G.R. No. L-21438 September 28, 1966 result.
66 result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
 the prosecution without taking into consideration or even mentioning the appellant's side in the controversy as
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by
way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between
first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the
legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs
of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March
30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to
plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff
travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first
class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white
man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the
plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead
body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got
nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white
man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white
man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the
plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate
court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the
statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts
and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete
findings of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely
insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of
justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the
other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts"
which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws the
essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may
!1
no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to
specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not
sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this
setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for
shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the
testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the
court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that
official duty has been regularly performed, and that all the matters within an issue in a case were laid before the
court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16
They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law,
upon the other hand, has been declared as "one which does not call for an examination of the probative value of
the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter
the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support
its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties;
that said respondent knew that he did not have confirmed reservations for first class on any specific flight,
although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that
he would have a first class ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in
the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of business that the company should know whether or
riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although
plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in
Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation
whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a
"first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would
be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded
on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all
other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court.
24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First
Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions
that might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the
decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with
those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from
those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact
that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the
hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided
by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the
contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document
speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the
relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here.
The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class
seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do
we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office in
Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was
he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to
the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize an award for moral damages there must be an
averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith.
The pivotal allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract,
plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during
the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return
trip to Manila, ... .
!2
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant
furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class
accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's
employees to leave the First Class accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from
Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff
suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious
anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of
P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already,
seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and
humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation,
resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But,
the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The
contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful
expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted
by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the
contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in
the complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even
required. 36 On the question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant
Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his
will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the
corresponding entry made by the purser of the plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane
who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is
noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could
have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure
his disposition; but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken,
surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to
the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of
ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that
this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when
asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is
confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the
Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat
occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any right
on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he paid and
was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have
easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of Court];
and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant
airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give
up his "first class" seat because the said Manager wanted to accommodate, using the words of the witness Ernesto
G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected
him from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give
way to another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of
course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a
"state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for
ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court
of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the
aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in
the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he was
occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's
Manager) wished to accommodate, and the defendant has not proven that this "white man" had any "better right"
to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding
"first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in
law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of
the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43
And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage,
!3
therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees
with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal
misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against
the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection, though the language used was not insulting and she was
not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a
passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point
where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay
the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South
Carolina there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier —
a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one of the flight attendants
approached me and requested from me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I
also said, "You are not going to note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up
and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in
my notebook." He read it and translated it to me — because it was recorded in French — "First class passenger
was forced to go to the tourist class against his will, and that the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best evidence would be the notes.
Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading
"First class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so.
The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the
proscription of the best evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in
this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and
mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook
was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed.
52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been
an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry
was made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary
damages — in contracts and quasi- contracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as it
was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The
task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the
same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.

!4
G.R. No. L-48930 February 23, 1944
ANTONIO VAZQUEZ, petitioner,
vs.
FRANCISCO DE BORJA, respondent.
x---------------------------------------------------------x
G.R. No. L-48931 February 23, 1944
FRANCISCO DE BORJA, petitioner,
vs.
ANTONIO VAZQUEZ, respondent.
OZAETA, J.:
This action was commenced in the Court of First Instance of Manila by Francisco de Borja against Antonio
Vazquez and Fernando Busuego to recover from them jointly and severally the total sum of P4,702.70 upon three
alleged causes of action, to wit: First, that in or about the month of January, 1932, the defendants jointly and
severally obligated themselves to sell to the plaintiff 4,000 cavans of palay at P2.10 per cavan, to be delivered
during the month of February, 1932, the said defendants having subsequently received from the plaintiff in virtue
of said agreement the sum of P8,400; that the defendants delivered to the plaintiff during the months of February,
March, and April, 1932, only 2,488 cavans of palay of the value of P5,224.80 and refused to deliver the balance
of 1,512 cavans of the value of P3,175.20 notwithstanding repeated demands. Second, that because of defendants'
refusal to deliver to the plaintiff the said 1,512 cavans of palay within the period above mentioned, the plaintiff
suffered damages in the sum of P1,000. And, third, that on account of the agreement above mentioned the
plaintiff delivered to the defendants 4,000 empty sacks, of which they returned to the plaintiff only 2,490 and
refused to deliver to the plaintiff the balance of 1,510 sacks or to pay their value amounting to P377.50; and that
on account of such refusal the plaintiff suffered damages in the sum of P150.
