case were laid before the court and passed upon by it. 15
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in
"first class", but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying because, in the Findings of fact, which the Court of Appeals is required to make, maybe defined as
words of the witness Ernesto G. Cuento, there was a "white man", who, the "the written statement of the ultimate facts as found by the court ... and essential to
Manager alleged, had a "better right" to the seat. When asked to vacate his support the decision and judgment rendered thereon". 16They consist of the
"first class" seat, the plaintiff, as was to be expected, refused, and told court's "conclusions" with respect to the determinative facts in issue". 17 A question of
defendant's Manager that his seat would be taken over his dead body; a law, upon the other hand, has been declared as "one which does not call for an
commotion ensued, and, according to said Ernesto G. Cuento, "many of the examination of the probative value of the evidence presented by the parties." 18
Filipino passengers got nervous in the tourist class; when they found out that
Mr. Carrascoso was having a hot discussion with the white man [manager], 2. By statute, "only questions of law may be raised" in an appeal by certiorari from a
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is
not appropriately the business of this Court to alter the facts or to review the A. That the space is confirmed.
questions of fact. 20
Q. Confirmed for first class?
With these guideposts, we now face the problem of whether the findings of fact of the
Court of Appeals support its judgment. A. Yes, "first class". (Transcript, p. 169)

3. Was Carrascoso entitled to the first class seat he claims? xxx xxx xxx

It is conceded in all quarters that on March 28, 1958 he paid to and received from Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael
petitioner a first class ticket. But petitioner asserts that said ticket did not represent Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket,
the true and complete intent and agreement of the parties; that said respondent knew the ticket was subject to confirmation in Hongkong. The court cannot give credit to the
that he did not have confirmed reservations for first class on any specific flight, testimony of said witnesses. Oral evidence cannot prevail over written evidence, and
although he had tourist class protection; that, accordingly, the issuance of a first class plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
ticket was no guarantee that he would have a first class ride, but that such would witnesses, and clearly show that the plaintiff was issued, and paid for, a first class
depend upon the availability of first class seats. ticket without any reservation whatever.

These are matters which petitioner has thoroughly presented and discussed in its Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga
brief before the Court of Appeals under its third assignment of error, which reads: testified that the reservation for a "first class" accommodation for the plaintiff was
"The trial court erred in finding that plaintiff had confirmed reservations for, and a right confirmed. The court cannot believe that after such confirmation defendant had a
to, first class seats on the "definite" segments of his journey, particularly that from verbal understanding with plaintiff that the "first class" ticket issued to him by
Saigon to Beirut". 21 defendant would be subject to confirmation in Hongkong. 23

And, the Court of Appeals disposed of this contention thus: We have heretofore adverted to the fact that except for a slight difference of a few
pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of
Defendant seems to capitalize on the argument that the issuance of a first- First Instance was affirmed by the Court of Appeals in all other respects. We hold the
class ticket was no guarantee that the passenger to whom the same had view that such a judgment of affirmance has merged the judgment of the lower
been issued, would be accommodated in the first-class compartment, for as court. 24Implicit in that affirmance is a determination by the Court of Appeals that the
in the case of plaintiff he had yet to make arrangements upon arrival at every proceeding in the Court of First Instance was free from prejudicial error and "all
station for the necessary first-class reservation. We are not impressed by questions raised by the assignments of error and all questions that might have been
such a reasoning. We cannot understand how a reputable firm like raised are to be regarded as finally adjudicated against the appellant". So also, the
defendant airplane company could have the indiscretion to give out tickets it judgment affirmed "must be regarded as free from all error". 25 We reached this policy
never meant to honor at all. It received the corresponding amount in construction because nothing in the decision of the Court of Appeals on this point
payment of first-class tickets and yet it allowed the passenger to be at the would suggest that its findings of fact are in any way at war with those of the trial
mercy of its employees. It is more in keeping with the ordinary course of court. Nor was said affirmance by the Court of Appeals upon a ground or grounds
business that the company should know whether or riot the tickets it issues different from those which were made the basis of the conclusions of the trial court. 26
are to be honored or not.22
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's seat, notwithstanding the fact that seat availability in specific flights is therein
contention, thus: confirmed, then an air passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be an easy matter for an
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no airline aided by its employees, to strike out the very stipulations in the ticket, and say
question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", that there was a verbal agreement to the contrary. What if the passenger had a
"C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's schedule to fulfill? We have long learned that, as a rule, a written document speaks a
testimony and testified as follows: uniform language; that spoken word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower courts refused to believe the
Q. In these tickets there are marks "O.K." From what you know, what does oral evidence intended to defeat the covenants in the ticket.
this OK mean?
The foregoing are the considerations which point to the conclusion that there are facts xxx xxx xxx
upon which the Court of Appeals predicated the finding that respondent Carrascoso
had a first class ticket and was entitled to a first class seat at Bangkok, which is a The foregoing, in our opinion, substantially aver: First, That there was a contract to
stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran
distortions by the Court of Appeals of petitioner's statement of its position", as leg; Second, That said contract was breached when petitioner failed to furnish first
charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that class transportation at Bangkok; and Third, that there was bad faith when petitioner's
respondent Carrascoso "surreptitiously took a first class seat to provoke an employee compelled Carrascoso to leave his first class accommodation berth "after
issue". 29And this because, as petitioner states, Carrascoso went to see the Manager he was already, seated" and to take a seat in the tourist class, by reason of which he
at his office in Bangkok "to confirm my seat and because from Saigon I was told again suffered inconvenience, embarrassments and humiliations, thereby causing him
to see the Manager". 30 Why, then, was he allowed to take a first class seat in the mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in
plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? moral damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and
4. Petitioner assails respondent court's award of moral damages. Petitioner's circumstances set forth therein. 34 The contract was averred to establish the relation
trenchant claim is that Carrascoso's action is planted upon breach of contract; that to between the parties. But the stress of the action is put on wrongful expulsion.
authorize an award for moral damages there must be an averment of fraud or bad
faith;31 and that the decision of the Court of Appeals fails to make a finding of bad Quite apart from the foregoing is that (a) right the start of the trial, respondent's
faith. The pivotal allegations in the complaint bearing on this issue are: counsel placed petitioner on guard on what Carrascoso intended to prove: That while
sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who
3. That ... plaintiff entered into a contract of air carriage with the Philippine gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the
Air Lines for a valuable consideration, the latter acting as general agents for contract was presented without objection on the part of the petitioner. It is, therefore,
and in behalf of the defendant, under which said contract, plaintiff was unnecessary to inquire as to whether or not there is sufficient averment in the
entitled to, as defendant agreed to furnish plaintiff, First Class passage on complaint to justify an award for moral damages. Deficiency in the complaint, if any,
defendant's plane during the entire duration of plaintiff's tour of Europe with was cured by the evidence. An amendment thereof to conform to the evidence is not
Hongkong as starting point up to and until plaintiff's return trip to Manila, ... . even required. 36 On the question of bad faith, the Court of Appeals declared:

4. That, during the first two legs of the trip from Hongkong to Saigon and That the plaintiff was forced out of his seat in the first class compartment of
from Saigon to Bangkok, defendant furnished to the plaintiff First Class the plane belonging to the defendant Air France while at Bangkok, and was
accommodation but only after protestations, arguments and/or insistence transferred to the tourist class not only without his consent but against his
were made by the plaintiff with defendant's employees. will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the
5. That finally, defendant failed to provide First Class passage, but instead plane in his notebook which notation reads as follows:
furnished plaintiff only Tourist Class accommodations from Bangkok to
Teheran and/or Casablanca, ... the plaintiff has been compelled by "First-class passenger was forced to go to the tourist class against
defendant's employees to leave the First Class accommodation berths at his will, and that the captain refused to intervene",
Bangkok after he was already seated.
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-
6. That consequently, the plaintiff, desiring no repetition of the inconvenience passenger. The captain of the plane who was asked by the manager of
and embarrassments brought by defendant's breach of contract was forced defendant company at Bangkok to intervene even refused to do so. It is
to take a Pan American World Airways plane on his return trip from Madrid noteworthy that no one on behalf of defendant ever contradicted or denied
to Manila.32 this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to
xxx xxx xxx secure his disposition; but defendant did neither. 37

2. That likewise, as a result of defendant's failure to furnish First Class The Court of appeals further stated —
accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and
humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded Neither is there evidence as to whether or not a prior reservation was made
feelings, social humiliation, and the like injury, resulting in moral damages in the by the white man. Hence, if the employees of the defendant at Bangkok sold
amount of P30,000.00. 33 a first-class ticket to him when all the seats had already been taken, surely
the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being contemplates a "state of mind affirmatively operating with furtive design or
ejected from his seat in the presence of others. Instead of explaining to the with some motive of self-interest or will or for ulterior purpose." 39
white man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who was then And if the foregoing were not yet sufficient, there is the express finding
safely ensconsced in his rightful seat. We are strengthened in our belief that of bad faith in the judgment of the Court of First Instance, thus:
this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the
letters "O.K." appearing on the tickets of plaintiff, said "that the space is The evidence shows that the defendant violated its contract of
confirmed for first class. Likewise, Zenaida Faustino, another witness for transportation with plaintiff in bad faith, with the aggravating
defendant, who was the chief of the Reservation Office of defendant, circumstances that defendant's Manager in Bangkok went to the
testified as follows: extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the "first
class" seat that he was occupying to, again using the words of the
"Q How does the person in the ticket-issuing office know what witness Ernesto G. Cuento, a "white man" whom he (defendant's
reservation the passenger has arranged with you? Manager) wished to accommodate, and the defendant has not
proven that this "white man" had any "better right" to occupy the
A They call us up by phone and ask for the confirmation." (t.s.n., p. "first class" seat that the plaintiff was occupying, duly paid for, and
247, June 19, 1959) for which the corresponding "first class" ticket was issued by the
defendant to him.40
In this connection, we quote with approval what the trial Judge has said on
this point: 5. The responsibility of an employer for the tortious act of its employees need not be
essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's
Why did the, using the words of witness Ernesto G. Cuento, "white manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:
man" have a "better right" to the seat occupied by Mr. Carrascoso?
The record is silent. The defendant airline did not prove "any ART. 21. Any person who willfully causes loss or injury to another in a
better", nay, any right on the part of the "white man" to the "First manner that is contrary to morals, good customs or public policy shall
class" seat that the plaintiff was occupying and for which he paid compensate the latter for the damage.
and was issued a corresponding "first class" ticket.
In parallel circumstances, we applied the foregoing legal precept; and, we held that
If there was a justified reason for the action of the defendant's upon the provisions of Article 2219 (10), Civil Code, moral damages are
Manager in Bangkok, the defendant could have easily proven it by recoverable. 42
having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully 6. A contract to transport passengers is quite different in kind and degree from any
suppressed would be adverse if produced [Sec. 69, par (e), Rules other contractual relation. 43 And this, because of the relation which an air-carrier
of Court]; and, under the circumstances, the Court is constrained to sustains with the public. Its business is mainly with the travelling public. It invites
find, as it does find, that the Manager of the defendant airline in people to avail of the comforts and advantages it offers. The contract of air carriage,
Bangkok not merely asked but threatened the plaintiff to throw him therefore, generates a relation attended with a public duty. Neglect or malfeasance of
out of the plane if he did not give up his "first class" seat because the carrier's employees, naturally, could give ground for an action for damages.
the said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38
Passengers do not contract merely for transportation. They have a right to be treated
by the carrier's employees with kindness, respect, courtesy and due consideration.
It is really correct to say that the Court of Appeals in the quoted portion first They are entitled to be protected against personal misconduct, injurious language,
transcribed did not use the term "bad faith". But can it be doubted that the indignities and abuses from such employees. So it is, that any rule or discourteous
recital of facts therein points to bad faith? The manager not only prevented conduct on the part of employees towards a passenger gives the latter an action for
Carrascoso from enjoying his right to a first class seat; worse, he imposed damages against the carrier. 44
his arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give way
to another passenger whose right thereto has not been established. Thus, "Where a steamship company 45 had accepted a passenger's check, it was a
Certainly, this is bad faith. Unless, of course, bad faith has assumed a breach of contract and a tort, giving a right of action for its agent in the presence of
meaning different from what is understood in law. For, "bad faith" third persons to falsely notify her that the check was worthless and demand payment
under threat of ejection, though the language used was not insulting and she was not
49
ejected." 46 And this, because, although the relation of passenger and carrier is I will allow that as part of his testimony.
"contractual both in origin and nature" nevertheless "the act that breaks the contract
may be also a tort". 47 And in another case, "Where a passenger on a railroad train, Petitioner charges that the finding of the Court of Appeals that the purser made an
when the conductor came to collect his fare tendered him the cash fare to a point entry in his notebook reading "First class passenger was forced to go to the tourist
where the train was scheduled not to stop, and told him that as soon as the train class against his will, and that the captain refused to intervene" is predicated upon
reached such point he would pay the cash fare from that point to destination, there evidence [Carrascoso's testimony above] which is incompetent. We do not think so.
was nothing in the conduct of the passenger which justified the conductor in using The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry
insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of does not come within the proscription of the best evidence rule. Such testimony is
South Carolina there held the carrier liable for the mental suffering of said admissible. 49a
passenger.1awphîl.nèt
Besides, from a reading of the transcript just quoted, when the dialogue happened,
Petitioner's contract with Carrascoso is one attended with public duty. The stress of the impact of the startling occurrence was still fresh and continued to be felt. The
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a excitement had not as yet died down. Statements then, in this environment, are
violation of public duty by the petitioner air carrier — a case of quasi-delict. Damages admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement
are proper. and mental and physical condition of the declarant". 51 The utterance of the purser
regarding his entry in the notebook was spontaneous, and related to the
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus — circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It
thus escapes the operation of the hearsay rule. It forms part of the res gestae.
Q You mentioned about an attendant. Who is that attendant and purser?
At all events, the entry was made outside the Philippines. And, by an employee of
A When we left already — that was already in the trip — I could not help it. petitioner. It would have been an easy matter for petitioner to have contradicted
So one of the flight attendants approached me and requested from me my Carrascoso's testimony. If it were really true that no such entry was made, the
ticket and I said, What for? and she said, "We will note that you transferred deposition of the purser could have cleared up the matter.
to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything We, therefore, hold that the transcribed testimony of Carrascoso is admissible in
there because I am protesting to this transfer". evidence.

Q Was she able to note it? 8. Exemplary damages are well awarded. The Civil Code gives the court ample power
to grant exemplary damages — in contracts and quasi- contracts. The only condition
A No, because I did not give my ticket. is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his
first class seat fits into this legal precept. And this, in addition to moral damages.54
Q About that purser?
9. The right to attorney's fees is fully established. The grant of exemplary damages
A Well, the seats there are so close that you feel uncomfortable and you justifies a similar judgment for attorneys' fees. The least that can be said is that the
don't have enough leg room, I stood up and I went to the pantry that was courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do
next to me and the purser was there. He told me, "I have recorded the not intend to break faith with the tradition that discretion well exercised — as it was
incident in my notebook." He read it and translated it to me — because it here — should not be disturbed.
was recorded in French — "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."
10. Questioned as excessive are the amounts decreed by both the trial court and the
Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of
Mr. VALTE — exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these
amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
I move to strike out the last part of the testimony of the witness because the the same. The dictates of good sense suggest that we give our imprimatur thereto.
best evidence would be the notes. Your Honor. Because, the facts and circumstances point to the reasonableness thereof. 57

COURT — On balance, we say that the judgment of the Court of Appeals does not suffer from
reversible error. We accordingly vote to affirm the same. Costs against petitioner. So
ordered
G.R. No. L-21291 March 28, 1969 the entrance of Clark Field, which was about 40 to 50 yards away from the tracks and
that while there he saw the jeep coming towards the Base. He said that said jeep
PRECIOLITA V. CORLISS, plaintiff-appellant, slowed down before reaching the crossing, that it made a brief stop but that it did not
vs. stop — dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr.
THE MANILA RAILROAD CO., defendant-appellant. shifted into first gear and that was what he meant by a brief stop. He also testified that
he could see the train coming from the direction of San Fernando and that he heard a
warning but that it was not sufficient enough to avoid the accident." 3 Also: "Virgilio de
Moises C. Nicomedes for plaintiff-appellant. la Paz, another witness of the plaintiff, testified that on the night of February 21, 1957,
The Government Corporate Counsel for defendant-appellee. he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep
going towards the direction of Clark Field. He stated that he heard the whistle of the
FERNANDO, J.: locomotive and saw the collision. The jeep, which caught fire, was pushed forward.
He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the
Youth, the threshold of life, is invariably accompanied by that euphoric sense of well- tooting of the horn. It did not stop at the railroad crossing, according to him." 4
being, and with reason. The future, bright with promise, looms ahead. One's powers
are still to be tested, but one feels ready for whatever challenge may come his way. After which reference was made to the testimony of the main witness for defendant-
There is that heady atmosphere of self-confidence, at times carried to excess. The appellee, Teodorico Capili, "who was at the engine at the time of the mishap," and
temptation to take risks is there, ever so often, difficult, if not impossible, to resist. who "testified that before the locomotive, which had been previously inspected and
There could be then a lessening of prudence and foresight, qualities usually found to be in good condition approached, the crossing, that is, about 300 meters
associated with age. For death seems so remote and contingent an event. Such is away, he blew the siren and repeated it in compliance with the regulations until he
not always the case though, and a slip may be attended with consequences at times saw the jeep suddenly spurt and that although the locomotive was running between
unfortunate, even fatal. 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was
caught in the middle of the tracks." 5
Some such thought apparently was in the mind of the lower court when it dismissed
the complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss 1. The above finding as to the non-existence of negligence attributable to defendant-
whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the appellee Manila Railroad Company comes to us encased in the armor of what
victim of a grim tragedy, when the jeep he was driving collided with a locomotive of admittedly appears to be a careful judicial appraisal and scrutiny of the evidence of
defendant-appellee Manila Railroad Company, close to midnight on the evening of record. It is thus proof against any attack unless sustained and overwhelming. Not
Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the that it is invulnerable, but it is likely to stand firm in the face of even the most
Clark Air Force Base. In the decision appealed from, the lower court, after formidable barrage.
summarizing the evidence, concluded that the deceased "in his eagerness to beat, so
to speak, the oncoming locomotive, took the risk and attempted to reach the other In the more traditional terminology, the lower court judgment has in its favor the
side, but unfortunately he became the victim of his own miscalculation." 1 presumption of correctness. It is entitled to great respect. After all, the lower court had
the opportunity of weighing carefully what was testified to and apparently did not
The negligence imputed to defendant-appellee was thus ruled out by the lower neglect it. There is no affront to justice then if its finding be accorded acceptance
court, satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal subject of course the contingency of reversal if error or errors, substantial in
direct to us, the amount sought in the concept of damages reaching the sum of character, be shown in the conclusion thus arrived at. It is a fair statement of the
P282,065.40. An examination of the evidence of record fails to yield a basis for a governing, principle to say that the appellate function is exhausted when there is
reversal of the decision appealed from. We affirm. found to be a rational basis for the result reached by the trial court.

According to the decision appealed from, there is no dispute as to the following: "In As was held in a 1961 decision: "We have already ruled, that when the credibility of
December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of witnesses is the one at issue, the trial court's judgment as to their degree of credence
age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time deserves serious consideration by this Court." 6 An earlier expression of the same
of the accident, he was driving the fatal jeep; that he was then returning in said jeep, view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we
together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at find no reason for rejecting the findings of the court below. The questions raised hinge
the Base Hospital the next day, while the soldier sustained serious physical injuries on credibility and it is well-settled that in the absence of compelling reasons, its
and burns." 2 determination is best left to the trial judge why had the advantage of hearing the
parties testify and observing their demeanor on the witness stand." 7
Then came a summary of the testimony of two of the witnesses for plaintiff-
appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record
his deposition, ..., that at the time of the accident, he also awaiting transportation at suggests any arbitrary or abusive conduct on the part of the trial judge in the
formulation of the ruling. His conclusion on the matter is sufficiently borne out by the could be summarily disposed of. It would go against the evidence to maintain the view
evidence presented. We are denied, therefore, the prerogative to disturb that finding, that the whistle was not sounded and the brakes not applied at a distance of 300
consonant to the time honored tradition of the Tribunal to hold trial judges better meters before reaching the crossing.
situated to make conclusions on questions of fact'." 8 On this ground alone we can
rest the affirmance of the judgment appealed from.lâwphi1.ñet The first two assigned errors would make much of the failure of the lower court to
hold that the crossing bars not having been put down and there being no guard at the
2. Nor is the result different even if no such presumption were indulged in and the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid a
matter examined as if we were exercising original and not appellate jurisdiction. The collision and that Teodorico Capili, who drove the engine, was not qualified to do so
sad and deplorable situation in which plaintiff-appellant now finds herself, to the at the time of the accident. For one cannot just single out circumstance and then
contrary notwithstanding we find no reason for reversing the judgment of the lower confidently assign to it decisive weight and significance. Considered separately,
court. neither of the two above errors assigned would call for a judgment different in
character. Nor would a combination of acts allegedly impressed with negligence
This action is predicated on negligence, the Civil Code making clear that whoever by suffice to alter the result. The quantum of proof required still not been met. The
act or omission causes damage to another, there being negligence, is under alleged errors fail of their said effect. The case for plaintiff-appellant, such as it had
obligation to pay for the damage done. 9 Unless it could be satisfactorily shown, not been improved. There is no justification for reversing the judgment of the lower
therefore, that defendant-appellee was guilty of negligence then it could not be held court.
liable. The crucial question, therefore, is the existence of negligence.
It cannot be stressed too much that the decisive considerations are too variable, too
The above Civil Code provision, which is a reiteration of that found in the Civil Code dependent in the lid analysis upon a common sense estimate of the situation as it
of Spain, formerly applicable in this jurisdiction, 10 had been interpreted in earlier presented itself to the parties for us to be able to say that this or that element having
decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., 11Manresa was cited to been isolated, negligence is shown. The factors that enter the judgment are too many
the following effect "'Among the questions most frequently raised and upon which the and diverse for us to imprison them in a formula sufficient of itself to yield the correct
majority of cases have been decided with respect to the application of this liability, are answer to the multi-faceted problems the question of negligence poses. Every case
those referring to the determination of the damage or prejudice, and to the fault or must be dependent on its facts. The circumstances indicative of lack of due care must
negligence of the person responsible therefor. These are the two indispensable be judged in the light of what could reasonably be expected of the parties. If the
factors in the obligations under discussion, for without damage or prejudice there can objective standard of prudence be met, then negligence is ruled out.
be no liability, and although this element is present no indemnity can be awarded
unless arising from some person's fault or negligence'." In this particular case, it would be to show less than fidelity to the controlling facts to
impute negligence to defendant-appellee. The first three errors assigned certainly do
Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and not call for that conclusion.
United States v. Barias. 13Cooley' formulation was quoted with approval in both the
Juanillo and Barias decisions. Thus: "Judge Cooley in his work on Torts (3d ed.), Sec. 4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-
1324, defines negligence to be: "The failure to observe for the protection of the appellant apparently had in mind this portion of the opinion of the lower court: "The
interests of another person that degree of care, precaution and vigilance which the weight of authorities is to the effect that a railroad track is in itself a warning or a
circumstance justly demand whereby such other person suffers injury." There was signal of danger to those who go upon it, and that those who, for reasons of their
likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus: "Negligence is want of own, ignore such warning, do so at their own risk and responsibility. Corliss Jr., who
the care required by the circumstances. It is a relative or comparative, not an absolute undoubtedly had crossed the checkpoint frequently, if not daily, must have known that
term and its application depends upon the situation of the parties and the degree of locomotive engines and trains usually pass at that particular crossing where the
care and vigilance which the circumstances reasonably require. Where the danger is accident had taken place." 15
great, a high degree of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances." Her assignment of error, however, would single out not the above excerpt from the
decision appealed from but what to her is the apparent reliance of the lower court
To repeat, by such a test, no negligence could be imputed to defendant-appellee, on Mestres v. Manila Electric Railroad & Light Co. 16 and United States v. Manlabat &
and the action of plaintiff-appellee must necessary fail. The facts being what they are, Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A
compel the conclusion that the liability sought to be fastened on defendant-appellee person in control of an automobile who crosses a railroad, even at a regular road
had not arisen. crossing, and who does not exercise that precaution and that control over it as to be
able to stop the same almost immediately upon the appearance of a train, is guilty of
3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment criminal negligence, providing a collision occurs and injury results. Considering the
appealed from on the ground that there was a failure to appreciate the true situation. purposes and the general methods adopted for the management of railroads and
Thus the first three assigned errors are factual in character. The third assigned error railroad trains, we think it is incumbent upon one approaching a railroad crossing to
use all of his faculties of seeing and hearing. He should approach a railroad crossing accident — and this consisted simply in stopping his vehicle before the crossing and
cautiously and carefully. He should look and listen and do everything that a allowing the train to move on. A prudent man under similar circumstances would have
reasonably prudent man would do before he attempts to cross the track." The acted in this manner. This, unfortunately, Corliss, Jr. failed to do." 22
Mestres doctrine in a suit arising from a collision between an automobile and a street
car is substantially similar. Thus: "It may be said, however, that, where a person is WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the
nearing a street crossing toward which a car is approaching, the duty is on the party complaint, is affirmed. Without pronouncement as to costs.
to stop and avoid a collision who can most readily adjust himself to the exigencies of
the case, and where such person can do so more readily, the motorman has a right to
presume that such duty will be performed."

