Torts Cases

Based on the syllabus of Judge Edilu P.
Hayag
1st Semester, S.Y. 2019-2020
NATURE OF LIABILITY
LIABILITY OF TORTFEASERS
G.R. No. 107356 March 31, 1995
SINGAPORE AIRLINES LIMITED, petitioner,

vs.
THE COURT OF APPEALS and PHILIPPINE AIRLINES, respondents.
ROMERO, J.:
Sancho Rayos was an overseas contract worker who had a renewed contract with the Arabian American Oil Company (Aramco) for th e period
covering April 16, 1980, to April 15, 1981. As part of Aramco's policy, its employees returning to Dhahran, Saudi Arabia from Manila are allowed
to claim reimbursement for amounts paid for excess baggage of up to 50 kilograms, as long as it is properly supported by receipt. On April 1980,
Rayos took a Singapore Airlines (SIA) flight to report for his new assignment, with a 50-kilogram excess baggage for which he paid P4,147.50.
Aramco reimbursed said. amount upon presentation of the excess baggage ticket.
In December 1980, Rayos learned that he was one of several employees being investigated by Aramco for fraudulent claims. He immediately
asked his wife Beatriz in Manila to seek a written confirmation from SIA that he indeed paid for an excess baggage of 50 kilograms. On December
10, 1980, SIA's manager, Johnny Khoo, notified Beatriz of their inability to issue the certification requested because their records showed that
only three kilograms were entered as excess and accordingly charged. SIA issued the certification requested by the spouses Rayos only on April
8, 1981, after its investigation of the anomaly and after Beatriz, assisted by a lawyer, threatened it with a lawsuit. On April 14, 1981, Aramco
gave Rayos his travel documents without a return visa. His employment contract was not renewed.
On August 5, 1981, the spouses Rayos, convinced that SIA was responsible for the non-renewal of Rayos' employment contract with Aramco,
sued it for damages. SIA claimed that it was not liable to the Rayoses because the tampering was committed by its handling agent, Philippine
Airlines (PAL). It then filed a third-party complaint against PAL. PAL, in turn, countered that its personnel did not collect any charges for excess
baggage; that it had no participation in the tampering of any excess baggage ticket; and that if any tampering was made, it was done by SIA's
personnel.
Judge Jesus O. Ibay of the Regional Trial Court of Manila, Branch 30, rendered judgment on September 9, 1988, in favor of the plaintiffs, the
dispositive portion of which reads thus:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant Singapore Airlines Limited,
sentencing the latter to pay the former the following:
1. The sum of Four Hundred Thirty Thousand Nine Hundred Pesos and Eighty Centavos (P430,900.80) as actual damages,
with interest at the legal rate from the date of the filing of the complaint until fully paid.
2. The sum of Four Thousand One Hundred Forty-Seven Pesos and Fifty Centavos (P4,147.50) as reimbursement for the
amount deducted from Mr. Rayos' salary, also with legal rate of interest from the filing of the complaint until paid in full;
3. The sum of Fifty Thousand Pesos (P50,000.00) as moral damages;
4. The sum equivalent to ten Per Cent (10th) of the total amount due as and for attorney's fees; and
5. The cost of suit.
The defendant's counterclaim is hereby dismissed.
ON THE THIRD PARTY COMPLAINT, the third-party defendant PAL is ordered to pay defendant and third-party plaintiff SIA
whatever the latter has paid the plaintiffs.
SO ORDERED.
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Based on the syllabus of Judge Edilu P. Hayag
In so ruling, the court a quo concluded that the excess baggage ticket of Rayos was tampered with by the employees of
PAL and that the fraud was the direct and proximate cause of the non-renewal of Rayos' contract with Aramco.
All parties appealed to the Court of Appeals. SIA's appeal was dismissed for non-payment of docket fees, which dismissal was eventually sustained
by this Court. The Rayos spouses withdrew their appeal when SIA satisfied the judgment totaling P802,435.34.
In its appeal, PAL claimed that the spouses Rayos had no valid claim against SIA because it was the inefficiency of Rayos which led to the non-
renewal of his contract with Aramco, and not the alleged tampering of his excess bagged ticket On the other hand, SIA argued that the only
issue in the said appeal is whether or not it was entitled to reimbursement from PAL, citing
the case of Firestone Tire and Rubber Company of the Philippines v. Tempongko.1
The appellate court disagreed with SIA's contention that PAL could no longer raise the issue of SIA's liability to the Rayoses and opined "that
SIA's answer to the complaint should inure to the benefit of PAL, and the latter may challenge the lower court's findings against SIA in favor of
plaintiffs-appellees (the Rayos spouses) for the purpose of defeating SIA's claim against it, and not for the purpose of altering in any way the
executed judgment against SIA." In its answer to the main complaint, SIA set up the defense that the excess baggage ticket was indeed tampered
with but it was committed by PAL's personnel. On September 21, 1992, the appellate court granted PAL's appeal and absolved it from any liability
to SIA.
In this petition for review, SIA argues that PAL cannot validly assail for the first time on appeal the trial court's decision sustaining the validity of
plaintiff's complaint against SIA if PAL did not raise this issue in the lower court. It added that the appellate court should have restricted its ruling
on the right of SIA to seek reimbursement from PAL, as this was the only issue raised by SIA in its third-party complaint against PAL.
The instant appeal is impressed with merit.
The petitioner correctly pointed out that the case of Firestone squarely applies to the case at bench. In said case, the Court expounded on the
nature of a third-party complaint and the effect of a judgment in favor of the plaintiff against the defendant and in favor of such defendant as
third-party plaintiff against, ultimately, the third-party defendant. Speaking through then Justice and later Chief Justice Claudio Teehankee, the
Court stated:
The third-party complaint is, therefore, a procedural device whereby a "third party" who is neither a party nor privy to the act
or deed complained of by the plaintiff, may be brought into the case with leave of court, by the defendant, who acts as third-
party plaintiff to enforce against such third-party defendant a right for contribution, indemnity, subrogation or any other relief,
in respect of the plaintiff's claim. The third-party complaint is actually independent of and separate and distinct from the
plaintiff's complaint. . . . When leave to file the third-party complaint is properly granted, the Court renders in effect two
judgments in the same case, one on the plaintiff's complaint and the other on the third-party complaint. When he finds
favorably on both complaints, as in this case, he renders judgment on the principal complaint in favor of plaintiff against
defendant and renders another judgment on the third-party complaint in favor of defendant as third-party plaintiff, ordering
the third-party defendant to reimburse the defendant whatever amount said defendant is ordered to pay plaintiff in the case.
Failure of any of said parties in such a case to appeal the judgment as against him makes such judgment final and executory.
By the same token, an appeal by one party from such judgment does not inure to the benefit of the other party who has not
appealed nor can it be deemed to be an appeal of such other party from the judgment against him.
It must be noted that in the proceedings below, PAL disclaimed any liability to the Rayoses and imputed the alleged tampering to SIA's personnel.
On appeal, however, PAL changed its theory and averred that the spouses Rayos had no valid claim against SIA on the around that the non-
renewal of Sancho's contract with Aramco was his unsatisfactory performance rather than the alleged tampering of his excess baggage ticket. In
response to PAL's appeal, SIA argued that it was improper for PAL to question SIA's liability to the plaintiff, since this was no longer an issue on
account of the finality and, in fact, satisfaction of the judgment.
Surprisingly, the appellate court ignored the Court's pronouncements in Firestone and declared:
[T]here is nothing in the citation which would suggest that the appellant cannot avail of the defenses which would have been
available to the non-appealing party against the prevailing party which would be beneficial to the appellant. After all, PAL's
liability here is premised on the liability of SIA to plaintiffs-appellees, In its own defense, it should have the right to avail of
defenses of SIA against plaintiffs-appellees which would redound to its benefit. This is especially true here where SIA lost the
capability to defend itself on the technicality of failure to pay docket fee, rather than on the merits of its appeal. To hold
otherwise would be to open the door to a possible collusion between the plaintiff and defendant which would leave the third-
party defendant holding the bag.
There is no question that a third-party defendant is allowed to set up in his answer the defenses which the third-party plaintiff (original defendant)
has or may have to the plaintiff's claim. There are, however, special circumstances present in this case which preclude third-party defendant PAL
from benefiting from the said principle.
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One of the defenses available to SIA was that the plaintiffs had no cause of action, that is, it had no valid claim against SIA.
SIA investigated the matter and discovered that tampering was, indeed, committed, not by its personnel but by PAL's. This became its defense
as well as its main cause of action in the third-party complaint it filed against PAL. For its part, PAL could have used the defense that the plaintiffs
had no valid claim against it or against SIA. This could be done indirectly by adopting such a defense in its answer to the third-party complaint
if only SIA had raised the same in its answer to the main complaint, or directly by so stating in unequivocal terms in its answer to SIA's complaint
that SIA and PAL were both blameless. Yet, PAL opted to deny any liability which it imputed to SIA's personnel. It was only on appeal — in a
complete turn around of theory — that PAL raised the issue of no valid claim by the plaintiff against SIA. This simply cannot be allowed.
While the third-party defendant; would benefit from a victory by the third-party plaintiff against the plaintiff, this is true only when the third-
party plaintiff and third-party defendant have non-contradictory defenses. Here, the defendant and third-party defendant had no common defense
against the plaintiffs' complaint, and they were even blaming each other for the fiasco.
Fear of collusion between the third-party plaintiff and the plaintiffs aired by the appellate court is misplaced if not totally unfounded. The stand
of SIA as against the plaintiffs' claim was transparent from the beginning. PAL was aware of SIA's defense, and if it was con vinced that SIA
should have raised the defense of no valid claim by the plaintiffs, it should have so stated in its answer as one of its defenses, instead of waiting
for an adverse judgment and raising it for the first time on appeal.
The judgment, therefore, as far as the Rayoses and SIA are concerned, has already gained finality. What remains to be resolved, as correctly
pointed out by petitioner, is whether it is entitled to reimbursement from PAL, considering that PAL appealed that part of th e decision to the
appellate court. This is where the rule laid down in Firestone becomes applicable.
The trial court's decision, although adverse to SIA as defendant, made PAL ultimately answerable for the judgment by ordering the latter to
reimburse the former for the entire monetary award. On appeal, PAL tried to exonerate itself by arguing that the Rayoses had no valid claim
against SIA. From PAL's viewpoint, this seemed to be the only way to extricate itself from a mess which the court a quo ascribed to it. This
cannot, however, be allowed because it was neither raised by SIA in its answer to the main complaint nor by PAL in its answer to the third-party
complaint. The prudent thing that PAL should have done was to state in its answer to the third-party complaint filed by SIA against it everything
that it may conceivably interpose by way of its defense, including specific denials of allegations in the main complaint which implicated it along
with SIA.
The appellate court was in error when it opined that SIA's answer inured to the benefit of PAL for the simple reason that the complaint and the
third-party complaint are actually two separate cases involving the same set of facts which is allowed by the court to be resolved in a single
proceeding only to avoid a multiplicity of actions. Such a proceeding obviates the need of trying two cases, receiving the same or similar evidence
for both, and enforcing separate judgments therefor. This situation is not, as claimed by the appellate court, analogous to a case where there
are several defendants against whom a complaint is filed stating a common cause of action, where the answer of some of the defendants inures
to the benefit of those who did not file an answer. While such a complaint speaks of a single suit, a third-party complaint involves an action
separate and distinct from, although related to the main complaint. A third-party defendant who feels aggrieved by some allegations in the main
complaint should, aside from answering the third-party complaint, also answer the main complaint.
We do not, however, agree with the petitioner that PAL is solely liable for the satisfaction of the judgment. While the trial court found, and this
has not been adequately rebutted by PAL, that the proximate cause of the non-renewal of Rayos' employment contract with Aramco was the
tampering of his excess baggage ticket by PAL's personnel, it failed to consider that the immediate cause of such non-renewal was SIA's delayed
transmittal of the certification needed by Rayos to prove his innocence to his employer.
SIA was informed of the anomaly in December 1980 but only issued the certification four months later or, more specifically, on April 8, 1981, a
few days before the expiration of Rayos' contract. Surely, the investigation conducted by SIA could not have lasted for four months as the
information needed by the Rayoses could easily be verified by comparing the duplicate excess baggage tickets which they and their handling
agent, PAL, kept the record purposes. The fact that the Rayos spouses had to be assisted by counsel who threatened to file a damage suit against
SIA if the certification they urgently needed was not immediately issued only strengthens the suspicion that SIA was not deal ing with them in
utmost good faith. The effect of SIA's mishandling of Beatriz Rayos' request became instantly apparent when her husband's contract was not
renewed in spite of his performance which was constantly "highly regarded" by the manager of Aramco's equipment services department.
Former Chief Justice and noted remedial law expert Manuel V. Moran opined that "in an action upon a tort, the defendant may file a third-party
complaint against a joint tort-feasor for contribution."2
The non-renewal of Rayos employment contract was the natural and probable consequence of the separate tortious acts of SIA and PAL. Under
mandate of Article 2176 of the Civil Code, Rayos is entitled to be compensated for such damages. Inasmuch as the responsibility of two or more
persons, or tort-feasors, liable for a quasi-delict is joint and several,3 and the sharing as between such solidary debtors is pro-rata,4 it is but
logical, fair, and equitable to require PAL to contribute to the amount awarded to the Rayos spouses and already paid by SIA, instead of totally
indemnifying the latter.
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WHEREFORE, the decision of the respondent Court of Appeals in CA-G.R. CV No. 20488 dated September 21, 1992, is
hereby REVERSED and a new one is entered ordering private respondent Philippine Airlines to pay, by way of contribution, petitioner Singapore
Airlines one-half (1/2) of the amount it actually paid to Sancho and Beatriz Rayos in satisfaction of the judgment in Civil Case No. 142252, dated
September 9, 1988.
SO ORDERED.
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G.R. No. 130068 October 1, 1998
FAR EASTERN SHIPPING COMPANY, petitioner,

vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
G.R. No. 130150 October, 1998
MANILA PILOTS ASSOCIATION, petitioner,

vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents.
REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision1 of respondent Court of Appeals of November
15, 1996 and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far
Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which affirmed with modification
the judgment of the trial court holding the defendants-appellants therein solidarily liable for damages in favor of herein private
respondent.
There is no dispute about the facts as found by the appellate court, thus —
. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far
Eastern Shipping Company (FESC for brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia
at about 7:00 o'clock in the morning. The vessel was assigned Berth 4 of the Manila International Port, as its berthing
space. Captain Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel.
Appellant Senen Gavino was assigned by the Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct
docking maneuvers for the safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the
vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel and its
cargo, the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila International Port. The
sea was calm and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino
ordered the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor
dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2) shackles,
were dropped. However, the anchor did not take hold as expected. The speed of the vessel did not slacken. A
commotion ensued between the crew members. A brief conference ensued between Kavankov and the crew members.
When Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was nothing to it.
After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then
on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor
did not take hold. Gavino thereafter gave the "full-astern" code. Before the right anchor and additional shackles could
be dropped, the bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. The
vessel sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit "1-Vessel").
Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who referred the report to the Philippine Ports
Authority (Exhibit 2-Pilot"). Abellana likewise submitted his report of the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of
the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E").3
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional Trial
Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila
Pilots' Association, docketed as Civil Case No. 83-14958,4 praying that the defendants therein be held jointly and severally liable to pay
the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the defendants
therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the costs of suit.5
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under
compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for his negligence? and
Page | 5
(2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of the
master of the vessel and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found no employer-employee
relationship existing between herein private respondents Manila Pilots' Association (MPA, for short) and Capt. Gavino.6 This being so,
it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs
Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial court by holding MPA, along with its co-defendants
therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary
liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve
fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them elevated
their respective plaints to us via separate petitions for review oncertiorari.
In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting
damages sustained by the pier deliberately ignoring the established jurisprudence on the matter;
2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at
the time the incident happened;
3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and
convincing evidence that the amount is clearly exorbitant and unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event
that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was the compulsory pilot,
Capt. Gavino, who was in command and had complete control in the navigation and docking of the vessel. It is the pilot who supersedes
the master for the time being in the command and navigation of a ship and his orders must be obeyed in all respects connected with
her navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not the owners of the vessel.
It claims that the master of the boat did not commit any act of negligence when he failed to countermand or overrule the orders of the
pilot because he did not see any justifiable reason to do so. In other words, the master cannot be faulted for relying absolutely on the
competence of the compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated,
the master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of FESC, MPA
and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV
Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino
with Capt. Kabankov beside him all the while on the bridge of the vessel, as the former took over the helm of MV Pavlodar when it
rammed and damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent negligence was the
immediate and proximate cause of the collision between the vessel and the pier — Capt. Gavino, for his negligence in the conduct of
docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot
and to take over and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the
berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division. MPA,
now as petitioner in this case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs
Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be held solidarily
liable with Capt. Gavino who, as held by respondent court is only a member, not an employee, thereof. There being no employer-
employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of profession by its members
nor be considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that there was erroneous reliance on
Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages
which, being a substantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or an
administrative order which bears no provision classifying the nature of the liability of MPA for the negligence its member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has ceased
to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are unknown. 14
Page | 6
FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or
administrative orders as bases for ascertaining the liability of MPA, and expressed full accord with the appellate court's holding of
solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No.
15-65 clearly established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same supportive
stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with
Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs Administrative Order No.
15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. These
provisions are clear and unambiguous as regards MPA's liability without need for interpretation or construction. Although Customs
Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative authority to
fix details to implement the law, it is legally binding and has the same statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective counsel
for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91 which provided for what has come to
be known as the certification against forum shopping as an additional requisite for petitions filed with the Supreme Court and the Court
of Appeals, aside from the other requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving the same issues in the Supreme Court, Court of Appeals or different divisions
thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx xxx xxx
The petitioner shall also submit together with the petition a certification under oath that he has not theretofore
commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status
of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (Emphasis
ours.)
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall
contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of record
for FESC in both G.R. No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counsel on August 22,
1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27,
1997. 20 Said motion contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the
Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such
action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if
I/we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to report that fact within five (5) days
therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification
and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION
Page | 7
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation
to Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review on Certiorari.
3. That I have read the same and the allegations therein contained are true and correct based on the records of this
case.
4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the
Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such
action or proceeding is pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that if I
should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this
Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly filed on
August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC. 23 Counsel of record for MPA.
Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that —
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court,
the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but to the best of his knowledge,
there is an action or proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs.
Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file Petition For Review by
Certiorari filed sometime on August 18, 1987. If undersigned counsel will come to know of any other pending action
or claim filed or pending he undertakes to report such fact within five (5) days to this Honorable Court. 24 (Emphasis
supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the
average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when FESC
filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the former and would then have
knowledge of the pendency of the other petition initially filed with the First Division. It was therefore incumbent upon FESC to inform
the Court of that fact through its certification against forum shopping. For failure to make such disclosure, it would appear that the
aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a ground for dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executed said
certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court." 25Scouring the records page by page in this case, we find that no manifestation concordant with
such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring such matter to the
attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the
motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of taking
the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of
and with less than faithful commitment to its undertakings to this Court in the interest of just, speedy and orderly administration of
court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 26 He is an officer of the court
exercising a privilege which is indispensable in the administration of justice. 27Candidness, especially towards the courts, is essential
for the expeditious administration of justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading
before them. 28 Candor in all dealings is the very essence of honorable membership in the legal profession. 29 More specifically, a lawyer
is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It behooves a lawyer, therefore, to
exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. 31 Being an officer of the court,
a lawyer has a responsibility in the proper administration of justice. Like the court itself, he is an instrument to advance its ends — the
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speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final
judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that
impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient
administration of justice.32
Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are
indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for legal
processes. 33 We cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken effect,
the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it
would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter alia:
3. Penalties. —
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court,
without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to
disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner, and not
by counsel. Obviously it is the petitioner, and not always the counsel whose professional services have been retained for a particular
case, who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification
against forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance with the requirement under
Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed in behalf of
FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being unnecessary
to file such a certification with a mere motion for extension, we shall disregard such error. Besides, the certification subsequently
executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier pointed out. In
the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the Rules of informing the Court of the pendency of another action or proceeding
involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used to
achieve such end and not to derail it. 34
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal team
of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis
F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings, represented PPA
throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully acquainted with the facts
and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time to file its comment, thus unduly
delaying the resolution of these cases. It took several changes of leadership in the OSG — from Silvestre H. Bello III to Romeo C. dela
Cruz and, finally, Ricardo P. Galvez — before the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be
granted, and personal service on the Solicitor General himself of the resolution requiring the filing of such comment before the OSG
indulged the Court with the long required comment on July 10, 1998. 35 This, despite the fact that said office was required to file its
comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise indicates that petitoner FESC was not even
furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which,
from the point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it took only six
(6) extensions, or a total of 180 days, before the comment was finally filed. 38 And while it properly furnished petitioner MPA with a
copy of its comment, it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC
with a copy thereof, if only as a matter of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the tax-
paying public and can only be categorized as censurable inefficiency on the part of the government law office. This is most certainly
professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No.
130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its job easier by having to
prepare and file only one comment. It could not have been unaware of the pendency of one or the other petition because, being counsel
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for respondent in both cases, petitioner is required to furnish it with a copy of the petition under pain of dismissal
of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus —
Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the respondent
Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court, which was docketed as
G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern
Shipping Co., Respondents." 41
Similarly, in G.R. No. 130150, it states —
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this
Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine
Ports Authority." 42
We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive
propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with the timely submission of
required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. The
OSG, by needlessly extending the pendency of these cases through its numerous motions for extension, came very close to exhausting
this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with equal
force on lawyers in government service in the discharge of their official tasks. 43 These ethical duties are rendered even more exacting
as to them because, as government counsel, they have the added duty to abide by the policy of the State to promote a high standard of
ethics in public service. 44 Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to perform and discharge
its duties with the highest degree of professionalism, intelligence and skill 45 and to extend prompt, courteous and adequate service to
the public. 46
Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence presented
by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioned decision. While not entirely a case
of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised
in both petitions beg for validation and updating of well-worn maritime jurisprudence. Thereby, we shall write finis to the endless
finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of Philippine
Ports Authority Administrative Order No. 03-85, 47 which provides that:
Sec. 8. Compulsor Pilotage Service. — For entering a harbor and anchoring thereat, or passing through rivers or straits
within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another,
every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. . . .
In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been specified
by the same regulation in this wise:
Sec. 11. Control of vessels and liability for damage. — On compulsory pilotage grounds, the Harbor Pilot providing the
service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his
negligence or fault. He can only be absolved from liability if the accident is caused by force majeure or natural
calamities provided he has exercised prudence and extra diligence to prevent or minimize damage.
The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or
overrule the order or command of the Harbor Pilot on beard. In such event, any damage caused to a vessel or to life
and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the
registered owner of the vessel concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in
appropriate proceedings in the light of the facts and circumstances of each particular case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. — The duties and responsibilities of the Harbor
Pilot shall be as follows:
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xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof
until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the
Master neglects or refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the responsibilities of
pilots:
Par. XXXIX. — A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof
until he leaves it anchored free from shoal: Provided, That his responsibility shall cease at the moment the master
neglects or refuses to carry out his instructions.
xxx xxx xxx
Par. XLIV. — Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by
the master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages
cause to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavino in command and having
exclusive control of the vessel during the docking maneuvers, then the latter should be responsible for damages caused to the pier. 48 It
likewise holds the appellate court in error for holding that the master of the ship, Capt. Kabankov, did not exercise the required diligence
demanded by the circumstances. 49
We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a
presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this
presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving
vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was the result of
inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the circumstances admit and
show that in each, they did all that reasonable care required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault
attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. 51 Logic and
experience support this presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary
course of things unless the vessel has been mismanaged in some way. It is nor sufficient for the respondent to produce
witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident.
The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of
the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position
in which an unavoidable collision would occur. 52
The task, therefore, in these cases is to pinpoint who was negligent — the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a broad
sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters and (2) those
entrusted with the navigation of vessels on the high seas. 53 However, the term "pilot" is more generally understood as a person taken
on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command and
navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac
vice and should give all directions as to speed, course, stopping and reversing anchoring, towing and the like. And when a licensed pilot
is employed in a place where pilotage is compulsory, it is his duty to insist on having effective control of the vessel, or to decline to act
as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser of
the master, who retains command and control of the navigation even in localities where pilotage is compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels
approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law. The purpose of these laws is to
create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and thus protect life and
property from the dangers of navigation. 56
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In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules
for compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District,
viz. —
PARAGRAPH I. — Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier
or shifting from one berth to another shall be compulsory, except Government vessels and vessels of foreign
governments entitled to courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry service
between ports which shall be exempt from compulsory pilotage provisions of these regulations: provided, however,
that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under these
regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming such
office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care and diligence required of a pilot,
whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends
superior to and more to be trusted than that of the master. 57 A pilot 57 should have a thorough knowledge of general and local
regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a particular harbor
or river.
He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded by the
circumstances, and usually shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must exercise
extraordinary care. 58
In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography
through which he steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar
with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses
and trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where
the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar
with all dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or trees or
abandoned vessels orbarges. All this he must know and remember and avoid. To do this, he must be constantly
informed of the changes in the current of the river, of the sand-bars newly made,of logs or snags, or other objects
newly presented, against which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives
and property committed to their control, for in this they are absolute masters, the high compensation they receive,
the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses, this very
class of skill, we do not think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and diligence
required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino:
Court: You have testified before that the reason why the vessel bumped the pier was because the
anchor was not released immediately or as soon as you have given the order. Do you remember
having srated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that if that anchor was released
immediately at the time you gave the order, the incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part because there was a commotion
between the officers who are in charge of the dropping of the anchor and the captain. I could not
understand their language, it was in Russian, so I presumed the anchor was not dropped on time.
Q So, you are not sure whether it was really dropped on time or not?
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A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the incident. What factor could have caused the
incident?
A Well, in this case now, because either the anchor was not dropped on time or the anchor did not
hold, that was the cause of the incident, your Honor. 60
It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious consequences his
commands as pilot may have. Prudence required that he, as pilot, should have made sure that his directions were promptly and strictly
followed. As correctly noted by the trial court —
Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen
to it that the order was carried out, and he could have done this in a number of ways, one of which was to inspect the
bow of the vessel where the anchor mechanism was installed. Of course, Captain Gavino makes reference to a
commotion among the crew members which supposedly caused the delay in the execution of the command. This
account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether
or not such a commotion occurred, maintained that the command to drop anchor was followed "immediately and
precisely." Hence, the Court cannot give much weight or consideration to this portion of Gavino's testimony." 61
An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as
necessary to prevent it from creating an unreasonable risk of harm to another. 62Those who undertake any work calling for special skills
are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and
ability. 63
Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with
a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood
as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his
pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and
prudent man would take, and the omission of that care constitutes negligence. 65Generally, the degree of care required is graduated
according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses.
The greater the danger the greater the degree of care required. What is ordinary under extraordinary of conditions is dictated by those
conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care. 66
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the
performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock
in the morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then,Gavino must have realized that
the anchor did not hit a hard object and was not clawed so as to reduce the momentum of the vessel. In point of fact,
the vessel continued travelling towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, the two
(2) tugboats began to push the stern part of the vessel from the port side bur the momentum of the vessel was not
contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more shackles dropped to
arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes,
after the anchor was dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arresting
fully the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino
another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no longer be arrested
and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated. He
failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed
to claw to the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the
vessel, its size and its cargo. He erroneously believed that only one (1) anchor would suffice and even when the
anchor failed to claw into the seabed or against a hard object in the seabed, Gavino failed to order the other anchor
dropped immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the pier is but
a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. In sum, then,
Appellants' claim that the incident was caused by "force majeure" is barren of factual basis.
xxx xxx xxx
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The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor
pilot unless he passed the required examination and training conducted then by the Bureau of Custom, under Customs
Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative Order 63-85,
Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held responsible for
the direction of the vessel from the time he assumes control thereof, until he leaves it anchored free from
shoal: Provided, that his responsibility shall cease at the.moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for docking and undocking the vessel emanates from the
harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care or
that degree of care required by the exigencies of the occasion. Failure on his part to exercise the degree of care
demanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57 Am
Jur, 2d page 418). 67
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be
attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself
with the depth of the port and the distance he could keep between the vessel and port in order to berth safely. 68
The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. His unconcerned lethargy
as master of the ship in the face of troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and supersedes the master for the time
being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him, 70 there is
overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The
master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may and should
interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances may require the
master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor observe that a
compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. 71
The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him.
He is still in command of the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the vessel to be
properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient watch on deck, and
that the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors clear and ready to go at the
pilot's order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship,
leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in docking of your ship in the
harbor?
A No sir, I have no right to intervene in time of docking, only in case there is imminent danger to
the vessel and to the pier.
Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was docking my ship.
Q Up to the time it was actually docked at the pier, is that correct?
A No sir, I did not intervene up to the very moment when the vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the
docking?
A Yes sir, our ship touched ihe pier and the pier was damaged.
Court (to the witness)
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Q When you said touched the pier, are you leading the court to understand that
your ship bumped the pier?
A I believe that my vessel only touched the pier but the impact was very weak.
Q Do you know whether the pier was damaged as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the
port, did you observe anything irregular in the maneuvering by Capt. Gavino at the time he was
trying to cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to understand that there was nothing
irregular in the docking of the ship?
A Yes sir, during the initial period of the docking, there was nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal
that happened?
A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the
vessel.
Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was nor
timely?
A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more
shackles, there could not have been an incident.
Q So you could not precisely tell the court that the dropping of the anchor was timery because you
are not well aware of the seabed, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much
so that the vessel could not travel?
A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from
further moving?
A Yes sir, it is possible.
Q What is possible?
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A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship, did you not make any protest to
the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2 shackles were also dropped to
hold the ship?
A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced
pilot and he should be more aware as to the depths of the harbor and the ground and I was confident
in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the vessel before the inicident happened,
were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that point of view?
A That is right.
Q Whatever the piler can read from the panel of the bridge, you also could read, is that correct?
A What is the meaning of panel?
Q All indications necessary for men on the bridge to be informed of the movements of the ship?
A That is right.
Q And whatever sound the captain . . . Capt. Gavino would hear from the bridge, you could also
hear?
A That is right.
Q Now, you said that when the command to lower the anchor was given, it was obeyed, is that
right?
A This command was executed by the third mate and boatswain.
Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the
pilot and that, in your opinion, you can only intervene if the ship is placed in imminent danger, is
that correct?
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A That is right, I did say that.
Q In your observation before the incident actually happened, did you observe whether or not the
ship, before the actual incident, the ship was placed in imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that because you did not intervene and
because you believed that it was your duty to intervene when the vessel is placed in imminent
danger to which you did not observe any imminent danger thereof, you have not intervened in any
manner to the command of the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in
maneuvering the vessel, whose command will prevail, in case of imminent danger to the vessel?
A I did nor consider the situation as having an imminent danger. I believed that the vessel will dock
alongside the pier.
Q You want us to understand that you did not see an imminent danger to your ship, is that what
you mean?
A Yes sir, up to the very last moment, I believed that there was no imminent danger.
Q Because of that, did you ever intervene in the command of the pilot?
A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.
Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not?
Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and the
cargo, is it not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino very closely at the time he was making
his commands?
A I was close to him, I was hearing his command and being executed.
Q And that you were also alert for any possible mistakes he might commit in the maneuvering of
the vessel?
Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's orders?
A Yes sir.
Page | 17
Q Because, otherwise, you would have issued order that would supersede his
own order?
A In that case, I should t,ke him away from his command or remove the command from him.
Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his
knowledge, on his familiarity of the seabed and shoals and other surroundings or conditions under
the sea, is that correct?
xxx xxx xxx
Q And so after the anchors were ordered dropped and they did not take hold of the seabed, you
were alerted that there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did
not, there was no danger to the ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have taken hold the seabed bur not done (sic),
as you expected, you already were alerted that there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert vou assumed was the ordinary alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.
Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore
agreed with him in his failure to take necessary precaution against the eventuality that the anchor
will not hold as expected?
Atty. Del Rosario:
May I ask that the question . . .
Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Page | 18
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold the ground as expected?
A Yes sir, that is my opinion. 73
Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was
in imminent danger.
A No, at that time, the vessel was not in imminent, danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the piler's command which should be followed at that
moment until the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the
pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the
prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledee of the seabed which are vital or
decisive in the safety (sic) bringing of a vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the
vessel rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you and the Captain of the vessel in the
bringing of the vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was all along in conformity with the orders
you, gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the
course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember of
any instance that the Master of the vessel did not obey your command for the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
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Yes, he has just answered yes sir to the Court that there was no disagreement
insofar as the bringing of the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of
the docking that the MV Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier, I think, the anchor was not
holding, so I immediately ordered to push the bow at a fourth quarter, at the back of the vessel in
order to swing the bow away from the pier and at the same time, I ordered for a full astern of the
engine. 75
These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty
by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space,
it is undisputed that the master of the vessel had the corresponding duty to countermand any of the orders made by
the pilot, and even maneuver the vessel himself, in case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughour the man(eu)vering procedures he did not notice
anything was going wrong, and even observed that the order given to drop the anchor was done at the proper time.
He even ventured the opinion that the accident occurred because the anchor failed to take hold but that this did not
alarm him because.there was still time to drop a second anchor.
Under normal circumstances, the abovementioned facts would have caused the master of a vessel to take charge of
the situation and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon
his pilot, who by this time was proven ill-equipped to cope with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesss responsible for as
master of the vessel he stood by the pilot during the man(eu)vering procedures and was privy to every move the
latter made, as well as the vessel's response to each of the commands. His choice to rely blindly upon the pilot's skills,
to the point that despite being appraised of a notice of alert he continued to relinquish control of the vessel to Gavino,
shows indubitably that he was not performing his duties with the diligence required of him and therefore may be
charged with negligence along with defend;int Gavino. 76
As correctly affirmed by the Court of Appeals —
We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before the incident. When
Gavino was (in) the command of the vessel, Kavankov was beside Gavino, relaying the commands or orders of Gavino
to the crewmembers-officers of the vessel concerned. He was thus fully aware of the docking maneuvers and
procedure Gavino undertook to dock the vessel. Irrefragably, Kavankov was fully aware of the bulk and size of the
vessel and its cargo as well as the weight of the vessel. Kavankov categorically admitted that, when the anchor and
two (2) shackles were dropped to the sea floor, the claws of the anchor did not hitch on to any hard object in the
seabed. The momentum of the vessel was not arrested. The use of the two (2) tugboats was insufficient. The
momentum of the vessel, although a little bit arrested, continued (sic) the vessel going straightforward with its bow
towards the port (Exhibit "A-1 ). There was thus a need for the vessel to move "full-astern" and to drop the other
anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov refused to act even as
Gavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel was
already about twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then, Kavankov
did nothing to prevent the vessel from hitting the pier simply because he relied on the competence and plan of Gavino.
While the "full-astern'' maneuver momentarily arrested the momentum of the vessel, it was, by then, too late. All
along, Kavankov stood supinely beside Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then,
Kavankov was negligent.
xxx xxx xxx
Page | 20
The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the
vessel. It has been held that the incompetence of the navigator, the master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC
is likewise liable for the damage sustained by the Appellee. 77
We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and
jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov
negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the duty
of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and
in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the
vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:
Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel . While the pilot
doubtless supersedes the master for the time being in the command and navigation of the ship, and his orders must
be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the
pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent.
He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a
sufficient watch on deck, and that the men are attentive to their duties.
. . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the
vessel entirely to the pilot; but that there are certain duties he has to discharge (notwithstanding there is a pilot on
board) for the benefit of the owners. . . . that in well conducted ships the master does not regard the presence of a
duly licensed pilot in compulsory pilot waters as freeing him from every, obligation to attend to the safety of the
vessel; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound
to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge
upon the pilot to use every precaution, but to insist upon such being taken. 79 (Italics for emphasis.)
In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and prior
to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court
therein ruled:
The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted,
is in discharge of his functions. . . . It is the duty of the master to interfere in cases of the pilot's intoxication or
manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has
the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it,
or not, according to his discretion. There was evidence to support findings that piaintiff's injury was due to the
negligent operation of the Atenas, and that the master of that vessel was negligent in failing to take action to avoid
endangering a vessel situated as the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest to the pilot the
danger which was disclosed, and means of avoiding such danger; and that the master's negligence in failing to give
timelt admonition to the pilot proximately contributed to the injury complained of. We are of opinion that the evidence
mentioned tended to prove conduct of the pilot, known to the master, giving rise to a case of danger or great
necessity, calling for the intervention of the master. A master of a vessel is not without fault in acquiescing in canduct
of a pilot which involves apparent and avoidable danger, whether such danger is to the vessel upon which the pilot
is, or to another vessel, or persons or property thereon or on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be
negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he had deemed the speed excessive
on the occasion in question. I think it was clearly negligent of him not to have recognized the danger to any craft moored at Gravell
Dock and that he should have directed the pilot to reduce his speed as required by the local governmental regulations. His failure
amounted to negligence and renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot might be regarded as
an independent contractor, he is at all times subject to the ultimate control of the ship's master. 82
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master observes
that the pilot is incompetent or physically incapable, then it is the dury of the master to refuse to permit the pilot to act. But if no such
reasons are present, then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if a
situation arose where the master, exercising that reasonable vigilance which the master of a ship should exercise, observed, or should
have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into danger, and there was in the
exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship from danger, the master
should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance commensurate with the circumstances. 84
Page | 21
Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial court, especially
as this is affirmed by the Court of Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due
mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisive action as master of
the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur before countermanding or
overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is precisely the reason
why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by
expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third
parties for damages sustained in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort. 87 At
common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel
compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a
pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused by the default
of others, 89 or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel master and owners
are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from
liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which
might have been conducive to the damage. The fact that the law compelled the master to take the pilot does not exonerate the vessel
from liability. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under
necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel are responsible to the
injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be
maintained that the circumstance of having a pilot on board, and acting in conformity to his directions operate as a discharge of
responsibility of the owners. 90Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for
all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not
a compulsory one in the sense that the owner or master of the vessel are bound to accept him, but is employed voluntarily, the owners
of the vessel are, all the more, liable for his negligent act. 91
In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty law,
the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however, by
the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid, and is not in compulsory charge of the
vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury,
but the negligence of the master or crew contributed thereto, the owners are liable . 92 But the liability of the ship in rem does not
release the pilot from the consequences of his own negligence. 93 The rationale for this rule is that the master is not entirely absolved
of responsibility with respect to navigation when a compulsory pilot is in charge. 94
By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the
early years of this century in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica & Co. vs. Anderson, et
al. 97 have withstood the proverbial test of time and remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners, must
be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders, and which did not
result from the failure of the owners to equip the vessel with the most modern and improved machinery. In China Navigation Co., the
pilot deviated from the ordinary and safe course, without heeding the warnings of the ship captain. It was this careless deviation that
caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and local navigators. Obviously, the
captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the collision. The Court could not but
then rule that —
The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing
through the strait in question, without a substantial reason, was guilty of negligence, and that negligence having
been the proximate cause of the damages, he is liable for such damages as usually and naturally flow therefrom. . . .
. . . (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while
under his control and management. . . . .
Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co. exonerated
the pilot from liability for the accident where the orders of the pilot in the handling of the ship were disregarded by the officers and
crew of the ship. According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the navigation only so far as
he can accomplish it through the officers and crew of the ship, and I don't see chat he can be held responsible for damage when the
evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible for a
compulsory pilot and the master of the vessel to be concurrently negligent and thus share the blame for the resulting damage as joint
tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient
that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly,
Page | 22
where several causes combine to produce injuries, a person is not relieved from liability because he is responsible
for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the
injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to
one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful
acts of the other concurrent rortfeasor. 99 Where several causes producing an injury are concurrent and each is an efficient cause
without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had
against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more
culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as
though his acts were the sole cause of the injury. 100
There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where
the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination
the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to
the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a
third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. 102
As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral,
witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square meters is already included
in this P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as
well as the corresponding two piles.
A The area was corresponding, was increased by almost two in the actual payment. That was why
the contract was decreased, the real amount was P1,124,627.40 and the final one is P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and
reconstruction in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2
year period that the damage portion was not repaired?
A I don't think so because that area was at once marked and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
Page | 23
xxx xxx xxx
Q You said in the cross-examination that there were six piles damaged by the accident, but that in
the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why there
was change in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the
same point. You have to redesign the driving of the piles. We cannot drive the piles at the same
point where the piles are broken or damaged or pulled out. We have to redesign, and you will note
that in the reconstruction, we redesigned such that it necessitated 8 plies.
Q Why not, why could you not drive the same number of piles and on the same spot?
A The original location was already disturbed. We cannot get required bearing capacity. The area is
already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different places, would not that
have sustained the same load?
A It will not suffice, sir. 103
We quote the findings of the lower court with approval.
With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount of
P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmark case
of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the ordinary course of
events the ramming of the dock would not have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the port construction price. The new structure
constructed not only replaced the damaged one but was built of stronger materials to forestall the possibility of any
similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual damages
caused by the damage to Berth 4 of the Manila International Port. Co-defendants Far Eastern Shipping, Capt. Senen
Gavino and Manila Pilots Association are solidariiy liable to pay this amount to plaintiff. 104
The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional cost of repair
and rehabilitation of the damaged section of the pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damages caused by the
negligence or other wrongs of the owners or those in charge of the vessel. As a general rule, the owners or those in possession and
control of a vessel and the vessel are liable for all natural and proximate damages caused to persons or property by reason of her
negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears to be a mere
afterthought, being tardily raised only in this petition, but also because there is no allegation or evidence on record about Berth No. 4
being unsafe and unreliable, although perhaps it is a modest pier by international standards. There was, therefore, no error on the part
of the Court of Appeals in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with its member pilot.
Capt. Gavino, in the absence of employer-employee relationship and in applying Customs Administrative Order No. 15-65, as basis for
the adjudged solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
PAR. XXVII. — In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the
pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot
thereof for the purpose of paying claims for damages to vessels or property caused through acts or omissions of its
members while rendered in compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot.
Page | 24
PAR. XXVIII. — A pilots' association shall not be liable under these regulations for damage to any
vessel, or other property, resulting from acts of a member of an association in the actual performance of his duty for
a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it being understood that if the
association is held liable for an amount greater than the amount above-stated, the excess shall be paid by the personal
funds of the member concerned.
PAR. XXXI. — If a payment is made from the reserve fund of an association on account of damages caused by a
member thereof, and he shall have been found at fault, such member shall reimburse the association in the amount
so paid as soon as practicable; and for this purpose, not less than twenty-five per centum of his dividends shall be
retained each month until the full amount has been returned to the reserve fund.
PAR. XXXIV. — Nothing in these regulations shall relieve any pilots' association or members thereof, individually or
collectively, from civil responsibility for damages to life or property resulting from the acts of members in the
performance of their duties.
Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicable maritime regulation,
state:
Art. IV
Sec. 17. Pilots' Association — The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or
firm, the members of which shall promulgate their own By-Laws not in conflict with the rules and regulations
promulgated by the Authority. These By-Laws shall be submitted not later than one (1) month after the organization
of the Pilots' Association for approval by the General Manager of the Authority. Subsequent amendments thereto shall
likewise be submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund —
a) Each Pilots' Association shall collectively insure its membership at the rate of
P50,000.00 each member to cover in whole or in part any liability arising from
any accident resulting in damage to vessel(s), port facilities and other properties
and/or injury to persons or death which any member may have caused in the
course of his performance of pilotage duties. . . . .
b) The Pilotage Association shall likewise set up and maintain a reserve fund
which shall answer for any part of the liability referred to in the immediately
preceding paragraph which is left unsatisfied by the insurance proceeds, in the
following manner:
1) Each pilot in the Association shall contribute from his own

