ASSIGNMENT IN TORTS (2ND BATCH)

1. Anonuevo v. CA G.R. No. 130003, 20 October 2004

2. Heirs of Complete v. Albayda G.R. No. 172200, July 6, 2010

3. Pacis v. Morales G.R. No. 169467, February 25, 2010

4. Taylor v. Manila Railroad G.R. No. 4977, March 22, 1910

5. Jarco Marketing v. CA G.R. No. 129792, December 21, 1999

6. Ylarde v. Aquino G.R. No. L-33722, July 29, 1988

7. Culio v. Philippine Motors G.R. No. 32611, November 3, 1930

8. US v. Pineda G.R. No. L-12858, January 22, 1918

9. Mercury Drug v. De Leon G.R. No. 165622, October 17, 2008

1

JONAS AONUEVO, petitioner vs. HON. COURT OF APPEALS and JEROME
VILLAGRACIA, respondent
DECISION
TINGA, J.:
The bicycle provides considerable speed and freedom of movement to the
rider. It derives a certain charm from being unencumbered by any enclosure,
affording the cyclist the perception of relative liberty. It also carries some obvious
risks on the part of the user and has become the subject of regulation, if not by the
government, then by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of damages
from the driver of the car which had struck him. The argument is hinged on the
cyclists failure to install safety devices on his bicycle. However, the lower courts
agreed that the motorist himself caused the collision with his own negligence. The
facts are deceptively simple, but the resolution entails thorough consideration of
fundamental precepts on negligence.
The present petition raises little issue with the factual findings of the Regional
Trial Court (RTC), Branch 160, of Pasig City, as affirmed by the Court of Appeals.
Both courts adjudged petitioner, Jonas Aonuevo ( Aonuevo ), liable for the damages
for the injuries sustained by the cyclist, Jerome Villagracia (Villagracia). Instead, the
petition hinges on a sole legal question, characterized as novel by the petitioner:
whether Article 2185 of the New Civil Code, which presumes the driver of a motor
vehicle negligent if he was violating a traffic regulation at the time of the mishap,
should apply by analogy to non-motorized vehicles.[1]
As found by the RTC, and affirmed by the Court of Appeals, the accident in
question occurred on 8 February 1989, at around nine in the evening, at the
intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a city).
Villagracia was traveling along Boni Avenue on his bicycle, while Aonuevo,
traversing the opposite lane was driving his Lancer car with plate number PJJ 359.
The car was owned by Procter and Gamble Inc., the employer of Aonuevos brother,
Jonathan. Aonuevo was in the course of making a left turn towards Libertad Street
when the collision occurred. Villagracia sustained serious injuries as a result, which
necessitated his hospitalization several times in 1989, and forced him to undergo
four (4) operations.
On 26 October 1989, Villagracia instituted an action for damages against
Procter and Gamble Phils., Inc. and Aonuevo before the RTC. [2] He had also filed a
criminal complaint against Aonuevo before the Metropolitan Trial Court of
Mandaluyong, but the latter was subsequently acquitted of the criminal
charge.[3] Trial on the civil action ensued, and in a Decision dated 9 March 1990, the
RTC rendered judgment against Procter and Gamble and Aonuevo, ordering them
to pay Villagracia the amounts of One Hundred Fifty Thousand Pesos (P150,
000.00). for actual damages, Ten Thousand Pesos (P10,000.00) for moral damages,
and Twenty Thousand Pesos (P20,000.00) for attorneys fees, as well as legal
costs.[4] Both defendants appealed to the Court of Appeals.
In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division
affirmed the RTC Decision in toto[6]. After the Court of Appeals denied the Motion for
Reconsideration in a Resolution[7] dated 22 July 1997, Procter and Gamble and
Aonuevo filed their respective petitions for review with this Court. Procter and
Gambles petition was denied by this Court in a Resolution dated 24 November 1997.
Aonuevos petition,[8] on the other hand, was given due course,[9] and is the subject
of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the factual
findings of the RTC. Among them: that it was Aonuevos vehicle which had struck
Villagracia;[10] that Aonuevos vehicle had actually hit Villagracias left mid-thigh, thus
causing a comminuted fracture;[11] that as testified by eyewitness Alfredo Sorsano,
witness for Villagracia, Aonuevo was umaarangkada, or speeding as he made the
left turn into Libertad;[12] that considering Aonuevos claim that a passenger jeepney
was obstructing his path as he made the turn. Aonuevo had enough warning to
control his speed;[13] and that Aonuevo failed to exercise the ordinary precaution,
care and diligence required of him in order that the accident could have been
avoided.[14] Notably, Aonuevo, in his current petition, does not dispute the findings
of tortious conduct on his part made by the lower courts, hinging his appeal instead
on the alleged negligence of Villagracia. Aonuevo proffers no exculpatory version of
facts on his part, nor does he dispute the conclusions made by the RTC and the
Court of Appeals. Accordingly, the Court, which is not a trier of facts, [15] is not
compelled to review the factual findings of the lower courts, which following
jurisprudence have to be received with respect and are in fact generally binding. [16]
Notwithstanding, the present petition presents interesting questions for
resolution. Aonuevos arguments are especially fixated on a particular question of
law: whether Article 2185 of the New Civil Code should apply by analogy to non-
motorized vehicles.[17] In the same vein, Aonuevo insists that Villagracias own fault
and negligence serves to absolve the former of any liability for damages.
Its is easy to discern why Aonuevo chooses to employ this line of argument.
Aonuevo points out that Villagracias bicycle had no safety gadgets such as a horn
or bell, or headlights, as invoked by a 1948 municipal ordinance. [18] Nor was it duly
registered with the Office of the Municipal Treasurer, as required by the same
ordinance. Finally, as admitted by Villagracia, his bicycle did not have foot
brakes.[19] Before this Court, Villagracia does not dispute these allegations, which he
admitted during the trial, but directs our attention instead to the findings of Aonuevos
own negligence.[20] Villagracia also contends that, assuming there was contributory
2
negligence on his part, such would not exonerate Aonuevo from payment of
damages. The Court of Appeals likewise acknowledged the lack of safety gadgets
on Villagracias bicycle, but characterized the contention as off-tangent and
insufficient to obviate the fact that it was Aonuevos own negligence that caused the
accident.[21]
Aonuevo claims that Villagracia violated traffic regulations when he failed to
register his bicycle or install safety gadgets thereon. He posits that Article 2185 of
the New Civil Code applies by analogy. The provision reads:
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving
a motor vehicle has been negligent if at the time of the mishap he was violating any
traffic regulation.
The provision was introduced for the first time in this jurisdiction with the
adoption in 1950 of the New Civil Code.[22] Its applicability is expressly qualified to
motor vehicles only, and there is no ground to presume that the law intended a
broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all
types of vehicles[23]. He points out that modern-day travel is more complex now than
when the Code was enacted, the number and types of vehicles now in use far more
numerous than as of then. He even suggests that at the time of the enactment of the
Code, the legislators must have seen that only motor vehicles were of such public
concern that they had to be specifically mentioned, yet today, the interaction of
vehicles of all types and nature has inescapably become matter of public concern
so as to expand the application of the law to be more responsive to the times.[24]
What Aonuevo seeks is for the Court to amend the explicit command of the
legislature, as embodied in Article 2185, a task beyond the pale of judicial power.
The Court interprets, and not creates, the law. However, since the Court is being
asked to consider the matter, it might as well examine whether Article 2185 could be
interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-
motorized vehicles ranging from human-powered contraptions on wheels such as
bicycles, scooters, and animal-drawn carts such as calesas and carromata. These
modes of transport were even more prevalent on the roads of the 1940s and 1950s
than they are today, yet the framers of the New Civil Code chose then to exclude
these alternative modes from the scope of Article 2185 with the use of the term
motorized vehicles. If Aonuevo seriously contends that the application of Article 2185
be expanded due to the greater interaction today of all types of vehicles, such
argument contradicts historical experience. The ratio of motorized vehicles as to
non-motorized vehicles, as it stood in 1950, was significantly lower than as it stands
today. This will be certainly affirmed by statistical data, assuming such has been
compiled, much less confirmed by persons over sixty. Aonuevos characterization of
a vibrant intra-road dynamic between motorized and non-motorized vehicles is more
apropos to the past than to the present.
There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable
today. He premises that the need for the distinction between motorized and non-
motorized vehicles arises from the relative mass of number of these vehicles. The
more pertinent basis for the segregate classification is the difference in type of these
vehicles. A motorized vehicle operates by reason of a motor engine unlike a non-
motorized vehicle, which runs as a result of a direct exertion by man or beast of
burden of direct physical force. A motorized vehicle, unimpeded by the limitations in
physical exertion. is capable of greater speeds and acceleration than non-motorized
vehicles. At the same time, motorized vehicles are more capable in inflicting greater
injury or damage in the event of an accident or collision. This is due to a combination
of factors peculiar to the motor vehicle, such as the greater speed, its relative greater
bulk of mass, and greater combustability due to the fuels that they use.
There long has been judicial recognition of the peculiar dangers posed by the
motor vehicle. As far back as 1912, in the U.S. v. Juanillo[25], the Court has
recognized that an automobile is capable of great speed, greater than that of
ordinary vehicles hauled by animals, and beyond doubt it is highly dangerous when
used on country roads, putting to great hazard the safety and lives of the mass of
the people who travel on such roads.[26] In the same case, the Court emphasized:
A driver of an automobile, under such circumstances, is required to use a greater
degree of care than drivers of animals, for the reason that the machine is capable of
greater destruction, and furthermore, it is absolutely under the power and control of
the driver; whereas, a horse or other animal can and does to some extent aid in
averting an accident. It is not pleasant to be obliged to slow down automobiles to
accommodate persons riding, driving, or walking. It is probably more agreeable to
send the machine along and let the horse or person get out of the way in the best
manner possible; but it is well to understand, if this course is adopted and an
accident occurs, that the automobile driver will be called upon to account for his acts.
An automobile driver must at all times use all the care and caution which a careful
and prudent driver would have exercised under the circumstances. [27]
American jurisprudence has had occasion to explicitly rule on the relationship
between the motorist and the cyclist. Motorists are required to exercise ordinary or
reasonable care to avoid collision with bicyclists. [28] While the duty of using ordinary
care falls alike on the motorist and the rider or driver of a bicycle, it is obvious, for
reasons growing out of the inherent differences in the two vehicles, that more is
required from the former to fully discharge the duty than from the latter. [29]
3