It is true, as plaintiff-appellant would now allege that there has been a drift away
from the apparent rigid and inflexible doctrine thus set forth in the two above cases
evidenced by Lilius v. Manila Railroad Co., 18 the controlling facts of which, however,
are easily distinguishable from what had been correctly ascertained in the present
case. Such a deviation from the earlier principle announced is not only true of this
jurisdiction but also of the United States.

This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he


had the following to say: "Especially noteworthy in this respect is the attempt Mr.
Justice Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard
once for all,' which would require an automobile driver approaching a railroad
crossing with an obstructed view to stop, look and listen, and if he cannot be sure
otherwise that no train is coming to get out of the car. The basic idea behind this is
sound enough: it is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will require
looking, hearing, and a stop, or at least slow speed, where the view is obstructed." 19

Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where,
according to Prosser, it being shown that "the only effective stop must be made upon
the railway tracks themselves, in a position of obligation danger, the court
disregarded any such uniform rule, rejecting the 'get out of the car' requirement as 'an
uncommon precaution, likely to be futile and sometimes even dangerous,' and saying
that the driver need not always stop. 'Illustrations such as these,' said Mr. Justice
Cardozo 'bear witness to the need for caution in framing standards of behavior that
amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected
to tests or regulations that are fitting for the commonplace or normal." 21

What Justice Cardozo announced would merely emphasize what was set forth
earlier that each and every, case on questions of negligence is to be decided in
accordance with the peculiar circumstances that present themselves. There can be
no hard and fast rule. There must be that observance of that degree of care,
precaution, and vigilance which the situation demands. Thus defendant-appellee
acted. It is undeniable then that no negligence can rightfully be imputed to it.

What commends itself for acceptance is this conclusion arrived at by the lower court:
"Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of the
deceased and his familiarity with the setup of the checkpoint, the existence of the
tracks; and on the further fact that the locomotive had blown its siren or whistle, which
was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently warned in
advance of the oncoming train that it was incumbent upon him to avoid a possible
G.R. No. 115024 February 7, 1996 left up to distal thigh (above knee)". She was confined in the hospital for
twenty (20) days and was eventually fitted with an artificial leg. The
MA. LOURDES VALENZUELA, petitioner, expenses for the hospital confinement (P120,000.00) and the cost of the
vs. artificial leg (P27,000.00) were paid by defendants from the car insurance.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL,
INC., respondents. In her complaint, plaintiff prayed for moral damages in the amount of P1
million, exemplary damages in the amount of P100,000.00 and other
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x medical and related expenses amounting to a total of P180,000.00, including
loss of expected earnings.
G.R. No. 117944 February 7, 1996
Defendant Richard Li denied that he was negligent. He was on his way
home, travelling at 55 kph; considering that it was raining, visibility was
RICHARD LI, petitioner, affected and the road was wet. Traffic was light. He testified that he was
vs. driving along the inner portion of the right lane of Aurora Blvd. towards the
COURT OF APPEALS and LOURDES VALENZUELA, respondents. direction of Araneta Avenue, when he was suddenly confronted, in the
vicinity of A. Lake Street, San Juan, with a car coming from the opposite
DECISION direction, travelling at 80 kph, with "full bright lights". Temporarily blinded, he
instinctively swerved to the right to avoid colliding with the oncoming vehicle,
KAPUNAN, J.: and bumped plaintiff's car, which he did not see because it was midnight
blue in color, with no parking lights or early warning device, and the area
was poorly lighted. He alleged in his defense that the left rear portion of
These two petitions for review on certiorari under Rule 45 of the Revised Rules of plaintiff's car was protruding as it was then "at a standstill diagonally" on the
Court stem from an action to recover damages by petitioner Lourdes Valenzuela in outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He
the Regional Trial Court of Quezon City for injuries sustained by her in a vehicular confirmed the testimony of plaintiff's witness that after being bumped the car
accident in the early morning of June 24, 1990. The facts found by the trial court are of the plaintiff swerved to the right and hit another car parked on the
succinctly summarized by the Court of Appeals below: sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was
reckless or negligent, as she was not a licensed driver.
This is an action to recover damages based on quasi-delict, for serious
physical injuries sustained in a vehicular accident. The police investigator, Pfc. Felic Ramos, who prepared the vehicular
accident report and the sketch of the three cars involved in the accident,
Plaintiff's version of the accident is as follows: At around 2:00 in the morning testified that the plaintiff's car was "near the sidewalk"; this witness did not
of June 24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a blue remember whether the hazard lights of plaintiff's car were on, and did not
Mitsubishi lancer with Plate No. FFU 542 from her restaurant at Marcos notice if there was an early warning device; there was a street light at the
highway to her home at Palanza Street, Araneta Avenue. She was travelling corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not
along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).
direction of Manila. Before reaching A. Lake Street, she noticed something
wrong with her tires; she stopped at a lighted place where there were A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff
people, to verify whether she had a flat tire and to solicit help if needed. alighted from her car and opened the trunk compartment, defendant's car
Having been told by the people present that her rear right tire was flat and came approaching very fast ten meters from the scene; the car was
that she cannot reach her home in that car's condition, she parked along the "zigzagging". The rear left side of plaintiff's car was bumped by the front right
sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted from portion of defendant's car; as a consequence, the plaintiff's car swerved to
the car, and went to the rear to open the trunk. She was standing at the left the right and hit the parked car on the sidewalk. Plaintiff was thrown to the
side of the rear of her car pointing to the tools to a man who will help her fix windshield of defendant's car, which was destroyed, and landed under the
the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven car. He stated that defendant was under the influence of liquor as he could
by defendant Richard Li and registered in the name of defendant Alexander "smell it very well" (pp. 43, 79, tsn, June 17, 1991).
Commercial, Inc. Because of the impact plaintiff was thrown against the
windshield of the car of the defendant, which was destroyed, and then fell to
the ground. She was pulled out from under defendant's car. Plaintiff's left leg After trial, the lower court sustained the plaintiff's submissions and found defendant
was severed up to the middle of her thigh, with only some skin and sucle Richard Li guilty of gross negligence and liable for damages under Article 2176 of the
connected to the rest of the body. She was brought to the UERM Medical Civil Code. The trial court likewise held Alexander Commercial, Inc., Li's employer,
Memorial Center where she was found to have a "traumatic amputation, leg,
jointly and severally liable for damages pursuant to Article 2180. It ordered the that plaintiff owned a beerhouse in Sta. Mesa in the 1970's, but did not know
defendants to jointly and severally pay the following amounts: either plaintiff or defendant Li before the accident.

1. P41,840.00, as actual damages, representing the miscellaneous In agreeing with the trial court that the defendant Li was liable for the injuries
expenses of the plaintiff as a result of her severed left leg; sustained by the plaintiff, the Court of Appeals, in its decision, however, absolved the
Li's employer, Alexander Commercial, Inc. from any liability towards petitioner
2. The sums of (a) P37,500.00, for the unrealized profits because of the Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00.
stoppage of plaintiff's Bistro La Conga restaurant three (3) weeks after the Finding justification for exemplary damages, the respondent court allowed an award
accident on June 24, 1990; (b) P20,000.00, a month, as unrealized profits of of P50,000.00 for the same, in addition to costs, attorney's fees and the other
the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the damages. The Court of Appeals, likewise, dismissed the defendants' counterclaims.3
date of this judgment and (c) P30,000.00, a month for unrealized profits in
plaintiff's two (2) beauty salons from July, 1990 until the date of this decision; Consequently, both parties assail the respondent court's decision by filing two
separate petitions before this Court. Richard Li, in G.R. No. 117944, contends that he
3. P1,000,000.00, in moral damages; should not be held liable for damages because the proximate cause of the accident
was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues that in the
event that this Court finds him negligent, such negligence ought to be mitigated by the
4. P50,000.00, as exemplary damages; contributory negligence of Valenzuela.

5. P60,000.00, as reasonable attorney's fees; and On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the
respondent court's decision insofar as it absolves Alexander Commercial, Inc. from
6. Costs. liability as the owner of the car driven by Richard Li and insofar as it reduces the
amount of the actual and moral damages awarded by the trial court. 4
As a result of the trial court's decision, defendants filed an Omnibus Motion for New
Trial and for Reconsideration, citing testimony in Criminal Case O.C. No. 804367 As the issues are intimately related, both petitions are hereby consolidated.
(People vs. Richard Li), tending to show that the point of impact, as depicted by the
pieces of glass/debris from the parties' cars, appeared to be at the center of the right It is plainly evident that the petition for review in G.R. No. 117944 raises no
lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an substantial questions of law. What it, in effect, attempts to have this Court review are
appeal with the respondent Court of Appeals. In a Decision rendered March 30, 1994, factual findings of the trial court, as sustained by the Court of Appeals finding Richard
the Court of Appeals found that there was "ample basis from the evidence of record Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the
for the trial court's finding that the plaintiff's car was properly parked at the right, early morning hours of June 24, 1990. This we will not do. As a general rule, findings
beside the sidewalk when it was bumped by defendant's car." 1 Dismissing the of fact of the Court of Appeals are binding and conclusive upon us, and this Court will
defendants' argument that the plaintiff's car was improperly parked, almost at the not normally disturb such factual findings unless the findings of fact of the said court
center of the road, the respondent court noted that evidence which was supposed to are palpably unsupported by the evidence on record or unless the judgment itself is
prove that the car was at or near center of the right lane was never presented during based on a misapprehension of facts.5
the trial of the case.2 The respondent court furthermore observed that:
In the first place, Valenzuela's version of the incident was fully corroborated by an
Defendant Li's testimony that he was driving at a safe speed of 55 km./hour uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment
is self serving; it was not corroborated. It was in fact contradicted by located just across the scene of the accident. On trial, he testified that he observed a
eyewitness Rodriguez who stated that he was outside his beerhouse located car being driven at a "very fast" speed, racing towards the general direction of
at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, Araneta Avenue.6 Rodriguez further added that he was standing in front of his
1990 when his attention was caught by a beautiful lady (referring to the establishment, just ten to twenty feet away from the scene of the accident, when he
plaintiff) alighting from her car and opening the trunk compartment; he saw the car hit Valenzuela, hurtling her against the windshield of the defendant's
noticed the car of Richard Li "approaching very fast ten (10) meters away Mitsubishi Lancer, from where she eventually fell under the defendant's car.
from the scene"; defendant's car was zigzagging", although there were no Spontaneously reacting to the incident, he crossed the street, noting that a man
holes and hazards on the street, and "bumped the leg of the plaintiff" who reeking with the smell of liquor had alighted from the offending vehicle in order to
was thrown against the windshield of defendant's care, causing its survey the incident.7 Equally important, Rodriguez declared that he observed
destruction. He came to the rescue of the plaintiff, who was pulled out from Valenzuela's car parked parallel and very near the sidewalk,8 contrary to Li's
under defendant's car and was able to say "hurting words" to Richard Li allegation that Valenzuela's car was close to the center of the right lane. We agree
because he noticed that the latter was under the influence of liquor, because that as between Li's "self-serving" asseverations and the observations of a witness
he "could smell it very well" (p. 36, et. seq., tsn, June 17, 1991). He knew who did not even know the accident victim personally and who immediately gave a
statement of the incident similar to his testimony to the investigator immediately after One will have to suspend disbelief in order to give credence to Li's disingenuous and
the incident, the latter's testimony deserves greater weight. As the court emphasized: patently self-serving asseverations. The average motorist alert to road conditions will
have no difficulty applying the brakes to a car traveling at the speed claimed by Li.
The issue is one of credibility and from Our own examination of the Given a light rainfall, the visibility of the street, and the road conditions on a principal
transcript, We are not prepared to set aside the trial court's reliance on the metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to
testimony of Rodriguez negating defendant's assertion that he was driving at react to the changing conditions of the road if he were alert - as every driver should
a safe speed. While Rodriguez drives only a motorcycle, his perception of be - to those conditions. Driving exacts a more than usual toll on the senses.
speed is not necessarily impaired. He was subjected to cross-examination Physiological "fight or flight" 10 mechanisms are at work, provided such mechanisms
and no attempt was made to question .his competence or the accuracy of were not dulled by drugs, alcohol, exhaustion, drowsiness, etc.11 Li's failure to react in
his statement that defendant was driving "very fast". This was the same a manner which would have avoided the accident could therefore have been only due
statement he gave to the police investigator after the incident, as told to a to either or both of the two factors: 1) that he was driving at a "very fast" speed as
newspaper report (Exh. "P"). We see no compelling basis for disregarding testified by Rodriguez; and 2) that he was under the influence of alcohol. 12 Either
his testimony. factor working independently would have diminished his responsiveness to road
conditions, since normally he would have slowed down prior to reaching Valenzuela's
car, rather than be in a situation forcing him to suddenly apply his brakes. As the trial
The alleged inconsistencies in Rodriguez' testimony are not borne out by an court noted (quoted with approval by respondent court):
examination of the testimony. Rodriguez testified that the scene of the
accident was across the street where his beerhouse is located about ten to
twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the Secondly, as narrated by defendant Richard Li to the San Juan Police
accident transpired immediately in front of his establishment. The ownership immediately after the incident, he said that while driving along Aurora Blvd.,
of the Lambingan se Kambingan is not material; the business is registered in out of nowhere he saw a dark maroon lancer right in front of him which was
the name of his mother, but he explained that he owns the establishment (p. plaintiff's car, indicating, again, thereby that, indeed, he was driving very fast,
5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on his oblivious of his surroundings and the road ahead of him, because if he was
side of Aurora Boulevard were on the night the accident transpired (p. 8) is not, then he could not have missed noticing at a still far distance the parked
not necessarily contradictory to the testimony of Pfc. Ramos that there was a car of the plaintiff at the right side near the sidewalk which had its
streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, emergency lights on, thereby avoiding forcefully bumping at the plaintiff who
Oct. 20, 1991). was then standing at the left rear edge of her car.

With respect to the weather condition, Rodriguez testified that there was only Since, according to him, in his narration to the San Juan Police, he put on
a drizzle, not a heavy rain and the rain has stopped and he was outside his his brakes when he saw the plaintiff's car in front of him, but that it failed as
establishment at the time the accident transpired (pp. 64-65, tsn, June 17, the road was wet and slippery, this goes to show again, that, contrary to his
1991). This was consistent with plaintiff's testimony that it was no longer claim, he was, indeed, running very fast. For, were it otherwise, he could
raining when she left Bistro La Conga (pp. 10-11, tsn, April 29, 1991). It was have easily completely stopped his car, thereby avoiding the bumping of the
defendant Li who stated that it was raining all the way in an attempt to plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if,
explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). indeed, he was running slow, as he claimed, at only about 55 kilometers per
As to the testimony of Pfc. Ramos that it was raining, he arrived at the scene hour, then, inspite of the wet and slippery road, he could have avoided
only in response to a telephone call after the accident had transpired (pp. 9- hitting the plaintiff by the mere expedient or applying his brakes at the proper
10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez's time and distance.
testimony that would impair the essential integrity of his testimony or reflect
on his honesty. We are compelled to affirm the trial court's acceptance of the It could not be true, therefore, as he now claims during his testimony, which
testimony of said eyewitness. is contrary to what he told the police immediately after the accident and is,
therefore, more believable, that he did not actually step on his brakes but
Against the unassailable testimony of witness Rodriguez we note that Li's testimony simply swerved a little to the right when he saw the on-coming car with
was peppered with so many inconsistencies leading us to conclude that his version of glaring headlights, from the opposite direction, in order to avoid it.
the accident was merely adroitly crafted to provide a version, obviously self-serving,
which would exculpate him from any and all liability in the incident. Against For, had this been what he did, he would not have bumped the car of the
Valenzuela's corroborated claims, his allegations were neither backed up by other plaintiff which was properly parked at the right beside the sidewalk. And, it
witnesses nor by the circumstances proven in the course of trial. He claimed that he was not even necessary for him to swerve a little to the right in order to
was driving merely at a speed of 55 kph. when "out of nowhere he saw a dark maroon safely avoid a collision with the on-coming car, considering that Aurora Blvd.
lancer right in front of him, which was (the) plaintiff's car". He alleged that upon seeing is a double lane avenue separated at the center by a dotted white paint, and
this sudden "apparition" he put on his brakes to no avail as the road was slippery. 9 there is plenty of space for both cars, since her car was running at the right
lane going towards Manila on the on-coming car was also on its right lane stop and assess the emergency (simply because the entire length of Aurora
going to Cubao.13 Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat
to her safety and to other motorists. In the instant case, Valenzuela, upon reaching
Having come to the conclusion that Li was negligent in driving his company-issued that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire.
Mitsubishi Lancer, the next question for us to determine is whether or not Valenzuela To avoid putting herself and other motorists in danger, she did what was best under
was likewise guilty of contributory negligence in parking her car alongside Aurora the situation. As narrated by respondent court: "She stopped at a lighted place where
Boulevard, which entire area Li points out, is a no parking zone. there were people, to verify whether she had a flat tire and to solicit help if needed.
Having been told by the people present that her rear right tire was flat and that she
cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind
We agree with the respondent court that Valenzuela was not guilty of contributory a Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the
negligence. investigator on the scene of the accident confirmed that Valenzuela's car was parked
very close to the sidewalk.21 The sketch which he prepared after the incident showed
Contributory negligence is conduct on the part of the injured party, contributing as a Valenzuela's car partly straddling the sidewalk, clear and at a convenient distance
legal cause to the harm he has suffered, which falls below the standard to which he is from motorists passing the right lane of Aurora Boulevard. This fact was itself
required to conform for his own protection.14 Based on the foregoing definition, the corroborated by the testimony of witness Rodriguez.22
standard or act to which, according to petitioner Li, Valenzuela ought to have
conformed for her own protection was not to park at all at any point of Aurora Under the circumstances described, Valenzuela did exercise the standard reasonably
Boulevard, a no parking zone. We cannot agree. dictated by the emergency and could not be considered to have contributed to the
unfortunate circumstances which eventually led to the amputation of one of her lower
Courts have traditionally been compelled to recognize that an actor who is confronted extremities. The emergency which led her to park her car on a sidewalk in Aurora
with an emergency is not to be held up to the standard of conduct normally applied to Boulevard was not of her own making, and it was evident that she had taken all
an individual who is in no such situation. The law takes stock of impulses of humanity reasonable precautions.
when placed in threatening or dangerous situations and does not require the same
standard of thoughtful and reflective care from persons confronted by unusual and Obviously in the case at bench, the only negligence ascribable was the negligence of
oftentimes threatening conditions.15 Li on the night of the accident. "Negligence, as it is commonly understood is conduct
which creates an undue risk of harm to others." 23 It is the failure to observe that
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an degree of care, precaution, and vigilance which the circumstances justly demand,
individual who suddenly finds himself in a situation of danger and is required to act whereby such other person suffers injury.24 We stressed, in Corliss vs. Manila
without much time to consider the best means that may be adopted to avoid the Railroad Company,25 that negligence is the want of care required by the
impending danger, is not guilty of negligence if he fails to undertake what circumstances.
subsequently and upon reflection may appear to be a better solution, unless the
emergency was brought by his own negligence.17 The circumstances established by the evidence adduced in the court below plainly
demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears
Applying this principle to a case in which the victims in a vehicular accident swerved emphasis that he was driving at a fast speed at about 2:00 A.M. after a heavy
to the wrong lane to avoid hitting two children suddenly darting into the street, we downpour had settled into a drizzle rendering the street slippery. There is ample
held, in Mc Kee vs. Intermediate Appellate Court,18 that the driver therein, Jose Koh, testimonial evidence on record to show that he was under the influence of liquor.
"adopted the best means possible in the given situation" to avoid hitting the children. Under these conditions, his chances of effectively dealing with changing conditions on
Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he the road were significantly lessened. As Presser and Keaton emphasize:
was in the wrong lane when the collision with an oncoming truck occurred, was not
guilty of negligence.19 [U]nder present day traffic conditions, any driver of an automobile must be
prepared for the sudden appearance of obstacles and persons on the
While the emergency rule applies to those cases in which reflective thought, or the highway, and of other vehicles at intersections, such as one who sees a
opportunity to adequately weigh a threatening situation is absent, the conduct which child on the curb may be required to anticipate its sudden dash into the
is required of an individual in such cases is dictated not exclusively by the street, and his failure to act properly when they appear may be found to
suddenness of the event which absolutely negates thoroughful care, but by the over- amount to negligence.26
all nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat
tire on a rainy night will not be faulted for stopping at a point which is both convenient Li's obvious unpreparedness to cope with the situation confronting him on the night of
for her to do so and which is not a hazard to other motorists. She is not expected to the accident was clearly of his own making.
run the entire boulevard in search for a parking zone or turn on a dark street or alley
where she would likely find no one to help her. It would be hazardous for her not to
We now come to the question of the liability of Alexander Commercial, Inc. Li's employer, for his failure to exercise the diligence of a good father of the family in the
employer. In denying liability on the part of Alexander Commercial, the respondent selection and supervision of his employees. It is up to this point, however, that our
court held that: agreement with the respondent court ends. Utilizing the bonus pater familias standard
expressed in Article 2180 of the Civil Code, 28 we are of the opinion that Li's employer,
There is no evidence, not even defendant Li's testimony, that the visit was in Alexander Commercial, Inc. is jointly and solidarily liable for the damage caused by
connection with official matters. His functions as assistant manager the accident of June 24, 1990.
sometimes required him to perform work outside the office as he has to visit
buyers and company clients, but he admitted that on the night of the First, the case of St. Francis High School vs. Court of Appeals29 upon which
accident he came from BF Homes Paranaque he did not have "business respondent court has placed undue reliance, dealt with the subject of a school and its
from the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the company teacher's supervision of students during an extracurricular activity. These cases now
car was partly required by the nature of his work, but the privilege of using it fall under the provision on special parental authority found in Art. 218 of the Family
for non-official business is a "benefit", apparently referring to the fringe Code which generally encompasses all authorized school activities, whether inside or
benefits attaching to his position. outside school premises.