account an amount of P4,000.00 (P6,000.00 in the Manila
Pilotage District) to the reserve fund. This fund shall not be
considered part of the capital of the Association nor charged as
an expense thereof.
2) Seventy-five percent (75 %) of the reserve fund shall be set

aside for use in the payment of damages referred to above
incurred in the actual performance of pilots' duties and the
excess shall be paid from the personal funds of the member
concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association

on account of damage caused by a member thereof who is
found at fault, he shall reimburse the Association in the amount
so paid as soon as practicable; and for this purpose, not less
than twenty-five percentum (25 %) of his dividend shall be
retained each month until the full amount has been returned to
the reserve fund. Thereafter, the pilot involved shall be entitled
to his full dividend.
6) When the reimbursement has been completed as prescribed

in the preceding paragraph, the ten percentum (10%) and the
Page | 25
interest withheld from the shares of the
other pilots in accordance with paragraph (4) hereof shall be
returned to them.
c) Liability of Pilots' Association — Nothing in these regulations shall relieve any

Pilots' Association or members thereof, individually or collectively, from any civil,
administrative and/or criminal responsibility for damages to life or property
resulting from the individual acts of its members as well as those of the
Association's employees and crew in the performance of their duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt. Gavino, correctly
based MPA' s liability not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the provisions of
Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was
not and has never been an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy,
did not state the factual basis on which it anchored its finding that Gavino was the employee of MPA. We are in accord
with MPA's pose. Case law teaches Us that, for an employer-employee relationship to exist, the confluence of the
following elements must be established: (1) selection and engagement of employees; (2) the payment of wages; (3)
the power of dismissal; (4) the employer's power to control the employees with respect to the means and method by
which the work is to be performed (Ruga versus NLRC, 181 SCRA 266).
xxx xxx xxx
The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and
declared by the Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra, in tandem
with the by-laws of the MPA. 107
There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is inapplicable since there is no vicarious
liability of an employer to speak of. It is so stated in American law, as follows:
The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They
are not the employer of their members and exercise no control over them once they take the helm of the vessel. They
are also not partnerships because the members do not function as agents for the association or for each other. Pilots'
associations are also not liable for negligently assuring the competence of their members because as professional
associations they made no guarantee of the professional conduct of their members to the general public. 109
Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been held
not liable for damages caused by the default of a member pilot. 110 Whether or not the members of a pilots' association are in legal
effect a copartnership depends wholly on the powers and duties of the members in relation to one another under the provisions of the
governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the master, but of an associate
assisting and participating in a common purpose. Ultimately, the rights and liabilities between a pilots' association and an individual
member depend largely upon the constitution, articles or by-laws of the association, subject to appropriate government regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljght of existing
positive regulation under Philippine law. The Court of Appeals properly applied the clear and unequivocal provisions of Customs
Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of employer-employee
relationship between MPA and Capt. Gavino which precludes the application of Article 2180 of the Civil Code.
True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature.
Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarily liable for
the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot at fault.
Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law or the
nature of the obligation requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing rule has the
force and effect of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to wit:
. . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative agency
pursuant to a delegated authority to fix "the details" in the execution or enforcement of a policy set out in the law
itself. Nonetheless, said administrative order, which adds to the procedural or enforcing provisions of substantive
law, is legally binding and receives the same statutory force upon going into effect. In that sense, it has equal, not
lower, statutory force and effect as a regular statute passed by the legislature. 112
Page | 26
MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from
liability beyond seventy-five percent (75 %) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs
Administrative Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount of liability
beyond that being for the personal account of the erring pilot and subject to reimbursement in case of a finding of fault by the member
concerned. This is clarified by the Solicitor General:
Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit
the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75 %) of
the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required
to be maintained by the pilots' association to answer (for) whatever liability arising from the tortious act of its
members. And even if the association is held liable for an amount greater than the reserve fund, the association may
not resist the liability by claiming to be liable only up to seventy-five per centum (75 %) of the reserve fund because
in such instance it has the right to be reimbursed by the offending member pilot for the excess. 113
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the Court of
Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and
WARNED that a repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt with more
severely.
The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor General
Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly
delaying proceedings due to delayed filing of required pleadings shall also be dealt with more stringently.
The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a repetition of
this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing of requisite pleadings, in
the interest of just, speedy and orderly administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant.
SO ORDERED.
G.R. No. 92594 March 4, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HON. SANDIGANBAYAN, FERDINAND E. MARCOS, IMELDA R. MARCOS, ROSENDO D. BONDOC, CESAR E. A. VIRATA, RUBEN ANCHETA,
JAIME C. LAYA, PLACIDO MAPA, JR., ROBERTO ONGPIN and CESAR C. ZALAMEA, respondents.
PUNO, J.:
An enduring touchstone of a republican form of government is its guarantee of equal protection of law. To the powerless, it is the promise of parity of
treatment with the powerful when they are similarly situated. This promise must be matched with performance, and to the extent that the resolutions of
the respondent court dated November 29, 1989 and March 9, 1990 accord fidelity to this constitutional precept, we affirm them.
Less the fat of legalesse, the facts are few and uncontroverted. Before 1986, the Landoil Group of Companies spearheaded by then Congressman Jose de
Venecia, Jr., was able to obtain foreign loans syndicated by various banks aggregating approximately one hundred twenty million US dollars ($120 M).
These foreign loans were guaranteed by PHILGUARANTEE, whose Board of Directors was then composed of private respondents, Rosendo D. Bondoc,
Cesar E. A. Virata, Ruben Ancheta, Jaime C. Laya, Placido Mapa, Jr., Roberto Ongpin, and Cezar Zalamea. Congressman de Venecia's group of companies
was unable to seasonably service these foreign loans and this compelled PHILGUARANTEE to assume its obligation as guarantor.
The EDSA revolution in February 1986 swept the Marcoses out of power. One of the first official acts of then President Corazon C. Aquino was the creation
of the Presidential Commission on Good Government (PCGG) under E.O No. 1. It was given the difficult task of recovering the illegal wealth of the
Marcoses, their family, subordinates and close associates. In due time, the Marcoses and their cronies had to face a flurry of cases, both civil and criminal,
all designed to recover the Republic's wealth allegedly plundered by them while in power. Case No. 0020 for Reconveyance, Reversion, Accounting,
Restitution and Damages was one of these cases. It was filed by the petitioner Republic against Jose de Venecia, Jr., Ferdinand E. Marcos, Imelda R.
Marcos, Rosendo D. Bondoc, Cesar E. A. Virata, Ruben Ancheta, Jaime C. Laya, Placido Mapa, Jr., Roberto Ongpin and Cesar C. Zalamea. We quote its
relevant allegations:
Page | 27
IV
GENERAL AVERMENTS
OF
DEFENDANTS' ILLEGAL ACTS
8. From the early years of his presidency, Defendant Ferdinand E. Marcos took undue advantage of his powers as President. All
throughout the period from September 21, 1972 to February 25, 1986, he gravely abused his powers under martial law and ruled as
Dictator under the 1973 Marcos promulgated Constitution. Defendant Ferdinand E. Marcos, together with other Defendants, acting
singly or collectively, and/or in unlawful concert with one another, in flagrant breach of public trust and of their fiduciary obligations
as public officers, with gross and scandalous abuse of right and power and in brazen violation of the Constitution and laws of the
Philippines embarked upon a systematic plan to accumulate ill-gotten wealth. Among others, in furtherance of said plan and acting in
unlawful concert with one another and with gross abuse of power and authority, Defendant Ferdinand E. Marcos and Imelda R.
Marcos:
(a) awarded contracts with the Government to their relatives, business associates, dummies, nominees, agents
or persons who were beholden to said Defendants, under terms and conditions grossly and manifestly
disadvantageous to the government;
(b) misappropriated, embezzled and/or converted to their own use funds of Government financial institutions;
(c) engaged in other illegal and improper acts and practices designed to defraud Plaintiffs and the Filipino people,
or otherwise misappropriated and converted to their own use, benefit and enrichment the lawful patrimony and
revenues of Plaintiff and the Filipino people.
9. Among the assets acquired by Defendants in the manner above-described and discovered by the Commission in the exercise of its
official responsibilities are funds and other property listed in Annex "A" hereof and made an integral part of this Complaint.
10. Defendants, acting singly or collectively, and/or in unlawful concert with one another, for the purpose of preventing disclosure
and avoiding discovery of their unmitigated plunder of the National Treasury and of their other illegal acts, and employing the services
of prominent lawyers, accountants, financial experts, businessman [sic] and other persons, deposited, kept and invested funds,
securities and other assets in various banks, financial institutions, trust or investment companies and with persons here and abroad.
SPECIFIC AVERMENTS OF
11. Defendant Jose de Venecia, Jr. taking undue advantage of his relationship, influence and connection with Defendants Ferdinand
E. Marcos and Imelda R. Marcos, acting by himself and/or in active collaboration with the other Defendants, embarked upon devices,
schemes and strategems to unjustly enrich themselves at the expense of Plaintiff and the Filipino people, among others:
(a) Organized and headed the Land Oil Group, a big business conglomerate engaged in a wide range of economic
activity, such as petroleum exploration and engineering, port management and operation, and other services.
The Land Oil Group, more particularly, the Land Oil Resources Corporation, its parent company, and its major
subsidiaries, the Philippine-Singapore Ports Corporation, the Greater Manila Land Corporation, Construction
Consortium, Inc. and the Philippine Hospitals and Health Services, had operations in the Philippines and abroad,
particularly, in the Middle East;
(b) To finance his huge domestic and overseas operations, Defendant Jose de Venecia, acting through the Land
Oil Group, borrowed enormous amounts in foreign currency denominated loans from several syndicates of
international banks, such as, but not limited to, Arab Banking Corporation, Ahli Bank of Kuwait, Credit Suisse,
First of Boston's, Saudi Cairo Bank, Mellon Bank and the Bank of Montreal. In view of the magnitude of the loans
and the project risks involved, the banks required that their loans be fully covered by the absolute and
unconditional guarantee of the Government of the Republic of the Philippines;
(c) Accordingly, Defendant Jose de Venecia applied for Philippine Government guarantee from the Philippine
Export and Foreign Loan Guarantee Corporation (Philguarantee), a government-owned and controlled corporation
organized to provide Philippine Government guarantees, and, with the active collaboration of Defendants Rosendo
D. Bondoc, who was then the President of Philguarantee and the members of its Board of Directors, Defendants
Cesar E. A. Virata, Ruben Ancheta, Jaime C. Laya, Placido Mapa, Jr., Roberto Ongpin and Cesar C. Zalamea was
granted full Philippine Government guarantee coverage;
Page | 28
(d) Defendant Jose de Venecia misused the proceeds of the loans by diverting them to
other uses and/or appropriation, then for his own personal benefit using for this purpose a string of local and
overseas banks, such as, but not limited to, PNB (New York), PNB (Buendia Branch), PCTB (Makati Branch), Swiss
Banking Corp. of Hongkong, and the Hongkong and Shanghai Banking Corp. in Hongkong, and in an effort to
hide his complicity in the diversion, refused to submit regular accounting and reports, all in violation of the
provisions of the loan and guarantee agreements;
(e) Notwithstanding the aforesaid repeated violations Philguarantee, with the active collaboration of Defendants
Rosendo D. Bondoc, Cesar E. A. Virata, Ruben Ancheta, Jaime C. Laya, Placido Mapa, Jr., Roberto Ongpin and
Cesar C. Zalamea, continued to provide financial assistance to the companies owned and controlled by Defendant
Jose de Venecia;
(f) As a result of gross mismanagement and wanton diversion of the loans, the major operations of the Land Oil
Group collapsed, Land Oil defaulted in the payment of its maturing principal and interests amortization and, like
the man holding the proverbial empty bag, Philguarantee had to advance on its guarantee using for this purpose
multi-millions of pesos in scarce government and taxpayers' money, resulting in grave and irreparable damage
to Plaintiff and to the entire Filipino people.
12. The acts of Defendants, singly or collectively, and/or in unlawful concert with one another, constitute gross abuse of official
position and authority, flagrant breach of public trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment,
violation of the Constitution and laws of the Republic of the Philippines, to the grave and irreparable damage of Plaintiff and the
Filipino people.
VI
CAUSE OF ACTION
13. First Cause of Action: ABUSE OF RIGHT AND POWER — (a) Defendants, in perpetrating the unlawful acts described above,
committed abuse of right and power which caused untold misery, suffering and damage to Plaintiff. Defendants violated, among
others, Articles 19, 20 and 21 of the Civil Code of the Philippines;
(b) As a result of the foregoing acts, Defendants acquired title to and beneficial interests in funds and other
property and concealed such title, funds and interests through the use of relatives, business associates, nominees,
agents or dummies. Defendants are, therefore, jointly and severally, liable to Plaintiff to return and reconvey all
such funds and other property unlawfully acquired; or alternatively, to pay Plaintiff, jointly and severally, by way
of indemnity, the damage cause to Plaintiff equivalent to the amount of such funds and the value of other property
not returned or restored to Plaintiff, plus interest thereon from the date of unlawful acquisition until full payment.
14. Second Cause of Action: UNJUST ENRICHMENT — Defendants illegally accumulated funds and other property in violation of the
laws of the Philippines and in breach of their official functions and fiduciary obligations. Defendants, therefore, have unjustly enriched
themselves to the grave and irreparable damage and prejudice of Plaintiff. Defendants have an obligation at law, independently of
breach of trust and abuse of right and power and; as an alternative, to jointly and severally return to Plaintiff such funds and other
property with which Defendants, in gross and evident bad faith, have unjustly enriched themselves or, in default thereof, restore to
Plaintiff the amount of such funds and the value of the other property including those which may have been wasted, and/or lost, with
interest thereon from the date of unlawful acquisition until full payment.
15. Third Cause of Action: BREACH OF TRUST — A public office is a public trust. By committing all the acts described above, Defendants
repeatedly breached public trust and the law, making them jointly and severally liable to Plaintiff. The funds and other property
acquired by Defendants as a result of their breach of public trust are deemed to have been acquired for the Benefit of Plaintiff and
are, therefore, impressed with constructive trust in favor of Plaintiff and the Filipino people.
16. Fourth Cause of Action: ACCOUNTING — The Commission, acting pursuant to the provisions of applicable law, respectfully
maintains that Defendants, acting singly or collectively, and/or in unlawful concert with one another, acquired funds, assets and
property during the incumbency of Defendant public officers, or while acting in unlawful concert with public officers, manifestly out
of proportion to their salaries, to their other lawful income and income from legitimately acquired property. Consequently, they are
required to show to the satisfaction of this Honorable Court that they have lawfully acquired all such funds, assets and property which
are in excess of their legal net income, and for this Honorable Court to decree that the Defendants are under obligation to account to
Plaintiff with respect to all legal or beneficial interests in funds, properties and assets of whatever kind and wherever located in excess
of their lawful earnings.
17. Fifth Cause of Action: LIABILITY FOR DAMAGES — (a) By reason of the unlawful acts set forth above, Plaintiff and the Filipino
people have suffered actual damages in an amount representing the pecuniary loss sustained by the latter as a result of Defendants'
unlawful acts, the approximate value and interest on which, from the time of their wrongful acquisition, plus expenses which Plaintiff
has been compelled to incur and shall continue to incur in its effort to recover Defendants' ill-gotten wealth all over the world.
Page | 29
Defendants are, therefore, jointly and severally liable to Plaintiff for actual damages and for expenses incurred
in the recovery of Defendants' ill-gotten wealth.
(b) As a result of Defendants' unlawful, malicious, immoral and wanton acts described above, Plaintiff and the
Filipino people had painfully endured and suffered for more than twenty long years, and still continue to endure
and suffer anguish, fright, sleepless nights, serious anxiety, wounded feelings and moral shock, as well as
besmirched reputation and social humiliation before the international community, for which Defendants are jointly
and severally liable to Plaintiff and the Filipino people for moral damages.
(c) In addition, Plaintiff and the Filipino people are entitled to temperate damages for their suffering which, by
their very nature, are incapable of pecuniary estimation, but which this Honorable Court may determine in the
exercise of its sound discretion.
(d) Defendants, by reason of the above described unlawful acts, have violated and invaded the inalienable right
of Plaintiff and the Filipino people to a fair and decent way of life befitting a Nation with rich natural and human
resources. This basic, and fundamental right of Plaintiff and the Filipino people should be recognized and
vindicated by awarding nominal damages in an amount to be determined by the Honorable Court in the exercise
of its sound discretion.
(e) By way of example and correction for the public good and in order to ensure that Defendants' unlawful,
malicious, immoral and wanton acts are not repeated, said Defendants are jointly and severally liable to Plaintiff
for exemplary damages.
Needless to state, the de Venecia group of companies and PHILGUARANTEE were sequestered by the petitioner, through the PCGG.
The filing of Case No. 0020 notwithstanding, an investigation was conducted to determine the veracity of the above allegations. The investigation
culminated in the signing of a Deed of Assignment between the petitioner and de Venecia, Jr., representing seven (7) of the eighteen (18) companies of
the Land Oil Group. The Deed was premised on the following facts found by the petitioner after its investigation, and recited in its whereas clauses, viz:
. . . . As a result of such investigation Philguarantee has satisfied itself (i) that such guarantee facility was obtained in the ordinary
and regular course of business, and that no favor was accorded to the Landoil officers, in the grant of such guarantee facility; and
(ii) that the business reversals experienced by the Landoil Group in connection with its various construction and other projects in the
Middle East and elsewhere were due, firstly, to the inability of the Landoil Group to collect its contract receivables from such projects
due to the reasons specified in the sixth "whereas" clause, and, secondly, due to the non-payment of its insurance claim under the
insurance policy referred to in the succeeding (ninth), "whereas" clause.
Certain obligations were then assumed by de Venecia, Jr., and his group, viz:
1.1 Upon the request of the Assignee (referring to petitioner), the Assignors (being the above-named companies making up Landoil
Group) shall immediately cause to be transferred to the Assignee (or its nominee/s) all the shares of the capital stock of Landoil (up
to 45% of the total outstanding issued and subscribed capital stock of Landoil) which have or may hereafter be identified as belonging
to Marcos (whether standing in his name or the name [of] any of his nominee/s). . . .
1.2 Upon the effectiveness of this Agreement, the Assignors shall cause to be paid to the Assignee, through PCGG, the amount of
P13 million, which amount represents a portion of Landoil's recovery from an arbitration proceeding which Landoil had caused to be
instituted in London against the Lloyd's Syndicate of Insurance Underwriters;
1.3 Effective immediately, the Assignors hereby assign, transfer and convey to the PCGG: (a) the entire proceeds of the Assignors'
claims in the New York case which Landoil has instituted against the insurance brokers, namely, the firm of Alexander and Alexander,
and (b) the entire proceeds of the Assignors' contract receivables from all the Assignors' construction and other projects in the Middle
East and elsewhere, net of any amount required for the settlement of any compulsory statutory liens for unpaid wages or salaries
and ordinary administrative overhead and costs, and attorney's fees and expenses of litigation.
xxx xxx xxx
1.5 The Assignors, and or their respective officers, hereby undertake to fully cooperate with the Philippine Government, acting through
the PCGG or any other governmental agency, in the prosecution of any case which the Philippine Government may cause to be filed
against former President Marcos and his cronies, either by furnishing testimony in any such case, or by providing information in any
investigation undertaken in the Philippines or elsewhere, as may be required or directed by the PCGG, or by other appropriate
governmental agency from time to time.
In reciprocity, petitioner agreed to cause the dismissal without prejudice of the complaint in Civil Case No. 0020 against de Venecia and his group of co-
signors.
Page | 30
Pursuant to this Deed of Assignment, de Venecia, Jr., with the express conformity of PCGG, moved to dismiss Civil Case No. 0020
against him. On September 8, 1989, the respondent court granted the motion to dismiss. The dismissal became final and executory. The other private
respondents followed suit with their respective motions to dismiss. The motions were opposed by the petitioner. Nonetheless, on December 4, 1989, the
respondent court dismissed the Expanded Complaint against herein private respondents. The dismissal was based on two (2) grounds: (1) removal of an
indispensable party in the person of de Venecia, Jr., from the Expanded Complaint; and (2) lack of cause of action in view of the facts established and
admitted by the petitioner in the Deed of Assignment. Petitioner's motion for reconsideration and its Supplement were denied by the respondent court on
March 9, 1990. Petitioner then filed the petition at bar, where it is contended:
16. The respondent Court committed grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the case
against defendant de Venecia's co-defendants, on the following grounds:
a) The Deed of Assignment executed on July 19, 1989 by Landoil in favor of the petitioner should not be made
to benefit de Venecia's co-defendant;
b) Defendant de Venecia is not an indispensable party in the prosecution of the case against his co-defendants;
c) The liabilities of de Venecia's co-defendants arose not only from their alleged conspiracy with defendant de
Venecia but also by virtue of their individual or collective actions done in unlawful concert with one another;
d) The causes of action against defendants Ferdinand E. Marcos and Imelda R. Marcos have nothing to do with
the Deed of Assignment executed by Landoil in favor of the petitioner; and
e) The parties manifestly intended to exclude defendant de Venecia's co-defendants from the benefit of the Deed
of Assignment in question.
We find partial merit in the petition.
The threshold question is whether the subject Deed of Assignment justifies the dismissal of Civil Case No. 0020 against, first, private respondents Bondoc,
Virata, Ancheta, Laya, Mapa, Jr., Ongpin, Zalamea, and second, against the private respondents, Ferdinand and Imelda R. Marcos.
We shall first determine the effect of the Deed of Assignment on the cause of action of petitioner against the first group of private respondents —
Bondoc, et al. Petitioner submits that the execution of the Deed need not result in the dismissal of Expanded Complaint against Bondoc, et al. It cites two
(2) reasons: (1) Bondoc, et al. were not parties to the Deed, and (2) petitioner did not receive any consideration or benefit from Bondoc, et al., when it
executed the said Deed.
Petitioner's submission misses the rationale of the ruling of the respondent court. The respondent court ordered the dismissal of the Expanded Complaint
because the Deed contained averments which nullified petitioner's cause of action. More specifically, the Deed averred ". . . as a result of such investigation
Philguarantee has satisfied itself (1) that such guarantee facility was obtained in the ordinary and regular course of business, and that no favor was
accorded to the Landoil officers, in the grant of such guarantee facility; . . ." If after investigation, petitioner has satisfied itself that the guaranty facility
was obtained in the ordinary and regular course of business, it follows that it can no longer insist it has a cause of action against Bondoc and company.
This admission of lack of cause of action constitutes an admission against interest. It binds the petitioner as it is not alleged that it was given due to fraud,
mistake or inadvertence. The adverse effects of the admission bind petitioner and it is not material that respondents Bondoc and company were not
parties to the Deed or that in executing the said Deed, petitioner did not receive any consideration from respondents Bondoc and company. An admission
against interest is a voluntary act and its effects do not depend on the concurrence of any other party or consideration of any kind.
Petitioner next contends that the respondent court erred in ruling that it has only one cause of action against the respondents Bondoc and company —