The defendant Antonio Vazquez answered the complaint, denying having entered into the contract mentioned in
the first cause of action in his own individual and personal capacity, either solely or together with his codefendant
Fernando Busuego, and alleging that the agreement for the purchase of 4,000 cavans of palay and the payment of
the price of P8,400 were made by the plaintiff with and to the Natividad-Vasquez Sabani Development Co., Inc.,
a corporation organized and existing under the laws of the Philippines, of which the defendant Antonio Vazquez
was the acting manager at the time the transaction took place. By way of counterclaim, the said defendant alleged
that he suffered damages in the sum of P1,000 on account of the filing of this action against him by the plaintiff
with full knowledge that the said defendant had nothing to do whatever with any and all of the transactions
mentioned in the complaint in his own individual and personal capacity.
The trial court rendered judgment ordering the defendant Antonio Vazquez to pay to the plaintiff the sum of
P3,175.20 plus the sum of P377.50, with legal interest on both sums, and absolving the defendant Fernando
Busuego (treasurer of the corporation) from the complaint and the plaintiff from the defendant Antonio Vazquez'
counterclaim. Upon appeal to the Court of Appeals, the latter modified that judgment by reducing it to the total
sum of P3,314.78, with legal interest thereon and the costs. But by a subsequent resolution upon the defendant's
motion for reconsideration, the Court of Appeals set aside its judgment and ordered that the case be remanded to
the court of origin for further proceedings. The defendant Vazquez, not being agreeable to that result, filed the
present petition for certiorari (G.R. No. 48930) to review and reverse the judgment of the Court of Appeals; and
the plaintiff Francisco de Borja, excepting to the resolution of the Court of Appeals whereby its original judgment
was set aside and the case was ordered remanded to the court of origin for further proceedings, filed a cross-
petition for certiorari (G.R. No. 48931) to maintain the original judgment of the Court of Appeals.
The original decision of the Court of Appeals and its subsequent resolutions on reconsideration read as follows:
Es hecho no controvertido que el 25 de Febrero de 1932, el demandado-apelante vendio al demandante 4,000
cavanes de palay al precio de P2.10 el cavan, de los cuales, dicho demandante solamente recibio 2,583 cavanes; y
que asimismo recibio para su envase 4,000 sacos vacios. Esta provbado que de dichos 4,000 sacos vacios
!5
solamente se entregaron, 2,583 quedando en poder del demandado el resto, y cuyo valor es el de P0.24 cada uno.
Presentada la demanda contra los demandados Antonio Vazquez y Fernando Busuego para el pago de la cantidad
de P4,702.70, con sus intereses legales desde el 1.o de marzo de 1932 hasta su completo pago y las costas, el
Juzgado de Primera Instancia de Manila el asunto condenando a Antonio Vazquez a pagar al demandante la
cantidad de P3,175.20, mas la cantidad de P377.50, con sus intereses legales, absolviendo al demandado
Fernando Busuego de la demanda y al demandante de la reconvencion de los demandados, sin especial
pronunciamiento en cuanto a las costas. De dicha decision apelo el demandado Antonio Vazquez, apuntado como
principal error el de que el habia sido condenado personalmente, y no la corporacion por el representada.
Segun la preponderancia de las pruebas, la venta hecha por Antonio Vazquez a favor de Francisco de Borja de los
4,000 cavanes de palay fue en su capacidad de Presidente interino y Manager de la corporacion Natividad-
Vazquez Sabani Development Co., Inc. Asi resulta del Exh. 1, que es la copia al carbon del recibo otorgado por el
demandado Vazquez, y cuyo original lo habia perdido el demandante, segun el. Asi tambien consta en los libros
de la corporacion arriba mencionada, puesto que en los mismos se ha asentado tanto la entrada de los P8,400,
precio del palay, como su envio al gobierno en pago de los alquileres de la Hacienda Sabani. Asi mismo lo
admitio Francisco de Borja al abogado Sr. Jacinto Tomacruz, posterior presidente de la corporacion sucesora en el
arrendamiento de la Sabani Estate, cuando el solicito sus buenos oficios para el cobro del precio del palay no
entregado. Asi igualmente lo declaro el que hizo entrega de parte del palay a Borja, Felipe Veneracion, cuyo
testimonio no ha sido refutado. Y asi se deduce de la misma demanda, cuando se incluyo en ella a Fernando
Busuego, tesorero de la Natividad-Vazquez Sabani Development Co., Inc.