Under the civil law, an employer is liable for the negligence of his employees Second, the employer's primary liability under the concept of pater familias embodied
in the discharge of their respective duties, the basis of which liability is by Art 2180 (in relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in
not respondeat superior, but the relationship of pater familias, which theory character. His liability is relieved on a showing that he exercised the diligence of a
bases the liability of the master ultimately on his own negligence and not on good father of the family in the selection and supervision of its employees. Once
that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before evidence is introduced showing that the employer exercised the required amount
an employer may be held liable for the negligence of his employee, the act of care in selecting its employees, half of the employer's burden is overcome. The
or omission which caused damage must have occurred while an employee question of diligent supervision, however, depends on the circumstances of
was in the actual performance of his assigned tasks or duties (Francis High employment.
School vs. Court of Appeals, 194 SCRA 341). In defining an employer's
liability for the acts done within the scope of the employee's assigned tasks, Ordinarily, evidence demonstrating that the employer has exercised diligent
the Supreme Court has held that this includes any act done by an employee, supervision of its employee during the performance of the latter's assigned tasks
in furtherance of the interests of the employer or for the account of the would be enough to relieve him of the liability imposed by Article 2180 in relation to
employer at the time of the infliction of the injury or damage (Filamer Article 2176 of the Civil Code. The employer is not expected to exercise supervision
Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An over either the employee's private activities or during the performance of tasks either
employer is expected to impose upon its employees the necessary discipline unsanctioned by the former or unrelated to the employee's tasks. The case at bench
called for in the performance of any act "indispensable to the business and presents a situation of a different character, involving a practice utilized by large
beneficial to their employer" (at p. 645). companies with either their employees of managerial rank or their representatives.

In light of the foregoing, We are unable to sustain the trial court's finding that It is customary for large companies to provide certain classes of their employees with
since defendant Li was authorized by the company to use the company car courtesy vehicles. These company cars are either wholly owned and maintained by
"either officially or socially or even bring it home", he can be considered as the company itself or are subject to various plans through which employees
using the company car in the service of his employer or on the occasion of eventually acquire their vehicles after a given period of service, or after paying a
his functions. Driving the company car was not among his functions as token amount. Many companies provide liberal "car plans" to enable their managerial
assistant manager; using it for non-official purposes would appear to be a or other employees of rank to purchase cars, which, given the cost of vehicles these
fringe benefit, one of the perks attached to his position. But to impose liability days, they would not otherwise be able to purchase on their own.
upon the employer under Article 2180 of the Civil Code, earlier quoted, there
must be a showing that the damage was caused by their employees in the
service of the employer or on the occasion of their functions. There is no Under the first example, the company actually owns and maintains the car up to the
evidence that Richard Li was at the time of the accident performing any act point of turnover of ownership to the employee; in the second example, the car is
in furtherance of the company's business or its interests, or at least for its really owned and maintained by the employee himself. In furnishing vehicles to such
benefit. The imposition of solidary liability against defendant Alexander employees, are companies totally absolved of responsibility when an accident
Commercial Corporation must therefore fail.27 involving a company-issued car occurs during private use after normal office hours?

We agree with the respondent court that the relationship in question is not based on Most pharmaceutical companies, for instance, which provide cars under the first plan,
the principle of respondeat superior, which holds the master liable for acts of the require rigorous tests of road worthiness from their agents prior to turning over the car
servant, but that of pater familias, in which the liability ultimately falls upon the (subject of company maintenance) to their representatives. In other words, like a
good father of a family, they entrust the company vehicle only after they are satisfied
that the employee to whom the car has been given full use of the said company car familias, ought to be jointly and severally liable with the former for the injuries
for company or private purposes will not be a threat or menace to himself, the sustained by Ma. Lourdes Valenzuela during the accident.
company or to others. When a company gives full use and enjoyment of a company
car to its employee, it in effect guarantees that it is, like every good father, satisfied Finally, we find no reason to overturn the amount of damages awarded by the
that its employee will use the privilege reasonably and responsively. respondent court, except as to the amount of moral damages. In the case of moral
damages, while the said damages are not intended to enrich the plaintiff at the
In the ordinary course of business, not all company employees are given the privilege expense of a defendant, the award should nonetheless be commensurate to the
of using a company-issued car. For large companies other than those cited in the suffering inflicted. In the instant case we are of the opinion that the reduction in moral
example of the preceding paragraph, the privilege serves important business damages from an amount of P1,000,000.00 to P800,000,00 by the Court of Appeals
purposes either related to the image of success an entity intends to present to its was not justified considering the nature of the resulting damage and the
clients and to the public in general, or - for practical and utilitarian reasons - to enable predictable sequelae of the injury.
its managerial and other employees of rank or its sales agents to reach clients
conveniently. In most cases, providing a company car serves both purposes. Since As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
important business transactions and decisions may occur at all hours in all sorts of amputation of her left lower extremity at the distal left thigh just above the knee.
situations and under all kinds of guises, the provision for the unlimited use of a Because of this, Valenzuela will forever be deprived of the full ambulatory functions of
company car therefore principally serves the business and goodwill of a company her left extremity, even with the use of state of the art prosthetic technology. Well
and only incidentally the private purposes of the individual who actually uses the car, beyond the period of hospitalization (which was paid for by Li), she will be required to
the managerial employee or company sales agent. As such, in providing for a undergo adjustments in her prosthetic devise due to the shrinkage of the stump from
company car for business use and/or for the purpose of furthering the company's the process of healing.
image, a company owes a responsibility to the public to see to it that the managerial
or other employees to whom it entrusts virtually unlimited use of a company issued
car are able to use the company issue capably and responsibly. These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will
have to be replaced and re-adjusted to changes in the size of her lower limb effected
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his by the biological changes of middle-age, menopause and aging. Assuming she
testimony before the trial court, he admitted that his functions as Assistant Manager reaches menopause, for example, the prosthetic will have to be adjusted to respond
did not require him to scrupulously keep normal office hours as he was required quite to the changes in bone resulting from a precipitate decrease in calcium levels
often to perform work outside the office, visiting prospective buyers and contacting observed in the bones of all post-menopausal women. In other words, the damage
and meeting with company clients. 30 These meetings, clearly, were not strictly done to her would not only be permanent and lasting, it would also be permanently
confined to routine hours because, as a managerial employee tasked with the job of changing and adjusting to the physiologic changes which her body
representing his company with its clients, meetings with clients were both social as would normally undergo through the years. The replacements, changes, and
well as work-related functions. The service car assigned to Li by Alexander adjustments will require corresponding adjustive physical and occupational therapy.
Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the All of these adjustments, it has been documented, are painful.
front of a highly successful entity, increasing the latter's goodwill before its clientele. It
also facilitated meeting between Li and its clients by providing the former with a
convenient mode of travel. The foregoing discussion does not even scratch the surface of the nature of the
resulting damage because it would be highly speculative to estimate the amount of
psychological pain, damage and injury which goes with the sudden severing of a vital
Moreover, Li's claim that he happened to be on the road on the night of the accident portion of the human body. A prosthetic device, however technologically advanced,
because he was coming from a social visit with an officemate in Paranaque was a will only allow a reasonable amount of functional restoration of the motor functions of
bare allegation which was never corroborated in the court below. It was obviously the lower limb. The sensory functions are forever lost. The resultant anxiety,
self-serving. Assuming he really came from his officemate's place, the same could sleeplessness, psychological injury, mental and physical pain are inestimable.
give rise to speculation that he and his officemate had just been from a work-related
function, or they were together to discuss sales and other work related strategies.
As the amount of moral damages are subject to this Court's discretion, we are of the
opinion that the amount of P1,000,000.00 granted by the trial court is in greater
In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it accord with the extent and nature of the injury - physical and psychological - suffered
exercised the care and diligence of a good father of the family in entrusting its by Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer in
company car to Li. No allegations were made as to whether or not the company took the early morning hours of the accident.
the steps necessary to determine or ascertain the driving proficiency and history of Li,
to whom it gave full and unlimited use of a company car. 31 Not having been able to
overcome the burden of demonstrating that it should be absolved of liability for WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is
entrusting its company car to Li, said company, based on the principle of bonus pater modified with the effect of REINSTATING the judgment of the Regional Trial Court..
SO ORDERED.
G.R. No. L-12219 March 15, 1918 contusions which caused temporary unconsciousness and required medical attention
for several days.
AMADO PICART, plaintiff-appellant,
vs. The question presented for decision is whether or not the defendant in maneuvering
FRANK SMITH, JR., defendant-appellee. his car in the manner above described was guilty of negligence such as gives rise to
a civil obligation to repair the damage done; and we are of the opinion that he is so
Alejo Mabanag for appellant. liable. As the defendant started across the bridge, he had the right to assume that the
G. E. Campbell for appellee. horse and the rider would pass over to the proper side; but as he moved toward the
center of the bridge it was demonstrated to his eyes that this would not be done; and
he must in a moment have perceived that it was too late for the horse to cross with
STREET, J.: safety in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this moment it
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank was not longer within the power of the plaintiff to escape being run down by going to a
Smith, jr., the sum of P31,000, as damages alleged to have been caused by an place of greater safety. The control of the situation had then passed entirely to the
automobile driven by the defendant. From a judgment of the Court of First Instance of defendant; and it was his duty either to bring his car to an immediate stop or, seeing
the Province of La Union absolving the defendant from liability the plaintiff has that there were no other persons on the bridge, to take the other side and pass
appealed. sufficiently far away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the horse. He was, we
The occurrence which gave rise to the institution of this action took place on think, deceived into doing this by the fact that the horse had not yet exhibited fright.
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears But in view of the known nature of horses, there was an appreciable risk that, if the
that upon the occasion in question the plaintiff was riding on his pony over said animal in question was unacquainted with automobiles, he might get exited and jump
bridge. Before he had gotten half way across, the defendant approached from the under the conditions which here confronted him. When the defendant exposed the
opposite direction in an automobile, going at the rate of about ten or twelve miles per horse and rider to this danger he was, in our opinion, negligent in the eye of the law.
hour. As the defendant neared the bridge he saw a horseman on it and blew his horn
to give warning of his approach. He continued his course and after he had taken the The test by which to determine the existence of negligence in a particular case may
bridge he gave two more successive blasts, as it appeared to him that the man on be stated as follows: Did the defendant in doing the alleged negligent act use that
horseback before him was not observing the rule of the road. person would have used in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the imaginary
The plaintiff, it appears, saw the automobile coming and heard the warning signals. conduct of the discreet paterfamilias of the Roman law. The existence of negligence
However, being perturbed by the novelty of the apparition or the rapidity of the in a given case is not determined by reference to the personal judgment of the actor
approach, he pulled the pony closely up against the railing on the right side of the in the situation before him. The law considers what would be reckless, blameworthy,
bridge instead of going to the left. He says that the reason he did this was that he or negligent in the man of ordinary intelligence and prudence and determines liability
thought he did not have sufficient time to get over to the other side. The bridge is by that.
shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper The question as to what would constitute the conduct of a prudent man in a given
side of the road for the machine. In so doing the defendant assumed that the situation must of course be always determined in the light of human experience and
horseman would move to the other side. The pony had not as yet exhibited fright, and in view of the facts involved in the particular case. Abstract speculations cannot here
the rider had made no sign for the automobile to stop. Seeing that the pony was be of much value but this much can be profitably said: Reasonable men govern their
apparently quiet, the defendant, instead of veering to the right while yet some conduct by the circumstances which are before them or known to them. They are not,
distance away or slowing down, continued to approach directly toward the horse and are not supposed to be, omniscient of the future. Hence they can be expected to
without diminution of speed. When he had gotten quite near, there being then no take care only when there is something before them to suggest or warn of danger.
possibility of the horse getting across to the other side, the defendant quickly turned Could a prudent man, in the case under consideration, foresee harm as a result of the
his car sufficiently to the right to escape hitting the horse alongside of the railing course actually pursued? If so, it was the duty of the actor to take precautions to
where it as then standing; but in so doing the automobile passed in such close guard against that harm. Reasonable foresight of harm, followed by ignoring of the
proximity to the animal that it became frightened and turned its body across the suggestion born of this prevision, is always necessary before negligence can be held
bridge with its head toward the railing. In so doing, it as struck on the hock of the left to exist. Stated in these terms, the proper criterion for determining the existence of
hind leg by the flange of the car and the limb was broken. The horse fell and its rider negligence in a given case is this: Conduct is said to be negligent when a prudent
was thrown off with some violence. From the evidence adduced in the case we man in the position of the tortfeasor would have foreseen that an effect harmful to
believe that when the accident occurred the free space where the pony stood another was sufficiently probable to warrant his foregoing conduct or guarding against
between the automobile and the railing of the bridge was probably less than one and its consequences.
one half meters. As a result of its injuries the horse died. The plaintiff received
Applying this test to the conduct of the defendant in the present case we think that defendant was discharged by the magistrate and the proceedings were dismissed.
negligence is clearly established. A prudent man, placed in the position of the Conceding that the acquittal of the defendant at the trial upon the merits in a criminal
defendant, would in our opinion, have recognized that the course which he was prosecution for the offense mentioned would be res adjudicata upon the question of
pursuing was fraught with risk, and would therefore have foreseen harm to the horse his civil liability arising from negligence -- a point upon which it is unnecessary to
and the rider as reasonable consequence of that course. Under these circumstances express an opinion -- the action of the justice of the peace in dismissing the criminal
the law imposed on the defendant the duty to guard against the threatened harm. proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela
and Banzuela, 31 Phil. Rep., 564.)
It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road. But From what has been said it results that the judgment of the lower court must be
as we have already stated, the defendant was also negligent; and in such case the reversed, and judgment is her rendered that the plaintiff recover of the defendant the
problem always is to discover which agent is immediately and directly responsible. It sum of two hundred pesos (P200), with costs of other instances. The sum here
will be noted that the negligent acts of the two parties were not contemporaneous, awarded is estimated to include the value of the horse, medical expenses of the
since the negligence of the defendant succeeded the negligence of the plaintiff by an plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest
appreciable interval. Under these circumstances the law is that the person who has on the whole to the date of this recovery. The other damages claimed by the plaintiff
the last fair chance to avoid the impending harm and fails to do so is chargeable with are remote or otherwise of such character as not to be recoverable. So ordered.
the consequences, without reference to the prior negligence of the other party.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) Johnson, J., reserves his vote.
should perhaps be mentioned in this connection. This Court there held that while
contributory negligence on the part of the person injured did not constitute a bar to
recovery, it could be received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards located not far away. The Separate Opinions
rails were conveyed upon cars which were hauled along a narrow track. At certain
spot near the water's edge the track gave way by reason of the combined effect of the MALCOLM, J., concurring:
weight of the car and the insecurity of the road bed. The car was in consequence
upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in After mature deliberation, I have finally decided to concur with the judgment in this
evidence that the accident was due to the effects of the typhoon which had dislodged case. I do so because of my understanding of the "last clear chance" rule of the law of
one of the supports of the track. The court found that the defendant company was negligence as particularly applied to automobile accidents. This rule cannot be
negligent in having failed to repair the bed of the track and also that the plaintiff was, invoked where the negligence of the plaintiff is concurrent with that of the defendant.
at the moment of the accident, guilty of contributory negligence in walking at the side Again, if a traveler when he reaches the point of collision is in a situation to extricate
of the car instead of being in front or behind. It was held that while the defendant was himself and avoid injury, his negligence at that point will prevent a recovery. But
liable to the plaintiff by reason of its negligence in having failed to keep the track in Justice Street finds as a fact that the negligent act of the interval of time, and that at
proper repair nevertheless the amount of the damages should be reduced on account the moment the plaintiff had no opportunity to avoid the accident. Consequently, the
of the contributory negligence in the plaintiff. As will be seen the defendant's "last clear chance" rule is applicable. In other words, when a traveler has reached a
negligence in that case consisted in an omission only. The liability of the company point where he cannot extricate himself and vigilance on his part will not avert the
arose from its responsibility for the dangerous condition of its track. In a case like the injury, his negligence in reaching that position becomes the condition and not the
one now before us, where the defendant was actually present and operating the proximate cause of the injury and will not preclude a recovery. (Note especially Aiken
automobile which caused the damage, we do not feel constrained to attempt to weigh vs. Metcalf [1917], 102 Atl., 330.)
the negligence of the respective parties in order to apportion the damage according to
the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in
the defendant's answer, to the effect that the subject matter of the action had been
previously adjudicated in the court of a justice of the peace. In this connection it
appears that soon after the accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace charging the defendant with
the infliction of serious injuries (lesiones graves). At the preliminary investigation the
[G.R. No. 119850. June 20, 1996] 4. Reducing exemplary damages awarded to appellee to TEN THOUSAND and
00/100 (P10,000.00) PESOS;

5. Reversing and setting aside the award of P50,000.00 for attorney's fees as well as
MANDARIN VILLA, INC., petitioner, vs. COURT OF APPEALS and CLODUALDO interest awarded; and
DE JESUS, respondents.
6. AFFIRMING the dismissal of all counterclaims and cross-claims.
RESOLUTION
Costs against appellant Mandarin.
FRANCISCO, J.:

SO ORDERED."[5]
With ample evidentiary support are the following antecedent facts:
In the evening of October 19, 1989, private respondent, Clodualdo de Jesus, a Mandarin Villa, thus, interposed this present petition, faulting the respondent
practicing lawyer and businessman, hosted a dinner for his friends at the petitioner's court with six (6) assigned errors which may be reduced to the following issues, to
restaurant the Mandarin Villa Seafoods Village, Greenhills, Mandaluyong City. After wit: (1) whether or not petitioner is bound to accept payment by means of credit card;
dinner the waiter handed to him the bill in the amount of P2,658.50. Private (2) whether or not petitioner is negligent under the circumstances obtaining in this
respondent offered to pay the bill through his credit card issued by Philippine case; and (3) if negligent, whether or not such negligence is the proximate cause of
Commercial Credit Card Inc. (BANKARD). This card was accepted by the waiter who the private respondent's damage.
immediately proceeded to the restaurant's cashier for card verification. Ten minutes
later, however, the waiter returned and audibly informed private respondent that his Petitioner contends that it cannot be faulted for its cashier's refusal to accept
credit card had expired.[1] Private respondent remonstrated that said credit card had private respondent's BANKARD credit card, the same not being a legal tender. It
yet to expire on September 1990, as embossed on its face. [2] The waiter was argues that private respondent's offer to pay by means of credit card partook of the
unmoved, thus, private respondent and two of his guests approached the restaurant's nature of a proposal to novate an existing obligation for which petitioner, as creditor,
cashier who again passed the credit card over the verification computer. The same must first give its consent otherwise there will be no binding contract between
information was produced, i.e., CARD EXPIRED. Private respondent and his guests them. Petitioner cannot seek refuge behind this averment.
returned to their table and at this juncture, Professor Lirag, another guest, uttered the
We note that Mandarin Villa Seafood Village is affiliated with BANKARD. In fact,
following remarks: "Clody [referring to Clodualdo de Jesus], may problema ba? Baka
an "Agreement"[6] entered into by petitioner and BANKARD dated June 23, 1989,
kailangang maghugas na kami ng pinggan?" [3]Thereupon, private respondent left the
provides inter alia:
restaurant and got his BPI Express Credit Card from his car and offered it to pay their
bill. This was accepted and honored by the cashier after verification. [4] Petitioner and
his companions left afterwards. "The MERCHANT shall honor validly issued PCCCI credit cards presented by their
corresponding holders in the purchase of goods and/or services supplied by it
The incident triggered the filing of a suit for damages by private provided that the card expiration date has not elapsed and the card number does not
respondent. Following a full-dress trial, judgment was rendered directing the petitioner appear on the latest cancellation bulletin of lost, suspended and cancelled PCCCI
and BANKARD to pay jointly and severally the private respondent: (a) moral damages credit cards and, no signs of tampering, alterations or irregularities appear on the face
in the amount of P250,000.00; (b) exemplary damages in the amount of P100,000.00; of the credit card."[7]
and (c) attorney's fees and litigation expenses in the amount of P50,000.00.
Both the petitioner and BANKARD appealed to the respondent Court of Appeals While private respondent may not be a party to the said agreement, the above-
which rendered a decision, thus: quoted stipulation conferred a favor upon the private respondent, a holder of credit
card validly issued by BANKARD. This stipulation is a stipulation pour autri and under
Article 1311 of the Civil Code private respondent may demand its fulfillment provided
"WHEREFORE, the decision appealed from is hereby MODIFIED by:
he communicated his acceptance to the petitioner before its revocation. [8] In this case,
private respondent's offer to pay by means of his BANKARD credit card constitutes
1. Finding appellant MANDARIN solely responsible for damages in favor of appellee; not only an acceptance of the said stipulation but also an explicit communication of
his acceptance to the obligor.
2. Absolving appellant BANKARD of any responsibility for damages;
In addition, the record shows that petitioner posted a logo inside Mandarin Villa
Seafood Village stating that "Bankard is accepted here."[9] This representation is
3. Reducing moral damages awarded to appellee to TWENTY FIVE THOUSAND and conclusive upon the petitioner which it cannot deny or disprove as against the private
00/100 (P25,000.00) PESOS; respondent, the party relying thereon. Petitioner, therefore, cannot disclaim its
obligation to accept private respondent's BANKARD credit card without violating the would have shown without any shadow of doubt that the expiry date embossed on the
equitable principle of estoppel.[10] BANKARD was 'SEP 90.' (Exhibit "D".) A cursory look at the appellee's BANKARD
would also reveal that appellee had been as of that date a cardholder since 1982, a
Anent the second issue, petitioner insists that it is not negligent. In support fact which would have entitled the customer the courtesy of better treatment."[14]
thereof, petitioner cites its good faith in checking, not just once but twice, the validity
of the aforementioned credit card prior to its dishonor. It argues that since the Petitioner, however, argues that private respondent's own negligence in not
verification machine flashed an information that the credit card has expired, petitioner bringing with him sufficient cash was the proximate cause of his damage. It likewise
could not be expected to honor the same much less be adjudged negligent for sought exculpation by contending that the remark of Professor Lirag [15] is a
dishonoring it. Further, petitioner asseverates that it only followed the guidelines and supervening event and at the same time the proximate cause of private respondent's
instructions issued by BANKARD in dishonoring the aforementioned credit card. The injury.
argument is untenable.
We find this contention also devoid of merit. While it is true that private
The test for determining the existence of negligence in a particular case may be respondent did not have sufficient cash on hand when he hosted a dinner at
stated as follows: Did the defendant in doing the alleged negligent act use the petitioner's restaurant, this fact alone does not constitute negligence on his
reasonable care and caution which an ordinary prudent person would have used in part. Neither can it be claimed that the same was the proximate cause of private
the same situation? If not, then he is guilty of negligence.[11] The Point of Sale (POS) respondent's damage. We take judicial notice[16] of the current practice among major
Guidelines which outlined the steps that petitioner must follow under the establishments, petitioner included, to accept payment by means of credit cards in
circumstances provides: lieu of cash. Thus, petitioner accepted private respondent's BPI Express Credit Card
after verifying its validity,[17] a fact which all the more refutes petitioner's imputation of
"x x x x x x x x x negligence on the private respondent.
"CARD EXPIRED Neither can we conclude that the remark of Professor Lirag was a supervening
event and the proximate cause of private respondent's injury. The humiliation and
a. Check expiry date on card. embarrassment of the private respondent was brought about not by such a remark of
Professor Lirag but by the fact of dishonor by the petitioner of private respondent's
b. If unexpired, refer to CB. valid BANKARD credit card. If at all, the remark of Professor Lirag served only to
aggravate the embarrassment then felt by private respondent, albeit silently within
himself.
b.1. If valid, honor up to maximum of SPL only.
WHEREFORE, the instant petition is hereby DISMISSED.
b.2. If in CB as Lost, do procedures 2a to 2e., SO ORDERED.