i.e., that as members of the Board of Directors of PHILGUARANTEE, they continuously extended and maintained unwarranted guarantees to cover the
foreign loans of de Venecia's Land Oil Group of Companies, cronies of the Marcoses. Petitioner's submission is shared by our brethren who dissented from
the majority. They are of the view that petitioner pleaded several causes of action. They then point to the introductory part of par. 11 of the Expanded
Complaint which used the phrase "among others," viz:
11. Defendant Jose de Venecia, Jr., taking undue advantage of his relationship, influence and connection with Defendants Ferdinand
schemes and strategems to unjustly enrich themselves at the expense of plaintiff and the Filipino People, among others. (Emphasis
supplied.)
They also cite par. 8 which used the same phrase "among others," viz:
. . . Defendant Ferdinand E. Marcos, together with other Defendants, acting singly or collectively, and/or in unlawful concert with one
another, in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right
and power and in brazen violation of the Constitution and laws of the Philippines, embarked upon a systematic plan to accumulate ill-
gotten wealth. Among others, in furtherance of said plan and acting in unlawful concert with one another and with gross abuse of
power and authority, . . . (Emphasis supplied.)
Page | 31
They also refer to par. 9 which also used the word "among," viz:
Among the assets acquired by Defendants in the manner above-described and discovered by the Commission in the exercise of its
official responsibilities are funds and other property listed in Annex "A" hereof and made an integral part of this Complaint. (Emphasis
supplied.)
They then cite paragraphs 13, 14, 15, 16, 17 and of the Expanded Complaint which allegedly enumerated five (5) causes of action.
This stand cannot be sustained. Par 8 of the Expanded Complaint merely laid down the "General Averments of Defendants' Illegal Acts."
The specific allegations of the acts and omissions committed by respondents Bondoc and company and constitutive of petitioner's cause of action are
recited in par. 11 of the Expanded Complaint. It is for this reason that par. 11 bears the descriptive title "Specific Averments of Defendants' Illegal Acts."
Needless to stress, the cause of action of the petitioner against the said respondents is spelled out in par. 11 (a) to (f). A perusal of par. 11 will yield no
other conclusion than that there is but one cause of action against these respondents -- that with conspiracy, they allegedly extended unwarranted
guarantees to enable the de Venecia group of companies, all cronies of the Marcoses, to obtain foreign loans. The use of the phrase "among others" in
the Expanded Complaint does not in any manner mean that petitioner has other concealed causes of action against these respondents. Smart pleaders
resort to said artful phrase only to gain more leeway in presenting their evidence. By no stretch of the imagination, however, can it be maintained that
the opaque phrase "among others" can confer a cause of action. Such a ruling cannot be reconciled with substantive due process which bars roaming
generalities in any kind of complaint, whether civil or criminal. It is for this reason that section 1 of rule 8 of the Rules of Court requires that "every
pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for
his claim or defense, as the case may be . . ." A transgression of this rule is fatal. Upon the other hand, paragraphs 13 to 17 of the Expanded Complaint
contain mere general averments and do not allege petitioner's specific cause of action against these respondents. They speak for themselves and they
need not undergo the scalpel of judicial scrutiny.
Petitioner and the dissent further forward the thesis: The averments earlier mentioned and the deed of assignment, juxtaposed with Annex "A", show prima
facie that (a) the petitioner did not intend to enter into any amicable settlement with the remaining eleven (11) corporations or regarding the frozen
assets listed in said Annex "A", and (b) the assets of the defendants in the said eleven (11) corporations were not necessarily obtained through or as a
consequence of the acts or transactions described in subparagraphs (a) to (f), paragraph 11 of the Expanded Complaint, but probably through "the other
devices, schemes or strategems."
Again, we find the thesis untenable. We need not agonize in search for the subjective intent of the petitioner in concluding the Deed of Assignment only
with the seven (7) corporations of the de Venecia group of companies. Speculations on intent can be endless for it is the nature of unmanifested intent
to be fugitive. But the effort is superfluous for we need not engage in this difficult intellectual jujitsu. For, whether or not it was petitioner's furtive intent
to settle amicably with all the corporations of de Venecia and the respondents Bondoc and company, is not decisive of the case at bar. What is
determinative is that in the Deed of Assignment, petitioner itself admitted that it has no cause of action against these respondents in Civil Case No. 0020.
The admission was made when, after conducting its own investigation, it found out that (1) de Venecia, Jr., was not a crony but a victim of the Marcoses;
(2) the guarantees extended by the private respondents as members of the Board of Director of PHILGUARANTEE were given in "the ordinary and regular
course of business and that no favor was accorded to the Landoil officers in the grant of such guarantee facility," and (3) that the business reversals
experienced by the Landoil Group in connection with its various construction and other projects in the Middle East and elsewhere were due, firstly, to the
inability of the Landoil Group to collect its contract receivables from such projects due to the reasons specified in the sixth "whereas" clause, and, secondly,
due to the non-payment of its insurance claim. In light of these specific admissions, there is no need to speculate why the other corporations of de Venecia
were not made parties to the Deed of Assignment.
The dissent likewise posits the highly stretched submission that there is a prima facie showing that the "assets of the defendants in the said eleven (11)
corporations were not necessarily obtained through or as a consequence of the acts or transactions described in subparagraphs (a) to (f), par. 11 of the
Expanded Complaint but probablythrough "the other devices, schemes or strategems." This submission of a prima facie showing self-destructs for the
factual basis given for its support is a mere guesswork — i.e., that probably the aforementioned assets were obtained through other devices, schemes or
strategems. Moreover, we are dealing with a petition for certiorari, where it may not be proper for this Court, concededly not a trier of fact, to rule about
the existence of a prima faciecase. To be sure, the facts of the case were not fully developed, for petitioner's Expanded Complaint was dismissed on the
basis of private respondents' motion to dismiss.
Additionally, the dissent urges that the petitioner's admissions ". . . do not by themselves clear the Board of Directors or the officers of the Philguarantee
from any liability which could have arisen from the grant of the guaranty facility." The given reason is that "private respondents were not sued as directors
or officers of a private corporation, but as government officials who under the Constitution were obliged to serve with the highest degree of responsibility,
integrity, loyalty and efficiency and to remain accountable to the people." With due deference this view that respondents Bondoc and company were not
sued as members of the Board of PHILGUARANTEE but as public officials is simply irreconcilable with the allegations in the Expanded Complaint of the
petitioner, viz:
xxx xxx xxx
5. Defendants ROSENDO D. BONDOC was the President of the Philippine Export and Foreign Loan Guarantee Corporation
(Philguarantee) while Defendants CESAR E. A. VIRATA, RUBEN ANCHETA, JAIME C. LAYA, PLACIDO MAPA, JR., ROBERTO ONGPIN,
and CESAR C. ZALAMEA were the members of its Board of Directors.
xxx xxx xxx
Page | 32
V
SPECIFIC AVERMENTS
OF DEFENDANTS' ILLEGAL ACTS
xxx xxx xxx
(b) To finance his huge domestic and overseas operations, Defendant Jose de Venecia, acting through the Land Oil Group, borrowed
enormous amounts in foreign currency denominated loans from several syndicates of international banks, such as, but not limited to,
Arab Banking Corporation, Ahli Bank of Kuwait, Credit Swisse First of Boston, Saudi Cairo Bank, Mellon Bank and the Bank of Montreal.
In view of the magnitude of the loans and the project risks involved, the banks required that their loans be fully covered by the
absolute and unconditional guarantee of the Government of the Republic of the Philippines.
(c) Accordingly, Defendant Jose de Venecia applied for Philippine Government guarantee from the Philippine Export and Foreign Loan
Guarantee Corporation (Philguarantee), a government-owned and controlled corporation organized to provide Philippine Government
guarantees, and, with the active collaboration of Defendants Rosendo D. Bondoc, who was then the President of the Philguarantee
and the members of its Board of Directors, Defendants Cesar E. A. Virata, Ruben Ancheta, Jaime C. Laya, Placido Mapa, Jr., Roberto
Ongpin and Cesar C. Zalamea was granted full Philippine government guarantee coverage;
(d) Defendant Jose de Venecia misused the proceeds of the loans by diverting them to other uses and/or appropriation, then for his
own personal benefit using for this purpose a string of local and overseas banks, such as, but not limited to, PNB (New York), PNB
(Buendia Branch), PCTB (Makati Branch), Swiss Banking Corp. of Hongkong, and the Hongkong and Shanghai Banking Corp. in
Hongkong, and in an effect to hide his complicity in the diversion, refused to submit regular accounting and reports, all in violation of
the provisions of the loan and guarantee agreements;
(e) Notwithstanding the aforesaid repeated violations, Philguarantee, with the active collaboration of Defendants Rosendo D. Bondoc,
Cesar E. A. Virata, Ruben Ancheta, Jaime C. Laya, Placido Mapa, Jr., Roberto Ongpin and Cesar C. Zalamea, continued to provide
financial assistance to the companies and controlled by Defendant Jose de Venecia. (Emphasis supplied).
There cannot be any iota of doubt that said respondents were sued as members of the Board of PHILGUARANTEE and not as public officials. Indeed, if
they were able to guaranty the foreign loans of petitioner it was because they were members of the Board of PHILGUARANTEE and for no other reason.
But even granting arguendo that these respondents were sued as public officials, we cannot perceive how they could be charged with betrayal of their
trust considering again petitioner's admission that the guarantee facilities were extended in the "ordinary and regularcourse of business."
Petitioner further contends that the emerging rule in the United States is that the release of one tortfeasor does not automatically result in the release of
the other tortfeasors, hence, the case against the private respondents should not be dismissed even if it had consented to the dismissal of the case against
de Venecia, Jr. We fail to see how the principles of tort can apply to the case at bench. Civil Case No. 0020 can hardly be classified as a tort case for, as
petitioner itself labels its complaint, it is one for reconveyance, reversion, accounting, restitution and damages. Petitioner has never taken the stance that
its cause of action is predicated on tort.
But even if we apply the principles of tort to the case at bench, we still affirm the ruling of the respondent court that the complaint against private
respondents as former directors of PHILGUARANTEE should be dismissed. It is true that in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 US 321,
91 S. Ct. 795, the US Supreme Court held that "a party releases only those other parties whom he intends to release." Nonetheless, the ruling should be
interpreted in light of the text of the release document executed by Zenith, viz:
To All To Whom These Presents Shall Come Or May Concern, Greeting: Know ye, That Zenith Radio Corporation and The Rauland
Corporation, each a corporation organized and existing under and by virtue of the laws of the State of Illinois, for and in consideration
of the sum of One Dollar ($1.00) lawful money of the United States of America and other good and valuable consideration, to them
in hand paid by . . . the receipt whereof is hereby acknowledged, have each remised, released and forever discharged, and by these
presents does each for itself and its respective subsidiaries, successors and assigns remise, release and forever discharge the said . .
. and its subsidiaries and their respective successors and assigns of and from all, and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, in
admiralty, or in equity, which against
said . . ., its subsidiaries and their respective successors and assigns, said Zenith Radio Corporation and the Rauland Corporation and
each of them ever had, now has or which each of them and their respective subsidiaries, successors and assigns, hereafter can, shall
or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date
of these presents, not including however, claims, if any, for unpaid balances on any goods sold and delivered.
"Insert
"Radio Corporation of America", or
"General Electric Company," or
Page | 33
"Western Electric Company."
"This release may not be changed orally."1
It is clear from the text of this release document in Zenith that the release was made in exchange for a valuable consideration, thus, in satisfaction of
Zenith's claim. In the case at bench, petitioner released de Venecia, Jr. and some of his companies not because its claim has already been satisfied by a
sufficient consideration, but because of the fact that it could not establish its cause of action against them. Petitioner's investigation showed that de
Venecia, Jr., was not a crony of former President Marcos and that he obtained the guarantees to his foreign loans in the regular and ordinary course of
business. In plain language, petitioner was convinced that de Venecia, Jr., and company did not commit any actionable wrong, including any tortious act.
It ought to follow that the complaint against the respondents Bondoc and company for extending the said guarantees in favor of de Venecia, Jr., cannot
also be pursued any further. The complaint against de Venecia, Jr., and these respondents are inseparable, especially because petitioner relied on the
theory of conspiracy. In any event, the rule with respect to the effect of release of one tortfeasor on other tortfeasors is still in a state of fluctuation even
in the United States. Thus, the 2nd Restatement of the Law on Torts states:
Statutes. About half of the states have now passed statutes covering the matter. They change the early common law with varying
positions, but a substantial number provide that neither a release nor a covenant not to sue discharges the other tortfeasor unless its
terms so provide. This is the provision in both the 1955 Uniform Contribution Among Tortfeasors Act and the Uniform Comparative
Fault Act.
Present status. States may now be classed as follows:
(1) A release amounts to a complete discharge, no matter what language is used.
(2) An instrument in the form of a release discharges all tortfeasors; a covenant not to sue does not.
(3) The intent is controlling, irrespective of the language — sometimes with a rebuttable presumption either for or against discharge
of the other tortfeasor.
(4) A release of one tortfeasor does not discharge the other unless it so provides. There is frequent change in the alignment of the
states, usually in the direction toward classification.
Next, petitioner argues that the respondent court gravely abused its discretion when it held that de Venecia, Jr., was an indispensable party; hence, his
exclusion in the Expanded Complaint ought to result in the dismissal of the same Complaint against the private respondents. The argument has merit
considering that the case can be decided without impleading de Venecia, Jr. Be that as it may, this ruling is not enough reason to completely reverse the
respondent court. As discussed above, the petitioner dropped its cause of action in its Expanded Complaint by signing the said Deed of Assignment. It
has precluded itself from further pursuing its complaint not only against de Venecia, Jr., but also against respondents Bondoc and company who served
as former directors of PHILGUARANTEE.
We now come to the submission of petitioner that the dismissal of the complaint against the respondents Marcoses ordered by the respondent court is a
grave abuse of discretion. We agree that the Marcoses should be treated differently from de Venecia, Jr., and the respondents Bondoc and company. For
in the aforementioned Deed of Assignment, the petitioner only recognized the lack of culpability of de Venecia, Jr., and by necessary inference, the
respondents Bondoc and company. In contrast, however, the said Deed did not exculpate the Marcoses, but on the contrary, inculpated them. More
specifically, the Deed alleged that former President Marcos "by himself and/or through his designated nominees or cronies, owns approximately 45% of
the outstanding capital stock of Landoil, and through Landoil, a proportionate portion of the outstanding capital stock of each of the other companies of
the Landoil Group". According to the same Deed, the former President and his cronies "coveted the Landoil groups and caused the same to betaken over
by his (referring the Marcos) agents and business associates . . .". It was for this reason that in the same Deed, de Venecia, Jr., agreed to surrender to
petitioner all the Marcoses' shares in the Landoil group of companies and to cooperate in the prosecution of any case to be filed against the Marcoses. In
fine, the Deed of Assignment leaves it crystal clear that petitioner has not surrendered its cause of action against the Marcoses as it did with respect to
the respondents Bondoc and company.
One final point. The dismissal of the Complaint against Bondoc and company is compelled by the equal protection clause of the Constitution. De Venecia,
Jr., and the respondents Bondoc and company are similarly situated. Respondent Bondoc, et al. were included in the Complaint only because they allegedly
gave unwarranted favors to de Venecia, Jr., in guaranteeing the latter's foreign loans. When petitioner admitted that no undue favor was granted to de
Venecia, Jr. in the grant of such guaranty facilities and dismissed its complaint against him, petitioner cannot avoid its duty of dismissing its complaint
against respondents Bondoc and company. To give a more favored treatment to de Venecia, Jr., when the parties are equally situated is to indulge in
invidious discrimination.
IN VIEW WHEREOF, the resolutions dated November 29, 1989 and March 9, 1990 of the respondent court are affirmed with the modification that the
Expanded Complaint against the respondents Marcoses in Civil Case
No. 0020 is reinstated and ordered to be remanded to the respondent court for further proceedings.
SO ORDERED.
Page | 34
Feliciano, Bidin, Regalado, Nocon, Bellosillo, Melo, Vitug and Kapunan, JJ., concur.
Narvasa, C.J., Cruz, Romero and Quiason, JJ., took no part.
Separate Opinions
DAVIDE, JR., J., dissenting:
I respectfully submit that the respondent Sandiganbayan committed grave abuse of discretion in promulgating the challenged resolutions. I am, therefore,
unable to concur with the majority opinion except insofar as it orders the reinstatement of the Expanded Complaint in Civil Case No. 0020 against the
Marcoses.
The principal issue in this case is whether the dismissal by the Sandiganbayan of Civil Case No. 0020 as against defendant Jose De Venecia, by virtue of
a Deed of Assignment executed between the Presidential Commission on Good Government (PCGG) and seven corporations belonging to the Landoil
Group, should likewise inure to the benefit of De Venecia's co-defendants. The Sandiganbayan thought that it should and dismissed the case against the
co-defendants. The petitioner thinks otherwise and submits that the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in so doing.
The material operative facts and procedural antecedents generative of this controversy are not disputed.
The Petitioner, represented by the PCGG, filed on 27 July 1987 with the Sandiganbayan a complaint for Reconveyance, Reversion, Accounting, Restitution
and Damages against JOSE DE VENECIA, JR., FERDINAND E. MARCOS, IMELDA R. MARCOS, ROSENDO D. BONDOC, CESAR E. A. VIRATA, RUBEN
ANCHETA, JAIME C. LAYA, PLACIDO MAPA, JR., ROBERTO ONGPIN and CESAR C. ZALAMEA.1 The complaint was docketed as Civil Case No. 0020. Upon
prior leave of the Sandiganbayan, the Petitioner filed on 25 January 1988 an Expanded Complaint,2 the pertinent portions of which read as follows:
IV
GENERAL AVERMENTS
OF
Marcos:
(c) engaged in other illegal and improper acts and practices designed to defraud Plaintiffs and the Filipino people,
or otherwise misappropriated and converted to their own use, benefit and enrichment the lawful patrimony and
revenues of Plaintiff and the Filipino people.
Page | 35
10. Defendants, acting singly or collectively, and/or in unlawful concert with one another, for the purpose of
preventing disclosure and avoiding discovery of their unmitigated plunder of the National Treasury and of their other illegal acts, and
employing the services of prominent lawyers, accountants, financial experts, businessman [sic] and other persons, deposited, kept
and invested funds, securities and other assets in various banks, financial institutions, trust or investment companies and with persons
here and abroad.
(d) Defendant Jose de Venecia misused the proceeds of the loans by diverting them to other uses and/or
appropriation, then for his own personal benefit using for this purpose a string of local and overseas banks, such
as, but not limited to, PNB (New York), PNB (Buendia Branch), PCTB (Makati Branch), Swiss Banking Corp. of
Hongkong, and the Hongkong and Shanghai Banking Corp. in Hongkong, and in an effort to hide his complicity
in the diversion, refused to submit regular accounting and reports, all in violation of the provisions of the loan
and guarantee agreements;
Jose de Venecia;
Filipino people.
VI
CAUSE OF ACTION
Page | 36
13. First Cause of Action: ABUSE OF RIGHT AND POWER — (a) Defendants, in perpetrating the unlawful acts
described above, committed abuse of right and power which caused untold misery, suffering and damage to Plaintiff. Defendants
violated, among others, Articles 19, 20 and 21 of the Civil Code of the Philippines;
Defendants are, therefore, jointly and severally liable to Plaintiff for actual damages and for expenses incurred in the recovery of
Defendants' ill-gotten wealth.
for exemplary damages.3
The Annex "A" mentioned in paragraph 9 of the Expanded Complaint read as follows:
ASSETS AND OTHER PROPERTY OF

JOSE DE VENECIA, JR.
Page | 37
PERSONAL PROPERTY
A. SHARES OF STOCK IN:
1. Landoil Resources Corporation

2. Pacific Asia Builders Corporation
3. Greater Manila Land Corporation
4. Construction Consortium, Inc.
5. Asian Water and Sewer System, Inc.
6. International Medical Group, Inc.
7. Philippine Hospitals and Health Services, Inc.
8. Global Electrification Systems, Inc.
9. Philippine-Singapore Ports Corporation
10. Asiaphil Fisheries Corporation
11. Transnational Systems, Inc.
12. International Agribusiness Corporation
13. IOMC Philippines, Inc.
14. International Centers for Technology Transfer, Inc.
15. Landoil Trading Corporation
16. Multiland Insurance Agency, Inc.
17. Freeport Security Agency, Inc.
18. International Caterer's, Inc.
BANK ACCOUNTS:
1. Frozen Bank Accounts and other Assets of Placido Mapa, Jr.

2. Frozen Bank Accounts and other Assets of Cesar C. Zalamea
AND ALL OTHER ASSETS OF ALL DEFENDANTS SEQUESTERED AND/OR FROZEN BY THE COMMISSION PURSUANT TO EXECUTIVE
ORDER NOS. 1 AND 2.4
The five (5) volumes of the original records of Civil Case No. 0020 readily disclose that the case has undergone unnecessary delays through the filing of
motions for extension of time to file answer or other responsive pleading, motions for bill of particulars and motions to dismiss, which were followed by
exchanges of related pleadings such as opposition, reply to opposition and others. These motions for bill of particulars or motions to dismiss were denied
by the Sandiganbayan. Thereafter, separate answers were successively filed by defendants (now private respondents) Ongpin, Laya, Ancheta, Bondoc,
Mapa, Jr., Virata and Zalamea. These answers were filed between 21 January 1988 and 10 August 1989.5
Alias summons were served upon Ferdinand E. Marcos and Imelda R. Marcos on 10 November 1988 at 2338 Makiki Heights, Honolulu, Hawaii.6 In its
Resolution of 6 April 1989,7 the Sandiganbayan declared them in default in Civil Case No. 0020 and other cases.
On 30 June 1989, defendant De Venecia filed a motion to dismiss Civil Case No. 0020 insofar as he is concerned in view of a Deed of Assignment executed
on 19 July 1988 between Landoil Resources Corporation, including its subsidiaries, and the Petitioner, through the PCGG as represented by its Acting
Chairman, Hon. Adolfo S. Azcuna.8On 16 July 1989, De Venecia filed an amended motion to dismiss9 which the Petitioner opposed on the ground that De
Venecia is not a party to the Deed of Assignment and that the said deed is still subject to the approval of the PCGG. 10
On 8 September 1989, the Sandiganbayan promulgated a Resolution dated 7 September 1989 granting De Venecia's amended motion to dismiss and
dismissing Civil Case No. 0020 as against him. 11 As a consequence thereof, Ongpin filed on 11 September 1989 a motion for a hearing on his affirmative
defenses. 12 On 12 September 1989, Zalamea filed a motion to dismiss on the ground that there is no more legal and factual basis to proceed against him
in view of the dismissal of the case as against De Venecia. 13 He argued that the latter is an indispensable party; hence, the dismissal of the case against
De Venecia should result in the dismissal of the case against the other co-defendants pursuant to Section 7, Rule 3 of the Rules of Court. Separate motions
to dismiss on the same ground as that of Zalamea's were successively filed by Ongpin, Ancheta, Mapa, Jr. and Laya. 14 Laya filed his motion on 28
September 1989.
In the meantime, the Petitioner filed on 28 September 1989 a motion to reconsider the Resolution of 7 September 1989. 15 However, on 17 October 1989,
counsel for De Venecia submitted to the Sandiganbayan a letter of the PCGG dated 16 October 1989 and addressed to the Solicitor General requesting
the latter to withdraw the motion for reconsideration. 16
The Petitioner filed on 17 October 1989 a Consolidated Opposition 17 to the motions to dismiss wherein it alleged the prematurity of the filing of the
motions to dismiss since it had filed a motion to reconsider the 8 September 1989 Resolution dismissing the case as against De Venecia.
On 28 September 1989, defendant Ferdinand E. Marcos died and on 10 November 1989, the Petitioner filed a motion for his substitution by his heirs, viz.,
Imelda R. Marcos, Ferdinand Marcos, Jr., Irene Marcos-Araneta and Imee Marcos-Manotoc. 18 This was granted by the Sandiganbayan in its Resolution of
16 November 1989. 19
Page | 38
On 4 December 1989, the Sandiganbayan (Second Division) promulgated a Resolution, dated 29 November 1989, dismissing Civil
Case No. 0020 as against De Venecia's co-defendants, the private respondents in the instant
case. 20 Petitioner's motion of 27 December 1989 21 and supplemental motion of 25 January 1990 22 to reconsider the said Resolution were denied in the
Sandiganbayan's Resolution of 9 March 1990. 23 These Resolutions are now challenged in this petition which was filed on 24 April 1990. 24 Petitioner claims
that these were issued by the respondent Sandiganbayan with grave abuse of discretion amounting to lack or excess of jurisdiction. In support thereof,
the Petitioner contends that:
a) The Deed of Assignment executed on July 19, 1989 [should be 1988] by Landoil in favor of the petitioner should not be made to
benefit De Venecia's co-defendants;
b) Defendant De Venecia is not an indispensable party in the prosecution of the case against his co-defendants;
c) The liabilities of De Venecia's co-defendants arose not only from their alleged conspiracy with defendant De Venecia but also by
virtue of their individual or collective actions done in unlawful concert with one another;
d) The causes of action against defendants Ferdinand E. Marcos and Imelda R. Marcos have nothing to do with the Deed of Assignment
executed by Landoil in favor of the petitioner; and
e) The parties manifestly intended to exclude defendant De Venecia's co-defendants from the benefit of the Deed of Assignment in
question. 25
I find merit in this petition.
The Deed of Assignment, 26 upon which the dismissal of Civil Case