The Code Commission was cognizant of the difference in the natures and
attached responsibilities of motorized and non-motorized vehicles. Art. 2185 was not
formulated to compel or ensure obeisance by all to traffic rules and regulations. If
such were indeed the evil sought to be remedied or guarded against, then the
framers of the Code would have expanded the provision to include non-motorized
vehicles or for that matter, pedestrians. Yet, that was not the case; thus the need
arises to ascertain the peculiarities attaching to a motorized vehicle within the
dynamics of road travel. The fact that there has long existed a higher degree of
diligence and care imposed on motorized vehicles, arising from the special nature of
motor vehicle, leads to the inescapable conclusion that the qualification under Article
2185 exists precisely to recognize such higher standard. Simply put, the standards
applicable to motor vehicle are not on equal footing with other types of vehicles.
Thus, we cannot sustain the contention that Art. 2185 should apply to non-
motorized vehicles, even if by analogy. There is factual and legal basis that
necessitates the distinction under Art. 2185, and to adopt Aonuevos thesis would
unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to Villagracia,
this should not preclude any possible finding of negligence on his part. While the
legal argument as formulated by Aonuevo is erroneous, his core contention that
Villagracia was negligent for failure to comply with traffic regulations warrants
serious consideration, especially since the imputed negligent acts were admitted by
Villagracia himself.
The Civil Code characterizes negligence as the omission of that diligence
which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. [30] However, the
existence of negligence in a given case is not determined by the personal judgment
of the actor in a given situation, but rather, it is the law which determines what would
be reckless or negligent.[31]
Aonuevo, asserts that Villagracia was negligent as the latter had transgressed
a municipal ordinance requiring the registration of bicycles and the installation of
safety devices thereon. This view finds some support if anchored on the long
standing principle of negligence per se.
The generally accepted view is that the violation of a statutory duty constitutes
negligence, negligence as a matter of law, or negligence per se.[32] In Teague vs.
Fernandez,[33] the Court cited with approval American authorities elucidating on the
rule:
The mere fact of violation of a statute is not sufficient basis for an inference that such
violation was the proximate cause of the injury complained. However, if the very
injury has happened which was intended to be prevented by the statute, it has been
held that violation of the statute will be deemed to be the proximate cause of the
injury. (65 C.J.S. 1156)
The generally accepted view is that violation of a statutory duty constitutes
negligence, negligence as a matter of law, or, according to the decisions on the
question, negligence per se, for the reason that non-observance of what the
legislature has prescribed as a suitable precaution is failure to observe that care
which an ordinarily prudent man would observe, and, when the state regards certain
acts as so liable to injure others as to justify their absolute prohibition, doing the
forbidden act is a breach of duty with respect to those who may be injured thereby;
or, as it has been otherwise expressed, when the standard of care is fixed by law,
failure to conform to such standard is negligence, negligence per se or negligence
in and of itself, in the absence of a legal excuse. According to this view it is
immaterial, where a statute has been violated, whether the act or omission
constituting such violation would have been regarded as negligence in the absence
of any statute on the subject or whether there was, as a matter of fact, any reason
to anticipate that injury would result from such violation. x x x. (65 C.J.S. pp.623-
628)
But the existence of an ordinance changes the situation. If a driver causes an
accident by exceeding the speed limit, for example, we do not inquire whether his
prohibited conduct was unreasonably dangerous. It is enough that it was prohibited.
Violation of an ordinance intended to promote safety is negligence. If by creating the
hazard which the ordinance was intended to avoid it brings about the harm which
the ordinance was intended to prevent, it is a legal cause of the harm. This comes
only to saying that in such circumstances the law has no reason to ignore the causal
relation which obviously exists in fact. The law has excellent reason to recognize it,
since it is the very relation which the makers of the ordinance anticipated. This court
has applied these principles to speed limits and other regulations of the manner of
driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).
x x x However, the fact that other happenings causing or contributing toward an
injury intervened between the violation of a statute or ordinance and the injury does
not necessarily make the result so remote that no action can be maintained. The test
is to be found not in the number of intervening events or agents, but in their character
and in the natural and probable connection between the wrong done and the
injurious consequence. The general principle is that the violation of a statute or
ordinance is not rendered remote as the cause of an injury by the intervention of
another agency if the occurrence of the accident, in the manner in which it happened,
was the very thing which the statute or ordinance was intended to prevent. (38 Am
Jur 841)[34]
In Teague, the owner of a vocational school stricken by a fire resulting in
fatalities was found negligent, base on her failure to provide adequate fire exits in
contravention of a Manila city ordinance.[35] In F.F. Cruz and Co., Inc. v. Court of
4
Appeals[36], the failure of the petitioner to construct a firewall in accordance with city
ordinances sufficed to support a finding of negligence. [37] In Cipriano v. Court of
Appeals, [38]the Court found that the failure of the petitioner to register and insure his
auto rustproofing shop in accordance with the statute constituted negligence per se,
thus holding him liable for the damages for the destruction by fire of a customers
vehicle garaged therein.
Should the doctrine of negligence per se apply to Villagracia, resulting from his
violation of an ordinance? It cannot be denied that the statutory purpose for requiring
bicycles to be equipped with headlights or horns is to promote road safety and to
minimize the occurrence of road accidents involving bicycles. At face value,
Villagracias mishap was precisely the danger sought to be guarded against by the
ordinance he violated. Aonuevo argues that Villagracias violation should bar the
latters recovery of damages, and a simplistic interpretation of negligence per
se might vindicate such an argument.
But this is by no means a simple case. There is the fact which we consider as
proven, that Aonuevo was speeding as he made the left turn, and such negligent act
was the proximate cause of the accident. This reckless behavior would have
imperiled anyone unlucky enough within the path of Aonuevos car as it turned into
the intersection, whether they are fellow motorists, pedestrians, or cyclists. We are
hard put to conclude that Villagracia would have avoided injury had his bicycle been
up to par with safety regulations, especially considering that Aonuevo was already
speeding as he made the turn, or before he had seen Villagracia. Even assuming
that Aonuevo had failed to see Villagracia because the bicycle was not equipped
with headlights, such lapse on the cyclists part would not have acquitted the driver
of his duty to slow down as he proceeded to make the left turn.
This court has appreciated that negligence per se, arising from the mere
violation of a traffic statute, need not be sufficient in itself in establishing liability for
damages. In Sanitary Steam Laundry, Inc. v. Court of Appeals,[39] a collision
between a truck and a privately-owned Cimarron van caused the death of three of
the vans passengers. The petitioner therein, the owner of the truck, argued that the
driver of the Cimarron was committing multiple violations of the Land Transportation
and Traffic Code[40] at the time of the accident. Among these violations: the Cimarron
was overloaded at the time of the accident; the front seat of the van was occupied
by four adults, including the driver; and the van had only one functioning headlight.
Similar as in this case, petitioner therein invoked Article 2185 and argued that the
driver of the Cimarron should be presumed negligent. The Court, speaking through
Justice Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of the Cimarron driver
contributed to the collision between the vehicles. Indeed, petitioner has the burden
of showing a causal connection between the injury received and the violation of the
Land Transportation and Traffic Code. He must show that the violation of the statute
was the proximate or legal cause of the injury or that it substantially contributed
thereto. Negligence consisting in whole or in part, of violation of law, like any other
negligence, is without legal consequence unless it is a contributing cause of the
injury. Petitioner says that driving an overloaded vehicle with only one functioning
headlight during nighttime certainly increases the risk of accident, that because the
Cimarron had only one headlight, there was decreased visibility, and that the fact
that the vehicle was overloaded and its front seat overcrowded decreased its
maneuverability. However, mere allegations such as these are not sufficient to
discharge its burden of proving clearly that such alleged negligence was the
contributing cause of the injury.[41]
Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia was
violating a municipal ordinance at the time of the accident may have sufficiently
established some degree of negligence on his part, but such negligence is without
legal consequence unless it is shown that it was a contributing cause of the injury. If
anything at all, it is but indicative of Villagracias failure in fulfilling his obligation to
the municipal government, which would then be the proper party to initiate corrective
action as a result. But such failure alone is not determinative of Villagracias
negligence in relation to the accident. Negligence is relative or comparative,
dependent upon the situation of the parties and the degree of care and vigilance
which the particular circumstances reasonably require. [43] To determine if Villagracia
was negligent, it is not sufficient to rely solely on the violations of the municipal
ordinance, but imperative to examine Villagracias behavior in relation to the
contemporaneous circumstances of the accident.
The rule on negligence per se must admit qualifications that may arise from the
logical consequences of the facts leading to the mishap. The doctrine (and Article
2185, for that matter) is undeniably useful as a judicial guide in adjudging liability, for
it seeks to impute culpability arising from the failure of the actor to perform up to a
standard established by a legal fiat. But the doctrine should not be rendered inflexible
so as to deny relief when in fact there is no causal relation between the statutory
violation and the injury sustained. Presumptions in law, while convenient, are not
intractable so as to forbid rebuttal rooted in fact. After all, tort law is remunerative in
spirit, aiming to provide compensation for the harm suffered by those whose interests
have been invaded owing to the conduct of others.[44]
Under American case law, the failures imputed on Villagracia are not grievous
enough so as to negate monetary relief. In the absence of statutory requirement,
one is not negligent as a matter of law for failing to equip a horn, bell, or other warning
devise onto a bicycle.[45] In most cases, the absence of proper lights on a bicycle
does not constitute negligence as a matter of law[46] but is a question for the jury
whether the absence of proper lights played a causal part in producing a collision
with a motorist.[47] The absence of proper lights on a bicycle at night, as required by
5
statute or ordinance, may constitute negligence barring or diminishing recovery if the
bicyclist is struck by a motorist as long as the absence of such lights was a proximate
cause of the collision;[48] however, the absence of such lights will not preclude or
diminish recovery if the scene of the accident was well illuminated by street
lights,[49] if substitute lights were present which clearly rendered the bicyclist
visible,[50] if the motorist saw the bicycle in spite of the absence of lights
thereon,[51] or if the motorist would have been unable to see the bicycle even if it had
been equipped with lights.[52] A bicycle equipped with defective or ineffective brakes
may support a finding of negligence barring or diminishing recovery by an injured
bicyclist where such condition was a contributing cause of the accident.[53]
The above doctrines reveal a common thread. The failure of the bicycle owner
to comply with accepted safety practices, whether or not imposed by ordinance or
statute, is not sufficient to negate or mitigate recovery unless a causal connection is
established between such failure and the injury sustained. The principle likewise
finds affirmation in Sanitary Steam, wherein we declared that the violation of a traffic
statute must be shown as the proximate cause of the injury, or that it substantially
contributed thereto.[54]Aonuevo had the burden of clearly proving that the alleged
negligence of Villagracia was the proximate or contributory cause of the latters injury.
On this point, the findings of the Court of Appeals are well-worth citing:
[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance
of about ten (10) meters before the accident. Corrolarily, therefore, he could have
avoided the accident had he [stopped] alongside with an earlier (sic) jeep which was
already at a full stop giving way to appellee. But according to [eyewitness] Sorsano,
he saw appellant Aonuevo umaarangkada and hit the leg of Villagracia (TSN March
14, 1990 p. 30). This earlier (sic) jeep at a full stop gave way to Villagracia to proceed
but Aonuevo at an unexpected motion (umarangkada) came out hitting Villagracia
(TSN March 9, 1990 p. 49). Appellant Aonuevo admitted that he did not blow his
horn when he crossed Boni Avenue (TSN March 21, 1990 p. 47). [55]
By Aonuevos own admission, he had seen Villagracia at a good distance of ten
(10) meters. Had he been decelerating, as he should, as he made the turn, Aonuevo
would have had ample opportunity to avoid hitting Villagracia. Moreover, the fact that
Aonuevo had sighted Villagracia before the accident would negate any possibility
that the absence of lights on the bike contributed to the cause of the accident. [56] A
motorist has been held liable for injury to or death of a bicyclist where the motorist
turned suddenly into the bicyclist so as to cause a collision.[57]
Neither does Aonuevo attempt before this Court to establish a causal
connection between the safety violations imputed to Villagracia and the accident
itself. Instead, he relied on a putative presumption that these violations in themselves
sufficiently established negligence appreciable against Villagracia. Since the onus
on Aonuevo is to conclusively prove the link between the violations and the accident,
we can deem him as having failed to discharge his necessary burden of proving
Villagracias own liability.
Neither can we can adjudge Villagracia with contributory negligence. The
leading case in contributory negligence, Rakes v. Atlantic Gulf[58] clarifies that
damages may be mitigated if the claimant in conjunction with the occurrence,
[contributes] only to his injury.[59]To hold a person as having contributed to his
injuries, it must be shown that he performed an act that brought about his injuries in
disregard of warnings or signs of an impending danger to health and body. [60] To
prove contributory negligence, it is still necessary to establish a causal link, although
not proximate, between the negligence of the party and the succeeding injury. In a
legal sense, negligence is contributory only when it contributes proximately to the
injury, and not simply a condition for its occurrence. [61]
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as
solely responsible for the accident. The petition does not demonstrate why this
finding should be reversed. It is hard to imagine that the same result would not have
occurred even if Villagracias bicycle had been equipped with safety equipment.
Aonuevo himself admitted having seen Villagracia from ten (10) meters away, thus
he could no longer claim not having been sufficiently warned either by headlights or
safety horns. The fact that Aonuevo was recklessly speeding as he made the turn
likewise leads us to believe that even if Villagracias bicycle had been equipped with
the proper brakes, the cyclist would not have had opportunity to brake in time to
avoid the speeding car. Moreover, it was incumbent on Aonuevo to have established
that Villagracias failure to have installed the proper brakes contributed to his own
injury. The fact that Aonuevo failed to adduce proof to that effect leads us to consider
such causal connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals
is AFFIRMED. Costs against petitioner.
SO ORDERED.
6
THE HEIRS OF REDENTOR COMPLETO and
ELPIDIO ABIAD,
- versus -
SGT. AMANDO C. ALBAYDA, JR.,
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision[1] dated January 2, 2006 and the Resolution[2] dated
March 30, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the
Philippine Air Force, 527th Base Security Squadron, 520th Airbase, Philippine Air
Force, located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor Completo
(Completo), now represented by his heirs, was the taxi driver of a Toyota Corolla,
bearing Plate No. PYD-128, owned and operated by co-petitioner Elpidio Abiad
(Abiad).[3] Albayda and Completo figured in an accident along the intersection of
8thand 11th Streets, VAB. Albayda filed a complaint for damages before the Regional
Trial Court (RTC) of Pasay City. The case was docketed as Civil Case No. 98-
1333.[4]
The amended complaint alleged that, on August 27, 1997, while Albayda was on his
way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven
by Completo bumped and sideswiped him, causing serious physical injuries.
Albayda was brought to the Philippine Air Force General Hospital (PAFGH) inside
VAB. However, he was immediately transferred to the Armed Forces of the
Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City, because there
was a fracture in his left knee and there was no orthopedic doctor available at
PAFGH. From August 27, 1997 until February 11, 1998, he was confined therein.
He was again hospitalized at PAFGH from February 23, 1998 until March 22, 1998. [5]
Conciliation between the parties before the barangay failed. Thus, Albayda filed a
complaint for physical injuries through reckless imprudence against Completo before
the Office of the City Prosecutor of Pasay City. On the other hand, Completo filed a
counter-charge of damage to property through reckless imprudence against
Albayda. On January 13, 1998, the Office of the City Prosecutor issued a
resolution,[6] recommending the filing of an information for reckless imprudence
resulting in physical injuries against Completo. The counter-charge of damage to
property was recommended dismissed.[7]
The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where
Albayda manifested his reservation to file a separate civil action for damages against
petitioners Completo and Abiad.[8]
Albayda alleged that the proximate cause of the incident which necessitated his stay
in the hospital for approximately seven (7) months was the negligence of Completo
who, at the time of the accident, was in the employ of Abiad. The pain he suffered
required him to undergo medical physiotherapy for a number of years to regain
normality of his left knee joint, and he claimed that he incurred actual damages
totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos
(P276,550.00), inclusive of his anticipated operations.[9]
He further stated that aggravating the physical sufferings, mental anguish, frights,
serious anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation resulting from his injuries, his wife abandoned him in May 1998, and left
their children in his custody. He thus demanded the amount of Six Hundred
Thousand Pesos (P600,000.00) as moral damages. He likewise asked for
exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000.00)
and attorneys fees of Twenty-Five Thousand Pesos (P25,000.00), plus One
Thousand Pesos (P1,000.00) per court appearance.[10]
In his answer to the amended complaint, Completo alleged that, on August 27, 1997,
he was carefully driving the taxicab along 8th Street, VAB, when suddenly he heard
a strange sound from the rear right side of the taxicab. When he stopped to
investigate, he found Albayda lying on the road and holding his left leg. He
immediately rendered assistance and brought Albayda to PAFGH for emergency
treatment.[11]
Completo also asserted that he was an experienced driver who, in accordance with
traffic rules and regulations and common courtesy to his fellow motorists, had
already reduced his speed to twenty (20) kilometers per hour even before reaching
the intersection of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very
high speed, causing him to suddenly lose control of the bicycle and hit the rear door
on the right side of the taxicab.[12]
The deep indentation on the rear right door of the taxicab was caused by the impact
of Albaydas body that hit the taxicab after he had lost control of the bicycle; while
the slight indentation on the right front door of the taxicab was caused by the impact
of the bike that hit the taxicab after Albayda let go of its handles when he had lost
control of it.[13]
7
Completo maintained that Albayda had no cause of action. The accident and the
physical injuries suffered by Albayda were caused by his own negligence, and his
purpose in filing the complaint was to harass petitioners and unjustly enrich himself
at their expense.[14]
After submission of the parties respective pleadings, a pretrial conference was held.
On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits
ensued.[15]
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr.
Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr.
Manuel Fidel Magtira (Dr. Magtira) as witnesses in open court.[16]
On direct examination, Navarro testified that, on August 27, 1997, at around 1:45
p.m., he saw a taxicab, with Plate No. PYD-128, coming from 11th Street, running at
an unusual speed. The normal speed should have been twenty-five (25) kilometers
per hour. He was at the corner of 9th and 8th Streets when the taxicab passed by
him. The side of the bicycle was hit by the taxicab at the intersection of 11th and
8th Streets. He saw Albayda fall to the ground, grimacing in pain. The taxicab at that
moment was about ten (10) meters away from Albayda. On cross-examination,
Navarro reiterated that the taxicab was running quite fast. The bicycle ridden by
Albayda reached the intersection of 8th and 11th Streets before the taxicab hit it.[17]
Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was
admitted at AFPMC, testified that the cause of the injury was hard impact, and
recommended an operation to alleviate the suffering. On cross-examination, he said
that there was a separation of the fragments of the proximal leg, the injured
extremity, called levia. They placed the victim on knee traction or calcaneal
traction,[18] in order to avoid further swelling. They bore the calcanean bone with a
stainless steel pin so that they could put five percent (5%) of the body weight of the
patient to cool down the leg. He treated Albayda for three (3) months. He
recommended surgery, but the victim had other medical problems, like an increase
in sugar level, and they were waiting for the availability of the implant. The implant
was supposed to be placed on the lateral aspect of the proximal leg or the levia, the
part with the separation. It was a long implant with screws. [19]
Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999
because of complaints of pain and limitation of motion on the knee joint. Upon
evaluation, the pain was caused by traumatic arthritis brought about by malunion of
the lateral trivial condial. An operation of the soft tissue release was conducted for
him to mobilize his knee joint and attain proper range of motion. After the operation,
Albayda attained functional range of motion, but because of subsisting pain, they
had to do osteoplasty[20] of the malunion, which was another operation. On cross-
examination, Dr. Magtira testified that he rendered free medical service at
AFPMC.[21]
Albayda testified that he was thirty-six (36) years old and a soldier of the Armed
Forces of the Philippines. On August 27, 1997, at around 1:40 p.m., he was riding
his bike on his way to the office, located on 916 Street, VAB. He had to stop at the
corner of 11th and 8th Streets because an oncoming taxicab was moving fast.
However, the taxicab still bumped the front tire of his bike, hit his left knee and threw
him off until he fell down on the road. The taxicab stopped about ten meters away,
and then moved backwards. Its driver, Completo, just stared at him. When
somebody shouted to bring him to the hospital, two (2) persons, one of whom was
Dr. Barrosa, helped him and carried him into the taxicab driven by Completo, who
brought him to PAFGH.[22]
Upon examination, it was found that Albayda suffered fracture in his left knee and
that it required an operation. No orthopedic doctor was available at PAFGH. Thus,
he was transferred that same afternoon to AFPMC, where he was confined until
February 11, 1998.[23]
At AFPMC, Albaydas left leg was drilled on and attached to traction. When his leg
was drilled, it was so painful that he had to shout. After his release from the hospital,
he continued to suffer pain in his leg. He underwent reflexology and therapy which
offered temporary relief from pain. But after some time, he had to undergo therapy
and reflexology again.[24]
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June
24, 1999, he was operated on again. Wire and screw were installed so that he could
bend his knee. Nonetheless, he continued to suffer pain. As of the date of his
testimony in court, he was scheduled for another operation in January 2000, when
the steel that would be installed in his leg arrives. [25]
For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months
of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice
weekly reflexology, Three Hundred Pesos (P300.00) every session since April 1997;
for his caretaker, P300.00 per day for six months. He also asked for P600,000.00 in
moral damages because Completo did not lend him a helping hand, and he would
be suffering deformity for the rest of his life. He demanded P25,000.00 as attorneys
fees and P1,000.00 for every court appearance of his lawyer.[26]
On cross-examination, Albayda testified that, on the date of the incident, he was the
base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was
not in a hurry to go to his place of work because it was only about 1:45 p.m., and his
place of work was only six (6) meters away. After the accident, he was brought to
PAFGH, and at 3:00 p.m., he was brought to the AFPMC. When he was discharged
from the hospital, he could no longer walk.[27]
8