b.3. If in CB as Suspended/Cancelled, do not honor card.

c. If expired, do not honor card."[12]

A cursory reading of said rule reveals that whenever the words CARD EXPIRED
flashes on the screen of the verification machine, petitioner should check the credit
card's expiry date embossed on the card itself. If unexpired, petitioner should honor
the card provided it is not invalid, cancelled or otherwise suspended. But if expired,
petitioner should not honor the card. In this case, private respondent's BANKARD
credit card has an embossed expiry date of September 1990. [13] Clearly, it has not yet
expired on October 19,1989, when the same was wrongfully dishonored by the
petitioner. Hence, petitioner did not use the reasonable care and caution which an
ordinary prudent person would have used in the same situation and as such petitioner
is guilty of negligence. In this connection, we quote with approval the following
observations of the respondent Court.
"Mandarin argues that based on the POS Guidelines (supra), it has three
options in case the verification machine flashes 'CARD EXPIRED.' It chose to
exercise option (c) by not honoring appellee's credit card. However, appellant
apparently intentionally glossed over option '(a) Check expiry date on card" (id.) which
G.R. No. 82465 February 25, 1991 brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General
Hospital where he was pronounced dead on arrival.
ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES
AND ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834,
VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners, in the Regional Trial Court, Branch LVIII of Lucena City, against the St. Francis High
vs. School, represented by the spouses Fernando Nantes and Rosario Lacandula,
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas,
ROMULO CASTILLO and LILIA CADIZ, respondents. Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which
respondents allegedly incurred from the death of their 13-year old son, Ferdinand
Jose C. Flores, Jr. for petitioners. Castillo. Contending that the death of their son was due to the failure of the
Jovito E. Talabong for private respondents. petitioners to exercise the proper diligence of a good father of the family in preventing
their son's drowning, respondents prayed of actual, moral and exemplary damages,
attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers
Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and
PARAS, J.: severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00
as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a
This is a petition for review of the decision * of the Court of Appeals, the dispositive quo reasoned:
portion of which reads:
Taking into consideration the evidence presented, this Court believes that
WHEREFORE, the decision under appeal is hereby affirmed, with the the defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de
following modifications: (1) Exemplary damages in the amount of Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise
P20,000.00 are hereby awarded to plaintiffs, in addition to the actual the diligence required of them by law under the circumstances to guard
damages of P30,000.00, moral damages of P20,000.00 and attorney's fees against the harm they had foreseen. (pp. 2930, Rollo)
in the amount of P15,000.00 awarded to plaintiffs in the decision under
appeal; (2) St. Francis High School, represented by the Spouses Fernando xxx xxx xxx
Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held jointly
and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito
Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned While it is alleged that when defendants Yoly Jaro and Nida Aragones
actual damages, moral damages, exemplary damages and attorney's fees, arrived at the picnic site, the drowning incident had already occurred, such
and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby fact does not and cannot excuse them from their liability. In fact, it could be
absolved from liability, and the case against them, together with their said that by coming late, they were remiss in their duty to safeguard the
respective counterclaims, is hereby ordered dismissed. students. (p. 30, Rollo)

SO ORDERED. (p. 60, Rollo) The students, young as they were then (12 to 13 years old), were easily
attracted to the sea without aforethought of the dangers it offers. Yet, the
precautions and reminders allegedly performed by the defendants-teachers
The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1- definitely fell short of the standard required by law under the circumstances.
C at the St. Francis High School, wanted to join a school picnic undertaken by Class While the defendants-teachers admitted that some parts of the sea where
I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, the picnic was held are deep, the supposed lifeguards of the children did not
respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short even actually go to the water to test the depth of the particular area where
notice, did not allow their son to join but merely allowed him to bring food to the the children would swim. And indeed the fears of the plaintiffs that the picnic
teachers for the picnic, with the directive that he should go back home after doing so. area was dangerous was confirmed by the fact that three persons during the
However, because of persuasion of the teachers, Ferdinand went on with them to the picnic got drowned at the same time. Had the defendant teachers made an
beach. actual and physical observation of the water before they allowed the
students to swim, they could have found out that the area where the children
During the picnic and while the students, including Ferdinand, were in the water, one were swimming was indeed dangerous. And not only that, the male teachers
of the female teachers was apparently drowning. Some of the students, including who according to the female teachers were there to supervise the children to
Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who ensure their safety were not even at the area where the children were
drowned. His body was recovered but efforts to resuscitate him ashore failed. He was
swimming. They were somewhere and as testified to by plaintiffs' witness the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They
they were having a drinking spree. (pp. 55-56, Rollo) cannot escape liability on the mere excuse that the picnic was not an "extra-
curricular activity of the St. Francis High School." We find from the evidence
On the other hand, the trial court dismissed the case against the St. Francis High that, as claimed by plaintiffs-appellants, the school principal had knowledge
School, Benjamin Illumin and Aurora Cadorna. Said the court a quo: of the picnic even from its planning stage and had even been invited to
attend the affair; and yet he did not express any prohibition against
undertaking the picnic, nor did he prescribe any precautionary measures to
As shown and adverted to above, this Court cannot find sufficient evidence be adopted during the picnic. At the least, We must find that the school and
showing that the picnic was a school sanctioned one. Similarly no evidence the responsible school officials, particularly the principal, Benjamin Illumin,
has been shown to hold defendants Benjamin Illumin and Aurora Cadorna had acquiesced to the holding of the picnic.
responsible for the death of Ferdinand Castillo together with the other
defendant teachers. It has been sufficiently shown that Benjamin Illumin had
himself not consented to the picnic and in fact he did not join it. On the other Under Article 2180, supra, the defendant school and defendant school
hand, defendant Aurora Cadorna had then her own class to supervise and in principal must be found jointly and severally liable with the defendants-
fact she was not amongst those allegedly invited by defendant Connie teachers for the damages incurred by the plaintiffs as a result of the death of
Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. their son. It is the rule that in cases where the above-cited provisions find
30, Rollo) application, the negligence of the employees in causing the injury or damage
gives rise to a presumption of negligence on the part of the owner and/or
manager of the establishment (in the present case, St. Francis High School
Both petitioners and respondents appealed to the Court of Appeals. Respondents- and its principal); and while this presumption is not conclusive, it may be
spouses assigned the following errors committed by the trial court: overthrown only by clear and convincing proof that the owner and/or
manager exercised the care and diligence of a good father of a family in the
1. The lower court erred in not declaring the defendant St. Francis High selection and/or supervision of the employee or employees causing the
School and its administrator/principal Benjamin Illumin as equally liable not injury or damage (in this case, the defendants-teachers). The record does
only for its approved co-curricular activities but also for those which they not disclose such evidence as would serve to overcome the aforesaid
unreasonably failed to exercise control and supervision like the holding of presumption and absolve the St. Francis High School and its principal from
picnic in the dangerous water of Talaan Beach, Sariaya, Quezon. liability under the above-cited provisions.

2. The lower court erred in not declaring the St. Francis High School and As to the third assigned error interposed by plaintiffs-appellants, while We
principal Benjamin Illumin as jointly and solidarily liable with their co- cannot but commiserate with the plaintiffs for the tragedy that befell them in
defendants-teachers Rosario Lacandula, et als., for the tragic death of the untimely death of their son Ferdinand Castillo and understand their
Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March suffering as parents, especially the victim's mother who, according to
20, 1982. appellants, suffered a nervous breakdown as a result of the tragedy, We find
that the amounts fixed by the court a quo as actual damages and moral
3. The lower court erred in not declaring higher amount for actual and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are
damages for the untimely and tragic death of Ferdinand Castillo in favor of those which are sustained by the evidence and the law.
plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)
However, We believe that exemplary or corrective damages in the amount of
The Court of Appeals ruled: P20,000.00 may and should be, as it is hereby, imposed in the present case
by way of example of correction for the public good, pursuant to Article 2229
of the Civil Code. (pp. 57-59, Rollo)
We find plaintiffs-appellants' submission well-taken.
On the other hand, petitioners-teachers assigned the following errors committed by
Even were We to find that the picnic in question was not a school-sponsored the trial court:
activity, nonetheless it cannot be gainsaid that the same was held under the
supervision of the teachers employed by the said school, particularly the
teacher in charge of Class I-C to whom the victim belonged, and those 1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito
whom she invited to help her in supervising the class during the picnic. Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and
Considering that the court a quo found negligence on the part of the six jointly and severally liable for damages such finding not being supported by
defendants-teachers who, as such, were charged with the supervision of the facts and evidence.
children during the picnic, the St. Francis High School and the school
principal, Benjamin Illumin, are liable under Article 2176 taken together with
2. ". . . in dismissing the counterclaim interposed by the defendants. (p. A) Whether or not there was negligence attributable to the defendants which
59, Rollo) will warrant the award of damages to the plaintiffs;

On this score, respondent Court ruled: B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is
applicable to the case at bar;
The main thrust of defendants-appellants appeal is that plaintiffs, the parents
of the victim Ferdinand Castillo, were not able to prove by their evidence that C) Whether or not the award of exemplary and moral damages is proper
they did not give their son consent to join the picnic in question. However, under the circumstances surrounding the case at bar. (pp. 81-82, Rollo)
We agree with the trial court in its finding that whether or not the victim's
parents had given such permission to their son was immaterial to the In the resolution of January 16, 1989, We gave due course to the petition and
determination of the existence of liability on the part of the defendants for the required the parties to submit their respective memoranda.
damage incurred by the plaintiffs-appellants as a result of the death of their
son. What is material to such a determination is whether or not there was
negligence on the part of defendants vis-a-visthe supervision of the victim's The petition is impressed with merit.
group during the picnic; and, as correctly found by the trial court, an
affirmative reply to this question has been satisfactorily established by the If at all petitioners are liable for negligence, this is because of their own negligence or
evidence, as already pointed out. the negligence of people under them. In the instant case however, as will be shown
hereunder, petitioners are neither guilty of their own negligence or guilty of the
However, We sustain defendants-appellants insofar as two of the negligence of those under them.
defendants-teachers, Yoly Jaro and Nida Aragones, are concerned. As to
them, the trial court found: Hence, it cannot be said that they are guilty at all of any negligence. Consequently
they cannot be held liable for damages of any kind.
While it is alleged that when defendants Yoly Jaro and Nida
Aragones arrived at the picnic site, the drowning incident had At the outset, it should be noted that respondent spouses, parents of the victim
already occurred, such fact does not and cannot excuse them from Ferdinand, allowed their son to join the excursion.
their liability. In fact, it could be said that by coming late, they were
remiss in their duty to safeguard the students. Testimony of Dr. Castillo on cross exam. by Atty. Flores

The evidence shows that these two defendants had satisfactorily explained Q Now, when your son asked you for money to buy food, did you
why they were late in going to the picnic site, namely, that they had to attend not ask him where he will bring this?
to the entrance examination being conducted by the school which is part of
their duty as teachers thereof. Since they were not at the picnic site during
the occurrence in question, it cannot be said that they had any participation A I asked him where he was going, he answered, I am going to the
in the negligence attributable to the other defendants-teachers who failed to picnic, and when I asked him where, he did not answer, sir.
exercise diligence in the supervision of the children during the picnic and
which failure resulted in the drowning of plaintiffs' son. Thus, We may not Q And after giving the money, you did not tell him anything more?
attribute any act or omission to the two teachers, Yoly Jaro and Nida
Aragones, as to make them liable for the injury caused to the plaintiffs
A No more, sir.
because of the death of their son resulting from his drowning at the picnic.
Accordingly, they must be absolved from any liability.
Q And after that you just learned that your son join the picnic?
As to the second assigned error raised by defendants-appellants, We agree
with the court a quo that the counterclaim must be dismissed for lack of A Yes, sir.
merit. (pp. 59-60, Rollo)
Q And you came to know of it after the news that your son was
Hence, this petition. drowned in the picnic came to you, is that correct?

The issues presented by petitioners are: A Yes, sir.


Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of Respondent Court of Appeals committed an error in applying Article 2180 of the Civil
March 20, 1982, you did not know that your son join the picnic? Code in rendering petitioner school liable for the death of respondent's son.

A No, sir, I did not know. Article 2180, par. 4 states that:

Q Did you not look for your son during that time? The obligation imposed by article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
A I am too busy with my profession, that is why I was not able, sir.
xxx xxx xxx
Q You did not ask your wife?
Employers shall be liable for the damages caused by their employees and
A I did not, sir. household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
Q And neither did your wife tell you that your son join the picnic?
Under this paragraph, it is clear that before an employer may be held liable for the
negligence of his employee, the act or omission which caused damage or prejudice
A Later on after 12:00, sir. must have occurred while an employee was in the performance of his assigned tasks.

Q And during that time you were too busy that you did not inquire In the case at bar, the teachers/petitioners were not in the actual performance of their
whether your son have joined that picnic? assigned tasks. The incident happened not within the school premises, not on a
school day and most importantly while the teachers and students were holding a
A Yes, sir. purely private affair, a picnic. It is clear from the beginning that the incident happened
while some members of the I-C class of St. Francis High School were having a picnic
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo) at Talaan Beach. This picnic had no permit from the school head or its principal,
Benjamin Illumin because this picnic is not a school sanctioned activity neither is it
considered as an extra-curricular activity.
The fact that he gave money to his son to buy food for the picnic even without
knowing where it will be held, is a sign of consent for his son to join the same.
Furthermore. As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin
of the planning of the picnic by the students and their teachers does not in any way or
in any manner show acquiescence or consent to the holding of the same. The
Testimony of Dr. Lazaro on cross examination: application therefore of Article 2180 has no basis in law and neither is it supported by
any jurisprudence. If we were to affirm the findings of respondent Court on this score,
Q How did you conduct this mental and physical examination? employers wig forever be exposed to the risk and danger of being hailed to Court to
answer for the misdeeds or omissions of the employees even if such act or omission
he committed while they are not in the performance of their duties.
A I have interviewed several persons and the patient herself She
even felt guilty about the death of her son because she cooked
adobo for him so he could join the excursion where her son died of Finally, no negligence could be attributable to the petitioners-teachers to warrant the
drowning. award of damages to the respondents-spouses.

Q Why were you able to say she was feeling guilty because she Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand
was the one who personally cooked the adobo for her son? belonged, did her best and exercised diligence of a good father of a family to prevent
any untoward incident or damages to all the students who joined the picnic.
A It was during the interview that I had gathered it from the patient
herself. She was very sorry had she not allowed her son to join the In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both
excursion her son would have not drowned. I don't know if she P.E. instructors and scout masters who have knowledge in First Aid application and
actually permitted her son although she said she cooked adobo so swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the
he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, defendants (petitioners herein) had life savers especially brought by the defendants in
1984, Dr. Lazaro — witness).
case of emergency." (p. 85, Rollo) The records also show that both petitioners Q You mean 9 to 11 times of having applied the pressure of your
Chavez and Vinas did all what is humanly possible to save the child. body on the body of Ferdinand Castillo?

Testimony of Luisito Vinas on cross examination, A Yes, sir.

Q And when you saw the boy, Ferdinand Castillo, you approached Q Will you please describe how you applied a single act of back to
the boy and claim also having applied first aid on him? back pressure?

A Yes, sir. A This has been done by placing the boy lay first downwards, then
the face was a little bit facing right and doing it by massaging the
Q And while you were applying the so called first aid, the children back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)
were covering you up or were surrounding you?
Testimony of Tirso de Chavez on direct examination
A Yes, sir.
ATTY. FLORES:
Q You were rattled at that time, is it not?
Q Who actually applied the first aid or artificial respiration to the
A No, sir. child?

Q You mean you were in calm and peaceful condition? A Myself, sir.

A Yes, sir. Q How did you apply the first aid to the guy?

Q Despite the fact that the boy was no longer responding to your A The first step that I took, with the help of Mr. Luisito Vinas, was I
application of first aid? applied back to back pressure and took notice of the condition of
the child. We placed the feet in a higher position, that of the head of
the child, sir.
A Yes, sir.
Q After you have placed the boy in that particular position, where
Q You have never been disturbed, "nababahala" in the process of the feet were on a higher level than that of the head, what did you
your application of the first aid on the body of Ferdinand Castillo? do next?

A No, sir, because we were attending to the application of first aid A The first thing that we did, particularly myself, was that after
that we were doing, sir. putting the child in that position, I applied the back to back pressure
and started to massage from the waistline up, but I noticed that the
Q After you have applied back to back pressure and which you boy was not responding, sir.
claimed the boy did not respond, were you not disturb anyway?
Q For how long did you apply this back to back pressure on the
A I was disturbed during that time, sir. boy?

Q For how many minutes have you applied the back to back A About 10 seconds, sir.
pressure?
Q What about Mr. Vinas?
A From 9 to 11 times, sir.
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you
do?

A When we noticed that the boy was not responding, we changed


the position of the boy by placing the child facing upwards laying on
the sand then we applied the mouth to mouth resuscitation, sir. (pp.
92-93, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor
of respondents-spouses. The case at bar does not fall under any of the grounds to
grant moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act or omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or
negligence, hence, no moral damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the
picnic, this does not mean that the petitioners were already relieved of their duty to
observe the required diligence of a good father of a family in ensuring the safety of
the children. But in the case at bar, petitioners were able to prove that they had
exercised the required diligence. Hence, the claim for moral or exemplary damages
becomes baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987,


finding petitioners herein guilty of negligence and liable for the death of Ferdinand
Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the
petitioners herein are concerned, but the portion of the said decision dismissing their
counterclaim, there being no merit, is hereby AFFIRMED.

SO ORDERED.

Sarmiento and Regalado, JJ., concur.


G.R. No. L-7664 August 29, 1958 fee, they immediately went to one of the small pools where the water was shallow. At
about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and
vs. Eusebio went to the bigger pool leaving Dominador in the small pool and so they did
METROPOLITAN WATER DISTRICT, defendant-appellee. not see the latter when he left the pool to get a bottle of coke. In that afternoon, there
were two lifeguards on duty in the pool compound, namely, Manuel Abaño and Mario
Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning and from
Tomas Tria Tirona for appellants. 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee. 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abaño was going around the pools to
BAUTISTA ANGELO, J.: observe the bathers in compliance with the instructions of his chief.