No. 0020 as against De Venecia is based, was executed between the (1) Landoil Resources Corporation, (2) Philippine Singapore Ports Corporation, (3)
Asian Water and Sewer System, Inc., (4) Construction Consortium, Inc., (5) Pacific Asia Builders and Developers, Inc., (6) Philippine Hospitals and Health
Service, Inc. and (7) Greater Manila Land Corporation, as ASSIGNORS, and represented therein by Ambrosio C. Collado as President of the Landoil
Resources Corporation and attorney-in-fact for the others, and the Republic of the Philippines, represented by the PCGG through its then Acting Chairman,
Hon. Adolfo S. Azcuna, as the ASSIGNEE. As described therein, the former "constitute a group of related companies" sometimes referred to as the "Landoil
Group," with the Landoil Resources Corporation, "organized by or at the initiative of Jose de Venecia," as their "flagship." These ASSIGNORS are but seven
(7) of the eighteen (18) corporations enumerated in Annex "A" of the Expanded Complaint in Civil Case No. 0020. 27 Not parties to the deed of assignment
are International Medical Group, Inc.; Global Electrification Systems, Inc.; Asiaphil Fisheries Corporation; Transnational Systems, Inc.; International
Agribusiness Corporation; IOMC Philippines, Inc.; International Centers for Technology Transfer, Inc.; Landoil Trading Corporation; Multiland Insurance
Agency, Inc.; Freeport Security Agency, Inc.; and International Caterer's, Incorporated. Pertinent portions of the recital part of the deed of assignment
read as follows:
xxx xxx xxx
(2) Immediately after the organization of the Presidential Commission on Good Government (PCGG) in February 1986, the Landoil
Group, acting through Landoil itself, asked the PCGG to place the Landoil Group under sequestration for the reason that former
President Ferdinand E. Marcos, by himself and/or through his designated nominees or cronies, owns approximately 45% of the
outstanding capital stock of Landoil, and through Landoil, a proportionate portion of the outstanding capital stock of each of the other
companies of the Landoil Group;
xxx xxx xxx
(7) To negate the imputation that the Landoil Group are Marcos "crony" companions, and that Jose de Venecia and other officers of
the Landoil Group are Marcos "cronies," the Landoil Group submitted proof tending to show that they were in fact the victims rather
than the "cronies" of Marcos who, in 1977, coveted the Landoil Group and caused the same to be taken over by his (Marcos') agents
and business associates for his (Marcos') benefit after the discovery of oil deposits off Palawan by a consortium of oil exploration
companies of which Landoil was a substantial member, and the acquisition of Landoil, also in 1977, of a prime port operations contract
in Saudi Arabia with a value of US$350 million;
(8) After the establishment of the present Aquino Government, Philguarantee caused an investigation to be undertaken as to (a) the
background of the issuance of the alleged "behest" guarantee facility in favor of the Landoil Group, and (b) the management and
operations of the Landoil Group, both in the Philippines and in the Middle East. As a result of such investigation Philguarantee has
satisfied itself (i) that such guarantee facility was obtained in the ordinary and regular course of business, and that no favor was
accorded to the Landoil officers, in the grant of such guarantee facility; and (ii) that the business reversals experienced by the Landoil
Group in connection with its various construction and other projects in the Middle East and elsewhere were due, firstly, to the inability
of the Landoil Group to collect its contract receivables from such projects due to the reasons specified in the sixth "whereas" clause,
and, secondly, due to the non-payment of its insurance claim under the insurance policy referred to in the succeeding (ninth)
"whereas" clause. 28
Subject to certain conditions, the ASSIGNORS assumed the following obligations:
Page | 39
1.1. Upon the request of the Assignee, the Assignors (being the above-named companies making up Landoil
Group) shall immediately cause to be transferred to the Assignee (or its nominee/s) all the shares of the capital stock of Landoil (up
to 45% of the total outstanding issued and subscribed capital stock of Landoil) which have or may hereafter be identified as belonging
to Marcos (whether standing in his name or the name [of] any of his nominee/s). . . .
1.2. Upon the effectiveness of this Agreement, the Assignors shall cause to be paid to the Assignee, through PCGG, the amount of
1.3. Effective immediately, the Assignors hereby assign, transfer and convey to the PCGG: (a) the entire proceeds of the Assignors'
xxx xxx xxx
1.5. The Assignors, and or their respective officers, hereby undertake to fully cooperate with the Philippine Government, acting
through the PCGG or any other governmental agency, in the prosecution of any case which the Philippine Government may cause to
be filed against former President Marcos and his cronies, either by furnishing testimony in any such case, or by providing information
in any investigation undertaken in contemplation of the filing of such case, whether in the Philippines or elsewhere, as may be required
or directed by the PCGG, or by other appropriate governmental agency from time to time. 29
In consideration of the ASSIGNORS' undertakings, the ASSIGNEE, viz., the Republic of the Philippines, agreed:
2.1. . . . to cause the sequestration order issued against Landoil to be lifted upon the effectiveness of this Agreement. In addition,
the Assignee shall cause the dismissal, without prejudice, of Civil Case No. 0020, entitled "Republic of the Philippines vs. Jose de
Venecia, Jr., et al.," in so far as the Assignors and Jose de Venecia are concerned: provided, however, that such case shall be deemed
automatically reinstated in the event of non-compliance by any of the Assignors with any of its obligations and undertakings
hereunder. 30
The dismissal by the Sandiganbayan of Civil Case No. 0020 as against De Venecia's co-defendants is anchored on the following grounds:
a) The dismissal of the case as against de Venecia pursuant to the Resolution of 8 September 1989, "which . . . has now become final
and executory after the plaintiff withdrew its 'Motion for Reconsideration,'" "in effect, removed an indispensable party from this case."
De Venecia is an indispensable party because his involvement in the transactions, together with the Landoil Group, which are described
in paragraph 11 of the Expanded Complaint, "constitute and/or comprise the very essence of the only cause of action which is
specifically averred in said Complaint, the other causes of action alleged therein being premised on mere general averments." With
the removal of De Venecia from the case with the express conformity of the plaintiff, no judgment can be rendered or liability enforced
against the other defendants who are alleged to have acted in conspiracy with him. 31
(2) The motions to dismiss filed by de Venecia's co-defendants may be treated as motions for summary judgment because when an
indispensable party "has . . . been dropped from the complaint by reason of a compromise or amicable settlement which practically
negates the legal or factual basis for the principal cause of action, then a fortiori, . . . the cause of action has become not only
insufficient but in existent." The "issues having been joined already . . ., there is nothing which could prevent defendants from
submitting the case for summary judgment." 32
(3) As to defendants Ferdinand E. Marcos and Imelda R. Marcos, although they were declared in default, a "perusal of the General
and Specific Averments of the Expanded complaint, in relation to the causes of action described therein, will indubitably show that
above-named defendants' alleged liabilities are intimately intertwined and closely related to the transactions subject matter of the
compromise agreement between the PCGG and defendant De Venecia. "Accordingly, the "compromise, . . . inures to, and benefits,
defendants spouses Marcoses and completely removes any legal or factual bases for their retention as defendants in this case." 33
In its Resolution of 9 March 1990 34

denying the Petitioner's motion to reconsider the said dismissal, the Sandiganbayan stressed that:
. . . the one and only cause of action set out in the Expanded Complaint appears in paragraph 11 thereof, and outlined in detail under
sub-paragraphs (a) and (f), inclusive. The Compromise Agreement, as we had pointed out, not only removed De Venecia as an
indispensable party but also deprived the Expanded Complaint of any and all factual or legal support for the sole cause of action set
forth therein. 35
I cannot agree.
Page | 40
In the first place, the Sandiganbayan got itself entangled in a web of incorrect premises which, unfortunately, became the bases
for its conclusions. For one, it is not true that the Petitioner has only one (1) cause of action as described in paragraph 11 of the Expanded Complaint. As
could be gathered from the introductory portion of said paragraph 11 under subheading V on Specific Averments of Defendants' Illegal Acts, the acts or
transactions enumerated in subparagraphs (a) to (f) thereof are merely "among others." It reads:
schemes and strategems to unjustly enrich themselves at the expense of Plaintiff and the Filipino People, among others:
xxx xxx xxx
Among simply means "mingled with or in the same group or class" or "in or through the midst of." 36
Moreover, paragraph 8 thereof on General
Averments states that:
power and authority, . . . .
and paragraph 9 states:
(9) Among the assets acquired by Defendants in the manner above-described and discovered by the Commission in the exercise of
its official responsibilities are funds and other property listed in Annex "A" hereof and made an integral part of this complaint.
Finally, paragraphs 13, 14, 15, 16 and 17 enumerate five (5) causes of action.
As earlier noted, of the eighteen (18) corporations enumerated in Annex "A" of the complaint, only SEVEN (7) are parties to the Deed of Assignment as
ASSIGNORS therein. Also listed in said Annex "A" are (1) frozen bank accounts and other assets of defendant Placido E. Mapa, Jr., (2) frozen bank accounts
and other assets of defendant Cesar Zalamea, and (3) all other assets of all defendants sequestered and/or frozen by the Commission pursuant to
Executive Order Nos. 1 and 2. The averments earlier mentioned and the deed of assignment, juxtaposed with Annex "A," show prima facie that (a) the
Petitioner did not intend to enter into any amicable settlement with the remaining eleven (11) corporations or regarding the frozen assets listed in said
Annex "A," and
(b) the assets of the defendants in the said eleven corporations were not necessarily obtained through or as a consequence of the acts or transactions
described in subparagraphs (a) to (f), paragraph 11 of the Expanded Complaint, but probably through "the other devices, schemes or strategems."
Otherwise, these remaining corporations should have been made parties to the deed of assignment. Inclusio unius est exclusio alterius.
For another, it is not true that De Venecia is the principal party either in the specific acts described in subparagraphs (a) to (f), paragraph 11 of the
Expanded Complaint or in the other "devices, schemes or strategems." If, at all, there are principal party defendants in Civil Case No. 0020, then a reading
of the Expanded Complaint readily reveals that they are Ferdinand E. Marcos and Imelda R. Marcos. Of course, there are allegations of conspiracy which,
for purposes of the nature of the action pursued, must be understood to be civil conspiracy, 37 as distinguished from conspiracy in criminal law. 38
Nor is it true that De Venecia is an indispensable party with respect to the acts or transactions subject of the causes of action. An indispensable party is
defined as one without whom the action cannot be finally determined, whose interest in the subject matter of the suit and in the relief sought is so
intertwined with that of the other parties that his legal presence as a party to the proceeding is an absolute necessity. 39 No valid judgment can be
rendered where an indispensable party is not impleaded or brought before the court; 40 his non-inclusion in a case is a fatal defect and any judgment
rendered therein would be ineffective.41
In the instant case, it is clear that De Venecia is not an indispensable party because a final determination of the case can be had without his legal presence.
Since the defendants in Civil Case No. 0020 are sued for (a) collective or conspirational and (b) individual acts, it follows that the nature of their
corresponding obligations to the Petitioner could be joint and several as to the first and individual or personal as to the second. And if they are solidarily
liable, it cannot be successfully maintained that De Venecia is an indispensable party. Article 1216 of the Civil code provides that:
The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The demand made against
one of them shall not be an obstacle to those which may subsequently be directed against the others, so long as the debt had not
been fully collected.
Hence, a solidary debtor is not an indispensable party. We held so categorically in Republic vs. Sandiganbayan, 42 a case which also involves an action for
reconveyance, reversion, accounting, restitution and damages filed with the Sandiganbayan against Alfredo (Bejo) Romualdez, Ferdinand E. Marcos,
Imelda R. Marcos, Jose P. Campos, Jr. and 45 other defendants. In the said case, we set aside the challenged resolution of the Sandiganbayan denying a
motion to drop defendant Campos, Jr. We stated that since the Presidential Commission on Good Government had granted immunity to Jose Y. Campos
and his family, such immunity necessarily extended to movant Jose Campos, Jr., who is the son of Jose Y. Campos. Inter alia, we noted:
Page | 41
The fact that Campos, Jr. and all the other defendants were charged solidarily in the complaint does not make
him an indispensable party. We have ruled in the case of Operators Incorporated vs.American Biscuit Co., Inc., [154 SCRA 738 (1987)]
that "Solidarity does not make a solidary obligor an indispensable party in a suit filed by the creditor." Article 1216 of the Civil Code
says that the creditor "may proceed against anyone of the solidary debtors or some or all of them simultaneously."
Even assuming for the sake of argument that De Venecia is indeed a principal party, still, based on a principle of tort upon which the cause of action is
also predicated, his release did not operate to release the other tortfeasors. Under American jurisprudence three rules have developed which deal with
the question of whether the release of one joint tortfeasor releases other tortfeasors who are not parties to or named in the release. The first is the
ancient common-law rule that a release of one joint tortfeasor releases all other parties jointly liable, regardless of the intent of the parties. The second,
otherwise known as the "First Restatement rule," states that a release of one co-conspirator normally releases all others unless the plaintiff expressly
reserves his rights against the others. The third provides that the effect of the release upon co-conspirators shall be determined in accordance with the
intentions of the parties. In Zenith Radio Corp. vs. Hazeltine Research, Inc., 43 the Supreme Court of the United States adopted the third rule thus:
We recently adopted the final rule giving effect to the intentions of the parties in Aro Mfg. Co. vs.Convertible Top Co., supra, a patent
infringement case. . . . We concluded that a release, "which clearly intends to save the releasor's rights against a past contributory
infringer, does not automatically surrender those rights."
xxx xxx xxx
The straightforward rule is that a party releases only those other parties whom he intends to release.
The Court observed that "[t]o adopt the ancient common-law rule would frustrate . . . partial settlements, and thereby promote litigation, while adoption
of the First Restatement rule would create a trap for unwary plaintiffs' attorneys."
In the instant case, the release of De Venecia is clearly intended to apply only to him. There was, evidently, no intent to spread the benefit to the other
tortfeasors.
For still another reason, the "admissions" by the Petitioner in paragraph 8 of the deed of assignment that the guaranty facility in favor of the Assignors
"was obtained in the ordinary and regular course of business," that " no favor was accorded to the Landoil officers in the grant" thereof and that the
business reversals experienced by the Landoil Group in connection with its various construction and other projects were due to the special reasons therein
enumerated are not equivalent to an admission that De Venecia's
co-defendants incurred no liability whatsoever with respect thereto. That the facility was obtained in such manner with no favor to the Landoil officers do
not, by themselves, clear the Board of Directors or the officers of the Philguarantee from any liability which could have arisen from the grant of the
guaranty facility. Private respondents were not sued as directors or officers of a private corporation, but as government officials who under the Constitution
were obliged to serve with the highest degree of responsibility, integrity, loyalty, and efficiency and to remain accountable to the people. 44 Indeed, if it
were the intention of the parties in the deed of assignment to accord to the private respondents the same benefit as that granted to De Venecia, they
could have easily done so without loss of time or effort. Better yet, the parties could have explicitly stipulated that, in consideration of the assignment
made by the Assignors, the Petitioner shall (a) lift the sequestration issued against Landoil and (b) dismiss Civil Case No. 0020. It is evident from the deed
of assignment that the only non-signatory thereto who is to be benefited thereby is defendant De Venecia. That favor granted him is known as a
stipulation pour autrui under Article 1311 of the Civil Code as the Sandiganbayan correctly stated in its Resolution of 8 September 1989 granting De
Venecia's amended motion to dismiss. 45 Under the said article, for such a stipulation to be effective and binding it is necessary that the contracting parties
"must have clearly and deliberately conferred a favor upon a third person." 46 A "mere incidental benefit or interest of a person is not sufficient." The deed
of assignment in question fails to even remotely suggest such a grant in favor of the private respondents, and for the Sandiganbayan to read into the
document that which the parties themselves have not even thought of would be to stipulate for the parties, which is beyond its power to do so.
Moreover, these "admissions" are contained in the "whereas" clauses or in the recital part of the Deed of Assignment and are inconsistent with the
following provisions in the operative part thereof, to wit: (1) the ASSIGNORS shall transfer to the ASSIGNEE all the capital shares of Landoil (up to 45%
of the capital stock) identified as belonging to Marcos; (2) the ASSIGNORS shall fully cooperate with the PCGG or any government agency in the prosecution
of any case to be filed against Marcos and his cronies; and (3) the dismissal of Civil Case No. 0020 against the ASSIGNORS and De Venecia shall be
without prejudice, and the case shall be deemed automatically reinstated in the event of the ASSIGNORS' non-compliance with any of their obligations.
These obligations are, in fact, consistent with the 14th to 16th causes of action enumerated in the Expanded Complaint.
These "admissions" are merely embodied in the recital part of the deed. It is a settled rule in the construction of contracts that in case of a conflict between
the operative part of a contract and the recitals thereof, the former will
prevail. 47 The recitals are but merely introductory and prefatory statements of a deed and are not an essential part of the operating portions of the
contract. They may be used as a guide in interpreting ambiguous portions of the operative part, but cannot supersede the latter.
Finally, the Sandiganbayan's grave abuse of discretion became more pronounced insofar as the challenged resolutions benefit defendant Ferdinand E.
Marcos and Imelda R. Marcos. They are the principal dramatis personae in Civil Case No. 0020, and the allegations in the Expanded Complaint do not limit
the causes of action against them to transactions involving Philguarantee which, if proven, do not at all, by any standard, make them the least culpable.
As a matter of fact, the ASSIGNORS in the deed of assignment admit that approximately 45% of the outstanding capital stock of the flagship corporation,
Landoil Resources Corporation, and through the latter, "a proportionate portion of the outstanding capital stock of the six other corporations" are owned
by defendant Ferdinand E. Marcos. Since the remaining eleven (11) corporations listed in Annex "A" of the Expanded Complaint are not parties to the
deed of assignment, the allegations with respect thereto as against the Marcoses stand. It must, however, be stressed that, because of his death,
Ferdinand E. Marcos had been substituted in Civil Case No. 0020 by his heirs pursuant to the Sandiganbayan's Resolution of 16 November 1989.
Page | 42
Accordingly, he ceased to be a party and the challenged resolutions are, insofar as he is concerned, ineffective. Be that as it may,
the error committed by the Sandiganbayan in granting him such unusual benefit compounded the arbitrariness of the resolutions. Finally, as an
additional indicium of such arbitrariness, although under the deed of assignment the dismissal of the case against the Assignors and De Venecia was to
be "without prejudice," the challenged dismissal against the latter's co-defendants was without qualification.
WHEREFORE, I vote to grant the petition and to set aside the challenged resolutions, with costs against the private respondents.
Padilla, J., concurs.
# Separate Opinions
DAVIDE, JR., J., dissenting:
I respectfully submit that the respondent Sandiganbayan committed grave abuse of discretion in promulgating the challenged resolutions. I am, therefore,
unable to concur with the majority opinion except insofar as it orders the reinstatement of the Expanded Complaint in Civil Case No. 0020 against the
Marcoses.
The principal issue in this case is whether the dismissal by the Sandiganbayan of Civil Case No. 0020 as against defendant Jose De Venecia, by virtue of
a Deed of Assignment executed between the Presidential Commission on Good Government (PCGG) and seven corporations belonging to the Landoil
Group, should likewise inure to the benefit of De Venecia's co-defendants. The Sandiganbayan thought that it should and dismissed the case against the
co-defendants. The petitioner thinks otherwise and submits that the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in so doing.
The material operative facts and procedural antecedents generative of this controversy are not disputed.
The Petitioner, represented by the PCGG, filed on 27 July 1987 with the Sandiganbayan a complaint for Reconveyance, Reversion, Accounting, Restitution
and Damages against JOSE DE VENECIA, JR., FERDINAND E. MARCOS, IMELDA R. MARCOS, ROSENDO D. BONDOC, CESAR E. A. VIRATA, RUBEN
ANCHETA, JAIME C. LAYA, PLACIDO MAPA, JR., ROBERTO ONGPIN and CESAR C. ZALAMEA.1 The complaint was docketed as Civil Case No. 0020. Upon
prior leave of the Sandiganbayan, the Petitioner filed on 25 January 1988 an Expanded Complaint,2 the pertinent portions of which read as follows:
IV
GENERAL AVERMENTS
OF
Marcos:
Page | 43
(c) engaged in other illegal and improper acts and practices designed to defraud Plaintiffs
and the Filipino people, or otherwise misappropriated and converted to their own use, benefit and enrichment
the lawful patrimony and revenues of Plaintiff and the Filipino people.
10. Defendants, acting singly or collectively, and/or in unlawful concert with one another, for the purpose of preventing disclosure
and avoiding discovery of their unmitigated plunder of the National Treasury and of their other illegal acts, and employing the services
of prominent lawyers, accountants, financial experts, businessman [sic] and other persons, deposited, kept and invested funds,
securities and other assets in various banks, financial institutions, trust or investment companies and with persons here and abroad.
(d) Defendant Jose de Venecia misused the proceeds of the loans by diverting them to other uses and/or
appropriation, then for his own personal benefit using for this purpose a string of local and overseas banks, such
as, but not limited to, PNB (New York), PNB (Buendia Branch), PCTB (Makati Branch), Swiss Banking Corp. of
Hongkong, and the Hongkong and Shanghai Banking Corp. in Hongkong, and in an effort to hide his complicity
in the diversion, refused to submit regular accounting and reports, all in violation of the provisions of the loan
and guarantee agreements;
Jose de Venecia;
Filipino people.
Page | 44
VI
CAUSE OF ACTION
13. First Cause of Action: ABUSE OF RIGHT AND POWER — (a) Defendants, in perpetrating the unlawful acts described above,
committed abuse of right and power which caused untold misery, suffering and damage to Plaintiff. Defendants violated, among
others, Articles 19, 20 and 21 of the Civil Code of the Philippines;
Defendants are, therefore, jointly and severally liable to Plaintiff for actual damages and for expenses incurred in the recovery of
Defendants' ill-gotten wealth.
for exemplary damages.
Page | 45
The Annex "A" mentioned in paragraph 9 of the Expanded Complaint read as follows:
ASSETS AND OTHER PROPERTY OF

JOSE DE VENECIA, JR.
PERSONAL PROPERTY
A. SHARES OF STOCK IN:
1. Landoil Resources Corporation

2. Pacific Asia Builders Corporation
3. Greater Manila Land Corporation
4. Construction Consortium, Inc.
5. Asian Water and Sewer System, Inc.
6. International Medical Group, Inc.
7. Philippine Hospitals and Health Services, Inc.
8. Global Electrification Systems, Inc.
9. Philippine-Singapore Ports Corporation
10. Asiaphil Fisheries Corporation
11. Transnational Systems, Inc.
12. International Agribusiness Corporation
13. IOMC Philippines, Inc.
14. International Centers for Technology Transfer, Inc.
15. Landoil Trading Corporation
16. Multiland Insurance Agency, Inc.
17. Freeport Security Agency, Inc.
18. International Caterer's, Inc.
BANK ACCOUNTS:
1. Frozen Bank Accounts and other Assets of Placido Mapa, Jr.

2. Frozen Bank Accounts and other Assets of Cesar C. Zalamea
AND ALL OTHER ASSETS OF ALL DEFENDANTS SEQUESTERED AND/OR FROZEN BY THE COMMISSION PURSUANT TO EXECUTIVE
ORDER NOS. 1 AND 2.4
The five (5) volumes of the original records of Civil Case No. 0020 readily disclose that the case has undergone unnecessary delays through the filing of
motions for extension of time to file answer or other responsive pleading, motions for bill of particulars and motions to dismiss, which were followed by
exchanges of related pleadings such as opposition, reply to opposition and others. These motions for bill of particulars or motions to dismiss were denied
by the Sandiganbayan. Thereafter, separate answers were successively filed by defendants (now private respondents) Ongpin, Laya, Ancheta, Bondoc,
Mapa, Jr., Virata and Zalamea. These answers were filed between 21 January 1988 and 10 August 1989.5
Alias summons were served upon Ferdinand E. Marcos and Imelda R. Marcos on 10 November 1988 at 2338 Makiki Heights, Honolulu, Hawaii.6 In its
Resolution of 6 April 1989,7 the Sandiganbayan declared them in default in Civil Case No. 0020 and other cases.
On 30 June 1989, defendant De Venecia filed a motion to dismiss Civil Case No. 0020 insofar as he is concerned in view of a Deed of Assignment executed
on 19 July 1988 between Landoil Resources Corporation, including its subsidiaries, and the Petitioner, through the PCGG as represented by its Acting
Chairman, Hon. Adolfo S. Azcuna.8On 16 July 1989, De Venecia filed an amended motion to dismiss9 which the Petitioner opposed on the ground that De
Venecia is not a party to the Deed of Assignment and that the said deed is still subject to the approval of the PCGG. 10
On 8 September 1989, the Sandiganbayan promulgated a Resolution dated 7 September 1989 granting De Venecia's amended motion to dismiss and
dismissing Civil Case No. 0020 as against him. 11 As a consequence thereof, Ongpin filed on 11 September 1989 a motion for a hearing on his affirmative
defenses. 12 On 12 September 1989, Zalamea filed a motion to dismiss on the ground that there is no more legal and factual basis to proceed against him
in view of the dismissal of the case as against De Venecia. 13 He argued that the latter is an indispensable party; hence, the dismissal of the case against
De Venecia should result in the dismissal of the case against the other co-defendants pursuant to Section 7, Rule 3 of the Rules of Court. Separate motions
to dismiss on the same ground as that of Zalamea's were successively filed by Ongpin, Ancheta, Mapa, Jr. and Laya. 14 Laya filed his motion on 28
September 1989.
In the meantime, the Petitioner filed on 28 September 1989 a motion to reconsider the Resolution of 7 September 1989. 15 However, on 17 October 1989,
counsel for De Venecia submitted to the Sandiganbayan a letter of the PCGG dated 16 October 1989 and addressed to the Solicitor General requesting
the latter to withdraw the motion for reconsideration. 16
The Petitioner filed on 17 October 1989 a Consolidated Opposition 17 to the motions to dismiss wherein it alleged the prematurity of the filing of the
motions to dismiss since it had filed a motion to reconsider the 8 September 1989 Resolution dismissing the case as against De Venecia.
Page | 46
On 28 September 1989, defendant Ferdinand E. Marcos died and on 10 November 1989, the Petitioner filed a motion for his
substitution by his heirs, viz., Imelda R. Marcos, Ferdinand Marcos, Jr., Irene Marcos-Araneta and Imee Marcos-Manotoc. 18 This was granted by the
Sandiganbayan in its Resolution of 16 November 1989. 19
On 4 December 1989, the Sandiganbayan (Second Division) promulgated a Resolution, dated 29 November 1989, dismissing Civil Case No. 0020 as against
De Venecia's co-defendants, the private respondents in the instant
case. 20 Petitioner's motion of 27 December 1989 21 and supplemental motion of 25 January 1990 22 to reconsider the said Resolution were denied in the
Sandiganbayan's Resolution of 9 March 1990. 23 These Resolutions are now challenged in this petition which was filed on 24 April 1990. 24 Petitioner claims
that these were issued by the respondent Sandiganbayan with grave abuse of discretion amounting to lack or excess of jurisdiction. In support thereof,
the Petitioner contends that:
a) The Deed of Assignment executed on July 19, 1989 [should be 1988] by Landoil in favor of the petitioner should not be made to
benefit De Venecia's co-defendants;
b) Defendant De Venecia is not an indispensable party in the prosecution of the case against his co-defendants;
c) The liabilities of De Venecia's co-defendants arose not only from their alleged conspiracy with defendant De Venecia but also by
virtue of their individual or collective actions done in unlawful concert with one another;
d) The causes of action against defendants Ferdinand E. Marcos and Imelda R. Marcos have nothing to do with the Deed of Assignment
executed by Landoil in favor of the petitioner; and
e) The parties manifestly intended to exclude defendant De Venecia's co-defendants from the benefit of the Deed of Assignment in
question. 25
I find merit in this petition.
The Deed of Assignment, 26 upon which the dismissal of Civil Case

No. 0020 as against De Venecia is based, was executed between the (1) Landoil Resources Corporation, (2) Philippine Singapore Ports Corporation, (3)
Asian Water and Sewer System, Inc., (4) Construction Consortium, Inc., (5) Pacific Asia Builders and Developers, Inc., (6) Philippine Hospitals and Health
Service, Inc. and (7) Greater Manila Land Corporation, as ASSIGNORS, and represented therein by Ambrosio C. Collado as President of the Landoil
Resources Corporation and attorney-in-fact for the others, and the Republic of the Philippines, represented by the PCGG through its then Acting Chairman,
Hon. Adolfo S. Azcuna, as the ASSIGNEE. As described therein, the former "constitute a group of related companies" sometimes referred to as the "Landoil
Group," with the Landoil Resources Corporation, "organized by or at the initiative of Jose de Venecia," as their "flagship." These ASSIGNORS are but seven
(7) of the eighteen (18) corporations enumerated in Annex "A" of the Expanded Complaint in Civil Case No. 0020. 27 Not parties to the deed of assignment
are International Medical Group, Inc.; Global Electrification Systems, Inc.; Asiaphil Fisheries Corporation; Transnational Systems, Inc.; International
Agribusiness Corporation; IOMC Philippines, Inc.; International Centers for Technology Transfer, Inc.; Landoil Trading Corporation; Multiland Insurance
Agency, Inc.; Freeport Security Agency, Inc.; and International Caterer's, Incorporated. Pertinent portions of the recital part of the deed of assignment
read as follows:
xxx xxx xxx
(2) Immediately after the organization of the Presidential Commission on Good Government (PCGG) in February 1986, the Landoil
Group, acting through Landoil itself, asked the PCGG to place the Landoil Group under sequestration for the reason that former
President Ferdinand E. Marcos, by himself and/or through his designated nominees or cronies, owns approximately 45% of the
outstanding capital stock of Landoil, and through Landoil, a proportionate portion of the outstanding capital stock of each of the other
companies of the Landoil Group;
xxx xxx xxx
(7) To negate the imputation that the Landoil Group are Marcos "crony" companions, and that Jose de Venecia and other officers of
the Landoil Group are Marcos "cronies," the Landoil Group submitted proof tending to show that they were in fact the victims rather
than the "cronies" of Marcos who, in 1977, coveted the Landoil Group and caused the same to be taken over by his (Marcos') agents
and business associates for his (Marcos') benefit after the discovery of oil deposits off Palawan by a consortium of oil exploration
companies of which Landoil was a substantial member, and the acquisition of Landoil, also in 1977, of a prime port operations contract
in Saudi Arabia with a value of US$350 million;
(8) After the establishment of the present Aquino Government, Philguarantee caused an investigation to be undertaken as to (a) the
background of the issuance of the alleged "behest" guarantee facility in favor of the Landoil Group, and (b) the management and
operations of the Landoil Group, both in the Philippines and in the Middle East. As a result of such investigation Philguarantee has
satisfied itself (i) that such guarantee facility was obtained in the ordinary and regular course of business, and that no favor was
accorded to the Landoil officers, in the grant of such guarantee facility; and (ii) that the business reversals experienced by the Landoil
Group in connection with its various construction and other projects in the Middle East and elsewhere were due, firstly, to the inability
of the Landoil Group to collect its contract receivables from such projects due to the reasons specified in the sixth "whereas" clause,
Page | 47
and, secondly, due to the non-payment of its insurance claim under the insurance policy referred to in the
succeeding (ninth) "whereas" clause. 28
Subject to certain conditions, the ASSIGNORS assumed the following obligations:
1.1. Upon the request of the Assignee, the Assignors (being the above-named companies making up Landoil Group) shall immediately
cause to be transferred to the Assignee (or its nominee/s) all the shares of the capital stock of Landoil (up to 45% of the total
outstanding issued and subscribed capital stock of Landoil) which have or may hereafter be identified as belonging to Marcos (whether
standing in his name or the name [of] any of his nominee/s). . . .
1.2. Upon the effectiveness of this Agreement, the Assignors shall cause to be paid to the Assignee, through PCGG, the amount of
1.3. Effective immediately, the Assignors hereby assign, transfer and convey to the PCGG: (a) the entire proceeds of the Assignors'
xxx xxx xxx
1.5. The Assignors, and or their respective officers, hereby undertake to fully cooperate with the Philippine Government, acting
through the PCGG or any other governmental agency, in the prosecution of any case which the Philippine Government may cause to
be filed against former President Marcos and his cronies, either by furnishing testimony in any such case, or by providing information
in any investigation undertaken in contemplation of the filing of such case, whether in the Philippines or elsewhere, as may be required
or directed by the PCGG, or by other appropriate governmental agency from time to time. 29
In consideration of the ASSIGNORS' undertakings, the ASSIGNEE, viz., the Republic of the Philippines, agreed:
2.1. . . . to cause the sequestration order issued against Landoil to be lifted upon the effectiveness of this Agreement. In addition,
the Assignee shall cause the dismissal, without prejudice, of Civil Case No. 0020, entitled "Republic of the Philippines vs. Jose de
Venecia, Jr., et al.," in so far as the Assignors and Jose de Venecia are concerned: provided, however, that such case shall be deemed
automatically reinstated in the event of non-compliance by any of the Assignors with any of its obligations and undertakings
hereunder. 30
The dismissal by the Sandiganbayan of Civil Case No. 0020 as against De Venecia's co-defendants is anchored on the following grounds:
a) The dismissal of the case as against de Venecia pursuant to the Resolution of 8 September 1989, "which . . . has now become final
and executory after the plaintiff withdrew its 'Motion for Reconsideration,'" "in effect, removed an indispensable party from this case."
De Venecia is an indispensable party because his involvement in the transactions, together with the Landoil Group, which are described
in paragraph 11 of the Expanded Complaint, "constitute and/or comprise the very essence of the only cause of action which is
specifically averred in said Complaint, the other causes of action alleged therein being premised on mere general averments." With
the removal of De Venecia from the case with the express conformity of the plaintiff, no judgment can be rendered or liability enforced
against the other defendants who are alleged to have acted in conspiracy with him. 31
(2) The motions to dismiss filed by de Venecia's co-defendants may be treated as motions for summary judgment because when an
indispensable party "has . . . been dropped from the complaint by reason of a compromise or amicable settlement which practically
negates the legal or factual basis for the principal cause of action, then a fortiori, . . . the cause of action has become not only
insufficient but in existent." The "issues having been joined already . . ., there is nothing which could prevent defendants from
submitting the case for summary judgment." 32
(3) As to defendants Ferdinand E. Marcos and Imelda R. Marcos, although they were declared in default, a "perusal of the General
and Specific Averments of the Expanded complaint, in relation to the causes of action described therein, will indubitably show that
above-named defendants' alleged liabilities are intimately intertwined and closely related to the transactions subject matter of the
compromise agreement between the PCGG and defendant De Venecia. "Accordingly, the "compromise, . . . inures to, and benefits,
defendants spouses Marcoses and completely removes any legal or factual bases for their retention as defendants in this case." 33
In its Resolution of 9 March 1990 34