Dr. Barrosas testimony during cross-examination emphasized that he was with 2
other persons when he carried Albayda into the taxicab driven by Completo. He was
certain that it was not Completo who carried the victim into the taxicab. It was only a
matter of seconds when he rushed to the scene of the accident. The taxicab backed
up fifteen (15) seconds later. Albayda lay 2 meters away from the corner of 8 th and
11th Streets.[28]
Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.[29]
Completo alleged that he had been employed as taxi driver of FOJS Transport,
owned by Abiad, since February 1997. On August 27, 1997, he was driving the
taxicab, with Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on
his way home when a bicycle bumped his taxicab at the intersection of 8 th and
11th Streets, VAB. The bicycle was travelling from south to north, and he was going
east coming from the west. The bicycle was coming from 11th Street, while he was
travelling along 8th Street.[30]
On cross-examination, Completo testified that when Albayda hit the rear right door
of the taxicab, the latter fell to the ground. When he heard a noise, he immediately
alighted from the taxicab. He denied that he stopped about 10 meters away from the
place where Albayda fell. He carried Albayda and drove him to the hospital.[31]
Panican testified that he worked as an airconditioner technician in a shop located
on 8th Street corner 11th Street. On the date and time of the incident, he was working
in front of the shop near the roadside. He saw a bicycle bump the rear right side of
the taxicab. Then, the driver of the taxicab alighted, carried Albayda, and brought
him to the hospital.[32]
When questioned by the trial court, Panican testified that the bicycle was running
fast and that he saw it bump the taxicab. The taxicab already passed the intersection
of 11th and 8th Streets when the bicycle arrived.[33]
Abiad testified that, aside from being a soldier, he was also a franchise holder of
taxicabs and passenger jeepneys. When Completo applied as a driver of the taxicab,
Abiad required the former to show his bio-data, NBI clearance, and drivers license.
Completo never figured in a vehicular accident since the time he was employed in
February 1997. Abiad averred that Completo was a good driver and a good man.
Being the operator of taxicab, Abiad would wake up early and personally check all
the taxicabs.[34]
On July 31, 2000, the trial court rendered a decision,[35] the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff [Albayda] and against the defendants [Completo and
Abiad]. Accordingly, the defendants [Completo and Abiad] are
hereby ordered to pay the plaintiff [Albayda] the following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]
3. P25,000.00 as attorneys fees.
Costs against the defendants [Completo and Abiad].
SO ORDERED.[36]
Completo and Abiad filed an appeal. The CA affirmed the trial court with modification
in a Decision[37] dated January 2, 2006, viz.:
WHEREFORE, premises considered, the appeal is DENIED for
lack of merit. The assailed Decision dated 31 July 2000 rendered
by the Regional Trial Court of Pasay City, Branch 117, in Civil
Case No. 98-1333 is hereby AFFIRMED with the
following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is DELETED;
2. temperate damages in the amount of Php 40,000.00 is awarded
in favor of appellee;
3. moral damages in favor of appellee is REDUCED to Php
200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are solidarily
liable to pay appellee Amando C. Albayda, Jr. said temperate and
moral damages, as well as the attorneys fees in the amount of
Php 25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal interest at
6% per annum computed from the date of promulgation of Our
Decision;
9
 6. upon finality of Our Decision, said moral and temperate
damages shall earn legal interest at the rate of 12% per annum,
in lieu of 6% per annum, until full payment. Costs against
appellants.
SO ORDERED.[38]
Hence, this petition.
The Issues
Petitioners presented the following issues for resolution: (1) whether the CA erred in
finding that Completo was the one who caused the collision;
(2) whether Abiad failed to prove that he observed the diligence of a good father of
the family; and (3) whether the award of moral and temperate damages and
attorneys fees to Albayda had no basis.[39]
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters which were
already passed upon by the RTC and the CA. Conclusions and findings of fact of the
trial court are entitled to great weight on appeal and should not be disturbed unless
for strong and cogent reasons, because the trial court is in a better position to
examine real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case. The fact that the CA adopted the findings of fact of the trial
court makes the same binding upon this Court. Well-settled is the rule that the
Supreme Court is not a trier of facts.[40] To be sure, findings of fact of lower courts
are deemed conclusive and binding upon the Supreme Court, save only for clear
and exceptional reasons,[41] none of which is present in the case at bar.
The instant case involved a collision between a taxicab and a bicycle which resulted
in serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence suits
that the plaintiff has the burden of proving by a preponderance of evidence the
motorists breach in his duty of care owed to the plaintiff, that the motorist was
negligent in failing to exercise the diligence required to avoid injury to the plaintiff,
and that such negligence was the proximate cause of the injury suffered. [42]
Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no preexisting contractual relation between
the parties, is called a quasi-delict. In this regard, the question of the motorist's
negligence is a question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise
reasonable diligence in driving the taxicab because he was over-speeding at the
time he hit the bicycle ridden by Albayda. Such negligence was the sole and
proximate cause of the serious physical injuries sustained by Albayda. Completo did
not slow down even when he approached the intersection of 8 th and 11th Streets of
VAB. It was also proven that Albayda had the right of way, considering that he
reached the intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of other vehicles
lawfully on the highway, and it is fortified by the fact that usually more will be required
of a motorist than a bicyclist in discharging his duty of care to the other because of
the physical advantages the automobile has over the bicycle. [43]
At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per
second, while a car traveling at only twenty-five miles per hour covers almost thirty-
seven feet per second, and split-second action may be insufficient to avoid an
accident. It is obvious that a motor vehicle poses a greater danger of harm to a
bicyclist than vice versa. Accordingly, while the duty of using reasonable care falls
alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles,
more care is required from the motorist to fully discharge the duty than from the
bicyclist.[44] Simply stated, the physical advantages that the motor vehicle has over
the bicycle make it more dangerous to the bicyclist than vice versa.[45]
Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also for those persons for
whom one is responsible. Employers shall be liable for the damages caused by their
employees, but the employers responsibility shall cease upon proof that they
observed all the diligence of a good father of the family in the selection and
supervision of their employees.
When an injury is caused by the negligence of an employee, a legal presumption
instantly arises that the employer was negligent. This presumption may be rebutted
only by a clear showing on the part of the employer that he exercised the diligence
of a good father of a family in the selection and supervision of his employee. If the
employer successfully overcomes the legal presumption of negligence, he is relieved
of liability. In other words, the burden of proof is on the employer. [46]
The trial courts finding that Completo failed to exercise reasonable care to avoid
collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise to
liability on the part of Completo, as driver, and his employer Abiad. The responsibility
10
of two or more persons who are liable for quasi-delict is solidary.[47] The civil liability
of the employer for the negligent acts of his employee is also primary and direct,
owing to his own negligence in selecting and supervising his employee. [48] The civil
liability of the employer attaches even if the employer is not inside the vehicle at the
time of the collision.[49]
In the selection of prospective employees, employers are required to examine them
as to their qualifications, experience, and service records. On the other hand, with
respect to the supervision of employees, employers should formulate standard
operating procedures, monitor their implementation, and impose disciplinary
measures for breaches thereof. To establish these factors in a trial involving the
issue of vicarious liability, employers must submit concrete proof, including
documentary evidence.[50]
Abiad testified that before he hired Completo, he required the latter to show his bio-
data, NBI clearance, and drivers license. Abiad likewise stressed that Completo was
never involved in a vehicular accident prior to the instant case, and that, as operator
of the taxicab, he would wake up early to personally check the condition of the
vehicle before it is used.
The protestation of Abiad to escape liability is short of the diligence required under
the law. Abiads evidence consisted entirely of testimonial evidence, and the
unsubstantiated and self-serving testimony of Abiad was insufficient to overcome
the legal presumption that he was negligent in the selection and supervision of his
driver.
II. On Damages
The CA rightfully deleted the award of actual damages by the RTC because Albayda
failed to present documentary evidence to establish with certainty the amount that
he incurred during his hospitalization and treatment for the injuries he suffered. In
the absence of stipulation, actual damages are awarded only for such pecuniary loss
suffered that was duly proved.[51]
While the amount of actual damages was not duly established with certainty, the
Court recognizes the fact that, indeed, Albayda incurred a considerable amount for
the necessary and reasonable medical expenses, loss of salary and wages, loss of
capacity to earn increased wages, cost of occupational therapy, and harm from
conditions caused by prolonged immobilization. Temperate damages, more than
nominal but less than compensatory damages, may be recovered when the court
finds that some pecuniary loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty. [52] Temperate damages must be
reasonable under the circumstances.[53] Thus, the Court finds the award of One
Hundred Thousand Pesos (P100,000.00) as temperate damages reasonable under
the circumstances.
Doubtless, Albayda suffered immeasurable pain because of the incident caused by
petitioners negligence. The CA explained:
The court vicariously feels the pain the plaintiff [Albayda] suffered
a number of times. After he was bumped by defendants cab, he
cried in pain. When the doctors bore holes into his left knee, he
cried in pain. When he was tractioned, when he was subjected to
an operation after operation he suffered pain. When he took the
witness stand to testify, he walked with crutches, his left knee in
bandage, stiff and unfuctional. Pain was written [on] his face. He
does deserve moral damages.[54]
Moral damages are awarded in quasi-delicts causing physical injuries. The
permanent deformity and the scar left by the wounds suffered by Albayba will forever
be a reminder of the pain and suffering that he had endured and continues to endure
because of petitioners negligence. Thus, the award of moral damages in the amount
of Five Hundred Thousand Pesos (P500,000.00) is proper.
Finally, an interest rate of six percent (6%) per annum is due on the amount
of P100,000.00, as temperate damages, and P500,000.00, as moral damages,
which we have awarded. The 6% per annum interest rate on the temperate and
moral damages shall commence to run from the date of the promulgation of this
Decision. Upon finality of the Decision, an interest rate of twelve percent (12%) per
annum shall be imposed on the amount of the temperate and moral damages until
full payment thereof.[55]
The award of attorneys fees is hereby deleted for failure to prove that petitioners
acted in bad faith in refusing to satisfy respondents just and valid claim.
WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and the
Resolution dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No. 68405
are hereby AFFIRMED with MODIFICATION, viz.:
(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily liable
to pay One Hundred Thousand Pesos (P100,000.00), as temperate damages, and
Five Hundred Thousand Pesos (P500,000.00), as moral damages;
(2) The temperate and moral damages hereby awarded shall earn legal interest at
the rate of six percent (6%) per annum from the date of the promulgation of this
Decision. Upon finality of this Decision, an interest rate of twelve percent (12%) per
annum shall be imposed on the amount of the temperate and moral damages until
full payment thereof.
Costs against petitioners.
11
 With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason
Herbolario. They were sales agents of the defendant, and at that particular time, the
ANTONIO EDUARDO B. NACHURA caretakers of the gun store.
Associate Justice
ALFREDO P. PACIS and The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a
CLEOPATRA D. PACIS, customer of the gun store for repair.
Petitioners,
- versus - The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194
(Exhibit Q), was left by defendant Morales in a drawer of a table located inside the
JEROME JOVANNE MORALES, gun store.
Respondent.
Defendant Morales was in Manila at the time. His employee Armando Jarnague, who
was the regular caretaker of the gun store was also not around. He left earlier and
CARPIO, J.: requested sales agents Matibag and Herbolario to look after the gun store while he
and defendant Morales were away. Jarnague entrusted to Matibag and Herbolario a
bunch of keys used in the gun store which included the key to the drawer where the
The Case fatal gun was kept.

This petition for review[1] assails the 11 May 2005 Decision[2] and the 19 August 2005
Resolution of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis
(petitioners) filed with the trial court a civil case for damages against respondent
Jerome Jovanne Morales (respondent). Petitioners are the parents of Alfred Dennis
Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident inside the
Top Gun Firearms and Ammunitions Store (gun store) in Baguio City. Respondent is
the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and
a first year student at the Baguio Colleges Foundation taking up
BS Computer Science, died due to a gunshot wound in the head
which he sustained while he was at the Top Gun Firearm[s] and
Ammunition[s] Store located at Upper Mabini Street, Baguio City.
The gun store was owned and operated by defendant Jerome
Jovanne Morales.
It appears that Matibag and Herbolario later brought out the gun
from the drawer and placed it on top of the table. Attracted by the
sight of the gun, the young Alfred Dennis Pacis got hold of the
same. Matibag asked Alfred Dennis Pacis to return the gun. The
latter followed and handed the gun to Matibag. It went off, the
bullet hitting the young Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this
Court. Matibag, however, was acquitted of the charge against him because of the
exempting circumstance of accident under Art. 12, par. 4 of the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal
case for homicide against Matibag was reproduced and adopted
by them as part of their evidence in the instant case.[3]
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiffs [Spouses Alfredo P. Pacis and
Cleopatra D. Pacis] and against the defendant [Jerome Jovanne
Morales] ordering the defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial
expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;