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather
the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as by the name of Andres Hagad, Jr., that somebody was swimming under water for
attorneys' fees, for the death of their son Dominador Ong in one of the swimming quite a long time. Another boy informed lifeguard Manuel Abaño of the same
pools operated by defendant. happening and Abaño immediately jumped into the big swimming pool and retrieved
the apparently lifeless body of Dominador Ong from the bottom. The body was placed
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming at the edge of the pool and Abaño immediately applied manual artificial respiration.
pools but avers that his death was caused by his own negligence or by unavoidable Soon after, male nurse Armando Rule came to render assistance, followed by
accident. Defendant also avers that it had exercised due diligence in the selection of, sanitary inspector Iluminado Vicente who, after being called by phone from the clinic
and supervision over, its employees and that it had observed the diligence required by one of the security guards, boarded a jeep carrying with him the resuscitator and a
by law under the circumstances. medicine kit, and upon arriving he injected the boy with camphorated oil. After the
injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the
Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when
After trial, the lower court found that the action of plaintiffs is untenable and dismissed this failed to revive him, they applied the resuscitator until the two oxygen tanks were
the complaint without pronouncement as to costs. Plaintiffs took the case on appeal exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the
directly to this Court because the amount involved exceeds the sum of P50,000. same became of no use because he found the boy already dead. The doctor ordered
that the body be taken to the clinic.
Defendant owns and operates three recreational swimming pools at its Balara filters,
Diliman, Quezon City, to which people are invited and for which a nominal fee of In the evening of the same day, July 5, 1952, the incident was investigated by the
P0.50 for adults and P0.20 for children is charged. The main pool it between two Police Department of Quezon City and in the investigation boys Ruben Ong and
small pools of oval shape known as the "Wading pool" and the "Beginners Pool." Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an
There are diving boards in the big pools and the depths of the water at different parts autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
are indicated by appropriate marks on the wall. The care and supervision of the pools Division, National Bureau of Investigation, who found in the body of the deceased the
and the users thereof is entrusted to a recreational section composed of Simeon following: an abrasion on the right elbow lateral aspect; contusion on the right
Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain
life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the
safety of its patrons, defendant has provided the pools with a ring buoy, toy roof, nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the
towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in heart; congestion in the visceral organs, and brownish fluid in the stomach. The death
charge of a clinic established for the benefit of the patrons. Defendant has also on was due to asphyxia by submersion in water.
display in a conspicuous place certain rules and regulations governing the use of the
pools, one of which prohibits the swimming in the pool alone or without any attendant.
Although defendant does not maintain a full-time physician in the swimming pool The issue posed in this appeal is whether the death of minor Dominador Ong can be
compound, it has however a nurse and a sanitary inspector ready to administer attributed to the negligence of defendant and/or its employees so as to entitle
injections or operate the oxygen resuscitator if the need should arise. plaintiffs to recover damages.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old The present action is governed by Article 2176 in relation to Article 2080 of the new
high school student and boy scout, and his brothers Ruben and Eusebio, went to Civil Code. The first article provides that "whoever by act or omission causes damage
defendant's swimming pools. This was not the first time that the three brothers had to another, there being fault or negligence, is obliged to pay for the damages done."
gone to said natatorium for they had already been there four or five times before. Such fault or negligence is called quasi-delict. Under the second article, this
They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission obligation is demandable not only for one's own acts or omissions but also for those
of persons for whom one is responsible. In addition, we may quote the following they narrated in their statements everything they knew of the accident, but, as found
authorities cited in the decision of the trial court: by the trial, nowhere in said statements do they state that the lifeguard was chatting
with the security guard at the gate of the swimming pool or was reading a comic
"The rule is well settled that the owners of resorts to which people generally magazine when the alarm was given for which reason he failed to immediately
are expressly or by implication invited are legally bound to exercise ordinary respond to the alarm. On the contrary, what Ruben Ong particularly emphasized
care and prudence in the management and maintenance of such resorts, to therein was that after the lifeguard heard the shouts for help, the latter immediately
the end of making them reasonably safe for visitors" (Larkin vs. Saltair dived into the pool to retrieve the person under water who turned out to be his
Beach Co., 30 Utah 86, 83 Pac. 686). brother. For this reason, the trial court made this conclusion: "The testimony of Ruben
Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be disregarded because they are
"Although the proprietor of a natatorium is liable for injuries to a patron, belied by their written statements. (Emphasis supplied.)
resulting from lack of ordinary care in providing for his safety, without the
fault of the patron, he is not, however, in any sense deemed to be the
insurer of the safety of patrons. And the death of a patron within his On the other hand, there is sufficient evidence to show that appellee has taken all
premises does not cast upon him the burden of excusing himself from any necessary precautions to avoid danger to the lives of its patrons or prevent accident
presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. which may cause their death. Thus, it has been shown that the swimming pools of
635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and
in Bertalot vs. Kinnare, supra, it was held that there could be no recovery for a first aid medicine kit. The bottom of the pools is painted with black colors so as to
the death by drowning of a fifteen-year boy in defendant's natatorium, where insure clear visibility. There is on display in a conspicuous place within the area
it appeared merely that he was lastly seen alive in water at the shallow end certain rules and regulations governing the use of the pools. Appellee employs six
of the pool, and some ten or fifteen minutes later was discovered lifeguards who are all trained as they had taken a course for that purpose and were
unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to issued certificates of proficiency. These lifeguards work on schedule prepared by their
resuscitate him being without avail. chief and arranged in such a way as to have two guards at a time on duty to look after
the safety of the bathers. There is a male nurse and a sanitary inspector with a clinic
provided with oxygen resuscitator. And there are security guards who are available
Since the present action is one for damages founded on culpable negligence, the always in case of emergency.
principle to be observed is that the person claiming damages has the burden of
proving that the damage is caused by the fault or negligence of the person from
whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. The record also shows that when the body of minor Ong was retrieved from the
Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: bottom of the pool, the employees of appellee did everything possible to bring him
Have appellants established by sufficient evidence the existence of fault or back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño
negligence on the part of appellee so as to render it liable for damages for the death immediately gave him manual artificial respiration. Soon thereafter, nurse Armando
of Dominador Ong? Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him
an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the
inspector immediately injected him with camphorated oil. When the manual artificial
There is no question that appellants had striven to prove that appellee failed to take respiration proved ineffective they applied the oxygen resuscitator until its contents
the necessary precaution to protect the lives of its patrons by not placing at the were exhausted. And while all these efforts were being made, they sent for Dr.
swimming pools efficient and competent employees who may render help at a Ayuyao from the University of the Philippines who however came late because upon
moment's notice, and they ascribed such negligence to appellee because the examining the body he found him to be already dead. All of the foregoing shows that
lifeguard it had on the occasion minor Ong was drowning was not available or was appellee has done what is humanly possible under the circumstances to restore life to
attending to something else with the result that his help came late. Thus, appellants minor Ong and for that reason it is unfair to hold it liable for his death.
tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom
of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Sensing that their former theory as regards the liability of appellee may not be of
Abaño did not immediately respond to the alarm and it was only upon the third call much help, appellants now switch to the theory that even if it be assumed that the
that he threw away the magazine he was reading and allowed three or four minutes to deceased is partly to be blamed for the unfortunate incident, still appellee may be
elapse before retrieving the body from the water. This negligence of Abaño, they held liable under the doctrine of "last clear chance" for the reason that, having the last
contend, is attributable to appellee. opportunity to save the victim, it failed to do so.

But the claim of these two witnesses not only was vehemently denied by lifeguard We do not see how this doctrine may apply considering that the record does not show
Abaño, but is belied by the written statements given by them in the investigation how minor Ong came into the big swimming pool. The only thing the record discloses
conducted by the Police Department of Quezon City approximately three hours after is that minor Ong informed his elder brothers that he was going to the locker room to
the happening of the accident. Thus, these two boys admitted in the investigation that drink a bottle of coke but that from that time on nobody knew what happened to him
until his lifeless body was retrieved. The doctrine of last clear chance simply means
that the negligence of a claimant does not preclude a recovery for the negligence of
defendant where it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to claimant notwithstanding
his negligence. Or, "As the doctrine usually is stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent acts of
his opponent or the negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself in the wrong side of
the road. But as we have already stated, the defendant was also negligent;
and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts
of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances, the law is that a person who has the
last clear chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence
of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being
apparent that he went there without any companion in violation of one of the
regulations of appellee as regards the use of the pools, and it appearing that lifeguard
Aba_¤_o responded to the call for help as soon as his attention was called to it and
immediately after retrieving the body all efforts at the disposal of appellee had been
put into play in order to bring him back to life, it is clear that there is no room for the
application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is
required to act instantaneously, and if the injury cannot be avoided by the
application of all means at hand after the peril is or should have been
discovered; at least in cases in which any previous negligence of the party
charged cannot be said to have contributed to the injury. O'Mally vs. Eagan,
77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-
956)

Before closing, we wish to quote the following observation of the trial court, which we
find supported by the evidence: "There is (also) a strong suggestion coming from the
expert evidence presented by both parties that Dominador Ong might have dived
where the water was only 5.5 feet deep, and in so doing he might have hit or bumped
his forehead against the bottom of the pool, as a consequence of which he was
stunned, and which to his drowning. As a boy scout he must have received
instructions in swimming. He knew, or have known that it was dangerous for him to
dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the
evidence, we hereby affirm the same, without pronouncement as to costs.
[G.R. No. 130068. October 1, 1998] anchor, with two (2) shackles were dropped.However, the anchor did not take hold as
expected. The speed of the vessel did not slacken. A commotion ensued between the
crew members. A brief conference ensued between Kavankov and the crew
members. When Gavino inquired what was all the commotion about, Kavankov
assured Gavino that there was nothing of it.
FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF APPELAS and
PHILIPPINE PORTS AUTHORITY, respondents.
After Gavino noticed that the anchor did not take hold, he ordered the engines half-
astern. Abellana, who was then on the pier apron, noticed that the vessel was
approaching the pier fast.Kavankov likewise noticed that the anchor did not take
hold. Gavino thereafter gave the full-astern code. Before the right anchor and
[G.R. No. 130150. October 1, 1998] additional shackles could be dropped, the bow of the vessel rammed into the apron of
the pier causing considerable damage to the pier. The vessel sustained damage
too. (Exhibit 7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit 1-
Vessel). Gavino submitted his report to the Chief Pilot (Exhibit 1-Pilot) who referred
MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS AUTHORITY the report to the Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
and FAR EASTERN SHIPPING COMPANY, respondents. submitted his report of the incident (Exhibit B).

DECISION Per contract and supplemental contract of the Philippine Ports Authority and the
contractor for the rehabilitation of the damaged pier, the same cost the Philippine
REGALADO, J.: Ports Authority the amount of P1,126,132.25 (Exhibits D and E).[3]

These consolidated petitions for review on certiorari seek in unison to annul and On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through
set aside the decision[1] of respondent Court of Appeals of November 15, 1996 and its the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a
resolution[2]dated July 31, 1997 in CA-G.R. CV No. 24072, entitled Philippine Ports complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C.
Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Gavino and the Manila Pilots Association, docketed as Civil Case No. 83-
Manila Pilots Association.Defendants-Appellants, which affirmed with modification the 14958,[4] praying that the defendants therein be held jointly and severally liable to pay
judgment of the trial court holding the defendants-appellants therein solidarily liable the plaintiff actual and exemplary damages plus costs of suit. In a decision dated
for damages in favor of herein private respondent. August 1, 1985, the trial court ordered the defendants therein jointly and severally to
pay the PPA the amount of P1,053,300.00 representing actual damages and the cost
There is no dispute about the facts as found by the appellate court, thus --
of suit.[5]

x x x On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, The defendants appealed to the Court of Appeals and raised the following
owned and operated by the Far Eastern Shipping Company (FESC for brevitys sake), issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable
arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 oclock in for the damage caused by the vessel to the pier, at the port of destination, for his
the morning. The vessel was assigned Berth 4 of the Manila International Port, as its negligence? And (2) Would the owner of the vessel be liable likewise if the damage is
berthing space. Captain Roberto Abellana was tasked by the Philippine Port Authority caused by the concurrent negligence of the master of vessel and the pilot under a
to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the compulsory pilotage?
appellant Manila Pilots Association (MPA for brevitys sake) to conduct docking
As stated at the outset, respondent appellate court affirmed the findings of the
maneuvers for the safe berthing of the vessel to Berth No. 4.
court a quo except that it found no employer-employee relationship existing between
herein private respondents Manila Pilots Association (MPA, for short) and Capt.
Gavino boarded the vessel at the quarantine anchorage and stationed himself in the Gavino.[6] This being so, it ruled instead that the liability of MPA is anchored, not on
bridge, with the master of the vessel, Victor Kavankov, beside him. After a briefing of Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order
Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted No. 15-65,[7] and accordingly modified said decision of the trial court by holding MPA,
anchor from the quarantine anchorage and proceeded to the Manila International along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to
Port. The sea was calm and the wind was ideal for docking maneuvers. reimbursement from Capt. Gavino for such amount of the adjudged pecuniary liability
in excess of the amount equivalent to seventy-five percent (75%) of its prescribed
When the vessel reached the landmark (the big church by the Tondo North Harbor) reserve fund.[8]
one-half mile from the pier, Gavino ordered the engine stopped. When the vessel was
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the
already about 2,000 feet from the pier, Gavino ordered the anchor
decision of the Court of Appeals and both of them elevated their respective plaints to
dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The left
us via separate petitions for review on certiorari.
In G.R. No. 130068, which was assigned to the Second Division of this Court, On the other hand, in G.R. No. 130150, originally assigned to the Court's First
FESC imputed that the Court of Appeals seriously erred: Division and later transferred to the Third Division, MPA, now as petitioner in this
case, avers the respondent court's errors consisted in disregarding and
1. in not holding Senen C. Gavino and the Manila Pilots Association as the parties misinterpreting Customs Administrative Order No. 15-65 which limits the liability of
solely responsible for the resulting damages sustained by the pier deliberately MPA. Said pilots' association asseverates that it should not be held solidarily liable
ignoring the established jurisprudence on the matter. with Capt. Gavino who, as held by respondent court, is only a member, not an
employee, thereof. There being no employer-employee relationship, neither can MPA
be held liable for any vicarious liability for the respective exercise of profession by its
2. in holding that the master had not exercised the required diligence demanded from members nor be considered a joint tortfeasor as to be held jointly and severally
him by the circumstances at the time the incident happened; liable.[12] It further argues that there was erroneous reliance on Customs
Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of
3. in affirming the amount of damages sustained by the respondent Philippine Ports the provisions of the Civil Code on damages which, being a substantive law, is higher
Authority despite a strong and convincing evidence that the amount is clearly in category than the aforesaid constitution and by-laws of a professional organization
exorbitant and unreasonable; or an administrative order which bears no provision classifying the nature of the
liability of MPA for the negligence its member pilots.[13]
4. in not awarding any amount of counterclaim prayed for by the petitioner in its As for Capt. Gavino, counsel for MPA states that the former had retired from
answer; and active pilotage services since July 28, 1994 and has ceased to be a member of
petitioner pilots' association. He is not joined as a petitioner in this case since his
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila whereabouts are unknown.[14]
Pilots' Association in the event that it be held liable. [9]
FESC's comment thereto relied on the competence of the Court of Appeals in
construing provisions of law or administrative orders as basis for ascertaining the
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage liability of MPA, and expressed full accord with the appellate court's holding of
at the time of the incident, it was a compulsory pilot, Capt. Gavino, who was in solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed
command and had complete control in the navigation and docking of the vessel. It is provisions of Customs Administrative Order No. 15-65 clearly established MPA's
the pilot who supersedes the master for the time being in the command and solidary liability.[15]
navigation of a ship and his orders must be obeyed in all respects connected with her
navigation. Consequently, he was solely responsible for the damage caused upon the On the other hand, public respondent PPA, likewise through representations by
pier apron, and not the owners of the vessel. It claims that the master of the boat did the Solicitor General, assumes the same supportive stance it took in G.R. No. 130068
not commit any act of negligence when he failed to countermand or overrule the in declaring its total accord with the ruling of the Court of Appeals that MPA is
orders of the pilot because he did not see any justifiable reason to do so. In other solidarily liable with Capt. Gavino and FESC for damages, and in its application to the
words, the master cannot be faulted for relying absolutely on the competence of the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation
compulsory pilot. If the master does not observe that a compulsory pilot is to MPA's constitution and by-laws which spell out the conditions of and govern their
incompetent or physically incapacitated, the master is justified in relying on the respective liabilities. These provisions are clear and ambiguous as regards MPA's
pilot.[10] liability without need for interpretation or construction. Although Customs
Administrative Order No. 15-65 is a mere regulation issued by an administrative
Respondent PPA, in its comment, predictably in full agreement with the ruling of agency pursuant to delegated legislative authority to fix details to implement the law,
respondent court on the solidary liability of FESC, MPA and Capt. Gavino, stresses it is legally binding and has the same statutory force as any valid statute.[16]
the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor
Kabankov,* shipmaster of MV Pavlodar, as the basis of their solidary liability for Upon motion[17] by FESC dated April 24, 1998 in G.R. No. 130150, said case
damages sustained by PPA. It posits that the vessel was being piloted by Capt. was consolidated with G.R. No. 130068.[18]
Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, as
the former took over the helm of MV Pavlodar when it rammed and damaged the Prefatorily, on matters of compliance with procedural requirements, it must be
apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent mentioned that the conduct of the respective counsel for FESC and PPA leaves much
negligence was the immediate and proximate cause of the collision between the to be desired, to the displeasure and disappointment of this Court.
vessel and the pier - Capt. Gavino, for his negligence in the conduct of docking Section 2, Rule 42 of the 1997 Rules of Civil Procedure[19] incorporates the
maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to former Circular No. 28-91 which provided for what has come to be known as the
countermand the orders of the harbor pilot and to take over and steer the vessel certification against forum shopping as an additional requisite for petitions filed with
himself in the face of imminent danger, as well as for merely relying on Capt. Gavino the Supreme Court and the Court of Appeals, aside from the other requirements
during the berthing procedure.[11] contained in pertinent provisions of the Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving the same issues in the Supreme
Court, Court of Appeals or different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides: 1. That I am the Manager, Claims Department of Filsov Shipping Company, the local
agent of petitioner in this case.
xxxxxxxxx
2. That I have caused the preparation of this Petition for Review on Certiorari.
The petitioner shall also submit together with the petition a certification under oath
that he has not therefore commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different divisions thereof, or any other 3. That I have read the same and the allegations therein contained are true and
tribunal or agency; if there is such other action or proceeding, he must state the correct based on the records of this case.
status of the same; and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of 4. That I certify that petitioner has not commenced any other action or proceeding
Appeals or different divisions thereof, or any other tribunal or agency, he undertakes involving the same issues in the Supreme Court or Court of Appeals, or any other
to promptly inform the aforesaid courts and other tribunal or agency thereof within five tribunal or agency, that to the best of my own knowledge, no such action or
(5) days therefrom. (Italics supplied.) proceeding is pending in the Supreme Court, the Court of Appeals or any other
tribunal or agency, that I should thereafter learn that a similar action or proceeding
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 has been filed or is pending before the Supreme Court, the Court of Appeals, or any
specifically requires that such petition shall contain a sworn certification against forum other tribunal or agency, I undertake to report the fact within five (5) days therefrom to
shopping as provided in the last paragraph of Section 2, Rule 42. this Honorable Court. (Italics supplied for emphasis.)

The records show that the law firm of Del Rosario and Del Rosario through its Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150
associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R. No. then pending with the Third Division was duly filed on August 29, 1997 with a copy
130068 and G.R. No. 130150. thereof furnished on the same date by registered mail to counsel for
FESC.[23] Counsel of record for MPA, Atty. Jesus P. Amparo, in his verification
G.R. No. 130068, which is assigned to the Court's Second Division, commenced accompanying said petition dutifully revealed to the Court that--
with the filing by FESC through counsel on August 22, 1997 of a verified motion for
extension of time to file its petition for thirty (30) days from August 28, 1997 or until xxxxxxxxx
September 27, 1997.[20] Said motion contained the following certification against
forum shopping[21] signed by Atty. Herbert A. Tria as affiant: 3. Petitioner has not commenced any other action or proceeding involving the same
issues in his Honorable Court, the Court of Appeals or different Divisions thereof, or
CERTIFICATION any other tribunal or agency, but to the best of his knowledge, there is an action or
AGAINST FORUM SHOPPING proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co.,
Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for
I/we hereby certify that I/we have not commenced any other action or proceeding Extension of time to file Petition for Review by Certiorari filed sometime on August 18,
involving the same issues in the Supreme Court, the Court of Appeals, or any other 1997. If undersigned counsel will come to know of any other pending action or claim
tribunal or agency; that to the best of my own knowledge, no such action or filed or pending he undertakes to report such fact within five (5) days to this
proceeding is pending in the Supreme Court, the Court of Appeals, or any other Honorable Court.[24] (Italics supplied.)
tribunal or agency; that if I/we should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail
Appeals, or any other tribunal or agency, I/we undertake to report that fact within five on August 29, 1997 and taking judicial notice of the average period of time it takes
(5) days therefrom to this Honorable Court. local mail to reach its destination, by reasonable estimation it would be fair to
conclude that when FESC filed its petition in G.R. No. 130068 on September 26,
1997, it would already have received a copy of the former and would then have
This motion having been granted, FESC subsequently filed its petition on September knowledge of the pendency of the other petition initially filed with the First Division. It
26, 1997, this time bearing a "verification and certification against forum-shopping" was therefore incumbent upon FESC to inform the Court of that fact through its
executed by one Teodoro P. Lopez on September 24, 1997,[22] to wit: certification against forum shopping. For failure to make such disclosure, it would
VERIFICATION AND CERTIFICATION appear that the aforequoted certification accompanying the petition in G.R. No.
AGAINST FORUM SHOPPING 130068 is defective and could have been a ground for dismissal thereof.
Even assuming that FESC has not yet received its copy of MPA's petition at the
in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the time it filed its own petition and executed said certification, its signatory did state "that
Revised Rules of Civil Procedure if I should thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals or any other tribunal or
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state: agency, I undertake to report the fact within five (5) days therefrom in this Honorable
Court."[25] Scouring the records page by page in this case, we find that no petitioner, and not always the counsel whose professional services have been
manifestation concordant with such undertaking was then or at any other time retained for a particular case, who is in the best position to know whether he or it
thereafter ever filed by FESC nor was there any attempt to bring such matter to the actually filed or caused the filing of a petition in that case. Hence, a certification
attention of the Court. Moreover, it cannot feign non-knowledge of the existence of against forum shopping by counsel is a defective certification. It is clearly equivalent
such other petition because FESC itself filed the motion for consolidation in G.R. No. to non-compliance with the requirement under Section 2, Rule 42 in relation to
130150 of these two cases on April 24, 1998. Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Hence, the initial certification appended to the motion for extension of time to file
Rosario, displays an unprofessional tendency of taking the Rules for granted, in this petition n G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally
instance exemplified by its pro forma compliance therewith but apparently without full deficient. But considering that it was a superfluity at that stage of the proceeding, it
comprehension of and with less than faithful commitment to its undertakings to this being unnecessary to file such a certification with a mere motion for extension, we
Court in the interest of just, speedy and orderly administration of court proceedings. shall disregard such error. Besides, the certification subsequently executed by
Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the
As between the lawyer and the courts, a lawyer owes candor, fairness and good inaccuracies earlier pointed out. In the same vein, we shall consider the verification
faith to the court.[26] He is an officer of the court exercising a privilege which is signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as
indispensable in the administration of justice.[27] Candidness, especially towards the substantial compliance inasmuch as it served the purpose of the Rules of informing
courts, is essential for the expeditious administration of justice. Courts are entitled to the Court of the pendency of another action or proceeding involving the same issues.
expect only complete honesty from lawyers appearing and pleading before
them.[28] Candor in all dealings is the very essence of honorable membership in the It bears stressing that procedural rules are instruments in the speedy and
legal profession.[29] More specifically, a lawyer is obliged to observe the rules of efficient administration of justice. They should be used to achieve such end and not to
procedure and not to misuse them to defeat the ends of justice. [30] It behooves a derail it.[34]
lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy
and efficient administration of justice.[31] Being an officer of the court, a lawyer has a Counsel for PPA did not make matters any better. Despite the fact that, save for
responsibility in the proper administration of justice. Like the court itself, he is an the Solicitor General at the time, the same legal team of the Office of the Solicitor
instrument to advance its ends -- the speedy, efficient, impartial, correct and General (OSG, for short) composed of Assistant Solicitor General Roman G. Del
inexpensive adjudication of cases and the prompt satisfaction of final judgments. A Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor General
lawyer should not only help attain these objectives but should likewise avoid any Pio C. Guerrero very much later in the proceedings, represented PPA throughout the
unethical or improper practices that impede, obstruct or prevent their realization, appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was
charged as he is with the primary task of assisting in the speedy and efficient presumably fully acquainted with the facts and issues of the case, it took the OSG an
administration of justice.[32] inordinately and almost unreasonably long period of time to file its comment, thus
unduly delaying the resolution of these cases. It took several changes of leadership in
Sad to say, the members of said law firm sorely failed to observe their duties as the OSG -- from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P.
responsible members of the Bar. Their actuations are indicative of their predisposition Galvez -- before the comment in behalf of PPA was finally filed.
to take lightly the avowed duties of officers of the Court to promote respect for law
and for legal processes.[33] We cannot allow this state of things to pass judicial In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210
muster. days, a warning that no further extensions shall be granted, and personal service on
the Solicitor General himself of the resolution requiring the filing of such comment
In view of the fact that at around the time these petitions were commenced, the before the OSG indulged the Court with the long required comment on July 10,
1997 Rules of Civil Procedure had just taken effect, the Court treated infractions of 1998.[35] This, despite the fact that said office was required to file its comment way
the new Rules then with relative liberality in evaluating full compliance back on November 12, 1997.[36] A closer scrutiny of the records likewise indicates that
therewith. Nevertheless, it would do well to remind all concerned that the penal petitioner FESC was not even furnished a copy of said comment as required by
provisions of Circular No. 28-91 which remain operative provides, inter alia: Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which,
from the point of view of G.R. No. 130068, was a non-party.[37] The OSG fared slightly
3. Penalties.- better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days,
before the comment was finally filed.[38] And while it properly furnished petitioner MPA
xxxxxxxxx with a copy of its comment, it would have been more desirable and expedient in this
case to have furnished its therein co-respondent FESC with a copy thereof, if only as
(c) The submission of a false certification under Par. 2 of the Circular shall likewise a matter of professional courtesy.[39]
constitute contempt of court, without prejudice to the filing of criminal action against This undeniably dilatory disinclination of the OSG to seasonably file required
the guilty party. The lawyer may also be subjected to disciplinary proceedings. pleadings constitutes deplorable disservice to the tax-paying public and can only be
It must be stressed that the certification against forum shopping ordained under categorized as censurable inefficiency on the part of the government law office. This
the Rules is to be executed by the petitioner, and not by counsel. Obviously it is the is most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the initiative of The Port of Manila is within the Manila Pilotage District which is under
filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority
considering its familiarity with the background of the case and if only to make its job Administrative Order No. 03-85,[47] which provides that:
easier by having to prepare and file only one comment. It could not have been
unaware of the pendency of one or the other petition because, being counsel for SEC. 8. Compulsory Pilotage Service.- For entering a harbor and anchoring thereat,
respondent in both cases, petitioner is required to furnish it with a copy of the petition or passing through rivers or straits within a pilotage district, as well as docking and
under pain of dismissal of the petition for failure otherwise. [40] undocking at any pier/wharf, or shifting from one berth or another, every vessel
Besides, in G.R. 130068, it prefaces its discussions thus -- engaged in coastwise and foreign trade shall be under compulsory pilotage. x x x

Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in In case of compulsory pilotage, the respective duties and responsibilities of the
the case before the respondent Court of Appeals, has taken a separate appeal from compulsory pilot and the master have been specified by the same regulation in this
the said decision to this Honorable Court, which was docketed as G.R. No. 130150 wise:
and entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority
and Far Eastern Shipping Co., Respondents.[41] SEC. 11. Control of vessels and liability for damage. - On compulsory pilotage
grounds, the Harbor Pilot, providing the service to a vessel shall be responsible for
Similarly, in G.R. No. 130150, it states - the damage caused to a vessel or to life and property at ports due to his negligence
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal or fault. He can only be absolved from liability if the accident is caused by force
from the said decision to this Honorable Court, docketed as G.R. No. 130068, entitled majeure or natural calamities provided he has exercised prudence and extra diligence
"Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority."[42] to prevent or minimize damage.

We find here a lackadaisical attitude and complacency on the part of the OSG in The Master shall retain overall command of the vessel even on pilotage grounds
the handling of its cases and an almost reflexive propensity to move for countless whereby he can countermand or overrule the order or command of the Harbor Pilot
extensions, as if to test the patience of the Court, before favoring it with the timely on board. In such event, any damage caused to a vessel or to life and property at
submission of required pleadings. ports by reason of the fault or negligence of the Master shall be the responsibility and
liability of the registered owner of the vessel concerned without prejudice to recourse
It must be emphasized that the Court can resolve cases only as fast as the against said Master.
respective parties in a case file the necessary pleadings. The OSG, be needlessly
extending the pendency of these cases through its numerous motions for extension, Such liability of the owner or Master of the vessel or its pilots shall be determined by
came very close to exhausting this Court's forbearance and has regrettably fallen competent authority in appropriate proceedings in the light of the facts and
short of its duties as the People's Tribune. circumstances of each particular case.
The OSG is reminded that just like other members of the Bar, the canons under
the Code of Professional Responsibility apply with equal force on lawyers in SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association. - The duties
government service in the discharge of their official tasks. [43] These ethical duties are and responsibilities of the Harbor Pilot shall be as follows:
rendered even more exacting as to them because, as government counsel, they have
the added duty to abide by the policy of the State to promote a high standard of ethics xxxxxxxxx
in public service.[44] Furthermore, it is incumbent upon the OSG, as part of the
government bureaucracy, to perform and discharge its duties with the highest degree
of professionalism, intelligence and skill[45] and to extend prompt, courteous and f) a pilot shall be held responsible for the direction of a vessel from the time he
adequate service to the public.[46] assumes his work as a pilot thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at the moment the Master
Now, on the merits of the case. After a judicious examination of the records of neglects or refuses to carry out his order.
this case, the pleadings filed, and the evidence presented by the parties in the two
petitions, we find no cogent reason to reverse and set aside the questioned Customs Administrative Order No. 15-65 issued twenty years earlier likewise
decision. While not entirely a case of first impression, we shall discuss the provided in Chapter I thereof for the responsibilities of pilots:
issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the
matters raised in both petitions beg for validation and updating of well worn maritime
jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this Par. XXXIX. - A Pilot shall be held responsible for the direction of a vessel from the
shipping mishap which has been stretched beyond the limits of judicial tolerance. time he assumes control thereof until he leaves it anchored free from shoal; Provided,
That his responsibility shall cease at the moment the master neglects or refuses to
carry out his instructions.
xxxxxxxxx becomes the master pro hac vice and should give all directions as to speed, course,
stopping and reversing, anchoring, towing and the like. And when a licensed pilot is
Par. XLIV. - Pilots shall properly and safely secure or anchor vessels under their employed in a place where pilotage is compulsory, it is his duty to insist on having
control when requested to do so by the master of such vessels. effective control of the vessel, or to decline to act as pilot. Under certain systems of
foreign law, the pilot does not take entire charge of the vessel, but is deemed merely
the adviser of the master, who retains command and control of the navigation even
I. G.R. No. 130068 on localities where pilotage is compulsory.[55]
Petitioner FESC faults the respondent court with serious error in not holding It is quite common for states and localities to provide for compulsory pilotage,
MPA and Capt. Gavino solely responsible for the damages caused to the pier. It and safety laws have been enacted requiring vessels approaching their ports, with
avers that since the vessel was under compulsory pilotage at the time with Capt. certain exceptions, to take on board pilots duly licensed under local law. The purpose
Gavino in command and having exclusive control of the vessel during the docking of these laws is to create a body of seamen thoroughly acquainted with the harbor, to
maneuvers, then the latter should be responsible for damages caused to the pier.[48] It pilot vessels seeking to enter or depart, and thus protect life and property from the
likewise holds the appellate court in error for holding that the master of the ship, Capt. dangers of navigation.[56]
Kabankov, did not exercise the required diligence demanded by the circumstances.[49]
In line with such established doctrines, Chapter II of Customs Administrative
We start our discussion of the successive issues bearing in mind the evidentiary Order No. 15-65 prescribes the rules of compulsory pilotage in the covered pilotage
rule in American jurisprudence that there is a presumption of fault against a moving districts, among which is the Manila Pilotage District, viz. --
vessel that strikes a stationary object such as a dock or navigational aid. In admiralty,
this presumption does more than merely require the ship to go forward and produce
some evidence on the presumptive matter. The moving vessel must show that it was PARAGRAPH I. - Pilotage for entering a harbor and anchoring thereat, as well
without fault or that the collision was occasioned by the fault of the stationary object as docking and undocking in any pier or shifting from one berth to another shall be
or was the result of inevitable accident. It has been held that such vessel must compulsory, except Government vessels and vessels of foreign governments entitled
exhaust every reasonable possibility which the circumstances admit and show that in to courtesy, and other vessels engaged solely in river or harbor work, or in a daily
each, they did all that reasonable care required. [50] In the absence of sufficient proof ferry service between ports which shall be exempt from compulsory pilotage
in rebuttal, the presumption of fault attaches to a moving vessel which collides with a provisions of these regulations: provided, however, that compulsory pilotage shall not
fixed object and makes a prima facie case of fault against the vessel.[51] Logic and apply in pilotage districts whose optional pilotage is allowed under these regulations.
experience support this presumption:
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4
The common sense behind the rule makes the burden a heavy one. Such accidents of the Manila International Port. Upon assuming such office as compulsory pilot, Capt.
simply do not occur in the ordinary course of things unless the vessel has been Gavino is held to the universally accepted high standards of care and diligence
mismanaged in some way. It is not sufficient for the respondent to produce witnesses required of a pilot, whereby he assumes to have skill and knowledge in respect to
who testify that as soon as the danger became apparent everything possible was navigation in the particular waters over which his license extends superior to and
done to avoid an accident. The question remains, How then did the collision more to be trusted than that of the master.[57] A pilot should have a thorough
occur? The answer must be either that, in spite of the testimony of the witnesses, knowledge of general and local regulations and physical conditions affecting the
what was done was too little or too late or, if not, then the vessel was at fault for being vessel in his charge and the waters for which he is licensed, such as a particular
in a position in which an unavoidable collision would occur. [52] harbor or river. He is not held to the highest possible degree of skill and care, but
must have and exercise the ordinary skill and care demanded by the circumstances,
and usually shown by an expert in his profession. Under extraordinary circumstances,
The task, therefore, in these cases is to pinpoint who was negligent - the master of a pilot must exercise extraordinary care.[58]
the ship, the harbor pilot or both.
In Atlee vs. The Northwestern Union Packet Company,[59] Mr. Justice Miller
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a spelled out in great detail the duties of a pilot:
vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot"
includes both (1) those whose duty it is to guide vessels into or out of ports, or in
particular waters and (2) those entrusted with the navigation of vessels on the high x x x (T)he pilot of a river steamer, like the harbor pilot, is selected for his
seas.[53] However, the term "pilot" is more generally understood as a person taken on personal knowledge of the topography through which he steers his vessel. In the long
board at a particular place for the purpose of conducting a ship through a river, road course of a thousand miles in one of these rivers, he must be familiar with the
or channel, or from a port.[54] appearance of the shore on each side of the river as he goes along. Its banks, towns,
its landings, its houses and trees, are all landmarks by which he steers his
Under English and American authorities, generally speaking, the pilot vessel. The compass is of little use to him. He must know where the navigable
supersedes the master for the time being in the command and navigation of the ship, channel is, in its relation to all these external objects, especially in the night. He must
and his orders must be obeyed in all matters connected with her navigation. He also be familiar with all dangers that are permanently located in the course of the
river, as sand-bars, snags, sunken rocks or trees or abandoned vessels or barges. All
this he must know and remember and avoid. To do this, he must be constantly Moreover, assuming that he did indeed give the command to drop the anchor
informed of the changes in the current of the river, of the sand-bars newly made, of on time, as pilot he should have seen to it that the order was carried out, and he could
logs or snags, or other objects newly presented, against which his vessel might be have done this in a number of ways, one of which was to inspect the bow of the
injured. vessel where the anchor mechanism was installed. Of course, Captain Gavino makes
reference to a commotion among the crew members which supposedly caused the
xxxxxxxxx delay in the execution of the command. This account was reflected in the pilot's report
prepared four hours later, but Capt. Kavankov, while not admitting whether or not
such a commotion occurred, maintained that the command to drop anchor was
It may be said that this is exacting a very high order of ability in a pilot. But when followed "immediately and precisely." Hence, the Court cannot give much weight or
we consider the value of the lives and property committed to their control, for in this consideration to this portion of Gavino's testimony." [61]
they are absolute masters, the high compensation they receive, the care which
Congress has taken to secure by rigid and frequent examinations and renewal of
licenses, this very class of skill, we do not think we fix the standard too high. An act may be negligent if it is done without the competence that a reasonable
person in the position of the actor would recognize as necessary to prevent it from
creating an unreasonable risk of harm to another. [62] Those who undertake any work
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to calling for special skills are required not only to exercise reasonable care in what they
measure up to such strict standard of care and diligence required of pilots in the do but also possess a standard minimum of special knowledge and ability. [63]
performance of their duties. Witness this testimony of Capt. Gavino:
Every man who offers his services to another, and is employed, assumes to
Court: exercise in the employment such skills he possesses, with a reasonable degree of
You have testified before that the reason why the vessel bumped the pier diligence. In all these employments where peculiar skill is requisite, if one offers his
was because the anchor was not released immediately or as soon as you services he is understood as holding himself out to the public as possessing the
have given the order. Do you remember having stated that? degree of skill commonly possessed by others in the same employment, and if his
pretensions are unfounded he commits a species of fraud on every man who employs
A Yes, your Honor. him in reliance on his public profession.[64]

Q And you gave this order to the captain of the vessel? Furthermore, there is an obligation on all persons to take the care which, under
ordinary circumstances of the case, a reasonable and prudent man would take, and
A Yes, your Honor. the omission of that care constitutes negligence.[65] Generally, the degree of care
required is graduated according to the danger a person or property attendant upon
Q By that testimony, you are leading the Court to understand that is that anchor
the activity which the actor pursues or the instrumentality which he uses. The greater
was released immediately at the time you gave the order, the incident would
the danger the greater the degree of care required. What is ordinary under
not have happened. Is that correct?
extraordinary of conditions is dictated by those conditions; extraordinary risk demands
A Yes, sir, but actually it was only a presumption on my part because there was a extraordinary care. Similarly, the more imminent the danger, the higher the degree of
commotion between the officers who are in charge of the dropping of the care.[66]
anchor and the captain. I could not understand their language, it was in
We give our imprimatur to the bases for the conclusion of the Court of Appeals
Russian, so I presumed the anchor was not dropped on time.
that Capt. Gavino was indeed negligent in the performance of his duties:
Q So, you are not sure whether it was really dropped on time or not?
xxxxxxxxx
A I am not sure, your Honor.
x x x As can be gleaned from the logbook, Gavino ordered the left anchor and
xxxxxxxxx
two (2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of
Q You are not even sure what could have caused the incident. What factor could the vessel stopped at 8:31 o'clock. By then, Gavino must have realized that the
have caused the incident? anchor did not hit a hard object and was not clawed so as to reduce the momentum of
the vessel. In point of fact, the vessel continued travelling towards the pier at the
A Well, in this case now, because either the anchor was not dropped on time or same speed. Gavino failed to react. At 8:32 o'clock, the two (2) tugboats began to
the anchor did not hold, that was the cause of the incident, your Honor. [60] push the stern part of the vessel from the port side but the momentum of the vessel
was not contained. Still, Gavino did not react. He did not even order the other anchor
It is disconcertingly riddled with too much incertitude and manifests a seeming and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did
indifference for the possibly injurious consequences his commands as pilot may he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor
have. Prudence required that he, as pilot, should have made sure that his directions was dropped that Gavino reacted. But his reaction was even (haphazard) because
were promptly and strictly followed. As correctly noted by the trial court - instead of arresting fully the momentum of the vessel with the help of the tugboats,
Gavino ordered merely "half-astern". It took Gavino another minute to order a "full- pilot is obviously incompetent or intoxicated and the circumstances may require the
astern". By then, it was too late.The vessel's momentum could no longer be arrested master to displace a compulsory pilot because of incompetency or physical
and, barely a minute thereafter, the bow of the vessel hit the apron of the incapacity. If, however, the master does not observe that a compulsory pilot is
pier. Patently, Gavino miscalculated. He failed to react and undertake adequate incompetent or physically incapacitated, the master is justified in relying on the pilot,
measures to arrest fully the momentum of the vessel after the anchor failed to claw to but not blindly.[71]
the seabed. When he reacted, the same was even (haphazard). Gavino failed to
reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only The master is not wholly absolved from his duties while a pilot is on board his
one (1) anchor would suffice and even when the anchor failed to claw into the seabed vessel, and may advise with or offer suggestions to him. He is still in command of the
or against a hard object in the seabed, Gavino failed to order the other anchor vessel, except so far as her navigation is concerned, and must cause the ordinary
dropped immediately. His claim that the anchor was dropped when the vessel was work of the vessel to be properly carried on and the usual precaution taken. Thus, in
only 1,000 feet from the pier is but a belated attempt to extricate himself from the particular, he is bound to see that there is sufficient watch on deck, and that the men
quagmire of his own insouciance and negligence. In sum, then, Appellants' claim that are attentive to their duties, also that engines are stopped, towlines cast off, and the
the incident was caused by "force majeure" is barren of factual basis. anchors clear and ready to go at the pilot's order.[72]
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss
xxxxxxxxx in the discharge of his duties as master of the ship, leaving the entire docking
procedure up to the pilot, instead of maintaining watchful vigilance over this risky
The harbor pilots are especially trained for this job. In the Philippines, one may maneuver:
not be a harbor pilot unless he passed the required examination and training Q Will you please tell us whether you have the right to intervene in docking of your
conducted then by the Bureau of Custom, under Customs Administrative Order No. ship in the harbor?
15-65, now under the Philippine Ports Authority under PPA Administrative Order 63-
85. Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that A No sir, I have no right to intervene in time of docking, only in case there is
"the pilot shall be held responsible for the direction of the vessel from the time he imminent danger to the vessel and to the pier.
assumes control thereof, until he leaves it anchored free from shoal: Provided, that
his responsibility shall cease at the moment the master neglects or refuse(s) to carry Q Did you ever intervene during the time that your ship was being docked by
out his instructions." The overall direction regarding the procedure for docking and Capt. Gavino?
undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino
A No sir, I did not intervene at the time when the pilot was docking my ship.
failed to live up to his responsibilities and exercise reasonable care or that degree of
care required by the exigencies of the occasion. Failure on his part to exercise the Q Up to the time it was actually docked at the pier, is that correct'?
degree of care demanded by the circumstances is negligence (Reese versus
Philadelphia & RR Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67] A No sir, I did not intervene up to the very moment when the vessel was docked.
xxxxxxxxx
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
Atty. Del Rosario (to the witness)
This discussion should not however, divert the court from the fact that Q Mr. Witness, what happened, if any, or was there anything unusual that
negligence in manuevering the vessel must be attributed to Capt. Senen Gavino. He happened during the docking?
was an experienced pilot and by this time should have long familiarized himself with
the depth of the port and the distance he could keep between the vessel and port in A Yes sir, our ship touched the pier and the pier was damaged.
order to berth safely.[68]
Court (to the witness)
The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov is no Q When you said touched the pier, are you leading the court to understand that
less responsible for the allision. His unconcerned lethargy as master of the ship in the your ship bumped the pier?
face of troublous exigence constitutes negligence.
A I believe that my vessel only touched the pier but the impact was very weak.
While it is indubitable that in exercising his functions a pilot-is in sole command
of the ship[69] and supersedes the master for the time being in the command and Q Do you know whether the pier was damaged as a result of that slight or weak
navigation of a ship and that he becomes master pro hac vice of a vessel piloted by impact?
him,[70] there is overwhelming authority to the effect that the master does not A Yes sir, after the pier was damaged.
surrender his vessel to the pilot and the pilot is not the master. The master is still in
command of the vessel notwithstanding the presence of a pilot. There are occasions xxxxxxxxx
when the master may and should interfere and even displace the pilot, as when the
Q Being most concerned with the safety of your vessel, in the maneuvering of Q If you knew that the shackles were not enough to hold the ship, did you not
your vessel, to the port, did you observe anything irregular in the make any protest to the pilot?
maneuvering by Capt. Gavino at the time he was trying to cause the vessel
to be docked at the pier? A No sir, after the incident, that was my assumption.

A You mean the action of Capt. Gavino or his condition? Q Did you come to know later whether that presumption is correct?

Court: A I still don't know the ground in the harbor or the depths.

Q Not the actuation that conform to the safety maneuver of the ship to the harbor? Q So from the beginning, you were not competent whether the 2 shackles were
also dropped to hold the ship?
A No sir, it was a usual docking.
A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be
Q By that statement of yours, you are leading the court to understand that there an experienced pilot and he should be more aware as to the depths of the
was nothing irregular in the docking of the ship? harbor and the ground and I was confident in his actions.
A Yes sir, during the initial period, of the docking, there was nothing unusual that xxxxxxxxx
happened.
Solicitor Abad (to the witness)
Q What about in the last portion of the docking of the ship, was there anything
unusual or abnormal that happened? Q Now, you were standing with the pilot on the bridge of the vessel before the
incident happened, were you not?
A None Your Honor, I believe that Capt. Gavino thought that the anchor could
keep or hold the vessel. A Yes sir, all the time, I was standing with the pilot.

Q You want us to understand, Mr. Witness, that the dropping of the anchor of the Q And so whatever the pilot saw, you could also see from that point of view?
vessel was not timely? A That is right.
A I don't know the depth of this port but I think, if the anchor was dropped earlier Q Whatever the pilot can read from the panel of the bridge, you also could read, is
and with more shackles, there could not have been an incident. that correct?
Q So you could not precisely tell the court that the dropping of the anchor was A What is the meaning of panel'?
timely because you are not well aware of the seabed, is that correct?
Q All indications necessary for men on the bridge to be informed of the
A Yes sir, that, is right. movements of the ship?
xxxxxxxxx A That is right.
Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its Q And whatever sound the captain... Capt. Gavino would hear from the bridge,
ground so much so that the vessel could not travel? you could also hear?
A It is difficult for me to say definitely. I believe that the anchor did not hold the A That is right.
ship.
Q Now, you said that when the command to lower the anchor was given, it was
Q You mean you don't know whether the anchor blades stuck to the ground to obeyed, is that right?
stop the ship from further moving?
A This command was executed by the third mate and boatswain.
A Yes sir, it is possible.
Court (to the witness)
Q What is possible?
Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with
A I think, the 2 shackles were not enough to hold the vessel. the duties of the pilot and that, in your opinion, you can only intervene if the
Q Did you know that the 2 shackles were dropped? ship is placed in imminent danger, is that correct?

A Yes sir, I knew that. A That is right, I did say that.


Q In your observation before the incident actually happened, did you observe A No sir.
whether or not the ship, before the actual incident, the ship was placed in
imminent danger?. Q So that you were in full accord with all of Capt. Gavino's orders?