Siendo esto asi, la principal responsable debe ser la Natividad-Vazquez Sabani Development Co., Inc., que quedo
insolvente y dejo de existir. El Juez sentenciador declaro, sin embargo, al demandado Vazquez responsable del
pago de la cantidad reclamada por su negligencia al vender los referidos 4,000 cavanes de palay sin averiguar
antes si o no dicha cantidad existia en las bodegas de la corporacion.
Resulta del Exh. 8 que despues de la venta de los 4,000 cavanes de palay a Francisco de Borja, el mismo
demandado vendio a Kwong Ah Phoy 1,500 cavanes al precio de P2.00 el cavan, y decimos 'despues' porque esta
ultima venta aparece asentada despues de la primera. Segun esto, el apelante no solamente obro con negligencia,
sino interviniendo culpa de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el
debe ser responsable subsidiariamente del pago de la cantidad objecto de la demanda.
En meritos de todo lo expuesto, se confirma la decision apelada con la modificacion de que el apelante debe
pagar al apelado la suma de P2,295.70 como valor de los 1,417 cavanes de palay que dejo de entregar al
demandante, mas la suma de P339.08 como importe de los 1,417 sacos vacios, que dejo de devolver, a razon de
P0.24 el saco, total P3,314.78, con sus intereses legales desde la interposicion de la demanda y las costas de
ambas instancias.
Vista la mocion de reconsideracion de nuestra decision de fecha 13 de Octubre de 1942, y alegandose en la
misma que cuando el apelante vendio los 1,500 cavanes de palay a Ah Phoy, la corporacion todavia tenia bastante
existencia de dicho grano, y no estando dicho extremo suficientemente discutido y probado, y pudiendo variar el
resultado del asunto, dejamos sin efecto nuestra citada decision, y ordenamos la devolucion de la causa al
Juzgado de origen para que reciba pruebas al efecto y dicte despues la decision correspondiente.
Upon consideration of the motion of the attorney for the plaintiff-appellee in case CA-G.R. No. 8676, Francisco
de Borja vs. Antonio Vasquez et al., praying, for the reasons therein given, that the resolution of December 22,
1942, be reconsidered: Considering that said resolution remanding the case to the lower court is for the benefit of
the plaintiff-appellee to afford him opportunity to refute the contention of the defendant-appellant Antonio
Vazquez, motion denied.
The action is on a contract, and the only issue pleaded and tried is whether the plaintiff entered into the contract
with the defendant Antonio Vazquez in his personal capacity or as manager of the Natividad-Vazquez Sabani
Development Co., Inc. The Court of Appeals found that according to the preponderance of the evidence "the sale
made by Antonio Vazquez in favor of Francisco de Borja of 4,000 cavans of palay was in his capacity as acting
president and manager of the corporation Natividad-Vazquez Sabani Development Co., Inc." That finding of fact
is final and, it resolving the only issue involved, should be determinative of the result.
The Court of Appeals doubly erred in ordering that the cause be remanded to the court of origin for further trial to
determine whether the corporation had sufficient stock of palay at the time appellant sold, 1500 cavans of palay
to Kwong Ah Phoy. First, if that point was material to the issue, it should have been proven during the trial; and
the statement of the court that it had not been sufficiently discussed and proven was no justification for ordering a
new trial, which, by the way, neither party had solicited but against which, on the contrary, both parties now
vehemently protest. Second, the point is, in any event, beside the issue, and this we shall now discuss in
connection with the original judgment of the Court of Appeals which the plaintiff cross-petitioner seeks to
maintain.