12
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.
SO ORDERED.[4]
Respondent appealed to the Court of Appeals. In its Decision[5] dated 11 May 2005,
the Court of Appeals reversed the trial courts Decision and absolved respondent
from civil liability under Article 2180 of the Civil Code.[6]
Petitioners filed a motion for reconsideration, which the Court of Appeals denied in
its Resolution dated 19 August 2005.
Hence, this petition.
The Trial Courts Ruling
The trial court held respondent civilly liable for the death of Alfred under Article 2180
in relation to Article 2176 of the Civil Code.[7] The trial court held that the accidental
shooting of Alfred which caused his death was partly due to the negligence of
respondents employee Aristedes Matibag (Matibag). Matibag and Jason Herbolario
(Herbolario) were employees of respondent even if they were only paid on a
commission basis. Under the Civil Code, respondent is liable for the damages
caused by Matibag on the occasion of the performance of his duties, unless
respondent proved that he observed the diligence of a good father of a family to
prevent the damage. The trial court held that respondent failed to observe the
required diligence when he left the key to the drawer containing the loaded defective
gun without instructing his employees to be careful in handling the loaded gun.
The Court of Appeals Ruling
The Court of Appeals held that respondent cannot be held civilly liable since there
was no employer-employee relationship between respondent and Matibag. The
Court of Appeals found that Matibag was not under the control of respondent with
respect to the means and methods in the performance of his work. There can be no
employer-employee relationship where the element of control is absent. Thus, Article
2180 of the Civil Code does not apply in this case and respondent cannot be held
liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an
employer of Matibag, still respondent cannot be held liable since no negligence can
be attributed to him. As explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship
existed between Aristedes Matibag and the defendant-appellant,
we find that no negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test
of negligence is this:
x x x. Could a prudent man, in the position of the
person to whom negligence is attributed,
foresee harm to the person injured as a
reasonable consequence of the course about to
be pursued? If so, the law imposes a duty on the
actor to refrain from that course or take
precaution against its mischievous results, and
the failure to do so constitutes negligence. x x x.
Defendant-appellant maintains that he is not guilty of negligence
and lack of due care as he did not fail to observe the diligence of
a good father of a family. He submits that he kept the firearm in
one of his table drawers, which he locked and such is already an
indication that he took the necessary diligence and care that the
said gun would not be accessible to anyone. He puts [sic] that his
store is engaged in selling firearms and ammunitions. Such items
which are per sedangerous are kept in a place which is properly
secured in order that the persons coming into the gun store would
not be able to take hold of it unless it is done intentionally, such
as when a customer is interested to purchase any of the firearms,
ammunitions and other related items, in which case, he may be
allowed to handle the same.
We agree. Much as We sympathize with the family of the
deceased, defendant-appellant is not to be blamed. He exercised
due diligence in keeping his loaded gun while he was on a
business trip in Manila. He placed it inside the drawer and locked
it. It was taken away without his knowledge and authority.
Whatever happened to the deceased was purely accidental.[8]
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN
RENDERING THE DECISION AND RESOLUTION IN
QUESTION IN DISREGARD OF LAW AND
JURISPRUDENCE BY REVERSING THE ORDER OF THE
13
 REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY
NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS
AND TESTIMONIES PRESENTED DURING THE TRIAL
WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE,
REVERSIBLE ERROR IN RENDERING THE DECISION
AND RESOLUTION IN QUESTION BY DEPARTING FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS THEREBY IGNORING THE FACTUAL
FINDINGS OF THE REGIONAL TRIAL COURT (BRANCH
59) OF BAGUIO CITY SHOWING PETITIONERS CLEAR
RIGHTS TO THE AWARD OF DAMAGES.[9]
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners son. Under
Article 1161[10] of the Civil Code, petitioners may enforce their claim for damages
based on the civil liability arising from the crime under Article 100 [11] of the Revised
Penal Code or they may opt to file an independent civil action for damages under
the Civil Code. In this case, instead of enforcing their claim for damages in the
homicide case filed against Matibag, petitioners opted to file an independent civil
action for damages against respondent whom they alleged was Matibags employer.
Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil
Code.
Unlike the subsidiary liability of the employer under Article 103 [12] of the Revised
Penal Code,[13] the liability of the employer, or any person for that matter, under
Article 2176 of the Civil Code is primary and direct, based on a persons own
negligence. Article 2176 states:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called quasi-delict and
is governed by the provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun store. Under
PNP Circular No. 9, entitled the Policy on Firearms and Ammunition
Dealership/Repair, a person who is in the business of purchasing and selling of
firearms and ammunition must maintain basic security and safety requirements of a
gun dealer, otherwise his License to Operate Dealership will be suspended or
canceled.[14]
Indeed, a higher degree of care is required of someone who has in his possession
or under his control an instrumentality extremely dangerous in character, such as
dangerous weapons or substances. Such person in possession or control
of dangerous instrumentalities has the duty to take exceptional precautions to
prevent any injury being done thereby.[15] Unlike the ordinary affairs of life or
business which involve little or no risk, a business dealing with dangerous weapons
requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable about firearms
safety and should have known never to keep a loaded weapon in his store to avoid
unreasonable risk of harm or injury to others. Respondent has the duty to ensure
that all the guns in his store are not loaded. Firearms should be stored unloaded and
separate from ammunition when the firearms are not needed for ready-access
defensive use.[16] With more reason, guns accepted by the store for repair should
not be loaded precisely because they are defective and may cause an accidental
discharge such as what happened in this case. Respondent was clearly negligent
when he accepted the gun for repair and placed it inside the drawer without ensuring
first that it was not loaded. In the first place, the defective gun should have been
stored in a vault. Before accepting the defective gun for repair, respondent should
have made sure that it was not loaded to prevent any untoward accident. Indeed,
respondent should never accept a firearm from another person, until the cylinder or
action is open and he has personally checked that the weapon is completely
unloaded.[17] For failing to insure that the gun was not loaded, respondent himself
was negligent. Furthermore, it was not shown
14
G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-
appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by
David Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway
and an electric light system in the city of Manila. Its power plant is situated at the
eastern end of a small island in the Pasig River within the city of Manila, known as
the Isla del Provisor. The power plant may be reached by boat or by crossing a
footbridge, impassable for vehicles, at the westerly end of the island.
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
boy of his age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about
12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of
visiting one Murphy, an employee of the defendant, who and promised to make them
a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his
quarters, the boys, impelled apparently by youthful curiosity and perhaps by the
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
power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's
coal, they walked across the open space in the neighborhood of the place where the
company dumped in the cinders and ashes from its furnaces. Here they found some
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
of electricity. They are intended for use in the explosion of blasting charges of
dynamite, and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take them, the boys
picked up all they could find, hung them on stick, of which each took end, and carried
them home. After crossing the footbridge, they met a little girl named Jessie Adrian,
less than 9 years old, and all three went to the home of the boy Manuel. The boys
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 stone and failed. Manuel looked for a hammer, but could not find one. Then
they 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
match to the contents. An explosion followed, causing more or less serious injuries
to all three. Jessie, who when the boys proposed putting a match to the contents of
the 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
extent as to the necessitate its removal by the surgeons who were called in to care
for his wounds.
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
them. It appears, however, that some months before the accident, during the
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
where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of
defendant's street car line to Fort William McKinley. The caps when found appeared
to the boys who picked them up to have been lying for a considerable time, and from
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.
No measures seems to have been adopted by the defendant company to prohibit or
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 may add, roamed about at will on the uninclosed premises of the defendant, in
the neighborhood of the place where the caps were found. There is evidence that
any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its
employees were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on
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 for six months at a salary of P2.50 a day; and it appears that he was a
15
boy of more than average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel.
The only questions of fact which are seriously disputed are plaintiff's allegations that
the caps which were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its possession and control,
and that the company or some of its employees left them exposed on its premises
at the point where they were found.
The evidence in support of these allegations is meager, and the defendant company,
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
failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain
a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less
extensively, on the McKinley extension of the defendant company's track; that some
of these caps were used in blasting a well on the company's premises a few months
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
operations as a street railway and a purveyor of electric light; and that the place, in
the neighborhood of which the caps were found, was being used by the company as
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
absence of all evidence to the contrary, we think that the discovery of twenty or thirty
of these caps at the place where they were found by the plaintiff on defendant's
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
think also that the evidence tends to disclose that these caps or detonators were
willfully and knowingly thrown by the company or its employees at the spot where
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
perhaps defective; and, however this may be, we are satisfied that the evidence is
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 which the company knew or ought to have known that young boys were likely
to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the
facts 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
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, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no
proof whatever in the record 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, 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 proven that detonating caps were more or less
extensively employed on work done by the defendant company's directions and on
its behalf, we think that the company 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 these operations and that it was responsible
for tortious or negligent acts of the agents employed therein, on the ground that this
work had been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company did not in fact own
or make use of caps such as those 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 the record sufficiently establishes the contrary,
and justifies the court in drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by the company or
some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in
plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together
with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts,
and illicit acts and omissions or by those in which any kind of fault or
negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the damage so
done.
ART. 1903 The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons
for whom they should be responsible.
16
 The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
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
the latter may be employed or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with
due diligence, and for kindling of explosive substances which may not have
been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention
that the facts proven at the trial do not established the liability of the defendant
company under the provisions of these articles, and since we agree with this view of
the case, it is not necessary for us to consider the various questions as to form and
the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf
and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision
affirming the judgment of the court below.
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
consideration, in order to establish his right to a recovery, must establish by
competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some
person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the
damage.
These proposition are, of course, elementary, and do not admit of discussion, the
real difficulty arising in the application of these principles to the particular facts
developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps
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
would not have been injured had he not, for his own pleasure and convenience,
entered upon the defendant's premises, and strolled around thereon without the
express permission of the defendant, and had he not picked up and carried away
the property of the defendant which he found on its premises, and had he not
thereafter deliberately cut open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience,
his entry upon defendant company's premises, and the intervention of his action
between the negligent act of defendant in leaving the caps exposed on its premises
and the accident which resulted in his injury should not be held to have contributed
in any wise to the accident, which should be deemed to be the direct result of
defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which
occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in
many of the courts of last resort in the United States in the cases known as the
"Torpedo" and "Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is
liable for an injury received by an infant of tender years, who from mere idle curiosity,
or for the purposes of amusement, enters upon the railroad company's premises, at
a place where the railroad company knew, or had good reason to suppose, children
would be likely to come, and there found explosive signal torpedoes left unexposed
by the railroad company's employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to make it probable
that 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.
In these, and in great variety of similar cases, the great weight of authority holds the
owner of the premises liable.
17
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the
principal 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 injury was, under circumstances, attributable to the negligence
of the company), the 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 responsibility to such strangers for injuries arising from its negligence
or from its 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 adult that to entitle him to recover damages for an injury resulting
from the fault or negligence of another he must himself have been free from fault,
such is not the rule 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 by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted
and sharply criticized in several state courts, and the supreme court of Michigan in
the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved
the doctrine of the Turntable cases, especially that laid down in Railroad Company
vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1)
That 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 favor of children who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to cross the premises of
another can not be predicated on the mere fact that no steps have been taken to
interfere with such practice; (4) that there is no difference between children and
adults as to the circumstances that will warrant the inference of an invitation or a
license to enter upon another's premises.
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.,
53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States,
citing and approving the doctrine laid down in England in the leading case of Lynch
vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that
announced in the Railroad Company vs. Stout (supra), and the Supreme Court of
the United States, in a unanimous opinion delivered by Justice Harlan in the case
of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down
in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of
many of the adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as
follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure,
entered upon and visited the defendant's premises, without defendant's express
permission or invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but which had been left
by defendant on its premises without any fence around it or anything to give warning
of its dangerous condition, although defendant knew or had reason the interest or
curiosity of passers-by. On these facts the court held that the plaintiff could not be
regarded as a mere trespasser, for whose safety and protection while on the
premises in question, against the unseen danger referred to, the defendant was
under no obligation to make provision.
We quote at length from the discussion by the court of the application of the
principles involved to the facts in that case, because what is said there is strikingly
applicable in 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, and in no case could be held liable for injuries which would not have resulted
but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra).
Applied to the case now before us, they require us to hold that the
defendant was guilty of negligence in leaving unguarded the slack pile,
made by it in 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 did not do so. On the contrary, it permitted all, without
regard to age, to visit 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 which the people of the village, old and young, would
often assemble. It knew that children were in the habit of frequenting that
locality and playing around the shaft house in the immediate vicinity of the
slack pit. The slightest regard for the safety of these children would have
suggested that they were in danger from being so near a pit, beneath the
surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of 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 mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make
provisions.
18
 In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a highway,
or to the premises of another, that dogs passing along the highway, or kept
in his neighbors premises, would probably be attracted by their instinct into
the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in reason between
drawing the animal into the trap by means of his instinct which he can not
resist, and putting him there by manual force?" What difference, in reason
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
slack pile, and an implied license, resulting from the habit of the defendant
to permit them, without objection or warning, to do so at will, for purposes
of curiosity or pleasure? Referring it the case of Townsend vs. Wathen,
Judge Thompson, in his work on the Law of Negligence, volume 1, page
305, note, well says: "It would be a barbarous rule of law that would make
the owner of land liable for setting a trap thereon, baited with stinking meat,
so that his neighbor's dog attracted by his natural instinct, might run into it
and be killed, and which would exempt him from liability for the
consequence of leaving exposed and unguarded on his land a dangerous
machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or
maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the
case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts
and impulses; and others who are chargeable with a duty of care and
caution toward them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation of children anything
which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with,
they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied
invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an
implied license might sometimes arise when it would not on behalf of
others. Thus leaving a tempting thing for children to play with exposed,
where they would be likely to gather for that purpose, may be equivalent to
an invitation to them to make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way, things tempting to
children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in
the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs.
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,
boys here as well as there will usually be found whenever the public is permitted to
congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as
inevitably as does the magnet draw the iron which comes within the range of its
magnetic influence. The owners of premises, therefore, whereon things attractive to
children are exposed, or upon which the public are expressly or impliedly permitted
to enter or upon which the owner knows or ought to know children are likely to roam
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
because the child has entered upon his premises without his express permission he
is a trespasser to whom the owner owes no duty or obligation whatever. The owner's
failure to take reasonable precautions to prevent the child from entering his premises
at a place where he knows or ought to know that children are accustomed to roam
about of to which their childish instincts and impulses are likely to attract them is at
least equivalent to an implied license to enter, and where the child does enter under
such conditions the owner's failure to take reasonable precautions to guard the child
against injury from unknown or unseen dangers, placed upon such premises by the
owner, is clearly a breach of duty, responsible, if the child is actually injured, without
other fault on its part than that it had entered on the premises of a stranger without
his express invitation or permission. To hold otherwise would be expose all the
children in the community to unknown perils and unnecessary danger at the whim of
the owners or occupants of land upon which they might naturally and reasonably be
expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is
contention that a man has a right to do what will with his own property or that children
should be kept under the care of their parents or guardians, so as to prevent their
entering on the premises of others is of sufficient weight to put in doubt. In this
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
interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26,
1910), and except as to infants of very tender years it would be absurd and
unreasonable in a community organized as is that in which we lived to hold that
parents or guardian are guilty of negligence or imprudence in every case wherein
19
they permit growing boys and girls to leave the parental roof unattended, even if in
the event of accident to the child the negligence of the parent could in any event be
imputed to the child so as to deprive it a right to recover in such cases — a point
which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without other fault on his part, if
such injury were attributable to the negligence of the defendant, we are of opinion
that under all the circumstances of this case the negligence of the defendant in
leaving the caps exposed on its premises was not the proximate cause of the injury
received by 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 action in cutting open the detonating cap and putting match to its contents
was the proximate cause of the explosion and of the resultant injuries inflicted upon
the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries
thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that
because of plaintiff's youth the intervention of his action between the negligent act
of the defendant in leaving the caps exposed on its premises and the explosion
which 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 doctrine of the Turntable and Torpedo cases, that we have thought proper
to discuss and to consider that doctrine at length in this decision. As was said in case
of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult
that to entitle him to recover damages for an injury resulting from the fault or
negligence of another he must himself have been free from fault, such is not the rule
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
by the circumstances of the case." As we think we have shown, under the reasoning
on which rests the doctrine of the Turntable and Torpedo cases, no fault which would
relieve defendant of responsibility for injuries resulting from its negligence can be
attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry
upon defendant's uninclosed premises without express permission or invitation' but
it is wholly different question whether such youth can be said to have been free from
fault when he willfully and deliberately cut open the detonating cap, and placed a
match to the contents, knowing, as he undoubtedly did, that his action would result
in an explosion. On this point, which must be determined by "the particular
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
"Torpedo" and analogous cases which our attention has been directed, the record
discloses that the plaintiffs, in whose favor judgments have been affirmed, were of
such tender years that they were held not to have the capacity to understand the
nature or character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15,
more mature both mentally and physically than the average boy of his age; he had
been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman
thirty days after the injury was incurred; and the record discloses throughout that he
was exceptionally well qualified to take care of himself. The evidence of record
leaves no room for doubt that, despite his denials on the witness stand, he well knew
the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as described by
the 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 hammer, and the final success of his endeavors brought about by the application
of a match to the contents of the caps, show clearly that he knew what he was about.
Nor can there be any reasonable doubt that he had reason to anticipate that the
explosion might be dangerous, in view of the fact that the little girl, 9 years of age,
who was within him at the time when he put the match to the contents of the cap,
became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the
explosion which might be expected from the ignition of the contents of the cap, and
of course he did not anticipate the resultant injuries which he incurred; but he well
knew that a more or less dangerous explosion might be expected from his act, and
yet he 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 caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such
circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary
capacity to understand and appreciate the nature and consequences of his own acts,
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
impossible so to do, for in the very nature of things the question of negligence
necessarily depends on the ability of the minor to understand the character of his
own 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 age at which a minor can be said to have such ability will necessarily vary in
accordance with the varying nature of the infinite variety of acts which may be done
by him. But some idea of the presumed capacity of infants under the laws in force in
these Islands may be gathered from an examination of the varying ages fixed by our
laws at which minors are conclusively presumed to be capable of exercising certain
20
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 his own acts varies with the varying circumstances of each case.
Under the 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,
although the fact that he is less than eighteen years of age will be taken into
consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose which parent it
prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted
(Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and
understanding to be sensible of the danger to which he exposed himself when he
put 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 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 it may be true that these injuries would not have been incurred but for the
negligence act of the defendant in leaving the caps exposed on its premises,
nevertheless plaintiff's own act was the proximate and principal cause of the accident
which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non
intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from
another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own
acts the grievance should be against himself and not against another. (Law
2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own
acts the grievance should be against himself and not against another. (Law
2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly
lays down the law touching contributory negligence in this jurisdiction, nevertheless,
the interpretation placed upon its provisions by the supreme court of Spain, and by
this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359),
clearly deny to the plaintiff in the case at bar the right to recover damages from the
defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault
or negligence is a source of obligation when between such negligence and
the injury there exists the relation of cause and effect; but if the injury
produced should not be the result of acts or omissions of a third party, the
latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party
himself.
The same court, in its decision of June 12, 1900, said that "the existence of the
alleged fault or negligence is not sufficient without proof that it, and no other cause,
gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that
title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455),
commenting on the decision of March 7, 1902 of the Civil Code, fault or
negligence gives rise to an obligation when between it and the damage
there exists the relation of 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 less so when it is shown that the immediate
cause of the damage has been the recklessness of the injured party
himself.
And again —
In accordance with the fundamental principle of proof, that the burden
thereof is upon the plaintiff, it is apparent that it is duty of him who shall
claim damages to establish their existence. The decisions of April 9, 1896,
21
 and March 18, July, and September 27, 1898, have especially supported
the principle, the first setting forth in detail the necessary points of the proof,
which are two: An act or omission on the part of the person who is to be
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 between the act or omission and the damage; the latter must be the
direct 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
performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was
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
plaintiff was the immediate cause of the casualty" (decisions of the 15th of January,
the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that
year); none of the cases decided by the supreme court of Spain "define the effect to
be given the negligence 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;" and in such
cases we declared that law in this jurisdiction to require the application of "the
principle of proportional damages," but expressly and definitely denied the right of
recovery when 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
putting a match to the contents of the cap, and that having "contributed to the
principal occurrence, as one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking
up upon defendant's premises the detonating caps, the property of defendant, and
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
the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo
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
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 decide.
Twenty days after the date of this decision let judgment be entered reversing the
judgment of the court below, without costs to either party in this instance, and ten
days thereafter let the record be returned to the court wherein it originated, where
the judgment will be entered in favor of the defendant for the costs in first instance
and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
in this case whether respondent had a License to Repair which authorizes him to
repair defective firearms to restore its original composition or enhance or upgrade
firearms.[18]
22
Clearly, respondent did not exercise the degree of care and diligence required of a
good father of a family, much less the degree of care required of someone dealing
with dangerous weapons, as would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision
and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV
No. 60669. We REINSTATE the trial courts Decision dated 8 April 1998.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