A No sir, I did not observe. A Yes sir.

Q By that answer, are you leading the court to understand that because you did Q Because, otherwise, you would have issued order that would supersede his
not intervene and because you believed that it was your duty to intervene own order?
when the vessel is placed in imminent danger to which you did not observe A In that case, I should take him away from his command or remove the
any imminent danger thereof, you have not intervened in any manner to the command from him.
command of the pilot?
Court (to the witness)
A That is right, sir.
Q You were in full accord with the steps being taken by Capt. Gavino because
xxxxxxxxx you relied on his knowledge, on his familiarity of the seabed and shoals and
Q Assuming that you disagreed with the pilot regarding the step being taken by other surroundings or conditions under the sea, is that correct?
the pilot in maneuvering the vessel. whose command will prevail, in case of A Yes sir, that is right.
imminent danger to the vessel?
xxxxxxxxx
A I did not consider the situation as having an imminent danger. I believed that the
vessel will dock alongside the pier. Solicitor Abad (to the witness)
Q You want us to understand that you did not see an imminent danger to your Q And so after the anchors were ordered dropped and they did not take hold of
ship, is that what you mean? the seabed, you were alerted that there was danger already on hand?
A Yes sir, up to the very last moment, I believed that there was no imminent A No sir, there was no imminent danger to the vessel.
danger.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the
Q Because of that, did you ever intervene in the command of the pilot? bottom and it did not, there was no danger to the ship?
A Yes sir, I did not intervene because I believed that the command of the pilot to A Yes sir, because the anchor dragged on the ground later.
be correct.
Q And after a few moments when the anchor should have taken hold the seabed
Solicitor Abad (to the witness) but not done (sic), as you expected, you already were alerted that there was
danger to the ship, is that correct?
Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious
matter, is it not? A Yes sir, I was alerted but there was no danger.
A Yes sir, that is right. Q And you were alerted that somebody was wrong?
Q Since it affects not only the safety of the port or pier, but also the safety of the A Yes sir, I was alerted.
vessel and the cargo, is it not?
Q And this alert you assumed was the ordinary alertness that you have for normal
A That is right. docking?
Q So that, I assume that you were watching Capt. Gavino very closely at the time A Yes sir, I mean that it was usual condition of any man in time of docking to be
he was making his commands? alert.
A I was close to him, I was hearing his command and being executed. Q And that is the same alertness when the anchor did not hold onto the ground, is
that correct?
Q And that you were also alert for any possible mistakes he might commit in the
maneuvering of the vessel? A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.
A Yes sir, that is right. Q Since, as you said that you agreed all the while with the orders of Capt. Gavino,
you also therefore agreed with him in his failure to take necessary
Q But at no time during the maneuver did you issue order contrary to the orders precaution against the eventuality that the anchor will not hold as expected?
Capt. Gavino made?
Atty. Del Rosario: Atty. Catris:
May I ask that the question ... In fact, the Master of the vessel testified here that he was all along in
conformity with the orders you gave to him, and, as matter of fact, as he
Solicitor Abad: said, he obeyed all your orders. Can you tell, if in the course of giving such
Never mind, I will reform the question. normal orders for the saf(e) docking of the MV Pavlodar, do you remember
of any instance that the Master of the vessel did not obey your command for
xxxxxxxxx the safety docking of the MV Pavlodar?

Solicitor Abad (to the witness) Atty. del Rosario:

Q Is it not a fact that the vessel bumped the pier? Already answered, he already said yes sir.

A That is right, it bumped the pier. Court:

Q For the main reason that the anchor of the vessel did not hold the ground as Yes, he has just answered yes sir to the Court that there was no
expected? disagreement insofar as the bringing of the vessel safely to the port.

A Yes sir, that is my opinion.[73] Atty. Catris:

Further, on redirect examination, Capt. Kabankov fortified his apathetic But in this instance of docking of the MV Pavlodar, do you remember of a
assessment of the situation: time during the course of the docking that the MV Pavlodar was in imminent
danger of bumping the pier?
Q Now, after the anchor was dropped, was there any point in time that you felt
that the vessel was in imminent danger. A When we were about more than one thousand meters from the pier. I think, the
anchor was not holding, so I immediately ordered to push the bow at a fourth
A No, at that time, the vessel was not in imminent danger, sir." [74] quarter, at the back of the vessel in order to swing the bow away from the
pier and at the same time, I ordered for a full astern of the engine." [75]
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal
to Capt. Gavino's anxious assessment of the situation: These conflicting reactions can only imply, at the very least, unmindful disregard or,
worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence.
Q When a pilot is on board a vessel, it is the pilot's command which should be
followed-at that moment until the vessel is, or goes to port or reaches port? The findings of the trial court on this aspect is noteworthy:
A Yes, your Honor, but it does not take away from the Captain his prerogative to
countermand the pilot. For, while the pilot Gavino may indeed have been charged with the task of
docking the vessel in the berthing space, it is undisputed that the master of the vessel
Q In what way? had the corresponding duty to countermand any of the orders made by the pilot, aid
even maneuver the vessel himself, in case of imminent danger to the vessel and the
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain
port.
always has the prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledge of the seabed In fact, in his testimony, Capt. Kavankov admitted that all throughout the
which are vital or decisive in the safety (sic) bringing of a vessel to the port, man(eu)vering procedures he did not notice anything was going wrong, and even
he is not competent? observed that the order given to drop the anchor, was done at the proper time. He
even ventured the opinion that the accident occurred because the anchor failed to
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still,
take hold but that this did not alarm him because there was still time to drop a second
the safety of the vessel rest(s) upon the Captain, the Master of the vessel. anchor.
Q In this case, there was not a disagreement between you and the Captain of the
vessel in the bringing of the vessel to port? Under normal circumstances, the above-mentioned facts would have caused
the master of a vessel to take charge of the situation and see to the man(eu)vering of
A No, your Honor. the vessel himself.Instead, Capt. Kavankov chose to rely blindly upon his pilot, who
Court: by this time was proven ill-equipped to cope with the situation.

May proceed. xxxxxxxxx


It is apparent that Gavino was negligent but Far Eastern's employee As early as 1869, the U.S. Supreme Court declared, through Mr. Justice
Capt. Kavankov was no less responsible for as master of the vessel he stood by the Swayne, in The Steamship China vs. Walsh,[78] that it is the duty of the master to
pilot during the man(eu)vering procedures and was privy to every move the latter interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger
made, as well as the vessel's response to each of the commands. His choice to rely which he does not foresee, and in all cases of great necessity. The master has the
blindly upon the pilot's skills, to the point that despite being appraised of a notice of same power to displace the pilot that he has to remove any subordinate officer of the
alert he continued to relinquish control of the vessel to Gavino, shows indubitably that vessel, at his discretion.
he was not performing his duties with the diligence required of him and therefore may
be charged with negligence along with defendant Gavino. [76] In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown,
emphatically ruled that:
As correctly affirmed by the Court of Appeals -
Nor are we satisfied with the conduct of the master in leaving the pilot in sole
charge of the vessel. While the pilot doubtless supersedes the master for the time
We are in full accord with the findings and disquisitions of the Court a quo. being in the command and navigation of the ship, and his orders must be obeyed in
all matters connected with her navigation, the master is not wholly absolved from his
In the present recourse, Captain Viktor Kavankov had been a mariner for thirty- duties while the pilot is on board, and may advise with him, and even displace him in
two years before the incident. When Gavino was (in) the command of the vessel, case he is intoxicated or manifestly incompetent. He is still in command of the vessel,
Kavankov was beside Gavino, relaying the commands or orders of Gavino to the except so far as her navigation is concerned, and bound to see that there is a
crewmembers-officers of the vessel concerned. He was thus fully aware of the sufficient watch on deck, and that the men are attentive to their duties.
docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably,
Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as xxx (N)otwithstanding the pilot has charge, it is the duty of the master to prevent
the weight of the vessel. Kavankov categorically admitted that, when the anchor and accident, and not to abandon the vessel entirely to the pilot; but that there are certain
two (2) shackles were dropped to the sea floor, the claws of the anchor did not hitch duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of
on to any hard object in the seabed. The momentum of the vessel was not the owners. x x x that in well conducted ships the master does not regard the
arrested. The use of the two (2) tugboats was insufficient. The momentum of the presence of a duly licensed pilot in compulsory pilot waters as freeing him from every
vessel, although a little bit arrested, continued (sic) the vessel going straightforward obligation to attend to the safety of the vessel; but that, while the master sees that his
with its bow towards the port (Exhibit "A-1"). There was thus a need for the vessel to officers and crew duly attend to the pilot's orders, he himself is bound to keep a
move "full-astern" and to drop the other anchor with another shackle or two '(2), for vigilant eye on the navigation of the vessel, and, when exceptional circumstances
the vessel to avoid hitting the pier.Kavankov refused to act even as Gavino failed to exist, not only to urge upon the pilot to use every precaution, but to insist upon, such
act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The being taken."[79] (Italics for emphasis.)
vessel was already about twenty (20) meters away from the pier when Gavino gave
the 'full-astern" order. Even then, Kavankov did nothing to prevent the vessel from
hitting the pier simply because he relied on the competence and plan of Gavino. In Jure vs. United Fruit Co.,[80] which, like the present petitions, involved
While the "full-astern" maneuver momentarily arrested the momentum of the vessel, it compulsory pilotage, with a similar scenario where at and prior to the time of injury,
was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing the vessel was in the charge of a pilot with the master on the bridge of the vessel
nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was beside said pilot, the court therein ruled:
negligent.
The authority of the master of a vessel is not in complete abeyance while a pilot,
xxxxxxxxx who is required by law to be accepted, is in discharge of his functions. x x x It is the
duty of the master to interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and in all cases of great
The stark incompetence of Kavankov is competent evidence to prove the necessity . The master has the same power to displace the pilot that he has to
unseaworthiness of the vessel. It has been held that the incompetence of the remove any subordinate officer of the vessel. He may exercise it, or not, according to
navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug his discretion. There was evidence to support findings that plaintiff's injury was due to
Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the the negligent operation of the Atenas, and that the master of that vessel was
Appellant FESC is likewise liable for the damage sustained by the Appellee." [77] negligent in failing to take action to avoid endangering a vessel situated as the City of
Canton was and persons or property thereon.
We find strong and well-reasoned support in time-tested American maritime
jurisprudence, on which much of our laws and jurisprudence on the matter are based, A phase of the evidence furnished support for the inferences x x x that he
for the conclusions of the Court of Appeals adjudging both Capt. Gavino and negligently failed to suggest to the pilot the danger which was disclosed, and means
Capt. Kabankov negligent. of avoiding such danger; and that the master's negligence in failing to give timely
admonition to the pilot proximately contributed to the injury complained of. We are of
opinion that the evidence mentioned tended to prove conduct of the pilot, known to by the default of others,[89] or, if there be anything which concurred with the fault of
the master, giving rise to a case of danger or great necessity, calling for the the pilot in producing the accident, the vessel master and owners are liable.
intervention of the master. A master of a vessel is not Without fault in acquiescing in
conduct of a pilot which involves apparent and avoidable danger, whether such Since the colliding vessel is prima facie responsible, the burden of proof is upon
danger is to the vessel upon which the pilot is, or to another vessel, or persons or the party claiming benefit of the exemption from liability. It must be shown
property thereon or on shore. (Italics ours.) affirmatively that the pilot was at fault, and that there was no fault on the part of the
officers or crew, which might have been conducive to the damage. The fact that the
law compelled the master to take the pilot does not exonerate the vessel from
Still in another case involving a nearly identical setting, the captain of a vessel liability. The parties who suffer are entitled to have their remedy against the vessel
alongside the compulsory pilot was deemed to be negligent, since, in the words of the that occasioned the damage, and are not under necessity to look to the pilot from
court, "he was in a position to exercise his superior authority if he had deemed the whom redress is not always had for compensation. The owners of the vessel are
speed excessive on the occasion in question. I think it was clearly negligent of him responsible to the injured party for the acts of the pilot, and they must be left to
not to have recognized the danger to any craft moored at Gravell Dock and that he recover the amount as well as they can against him. It cannot be maintained that the
should have directed the pilot to reduce his speed as required by the local circumstance of having a pilot on board, and acting in conformity to his directions
governmental regulations. His failure amounted to negligence and renders the operate as a discharge of responsibility of the owners. [90] Except insofar as their
respondent liable."[81] (Italics supplied.) Though a compulsory pilot might be regarded liability is limited or exempted by statute, the vessel or her owner are liable for all
as an independent contractor, he is at all times subject to the ultimate control of the damages caused by the negligence or other wrongs of the owners or those in charge
ship's master.[82] of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that
In sum, where a compulsory pilot is in charge of a ship, the master being the owner or master of the vessel are bound to accept him, but is employed
required to permit him to navigate it, if the master observes that the pilot is voluntarily, the owners of the vessel are, all the more, liable for his negligent act.[91]
incompetent or physically incapable, then it is the duty of the master to refuse to In the United States, the owners of a vessel are not personally liable for the
permit the pilot to act. But if no such reasons are present, then the master is justified negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence of a
in relying upon the pilot, but not blindly. Under the circumstances of this case, if a compulsory pilot is imputable to the vessel and it may be held liable therefor in
situation arose where the master, exercising that reasonable vigilance which the rem. Where, however, by the provisions of the statute the pilot is compulsory only in
master of a ship should exercise, observed, or should have observed, that the pilot the sense that his fee must be paid, and is not in compulsory charge of the vessel,
was so navigating the vessel that she was going, or was likely to go, into danger, and there is no exemption from liability. Even though the pilot is compulsory, if his
there was in the exercise of reasonable care and vigilance an opportunity for the negligence was not the sole cause of the injury, but the negligence of the master or
master to intervene so as to save the ship from danger, the master should have acted crew contributed thereto, the owners are liable. [92] But the liability of the ship in
accordingly.[83] The master of a vessel must exercise a degree of vigilance rem does not release the pilot from the consequences of his own negligence. [93] The
commensurate with the circumstances.[84] rationale for this rule is that the master is not entirely absolved of responsibility with
Inasmuch as the matter of negligence is a question of fact, [85] we defer to the respect to navigation when a compulsory pilot is in charge.[94]
findings of the trial court, especially as this is affirmed by the Court of Appeals. [86] But By way of validation and in light of the aforecited guidepost rulings in American
even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due maritime cases, we declare that our rulings during the early years of this century in
mainly to the fact that he failed to act when the perilous situation should have spurred City of Manila vs.Gambe, [95] China Navigation Co., Ltd. vs. Vidal,[96] and Yap Tico &
him into quick and decisive action as master of the ship. In the face of imminent or Co. vs. Anderson, et al.[97] have withstood the proverbial test of time and remain good
actual danger, he did not have to wait for the happenstance to occur before and relevant case law to this day.
countermanding or overruling the pilot. By his own admission, Capt. Kabankov
concurred with Capt. Gavino's decisions, and this is precisely the reason why he City of Manila stands for the doctrine that the pilot who was in command and
decided not to countermand any of the latter's orders. Inasmuch as both lower courts complete control of a vessel, and not the owners, must be held responsible for an
found Capt. Gavino negligent, by expressing full agreement therewith accident which was solely the result of the mistake of the pilot in not giving proper
Capt. Kabankov was just as negligent as Capt. Gavino. orders, and which did not result from the failure of the owners to equip the vessel with
the most modern and improved machinery. In China Navigation Co., the pilot deviated
In general, a pilot is personally liable for damages caused by his own from the ordinary and safe course, without heeding the warnings of the ship captain. It
negligence or default to the owners of the vessel, and to third parties for damages was this careless deviation that caused the vessel to collide with a pinnacle rock
sustained in a collision. Such negligence of the pilot in the performance of duty which, though uncharted, was known to pilots and local navigators. Obviously, the
constitutes a maritime tort.[87] At common law, a shipowner is not liable for injuries captain was blameless. It was the negligence of the pilot alone which was the
inflicted exclusively by the negligence of a pilot accepted by a vessel proximate cause of the collision. The Court could not but then rule that -
compulsorily.[88] The exemption from liability for such negligence shall apply if the pilot
is actually in charge and solely in fault. Since, a pilot is responsible only for his own
personal negligence, he cannot be held accountable for damages proximately caused The pilot in the case at bar having deviated from the usual and ordinary course
followed by navigators in passing through the strait in question, without a substantial
reason, was guilty of negligence, and that negligence having been the proximate
cause of the damages, he is liable for such damages as usually and naturally flow Q So that the cost of the two additional piles as well as the (two) square meters is
therefrom. x x x. already included in this -P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
x x x (T)he defendant should have known of the existence and location of the
rock upon which the vessel struck while under his control and management. x x x. Q For the eight piles.
A Including the reduced areas and other reductions.
Consistent with the pronouncements in these two earlier cases, but on a slightly
different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the Q (A)nd the two square meters.
accident where the order's of the pilot in the handling of the ship were disregarded by
the officers and crew of the ship. According to the Court, a pilot is "x x x responsible A Yes sir.
for a full knowledge of the channel and the navigation only so far as he can
Q In other words, this P1,300,999.77 does not represent only for the six piles that
accomplish it through the officers and crew of the ship, and I don't see that he can be
was damaged as well as the corresponding two piles.
held responsible for damage when the evidence shows, as it does in this case, that
the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible A The area was corresponding, was increased by almost two in the actual
for a compulsory pilot and the master of the vessel to be concurrently negligent and payment. That was why the contract was decreased, the real amount
thus share the blame for the resulting damage as Joint tortfeasors, [98] but only under was P1,124,627.40 and the final one is P1300,999.77.
the circumstances obtaining in and demonstrated by the instant petitions.
Q Yes, but that P1,300,999.77 included the additional two new posts.
It may be said, as a general rule, that negligence in order to render a person
liable need not be the sole cause of an injury. It is sufficient that his negligence, A It was increased.
concurring with one or more efficient causes other than plaintiff's, is the proximate
Q Why was it increased?
cause of the injury. Accordingly, where several causes combine to produce injuries, a
person is not relieved from liability because he is responsible for only one of them, it A The original was 48 and the actual was 46.
being sufficient that the negligence of the person charged with injury is an efficient
cause without which the injury would not have resulted to as great an extent, and that Q Now, the damage was somewhere in 1980. It took place in 1980 and you
such cause is not attributable to the person injured. It is no defense to one of the started the repair and reconstruction in 1982, that took almost two years?
concurrent tortfeasors that the injury would not have resulted from his negligence
alone, without the negligence or wrongful acts of the other concurrent A Yes sir.
tortfeasor.[99] Where several causes producing an injury are concurrent and each is Q May it not happen that by natural factors, the existing damage in 1980 was
an efficient cause without which the injury would not have happened, the injury may aggravated for the 2 year period that the damage portion was not repaired?
be attributed to all or any of the causes and recovery may be had against any or all of
the responsible persons although under the circumstances of the case, it may appear A I don't think so because that area was at once marked and no vehicles can
that one of them was more culpable, and that the duty owed by them to the injured park, it was closed.
person was not the same. No actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of other actors. Each wrongdoer is Q Even if or even natural elements cannot affect the damage?
responsible for the entire result and is liable as though his acts were the sole cause of A Cannot, sir.
the injury.[100]
xxxxxxxxx
There is no contribution between joint tortfeasors whose liability is solidary since
both of them are liable for the total damage. Where the concurrent or successive Q You said in the cross-examination that there were six piles damaged by the
negligent acts or omissions of two or more persons, although acting independently, accident, but that in the reconstruction of the pier, PPA drove and
are in combination the direct and proximate cause of a single injury to a third person, constructed 8 piles. Will you explain to us why there was change in the
it is impossible to determine in what proportion each contributed to the injury and number of piles from the original number?
either of them is responsible for the whole injury. Where their concurring negligence
resulted in injury or damage to a third party, they become joint tortfeasors and are A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive
solidarity liable for the resulting damage under Article 2194 [101] of the Civil Code.[102] piles at the same point. You have to redesign the driving of the piles. We
cannot drive the piles at the same point where the piles are broken or
As for the amount of damages awarded by the trial court, we find the same to damaged or pulled out. We have to redesign, and you will note that in the
be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and reconstruction, we redesigned such that it necessitated 8 piles.
redirect examination, appears to be grounded on practical considerations:
Q Why not, why could you not drive the same number of piles and on the same
spot?
A The original location was already disturbed. We cannot get required bearing employer-employee relationship and in applying Customs Administrative Order No.
capacity. The area is already disturbed. 15-65, as basis for the adjudged solidary liability of MPA and Capt. Gavino.
Q Nonetheless, if you drove the original number of piles, six, on different places, The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65
would not that have sustained the same load? are:
A It will not suffice, sir."[103]
"PAR. XXVII.-- In all pilotage districts where pilotage is compulsory, there shall be
We quote the findings of the lower court with approval: created and maintained by the pilots or pilots' association, in the manner hereinafter
prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of
With regards to the amount of damages that is to be awarded to plaintiff, the Court paying claims for damages to vessels or property caused through acts or omissions
finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa of its members while rendered in compulsory pilotage service. In Manila, the reserve
loquitur best expounded upon in the landmark case of Republic vs. Luzon fund shall be P2,000.00 for each pilot.
Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the ordinary
course of events the ramming of the dock would not have occurred if proper care was PAR. XXVIII.-- A pilots' association shall not be liable under these regulations for
used. damage to any vessel, or other property, resulting from acts of a member of an
association in the actual performance of his duty for a greater amount than seventy-
Secondly, the various estimates and plans justify the cost of the port construction five per centum (75%) of its prescribed reserve fund; it being understood that if the
price. The new structure constructed not only replaced the damaged one but was built association is held liable for an amount greater than the amount above-stated, the
of stronger materials to forestall the possibility of any similar accidents in the future. excess shall be paid by the personal funds of the member concerned.

The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 PAR. XXXI.-- If a payment is made from the reserve fund of an association on
which represents actual damages caused by the damage to Berth 4 of the Manila account of damages caused by a member thereof, and he shall have been found at
International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and fault, such member shall reimburse the association in the amount so paid as soon as
Manila Pilots Association are solidarity liable to pay this amount to plaintiff. [104] practicable; and for this purpose, not less than twenty-five per centum of his dividends
shall be retained each month until the full amount has been returned to the reserve
fund.
The Solicitor General rightly commented that the adjudicated amount of damages
represents the proportional cost of repair and rehabilitation of the damaged section of
the pier.[105] PAR. XXXIV. - Nothing in these regulations shall relieve any pilots' association or
members thereof, individually or collectively, from civil responsibility for damages to
Except insofar as their liability is limited or exempted by statute, the vessel or life or property resulting from the acts of members in the performance of their duties.
her owners are liable for all damages caused by the negligence or other wrongs of
the owners or those in charge of the vessel. As a general rule, the owners or those in Correlatively, the relevant provisions of PPA Administrative Order No. 03-85,
possession and control of a vessel and the vessel are liable for all natural and which timely amended this applicable maritime regulation, state:
proximate damages caused to persons or property by reason of her negligent
management or navigation.[106]
FESC's imputation of PPA's failure to provide a safe and reliable berthing place Article IV
is obtuse, not only because it appears to be a mere afterthought, being tardily raised
only in this petition, but also because there is no allegation or evidence on record
about Berth No. 4 being unsafe and unreliable, although perhaps it is a modest pier SEC. 17. Pilots' Association -- The Pilots in a Pilotage District shall organize
by international standards. There was, therefore, no error on the part of the Court of
themselves into a Pilots' Association or firm, the members of which shall promulgate
Appeals in dismissing FESC's counterclaim.
their own By-Laws not in conflict with the rules and regulations promulgated by the
Authority. These By-Laws shall be submitted not later than one (1) month after the
organization of the Pilots' Association for approval by the General Manager of the
II. G.R. No. 130150 Authority. Subsequent amendments thereto shall likewise be submitted for approval.