denying the Petitioner's motion to reconsider the said dismissal, the Sandiganbayan stressed that:
. . . the one and only cause of action set out in the Expanded Complaint appears in paragraph 11 thereof, and outlined in detail under
sub-paragraphs (a) and (f), inclusive. The Compromise Agreement, as we had pointed out, not only removed De Venecia as an
Page | 48
indispensable party but also deprived the Expanded Complaint of any and all factual or legal support for the
sole cause of action set forth therein. 35
I cannot agree.
In the first place, the Sandiganbayan got itself entangled in a web of incorrect premises which, unfortunately, became the bases for its conclusions. For
one, it is not true that the Petitioner has only one (1) cause of action as described in paragraph 11 of the Expanded Complaint. As could be gathered from
the introductory portion of said paragraph 11 under subheading V on Specific Averments of Defendants' Illegal Acts, the acts or transactions enumerated
in subparagraphs (a) to (f) thereof are merely "among others." It reads:
schemes and strategems to unjustly enrich themselves at the expense of Plaintiff and the Filipino People, among others:
xxx xxx xxx
Among simply means "mingled with or in the same group or class" or "in or through the midst of." 36
Moreover, paragraph 8 thereof on General
Averments states that:
power and authority, . . . .
and paragraph 9 states:
(9) Among the assets acquired by Defendants in the manner above-described and discovered by the Commission in the exercise of
its official responsibilities are funds and other property listed in Annex "A" hereof and made an integral part of this complaint.
Finally, paragraphs 13, 14, 15, 16 and 17 enumerate five (5) causes of action.
As earlier noted, of the eighteen (18) corporations enumerated in Annex "A" of the complaint, only SEVEN (7) are parties to the Deed of Assignment as
ASSIGNORS therein. Also listed in said Annex "A" are (1) frozen bank accounts and other assets of defendant Placido E. Mapa, Jr., (2) frozen bank accounts
and other assets of defendant Cesar Zalamea, and (3) all other assets of all defendants sequestered and/or frozen by the Commission pursuant to
Executive Order Nos. 1 and 2. The averments earlier mentioned and the deed of assignment, juxtaposed with Annex "A," show prima facie that (a) the
Petitioner did not intend to enter into any amicable settlement with the remaining eleven (11) corporations or regarding the frozen assets listed in said
Annex "A," and
(b) the assets of the defendants in the said eleven corporations were not necessarily obtained through or as a consequence of the acts or transactions
described in subparagraphs (a) to (f), paragraph 11 of the Expanded Complaint, but probably through "the other devices, schemes or strategems."
Otherwise, these remaining corporations should have been made parties to the deed of assignment. Inclusio unius est exclusio alterius.
For another, it is not true that De Venecia is the principal party either in the specific acts described in subparagraphs (a) to (f), paragraph 11 of the
Expanded Complaint or in the other "devices, schemes or strategems." If, at all, there are principal party defendants in Civil Case No. 0020, then a reading
of the Expanded Complaint readily reveals that they are Ferdinand E. Marcos and Imelda R. Marcos. Of course, there are allegations of conspiracy which,
for purposes of the nature of the action pursued, must be understood to be civil conspiracy, 37 as distinguished from conspiracy in criminal law. 38
Nor is it true that De Venecia is an indispensable party with respect to the acts or transactions subject of the causes of action. An indispensable party is
defined as one without whom the action cannot be finally determined, whose interest in the subject matter of the suit and in the relief sought is so
intertwined with that of the other parties that his legal presence as a party to the proceeding is an absolute necessity. 39 No valid judgment can be
rendered where an indispensable party is not impleaded or brought before the court; 40 his non-inclusion in a case is a fatal defect and any judgment
rendered therein would be ineffective.41
In the instant case, it is clear that De Venecia is not an indispensable party because a final determination of the case can be had without his legal presence.
Since the defendants in Civil Case No. 0020 are sued for (a) collective or conspirational and (b) individual acts, it follows that the nature of their
corresponding obligations to the Petitioner could be joint and several as to the first and individual or personal as to the second. And if they are solidarily
liable, it cannot be successfully maintained that De Venecia is an indispensable party. Article 1216 of the Civil code provides that:
The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The demand made against
one of them shall not be an obstacle to those which may subsequently be directed against the others, so long as the debt had not
been fully collected.
Page | 49
Hence, a solidary debtor is not an indispensable party. We held so categorically in Republic vs. Sandiganbayan, 42 a case which also
involves an action for reconveyance, reversion, accounting, restitution and damages filed with the Sandiganbayan against Alfredo (Bejo) Romualdez,
Ferdinand E. Marcos, Imelda R. Marcos, Jose P. Campos, Jr. and 45 other defendants. In the said case, we set aside the challenged resolution of the
Sandiganbayan denying a motion to drop defendant Campos, Jr. We stated that since the Presidential Commission on Good Government had granted
immunity to Jose Y. Campos and his family, such immunity necessarily extended to movant Jose Campos, Jr., who is the son of Jose Y. Campos. Inter
alia, we noted:
The fact that Campos, Jr. and all the other defendants were charged solidarily in the complaint does not make him an indispensable
party. We have ruled in the case of Operators Incorporated vs.American Biscuit Co., Inc., [154 SCRA 738 (1987)] that "Solidarity does
not make a solidary obligor an indispensable party in a suit filed by the creditor." Article 1216 of the Civil Code says that the creditor
"may proceed against anyone of the solidary debtors or some or all of them simultaneously."
Even assuming for the sake of argument that De Venecia is indeed a principal party, still, based on a principle of tort upon which the cause of action is
also predicated, his release did not operate to release the other tortfeasors. Under American jurisprudence three rules have developed which deal with
the question of whether the release of one joint tortfeasor releases other tortfeasors who are not parties to or named in the release. The first is the
ancient common-law rule that a release of one joint tortfeasor releases all other parties jointly liable, regardless of the intent of the parties. The second,
otherwise known as the "First Restatement rule," states that a release of one co-conspirator normally releases all others unless the plaintiff expressly
reserves his rights against the others. The third provides that the effect of the release upon co-conspirators shall be determined in accordance with the
intentions of the parties. In Zenith Radio Corp. vs. Hazeltine Research, Inc., 43 the Supreme Court of the United States adopted the third rule thus:
We recently adopted the final rule giving effect to the intentions of the parties in Aro Mfg. Co. vs.Convertible Top Co., supra, a patent
infringement case. . . . We concluded that a release, "which clearly intends to save the releasor's rights against a past contributory
infringer, does not automatically surrender those rights."
xxx xxx xxx
The straightforward rule is that a party releases only those other parties whom he intends to release.
The Court observed that "[t]o adopt the ancient common-law rule would frustrate . . . partial settlements, and thereby promote litigation, while adoption
of the First Restatement rule would create a trap for unwary plaintiffs' attorneys."
In the instant case, the release of De Venecia is clearly intended to apply only to him. There was, evidently, no intent to spread the benefit to the other
tortfeasors.
For still another reason, the "admissions" by the Petitioner in paragraph 8 of the deed of assignment that the guaranty facility in favor of the Assignors
"was obtained in the ordinary and regular course of business," that " no favor was accorded to the Landoil officers in the grant" thereof and that the
business reversals experienced by the Landoil Group in connection with its various construction and other projects were due to the special reasons therein
enumerated are not equivalent to an admission that De Venecia's
co-defendants incurred no liability whatsoever with respect thereto. That the facility was obtained in such manner with no favor to the Landoil officers do
not, by themselves, clear the Board of Directors or the officers of the Philguarantee from any liability which could have arisen from the grant of the
guaranty facility. Private respondents were not sued as directors or officers of a private corporation, but as government officials who under the Constitution
were obliged to serve with the highest degree of responsibility, integrity, loyalty, and efficiency and to remain accountable to the people. 44 Indeed, if it
were the intention of the parties in the deed of assignment to accord to the private respondents the same benefit as that granted to De Venecia, they
could have easily done so without loss of time or effort. Better yet, the parties could have explicitly stipulated that, in consideration of the assignment
made by the Assignors, the Petitioner shall (a) lift the sequestration issued against Landoil and (b) dismiss Civil Case No. 0020. It is evident from the deed
of assignment that the only non-signatory thereto who is to be benefited thereby is defendant De Venecia. That favor granted him is known as a
stipulation pour autrui under Article 1311 of the Civil Code as the Sandiganbayan correctly stated in its Resolution of 8 September 1989 granting De
Venecia's amended motion to dismiss. 45 Under the said article, for such a stipulation to be effective and binding it is necessary that the contracting parties
"must have clearly and deliberately conferred a favor upon a third person." 46 A "mere incidental benefit or interest of a person is not sufficient." The deed
of assignment in question fails to even remotely suggest such a grant in favor of the private respondents, and for the Sandiganbayan to read into the
document that which the parties themselves have not even thought of would be to stipulate for the parties, which is beyond its power to do so.
Moreover, these "admissions" are contained in the "whereas" clauses or in the recital part of the Deed of Assignment and are inconsistent with the
following provisions in the operative part thereof, to wit: (1) the ASSIGNORS shall transfer to the ASSIGNEE all the capital shares of Landoil (up to 45%
of the capital stock) identified as belonging to Marcos; (2) the ASSIGNORS shall fully cooperate with the PCGG or any government agency in the prosecution
of any case to be filed against Marcos and his cronies; and (3) the dismissal of Civil Case No. 0020 against the ASSIGNORS and De Venecia shall be
without prejudice, and the case shall be deemed automatically reinstated in the event of the ASSIGNORS' non-compliance with any of their obligations.
These obligations are, in fact, consistent with the 14th to 16th causes of action enumerated in the Expanded Complaint.
These "admissions" are merely embodied in the recital part of the deed. It is a settled rule in the construction of contracts that in case of a conflict between
the operative part of a contract and the recitals thereof, the former will
prevail. 47 The recitals are but merely introductory and prefatory statements of a deed and are not an essential part of the operating portions of the
contract. They may be used as a guide in interpreting ambiguous portions of the operative part, but cannot supersede the latter.
Page | 50
Finally, the Sandiganbayan's grave abuse of discretion became more pronounced insofar as the challenged resolutions benefit
defendant Ferdinand E. Marcos and Imelda R. Marcos. They are the principal dramatis personae in Civil Case No. 0020, and the allegations in the Expanded
Complaint do not limit the causes of action against them to transactions involving Philguarantee which, if proven, do not at all, by any standard, make
them the least culpable. As a matter of fact, the ASSIGNORS in the deed of assignment admit that approximately 45% of the outstanding capital stock of
the flagship corporation, Landoil Resources Corporation, and through the latter, "a proportionate portion of the outstanding capital stock of the six other
corporations" are owned by defendant Ferdinand E. Marcos. Since the remaining eleven (11) corporations listed in Annex "A" of the Expanded Complaint
are not parties to the deed of assignment, the allegations with respect thereto as against the Marcoses stand. It must, however, be stressed that, because
of his death, Ferdinand E. Marcos had been substituted in Civil Case No. 0020 by his heirs pursuant to the Sandiganbayan's Resolution of 16 November
1989. Accordingly, he ceased to be a party and the challenged resolutions are, insofar as he is concerned, ineffective. Be that as it may, the error
committed by the Sandiganbayan in granting him such unusual benefit compounded the arbitrariness of the resolutions. Finally, as an additional indicium of
such arbitrariness, although under the deed of assignment the dismissal of the case against the Assignors and De Venecia was to be "without prejudice,"
the challenged dismissal against the latter's co-defendants was without qualification.
WHEREFORE, I vote to grant the petition and to set aside the challenged resolutions, with costs against the private respondents.
Padilla, J., concurs.
RATIONALE OF DOCTRINE OF VICARIOUS LIABILITY
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.

Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of Manila Railroad Company in the
capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant
railroad company; and in coming daily by train to the company's office in the city of Manila where he worked, he used a pass, supplied by the company,
which entitled him to ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his seat in
the second class-car where he was riding and, making, his exit through the door, took his position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to rise with a moderate gradient some
distance away from the company's office and extends along in front of said office for a distance sufficient to cover the length of several coaches. As the
train slowed down another passenger, named Emilio Zuñiga, also an employee of the railroad company, got off the same car, alighting safely at the point
where the platform begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off also,
but one or both of his feet came in contact with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears
that after the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a single light located some distance away,
objects on the platform where the accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that it was the customary season for
harvesting these melons and a large lot had been brought to the station for the shipment to the market. They were contained in numerous sacks which
has been piled on the platform in a row one upon another. The testimony shows that this row of sacks was so placed of melons and the edge of platform;
and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon the platform.
His statement that he failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had received were very serious. He
was therefore brought at once to a certain hospital in the city of Manila where an examination was made and his arm was amputated. The result of this
operation was unsatisfactory, and the plaintiff was then carried to another hospital where a second operation was performed and the member was again
Page | 51
amputated higher up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of medical
and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover damages of the defendant company,
founding his action upon the negligence of the servants and employees of the defendant in placing the sacks of melons upon the platform and leaving
them so placed as to be a menace to the security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his
Honor, the trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although negligence was
attributable to the defendant by reason of the fact that the sacks of melons were so placed as to obstruct passengers passing to and from the cars,
nevertheless, the plaintiff himself had failed to use due caution in alighting from the coach and was therefore precluded form recovering. Judgment was
accordingly entered in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the platform in the manner above
stated; that their presence caused the plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal cause of the
injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred
by the plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary
responsibility of the defendant company and the contributory negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the obligation to respond for the
damage which plaintiff has suffered arises, if at all, from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual obligations — or to use the
technical form of expression, that article relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this distinction, which was also recognized
by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly
points out the difference between "culpa, substantive and independent, which of itself constitutes the source of an obligation between persons not formerly
connected by any legal tie" and culpa considered as an accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of the Civil Code is not applicable to
acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not growing out of pre-existing
duties of the parties to one another. But where relations already formed give rise to duties, whether springing from contract or quasi-contract,
then breaches of those duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.
Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed upon employers with respect to
damages occasioned by the negligence of their employees to persons to whom they are not bound by contract, is not based, as in the English Common
Law, upon the principle of respondeat superior — if it were, the master would be liable in every case and unconditionally — but upon the principle
announced in article 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making
good the damage caused. One who places a powerful automobile in the hands of a servant whom he knows to be ignorant of the method of managing
such a vehicle, is himself guilty of an act of negligence which makes him liable for all the consequences of his imprudence. The obligation to make good
the damage arises at the very instant that the unskillful servant, while acting within the scope of his employment causes the injury. The liability of the
master is personal and direct. But, if the master has not been guilty of any negligence whatever in the selection and direction of the servant, he is not
liable for the acts of the latter, whatever done within the scope of his employment or not, if the damage done by the servant does not amount to a breach
of the contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master from liability for the latter's acts —
on the contrary, that proof shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is
always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. A
master who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should possess for the discharge of
the duties which it is his purpose to confide to them, and directs them with equal diligence, thereby performs his duty to third persons to whom he is
bound by no contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants, even within the scope of their employment,
such third person suffer damage. True it is that under article 1903 of the Civil Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held that these articles are applicable to cases
of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
Page | 52
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624),
which was an action brought upon the theory of the extra-contractual liability of the defendant to respond for the damage caused by the carelessness of
his employee while acting within the scope of his employment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises
a presumption of law that there was negligence on the part of the master or employer either in selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and consequently, may
be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised
the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is the notable peculiarity
of the Spanish law of negligence. It is, of course, in striking contrast to the American doctrine that, in relations with strangers, the negligence
of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence, it is necessary that there shall have
been some fault attributable to the defendant personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption, is in
complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason of the
breach of the duties inherent in the special relations of authority or superiority existing between the person called upon to repair the damage and the one
who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions
cause damages which amount to the breach of a contact, is not based upon a mere presumption of the master's negligence in their selection or control,
and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in the breach or omission of those
mutual duties which civilized society imposes upon it members, or which arise from these relations, other than contractual, of certain members of society
to others, generally embraced in the concept of status. The legal rights of each member of society constitute the measure of the corresponding legal
duties, mainly negative in character, which the existence of those rights imposes upon all other members of society. The breach of these general duties
whether due to willful intent or to mere inattention, if productive of injury, give rise to an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which arise from contract, rests upon the fact that in cases of non-contractual obligation it is
the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect — and our
Legislature has so elected — whom such an obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend that
liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those person who acts or mission are imputable,
by a legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our Civil Code has
elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the
persons to be charged. This moral responsibility may consist in having failed to exercise due care in the selection and control of one's agents or servants,
or in the control of persons who, by reason of their status, occupy a position of dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly different from that to which article
1903 relates. When the sources of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests
upon plaintiff to prove the negligence — if he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the
benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings
whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract
and of its nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the burden of proof of its existence, as
the only fact upon which his action is based; while on the contrary, in a case of negligence which presupposes the existence of a contractual
obligation, if the creditor shows that it exists and that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p.
71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the negligent conduct of defendant or
of his servants, even though such be in fact the actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or
omission of his servants or agents caused the breach of the contract would not constitute a defense to the action. If the negligence of servants or agents
could be invoked as a means of discharging the liability arising from contract, the anomalous result would be that person acting through the medium of
agents or servants in the performance of their contracts, would be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be logical to
free him from his liability for the breach of his contract, which involves the duty to exercise due care in the preservation of the watch, if he shows that it
was his servant whose negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy practically complete immunity from
damages arising from the breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act through agents or
servants, and it would no doubt be true in most instances that reasonable care had been taken in selection and direction of such servants. If one delivers
securities to a banking corporation as collateral, and they are lost by reason of the negligence of some clerk employed by the bank, would it be just and
Page | 53
reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon the payment of
the debt by proving that due care had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident to the performance of a contract has
frequently been recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions
of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902 of
the Civil Code as a defense. The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as those to which article 1902 of the Civil
Code relates, but of damages caused by the defendant's failure to carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage done by the negligent acts of their servants will show that
in no case has the court ever decided that the negligence of the defendant's servants has been held to constitute a defense to an action for damages for
breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for the damages caused by the negligence
of his driver. In that case the court commented on the fact that no evidence had been adduced in the trial court that the defendant had been negligent
in the employment of the driver, or that he had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for damages caused by the loss
of a barge belonging to plaintiff which was allowed to get adrift by the negligence of defendant's servants in the course of the performance of a contract
of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and the
plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving defendant's automobile in which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable opportunity to observe them
and to direct the driver to desist therefrom. . . . The act complained of must be continued in the presence of the owner for such length of time
that the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion as to
the liability of the defendant upon article 1903, although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to
him arising out of the contract of transportation. The express ground of the decision in this case was that article 1903, in dealing with the liability of a
master for the negligent acts of his servants "makes the distinction between private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of servants; and that in the particular case the presumption of negligence had not
been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tort rather than as based upon the breach
of the contract of carriage, and an examination of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this theory.
Viewed from the standpoint of the defendant the practical result must have been the same in any event. The proof disclosed beyond doubt that the
defendant's servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that defendant
had been guilty of negligence in its failure to exercise proper discretion in the direction of the servant. Defendant was, therefore, liable for the injury
suffered by plaintiff, whether the breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out (vol.
8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of a contractual undertaking or its itself the source of an extra-
contractual undertaking obligation, its essential characteristics are identical. There is always an act or omission productive of damage due to carelessness
or inattention on the part of the defendant. Consequently, when the court holds that a defendant is liable in damages for having failed to exercise due
care, either directly, or in failing to exercise proper care in the selection and direction of his servants, the practical result is identical in either case.
Therefore, it follows that it is not to be inferred, because the court held in the Yamada case that defendant was liable for the damages negligently caused
by its servants to a person to whom it was bound by contract, and made reference to the fact that the defendant was negligent in the selection and
control of its servants, that in such a case the court would have held that it would have been a good defense to the action, if presented squarely upon
the theory of the breach of the contract, for defendant to have proved that it did in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and extra-contractual obligations. The
field of non- contractual obligation is much more broader than that of contractual obligations, comprising, as it does, the whole extent of juridical human
relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve
him from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that
the same act which constitutes the source of an extra-contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to provide safe means of entering and
leaving its trains (civil code, article 1258). That duty, being contractual, was direct and immediate, and its non-performance could not be excused by proof
that the fault was morally imputable to defendant's servants.
Page | 54
The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in placing an
obstruction upon the platform was a breach of its contractual obligation to maintain safe means of approaching and leaving its trains, the direct and
proximate cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a complete stop before
alighting. Under the doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own negligence,
no liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should be apportioned. It is,
therefore, important to ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injury suffered by him could not have
occurred. Defendant contends, and cites many authorities in support of the contention, that it is negligence per se for a passenger to alight from a moving
train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is at
variance with the experience of every-day life. In this particular instance, that the train was barely moving when plaintiff alighted is shown conclusively
by the fact that it came to stop within six meters from the place where he stepped from it. Thousands of person alight from trains under these conditions
every day of the year, and sustain no injury where the company has kept its platform free from dangerous obstructions. There is no reason to believe
that plaintiff would have suffered any injury whatever in alighting as he did had it not been for defendant's negligent failure to perform its duty to provide
a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a moving railway train, is that
of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person, of the age, sex and condition of the passenger,
would have acted as the passenger acted under the circumstances disclosed by the evidence. This care has been defined to be, not the care
which may or should be used by the prudent man generally, but the care which a man of ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was there
anything in the circumstances surrounding the plaintiff at the time he alighted from the train which would have admonished a person of average prudence
that to get off the train under the conditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to
desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that plaintiff was guilty of contributory
negligence is that he stepped off the car without being able to discern clearly the condition of the platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was
caused by the sacks of melons piled on the platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of some circumstance to warn him to the contrary,
that the platform was clear. The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the
defendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility concede that it had right to pile these sacks in the path
of alighting passengers, the placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following circumstances are to be noted: The company's
platform was constructed upon a level higher than that of the roadbed and the surrounding ground. The distance from the steps of the car to the spot
where the alighting passenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping off. The nature of
the platform, constructed as it was of cement material, also assured to the passenger a stable and even surface on which to alight. Furthermore, the
plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so risky for him to get off while the train was yet moving as
the same act would have been in an aged or feeble person. In determining the question of contributory negligence in performing such act — that is to
say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the passenger are circumstances necessarily affecting
the safety of the passenger, and should be considered. Women, it has been observed, as a general rule are less capable than men of alighting with safety
under such conditions, as the nature of their wearing apparel obstructs the free movement of the limbs. Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or the character of the platform where he was alighting. Our conclusion is that the conduct
of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not
guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and that the injuries he has suffered have
permanently disabled him from continuing that employment. Defendant has not shown that any other gainful occupation is open to plaintiff. His expectancy
of life, according to the standard mortality tables, is approximately thirty-three years. We are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of P790.25 for
medical attention, hospital services, and other incidental expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and for the costs of both instances. So
ordered.
Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
Page | 55
G.R. No. 141538 March 23, 2004
HERMANA R. CEREZO, petitioner,

vs.
DAVID TUAZON, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 to annul the Resolution2 dated 21 October 1999 of the Court of Appeals in CA-G.R. SP No. 53572, as well as its
Resolution dated 20 January 2000 denying the motion for reconsideration. The Court of Appeals denied the petition for annulment of the Decision3 dated
30 May 1995 rendered by the Regional Trial Court of Angeles City, Branch 56 ("trial court"), in Civil Case No. 7415. The trial court ordered petitioner
Hermana R. Cerezo ("Mrs. Cerezo") to pay respondent David Tuazon ("Tuazon") actual damages, loss of earnings, moral damages, and costs of suit.
Antecedent Facts
Around noontime of 26 June 1993, a Country Bus Lines passenger bus with plate number NYA 241 collided with a tricycle bearing plate number TC RV
126 along Captain M. Palo Street, Sta. Ines, Mabalacat, Pampanga. On 1 October 1993, tricycle driver Tuazon filed a complaint for damages against Mrs.
Cerezo, as owner of the bus line, her husband Attorney Juan Cerezo ("Atty. Cerezo"), and bus driver Danilo A. Foronda ("Foronda"). The complaint alleged
that:
7. At the time of the incident, plaintiff [Tuazon] was in his proper lane when the second-named defendant [Foronda], being then the driver and
person in charge of the Country Bus with plate number NYA 241, did then and there willfully, unlawfully, and feloniously operate the said motor
vehicle in a negligent, careless, and imprudent manner without due regard to traffic rules and regulations, there being a "Slow Down" sign near
the scene of the incident, and without taking the necessary precaution to prevent loss of lives or injuries, his negligence, carelessness and
imprudence resulted to severe damage to the tricycle and serious physical injuries to plaintiff thus making him unable to walk and becoming
disabled, with his thumb and middle finger on the left hand being cut[.]4
On 1 October 1993, Tuazon filed a motion to litigate as a pauper. Subsequently, the trial court issued summons against Atty. Cerezo and Mrs. Cerezo
("the Cerezo spouses") at the Makati address stated in the complaint. However, the summons was returned unserved on 10 November 1993 as the Cerezo
spouses no longer held office nor resided in Makati. On 18 April 1994, the trial court issued alias summons against the Cerezo spouses at their address in
Barangay Sta. Maria, Camiling, Tarlac. The alias summons and a copy of the complaint were finally served on 20 April 1994 at the office of Atty. Cerezo,
who was then working as Tarlac Provincial Prosecutor. Atty. Cerezo reacted angrily on learning of the service of summons upon his person. Atty. Cerezo
allegedly told Sheriff William Canlas: "Punyeta, ano ang gusto mong mangyari? Gusto mong hindi ka makalabas ng buhay dito? Teritoryo ko ito. Wala ka
sa teritoryo mo."5
The records show that the Cerezo spouses participated in the proceedings before the trial court. The Cerezo spouses filed a comment with motion for bill
of particulars dated 29 April 1994 and a reply to opposition to comment with motion dated 13 June 1994.6 On 1 August 1994, the trial court issued an
order directing the Cerezo spouses to file a comment to the opposition to the bill of particulars. Atty. Elpidio B. Valera ("Atty. Valera") of Valera and Valera
Law Offices appeared on behalf of the Cerezo spouses. On 29 August 1994, Atty. Valera filed an urgent ex-parte motion praying for the resolution of
Tuazon’s motion to litigate as a pauper and for the issuance of new summons on the Cerezo spouses to satisfy proper service in accordance with the
Rules of Court.7
On 30 August 1994, the trial court issued an order resolving Tuazon’s motion to litigate as a pauper and the Cerezo spouses’ urgent ex-parte motion. The
order reads:
At the hearing on August 30, 1994, the plaintiff [Tuazon] testified that he is presently jobless; that at the time of the filing of this case, his son
who is working in Malaysia helps him and sends him once in a while P300.00 a month, and that he does not have any real property. Attached
to the Motion to Litigate as Pauper are his Affidavit that he is unemployed; a Certification by the Barangay Captain of his poblacion that his
income is not enough for his family’s subsistence; and a Certification by the Office of the Municipal Assessor that he has no landholding in the
Municipality of Mabalacat, Province of Pampanga.
The Court is satisfied from the unrebutted testimony of the plaintiff that he is entitled to prosecute his complaint in this case as a pauper under
existing rules.
On the other hand, the Court denies the prayer in the Appearance and Urgent Ex-Parte Motion requiring new summons to be served to the
defendants. The Court is of the opinion that any infirmity in the service of the summons to the defendant before plaintiff was allowed to
prosecute his complaint in this case as a pauper has been cured by this Order.
Page | 56
If within 15 days from receipt of this Order, the defendants do not question on appeal this Order of this Court, the Court
shall proceed to resolve the Motion for Bill of Particulars.8
On 27 September 1994, the Cerezo spouses filed an urgent ex-parte motion for reconsideration. The trial court denied the motion for reconsideration.
On 14 November 1994, the trial court issued an order directing the Cerezo spouses to file their answer within fifteen days from receipt of the order. The
Cerezo spouses did not file an answer. On 27 January 1995, Tuazon filed a motion to declare the Cerezo spouses in default. On 6 February 1995, the trial
court issued an order declaring the Cerezo spouses in default and authorizing Tuazon to present his evidence. 9
On 30 May 1995, after considering Tuazon’s testimonial and documentary evidence, the trial court ruled in Tuazon’s favor. The trial court made no
pronouncement on Foronda’s liability because there was no service of summons on him. The trial court did not hold Atty. Cerezo liable as Tuazon failed
to show that Mrs. Cerezo’s business benefited the family, pursuant to Article 121(3) of the Family Code. The trial court held Mrs. Cerezo solely liable for
the damages sustained by Tuazon arising from the negligence of Mrs. Cerezo’s employee, pursuant to Article 2180 of the Civil Code. The dispositive
portion of the trial court’s decision reads:
WHEREFORE, judgment is hereby rendered ordering the defendant Hermana Cerezo to pay the plaintiff:
a) For Actual Damages - P69,485.35

1) Expenses for operation and medical Treatment
2) Cost of repair of the tricycle
b) For loss of earnings - 39,921.00
c) For moral damages - 43,300.00
d) And to pay the cost of the suit. - 20,000.00
The docket fees and other expenses in the filing of this suit shall be lien on whatever judgment may be rendered in favor of the plaintiff.
SO ORDERED.10
Mrs. Cerezo received a copy of the decision on 25 June 1995. On 10 July 1995, Mrs. Cerezo filed before the trial court a petition for relief from judgment
on the grounds of "fraud, mistake or excusable negligence." Testifying before the trial court, both Mrs. Cerezo and Atty. Valera denied receipt of notices
of hearings and of orders of the court. Atty. Valera added that he received no notice before or during the 8 May 1995 elections, "when he was a senatorial
candidate for the KBL Party, and very busy, using his office and residence as Party National Headquarters." Atty. Valera claimed that he was able to read
the decision of the trial court only after Mrs. Cerezo sent him a copy.11
Tuazon did not testify but presented documentary evidence to prove the participation of the Cerezo spouses in the case. Tuazon presented the following
exhibits:
Exhibit 1 - Sheriff’s return and summons;

Exhibit 1-A - Alias summons dated April 20, 1994;
Exhibit 2 - Comment with Motion;
Exhibit 3 - Minutes of the hearing held on August 1, 1994;
Exhibit 3-A - Signature of defendant’s counsel;
Exhibit 4 - Minutes of the hearing held on August 30, 1994;
Exhibit 4-A - Signature of the defendant’s counsel;
Exhibit 5 - Appearance and Urgent Ex-Parte Motion;
Exhibit 6 - Order dated November 14, 1994;
Exhibit 6-A - Postal certification dated January 13, 1995;
Exhibit 7 - Order dated February [illegible];
Exhibit 7-A - Court’s return slip addressed to Atty. Elpidio Valera;
Exhibit 7-B - Court’s return slip addressed to Spouses Juan and Hermana Cerezo;
Exhibit 8 - Decision dated May [30], 1995
Exhibit 8-A - Court’s return slip addressed to defendant Hermana Cerezo;
Exhibit 8-B - Court’s return slip addressed to defendant’s counsel, Atty. Elpidio Valera;
Exhibit 9 - Order dated September 21, 1995;
Exhibit 9-A - Second Page of Exhibit 9;
Exhibit 9-B - Third page of Exhibit 9;
Page | 57
Exhibit 9-C - Fourth page of Exhibit 9;