23

[G.R. No. 129792. December 21, 1999]
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and
ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS,
CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision [1] of the Court of
Appeals in C.A. G.R. No. CV 37937 and the resolution [2]denying their motion
for reconsideration. The assailed decision set aside the 15 January 1992
judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil
Case No. 7119 and ordered petitioners to pay damages and attorneys fees to
private respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvels Department
Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo
are the stores branch manager, operations manager, and supervisor,
respectively. Private respondents are spouses and the parents of Zhieneth
Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the
2nd floor of Syvels Department Store, Makati City. CRISELDA was signing her
credit card slip at the payment and verification counter when she felt a sudden
gust of wind and heard a loud thud. She looked behind her. She then beheld
her daughter ZHIENETH on the floor, her young body pinned by the bulk of the
stores gift-wrapping counter/structure. ZHIENETH was crying and screaming
for help. Although shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH from the floor. [3]
ZHIENETH was quickly rushed to the Makati Medical Center where she
was operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after
the accident or on 22 May 1983, on the hospital bed. She was six years old.[4]
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate[5] issued by ZHIENETHs attending doctor
described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and wake and
funeral expenses[6] which they had incurred. Petitioners refused to
pay. Consequently, private respondents filed a complaint for damages,
docketed as Civil Case No. 7119 wherein they sought the payment
of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for
attorneys fees and an unspecified amount for loss of income and exemplary
damages.
In their answer with counterclaim, petitioners denied any liability for the
injuries and consequent death of ZHIENETH. They claimed that CRISELDA
was negligent in exercising care and diligence over her daughter by allowing
her to freely roam around in a store filled with glassware and
appliances. ZHIENETH too, was guilty of contributory negligence since she
climbed the counter, triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood with a strong support;
it never fell nor collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection, supervision
and control of its employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that the complaint
24
was malicious for which they suffered besmirched reputation and mental
anguish. They sought the dismissal of the complaint and an award of moral and
exemplary damages and attorneys fees in their favor.
In its decision[7] the trial court dismissed the complaint and counterclaim
after finding that the preponderance of the evidence favored petitioners. It ruled
that the proximate cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners witnesses who testified that ZHIENETH
clung to the counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private
respondents witnesses testified on how the counter fell. The trial court also held
that CRISELDAs negligence contributed to ZHIENETHs accident.
In absolving petitioners from any liability, the trial court reasoned that the
counter was situated at the end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance. [8] The
counter was higher than ZHIENETH. It has been in existence for fifteen
years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no
business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial
court its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of
ZHIENETH; (3) petitioners were not negligent in the maintenance of the
counter; and (4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled
to the conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was
already capable of contributory negligence, still it was physically impossible for
her to have propped herself on the counter. She had a small frame (four feet
high and seventy pounds) and the counter was much higher and heavier than
she was. Also, the testimony of one of the stores former employees, Gerardo
Gonzales, who accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied petitioners theory that
ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was
asked by the doctor what she did, ZHIENETH replied, [N]othing, I did not come
near the counter and the counter just fell on me. [9] Accordingly, Gonzales
testimony on ZHIENETHs spontaneous declaration should not only be
considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment that she
was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate
cause of ZHIENETHs death, was petitioners negligence in failing to institute
measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised
purely factual issues which could no longer be disturbed. They explained that
ZHIENETHs death while unfortunate and tragic, was an accident for which
neither CRISELDA nor even ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial courts rejection of Gonzales
testimony as unworthy of credence.
As to private respondents claim that the counter should have been nailed
to the ground, petitioners justified that it was not necessary. The counter had
been in existence for several years without any prior accident and was
deliberately placed at a corner to avoid such accidents. Truth to tell, they acted
without fault or negligence for they had exercised due diligence on the
matter. In fact, the criminal case[10] for homicide through simple negligence filed
by private respondents against the individual petitioners was dismissed; a
verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents
and reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted L[11] with a top wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could
cause. But the latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for some time
without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7)
years old at the time of the incident, was absolutely incapable of negligence or
other tort. It reasoned that since a child under nine (9) years could not be held
liable even for an intentional wrong, then the six-year old ZHIENETH could not
be made to account for a mere mischief or reckless act. It also absolved
CRISELDA of any negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed the document at the
nearby counter.
25
 The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account.[12] It denied an award for funeral expenses for
lack of proof to substantiate the same. Instead, a compensatory damage
of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, [13] thus:
WHEREFORE, premises considered, the judgment of the lower court is SET
ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred;
with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the
same was denied in the Court of Appeals resolution[14] of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals decision and
the reinstatement of the judgment of the trial court. Petitioners primarily argue
that the Court of Appeals erred in disregarding the factual findings and
conclusions of the trial court. They stress that since the action was based on
tort, any finding of negligence on the part of the private respondents would
necessarily negate their claim for damages, where said negligence was the
proximate cause of the injury sustained. The injury in the instant case was the
death of ZHIENETH. The proximate cause was ZHIENETHs act of clinging to
the counter. This act in turn caused the counter to fall on her. This and
CRISELDAs contributory negligence, through her failure to provide the proper
care and attention to her child while inside the store, nullified private
respondents claim for damages. It is also for these reasons that parents are
made accountable for the damage or injury inflicted on others by their minor
children. Under these circumstances, petitioners could not be held responsible
for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already
separated from Syvels at the time he testified; hence, his testimony might have
been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments
that neither ZHIENETH nor CRISELDA was negligent at any time while inside
the store; the findings and conclusions of the Court of Appeals are
substantiated by the evidence on record; the testimony of Gonzales, who heard
ZHIENETH comment on the incident while she was in the hospitals emergency
room should receive credence; and finally, ZHIENETHs part of the res
gestae declaration that she did nothing to cause the heavy structure to fall on
her should be considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH
was accidental or attributable to negligence; and (2) in case of a finding of
negligence, whether the same was attributable to private respondents for
maintaining a defective counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant.[15] It is a fortuitous circumstance, event
or happening; an event happening without any human agency, or if happening
wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens. [16]
On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent
and reasonable man would not do.[17] Negligence is the failure to observe, for
the protection of the interest of another person, that degree of care, precaution
and vigilance which the circumstances justly demand, whereby such other
person suffers injury.[18]
Accident and negligence are intrinsically contradictory; one cannot exist
with the other. Accident occurs when the person concerned is exercising
ordinary care, which is not caused by fault of any person and which could not
have been prevented by any means suggested by common prudence. [19]
The test in determining the existence of negligence is enunciated in the
landmark case of Picart v. Smith,[20] thus: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty
of negligence.[21]
26
 We rule that the tragedy which befell ZHIENETH was no accident and
that ZHIENETHs death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of
the incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while
the child was being treated?
A At the emergency room we were all surrounding the child. And when the
doctor asked the child what did you do, the child said nothing, I did not
come near the counter and the counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako lumapit doon. Basta
bumagsak.[22]
This testimony of Gonzales pertaining to ZHIENETHs statement formed
(and should be admitted as) part of the res gestae under Section 42, Rule 130
of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions.[23] All that is required for their admissibility as part of the res
gestae is that they be made or uttered under the influence of a startling event
before the declarant had the time to think and concoct a falsehood as witnessed
by the person who testified in court. Under the circumstances thus described,
it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain,
to have lied to a doctor whom she trusted with her life. We therefore accord
credence to Gonzales testimony on the matter, i.e., ZHIENETH performed no
act that facilitated her tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable the counters base.
Gonzales earlier testimony on petitioners insistence to keep and maintain
the structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you
please describe the gift wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that counter
and since it is not nailed and it was only standing on the floor, it was shaky.
xxx
Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon
on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the
verification counter. And since the top of it was heavy and considering
that it was not nailed, it can collapse at anytime, since the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr.
Maat is fond of putting display decorations on tables, he even told me
that I would put some decorations. But since I told him that it
not [sic] nailed and it is shaky he told me better inform also the
company about it. And since the company did not do anything about
the counter, so I also did not do anything about the
counter.[24] [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony
of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter where
you were assigned in January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to
carry that counter to another place. I told him that the counter needs
nailing and it has to be nailed because it might cause injury or accident
to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on
February 12, 1983, will you please describe that to the honorable
Court?
27
 A I told her that the counter wrapper [sic] is really in good [sic] condition; it
was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the
counter was shaky?
A She told me Why do you have to teach me. You are only my subordinate
and you are to teach me? And she even got angry at me when I told
her that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo
or any employee of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter after
the accident happened.[25] [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet, neither
initiated any concrete action to remedy the situation nor ensure the safety of
the stores employees and patrons as a reasonable and ordinary prudent man
would have done. Thus, as confronted by the situation petitioners miserably
failed to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed
to establish that the formers testimonies were biased and tainted with
partiality. Therefore, the allegation that Gonzales and Guevarras testimonies
were blemished by ill feelings against petitioners since they (Gonzales and
Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved scant
consideration.
It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and observing the
deportment of the witnesses.[26] However, the rule admits of exceptions such
as when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could
affect the result of the case.[27] In the instant case, petitioners failed to bring
their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that they are
incapable of contributory negligence. In his book,[28] former Judge Cezar S.
Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed
to have acted without discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like exemption from criminal
liability obtains in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since negligence may
be a felony and a quasi-delict and required discernment as a condition of
liability, either criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the presumption
of lack of discernment or incapacity for negligence in the case of a child over
nine but under fifteen years of age is a rebuttable one, under our law. The rule,
therefore, is that a child under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume
that she climbed over the counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and sturdy. For if that was the
truth, a frail six-year old could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court and Court of Appeals and
a scrutiny of the evidence[29]on record reveal otherwise, i.e., it was not durable
after all. Shaped like an inverted L, the counter was heavy, huge, and its top
laden with formica. It protruded towards the customer waiting area and its base
was not secured.[30]
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to the
latters hand.[31] CRISELDA momentarily released the childs hand from her
clutch when she signed her credit card slip. At this precise moment, it was
reasonable and usual for CRISELDA to let go of her child. Further, at the time
ZHIENETH was pinned down by the counter, she was just a foot away from her
mother; and the gift-wrapping counter was just four meters away from
CRISELDA.[32] The time and distance were both significant. ZHIENETH was
near her mother and did not loiter as petitioners would want to impress upon
us. She even admitted to the doctor who treated her at the hospital that she did
not do anything; the counter just fell on her.
WHEREFORE petition is DENIED and the challenged decision of the Court of Appeals of 17
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED Costs against petitione
28
 respondent Aquino alone continued digging while the pupils remained inside the pit
G.R. No. L-33722 July 29, 1988 throwing out the loose soil that was brought about by the digging.