The action being on a contract, and it appearing from the preponderance of the evidence that the party liable on
the contract is the Natividad-Vazquez Sabani Development Co., Inc. which is not a party herein, the complaint
should have been dismissed. Counsel for the plaintiff, in his brief as respondent, argues that altho by the
preponderance of the evidence the trial court and the Court of Appeals found that Vazquez celebrated the contract
in his capacity as acting president of the corporation and altho it was the latter, thru Vazquez, with which the
plaintiff had contracted and which, thru Vazquez, had received the sum of P8,400 from Borja, and altho that was
true from the point of view of a legal fiction, "ello no impede que tambien sea verdad lo alegado en la demanda
de que la misma persona de Vasquez fue la que contrato con Borja y que la misma persona de Vasquez fue quien
recibio la suma de P8,400." But such argument is invalid and insufficient to show that the president of the
corporation is personally liable on the contract duly and lawfully entered into by him in its behalf.
It is well known that a corporation is an artificial being invested by law with a personality of its own, separate
and distinct from that of its stockholders and from that of its officers who manage and run its affairs. The mere
fact that its personality is owing to a legal fiction and that it necessarily has to act thru its agents, does not make
the latter personally liable on a contract duly entered into, or for an act lawfully performed, by them for an in its
behalf. The legal fiction by which the personality of a corporation is created is a practical reality and necessity.
Without it no corporate entities may exists and no corporate business may be transacted. Such legal fiction may
be disregarded only when an attempt is made to use it as a cloak to hide an unlawful or fraudulent purpose. No
such thing has been alleged or proven in this case. It has not been alleged nor even intimated that Vazquez
personally benefited by the contract of sale in question and that he is merely invoking the legal fiction to avoid
personal liability. Neither is it contended that he entered into said contract for the corporation in bad faith and
with intent to defraud the plaintiff. We find no legal and factual basis upon which to hold him liable on the
contract either principally or subsidiarily.
The trial court found him guilty of negligence in the performance of the contract and held him personally liable
on that account. On the other hand, the Court of Appeals found that he "no solamente obro con negligencia, sino
interveniendo culpa de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el debe
ser responsable subsidiariamente del pago de la cantidad objeto de la demanda." We think both the trial court and
the Court of Appeals erred in law in so holding. They have manifestly failed to distinguish a contractual from an
extracontractual obligation, or an obligation arising from contract from an obligation arising from culpa
aquiliana. The fault and negligence referred to in articles 1101-1104 of the Civil Code are those incidental to the
fulfillment or nonfullfillment of a contractual obligation; while the fault or negligence referred to in article 1902
is the culpa aquiliana of the civil law, homologous but not identical to tort of the common law, which gives rise
to an obligation independently of any contract. (Cf. Manila R.R. Co. vs. Cia. Trasatlantica, 38 Phil., 875,
887-890; Cangco vs. Manila R.R. Co., 38 Phil. 768.) The fact that the corporation, acting thru Vazquez as its
manager, was guilty of negligence in the fulfillment of the contract, did not make Vazquez principally or even
subsidiarily liable for such negligence. Since it was the corporation's contract, its nonfulfillment, whether due to
negligence or fault or to any other cause, made the corporation and not its agent liable.
On the other hand if independently of the contract Vazquez by his fault or negligence cause damaged to the
plaintiff, he would be liable to the latter under article 1902 of the Civil Code. But then the plaintiff's cause of
action should be based on culpa aquiliana and not on the contract alleged in his complaint herein; and Vazquez'
liability would be principal and not merely subsidiary, as the Court of Appeals has erroneously held. No such
cause of action was alleged in the complaint or tried by express or implied consent of the parties by virtue of
section 4 of Rule 17. Hence the trial court had no jurisdiction over the issue and could not adjudicate upon it
(Reyes vs. Diaz, G.R. No. 48754.) Consequently it was error for the Court of Appeals to remand the case to the
trial court to try and decide such issue.