Exhibit 9-D - Court’s return slip addressed to Atty. Elpidio Valera;
and
Exhibit 9-E - Court’s return slip addressed to plaintiff’s counsel, Atty. Norman Dick de Guzman.12
On 4 March 1998, the trial court issued an order13 denying the petition for relief from judgment. The trial court stated that having received the decision
on 25 June 1995, the Cerezo spouses should have filed a notice of appeal instead of resorting to a petition for relief from judgment. The trial court refused
to grant relief from judgment because the Cerezo spouses could have availed of the remedy of appeal. Moreover, the Cerezo spouses not only failed to
prove fraud, accident, mistake or excusable negligence by conclusive evidence, they also failed to prove that they had a good and substantial defense.
The trial court noted that the Cerezo spouses failed to appeal because they relied on an expected settlement of the case.
The Cerezo spouses subsequently filed before the Court of Appeals a petition for certiorari under Section 1 of Rule 65. The petition was docketed as CA-
G.R. SP No. 48132.14 The petition questioned whether the trial court acquired jurisdiction over the case considering there was no service of summons on
Foronda, whom the Cerezo spouses claimed was an indispensable party. In a resolution15 dated 21 January 1999, the Court of Appeals denied the petition
for certiorari and affirmed the trial court’s order denying the petition for relief from judgment. The Court of Appeals declared that the Cerezo spouses’
failure to file an answer was due to their own negligence, considering that they continued to participate in the proceedings without filing an answer. There
was also nothing in the records to show that the Cerezo spouses actually offered a reasonable settlement to Tuazon. The Court of Appeals also denied
Cerezo spouses’ motion for reconsideration for lack of merit.
The Cerezo spouses filed before this Court a petition for review on certiorari under Rule 45. Atty. Cerezo himself signed the petition, docketed as G.R. No.
137593. On 13 April 1999, this Court rendered a resolution denying the petition for review on certiorari for failure to attach an affidavit of service of copies
of the petition to the Court of Appeals and to the adverse parties. Even if the petition complied with this requirement, the Court would still have denied
the petition as the Cerezo spouses failed to show that the Court of Appeals committed a reversible error. The Court’s resolution was entered in the Book
of Entries and Judgments when it became final and executory on 28 June 1999.16
Undaunted, the Cerezo spouses filed before the Court of Appeals on 6 July 1999 a petition for annulment of judgment under Rule 47 with prayer for
restraining order. Atty. Valera and Atty. Dionisio S. Daga ("Atty. Daga") represented Mrs. Cerezo in the petition, docketed as CA-G.R. SP No. 53572.17 The
petition prayed for the annulment of the 30 May 1995 decision of the trial court and for the issuance of a writ of preliminary injunction enjoining execution
of the trial court’s decision pending resolution of the petition.
The Court of Appeals denied the petition for annulment of judgment in a resolution dated 21 October 1999. The resolution reads in part:
In this case, records show that the petitioner previously filed with the lower court a Petition for Relief from Judgment on the ground that they
were wrongfully declared in default while waiting for an amicable settlement of the complaint for damages. The court a quo correctly ruled that
such petition is without merit. The defendant spouses admit that during the initial hearing they appeared before the court and even mentioned
the need for an amicable settlement. Thus, the lower court acquired jurisdiction over the defendant spouses.
Therefore, petitioner having availed of a petition for relief, the remedy of an annulment of judgment is no longer available. The proper action
for the petitioner is to appeal the order of the lower court denying the petition for relief.
Wherefore, the instant petition could not be given due course and should accordingly be dismissed.
SO ORDERED.18
On 20 January 2000, the Court of Appeals denied the Cerezo spouses’ motion for reconsideration.19 The Court of Appeals stated:
A distinction should be made between a court’s jurisdiction over a person and its jurisdiction over the subject matter of a case. The former is
acquired by the proper service of summons or by the parties’ voluntary appearance; while the latter is conferred by law.
Resolving the matter of jurisdiction over the subject matter, Section 19(1) of B[atas] P[ambansa] 129 provides that Regional Trial Courts shall
exercise exclusive original jurisdiction in all civil actions in which the subject of the litigation is incapable of pecuniary estimation. Thus it was
proper for the lower court to decide the instant case for damages.
Unlike jurisdiction over the subject matter of a case which is absolute and conferred by law; any defects [sic] in the acquisition of jurisdiction
over a person (i.e., improper filing of civil complaint or improper service of summons) may be waived by the voluntary appearance of parties.
The lower court admits the fact that no summons was served on defendant Foronda. Thus, jurisdiction over the person of defendant Foronda
was not acquired, for which reason he was not held liable in this case. However, it has been proven that jurisdiction over the other defendants
was validly acquired by the court a quo.
Page | 58
The defendant spouses admit to having appeared in the initial hearings and in the hearing for plaintiff’s motion to litigate
as a pauper. They even mentioned conferences where attempts were made to reach an amicable settlement with plaintiff. However, the
possibility of amicable settlement is not a good and substantial defense which will warrant the granting of said petition.
xxx
Assuming arguendo that private respondent failed to reserve his right to institute a separate action for damages in the criminal action, the
petitioner cannot now raise such issue and question the lower court’s jurisdiction because petitioner and her husband have waived such right
by voluntarily appearing in the civil case for damages. Therefore, the findings and the decision of the lower court may bind them.
Records show that the petitioner previously filed with the lower court a Petition for Relief from Judgment on the ground that they were wrongfully
declared in default while waiting for an amicable settlement of the complaint for damages. The court a quo correctly ruled that such petition is
without merit, jurisdiction having been acquired by the voluntary appearance of defendant spouses.
Once again, it bears stressing that having availed of a petition for relief, the remedy of annulment of judgment is no longer available.
Based on the foregoing, the motion for reconsideration could not be given due course and is hereby DENIED.
SO ORDERED.20
The Issues
On 7 February 2000, Mrs. Cerezo, this time with Atty. Daga alone representing her, filed the present petition for review on certiorari before this Court.
Mrs. Cerezo claims that:
1. In dismissing the Petition for Annulment of Judgment, the Court of Appeals assumes that the issues raised in the petition for annulment is
based on extrinsic fraud related to the denied petition for relief notwithstanding that the grounds relied upon involves questions of lack of
jurisdiction.
2. In dismissing the Petition for Annulment, the Court of Appeals disregarded the allegation that the lower court[’s] findings of negligence
against defendant-driver Danilo Foronda [whom] the lower court did not summon is null and void for want of due process and consequently,
such findings of negligence which is [sic] null and void cannot become the basis of the lower court to adjudge petitioner-employer liable for civil
damages.
3. In dismissing the Petition for Annulment, the Court of Appeals ignored the allegation that defendant-driver Danilo A. Foronda whose negligence
is the main issue is an indispensable party whose presence is compulsory but [whom] the lower court did not summon.
4. In dismissing the Petition for Annulment, the Court of Appeals ruled that assuming arguendo that private respondent failed to reserve his
right to institute a separate action for damages in the criminal action, the petitioner cannot now raise such issue and question the lower court’s
jurisdiction because petitioner [has] waived such right by voluntarily appearing in the civil case for damages notwithstanding that lack of
jurisdiction cannot be waived.21
The Court’s Ruling
The petition has no merit. As the issues are interrelated, we shall discuss them jointly.
Remedies Available to a Party Declared in Default
An examination of the records of the entire proceedings shows that three lawyers filed and signed pleadings on behalf of Mrs. Cerezo, namely, Atty. Daga,
Atty. Valera, and Atty. Cerezo. Despite their number, Mrs. Cerezo’s counsels failed to avail of the proper remedies. It is either by sheer ignorance or by
malicious manipulation of legal technicalities that they have managed to delay the disposition of the present case, to the detriment of pauper litigant
Tuazon.
Mrs. Cerezo claims she did not receive any copy of the order declaring the Cerezo spouses in default. Mrs. Cerezo asserts that she only came to know of
the default order on 25 June 1995, when she received a copy of the decision. On 10 July 1995, Mrs. Cerezo filed before the trial court a petition for relief
from judgment under Rule 38, alleging "fraud, mistake, or excusable negligence" as grounds. On 4 March 1998, the trial court denied Mrs. Cerezo’s
petition for relief from judgment. The trial court stated that Mrs. Cerezo could have availed of appeal as a remedy and that she failed to prove that the
judgment was entered through fraud, accident, mistake, or excusable negligence. Mrs. Cerezo then filed before the Court of Appeals a petition
for certiorari under Section 1 of Rule 65 assailing the denial of the petition for relief from judgment. On 21 January 1999, the Court of Appeals dismissed
Mrs. Cerezo’s petition. On 24 February 1999, the appellate court denied Mrs. Cerezo’s motion for reconsideration. On 11 March 1999, Mrs. Cerezo filed
before this Court a petition for review on certiorari under Rule 45, questioning the denial of the petition for relief from judgment. We denied the petition
and our resolution became final and executory on 28 June 1999.
Page | 59
On 6 July 1999, a mere eight days after our resolution became final and executory, Mrs. Cerezo filed before the Court of Appeals a
petition for annulment of the judgment of the trial court under Rule 47. Meanwhile, on 25 August 1999, the trial court issued over the objection of Mrs.
Cerezo an order of execution of the judgment in Civil Case No. 7415. On 21 October 1999, the Court of Appeals dismissed the petition for annulment of
judgment. On 20 January 2000, the Court of Appeals denied Mrs. Cerezo’s motion for reconsideration. On 7 February 2000, Mrs. Cerezo filed the present
petition for review on certiorari under Rule 45 challenging the dismissal of her petition for annulment of judgment.
Lina v. Court of Appeals22 enumerates the remedies available to a party declared in default:
a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order
of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious
defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);
b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory,
he may file a motion for new trial under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Section
2 [now Section 1] of Rule 38; and
d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the
order of default has been presented by him (Sec. 2, Rule 41). (Emphasis added)
Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the trial court improperly declared a party in default,
or even if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration.23
Mrs. Cerezo admitted that she received a copy of the trial court’s decision on 25 June 1995. Based on this admission, Mrs. Cerezo had at least three
remedies at her disposal: an appeal, a motion for new trial, or a petition for certiorari.
Mrs. Cerezo could have appealed under Rule 4124 from the default judgment within 15 days from notice of the judgment. She could have availed of the
power of the Court of Appeals to try cases and conduct hearings, receive evidence, and perform all acts necessary to resolve factual issues raised in cases
falling within its appellate jurisdiction.25
Mrs. Cerezo also had the option to file under Rule 37 26 a motion for new trial within the period for taking an appeal. If the trial court grants a new trial,
the original judgment is vacated, and the action will stand for trial de novo. The recorded evidence taken in the former trial, as far as the same is material
and competent to establish the issues, shall be used at the new trial without retaking the same.27
Mrs. Cerezo also had the alternative of filing under Rule 65 28 a petition for certiorari assailing the order of default within 60 days from notice of the
judgment. An order of default is interlocutory, and an aggrieved party may file an appropriate special civil action under Rule 65.29 In a petition for certiorari,
the appellate court may declare void both the order of default and the judgment of default.
Clearly, Mrs. Cerezo had every opportunity to avail of these remedies within the reglementary periods provided under the Rules of Court. However, Mrs.
Cerezo opted to file a petition for relief from judgment, which is available only in exceptional cases. A petition for relief from judgment should be filed
within the reglementary period of 60 days from knowledge of judgment and six months from entry of judgment, pursuant to
Rule 38 of the Rules of Civil Procedure.30 Tuason v. Court of Appeals31 explained the nature of a petition for relief from judgment:
When a party has another remedy available to him, which may either be a motion for new trial or appeal from an adverse decision of the trial
court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot
avail himself of this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss
of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which has been
lost thru inexcusable negligence.
Evidently, there was no fraud, accident, mistake, or excusable negligence that prevented Mrs. Cerezo from filing an appeal, a motion for new trial or a
petition for certiorari. It was error for her to avail of a petition for relief from judgment.
After our resolution denying Mrs. Cerezo’s petition for relief became final and executory, Mrs. Cerezo, in her last ditch attempt to evade liability, filed
before the Court of Appeals a petition for annulment of the judgment of the trial court. Annulment is available only on the grounds of extrinsic fraud and
lack of jurisdiction. If based on extrinsic fraud, a party must file the petition within four years from its discovery, and if based on lack of jurisdiction, before
laches or estoppel bars the petition. Extrinsic fraud is not a valid ground if such fraud was used as a ground, or could have been used as a ground, in a
motion for new trial or petition for relief from judgment.32
Mrs. Cerezo insists that lack of jurisdiction, not extrinsic fraud, was her ground for filing the petition for annulment of judgment. However, a party may
avail of the remedy of annulment of judgment under Rule 47 only if the ordinary remedies of new trial, appeal, petition for relief from judgment, or other
Page | 60
appropriate remedies are no longer available through no fault of the party.33 Mrs. Cerezo could have availed of a new trial or appeal
but through her own fault she erroneously availed of the remedy of a petition for relief, which was denied with finality. Thus, Mrs. Cerezo may no longer
avail of the remedy of annulment.
In any event, the trial court clearly acquired jurisdiction over Mrs. Cerezo’s person. Mrs. Cerezo actively participated in the proceedings before the trial
court, submitting herself to the jurisdiction of the trial court. The defense of lack of jurisdiction fails in light of her active participation in the trial court
proceedings. Estoppel or laches may also bar lack of jurisdiction as a ground for nullity especially if raised for the first time on appeal by a party who
participated in the proceedings before the trial court, as what happened in this case.34
For these reasons, the present petition should be dismissed for utter lack of merit. The extraordinary action to annul a final judgment is restricted to the
grounds specified in the rules. The reason for the restriction is to prevent this extraordinary action from being used by a losing party to make a complete
farce of a duly promulgated decision that has long become final and executory. There would be no end to litigation if parties who have unsuccessfully
availed of any of the appropriate remedies or lost them through their fault could still bring an action for annulment of judgment.35 Nevertheless, we shall
discuss the issues raised in the present petition to clear any doubt about the correctness of the decision of the trial court.
Mrs. Cerezo’s Liability and the Trial Court’s Acquisition of Jurisdiction
Mrs. Cerezo contends that the basis of the present petition for annulment is lack of jurisdiction. Mrs. Cerezo asserts that the trial court could not validly
render judgment since it failed to acquire jurisdiction over Foronda. Mrs. Cerezo points out that there was no service of summons on Foronda. Moreover,
Tuazon failed to reserve his right to institute a separate civil action for damages in the criminal action. Such contention betrays a faulty foundation. Mrs.
Cerezo’s contention proceeds from the point of view of criminal law and not of civil law, while the basis of the present action of Tuazon is quasi-delict
under the Civil Code, not delict under the Revised Penal Code.
The same negligent act may produce civil liability arising from a delict under Article 103 of the Revised Penal Code, or may give rise to an action for a
quasi-delict under Article 2180 of the Civil Code. An aggrieved party may choose between the two remedies. An action based on a quasi-delict may proceed
independently from the criminal action.36There is, however, a distinction between civil liability arising from a delict and civil liability arising from a quasi-
delict. The choice of remedy, whether to sue for a delict or a quasi-delict, affects the procedural and jurisdictional issues of the action.37
Tuazon chose to file an action for damages based on a quasi-delict. In his complaint, Tuazon alleged that Mrs. Cerezo, "without exercising due care and
diligence in the supervision and management of her employees and buses," hired Foronda as her driver. Tuazon became disabled because of Foronda’s
"recklessness, gross negligence and imprudence," aggravated by Mrs. Cerezo’s "lack of due care and diligence in the selection and supervision of her
employees, particularly Foronda."38
The trial court thus found Mrs. Cerezo liable under Article 2180 of the Civil Code. Article 2180 states in part:
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.
Contrary to Mrs. Cerezo’s assertion, Foronda is not an indispensable party to the case. An indispensable party is one whose interest is affected by the
court’s action in the litigation, and without whom no final resolution of the case is possible. 39 However, Mrs. Cerezo’s liability as an employer in an action
for a quasi-delict is not only solidary, it is also primary and direct. Foronda is not an indispensable party to the final resolution of Tuazon’s action for
damages against Mrs. Cerezo.
The responsibility of two or more persons who are liable for a quasi-delict is solidary.40 Where there is a solidary obligation on the part of debtors, as in
this case, each debtor is liable for the entire obligation. Hence, each debtor is liable to pay for the entire obligation in full. There is no merger or renunciation
of rights, but only mutual representation.41 Where the obligation of the parties is solidary, either of the parties is indispensable, and the other is not even
a necessary party because complete relief is available from either.42 Therefore, jurisdiction over Foronda is not even necessary as Tuazon may collect
damages from Mrs. Cerezo alone.
Moreover, an employer’s liability based on a quasi-delict is primary and direct, while the employer’s liability based on a delict is merely subsidiary.43 The
words "primary and direct," as contrasted with "subsidiary," refer to the remedy provided by law for enforcing the obligation rather than to the character
and limits of the obligation.44 Although liability under Article 2180 originates from the negligent act of the employee, the aggrieved party may sue the
employer directly. When an employee causes damage, the law presumes that the employer has himself committed an act of negligence in not preventing
or avoiding the damage. This is the fault that the law condemns. While the employer is civilly liable in a subsidiary capacity for the employee’s criminal
negligence, the employer is also civilly liable directly and separately for his own civil negligence in failing to exercise due diligence in selecting and
supervising his employee. The idea that the employer’s liability is solely subsidiary is wrong.45
The action can be brought directly against the person responsible (for another), without including the author of the act. The action against the
principal is accessory in the sense that it implies the existence of a prejudicial act committed by the employee, but it is not subsidiary in the
sense that it can not be instituted till after the judgment against the author of the act or at least, that it is subsidiary to the principal action; the
action for responsibility (of the employer) is in itself a principal action.46
Thus, there is no need in this case for the trial court to acquire jurisdiction over Foronda. The trial court’s acquisition of jurisdiction over Mrs. Cerezo is
sufficient to dispose of the present case on the merits.
Page | 61
In contrast, an action based on a delict seeks to enforce the subsidiary liability of the employer for the criminal negligence of the
employee as provided in Article 103 of the Revised Penal Code. To hold the employer liable in a subsidiary capacity under a delict, the aggrieved party
must initiate a criminal action where the employee’s delict and corresponding primary liability are established.47 If the present action proceeds from a
delict, then the trial court’s jurisdiction over Foronda is necessary. However, the present action is clearly for the quasi-delict of Mrs. Cerezo and not for
the delict of Foronda.
The Cerezo spouses’ contention that summons be served anew on them is untenable in light of their participation in the trial court proceedings. To uphold
the Cerezo spouses’ contention would make a fetish of a technicality.48Moreover, any irregularity in the service of summons that might have vitiated the
trial court’s jurisdiction over the persons of the Cerezo spouses was deemed waived when the Cerezo spouses filed a petition for relief from judgment.49
We hold that the trial court had jurisdiction and was competent to decide the case in favor of Tuazon and against Mrs. Cerezo even in the absence of
Foronda. Contrary to Mrs. Cerezo’s contention, Foronda is not an indispensable party to the present case. It is not even necessary for Tuazon to reserve
the filing of a separate civil action because he opted to file a civil action for damages against Mrs. Cerezo who is primarily and directly liable for her own
civil negligence. The words of Justice Jorge Bocobo in Barredo v. Garcia still hold true today as much as it did in 1942:
x x x [T]o hold that there is only one way to make defendant’s liability effective, and that is, to sue the driver and exhaust his (the latter’s)
property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is
such a remedy under our laws, but there is also a more expeditious way, which is based on the primary and direct responsibility of the defendant
under article [2180] of the Civil Code. Our view of the law is more likely to facilitate remedy for civil wrongs, because the procedure indicated
by the defendant is wasteful and productive of delay, it being a matter of common knowledge that professional drivers of taxis and other similar
public conveyances do not have sufficient means with which to pay damages. Why, then, should the plaintiff be required in all cases to go
through this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts have endeavored to shorten and facilitate
the pathways of right and justice.50
Interest at the rate of 6% per annum is due on the amount of damages adjudged by the trial court.51 The 6% per annum interest shall commence from
30 May 1995, the date of the decision of the trial court. Upon finality of this decision, interest at 12% per annum, in lieu of 6% per annum, is due on the
amount of damages adjudged by the trial court until full payment.
WHEREFORE, we DENY the instant petition for review. The Resolution dated 21 October 1999 of the Court of Appeals in CA-G.R. SP No. 53572, as well
as its Resolution dated 20 January 2000 denying the motion for reconsideration, is AFFIRMED with the MODIFICATION that the amount due shall earn
legal interest at 6% per annum computed from 30 May 1995, the date of the trial court’s decision. Upon finality of this decision, the amount due shall
earn interest at 12% per annum, in lieu of 6% per annum, until full payment.
SO ORDERED.
VICARIOUS LIABILITY OF PARENTS
G.R. No. 85044 June 3, 1992
MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,

vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and
CLARA BUNDOC, respondents.
FELICIANO, J.:
On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing injuries which resulted
in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos Su r, docketed as Civil
Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural
parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was living at the time o f the tragic
incident. In addition to this case for damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No.
1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that he bad acted
without discernment.
Page | 62
Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the
minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption was
grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for adoption, claimed that
not they, but rather the adopting parents, namely the spouses Sabas and Felisa Rapisura, were indispensable parties to the action since parental
authority had shifted to the adopting parents from the moment the successful petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents, parental authority had not
ceased nor been relinquished by the mere filing and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto indeed were not
indispensable parties to the action.
Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on 14 December 1987,
petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration on 15 January 1988. It appearing, however,
that the motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all
parties concerned at least three (3) days before the hearing of said motion; and that said notice shall state the time and place of hearing — both
motions were denied by the trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order dated
6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period
ending 22 December 1987.
Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision dated 3 December 1987
and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to
appeal.
In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable parties to the action
for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges on the following issues: (1) whether or
not petitioners, notwithstanding loss of their right to appeal, may still file the instant Petition; conversely, whether the Court may still take
cognizance of the case even through petitioners' appeal had been filed out of time; and (2) whether or not the effects of adoption, insofar as
parental authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a damage case
filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological parents.
1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not having complied with
the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not
interrupt and suspend the reglementary period to appeal: the trial court held that the motions, not having contained a notice of time and place
of hearing, had become useless pieces of paper which did not interrupt the reglementary period. 1 As in fact repeatedly held by this Court, what
is mandatory is the service of the motion on the opposing counsel indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice may be served, the Court, invoking
its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having been seasonably
filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted
the reglementary period for appeal. As the Court held in Gregorio v. Court of Appeals: 3
Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of
appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure are
used only to help secure not override, substantial justice. if d technical and rigid enforcement of the rules is made their aim
would be defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-
delict against him. As Article 2176 of the Civil Code provides:
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 . . .
Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may
be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:
The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons
for whom one is responsible.
Page | 63
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused
by the minor children who live in their company.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage. (Emphasis supplied)
This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of "imputed negligence" under
Anglo-American tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he
has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and
responsibilities of parents — their parental authority — which includes the instructing, controlling and disciplining of the child. 5 The basis for the
doctrine of vicarious liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms:
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the
legislature to elect — and our Legislature has so elected — to limit such liability to cases in which the person upon whom such
an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy. to extend that liability, without
regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose acts or
omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over
them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined
exceptions — to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility
may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care in the selection
and control of one's agent or servants, or in the control of persons who, by reasons of their status, occupy a position of
dependency with respect to the person made liable for their conduct. 7 (Emphasis Supplied)
The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon the parental
authority vested by the Civil Code upon such parents. The civil law assumes that when an unemancipated child living with its parents
commits a tortious acts, the parents were negligent in the performance of their legal and natural duty closely to supervise the child
who is in their custody and control. Parental liability is, in other words, anchored upon parental authority coupled with presumed
parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed
and the presumption can be overtuned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of
a good father of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc
spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents who had then actual custody of the minor
Adelberto, are the indispensable parties to the suit for damages.
The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption court in favor of the
Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the filing of the petition for adoption that
is, before Adelberto had shot Jennifer which an air rifle. The Bundoc spouses contend that they were therefore free of any parental responsibility
for Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows:
Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social Welfare or duly licensed child
placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain, care
for, and educate the child, that the trial custody period has been completed, and that the best interests of the child will be
promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original petition was
filed. The decree shall state the name by which the child is thenceforth to be known. (Emphasis supplied)
The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code:
Art. 39. Effect of Adoption. — The adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the natural parents , except where the adopter is the spouse of the surviving natural
parent;
xxx xxx xxx
Page | 64
(Emphasis supplied)
and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption was filed.
The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship
existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and
control. Article 58 of the Child and Youth Welfare Code, re-enacted this rule:
Article 58 Torts — Parents and guardians are responsible for the damage caused by the child under their parental authority in
accordance with the civil Code. (Emphasis supplied)
Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer of the tortious act, shall have beer
in the actual custody of the parents sought to be held liable for the ensuing damage:
Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by
the acts or omissions of their unemancipated children living in their companyand under their parental authority subject to the
appropriate defenses provided by law. (Emphasis supplied)
We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the adopting parents,
the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive effect may be giver to the decree of
adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over
the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the
accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which
they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be
unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could
have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.
Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows:
Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and until the adopting parents are given by
the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for the
legal union. During the period of trial custody, parental authority shall be vested in the adopting parents. (Emphasis supplied)
Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the
issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period . In the
instant case, the trial custody period either had not yet begun or bad already been completed at the time of the air rifle shooting; in any case,
actual custody of Adelberto was then with his natural parents, not the adopting parents.
Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit for damages
brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable parties being already before the court,
constituted grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the Court of Appeals dated 6
September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby
REINSTATED and this case is REMANDED to that court for further proceedings consistent with this Decision. Costs against respondent Bundoc
spouses. This Decision is immediately executory.
SO ORDERED.
Page | 65
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.

Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of Manila Railroad Company in the
capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant
railroad company; and in coming daily by train to the company's office in the city of Manila where he worked, he used a pass, supplied by the company,
which entitled him to ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his seat in
the second class-car where he was riding and, making, his exit through the door, took his position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to rise with a moderate gradient some
distance away from the company's office and extends along in front of said office for a distance sufficient to cover the length of several coaches. As the
train slowed down another passenger, named Emilio Zuñiga, also an employee of the railroad company, got off the same car, alighting safely at the point
where the platform begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off also,
but one or both of his feet came in contact with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears
that after the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a single light located some distance away,
objects on the platform where the accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that it was the customary season for
harvesting these melons and a large lot had been brought to the station for the shipment to the market. They were contained in numerous sacks which
has been piled on the platform in a row one upon another. The testimony shows that this row of sacks was so placed of melons and the edge of platform;
and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon the platform.
His statement that he failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had received were very serious. He
was therefore brought at once to a certain hospital in the city of Manila where an examination was made and his arm was amputated. The result of this
operation was unsatisfactory, and the plaintiff was then carried to another hospital where a second operation was performed and the member was again
amputated higher up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of medical and surgical fees
and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover damages of the defendant company,
founding his action upon the negligence of the servants and employees of the defendant in placing the sacks of melons upon the platform and leaving
them so placed as to be a menace to the security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his
Honor, the trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although negligence was
attributable to the defendant by reason of the fact that the sacks of melons were so placed as to obstruct passengers passing to and from the cars,
nevertheless, the plaintiff himself had failed to use due caution in alighting from the coach and was therefore precluded form recovering. Judgment was
accordingly entered in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the platform in the manner above
stated; that their presence caused the plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal cause of the
injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred
by the plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary
responsibility of the defendant company and the contributory negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the obligation to respond for the
damage which plaintiff has suffered arises, if at all, from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual obligations — or to use the
technical form of expression, that article relates only to culpa aquiliana and not to culpa contractual.
Page | 66
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this distinction, which
was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa, substantive and independent, which of itself constitutes the source of an obligation between
persons not formerly connected by any legal tie" and culpa considered as an accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of the Civil Code is not applicable to
acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not growing out of pre-existing
duties of the parties to one another. But where relations already formed give rise to duties, whether springing from contract or quasi-contract,
then breaches of those duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.
Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed upon employers with respect to
damages occasioned by the negligence of their employees to persons to whom they are not bound by contract, is not based, as in the English Common
Law, upon the principle of respondeat superior — if it were, the master would be liable in every case and unconditionally — but upon the principle
announced in article 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making
good the damage caused. One who places a powerful automobile in the hands of a servant whom he knows to be ignorant of the method of managing
such a vehicle, is himself guilty of an act of negligence which makes him liable for all the consequences of his imprudence. The obligation to make good
the damage arises at the very instant that the unskillful servant, while acting within the scope of his employment causes the injury. The liability of the
master is personal and direct. But, if the master has not been guilty of any negligence whatever in the selection and direction of the servant, he is not
liable for the acts of the latter, whatever done within the scope of his employment or not, if the damage done by the servant does not amount to a breach
of the contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master from liability for the latter's acts —
on the contrary, that proof shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is
always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. A
master who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should possess for the discharge of
the duties which it is his purpose to confide to them, and directs them with equal diligence, thereby performs his duty to third persons to whom he is
bound by no contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants, even within the scope of their employment,
such third person suffer damage. True it is that under article 1903 of the Civil Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held that these articles are applicable to cases
of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action
brought upon the theory of the extra-contractual liability of the defendant to respond for the damage caused by the carelessness of his employee while
acting within the scope of his employment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises
a presumption of law that there was negligence on the part of the master or employer either in selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and consequently, may
be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised
the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is the notable peculiarity
of the Spanish law of negligence. It is, of course, in striking contrast to the American doctrine that, in relations with strangers, the negligence
of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence, it is necessary that there shall have
been some fault attributable to the defendant personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption, is in
complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason of the
breach of the duties inherent in the special relations of authority or superiority existing between the person called upon to repair the damage and the one
who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions
cause damages which amount to the breach of a contact, is not based upon a mere presumption of the master's negligence in their selection or control,
and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in the breach or omission of those
mutual duties which civilized society imposes upon it members, or which arise from these relations, other than contractual, of certain members of society
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to others, generally embraced in the concept of status. The legal rights of each member of society constitute the measure of the
corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all other members of society. The breach of
these general duties whether due to willful intent or to mere inattention, if productive of injury, give rise to an obligation to indemnify the injured party.
The fundamental distinction between obligations of this character and those which arise from contract, rests upon the fact that in cases of non-contractual
obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists
independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect — and our
Legislature has so elected — whom such an obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend that
liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those person who acts or mission are imputable,
by a legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our Civil Code has
elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the
persons to be charged. This moral responsibility may consist in having failed to exercise due care in the selection and control of one's agents or servants,
or in the control of persons who, by reason of their status, occupy a position of dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly different from that to which article
1903 relates. When the sources of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests
upon plaintiff to prove the negligence — if he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the
benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings
whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract
and of its nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the burden of proof of its existence, as
the only fact upon which his action is based; while on the contrary, in a case of negligence which presupposes the existence of a contractual
obligation, if the creditor shows that it exists and that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p.
71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the negligent conduct of defendant or
of his servants, even though such be in fact the actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or
omission of his servants or agents caused the breach of the contract would not constitute a defense to the action. If the negligence of servants or agents
could be invoked as a means of discharging the liability arising from contract, the anomalous result would be that person acting through the medium of
agents or servants in the performance of their contracts, would be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be logical to
free him from his liability for the breach of his contract, which involves the duty to exercise due care in the preservation of the watch, if he shows that it
was his servant whose negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy practically complete immunity from
damages arising from the breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act through agents or
servants, and it would no doubt be true in most instances that reasonable care had been taken in selection and direction of such servants. If one delivers
securities to a banking corporation as collateral, and they are lost by reason of the negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon the payment of the debt by proving
that due care had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident to the performance of a contract has
frequently been recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions
of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902 of
the Civil Code as a defense. The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as those to which article 1902 of the Civil
Code relates, but of damages caused by the defendant's failure to carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage done by the negligent acts of their servants will show that
in no case has the court ever decided that the negligence of the defendant's servants has been held to constitute a defense to an action for damages for
breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for the damages caused by the negligence
of his driver. In that case the court commented on the fact that no evidence had been adduced in the trial court that the defendant had been negligent
in the employment of the driver, or that he had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for damages caused by the loss
of a barge belonging to plaintiff which was allowed to get adrift by the negligence of defendant's servants in the course of the performance of a contract
of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and the
plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving defendant's automobile in which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that the master was not liable, although he was present at the time, saying:
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. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable opportunity
to observe them and to direct the driver to desist therefrom. . . . The act complained of must be continued in the presence of the owner for
such length of time that the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion as to
the liability of the defendant upon article 1903, although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to
him arising out of the contract of transportation. The express ground of the decision in this case was that article 1903, in dealing with the liability of a
master for the negligent acts of his servants "makes the distinction between private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of servants; and that in the particular case the presumption of negligence had not
been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tort rather than as based upon the breach
of the contract of carriage, and an examination of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this theory.
Viewed from the standpoint of the defendant the practical result must have been the same in any event. The proof disclosed beyond doubt that the
defendant's servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that defendant
had been guilty of negligence in its failure to exercise proper discretion in the direction of the servant. Defendant was, therefore, liable for the injury
suffered by plaintiff, whether the breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out (vol.
8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of a contractual undertaking or its itself the source of an extra-
contractual undertaking obligation, its essential characteristics are identical. There is always an act or omission productive of damage due to carelessness
or inattention on the part of the defendant. Consequently, when the court holds that a defendant is liable in damages for having failed to exercise due
care, either directly, or in failing to exercise proper care in the selection and direction of his servants, the practical result is identical in either case.
Therefore, it follows that it is not to be inferred, because the court held in the Yamada case that defendant was liable for the damages negligently caused
by its servants to a person to whom it was bound by contract, and made reference to the fact that the defendant was negligent in the selection and
control of its servants, that in such a case the court would have held that it would have been a good defense to the action, if presented squarely upon
the theory of the breach of the contract, for defendant to have proved that it did in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and extra-contractual obligations. The
field of non- contractual obligation is much more broader than that of contractual obligations, comprising, as it does, the whole extent of juridical human
relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve
him from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that
the same act which constitutes the source of an extra-contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to provide safe means of entering and
leaving its trains (civil code, article 1258). That duty, being contractual, was direct and immediate, and its non-performance could not be excused by proof
that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in placing an obstruction upon the
platform was a breach of its contractual obligation to maintain safe means of approaching and leaving its trains, the direct and proximate cause of the
injury suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own negligence, no liability is imposed
upon defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should be apportioned. It is, therefore, important to
ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injury suffered by him could not have
occurred. Defendant contends, and cites many authorities in support of the contention, that it is negligence per se for a passenger to alight from a moving
train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is at
variance with the experience of every-day life. In this particular instance, that the train was barely moving when plaintiff alighted is shown conclusively
by the fact that it came to stop within six meters from the place where he stepped from it. Thousands of person alight from trains under these conditions
every day of the year, and sustain no injury where the company has kept its platform free from dangerous obstructions. There is no reason to believe
that plaintiff would have suffered any injury whatever in alighting as he did had it not been for defendant's negligent failure to perform its duty to provide
a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a moving railway train, is that
of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person, of the age, sex and condition of the passenger,
would have acted as the passenger acted under the circumstances disclosed by the evidence. This care has been defined to be, not the care
which may or should be used by the prudent man generally, but the care which a man of ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was there
anything in the circumstances surrounding the plaintiff at the time he alighted from the train which would have admonished a person of average prudence
that to get off the train under the conditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to
desist was contributory negligence.1awph!l.net
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As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that plaintiff was guilty
of contributory negligence is that he stepped off the car without being able to discern clearly the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented, it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the
obstruction which was caused by the sacks of melons piled on the platform existed; and as the defendant was bound by reason of its duty as a public
carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of some circumstance to warn
him to the contrary, that the platform was clear. The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon
the part of the defendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility concede that it had right to pile these
sacks in the path of alighting passengers, the placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following circumstances are to be noted: The company's
platform was constructed upon a level higher than that of the roadbed and the surrounding ground. The distance from the steps of the car to the spot
where the alighting passenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping off. The nature of
the platform, constructed as it was of cement material, also assured to the passenger a stable and even surface on which to alight. Furthermore, the
plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so risky for him to get off while the train was yet moving as
the same act would have been in an aged or feeble person. In determining the question of contributory negligence in performing such act — that is to
say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the passenger are circumstances necessarily affecting
the safety of the passenger, and should be considered. Women, it has been observed, as a general rule are less capable than men of alighting with safety
under such conditions, as the nature of their wearing apparel obstructs the free movement of the limbs. Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or the character of the platform where he was alighting. Our conclusion is that the conduct
of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not
guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and that the injuries he has suffered have
permanently disabled him from continuing that employment. Defendant has not shown that any other gainful occupation is open to plaintiff. His expectancy
of life, according to the standard mortality tables, is approximately thirty-three years. We are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of P790.25 for
medical attention, hospital services, and other incidental expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and for the costs of both instances. So
ordered.
Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
[G.R. No. 70890. September 18, 1992.]
CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and
SHIRLEY GOTIONG, Respondents.
Alex Y. Tan, for Petitioners.
Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.
SYLLABUS
1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES COMMITTED BY THEIR
MINOR CHILDREN; RULE. — The parents are and should be held primarily liable for the civil liability arising from criminal offenses committed
by their minor children under their legal authority or control, or who live in their company, unless it is proven that the former acted with the
diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised
Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted
without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over but
under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said Article 2180, the
enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the
Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the
mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend
of the youthful offender. However, under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of
the parents and those who exercise parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors,
the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
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DECISION
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is provided by the
instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those whose lives they have touched. While we
cannot expect to award complete assuagement to their families through seemingly prosaic legal verbiage, this disposition should at least
terminate the acrimony and rancor of an extended judicial contest resulting from the unfortunate occurrence.
In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are now before us
seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No. 69060 with the following decretal
portion:jgc:chanr obl es.com .ph
"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is hereby reversed; and instead, judgment is hereby rendered
sentencing defendants, jointly and solidarily, to pay to plaintiffs the following amounts: chanr obles .com : virtual law librar y
1. Moral damages, P30,000.000;
2. Exemplary damages, P10,000.00;
3. Attorney’s fees, P20,000.00, and costs.
However, denial of defendants-appellees’ counterclaims is affirmed." 1
Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie Ann Gotiong who, at
the time of the deplorable incident which took place and from which she died on January 14, 1979, was an 18-year old first year commerce
student of the University of San Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of
age living with his aforesaid parents, and who also died in the same event on the same date.
For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978 when Julie Ann
broke up her relationship with Wendell after she supposedly found him to be sadistic and irresponsible. During the first and second weeks of
January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation but the latter persisted in her refusal, prompting the former to
resort to threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the corner of Maria
Cristina and Juana Osmeña Streets, Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a Smith and Wesson
revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the crime inside the residence of private
respondents at the corner of General Maxilom and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents, who are the
contending parties herein, posited their respective theories drawn from their interpretation of circumstantial evidence, available reports,
documents and evidence of physical facts.
Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her with the aforesaid
firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise distressed over the
death of their son, rejected the imputation and contended that an unknown third party, whom Wendell may have displeased or antagonized by
reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused Wendell’s death and then shot
Julie Ann to eliminate any witness and thereby avoid identification. chanrobles .com:cralaw:red
As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First Instance of Cebu against the parents
of Wendell to recover damages arising from the latter’s vicarious liability under Article 2180 of the Civil Code. After trial, the court below
rendered judgment on October 20, 1980 as follows: jgc:chanr obles .com .ph
"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs’ complaint for insufficiency of the evidence.
Defendants’ counterclaim is likewise denied for lack of sufficient merit." 2
On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants was set aside and
another judgment was rendered against defendants-appellees who, as petitioners in the present appeal by certiorari, now submit for resolution
the following issues in this case: chanrob1es virtual 1aw library
1. Whether or not respondent court correctly reversed the trial court in accordance with established decisional laws; and
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2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable
for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings and opinions on some
postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act. However, undue emphasis
was placed by the lower court on the absence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to be taken into account in the determination of whether it was suicide or not.
It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the entrance wound.
However, as pointed out by private respondents, the body of deceased Wendell Libi must have been washed at the funeral parlor, considering
the hasty interment thereof a little after eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not categorically state
that the body of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his autopsy. It will also be noted that Dr.
Cerna was negligent in not conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendell’s hands was
forever lost when Wendell was hastily buried. cralaw nad
More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after the incident or, to be
exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arrived at the Cosmopolitan Funeral Homes, the
body of the deceased was already on the autopsy table and in the stage of rigor mortis; and that said body was not washed, but it was dried. 4
However, on redirect examination, he admitted that during the 8-hour interval, he never saw the body nor did he see whether said body was
wiped or washed in the area of the wound on the head which he examined because the deceased was inside the morgue. 5 In fact, on cross-
examination, he had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are
concerned, it is possible that Wendell Libi shot himself. 6
He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no burning or singeing of the hair
or extensive laceration on the gunshot wound of entrance which are general characteristics of contact or near-contact fire. On direct
examination, Dr. Cerna nonetheless made these clarification: jgc:chanrobles .com .ph
"Q Is it not a fact that there are certain guns which are so made that there would be no black residue or tattooing that could result from these
guns because they are what we call clean?
A Yes, sir. I know that there are what we call smokeless powder.
ATTY. ORTIZ: c hanrob1es virtual 1aw library
Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not rule out the possibility that the
gun was closer than 24 inches, is that correct?
A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from the trajectory, based on the
trajectory of the bullet as shown in your own sketch, is it not a fact that the gun could have been fired by the person himself, the victim
himself, Wendell Libi, because it shows a point of entry a little above the right ear and point of exit a little above that, to be very fair and on
your oath?
A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as the angle or the manner of
fire is concerned, it could have been fired by the victim." 7
As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which were the bullets that hit Julie Ann
Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the National Bureau of Investigation, 9 shows
that there is only one gunshot wound of entrance located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna
states:chanrob1es virtual 1aw library
x x x
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges inverted, oriented upward,
located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus, directed slightly forward,
upward and to the left, involving skin and soft tissues, making a punch-in fracture on the temporal bone, right, penetrating cranial cavity,
lacerating extensively along its course the brain tissues, fracturing parietal bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8
cms., edges (e)verted, parietal region, left, 2.0 cms. behind and 12.9 cms. above left external auditory meatus. chanr obl es virtualawli brary chanr obl es.com:c hanrobles.c om.ph
x x x
"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing (sic), smudging,
Page | 72
singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the skin from the
underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus: jgc:chanrobles.c om.ph
"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory of the bullet and the exit of the
wound, and measuring yourself 24 inches, will you please indicate to the Honorable Court how would it have been possible for Wendell Libi to
kill himself? Will you please indicate the 24 inches?
WITNESS: chanr ob1es virtual 1aw librar y
A Actually, sir, the 24 inches is approximately one arm’s length.
ATTY. SENINING: chanr ob1es virtual 1aw libr ary
I would like to make of record that the witness has demonstrated by extending his right arm almost straight towards his head." 11
Private respondents assail the fact that the trial court gave credence to the testimonies of defendants’ witnesses Lydia Ang and James Enrique
Tan, the first being a resident of an apartment across the street from the Gotiongs and the second, a resident of the house adjacent to the
Gotiong residence, who declared having seen a "shadow" of a person at the gate of the Gotiong house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the second apartment; that
from her window she can see directly the gate of the Gotiongs and, that there is a firewall between her apartment and the gas station. 12 After
seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines were busy.
Later on, she talked with James Enrique Tan and told him that she saw a man leap from the gate towards his rooftop. 13
However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied having talked with anyone
regarding what he saw. He explained that he lives in a duplex house with a garden in front of it; that his house is next to Felipe Gotiong’s
house; and he further gave the following answers to these questions: chanr obl es.com : virtual law libr ary
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiong’s in relation to your house?
A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From Your living room window, is that correct?
A Yes, but not very clear because the wall is high." 14
Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the reliability and accuracy of
the witnesses’ observations, since the visual perceptions of both were obstructed by high walls in their respective houses in relation to the
house of herein private respondents. On the other hand, witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he
and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her scream; that when Manolo climbed the fence to see
what was going on inside the Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he heard another shot.
Consequently, he went down from the fence and drove to the police station to report the incident. 15 Manolo’s direct and candid testimony
establishes and explains the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the
Gotiong house.
We have perforce to reject petitioners’ effete and unsubstantiated pretension that it was another man who shot Wendell and Julie Ann. It is
significant that the Libi family did not even point to or present any suspect in the crime nor did they file any case against any alleged "John
Page | 73
Doe." Nor can we sustain the trial court’s dubious theory that Wendell Libi did not die by his own hand because of the
overwhelming evidence — testimonial, documentary and pictorial — the confluence of which point to Wendell as the assailant of Julie Ann, his
motive being revenge for her rejection of his persistent pleas for a reconciliation. chanr obles .com:cral aw:red
Petitioners’ defense that they had exercised the due diligence of a good father of a family, hence they should not be civilly liable for the crime
committed by their minor son, is not borne out by the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a safety deposit box
inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and Amelita’s key is always in her bag, all of
which facts were known to Wendell. They have never seen their son Wendell taking or using the gun. She admitted, however, that on that
fateful night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but entertain serious doubts that petitioner spouses
had really been exercising the diligence of a good father of a family by safely locking the fatal gun away. Wendell could not have gotten hold
thereof unless one of the keys to the safety deposit box was negligently left lying around or he had free access to the bag of his mother where
the other key was.
The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the instruction and
supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently supervising the activities of their son, despite
his minority and immaturity, so much so that it was only at the time of Wendell’s death that they allegedly discovered that he was a CANU
agent and that Cresencio’s gun was missing from the safety deposit box. Both parents were sadly wanting in their duty and responsibility in
monitoring and knowing the activities of their children who, for all they know, may be engaged in dangerous work such as being drug
informers, 17 or even drug users. Neither was a plausible explanation given for the photograph of Wendell, with a handwritten dedication to
Julie Ann at the back thereof, 18 holding upright what clearly appears as a revolver and on how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this opinion, respondent court
waved aside the protestations of diligence on the part of petitioners and had this to say: jgc:chanr obl es.com .ph
". . . It is still the duty of parents to know the activity of their children who may be engaged in this dangerous activity involving the menace of
drugs. Had the defendants-appellees been diligent in supervising the activities of their son, Wendell, and in keeping said gun from his reach,
they could have prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which
provides:chanr ob1es virtual 1aw libr ary
‘The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by their minor children who live in their
company.’
"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly kept in a safety deposit box,
defendants-appellees are subsidiarily liable for the natural consequence of the criminal act of said minor who was living in their company. This
vicarious liability of herein defendants-appellees has been reiterated by the Supreme Court in many cases, prominent of which is the case of
Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that: chanrob1es virtual 1aw libr ary
‘The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers obligations
arising from both quasi-delicts and criminal offenses.’
‘The subsidiary liability of parent’s arising from the criminal acts of their minor children who acted with discernment is determined under the
provisions of Article 2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold that the former only covers obligations
which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where
mere negligence intervenes the father or mother may stand subsidiarily liable for the damages caused by his or her son, no liability would
attach if the damage is caused with criminal intent.’ (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the key to the drawer where said gun
was kept under lock without defendant-spouses ever knowing that said gun had been missing from that safety box since 1978 when Wendell
Libi had) a picture taken wherein he proudly displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since
then, Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed role of a CANU agent . . ." chanr obles lawlibrar y : rednad
x x x
"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct in dismissing herein plaintiffs-
appellants’ complaint because as preponderantly shown by evidence, defendants-appellees utterly failed to exercise all the diligence of a good
father of the family in preventing their minor son from committing this crime by means of the gun of defendants-appellees which was freely
accessible to Wendell Libi for they have not regularly checked whether said gun was still under lock, but learned that it was missing from the
safety deposit box only after the crime had been committed." (Emphases ours.) 19
We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability based on what appears from all
indications was a crime committed by their minor son. We take this opportunity, however, to digress and discuss its ratiocination therefor on
jurisprudential dicta which we feel require clarification.
Page | 74
In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v. Cadano, Et. Al. 20 which supposedly
holds that" (t)he subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers
obligations arising from both quasi-delicts and criminal offenses," followed by an extended quotation ostensibly from the same case explaining
why under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should assume subsidiary liability for damages
caused by their minor children. The quoted passages are set out two paragraphs back, with pertinent underscoring for purposes of the
discussion hereunder. chanr obl es law library
Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability as being subsidiary,
and not primary, in nature requires a hard second look considering previous decisions of this court on the matter which warrant comparative
analyses. Our concern stems from our readings that if the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a good father of a
family to prevent damages. On the other hand, if such liability imputed to the parents is considered direct and primary, that diligence would
constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the Civil Code, is primary
and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the persons responsible
for the act or omission, in this case the minor and the father and, in case of his death of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of Article 2180 provides that" (t)he responsibility
treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family
to prevent damages." cralaw virtua1aw libr ary
We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not subsidiary. Article
101 of the Revised Penal Code provides: jgc:chanrobles.c om.ph
"ARTICLE 101. Rules regarding civil liability in certain cases. —
x x x
First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a person under nine years of age, or by one
over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal
authority or control, unless it appears that there was no fault or negligence on their part." ( Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents for crimes
committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or negligence on their part,
that is, the exercise of the diligence of a good father of a family.
That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding provisions in both
codes that the minor transgressor shall be answerable or shall respond with his own property only in the absence or in case of insolvency of
the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage has no
parents or guardian, the minor . . . shall be answerable with his own property in an action against him where a guardian ad litem shall be
appointed." For civil liability ex delicto of minors, an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal
Code, to wit:jgc:chanr obl es.com .ph
"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if such person be insolvent, said . . .
minor shall respond with (his) own property, excepting property exempt from execution, in accordance with civil law." cral aw virtua1aw libr ary
The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101 of the Revised Penal
Code in relation to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a number of cases
adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v.
Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the civil liability of
parents for crimes committed by their minor children over 9 but under 15 years of age, who acted with discernment, and also of minors 15
years of aye or over, since these situations are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the issue
of parental civil liability should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well expressed in
Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply only to quasi-delicts
and not to criminal offenses would result in the absurdity that in an act involving mere negligence the parents would be liable but not where
the damage is caused with criminal intent. In said cases, however, there are unfortunate variances resulting in a regrettable inconsistency in
the Court’s determination of whether the liability of the parents, in cases involving either crimes or quasi-delicts of their minor children, is
primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil action arising from
the crime the minor and his father were held jointly and severally liable for failure of the latter to prove the diligence of a good father of a
family. The same liability in solidum and, therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their
14-year old son who was found guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code providing for solidary
Page | 75
responsibility of two or more persons who are liable for a quasi-delict.
However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was over 15 but less than
18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present case, as already explained,
the petitioners herein were also held liable but supposedly in line with Fuellas which purportedly declared the parents subsidiarily liable for the
civil liability for serious physical injuries committed by their 13-year old son. On the other hand, in Paleyan, the mother and her 19-year old son
were adjudged solidarily liable for damages arising from his conviction for homicide by the application of Article 2180 of the Civil Code since
this is likewise not covered by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge
due to "lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary liability for
damages, since the son, "although married, was living with his father and getting subsistence from him at the time of the occurrence," but "is
now of age, as a matter of equity" the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons causing damages under the
compulsion of irresistible force or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of establishments;
28 employers, teachers, persons and corporations engaged in industry; 29 and principals, accomplices and accessories for the unpaid civil
liability of their co-accused in the other classes. 30
Also, coming back to respondent court’s reliance on Fuellas in its decision in the present case, it is not exactly accurate to say that Fuellas
provided for subsidiary liability of the parents therein. A careful scrutiny shows that what respondent court quoted verbatim in its decision now
on appeal in the present case, and which it attributed to Fuellas, was the syllabus on the law report of said case which spoke of "subsidiary"
liability. However, such categorization does not specifically appear in the text of the decision in Fuellas. In fact, after reviewing therein the
cases of Exconde, Araneta and Salen and the discussions in said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the
Civil Code, this Court concluded its decision in this wise:
jgc:chanrobles.c om.ph
"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein by both parties, independent of the
criminal case. And responsibility for fault or negligence under Article 2176 upon which the present action was instituted, is entirely separate
and distinct from the civil liability arising from fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the
law as heretofore stated, any discussion as to the minor’s criminal responsibility is of no moment." cralaw virtua1aw libr ary
Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for the civil liability
arising from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is
proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over
9 but under 15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted
with discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil
Code. 31
Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the
mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his
death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily
assumed by a relative or family friend of the youthful offender. 32 However, under the Family Code, this civil liability is now, without such
alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. 33 For civil liability
arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so
modified.
In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by Wendell Libi,
respondent court did not err in holding petitioners liable for damages arising therefrom. Subject to the preceding modifications of the premises
relied upon by it therefor and on the bases of the legal imperatives herein explained, we conjoin in its findings that said petitioners failed to
duly exercise the requisite diligentissimi patris familias to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby AFFIRMED, with costs
against petitioners.
SO ORDERED.
Page | 76
VICARIOUS LIABILITY OF EMPLOYERS
G.R. No. 132266 December 21, 1999
CASTILEX INDUSTRIAL CORPORATION, petitioner,

vs.
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS' HOSPITAL, INC., respondents.
DAVIDE, JR., C.J.:
The pivotal issue in this petition is whether an employer may be held vicariously liable for the death resulting from the negligent operation by a managerial
employee of a company-issued vehicle.
The antecedents, as succinctly summarized by the Court of Appeals, are as follows:
On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was driving a Honda motorcycle around Fuente
Osmeña Rotunda. He was traveling counter-clockwise, (the normal flow of traffic in a rotunda) but without any protective helmet or
goggles. He was also only carrying a Student's Permit to Drive at the time. Upon the other hand, Benjamin Abad [was a] manager of
Appellant Castilex Industrial Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no. GBW-794. On the same date
and time, Abad drove the said company car out of a parking lot but instead of going around the Osmeña rotunda he made a short
cut against [the] flow of the traffic in proceeding to his route to General Maxilom St. or to Belvic St.
In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each other causing severe injuries to the former.
Abad stopped his vehicle and brought Vasquez to the Southern Islands Hospital and later to the Cebu Doctor's Hospital.
On September 5, 1988, Vasquez died at the Cebu Doctor's Hospital. It was there that Abad signed an acknowledgment of Responsible
Party (Exhibit K) wherein he agreed to pay whatever hospital bills, professional fees and other incidental charges Vasquez may incur.
After the police authorities had conducted the investigation of the accident, a Criminal Case was filed against Abad but which was
subsequently dismissed for failure to prosecute. So, the present action for damages was commenced by Vicente Vasquez, Jr. and
Luisa So Vasquez, parents of the deceased Romeo So Vasquez, against Jose Benjamin Abad and Castilex Industrial Corporation. In
the same action, Cebu Doctor's Hospital intervened to collect unpaid balance for the medical expense given to Romeo So Vasquez.1
The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and ordered Jose Benjamin Abad (hereafter ABAD) and petitioner Castilex
Industrial Corporation (hereafter CASTILEX) to pay jointly and solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial expenses; P50,000.00
as moral damages; P10,000.00 as attorney's fees; and P778,752.00 for loss of earning capacity; and (2) Cebu Doctor's Hospital, the sum of P50,927.83
for unpaid medical and hospital bills at 3% monthly interest from 27 July 1989 until fully paid, plus the costs of litigation.2
CASTILEX and ABAD separately appealed the decision.
In its decision3 of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court holding ABAD and CASTILEX liable but held that the liability of
the latter is "only vicarious and not solidary" with the former. It reduced the award of damages representing loss of earning capacity from P778,752.00
to P214,156.80; and the interest on the hospital and medical bills, from 3% per month to 12% per annum from 5 September 1988 until fully paid.
Upon CASTILEX's motion for reconsideration, the Court of Appeals modified its decision by (1) reducing the award of moral damages from P50,000 to
P30,000 in view of the deceased's contributory negligence; (b) deleting the award of attorney's fees for lack of evidence; and (c) reducing the interest on
hospital and medical bills to 6% per annum from 5 September 1988 until fully paid.4
Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1) applying to the case the fifth paragraph of Article 2180 of the
Civil Code, instead of the fourth paragraph thereof; (2) that as a managerial employee, ABAD was deemed to have been always acting within the scope
of his assigned task even outside office hours because he was using a vehicle issued to him by petitioner; and (3) ruling that petitioner had the burden to
prove that the employee was not acting within the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds fast on the theory of negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue that their son's death was caused by the negligence of petitioner's employee who was driving a
vehicle issued by petitioner and who was on his way home from overtime work for petitioner; and that petitioner is thus liable for the resulting injury and
subsequent death of their son on the basis of the fifth paragraph of Article 2180. Even if the fourth paragraph of Article 2180 were applied, petitioner
Page | 77
cannot escape liability therefor. They moreover argue that the Court of Appeals erred in reducing the amount of compensatory
damages when the award made by the trial court was borne both by evidence adduced during the trial regarding deceased's wages and by jurisprudence
on life expectancy. Moreover, they point out that the petition is procedurally not acceptable on the following grounds: (1) lack of an explanation for serving
the petition upon the Court of Appeals by registered mail, as required under Section 11, Rule 13 of the Rules of Civil Procedure; and (2) lack of a statement
of the dates of the expiration of the original reglementary period and of the filing of the motion for extension of time to file a petition for review.
For its part, respondent Cebu Doctor's Hospital maintains that petitioner CASTILEX is indeed vicariously liable for the injuries and subsequent death of
Romeo Vasquez caused by ABAD, who was on his way home from taking snacks after doing overtime work for petitioner. Although the incident occurred
when ABAD was not working anymore "the inescapable fact remains that said employee would not have been situated at such time and place had he not
been required by petitioner to do overtime work." Moreover, since petitioner adopted the evidence adduced by ABAD, it cannot, as the latter's employer,
inveigle itself from the ambit of liability, and is thus estopped by the records of the case, which it failed to refute.
We shall first address the issue raised by the private respondents regarding some alleged procedural lapses in the petition.
Private respondent's contention of petitioner's violation of Section 11 of Rule 13 and Section 4 of Rule 45 of the 1997 Rules of Civil Procedure holds no
water.
Sec. 11 of Rule 13 provides:
Sec. 11. Priorities in modes of services and filing. — Whenever practicable, the service and filing of pleadings and other papers shall
be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a
written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as
not filed.
The explanation why service of a copy of the petition upon the Court of Appeals was done by registered mail is found on Page 28 of the petition. Thus,
there has been compliance with the aforequoted provision.
As regards the allegation of violation of the material data rule under Section 4 of Rule 45, the same is unfounded. The material dates required to be stated
in the petition are the following: (1) the date of receipt of the judgment or final order or resolution subject of the petition; (2) the date of filing of a motion
for new trial or reconsideration, if any; and (3) the date of receipt of the notice of the denial of the motion. Contrary to private respondent's claim, the
petition need not indicate the dates of the expiration of the original reglementary period and the filing of a motion for extension of time to file the petition.
At any rate, aside from the material dates required under Section 4 of Rule 45, petitioner CASTILEX also stated in the first page of the petition the date it
filed the motion for extension of time to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes said negligence but claims that it is not vicariously liable for the
injuries and subsequent death caused by ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only apply to instances where the employer is not engaged in business
or industry. Since it is engaged in the business of manufacturing and selling furniture it is therefore not covered by said provision. Instead, the fourth
paragraph should apply.
Petitioner's interpretation of the fifth paragraph is not accurate. The phrase "even though the former are not engaged in any business or industry" found
in the fifth paragraph should be interpreted to mean that it is not necessary for the employer to be engaged in any business or industry to be liable for
the negligence of his employee who is acting within the scope of his assigned task.5
A distinction must be made between the two provisions to determine what is applicable. Both provisions apply to employers: the fourth paragraph, to
owners and managers of an establishment or enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business or
industry. The fourth paragraph covers negligent acts of employees committed either in the service of the branches or on the occasion of their functions,
while the fifth paragraph encompasses negligent acts of employees acting within the scope of their assigned task. The latter is an expansion of the former
in both employer coverage and acts included. Negligent acts of employees, whether or not the employer is engaged in a business or industry, are covered
so long as they were acting within the scope of their assigned task, even though committed neither in the service of the branches nor on the occasion of
their functions. For, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but
which, nevertheless, are still within the call of duty.
This court has applied the fifth paragraph to cases where the employer was engaged in a business or industry such as truck operators6 and banks.7 The
Court of Appeals cannot, therefore, be faulted in applying the said paragraph of Article 2180 of the Civil Code to this case.
Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an employer is liable for the torts committed by employees
within the scope of his assigned tasks. But it is necessary to establish the employer-employee relationship; once this is done, the plaintiff must show, to
hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed. It is only then
that the employer may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee.8
Page | 78
It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of the tort occurrence. As to whether he
was acting within the scope of his assigned task is a question of fact, which the court a quo and the Court of Appeals resolved in the affirmative.
Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of Appeals are entitled to great respect, and even finality at times.
This rule is, however, subject to exceptions such as when the conclusion is grounded on speculations, surmises, or conjectures.9 Such exception obtain in
the present case to warrant review by this Court of the finding of the Court of Appeals that since ABAD was driving petitioner's vehicle he was acting
within the scope of his duties as a manager.
Before we pass upon the issue of whether ABAD was performing acts within the range of his employment, we shall first take up the other reason invoked
by the Court of Appeals in holding petitioner CASTILEX vicariously liable for ABAD's negligence, i.e., that the petitioner did not present evidence that ABAD
was not acting within the scope of his assigned tasks at the time of the motor vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not
incumbent upon the petitioner to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was acting within the scope of his duties;
petitioner was not under obligation to prove this negative averment. Ei incumbit probatio qui dicit, non qui negat (He who asserts, not he who denies,
must prove). The Court has consistently applied the ancient rule that if the plaintiff, upon whom rests the burden of proving his cause of action, fails to
show in a satisfactory manner facts which he bases his claim, the defendant is under no obligation to prove his exception or defense. 10
Now on the issue of whether the private respondents have sufficiently established that ABAD was acting within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was driving a company-issued vehicle, registered under the
name of petitioner. He was then leaving the restaurant where he had some snacks and had a chat with his friends after having done overtime work for
the petitioner.
No absolutely hard and fast rule can be stated which will furnish the complete answer to the problem of whether at a given moment, an employee is
engaged in his employer's business in the operation of a motor vehicle, so as to fix liability upon the employer because of the employee's action or inaction;
but rather, the result varies with each state of facts. 11
In Filamer Christian Institute v. Intermediate Appellant Court, 12 this Court had the occasion to hold that acts done within the scope of the employee's
assigned tasks includes "any act done by an employee in furtherance of the interests of the employer or for the account of the employer at the time of
the infliction of the injury or damages."
The court a quo and the Court of Appeals were one in holding that the driving by a manager of a company-issued vehicle is within the scope of his
assigned tasks regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge petitioner
with liability for the negligent operation of said vehicle unless it appears that he was operating the vehicle within the course or scope of his employment.
The following are principles in American Jurisprudence on the employer's liability for the injuries inflicted by the negligence of an employee in the use of
an employer's motor vehicle:
I. Operation of Employer's Motor Vehicle in Going to
or from Meals
It has been held that an employee who uses his employer's vehicle in going from his work to a place where he intends to eat or in returning to work from
a meal is not ordinarily acting within the scope of his employment in the absence of evidence of some special business benefit to the employer. Evidence
that by using the employer's vehicle to go to and from meals, an employee is enabled to reduce his time-off and so devote more time to the performance
of his duties supports the finding that an employee is acting within the scope of his employment while so driving the vehicle. 13
II. Operation of Employer's Vehicle in Going to
or from Work
In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee, and not a part of his services to
his employer. Hence, in the absence of some special benefit to the employer other than the mere performance of the services available at the place where
he is needed, the employee is not acting within the scope of his employment even though he uses his employer's motor vehicle. 14
The employer may, however, be liable where he derives some special benefit from having the employee drive home in the employer's vehicle as when
the employer benefits from having the employee at work earlier and, presumably, spending more time at his actual duties. Where the employee's duties
require him to circulate in a general area with no fixed place or hours of work, or to go to and from his home to various outside places of work, and his
employer furnishes him with a vehicle to use in his work, the courts have frequently applied what has been called the "special errand" or "roving
commission" rule, under which it can be found that the employee continues in the service of his employer until he actually reaches home. However, even
if the employee be deemed to be acting within the scope of his employment in going to or from work in his employer's vehicle, the employer is not liable
Page | 79
for his negligence where at the time of the accident, the employee has left the direct route to his work or back home and is pursuing
a personal errand of his own.
III. Use of Employer's Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an employee for the latter's personal use outside of regular working hours is generally not liable for the
employee's negligent operation of the vehicle during the period of permissive use, even where the employer contemplates that a regularly assigned motor
vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. Even where the
employee's personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally
kept, it has been held that he has not resumed his employment, and the employer is not liable for the employee's negligent operation of the vehicle during
the return trip. 15
The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondent superior, not on the principle
of bonus pater familias as in ours. Whether the fault or negligence of the employee is conclusive on his employer as in American law or jurisprudence, or
merely gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting
in his employer's business or within the scope of his assigned task. 16
In the case at bar, it is undisputed that ABAD did some overtime work at the petitioner's office, which was located in Cabangcalan, Mandaue City.
Thereafter, he went to Goldie's Restaurant in Fuente Osmeña, Cebu City, which is about seven kilometers away from petitioner's place of business. 17 A
witness for the private respondents, a sidewalk vendor, testified that Fuente Osmeña is a "lively place" even at dawn because Goldie's Restaurant and
Back Street were still open and people were drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place. 18
At the Goldie's Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD was leaving the restaurant that the incident in question
occurred. That same witness for the private respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car, who then
shouted: "Daddy, Daddy!" 19 This woman could not have been ABAD's daughter, for ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal purpose not in line with his duties at the time he figured
in a vehicular accident. It was then about 2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABAD's working day had ended; his
overtime work had already been completed. His being at a place which, as petitioner put it, was known as a "haven for prostitutes, pimps, and drug
pushers and addicts," had no connection to petitioner's business; neither had it any relation to his duties as a manager. Rather, using his service vehicle
even for personal purposes was a form of a fringe benefit or one of the perks attached to his position.
Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to him, petitioner CASTILEX had no duty to show that
it exercised the diligence of a good father of a family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved
of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle. 20
WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the Court of Appeals is AFFIRMED with the modification that petitioner
Castilex Industrial Corporation be absolved of any liability for the damages caused by its employee, Jose Benjamin Abad.
SO ORDERED.
G.R. No. 82248 January 30, 1992
ERNESTO MARTIN, petitioner,