FEDERICO YLARDE and ADELAIDA DORONIO petitioners, When the depth was right enough to accommodate the concrete block, private
vs. respondent Aquino and his four pupils got out of the hole. Then, said private
EDGARDO AQUINO, MAURO SORIANO and COURT OF respondent left the children to level the loose soil around the open hole while he
APPEALS, respondents. went to see Banez who was about thirty meters away. Private respondent wanted to
borrow from Banez the key to the school workroom where he could get some rope.
Buenaventura C. Evangelista for petitioners. Before leaving. , private respondent Aquino allegedly told the children "not to touch
the stone."
Modesto V. Cabanela for respondent Edgardo Aquino.
A few minutes after private respondent Aquino left, three of the four kids, Alonso,
Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all,
Manuel P. Pastor for respondent Mauro Soriano. the remaining Abaga jumped on top of the concrete block causing it to slide down
towards the opening. Alonso and Alcantara were able to scramble out of the
excavation on time but unfortunately fo Ylarde, the concrete block caught him before
GANCAYCO, J.: he could get out, pinning him to the wall in a standing position. As a result thereof,
Ylarde sustained the following injuries:
In this petition for review on certiorari seeking the reversal of the decision of the
Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. 1. Contusion with hematoma, left inguinal region and suprapubic
Edgardo Aquino, et al.," a case which originated from the Court of First Instance of region.
Pangasinan, We are again caned upon determine the responsibility of the principals
and teachers towards their students or pupils. 2. Contusion with ecchymosis entire scrotal region.

In 1963, private respondent Mariano Soriano was the principal of the Gabaldon 3. Lacerated wound, left lateral aspect of penile skin with phimosis
Primary School, a public educational institution located in Tayug, Pangasinan-
Private respondent Edgardo Aquino was a teacher therein. At that time, the school
was fittered with several concrete blocks which were remnants of the old school shop 4. Abrasion, gluteal region, bilateral.
that was destroyed in World War II. Realizing that the huge stones were serious
hazards to the schoolchildren, another teacher by the name of Sergio Banez started 5. Intraperitoneal and extrapertitoneal extravasation of blood and
burying them one by one as early as 1962. In fact, he was able to bury ten of these urine about 2 liters.
blocks all by himself.
6. Fracture, simple, symphesis pubis
Deciding to help his colleague, private respondent Edgardo Aquino gathered
eighteen of his male pupils, aged ten to eleven, after class dismissal on October 7, 7. Ruptured (macerated) urinary bladder with body of bladder
1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton almost entirely separated from its neck.
concrete block in order to make a hole wherein the stone can be buried. The work
was left unfinished. The following day, also after classes, private respondent Aquino
called four of the original eighteen pupils to continue the digging. These four pupils REMARKS:
— Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug
until the excavation was one meter and forty centimeters deep. At this point, private 1. Above were incurred by crushing injury.

29
 2. Prognosis very poor.uty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both private
respondents Aquino and Soriano. The lower court dismissed the complaint on the
following grounds: (1) that the digging done by the pupils is in line with their course
called Work Education; (2) that Aquino exercised the utmost diligence of a very
cautious person; and (3) that the demise of Ylarde was due to his own reckless
imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of
the Civil Code for his alleged negligence that caused their son's death while the
complaint against respondent Soriano as the head of school is founded on Article
2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre- existing
contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students or
apprentices, so long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions, both private
respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the death
of the child Ylarde, he being the head of an academic school and not a school of arts
and trades. This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein
this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code,
it is only the teacher and not the head of an academic school who should be
answerable for torts committed by their students. This Court went on to say that in a
school of arts and trades, it is only the head of the school who can be held liable. In
the same case, We explained:
After an exhaustive examination of the problem, the Court has
come to the conclusion that the provision in question should apply
to all schools, academic as well as non-academic. Where the
school is academic rather than technical or vocational in nature,
responsibility for the tort committed by the student will attach to
the teacher in charge of such student, following the first part of the
provision. This is the general rule. In the case of establishments
of arts and trades, it is the head thereof, and only he, who shall be
held liable as an exception to the general rule. In other words,
teachers in general shall be liable for the acts of their students
except where the school is technical in nature, in which case it is
the head thereof who shall be answerable. Following the canon
of reddendo singula sinquilis 'teachers' should apply to the words
"pupils and students' and 'heads of establishments of arts and
trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent
Soriano, as principal, cannot be held liable for the reason that the school he heads
is an academic school and not a school of arts and trades. Besides, as clearly
admitted by private respondent Aquino, private respondent Soriano did not give any
instruction regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held
liable under Article 2180 of the Civil Code as the teacher-in-charge of the children
for being negligent in his supervision over them and his failure to take the necessary
precautions to prevent any injury on their persons. However, as earlier pointed out,
petitioners base the alleged liability of private respondent Aquino on Article 2176
which is separate and distinct from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there acts and
omissions on the part of private respondent Aquino amounting to fault or negligence
which have direct causal relation to the death of his pupil Ylarde? Our answer is in
the affirmative. He is liable for damages.
30
From a review of the record of this case, it is very clear that private respondent
Aquino acted with fault and gross negligence when he: (1) failed to avail himself of
services of adult manual laborers and instead utilized his pupils aged ten to eleven
to make an excavation near the one-ton concrete stone which he knew to be a very
hazardous task; (2) required the children to remain inside the pit even after they had
finished digging, knowing that the huge block was lying nearby and could be easily
pushed or kicked aside by any pupil who by chance may go to the perilous area; (3)
ordered them to level the soil around the excavation when it was so apparent that
the huge stone was at the brink of falling; (4) went to a place where he would not be
able to check on the children's safety; and (5) left the children close to the
excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a
dangerous site has a direct causal connection to the death of the child Ylarde. Left
by themselves, it was but natural for the children to play around. Tired from the
strenuous digging, they just had to amuse themselves with whatever they found.
Driven by their playful and adventurous instincts and not knowing the risk they were
facing three of them jumped into the hole while the other one jumped on the stone.
Since the stone was so heavy and the soil was loose from the digging, it was also a
natural consequence that the stone would fall into the hole beside it, causing injury
on the unfortunate child caught by its heavy weight. Everything that occurred was
the natural and probable effect of the negligent acts of private respondent Aquino.
Needless to say, the child Ylarde would not have died were it not for the unsafe
situation created by private respondent Aquino which exposed the lives of all the
pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries which resulted
in the death of the child Ylarde were caused by his own reckless imprudence, It
should be remembered that he was only ten years old at the time of the incident, As
such, he is expected to be playful and daring. His actuations were natural to a boy
his age. Going back to the facts, it was not only him but the three of them who jumped
into the hole while the remaining boy jumped on the block. From this, it is clear that
he only did what any other ten-year old child would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not
consider his age and maturity. This should not be the case. The degree of care
required to be exercised must vary with the capacity of the person endangered to
care for himself. A minor should not be held to the same degree of care as an adult,
but his conduct should be judged according to the average conduct of persons of his
age and experience. 5 The standard of conduct to which a child must conform for his
own protection is that degree of care ordinarily exercised by children of the same
age, capacity, discretion, knowledge and experience under the same or similar
circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with
reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of
their Work Education. A single glance at the picture showing the excavation and the
huge concrete block 7 would reveal a dangerous site requiring the attendance of
strong, mature laborers and not ten-year old grade-four pupils. We cannot
comprehend why the lower court saw it otherwise when private respondent Aquino
himself admitted that there were no instructions from the principal requiring what the
pupils were told to do. Nor was there any showing that it was included in the lesson
plan for their Work Education. Even the Court of Appeals made mention of the fact
that respondent Aquino decided all by himself to help his co-teacher Banez bury the
concrete remnants of the old school shop. 8 Furthermore, the excavation should not
be placed in the category of school gardening, planting trees, and the like as these
undertakings do not expose the children to any risk that could result in death or
physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of a
very cautious person is certainly without cogent basis. A reasonably prudent person
would have foreseen that bringing children to an excavation site, and more so,
leaving them there all by themselves, may result in an accident. An ordinarily careful
human being would not assume that a simple warning "not to touch the stone" is
sufficient to cast away all the serious danger that a huge concrete block adjacent to
an excavation would present to the children. Moreover, a teacher who stands in loco
parentis to his pupils would have made sure that the children are protected from all
harm in his company.
We close by categorically stating that a truly careful and cautious person would have
acted in all contrast to the way private respondent Aquino did. Were it not for his
gross negligence, the unfortunate incident would not have occurred and the child
Ylarde would probably be alive today, a grown- man of thirty-five. Due to his failure
to take the necessary precautions to avoid the hazard, Ylarde's parents suffered
great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the
questioned judgment of the respondent court is REVERSED and SET ASIDE and
another judgment is hereby rendered ordering private respondent Edagardo Aquino
to pay petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
31