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It only remains for us to consider petitioner's second assignment of error referring to the lower courts' refusal to
entertain his counterclaim for damages against the respondent Borja arising from the bringing of this action. The
lower courts having sustained plaintiff's action. The finding of the Court of Appeals that according to the
preponderance of the evidence the defendant Vazquez celebrated the contract not in his personal capacity but as
acting president and manager of the corporation, does not warrant his contention that the suit against him is
malicious and tortious; and since we have to decide defendant's counterclaim upon the facts found by the Court
of Appeals, we find no sufficient basis upon which to sustain said counterclaim. Indeed, we feel that a a matter of
moral justice we ought to state here that the indignant attitude adopted by the defendant towards the plaintiff for
having brought this action against him is in our estimation not wholly right. Altho from the legal point of view he
was not personally liable for the fulfillment of the contract entered into by him on behalf of the corporation of
which he was the acting president and manager, we think it was his moral duty towards the party with whom he
contracted in said capacity to see to it that the corporation represented by him fulfilled the contract by delivering
the palay it had sold, the price of which it had already received. Recreant to such duty as a moral person, he has
no legitimate cause for indignation. We feel that under the circumstances he not only has no cause of action
against the plaintiff for damages but is not even entitled to costs.
The judgment of the Court of Appeals is reversed, and the complaint is hereby dismissed, without any finding as
to costs.
Yulo, C.J., Moran, Horrilleno and Bocobo, JJ., concur.
Separate Opinions
PARAS, J., dissenting:
Upon the facts of this case as expressly or impliedly admitted in the majority opinion, the plaintiff is entitled to a
judgment against the defendant. The latter, as acting president and manager of Natividad-Vazquez Sabani
Development Co., Inc., and with full knowledge of the then insolvent status of his company, agreed to sell to the
plaintiff 4,000 cavans of palay. Notwithstanding the receipt from the plaintiff of the full purchase price, the
defendant delivered only 2,488 cavans and failed and refused to deliver the remaining 1,512 cavans and failed
and refused to deliver the remaining 1,512 cavans and a quantity of empty sacks, or their value. Such failure
resulted, according to the Court of First Instance of Manila and the Court of Appeals, from his fault or
negligence.
It is true that the cause of action made out by the complaint is technically based on a contract between the
plaintiff and Natividad-Vazquez Sabani Development Co., Inc. which is not a party to this case. Nevertheless,
inasmuch as it was proven at the trial that the defendant was guilty of fault in that he prevented the performance
of the plaintiff's contract and also of negligence bordering on fraud which cause damage to the plaintiff, the error
of procedure should not be a hindrance to the rendition of a decision in accordance with the evidence actually
introduced by the parties, especially when in such a situation we may order the necessary amendment of the
pleadings, or even consider them correspondingly amended.
As already stated, the corporation of which the defendant was acting president and manager was, at the time he
made the sale of the plaintiff, known to him to be insolvent. As a matter of fact, said corporation was soon
thereafter dissolved. There is admitted damage on the part of the plaintiff, proven to have been inflicted by reason
of the fault or negligence of the defendant. In the interest of simple justice and to avoid multiplicity of suits I am
therefore impelled to consider the present action as one based on fault or negligence and to sentence the
defendant accordingly. Otherwise, he would be allowed to profit by his own wrong under the protective cover of
the corporate existence of the company he represented. It cannot be pretended that any advantage under the sale
inured to the benefit of Natividad-Vazquez Sabani Development Co., Inc. and not of the defendant personally,
since the latter undoubtedly owned a considerable part of its capital.
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador Ong in
one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his death
was caused by his own negligence or by unavoidable accident. Defendant also avers that it had exercised due
diligence in the selection of, and supervision over, its employees and that it had observed the diligence required
by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without
pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount involved
exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to
which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The
main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool." There
are diving boards in the big pools and the depths of the water at different parts are indicated by appropriate marks
on the wall. The care and supervision of the pools and the users thereof is entrusted to a recreational section
composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-
saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons, defendant
has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a
sanitary inspector who is in charge of a clinic established for the benefit of the patrons. Defendant has also on
display in a conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits
the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-time
physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and
boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time
that the three brothers had gone to said natatorium for they had already been there four or five times before. They
arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately went to
one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong told his brothers that he
was going to the locker room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the latter when he
left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool compound,
namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning
and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m.
Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool area and Manuel Abaño was
going around the pools to observe the bathers in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard
Manuel Abaño of the same happening and Abaño immediately jumped into the big swimming pool and retrieved
the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge of the pool and
Abaño immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came to render
assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone from the clinic by
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one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon
arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr.
Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial manual respiration, and
when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long
thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy
already dead. The doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon
City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the following
day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division,
National Bureau of Investigation, who found in the body of the deceased the following: an abrasion on the right
elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a
congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails;
the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral
organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the negligence
of defendant and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article
provides that "whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damages done." Such fault or negligence is called quasi-delict. Under the second article, this
obligation is demandable not only for one's own acts or omissions but also for those of persons for whom one is
responsible. In addition, we may quote the following authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which people generally are expressly or by implication
invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such
resorts, to the end of making them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac.
686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care in
providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be the insurer
of the safety of patrons. And the death of a patron within his premises does not cast upon him the burden of
excusing himself from any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635;
Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that
there could be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium, where it
appeared merely that he was lastly seen alive in water at the shallow end of the pool, and some ten or fifteen
minutes later was discovered unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to resuscitate
him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to be observed is that
the person claiming damages has the burden of proving that the damage is caused by the fault or negligence of
the person from whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs.
Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants established by
sufficient evidence the existence of fault or negligence on the part of appellee so as to render it liable for damages
for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to
protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who may
render help at a moment's notice, and they ascribed such negligence to appellee because the lifeguard it had on
the occasion minor Ong was drowning was not available or was attending to something else with the result that
his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong
that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not immediately respond to the
alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three or
four minutes to elapse before retrieving the body from the water. This negligence of Abaño, they contend, is
attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the so is chargeable with the consequences, without reference to the prior negligence of the other party. (Picart vs.
written statements given by them in the investigation conducted by the Police Department of Quezon City Smith, 37 Phil., 809)
approximately three hours after the happening of the accident. Thus, these two boys admitted in the investigation
Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there
that they narrated in their statements everything they knew of the accident, but, as found by the trial, nowhere in
without any companion in violation of one of the regulations of appellee as regards the use of the pools, and it
said statements do they state that the lifeguard was chatting with the security guard at the gate of the swimming
appearing that lifeguard Aba_¤_o responded to the call for help as soon as his attention was called to it and
pool or was reading a comic magazine when the alarm was given for which reason he failed to immediately
immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order to bring
respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the
him back to life, it is clear that there is no room for the application of the doctrine now invoked by appellants to
lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person under water
impute liability to appellee..
who turned out to be his brother. For this reason, the trial court made this conclusion: "The testimony of Ruben
Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately respond to their call The last clear chance doctrine can never apply where the party charged is required to act instantaneously, and if
may therefore be disregarded because they are belied by their written statements. (Emphasis supplied.) the injury cannot be avoided by the application of all means at hand after the peril is or should have been
discovered; at least in cases in which any previous negligence of the party charged cannot be said to have
On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid
contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8,
danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that
pp. 955-956)
the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a
first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is Before closing, we wish to quote the following observation of the trial court, which we find supported by the
on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties that
Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit or
certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and which to his
as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary drowning. As a boy scout he must have received instructions in swimming. He knew, or have known that it was
inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always dangerous for him to dive in that part of the pool."
in case of emergency.
Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the
The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the same, without pronouncement as to costs.
employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge of
the pool, lifeguard Abaño immediately gave him manual artificial respiration. Soon thereafter, nurse Armando
Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator.
When they found that the pulse of the boy was abnormal, the inspector immediately injected him with
camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen resuscitator
until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from the
University of the Philippines who however came late because upon examining the body he found him to be
already dead. All of the foregoing shows that appellee has done what is humanly possible under the
circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now
switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having the
last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show how minor Ong came into
the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers that he
was going to the locker room to drink a bottle of coke but that from that time on nobody knew what happened to
him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the negligence of a
claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding
his negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of a third person which
is imputed to his opponent, is considered in law solely responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of the road. But as we have already stated, the defendant was
also negligent; and in such case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances, the law is that a person who has the last clear chance to avoid the impending harm and fails to do

!8