SEC. 25. Indemnity Insurance and Reserve Fund--


This consolidated case treats on whether the Court of Appeals erred in holding
MPA jointly and solidarity liable with its member pilot, Capt. Gavino, in the absence of a) Each Pilots' Association shall collectively insure its membership at
the rate of P50,000.00 each member to cover in whole or
in part any liability arising from any accident resulting in The Court of Appeals, while affirming the trial court's finding of solidary liability
damage to vessel(s), port facilities and other properties on the part of FESC, MPA and Capt. Gavino, correctly based MPA's liability not on
and/or injury to persons or death which any member may the concept of employer-employee relationship between Capt. Gavino and itself, but
have caused in the course of his performance of pilotage on the provisions of Customs Administrative Order No. 15-65:
duties. x x x.
The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a
b) The Pilotage Association shall likewise set up and maintain a quo, the Appellant Gavino was not and has never been an employee of the MPA but
reserve fund which shall answer for any part of the liability was only a member thereof. The Court a quo, it is noteworthy,, did not state the
referred to in the immediately preceding paragraph which factual basis on which it anchored its finding that Gavino was the employee of
is left unsatisfied by the insurance proceeds, in the MPA. We are in accord with MPA's pose.Case law teaches Us that, for an employer-
following manner: employee relationship to exist the confluence of the following elements must be
established: (1) selection and engagement of employees; (2) the payment of wages;
1) Each pilot in the Association shall contribute from his own (3) the power of dismissal; (4) the employer's power to control the employees with
account an amount of P4,000.00 (P6,000.00 in the Manila respect to the means and method by which the work is to be performed (Ruga versus
Pilotage District) to the reserve fund. This fund shall not be NLRC, 181SCRA 266).
considered part of the capital of the Association nor
charged as an expense thereof. xxxxxxxxx

2) Seventy-five percent (75%) of the reserve fund shall be set The liability of MPA for damages is not anchored on Article 2180 of the New Civil
aside for use, in the payment of damages referred to Code as erroneously found and declared by the Court a quo but under the provisions
above incurred in the actual performance of pilots' duties of Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the
and the excess shall be paid from the personal funds of MPA."[107]
the member concerned.
There being no employer-employee relationship, clearly Article 2180 [108] of the
xxxxxxxxx Civil Code is inapplicable since there is no vicarious liability of an employer to speak
of. It is so stated in American law, as follows:
5) If payment is made from the reserve fund of an Association
on account of damage caused by a member thereof who The well-established rule is that pilot associations are immune to vicarious liability for
is found at fault, he shall reimburse the Association in the the tort of their members. They are not the employer of their members and exercise
amount so paid as soon as practicable; and for this no control over them once they take the helm of the vessel. They are also not
purpose, not less than twenty-five percentum (25%) of partnerships because the members do not function as agents for the association or
his dividend shall be retained each month until the full for each other. Pilots' associations are also not liable for negligently assuring, the
amount has been returned to the reserve fund. competence of their members because as professional associations they made no
Thereafter, the pilot involved shall be entitled to his full guarantee of the professional conduct of their members to the general public.[109]
dividend.
Where under local statutes and regulations, pilot associations lack the
6) When the reimbursement has been completed as prescribed necessary legal incidents of responsibility, they have been held not liable for
in the preceding paragraph, the ten percentum (10%) and damages caused by the default of a member pilot. [110] Whether or not the members of
the interest withheld from the shares of the other pilots in a pilots' association are in legal effect a copartnership depends wholly on the powers
accordance with paragraph (4) hereof shall be returned and duties of the members in relation to one another under the provisions of the
to them. governing statutes and regulations. The relation of a pilot to his association is not that
of a servant to the master, but of an associate assisting and participating in a
c) Liability of Pilots' Association -- Nothing in these regulations common purpose. Ultimately, the rights and liabilities between a pilots' association
shall relieve any Pilots' Association or members thereof, and an individual member depend largely upon the constitution, articles or by-laws of
individually or collectively, from any civil, administrative the association, subject to appropriate government regulations.[111]
and/or criminal responsibility for damages to life or No reliance can be placed by MPA on the cited American rulings as to immunity
property resulting from the individual acts of its members from liability of a pilots' association in light of existing positive regulation under
as well as those of the Association's employees and crew Philippine law. The Court of Appeals properly applied the clear and unequivocal
in the performance of their duties. provisions of Customs Administrative Order No. 15-65. In doing so, it was just being
consistent with its finding of the non-existence of employer-employee relationship The original members of the legal team of the Office of the Solicitor General
between MPA and Capt. Gavino precludes the application of Article 2180 of the Civil assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario and
Code. Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the
same or similar acts of unduly delaying proceedings due to delayed filing of required
True, Customs Administrative Order No. 15-65 does not categorically pleadings shall also be dealt with more stringently.
characterize or label MPA's liability as solidary in nature. Nevertheless, a careful
reading and proper analysis of the correlated provisions lead to the conclusion that The Solicitor General is DIRECTED to look into the circumstances of this case
MPA is solidarity liable for the negligence of its member pilots, without prejudice to and to adopt provident measures to avoid a repetition of this incident and which would
subsequent reimbursement from the pilot at fault. ensure prompt compliance with orders of this Court regarding the timely filing of
requisite pleadings, in the interest of just, speedy and orderly administration of justice.
Article 1207 of the Civil Code provides that there is solidary liability only when
the obligation expressly so states, or when the law or the nature of the obligation Let copies of this decision be spread upon the personal records of the lawyers
requires solidarity.Plainly, Customs Administrative Order No. 15-65, which as an named herein in the Office of the Bar Confidant.
implementing rule has the force and effect of law, can validly provide for solidary
liability. We note the Solicitor General's comment hereon, to wit: SO ORDERED.

x x x Customs Administrative Order No. 15-65 may be a mere rule and regulation
issued by an administrative agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set out in the law
itself. Nonetheless, said administrative order, which adds to the procedural or
enforcing provisions of substantive law, is legally binding and receives the same
statutory force upon going into effect. In that sense, it has equal, not lower, statutory
force and effect as a regular statute passed by the legislature." [112]

MPA's prayer for modification of the appellate court's decision under review by
exculpating petitioner MPA "from liability beyond seventy-five percent (75%) of
Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of
Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent
(75%) of its prescribed reserve fund, any amount of liability beyond that being for the
personal account of the erring pilot and subject to reimbursement in case of a finding
of fault by the member concerned. This is clarified by the Solicitor General:

Moreover, contrary to petitioners pretensions, the provisions of Customs


Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots'
association to an absurdly small amount of seventy-five per centum (75%) of the
member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the
entire reserve fund required to be maintained by the pilots' association to answer (for)
whatever liability arising from the tortious act of its members. And even if the
association is held liable for an amount greater than the reserve fund, the association
may not resist the liability by claiming to be liable only up to seventy-five per centum
(75%) of the reserve fund because in such instance it has the right to be reimbursed
by the offending member pilot for the excess."[113]

WHEREFORE, in view of all of the foregoing, the consolidated petitions for


review are DENIED and the assailed decision of the Court of Appeals is
AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its
associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of
the same or similar acts of heedless disregard of its undertakings under the Rules
shall be dealt with more severely.
[G.R. No. 138261. April 17, 2001] In view of the penalty imposed, the appeal was lodged directly with this Court. [4]
The Facts
Version of the Prosecution

PEOPLE OF THE PHILIPPINES, appellee, vs. PEDRO RAMIREZ, appellant. In its Brief, the Office of the Solicitor General summarizes the prosecutions
version of the facts in this wise:[5]
DECISION
1. On May 21, 1993 at around 7:30 in the evening, Montano Baez, after entertaining
PANGANIBAN, J.: his visitors on the occasion of the town fiesta of Bgy. San Jose, Ormoc City, was
strolling in the public plaza where he met Jonathan Jojo Alkuino, a former resident of
The credibility of witnesses and their testimonies is best assessed by the trial the barangay (pp. 6-11, tsn, July 22, 1997).
court, which had the opportunity to observe their demeanor and conduct on the
stand. Moreover, reclusion perpetua is an indivisible penalty; hence, it is imposed in 2. Montano Baez took him aside and invited Jojo to a drinking spree in a nearby
its entirety. store. They sat side by side on a bench outside the store and while exchanging
pleasantries and drinking, appellant Pedro Ramirez suddenly came in front of
them. Appellant ordered beer. Then he calmly approached Jojo hitting him on the
The Case
right side of the body just below the ribs (pp. 6-11, tsn, supra).

3. Jojo Alkuino was brought to the Ormoc District Hospital and was examined and
Pedro Ramirez appeals the Decision[1] of the Regional Trial Court (RTC) of treated by Dr. Kierulf who issued the medical certificate (Exhibit A) with the following
Ormoc City (Branch 35) in Criminal Case No. 4195-O, finding him guilty of murder findings:
and sentencing him to suffer imprisonment of forty (40) years reclusion perpetua.
The stab wound that hit the victim was at his right anterior chest wall, at the level of
Ormoc City Prosecutor Alberto L. Canopio filed an Information dated June 16, 4th ICS penetrating thoracic abdominal cavity, incising the right lobe of the liner with
1993, charging appellant with murder allegedly committed as follows: massive hemothorax and hemoperit[o]neum

That on or about the 21st day of May 1993, at around 7:30 oclock in the evening, Although the victim was conscious and alive when he was admitted on May 21, 1993
Brgy. San Jose, Ormoc City, and within the jurisdiction of this Honorable Court, the at around 9:55 in the evening, he, however, died the following day at about 5:30 in the
above-named accused PEDRO RAMIREZ, with treachery, evident premeditation and afternoon due to hypovolemic shock or massive blood loss (p. 24, tsn, July 17, 1998).
intent to kill, did then and there willfully, unlawfully and feloniously attack, assault,
stab and wound the person of the victim herein JONATHAN Jojo ALKUINO, without
giving the latter sufficient time to defend himself, thereby inflicting upon said
JONATHAN Jojo ALKUINO mortal wounds which caused his death. Medical Version of the Defense

Certificate is hereto attached.[2]

When arraigned on March 20, 1997, appellant, with the assistance of In his Brief, appellant presents the following statement of facts:[6]
counsel,[3] entered a plea of not guilty. Trial on the merits ensued. On February 18,
1999, the trial court promulgated its assailed Decision, the dispositive portion of which The first witness, Remegio Montalban, testified that he [was] a resident and farmer of
reads as follows: Brgy. Sta. Cruz, San Francisco, Camotes, Cebu, and a neighbor of Pedro Ramirez,
the accused. On May 21, 1993, he remembered he and Pedro Ramirez were working
WHEREFORE, having moral certainty from all of the foregoing, the Court finds the on his farm in said barangay. They had been working on the farm since 1991. He
accused Pedro Ramirez GUILTY beyond reasonable doubt of the crime of murder knows that the accused went to Ormoc City in 1986 but he returned in 1990 and since
and hereby sentences him to suffer imprisonment of forty (40) years reclusion then he never left their barangay. On cross examination, the witness admit[ed] there
perpetua and to pay the aggrieved party the sum of P50,000.00 as indemnity and [was] a regular trip from San Francisco, Camotes to Ormoc City and the trip would
another sum of P50,000.00 as moral damages. take only more than an hour to negotiate. When asked, however, as to the birth dates
of his 8 children, he could not tell all. Even on the date of the arrest of the accused,
his testimony falter[ed] (TSN of July 29, 1998, pp. 6-21).
If the accused is a detainee, his period of detention shall be credited to him in full if he
abides in writing by the terms for convicted prisoners; otherwise, for only four-fifths
(4/5) thereof.
The second witness was the accused himself. His line of testimony corroborate[d] the In his Brief, appellant cites the following alleged errors: [9]
testimonies of his first and third witnesses. Accused admit[ted] having gone to Ormoc
City and that was in the year 1986 when he was hired by Poten Larrazabal to harvest I
his sugarcane plantation. He stayed there for four (4) years, up to 1990, in Laray,
Valencia together with his wife and two children (TSN of September 2, 1998, p. 9, p. The Court a quo erred in giving credence to the witnesses for the prosecution.
44). He testified that on May 21, 1993 he was at Barangay Santa Cruz, Camotes,
Cebu working. He even denie[d] knowing where Barangay San Jose, Ormoc City, II
[was][;] in short, he denie[d] the charge against him.

The Court a quo erred in appreciating treachery notwithstanding the failure of the
On cross examination, the accused testified that he did not go out too often while he prosecution to prove the same.
was living in Sitio Laray, Valencia; that he did not even hear of Barangay San Jose
(TSN of September 2, 1996. Pp. 22-23).
III
The last witness, Eduardo Austria, corroborate[d] the line of theory of the accused
and the first witness. They had a kind of cooperative work, Ramirez, he, and The Court a quo erred in convicting the accused notwithstanding the failure of the
Montalban. It was an inconsequential routine work and a passing of day that occurred prosecution to prove his guilt beyond reasonable doubt.
on May 21, 1993 and the following day (TSN of October 5, 1998, pp. 7-14)
In the main, the Court will resolve the following matters: (1) sufficiency of the
On cross examination, the witness testified there was no cooperative work with prosecution evidence and (2) presence of treachery. In addition, it will also determine
Ramirez around in May of 1994, 1995 and 1996; that the witness [did] not even know the propriety of appellants penalty and civil liability.
the date of the incident involved in this case. (TSN, pp. 20-31)

This Courts Ruling

The Trial Courts Ruling

The appeal is devoid of merit.


In convicting appellant, the trial court gave credence to the prosecution
witnesses testimonies. It ruled as follows:
First Issue:
We can notice that from the testimony of Montano Baez up to the last witness Amelito Sufficiency of Prosecution Evidence
Biyu, there was positive identification of the assailant, the one who stabbed Jonathan
Alkuino; there was knowledge about the accused and the victim. The testimonies of
the witnesses were in details, not in generalities, and [the] testimony of the father, The conviction of appellant was based on the eyewitness accounts of Montano
Milchisedeck Alkuino relate[d] x x x the dying declaration of his son, the victim in this Baez and Amelito Biyu. Baez testified that he was with the victim when the crime was
case. The evidence so far adduced by the prosecution established the elements of committed. He narrated the incident in this wise:[10]
the crime of murder: the killing of an individual [did] not [fall] under parricide and the
killing was attended by treachery, the fact that the stabbing was sudden and the
victim was sitting while the assailant was standing and there was therefore no means Q. Now at that particular time while you were having a round of drink with the said
for the victim to defend himself.[7] Jonathan Jojo Alkuino, what happened?

On the other hand, the RTC rejected the defense witnesses testimonies for A. Pedro Ramirez approached us, sir.
being weak, unreliable and full of uncertainties. It concluded that the prosecution
evidence was not substantially overcome or overwhelmed by the defenses own proof xxxxxxxxx
or evidence.[8]
Q. What did Pedro Ramirez do when he approached you and Jojo Alkuino?
A. They introduced each other and immediately thereafter he stabbed him, sir.
Issues
xxxxxxxxx
Q. Who delivered that stab thrust? A. After he stabbed, he ran and Jonathan Alkuino asked for help, saying [H]elp
me because I [have been] stabbed by Pedro Ramirez.
A. It was Pedro Ramirez, sir.
As earlier noted, the trial court gave credence to these testimonies. Time and
Q. What kind of weapon did he use in stabbing the victim? time again, the Court has held that the trial court's findings on the credibility of
A. A knife, sir. witnesses and their testimonies are accorded great weight and respect, in the
absence of a clear showing that some facts or circumstances of weight or substance
xxxxxxxxx have been overlooked, misunderstood or misapplied.[12] Indeed, the lower court had
the opportunity to observe directly the demeanor of the witnesses as they testified. In
Q. When Pedro Ramirez whom you have identified earlier delivered a stab thrust this case, appellant has not given us any valid ground to reverse or modify the trial
toward Jonathan Jojo Alkuino was the latter hit? courts assessment.
A. Yes sir, he was hit.
Q. Which part was x x x hit? Alleged Inconsistencies

A. Here sir (witness tapping at his right just below the ribs).
Q. Now, after Pedro Ramirez stabbed Jonathan Jojo Alkuino, what did Pedro do Appellant contends that the trial court should not have accorded credence to the
next? prosecution witnesses, whose testimonies were full of inconsistencies and
A. They ran away, sir. contradictions.[13] He points out discrepancies regarding (1) the manner in which
appellant initiated the attack and (2) the behavior of the victim after the incident.
The foregoing narration was corroborated by Biyu, who was then a few meters
away from the crime scene. Pertinent portions of his testimony are reproduced Appellant insists that [a]ccording to Montano Baez, Pedro approached the
hereunder:[11] victim, and without saying any word, immediately stabbed the latter x x x. However,
Amelito Biyu testified that Pedro Ramirez approached Jonathan Alkuino and talked to
Q. After having bought banana cue for your child, what happened? him for a while.[14]

A. After I bought banana cue, I also bought one bottle of beer in front of the store This argument is not borne by the records. Contrary to the claim of the defense,
where Jonathan Alkuino and Pedro Ramirez were having a drinking spree. Baez did not say that appellant had approached the victim and stabbed the latter
without saying a word. In fact, Baez testified that appellant and the victim had indeed
Q. How far is that store [from] where Jonathan Alkuino and Pedro Ramirez were? talked very briefly.
A. About 3 meters more or less. Q. Exactly, what did Pedro Ramirez say?
Q. What did you observe next? A. There were no words uttered sir, except to introduce themselves.
A. While I was drinking one bottle of beer, he, Pedro Ramirez, approached Q. So, when the accused Ramirez introduced himself to the victim, Jojo Alkuino
Jonathan Alkuino and Montano Baez (the witness pointed to the person also introduced himself to him, is that correct?
earlier identified as Pedro Ramirez).
A. Yes, sir.[15]
Q. What did he do?
Appellant also contends that the testimony of Biyu -- that the victim was aided
A. As far as I have seen, he approached Jonathan Alkuino and he talked for by friends and acquaintances after the incident was inconsistent with that of Baez,
awhile and after that he drew a knife and immediately stabbed. who allegedly stated that the victim was still able to go home, without mentioning
whether he was aided by anyone.[16] It should be stressed, however, that Baez did not
Q. Was Jonathan Alkuino hit by the stab thrust delivered by the assailant?
say that the victim left the crime scene alone.[17] The mere fact that the former was
A. Yes, sir. silent on whether the victim was assisted by others does not mean that the latter was
not assisted at all.
Q. How many times did the assailant deliver his stab thrust?
Likewise, we reject appellants claim that the testimony of Baez -- that the latter
A. Only once. saw appellant stab the right side of the victims body, below the ribs -- was
inconsistent with that of the victims father, Milchisedeck Alkuino, who said that the
Q. After seeing that incident, wherein Jonathan Alkuino sustained an injury, what injury of his son was at his left arm.[18]
did you do?
This alleged inconsistency pertains to a very trivial matter which does not in any A. No sir, he was not.
way affect the disposition of the case. It has been held that inconsistencies referring
only to minor details do not weaken the credibility of witnesses. On the contrary, Q. Why not?
these inconsistencies are signs that the witnesses were not rehearsed. [19] A. How could he parry the thrust made by Pedro Ramirez, [when] the thrust was
In all, we agree with the trial court in convicting appellant based on the so sudden, sir.
eyewitness accounts of Baez and Biyu. The two saw the incident and positively
identified appellant as the perpetrator.
Penalty and Civil Liability

Appellants Alibi
In line with current jurisprudence,[25] we affirm the award of indemnity ex
delicto to the heirs of the victim in the sum of P50,000. This award needs no proof
In the light of the foregoing, we reject appellants alibi that he was in Cebu when other than the commission of the crime.Likewise, we sustain the award of P50,000 for
the crime was committed in Ormoc City on May 21, 1993. The well-settled rule is that moral damages, which has evidentiary basis. The victims father testified that as a
alibi cannot prevail over the positive identification of appellant by credible result of the crime, he suffered heaviness of heart as well as mental anguish.[26]
witnesses.[20] We disagree with the trial court, however, in sentencing appellant to suffer
imprisonment of forty (40) years reclusion perpetua. There was no justification or
need for the trial court to specify the length of imprisonment, because reclusion
Second Issue: perpetua is an indivisible penalty. The significance of this fundamental principle was
Treachery laid down by the Court in People v. Diquit:[27] Since reclusion perpetua is an indivisible
penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety
regardless of any mitigating or aggravating circumstances that may have attended the
commission of the crime. (Art. 63, Revised Penal Code) Reclusion perpetua is
Appellant contends that treachery was not established in this case, considering
imprisonment for life but the person sentenced to suffer it shall be pardoned after
that the stabbing was neither swift nor sudden. He points out that there was an
undergoing the penalty for thirty (30) years, unless by reason of his conduct or some
exchange of words between the accused and the victim. [21]
other serious cause, he shall be considered by the Chief Executive as unworthy of
We are not convinced. There is treachery when one employs means, methods pardon (Art. 27, Revised Penal Code).
or forms in the execution of a crime without risk to oneself arising from the defense
WHEREFORE, the appealed Decision is AFFIRMED, except in regard to the
which the offended party might make.[22]
penalty, which is hereby MODIFIED; accordingly, appellant is sentenced to the
In this case, treachery was not negated by the mere fact that the attacker and indivisible penalty of reclusion perpetua.Costs against appellant.
the victim had spoken to each other briefly. [23] The prosecution established that the
SO ORDERED.
attack was sudden and that the victim was defenseless, unarmed and with no
opportunity to retaliate. This fact is clear from Baezs following testimony:[24]
Q. Was there an opportunity for Jojo Alkuino to retaliate?
A. There was none, sir.
Q. Was Jojo armed at that time?
A. No sir, he was no[t].
Q. In other words, he was defenseless when he was attacked.
A. Yes sir, he was defenseless.
Q. Why do you say that he was defenseless?
A. Was defenseless sir, because he was sitting then.
Q. He was able to parry that stab thrust?

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