G.R. No. L-32611 November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice,
Fish & Electric Co., Inc., for the purpose of recovering from the Philippine Motors
Corporation the sum of P11,350, with interest and costs. Upon hearing the cause
the trial court gave judgment in favor of the plaintiff to recover of the defendant the
sum of P9,850, with interest at 6 per centum per annum from March 24,1927, the
date of the filing of the complaint, until satisfaction of the judgment, with costs. From
this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident
with which we are here concerned, H.D. Cranston was the representative of the
plaintiff in the City of Manila. At the same time the plaintiff was the registered owner
of the motor schooner Gwendoline, which was used in the fishing trade in the
Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the
engine on the Gwendoline changed from a gasoline consumer to a crude oil burner,
expecting thereby to effect economy in the cost of running the boat. He therefore
made known his desire to McLeod & Co., a firm dealing in tractors, and was told by
Mc Kellar, of said company, that he might make inquiries of the Philippine Motors
Corporations, which had its office on Ongpin Street, in the City of Manila. Cranston
accordingly repaired to the office of the Philippine Motors Corporation and had a
conference with C.E. Quest, its manager, who agreed to do the job, with the
understanding that payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an
automobile agency, but, under its charter, it had authority to deal in all sorts of
machinery engines and motors, as well as to build, operate, buy and sell the same
and the equipment therof. Quest, as general manager, had full charge of the
corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited
the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting
the change in the engine was begun and conducted under the supervision of Quest,
chiefly by a mechanic whom Quest took with him to the boat. In this work Quest had
the assistance of the members of the crew of the Gwendoline, who had been
directed by Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the
principal thing necessary to accomplish the end in view was to install a new
carburetor, and a Zenith carburetor was chosen as the one most adapted to the
purpose. After this appliance had been installed, the engine was tried with gasoline
as a fuel, supplied from the tank already in use. The result of this experiment was
satisfactory. The next problem was to introduce into the carburetor the baser fuel,
consisting of a low grade of oil mixed with distillate. For this purpose a temporary
tank to contain the mixture was placed on deck above and at a short distance from
the compartment covering the engine. This tank was connected with the carburetor
by a piece of tubing, which was apparently not well fitted at the point where it was
connected with the tank. Owing to this fact the fuel mixture leaked from the tank and
dripped sown into the engine compartment. The new fuel line and that already in use
between the gasoline tank and carburetor were so fixed that it was possible to
change from the gasoline fuel to the mixed fuel. The purpose of this arrangement
was to enable the operator to start the engine on gasoline and then, after the engine
had been operating for a few moments, to switch to the new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its connections, it was
observed that the carburetor was flooding, and that the gasoline, or other fuel, was
trickling freely from the lower part to the carburetor to the floor. This fact was called
to Quest's attention, but he appeared to think lightly of the matter and said that, when
the engine had gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken
out into the bay for a trial run at about 5 p.m. or a little later, on the evening of January
30,1925. The first part of the course was covered without any untoward
development, other than he fact that the engine stopped a few times, owing no doubt
to the use of an improper mixture of fuel. In the course of the trial Quest remained
outside of the engine compartment and occupied himself with making distillate, with
a view to ascertaining what proportion of the two elements would give best results
in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near
Cavite, the engine stopped, and connection again had to be made with the gasoline
line to get a new start. After this had been done the mechanic, or engineer, switched
32
to the tube connecting with the new mixture. A moment later a back fire occurred in
the cylinder chamber. This caused a flame to shoot back into the carburetor, and
instantly the carburetor and adjacent parts were covered with a mass of flames,
which the members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape was safely effected,
but the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when
sold, brought only the sum of P150. The value of the boat, before the accident
occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was
chargeable to the negligence and lack of skill of Quest. The temporary tank in which
the mixture was prepared was apparently at too great an elevation from the
carburetor, with the result that when the fuel line was opened, the hydrostatic
pressure in the carburetor was greater than the delicate parts of the carburetor could
sustain. This was no doubt the cause of the flooding of the carburetor; and the result
was that; when the back fire occurred, the external parts of the carburetor, already
saturated with gasoline, burst into flames, whence the fire was quickly
communicated to the highly inflammable material near-by. Ordinarily a back fire from
an engine would not be followed by any disaster, but in this case the leak along the
pipe line and the flooding of the carburetor had created a dangerous situation, which
a prudent mechanic, versed in repairs of this nature, would have taken precautions
to avoid. The back fire may have been due either to the fact that the spark was too
advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as
being competent to do things requiring professional skill, he will be held liable for
negligence if he fails to exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do. The proof shows that Quest had had ample
experience in fixing the engines of automobiles and tractors, but it does not appear
that he was experienced in the doing of similar work on boats. For this reason,
possibly the dripping of the mixture form the tank on deck and the flooding of the
carburetor did not convey to his mind an adequate impression of the danger of fire.
But a person skilled in that particular sort of work would, we think have been
sufficiently warned from those circumstances to cause him to take greater and
adequate precautions against the danger. In other words Quest did not use the skill
that would have been exhibited by one ordinarily expert in repairing gasoline engines
on boats. There was here, in our opinion, on the part of Quest, a blameworthy
antecedent inadvertence to possible harm, and this constitutes negligence. The
burning of the Gwendoline may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It would not have occured but for
Quest's carelessness or lack of skill. The test of liability is not whether the injury was
accidental in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to
lack of skill or negligence in effecting the changes which Quest undertook to
accomplish; and even supposing that our theory as to the exact manner in which the
accident occurred might appear to be in some respects incorrect, yet the origin of
the fire in not so inscrutable as to enable us to say that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had
control of the Gwendoline during the experimental run, the defendant corporation
was in the position of a bailee and that, as a consequence, the burden of proof was
on the defendant to exculpate itself from responsibility by proving that the accident
was not due to the fault of Quest. We are unable to accede to this point of view.
Certainly, Quest was not in charge of the navigation of the boat on this trial run. His
employment contemplated the installation of new parts in the engine only, and it
seems rather strained to hold that the defendant corporation had thereby become
bailee of the boat. As a rule workmen who make repairs on a ship in its owner's yard,
or a mechanic who repairs a coach without taking it to his shop, are not bailees, and
their rights and liabilities are determined by the general rules of law, under their
contract. The true bailee acquires possession and what is usually spoken of as
special property in the chattel bailed. As a consequence of such possession and
special property, the bailee is given a lien for his compensation. These ideas seem
to be incompatible with the situation now under consideration. But though defendant
cannot be held liable in the supposition that the burden of proof had not been
sustained by it in disproving the negligence of its manager, we are nevertheless of
the opinion that the proof shows by a clear preponderance that the accident to
the Gwendolineand the damages resulting therefrom are chargeable to the
negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured,
and after Quest had ceased to be manager of the defendant corporation and had
gone back to the United States. Upon these facts, the defendant bases the
contention that the action should be considered stale. It is sufficient reply to say that
the action was brought within the period limited by the statute of limitations and the
situation is not one where the defense of laches can be properly invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in the
amount of P9,850, with interest, must be affirmed; and it is so ordered, with costs
against the appellant.
Avanceña, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
33
 G.R. No. L-12858 January 22, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco and Lualhati for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This appeal requires a construction and an application, for the first time, of the penal
provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing and the
owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila.
One Feliciano Santos, having some sick horses, presented a copy of a prescription
obtained from Dr. Richardson, and which on other occasions Santos had given to
his horses with good results, at Pineda's drug store for filling. The prescription read
— "clorato de potasa — 120 gramos — en seis papelitos de 20 gramos, para
caballo." Under the supervision of Pineda, the prescription was prepared and
returned to Santos in the form of six papers marked, "Botica Pineda — Clorato
potasa — 120.00 — en seis papeles — para caballo — Sto. Cristo 442, 444,
Binondo, Manila." Santos, under the belief that he had purchased the potassium
chlorate which he had asked for, put two of the packages in water the doses to two
of his sick horses. Another package was mixed with water for another horse, but was
not used. The two horses, to which had been given the preparation, died shortly
afterwards. Santos, thereupon, took the three remaining packages to the Bureau of
Science for examination. Drs. Peña and Darjuan, of the Bureau of Science, on
analysis found that the packages contained not potassium chlorate but barium
chlorate. At the instance of Santos, the two chemists also went to the drug store of
the defendant and bought potassium chlorate, which when analyzed was found to
be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium
chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the
horses, and found that death was the result of poisoning.
Four assignments of error are made. The first is that the lower court erred in
admitting the testimony of the chemist Pena and Darjuan as to their purchase of
potassium chlorate at the drug store of the accused, which substance proved on
analysis to be barium chlorate. What the appellant is here relying on is the maxim res
inter alios acta. As a general rule, the evidence of other offenses committed by a
defendant is inadmissible. But appellant has confused this maxim and this rule with
certain exceptions thereto. The effort is not to convict the accused of a second
offense. Nor is there an attempt to draw the mind away from the point at issue and
thus to prejudice defendant's case. The purpose is to ascertain defendant's
knowledge and intent, and to fix his negligence. If the defendant has on more than
one occasion performed similar acts, accident in good faith is possibly excluded,
negligence is intensified, and fraudulent intent may even be established. It has been
said that there is no better evidence of negligence than the frequency of accidents.
(See 10 R. C. L., pp. 938, 940.) The United States Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of certain
testimony to throw light upon a particular fact, or to explain the conduct of
a particular person, there is a certain discretion on the part of the trial judge
which a court of errors will not interfere with, unless it manifestly appear
that the testimony has no legitimate bearing upon the question at issue,
and is calculated to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence,
either from the nature of the inquiry or the failure of direct proof, objections
to the testimony on the ground of irrelevancy are not favored.
Evidence is admissible in a criminal action which tends to show motive,
although it tends to prove the commission of another offense by the
defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that the
substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was
barium chlorate and not potassium chlorate. The proof demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in finding that
the accused has been proved guilty beyond a reasonable doubt of an infraction of
Act No. 597, section 17, as amended. The third assignment contains the points we
should consider, including, we may remark, a somewhat difficult question concerning
which the briefs have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by Act
Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative
Code. The law provides for a board of pharmaceutical examiners, and the
examination and registration of pharmacists, and finally contains sundry provisions
relative to the practice of pharmacy. High qualification for applicants for the
pharmaceutical; examination are established. The program of subjects for the
examination is wide. Responsibility for the quality of drugs is fixed by section 17 of
34
the Pharmacy Law, as amended (now Administrative Code [1917], section 751), in
the following term:
Every pharmacist shall be responsible for the quality of all drugs,
chemicals, medicines, and poisons he may sell or keep for sale; and it shall
be unlawful for any person whomsoever to manufacture, prepare, sell, or
administer any prescription, drug, chemical, medicine, or poison under any
fraudulent name, direction, or pretense, or to adulterate any drug, chemical,
medicine, or poison so used, sold or offered for sale. Any drug, chemical,
medicine, or poison shall be held to be adulterated or deteriorated within
the meaning of this section if it differs from the standard of quality or purity
given in the United States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal provision:
"Any person violating the provisions of this Act shall, upon conviction, be punished
by a fine of not more than five hundred dollar." The Administrative Code, section
2676, changes the penalty somewhat by providing that:
Any person engaging in the practice of pharmacy in the Philippine Islands
contrary to any provision of the Pharmacy Law or violating any provisions
of said law for which no specific penalty s provided shall, for each offense,
be punished by a fine not to exceed two hundred pesos, or by imprisonment
for not more than ninety days, or both, in the discretion of the court.
These are the provisions of law, pursuant to which prosecution has been initiated
and which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present facts must be
admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible
for the quality of all drugs and poisons which he sells. And finally it is provided that
it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It
is the one word "fraudulent" which has given the court trouble. What did the
Legislature intend to convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant vigorously
insists upon, it would be difficult, if not impossible, to convict any druggist of a
violation of the law. The prosecution would have to prove to a reasonable degree of
certainty that the druggist made a material representation; that it was false; that when
he made it he knew that it was false or made it recklessly without any knowledge of
its truth and as positive assertion; that he made it with the intention that it should be
acted upon by the purchaser; that the purchaser acted in reliance upon it, and that
the purchased thereby suffered injury. Such a construction with a literal following of
well-known principles on the subject of fraud would strip the law of at least much of
its force. It would leave the innocent purchaser of drugs, who must blindly trust in
the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous
vendor. We should not, therefore, without good reason so devitalize the law.
The profession of pharmacy, it has been said again and again, is one demanding
care and skill. The responsibility of the druggist to use care has been variously
qualified as "ordinary care," "care of a special high degree," "the highest degree of
care known to practical men." Even under the first conservative expression, "ordinary
care" with reference to the business of a druggist, the Supreme Court of Connecticut
has said must be held to signify "the highest practicable degree of prudence,
thoughtfulness, and vigilance, and most exact and reliable safeguards consistent
with the reasonable conduct of the business, in order that human life may not be
constantly be exposed to the danger flowing from the substitution of deadly poisons
for harmless medicine." (Tombari vs. Connors [1912], 85 Conn., 235. See also
Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins
[1907], 81 N. E., 600.) The "skill" required of a druggist is denominated as "high" or
"ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.) In other
words, the care required must be commensurate with the danger involved, and the
skill employed must correspond with the superior knowledge of the business which
the law demands.
Under one conception, and it should not be forgotten that the case we consider are
civil in nature, the question of negligence or ignorance is irrelevant. The druggist is
responsible as an absolute guarantor of what he sells. In a decision which stands
alone, the Supreme Court of Kentucky said:
As applicable to the owners of drug stores, or persons engaged in vending
drugs and medicines by retail, the legal maxim should be reversed. Instead
of caveat emptor, it should be caveat venditor. That is to say, let him be
certain that he does not sell to a purchaser or send to a patient one drug
for another, as arsenic for calomel, cantharides for or mixed with snakeroot
and Peruvian bark, or even one innocent drug, calculated to produce a
certain effect, in place of another sent for and designed to produce a
different effect. If he does these things, he cannot escape civil
responsibility, upon the alleged pretext that it was an accidental or an
innocent mistake; that he had been very careful and particular, and had
used extraordinary care and diligence in preparing or compounding the
medicines as required, etc. Such excuses will not avail him. (Fleet vs.
Hollenkemp [1852], 56 Am. Dec., 563.)
35
Under the other conception, in which the proof of negligence is considered as
material, where a customer calls upon a druggist for a harmless remedy, delivery of
a poisonous drug by mistake by the druggist is prima facie negligence, placing the
burden on him to show that the mistake was under the circumstances consistent with
the exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for
example in filling a prescription calling for potassium chlorate give instead to the
customer barium chlorate, a poison, place this poison in a package labeled
"potassium chlorate," and expect to escape responsibility on plea of mistake. His
mistake, under the most favorable aspect for himself, was negligence. So in a case
where a druggist filled an order for calomel tablets with morphine and placed the
morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise probable,
that the act of furnishing the wrong drug in this case was willful. If it was
furnished by the clerk, it was undoubtedly a mistake and unintentional.
However, it was a mistake of the gravest kind, and of the most disastrous
effect. We cannot say that one holding himself out as competent to handle
such drugs, and who does so, having rightful access to them, and relied
upon by those dealing with him to exercise that high degree of caution and
care called for by the peculiarly dangerous nature of this business, can be
heard to say that his mistakes by which he furnishes a customer the most
deadly of drugs for those comparatively harmless is not, in and of itself,
gross negligence, and that of an aggravated form. (Smith's Admrx. vs.
Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of drugs. The
vendor and the vendee do not stand at arms length as in ordinary transactions. An
imperative duty is on the druggist to take precautions to prevent death or serious
injury to anyone who relies on his absolute honesty and peculiar leaning. The nature
of drugs is such that examination would not avail the purchaser anything. It would
be idle mockery for the customer to make an examination of a compound of which
he can know nothing. Consequently, it must be that the druggist warrants that he will
deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately resulting from
his negligence. If B negligently sells poison under the guise of a beneficial drug to
A, he is liable for the injury done to A. In a case, which has repeatedly been termed
the leading case on the subject and which has been followed by the United States
Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell
medicines, if they carelessly label a poison as a harmless medicine, and sent it so
labeled into the market, are liable to all persons who, without fault on their part, are
injured by using it as such medicine, in consequence of the false label; the rule being
that the liability in such a case arises not out of any contract or direct privity between
the wrong-doer and the person injured, but out of the duty which the law imposes on
him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank
vs. Ward [1879], 100 U. S., 195, following Thomas vs. Winchester [1852], 2 Seld.
[N. Y.], 387.) In reality, for the druggist, mistake is negligence and care is no defense.
Throughout the criminal law, run the same rigorous rules. For example, apothecaries
or apothecary clerks, who are guilty of negligence in the sale of medicine when death
ensues in consequence, have been held guilty of manslaughter. (See Tessymond's
Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the care and
skill which are expected of druggist, that in some jurisdictions they are liable even
for their mistake and in others have the burden placed upon them to establish that
they were not negligent, it cannot be that the Philippine Legislature intended to use
the word "fraudulent" in all its strictness. A plea of accident and mistake cannot
excuse for they cannot take place unless there be wanton and criminal carelessness
and neglect. How the misfortune occurs is unimportant, if under all the circumstances
the fact of occurrence is attributed to the druggist as a legal fault. Rather considering
the responsibility for the quality of drugs which the law imposes on druggists and the
position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is
the giving of a false name to the drug asked for. This view is borne out by Spanish
translation, which we are permitted to consult to explain the English text. In the
Spanish "supuesto" is used, and this word is certainly not synonymous with
"fraudulent." The usual badges of fraud, falsify, deception, and injury must be
present-but not scienter.
In view of the tremendous an imminent danger to the public from the careless sale
of poisons and medicines, we do not deem it too rigid a rule to hold that the law
penalizes any druggist who shall sell one drug for another whether it be through
negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of P100,
with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed
with the cost of this instance against the appellant, without prejudice to any civil
action which may be instituted. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, and Street, JJ., concur.
36

MERCURY DRUG G.R. No. 165622
CORPORATION
and AURMELA GANZON, Present:
Petitioners,
YNARES-SANTIAGO, J.,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
Promulgated:
RAUL DE LEON,
Respondent. October 17, 2008
REYES, R.T., J.:
IN REALITY, for the druggist, mistake is negligence and care is no defense. [1] Sa
isang parmasyutika, ang pagkakamali ay kapabayaan at ang pagkalinga ay
hindi angkop na dipensa.
This is a petition for review on certiorari[2] of two Resolutions[3] of the Court of
Appeals (CA). The first Resolution granted respondents motion to dismiss while the
second denied petitioners motion for reconsideration.
The Facts
Respondent Raul T. De Leon was the presiding judge of Branch 258, Regional Trial
Court (RTC) in Paraaque.[4] On October 17, 1999, he noticed that his left eye was
reddish. He also had difficulty reading.[5] On the same evening, he met a friend for
dinner at the Foohyui Restaurant. The same friend happened to be a doctor, Dr.
Charles Milla, and had just arrived from abroad.[6]
Aside from exchanging pleasantries, De Leon consulted Dr. Milla about his
irritated left eye.[7] The latter prescribed the drugs Cortisporin Opthalmic and Ceftin
to relieve his eye problems.[8] Before heading to work the following morning,
De Leon went to the Betterliving, Paraaque, branch of Mercury Drug Store
Corporation to buy the prescribed medicines.[9] He showed his prescription to
petitioner Aurmela Ganzon, a pharmacist assistant. [10] Subsequently, he paid for and
took the medicine handed over by Ganzon.[11]
At his chambers, De Leon requested his sheriff to assist him in using the
eye drops.[12] As instructed, the sheriff applied 2-3 drops on respondents left
eye.[13] Instead of relieving his irritation, respondent felt searing pain. [14] He
immediately rinsed the affected eye with water, but the pain did not subside. [15] Only
then did he discover that he was given the wrong medicine, Cortisporin Otic
Solution.[16]
De Leon returned to the same Mercury Drug branch, with his left eye still
red and teary.[17] When he confronted Ganzon why he was given ear drops, instead
of the prescribed eye drops,[18] she did not apologize and instead brazenly replied
that she was unable to fully read the prescription. [19] In fact, it was her supervisor
who apologized and informed De Leon that they do not have stock of the needed
Cortisporin Opthalmic.[20]
De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the
days incident.[21] It did not merit any response.[22] Instead, two sales persons went to
his office and informed him that their supervisor was busy with other
matters.[23] Having been denied his simple desire for a written apology and
explanation,[24] De Leon filed a complaint for damages against Mercury Drug.[25]
Mercury Drug denied that it was negligent and therefore liable for damages. [26] It
pointed out that the proximate cause of De Leons unfortunate experience was his
own negligence.[27] He should have first read and checked to see if he had the right
eye solution before he used any on his eye. [28] He could have also requested his
sheriff to do the same before the latter applied the medicine on such a delicate part
of his body.[29]
Also, Mercury Drug explained that there is no available medicine known as
Cortisporin Opthalmic in the Philippine market. [30] Furthermore, what was written on
the piece of paper De Leon presented to Ganzon was Cortisporin
Solution.[31]Accordingly, she gave him the only available Cortisporin Solution in the
market.
Moreover, even the piece of paper De Leon presented upon buying the
medicine can not be considered as proper prescription. [32] It lacked the required
information concerning the attending doctors name and license
number.[33] According to Ganzon, she entertained De Leons purchase request only
because he was a regular customer of their branch.[34]
RTC Disposition
On April 30, 2003, the RTC rendered judgment in favor of respondent, the
dispositive portion of which reads:
37
 WHEREFORE, the court finds for the plaintiff.
For pecuniary loss suffered, Mercury Drug Store is to
pay ONE HUNDRED FIFTY-THREE PESOS AND TWENTY-
FIVE CENTAVOS (Php 153.25), the value of the medicine.
As moral damages defendants is (sic) ordered to
pay ONE HUNDRED THOUSAND PESOS (Php 100,000.00).
To serve as a warning to those in the field of dispensing
medicinal drugs discretion of the highest degree is expected of
them, Mercury Drug Store and defendant Aurmila (sic) Ganzon
are ordered to pay plaintiff the amount of THREE HUNDRED
THOUSAND PESOS (Php 300,000.00) as exemplary damages.
Due to defendants callous reaction to the mistake done
by their employee which forced plaintiff to litigate, Defendant (sic)
Mercury Drug Store is to pay plaintiff attorneys fees of P50,000.00
plus litigation expenses.
SO ORDERED.[35]
In ruling in favor of De Leon, the RTC ratiocinated:
The proximate cause of the ill fate of plaintiff was defendant
Aurmila (sic) Ganzons negligent exercise of said discretion. She
gave a prescription drug to a customer who did not have the
proper form of prescription, she did not take a good look at said
prescription, she merely presumed plaintiff was looking for
Cortisporin Otic Solution because it was the only one available in
the market and she further presumed that by merely putting the
drug by the counter wherein plaintiff looked at it, paid and took the
drug without any objection meant he understood what he was
buying.[36]
The RTC ruled that although De Leon may have been negligent by failing to read
the medicines label or to instruct his sheriff to do so, Mercury Drug was first to be
negligent.[37] Ganzon dispensed a drug without the requisite
prescription.[38]Moreover, she did so without fully reading what medicine was exactly
being bought.[39] In fact, she presumed that since what was available was the drug
Cortisporin Otic Solution, it was what De Leon was attempting to buy. [40] Said the
court:
When the injury is caused by the negligence of a servant
or employee, there instantly arises a presumption of law that there
was negligence on the part of the employer or employer either in
the selection of the servant or employee, or in the supervision over
him after the selection or both.
xxxx
The theory bases the responsibility of the master
ultimately on his own negligence and not on that of his servant.[41]
Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated the
matter to the CA. Accordingly, they filed their respective briefs. Raising technical
grounds, De Leon moved for the appeals dismissal.
CA Disposition
On July 4, 2008, the CA issued a resolution which granted De Leons
motion and dismissed the appeal. Said the appellate court:
As pointed out by the plaintiff-appellee, the Statement of
Facts, Statement of the Case, Assignment of Errors/issues,
Arguments/ Discussions in the Brief make no references to the
pages of the records. We find this procedural lapse justify the
dismissal of the appeal, pursuant to Section 1(f), Rule 50 of the
1997 Rules of Civil Procedure x x x.[42]
xxxx
The premise that underlies all appeals
is that they are merely rights which arise form a
statute; therefore, they must be exercised in the
manner prescribed by law. It is to this end that
rules governing pleadings and practice before
the appellate court were imposed. These rules
were designed to assist the appellate court in
the accomplishment of its tasks, and overall, to
enhance the orderly administration of justice.
xxxx
38
 x x x If the statement of fact is unaccompanied by a page
reference to the record, it may be stricken or disregarded all
together.[43]
On October 5, 2004, the CA denied Mercury Drugs and Ganzons joint motion for
reconsideration. Although mindful that litigation is not a game of technicalities,[44] the
CA found no persuasive reasons to relax procedural rules in favor of Mercury Drug
and Ganzon.[45] The CA opined:
In the case under consideration, We find no faithful compliance on
the part of the movants that will call for the liberal application of
the Rules. Section 1(f) of Rule 50 of the 1997 Rules of Civil
Procedure explicitly provides that an appeal may be dismissed by
the Court of Appeals, on its own motion or on that of the appellee,
for want of page references to the records as required in Section
13 of Rule 44 of the same rules[46]
Issues
Petitioner has resorted to the present recourse and assigns to the CA the
following errors:
I proper conclusion of the case.[54] However, as earlier discussed, such dismissal is
THE HONORABLE COURT OF APPEALS ERRED IN
DISMISSING PETITIONERS APPEAL BASED ON THE CASES
OF DE LIANA VS. CA (370 SCRA 349) AND HEIRS OF
PALOMINIQUE VS. CA (134 SCRA 331).
II
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF DISCRETION IN DISMISSING PETITIONERS
APPEAL DESPITE SUBSTANTIAL COMPLIANCE WITH
SECTION 1(F), RULE 60 AND SECTION 13, RULE 44 OF THE
RULES OF COURT.
III
THE HONORABLE COURT OF APPEALS ERRED WHEN IT
FAVORED MERE TECHNICALITY OVER SUBSTANTIAL
JUSTICE WHICH WILL CERTAINLY CAUSE GRAVE
INJUSTICE AND GREAT PREJUDICE TO PETITIONER
CONSIDERING THAT THE ASSAILED DECISION ON APPEAL
IS CLUSTERED WITH ERRORS AND IN CONTRAST WITH
THE DECISIONS OF THIS HONORABLE SUPREME
COURT.[47] (Underscoring supplied)
Our Ruling
The appeal succeeds in part.
Dismissal of an appeal under Rule 50 is discretionary.
In several cases,[48] this Court stressed that the grounds for dismissal of an
appeal under Section 1 of Rule 50[49] are discretionary upon the appellate court. The
very wording of the rule uses the word may instead of shall. This indicates that it is
only directory and not mandatory.[50] Sound discretion must be exercised in
consonance with the tenets of justice and fair play, keeping in mind the
circumstances obtaining in each case.[51]
The importance of an appellants brief cannot be gainsaid. Its purpose is two-fold: (1)
to present to the court in coherent and concise form the point and questions in
controversy; and (2) to assist the court in arriving at a just and proper conclusion.[52] It
is considered a vehicle of counsel to convey to the court the essential facts of a
clients case, a statement of the questions of law involved, the law to be applied, and
the application one desires of it by the court.[53]
The absence of page reference to the record is a ground for dismissal. It is a
requirement intended to ultimately aid the appellate court in arriving at a just and
not mandatory, but discretionary on the part of the appellate court.
This Court has held that the failure to properly cite reference to the
original records is not a fatal procedural lapse.[55] When citations found in the
appellants brief enable the court to expeditiously locate the portions of the
record referred to, there is substantial compliance with the requirements of
Section 13(c), (d), and (f) of Rule 44.[56]
In De Leon v. CA,[57] this Court ruled that the citations contained in the
appellants brief sufficiently enabled the appellate court to expeditiously locate the
portions of the record referred to. They were in substantial compliance with the
rules. The Court said:
Nothing in the records indicate that it was exercised
capriciously, whimsically, or with a view of permitting injury upon
a party litigant. For the same reasons, we hold that the respondent
Court of Appeals did not err when it did not dismiss the appeal
based on the allegation that appellants brief failed to comply with
the internal rules of said court.[58]
39
 Similar to the instant case, the appellants brief in Yuchengco v. Court of
Appeals[59] contained references to Exhibits and Transcript of Stenographic Notes
and attachments. These were found to have substantially complied with the
requirements of Section 13(c) and (d) of Rule 44.
x x x The Appellants brief may not have referred to the exact
pages of the records, however, the same is not fatal to their cause
since the references they made enabled the appellate court to
expeditiously locate the portions referred to. x x x[60]
It is true that in De Liano v. Court of Appeals,[61] this Court held that a statement of
facts unaccompanied by a page reference to the record may be presumed to be
without support in the record and may be stricken or disregarded
altogether. However, the instant case is not on all fours with De Liano.
In De Liano, the appellants brief lacked a Subject Index and a Table of
Cases and Authorities.[62] Moreover, the Statement of the Case, Statements of
Facts, and Statements of Arguments had no page references to the record. [63] When
notified of such defects, defendants-appellants failed to amend their brief to conform
to the rules.[64] Instead, they continued to argue that their errors were harmless.[65] All
these omissions and non-compliance justified the dismissal of the appeal by the
CA.[66]
In the case under review, although there were no page references to the
records, Mercury Drug and Ganzon referred to the exhibits, TSN, and attachments
of the case. Despite its deficiencies, the brief is sufficient in form and substance as
to apprise the appellate court of the essential facts, nature of the case, the issues
raised, and the laws necessary for the disposition of the same.
Reliance on Heirs of Palomique v. Court of Appeals[67]
is likewise
misplaced. In Heirs of Palomique, the appellants brief did not at all contain a
separate statement of facts.[68] This critical omission, together with the failure to
make page references to the record to support the factual allegations, justified the
dismissal of the appeal.[69]
Rules of procedure are intended to promote, not to defeat, substantial
justice. They should not be applied in a very rigid and technical sense. [70] For
reasons of justice and equity, this Court has allowed exceptions to the stringent rules
governing appeals.[71] It has, in the past, refused to sacrifice justice for
technicality.[72]
However, brushing aside technicalities, petitioners are still liable. Mercury
Drug and Ganzon failed to exercise the highest degree of diligence expected
of them.
Denying that they were negligent, Mercury Drug and Ganzon pointed out
that De Leons own negligence was the proximate cause of his injury. They argued
that any injury would have been averted had De Leon exercised due diligence before
applying the medicine on his eye. Had he cautiously read the medicine bottle label,
he would have known that he had the wrong medicine.
Mercury Drug and Ganzon can not exculpate themselves from any
liability. As active players in the field of dispensing medicines to the public, the
highest degree of care and diligence is expected of them. [73] Likewise, numerous
decisions, both here and abroad, have laid salutary rules for the protection of human
life and human health.[74] In the United States case of Tombari v. Conners,[75] it was
ruled that the profession of pharmacy demands care and skill, and druggists must
exercise care of a specially high degree, the highest degree of care known to
practical men. In other words, druggists must exercise the highest practicable
degree of prudence and vigilance, and the most exact and reliable safeguards
consistent with the reasonable conduct of the business, so that human life may not
constantly be exposed to the danger flowing from the substitution of deadly poisons
for harmless medicines.[76]
In Fleet v. Hollenkemp,[77] the US Supreme Court ruled that a druggist that
sells to a purchaser or sends to a patient one drug for another or even one innocent
drug, calculated to produce a certain effect, in place of another sent for and designed
to produce a different effect, cannot escape responsibility, upon the alleged pretext
that it was an accidental or innocent mistake. His mistake, under the most favorable
aspect for himself, is negligence. And such mistake cannot be countenanced or
tolerated, as it is a mistake of the gravest kind and of the most disastrous effect. [78]
Smiths Admrx v. Middelton[79] teaches Us that one holding himself out as
competent to handle drugs, having rightful access to them, and relied upon by those
dealing with him to exercise that high degree of caution and care called for by the
peculiarly dangerous nature of the business, cannot be heard to say that his mistake
by which he furnishes a customer the most deadly of drugs for those comparatively
harmless, is not in itself gross negligence.[80]
In our own jurisdiction, United States v. Pineda[81] and Mercury Drug
Corporation v. Baking are illustrative.[82] In Pineda, the potassium chlorate
demanded by complainant had been intended for his race horses. When
complainant mixed with water what he thought and believed was potassium chlorate,
but which turned out to be the potently deadly barium chlorate, his race horses died
of poisoning only a few hours after.
40
 The wisdom of such a decision is unquestionable. If the victims had been
human beings instead of horses, the damage and loss would have been
irreparable.[83]
In the more recent Mercury Drug, involving no less than the same petitioner
corporation, Sebastian Baking went to the Alabang branch of Mercury Drug [84] and
presented his prescription for Diamicron, which the pharmacist misread as
Dormicum.[85]Baking was given a potent sleeping tablet, instead of medicines to
stabilize his blood sugar.[86] On the third day of taking the wrong medicine, Baking
figured in a vehicular accident.[87] He fell asleep while driving.[88]
This Court held that the proximate cause of the accident was the gross negligence
of the pharmacist who gave the wrong medicine to Baking. The Court said:
x x x Considering that a fatal mistake could be a matter
of life and death for a buying patient, the said employee should
have been very cautious in dispensing medicines. She should
have verified whether the medicine she gave respondent was
indeed the one prescribed by his physician. The care required
must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the
business which the law demands.[89]
This Court once more reiterated that the profession of pharmacy demands
great care and skill. It reminded druggists to exercise the highest degree of care
known to practical men.
In cases where an injury is caused by the negligence of an employee, there
instantly arises a presumption of law that there has been negligence on the
part of the employer, either in the selection or supervision of ones
employees. This presumption may be rebutted by a clear showing that the
employer has exercised the care and diligence of a good father of the
family.[90] Mercury Drug failed to overcome such presumption.[91]
Petitioners Mercury Drug and Ganzon have similarly failed to live up to high
standard of diligence expected of them as pharmacy professionals. They were
grossly negligent in dispensing ear drops instead of the prescribed eye drops to
De Leon. Worse, they have once again attempted to shift the blame to their victim
by underscoring his own failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury
Drug and its employees in dispensing to him the right medicine. [92] This Court has
ruled that in the purchase and sale of drugs, the buyer and seller do not stand at
arms length.[93] There exists an imperative duty on the seller or the druggist to take
precaution to prevent death or injury to any person who relies on ones absolute
honesty and peculiar learning.[94] The Court emphasized:
x x x The nature of drugs is such that examination would
not avail the purchaser anything. It would be idle mockery for the
customer to make an examination of a compound of which he can
know nothing. Consequently, it must be that the druggist warrants
that he will deliver the drug called for.[95]
Mercury Drug and Ganzons defense that the latter gave the only available
Cortisporin solution in the market deserves scant consideration. Ganzon could have
easily verified whether the medicine she gave De Leon was, indeed, the prescribed
one or, at the very least, consulted her supervisor. Absent the required certainty in
the dispensation of the medicine, she could have refused De Leons purchase of the
drug.
The award of damages is proper and shall only be reduced considering the
peculiar facts of the case. 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
defendants wrongful act or omission.[96]
Moral damages are not intended to impose a penalty to the wrongdoer or to enrich
the claimant at the expense of defendant. [97] There is no hard and fast rule in
determining what would be a fair and reasonable amount of moral damages since
each case must be governed by its peculiar circumstances. [98] However, the award
of damages must be commensurate to the loss or injury suffered. [99]
Taking into consideration the attending facts of the case under review, We
find the amount awarded by the trial court to be excessive. Following the precedent
case of Mercury Drug, We reduce the amount from P100,000.00 to P50,000.00
only.[100] In addition, We also deem it necessary to reduce the award of exemplary
damages from the exorbitant amount of P300,000.00 to P25,000.00 only.
This Court explained the propriety of awarding exemplary damages in the
earlier Mercury Drug case:
x x x Article 2229 allows the grant of exemplary damages
by way of example or correction for the public good. As mentioned
earlier, the drugstore business is affected by public
interest. Petitioner should have exerted utmost diligence in the
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 selection and supervision of its employees. On the part of the
employee concerned, she should have been extremely cautious
in dispensing pharmaceutical products. Due to the sensitive
nature of its business, petitioner must at all times maintain a high
level of meticulousness. Therefore, an award of exemplary
damages in the amount of P25,000.00 is in order.[101] (Emphasis
supplied)

It is generally recognized that the drugstore business is imbued with public

interest. This can not be more real for Mercury Drug, the countrys biggest drugstore
chain. This Court can not tolerate any form of negligence which can jeopardize the
health and safety of its loyal patrons. Moreover, this Court will not countenance the
cavalier manner it treated De Leon. Not only does a pharmacy owe a customer the
duty of reasonable care, but it is also duty-bound to accord one with respect.

WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions of

the CA and the RTC in Paraaque City are AFFIRMED WITH MODIFICATION, in
that the award of moral and exemplary damages is reduced to P50,000.00
and P25,000.00, respectively.

SO ORDER
RUBEN T. REYES

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