vs.
HON. COURT OF APPEALS and MANILA ELECTRIC COMPANY, respondents.
CRUZ, J.:
This case turns on the proper application of the familiar rule that he who alleges must prove his allegation.
Ernesto Martin was the owner of a private car bearing license plate No. NPA-930. At around 2 o'clock in the morning of May 11, 1982,
while being driven by Nestor Martin, it crashed into a Meralco electric post on Valley Golf Road, in Antipolo, Rizal. The car was wrecked
and the pole severely damaged. Meralco subsequently demanded reparation from Ernesto Martin, but the demand was rejected. It
thereupon sued him for damages in the Regional Trial Court of Pasig, alleging inter alia that he was liable to it in the sum of P17,352.00
plus attorney's fees and litigation costs as the employer of Nestor Martin. The petitioner's main defense was that Nestor Martin was not
his employee.
Page | 80
After the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that no evidence had
been adduced to show that Nestor Martin was his employee. The motion was denied. The case was considered submitted for decision
with the express waiver by the defendant of his right to present his own evidence. The defendant thus did not rebut the plaintiff's
allegation that he was Nestor Martin's employer.
In the decision dated August 27, 1985, Judge Eutropio Migriño held in favor of the plaintiff, awarding him the amount claimed, with 12%
interest, and P4,000.00 attorney's fees, plus costs.1 The decision was seasonably elevated to the Court of Appeals, which affirmed
it in toto on February 22, 1988, 2 prompting this petition for review.
The petition has merit.
It is important to stress that the complaint for damages was filed by the private respondent against only Ernesto Martin as alleged
employer of Nestor Martin, the driver of the car at the time of the accident. Nestor Martin was not impleaded. The action was based on
tort under Article 2180 of the Civil Code, providing in part that:
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope
of their assigned tasks, even though the former are not engaged in any business or industry.
The above rule is applicable only if there is an employer-employee relationship although it is not necessary that the employer be engaged
in any business or industry. It differs in this sense from Article 103 of the Revised Penal Code, which requires that the employer be
engaged in an industry to be subsidiarily liable for the felony committed by his employee in the course of his employment.
Whether or not engaged in any business or industry, the employer under Article 2180 is liable for the torts committed by his employees
within the scope of their assigned task. But it is necessary first to establish the employment relationship. Once this is done, the plaintiff
must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of
was committed. It is only then that the defendant, as employer, may find it necessary to interpose the defense of due diligence in the
selection and supervision of the employee as allowed in that article. 3
In the case at bar, no evidence whatsoever was adduced by the plaintiff to show that the defendant was the employer of Nestor Martin
at the time of the accident. The trial court merely presumed the existence of the employer-employee relationship and held that the
petitioner had not refuted that presumption. It noted that although the defendant alleged that he was not Nestor Martin's employer, "he
did not present any proof to substantiate his allegation."
As the trial court put it:
There is no need to stretch one's imagination to realize that a car owner entrusts his vehicle only to his driver or to
anyone whom he allows to drive it. Since neither plaintiff nor defendant has presented any evidence on the status of
Nestor Martin, the Court presumes that he was at the time of the incident, an employee of the defendant. It is
elementary that he who makes an allegation is required to prove the same. Defendant alleges that Nestor Martin was
not his employee but he did not present any proof to substantiate his allegation. While it is true plaintiff did not present
evidence on its allegation that Nestor Martin was defendant's employee, the Court believes and so holds, that there
was no need for such evidence. As above adverted to, the Court can proceed on the presumption that one who drives
the motor vehicle is an employee of the owner thereof.
A presumption is defined as an inference as to the existence of a fact not actually known, arising from its usual connection with another
which is known, 4 or a conjecture based on past experience as to what course human affairs ordinarily take. 5 It is either a
presumption juris, or of law, or a presumption hominis, or of fact. 6
There is no law directing the deduction made by the courts below from the particular facts presented to them by the parties. Such
deduction is not among the conclusive presumptions under Section 2 or the disputable presumptions under Section 3 of Rule 131 of the
Rules of Court. In other words, it is not a presumption juris.
Neither is it a presumption hominis, which is a reasonable deduction from the facts proved without an express direction of law to that
effect. 7 The facts proved, or not denied, viz., the ownership of the car and the circumstances of the accident, are not enough bases for
the inference that the petitioner is the employer of Nestor Martin.
In the modern urban society, most male persons know how to drive and do not have to employ others to drive for them unless this is
needed for business reasons. Many cannot afford this luxury, and even if they could, may consider it an unnecessary expense and
Page | 81
inconvenience. In the present case, the more plausible assumption is that Nestor Martin is a close relative of Ernesto
Martin and on the date in question borrowed the car for some private purpose. Nestor would probably not have been accommodated if
he were a mere employee for employees do not usually enjoy the use of their employer's car at two o'clock in the morning.
As the employment relationship between Ernesto Martin and Nestor Martin could not be presumed, it was necessary for the plaintiff to
establish it by evidence. Meralco had the burden of proof, or the duty "to present evidence on the fact in issue necessary to establish his
claim" as required by Rule 131, Section 1 of the Revised Rules of Court. Failure to do this was fatal to its action.
It was enough for the defendant to deny the alleged employment relationship, without more, for he was not under obligation to prove
this negative averment. Ei incumbit probatio qui dicit, non qui negat. 8 This Court has consistently applied the ancient rule that "if the
plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases
his claim, the defendant is under no obligation to prove his exception or defense." 9
The case of Amor v. Soberano, 10 a Court of Appeals decision not elevated to this Court, was misapplied by the respondent court in
support of the petitioner's position. The vehicle involved in that case was a six-by-six truck, which reasonably raised the factual
presumption that it was engaged in business and that its driver was employed by the owner of the vehicle. The case at bar involves a
private vehicle as its license plate indicates. No evidence was ever offered that it was being used for business purposes or that, in any
case, its driver at the time of the accident was an employee of the petitioner.
It is worth mentioning in this connection that in Filamer Christian Institute v. Court of Appeals, 11 the owner of the jeep involved in the
accident was absolved from liability when it was shown that the driver of the vehicle was not employed as such by the latter but was a
"working scholar" as that term is defined by the Omnibus Rules Implementing the Labor Code. 12 He was assigned to janitorial duties.
Evidence was introduced to establish the employment relationship but it failed nonetheless to hold the owner responsible. Significantly,
no similar evidence was even presented in the case at bar, the private respondent merely relying on its mere allegation that Nestor Martin
was the petitioner's employee. Allegation is not synonymous with proof.
The above observations make it unnecessary to examine the question of the driver's alleged negligence or the lack of diligence on the
part of the petitioner in the selection and supervision of his employee. These questions have not arisen because the employment
relationship contemplated in Article 1860 of the Civil Code has not been established.
WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED, and Civil Case No. 48045 in the Regional
Trial Court of Pasig, Branch 151, is DISMISSED, with costs against the respondent. It is so ordered.
Narvasa, C.J., Griño-Aquino and Medidialdea, JJ., concur.
G.R. No. 82465 February 25, 1991
ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE
CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA CADIZ, respondents.
PARAS, J.:
This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:
WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary damages in the amount of
P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral damages of P20,000.00 and attorney's
fees in the amount of P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St. Francis High School, represented by the Spouses
Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with defendants Connie Arquio, Tirso
de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary
damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from liability, and the case
against them, together with their respective counterclaims, is hereby ordered dismissed.
SO ORDERED. (p. 60, Rollo)
Page | 82
The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School, wanted to
join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo
and Lilia Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the picnic, with
the directive that he should go back home after doing so. However, because of persuasion of the teachers, Ferdinand went on with them to the beach.
During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was apparently drowning. Some of the
students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who drowned. His body was recovered but efforts to
resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was
pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch LVIII of Lucena City, against the
St. Francis High School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de
Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of
their 13-year old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the proper diligence
of a good father of the family in preventing their son's drowning, respondents prayed of actual, moral and exemplary damages, attorney's fees and
expenses for litigation.
The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them
jointly and severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to
pay the costs. The court a quo reasoned:
Taking into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso
de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence required of them by law under the circumstances to
guard against the harm they had foreseen. (pp. 2930, Rollo)
xxx xxx xxx
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already occurred,
such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late, they were remiss in their duty to
safeguard the students. (p. 30, Rollo)
The students, young as they were then (12 to 13 years old), were easily attracted to the sea without aforethought of the dangers it offers. Yet,
the precautions and reminders allegedly performed by the defendants-teachers definitely fell short of the standard required by law under the
circumstances. While the defendants-teachers admitted that some parts of the sea where the picnic was held are deep, the supposed lifeguards
of the children did not even actually go to the water to test the depth of the particular area where the children would swim. And indeed the
fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons during the picnic got drowned at the
same time. Had the defendant teachers made an actual and physical observation of the water before they allowed the students to swim, they
could have found out that the area where the children were swimming was indeed dangerous. And not only that, the male teachers who
according to the female teachers were there to supervise the children to ensure their safety were not even at the area where the children were
swimming. They were somewhere and as testified to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo)
On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora Cadorna. Said the court a quo:
As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school sanctioned one. Similarly no
evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna responsible for the death of Ferdinand Castillo together
with the other defendant teachers. It has been sufficiently shown that Benjamin Illumin had himself not consented to the picnic and in fact he
did not join it. On the other hand, defendant Aurora Cadorna had then her own class to supervise and in fact she was not amongst those
allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors committed by the trial court:
1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal Benjamin Illumin as equally liable
not only for its approved co-curricular activities but also for those which they unreasonably failed to exercise control and supervision like the
holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon.
2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and solidarily liable with their co-
defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last
March 20, 1982.
3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death of Ferdinand Castillo
in favor of plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:
Page | 83
We find plaintiffs-appellants' submission well-taken.
Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be gainsaid that the same was held
under the supervision of the teachers employed by the said school, particularly the teacher in charge of Class I-C to whom the victim belonged,
and those whom she invited to help her in supervising the class during the picnic. Considering that the court a quo found negligence on the
part of the six defendants-teachers who, as such, were charged with the supervision of the children during the picnic, the St. Francis High
School and the school principal, Benjamin Illumin, are liable under Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article
2180 of the Civil Code. They cannot escape liability on the mere excuse that the picnic was not an "extra-curricular activity of the St. Francis
High School." We find from the evidence that, as claimed by plaintiffs-appellants, the school principal had knowledge of the picnic even from its
planning stage and had even been invited to attend the affair; and yet he did not express any prohibition against undertaking the picnic, nor
did he prescribe any precautionary measures to be adopted during the picnic. At the least, We must find that the school and the responsible
school officials, particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic.
Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and severally liable with the defendants-
teachers for the damages incurred by the plaintiffs as a result of the death of their son. It is the rule that in cases where the above-cited
provisions find application, the negligence of the employees in causing the injury or damage gives rise to a presumption of negligence on the
part of the owner and/or manager of the establishment (in the present case, St. Francis High School and its principal); and while this presumption
is not conclusive, it may be overthrown only by clear and convincing proof that the owner and/or manager exercised the care and diligence of
a good father of a family in the selection and/or supervision of the employee or employees causing the injury or damage (in this case, the
defendants-teachers). The record does not disclose such evidence as would serve to overcome the aforesaid presumption and absolve the St.
Francis High School and its principal from liability under the above-cited provisions.
As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the plaintiffs for the tragedy that befell
them in the untimely death of their son Ferdinand Castillo and understand their suffering as parents, especially the victim's mother who,
according to appellants, suffered a nervous breakdown as a result of the tragedy, We find that the amounts fixed by the court a quo as actual
damages and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which are sustained by the evidence and
the law.
However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should be, as it is hereby, imposed in the
present case by way of example of correction for the public good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed by the trial court:
1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence
and jointly and severally liable for damages such finding not being supported by facts and evidence.
2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo, were not able to prove by their
evidence that they did not give their son consent to join the picnic in question. However, We agree with the trial court in its finding that whether
or not the victim's parents had given such permission to their son was immaterial to the determination of the existence of liability on the part
of the defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their son. What is material to such a
determination is whether or not there was negligence on the part of defendants vis-a-visthe supervision of the victim's group during the picnic;
and, as correctly found by the trial court, an affirmative reply to this question has been satisfactorily established by the evidence, as already
pointed out.
However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida Aragones, are concerned. As to them,
the trial court found:
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already
occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late, they were remiss
in their duty to safeguard the students.
The evidence shows that these two defendants had satisfactorily explained why they were late in going to the picnic site, namely, that they had
to attend to the entrance examination being conducted by the school which is part of their duty as teachers thereof. Since they were not at the
picnic site during the occurrence in question, it cannot be said that they had any participation in the negligence attributable to the other
defendants-teachers who failed to exercise diligence in the supervision of the children during the picnic and which failure resulted in the drowning
of plaintiffs' son. Thus, We may not attribute any act or omission to the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for
the injury caused to the plaintiffs because of the death of their son resulting from his drowning at the picnic. Accordingly, they must be absolved
from any liability.
Page | 84
As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the counterclaim
must be dismissed for lack of merit. (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:
A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. (pp. 81-82, Rollo)
In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their respective memoranda.
The petition is impressed with merit.
If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under them. In the instant case however,
as will be shown hereunder, petitioners are neither guilty of their own negligence or guilty of the negligence of those under them.
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages of any kind.
At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the excursion.
Testimony of Dr. Castillo on cross exam. by Atty. Flores
Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this?
A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where, he did not answer, sir.
Q And after giving the money, you did not tell him anything more?
A No more, sir.
Q And after that you just learned that your son join the picnic?
A Yes, sir.
Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that correct?
A Yes, sir.
Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the picnic?
A No, sir, I did not know.
Q Did you not look for your son during that time?
A I am too busy with my profession, that is why I was not able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son join the picnic?
A Later on after 12:00, sir.
Page | 85
Q And during that time you were too busy that you did not inquire whether your son have joined that picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)
The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of consent for his son to join the
same. Furthermore.
Testimony of Dr. Lazaro on cross examination:
Q How did you conduct this mental and physical examination?
A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she cooked
adobo for him so he could join the excursion where her son died of drowning.
Q Why were you able to say she was feeling guilty because she was the one who personally cooked the adobo for her son?
A It was during the interview that I had gathered it from the patient herself. She was very sorry had she not allowed her son to join
the excursion her son would have not drowned. I don't know if she actually permitted her son although she said she cooked adobo
so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro — witness).
Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school liable for the death of respondent's
son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.
Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused damage
or prejudice must have occurred while an employee was in the performance of his assigned tasks.
In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happened not within the school
premises, not on a school day and most importantly while the teachers and students were holding a purely private affair, a picnic. It is clear from the
beginning that the incident happened while some members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic
had no permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an
extra-curricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the students and their teachers
does not in any way or in any manner show acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no basis in
law and neither is it supported by any jurisprudence. If we were to affirm the findings of respondent Court on this score, employers wig forever be exposed
to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while
they are not in the performance of their duties.
Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-spouses.
Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence of a good father of a family
to prevent any untoward incident or damages to all the students who joined the picnic.
In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters who have knowledge in First Aid
application and swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the defendants (petitioners herein) had life savers
especially brought by the defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did all what is
humanly possible to save the child.
Page | 86
Testimony of Luisito Vinas on cross examination,
Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied first aid on him?
A Yes, sir.
Q And while you were applying the so called first aid, the children were covering you up or were surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not?
A No, sir.
Q You mean you were in calm and peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of first aid?
A Yes, sir.
Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the body of Ferdinand Castillo?
A No, sir, because we were attending to the application of first aid that we were doing, sir.
Q After you have applied back to back pressure and which you claimed the boy did not respond, were you not disturb anyway?
A I was disturbed during that time, sir.
Q For how many minutes have you applied the back to back pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo?
A Yes, sir.
Q Will you please describe how you applied a single act of back to back pressure?
A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by massaging the
back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)
Testimony of Tirso de Chavez on direct examination
ATTY. FLORES:
Q Who actually applied the first aid or artificial respiration to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and took notice of the condition of
the child. We placed the feet in a higher position, that of the head of the child, sir.
Page | 87
Q After you have placed the boy in that particular position, where the feet were on a higher level than that of
the head, what did you do next?
A The first thing that we did, particularly myself, was that after putting the child in that position, I applied the back to back pressure
and started to massage from the waistline up, but I noticed that the boy was not responding, sir.
Q For how long did you apply this back to back pressure on the boy?
A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you do?
A When we noticed that the boy was not responding, we changed the position of the boy by placing the child facing upwards laying
on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)
With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case at bar does not fall under any of
the grounds to grant moral damages.
Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or omission.
Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages can be assessed against
them.
While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the petitioners were already relieved
of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. But in the case at bar, petitioners were
able to prove that they had exercised the required diligence. Hence, the claim for moral or exemplary damages becomes baseless.
PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of negligence and liable for the death of
Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the portion of the
said decision dismissing their counterclaim, there being no merit, is hereby AFFIRMED.
SO ORDERED.
VICARIOUS LIABILITY OF AN OWNER OF A VEHICLE
G.R. No. L-9010 March 28, 1914
J. H. CHAPMAN, plaintiff-appellant,
vs.
JAMES M. UNDERWOOD, defendant-appellee.
Wolfson & Wolfson for appellant.

Bruce, Lawrence, Ross & Block for appellee.
MORELAND, J.:
At the time the accident occurred, which is the basis of this action, there was a single-track street-car line running along Calle Herran, with occasional
switches to allow cars to meet and pass each other. One of these switches was located at the scene of the accident.
The plaintiff had been visiting his friend, a man by the name of Creveling, in front of whose house the accident happened. He desired to board a certain
"San Marcelino" car coming from Santa Ana and bound for Manila. Being told by Creveling that the car was approaching, he immediately, and somewhat
Page | 88
hurriedly, passed from the gate into the street for the purpose of signaling and boarding the car. The car was a closed one, the
entrance being from the front or the rear flatform. Plaintiff attempted to board the front platform but, seeing that he could not reached it without extra
exertion, stopped beside the car, facing toward the rear platform, and waited for it to come abreast of him in order to board. While in this position he was
struck from behind and run over by the defendant's automobile.
The defendant entered Calle Herran at Calle Peñafrancia in his automobile driven by his chauffeur, a competent driver. A street car bound from Manila to
Santa Ana being immediately in front of him, he followed along behind it. Just before reaching the scene of the accident the street car which was following
took the switch — that is, went off the main line to the left upon the switch lying alongside of the main track. Thereupon the defendant no longer followed
that the street car nor went to the left, but either kept straight ahead on the main street-car track or a bit to the right. The car which the plaintiff intended
to board was on the main line and bound in an opposite direction to that in which the defendant was going. When the front of the "San Marcelino" car,
the one the plaintiff attempted to board, was almost in front of the defendant's automobile, defendant's driver suddenly went to the right and struck and
ran over the plaintiff, as above described.
The judgment of the trial court was for defendant.
A careful examination of the record leads us to the conclusion that the defendant's driver was guilty of negligence in running upon and over the plaintiff.
He was passing an oncoming car upon the wrong side. The plaintiff, in common out to board the car, was not obliged, for his own protection, to observe
whether a car was coming upon him from his left hand. He had only to guard against those coming from the right. He knew that, according to the law of
the road, no automobile or other vehicle coming from his left should pass upon his side of the car. He needed only to watch for cars coming from his
right, as they were the only ones under the law permitted to pass upon that side of the street car.
The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case
of Johnson vs. David (5 Phil. Rep., 663), the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant
would be responsible.
Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule
applies where the owner is present, unless the negligent act of the driver are continued for such a length of time as to give the owner a reasonable
opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to
continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the
driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up to Escolta, for
example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself
responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence,
and without the owner having a reasonable opportunity to prevent the acts or its continuance, injures a person or violates the criminal law, the owner of
the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained
of must be continued in the presence of the owner for such a length a time that the owner, by his acquiescence, makes his driver's act his own.
In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the
injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver. Instead, it appears with fair clearness that the
interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant
with the negligence of the driver.
Whether or not the owner of an automobile driven by a competent driver, would be responsible, whether present or not, for the negligent acts of his
driver when the automobile was a part of a business enterprise, and was being driven at the time of the accident in furtherance of the owner's business,
we do not now decide.
The judgment appealed from is affirmed, with costs against the appellant.
Arellano, C.J., Carson and Araullo, JJ., concur.

Trent, J., concurs in the result.
Page | 89
G.R. No. 82318 May 18, 1989
GILBERTO M. DUAVIT, petitioner,

vs.
THE HON. COURT OF APPEALS, Acting through the Third Division, as Public Respondent, and ANTONIO SARMIENTO, SR. & VIRGILIO
CATUAR respondents.
GUTIERREZ, JR., J.:
This petition raises the sole issue of whether or not the owner of a private vehicle which figured in an accident can be held liable under Article 2180 of
the Civil Code when the said vehicle was neither driven by an employee of the owner nor taken with the consent of the latter.
The facts are summarized in the contested decision, as follows:
From the evidence adduced by the plaintiffs, consisting of the testimonies of witnesses Virgilio Catuar, Antonio Sarmiento, Jr., Ruperto
Catuar, Jr. and Norberto Bernarte it appears that on July 28, 1971 plaintiffs Antonio Sarmiento, Sr. and Virgilio Catuar were aboard a
jeep with plate number 77-99-F-I Manila, 1971, owned by plaintiff, Ruperto Catuar was driving the said jeep on Ortigas Avenue, San
Juan, Rizal; that plaintiff's jeep, at the time, was running moderately at 20 to 35 kilometers per hour and while approaching Roosevelt
Avenue, Virgilio Catuar slowed down; that suddenly, another jeep with plate number 99-97-F-J Manila 1971 driven by defendant
Oscar Sabiniano hit and bumped plaintiff's jeep on the portion near the left rear wheel, and as a result of the impact plaintiff's jeep
fell on its right and skidded by about 30 yards; that as a result plaintiffs jeep was damaged, particularly the windshield, the differential,
the part near the left rear wheel and the top cover of the jeep; that plaintiff Virgilio Catuar was thrown to the middle of the road; his
wrist was broken and he sustained contusions on the head; that likewise plaintiff Antonio Sarmiento, Sr. was trapped inside the fallen
jeep, and one of his legs was fractured.
Evidence also shows that the plaintiff Virgilio Catuar spent a total of P2,464.00 for repairs of the jeep, as shown by the receipts of
payment of labor and spare parts (Exhs. H to H-7 Plaintiffs likewise tried to prove that plaintiff Virgilio Catuar, immediately after the
accident was taken to Immaculate Concepcion Hospital, and then was transferred to the National Orthopedic Hospital; that while
plaintiff Catuar was not confined in the hospital, his wrist was in a plaster cast for a period of one month, and the contusions on his
head were under treatment for about two (2) weeks; that for hospitalization, medicine and allied expenses, plaintiff Catuar spent
P5,000.00.
Evidence also shows that as a result of the incident, plaintiff Antonio Sarmiento, Sr. sustained injuries on his leg; that at first, he was
taken to the National Orthopedic Hospital (Exh. K but later he was confined at the Makati Medical Center from July 29, to August 29,
1971 and then from September 15 to 25, 1971; that his leg was in a plaster cast for a period of eight (8) months; and that for
hospitalization and medical attendance, plaintiff Antonio Sarmiento, Sr. spent no less than P13,785.25 as evidenced by receipts in his
possession. (Exhs. N to N-1).
Proofs were adduced also to show that plaintiff Antonio sarmiento Sr. is employed as Assistant Accountant of the Canlubang Sugar
Estate with a salary of P1,200.00 a month; that as sideline he also works as accountant of United Haulers Inc. with a salary of P500.00
a month; and that as a result of this incident, plaintiff Sarmiento was unable to perform his normal work for a period of at least 8
months. On the other hand, evidence shows that the other plaintiff Virgilio Catuar is a Chief Clerk in Canlubang Sugar Estate with a
salary of P500.00 a month, and as a result of the incident, he was incapacitated to work for a period of one (1) month.
The plaintiffs have filed this case both against Oscar Sabiniano as driver, and against Gualberto Duavit as owner of the jeep.
Defendant Gualberto Duavit, while admitting ownership of the other jeep (Plate No. 99-07-F-J Manila, 1971), denied that the other
defendant (Oscar Sabiniano) was his employee. Duavit claimed that he has not been an employer of defendant Oscar Sabiniano at
any time up to the present.
On the other hand documentary and testimonial evidence show that defendant Oscar Sabiniano was an employee of the Board of
Liquidators from November 14, 1966 up to January 4, 1973 (Annex A of Answer).
Defendant Sabiniano, in his testimony, categorically admitted that he took the jeep from the garage of defendant Duavit without the
consent or authority of the latter (TSN, September 7, 1978, p. 8). He testified further, that Duavit even filed charges against him for
theft of the jeep, but which Duavit did not push through as his (Sabiniano's) parents apologized to Duavit on his behalf.
Defendant Oscar Sabiniano, on the other hand in an attempt to exculpate himself from liability, makes it appear that he was taking
all necessary precaution while driving and the accident occurred due to the negligence of Virgilio Catuar. Sabiniano claims that it was
plaintiffs vehicle which hit and bumped their jeep. (Reno, pp. 21-23)
Page | 90
The trial court found Oscar Sabiniano negligent in driving the vehicle but found no employer-employee relationship between him
and the petitioner because the latter was then a government employee and he took the vehicle without the authority and consent of the owner. The
petitioner was, thus, absolved from liability under Article 2180 of the Civil Code.
The private respondents appealed the case.
On January 7, 1988, the Court of Appeals rendered the questioned decision holding the petitioner jointly and severally liable with Sabiniano. The appellate
court in part ruled:
We cannot go along with appellee's argument. It will be seen that in Vargas v. Langcay, supra, it was held that it is immaterial whether
or not the driver was actually employed by the operator of record or registered owner, and it is even not necessary to prove who the
actual owner of the vehicle and who the employer of the driver is. When the Supreme Court ruled, thus: 'We must hold and consider
such owner-operator of record (registered owner) as the employer in contemplation of law, of the driver,' it cannot be construed
other than that the registered owner is the employer of the driver in contemplation of law. It is a conclusive presumption of fact and
law, and is not subject to rebuttal of proof to the contrary. Otherwise, as stated in the decision, we quote:
The purpose of the principles evolved by the decisions in these matters will be defeated and thwarted if we entertain the argument
of petitioner that she is not liable because the actual owner and employer was established by the evidence. . . .
Along the same vein, the defendant-appellee Gualberto Duavit cannot be allowed to prove that the driver Sabiniano was not his employee at the time of
the vehicular accident.
The ruling laid down in Amar V. Soberano (1966), 63 O.G. 6850, by this Court to the effect that the burden of proving the non-
existence of an employer-employee relationship is upon the defendant and this he must do by a satisfactory preponderance of
evidence, has to defer to the doctrines evolved by the Supreme Court in cases of damages arising from vehicular mishaps involving
registered motor vehicle. (See Tugade v. Court of Appeals, 85 SCRA 226, 230). (Rollo, pp. 26-27)
The appellate court also denied the petitioner's motion for reconsideration. Hence, this petition.
The petitioner contends that the respondent appellate court committed grave abuse of discretion in holding him jointly and severally liable with Sabiniano
in spite of the absence of an employer-employee relationship between them and despite the fact that the petitioner's jeep was taken out of his garage
and was driven by Sabiniano without his consent.
As early as in 1939, we have ruled that an owner of a vehicle cannot be held liable for an accident involving the said vehicle if the same was driven without
his consent or knowledge and by a person not employed by him. Thus, in Duquillo v. Bayot (67 Phil. 131-133-134) [1939] we said:
Under the facts established, the defendant cannot be held liable for anything. At the time of the accident, James McGurk was driving
the truck, and he was not an employee of the defendant, nor did he have anything to do with the latter's business; neither the
defendant nor Father Ayson, who was in charge of her business, consented to have any of her trucks driven on the day of the
accident, as it was a holy day, and much less by a chauffeur who was not in charge of driving it; the use of the defendant's truck in
the circumstances indicated was done without her consent or knowledge; it may, therefore, be said, that there was not the remotest
contractual relation between the deceased Pio Duquillo and the defendant. It necessarily follows from all this that articles 1101 and
following of the Civil Code, cited by the appellant, have no application in this case, and, therefore, the errors attributed to the inferior
court are without basis.
The Court upholds the above ruling as still relevant and better applicable to present day circumstances.
The respondent court's misplaced reliance on the cases of Erezo v. Jepte (102 Phil. 103 [1957] and Vargas v. Langcay (6 SCRA 174 [1962]) cannot be
sustained. In the Erezo case, Jepte, the registered owner of the truck which collided with a taxicab, and which resulted in the killing of Erezo, claimed that
at the time of the accident, the truck belonged to the Port Brokerage in an arrangement with the corporation but the same was not known to the Motor
Vehicles Office. This Court sustained the trial court's ruling that since Jepte represented himself to be the owner of the truck and the Motor Vehicles Office,
relying on his representation, registered the vehicle in his name, the Government and all persons affected by the representation had the right to rely on
his declaration of ownership and registration. Thus, even if Jepte were not the owner of the truck at the time of the accident, he was still held liable for
the death of Erezo significantly, the driver of the truck was fully authorized to drive it.
Likewise, in the Vargas case, just before the accident occurred Vargas had sold her jeepney to a third person, so that at the time of the accident she was
no longer the owner of the jeepney. This court, nevertheless, affirmed Vargas' liability since she failed to surrender to the Motor Vehicles Office the
corresponding AC plates in violation of the Revised Motor Vehicle Law and Commonwealth Act No. 146. We further ruled that the operator of record
continues to be the operator of the vehicle in contemplation of law, as regards the public and third persons, and as such is responsible for the consequences
incident to its operator. The vehicle involved was a public utility jeepney for hire. In such cases, the law does not only require the surrender of the AC
plates but orders the vendor operator to stop the operation of the jeepney as a form of public transportation until the matter is reported to the authorities.
Page | 91
As can be seen, the circumstances of the above cases are entirely different from those in the present case. Herein petitioner does
not deny ownership of the vehicle involved in tire mishap but completely denies having employed the driver Sabiniano or even having authorized the latter
to drive his jeep. The jeep was virtually stolen from the petitioner's garage. To hold, therefore, the petitioner liable for the accident caused by the
negligence of Sabiniano who was neither his driver nor employee would be absurd as it would be like holding liable the owner of a stolen vehicle for an
accident caused by the person who stole such vehicle. In this regard, we cannot ignore the many cases of vehicles forcibly taken from their owners at
gunpoint or stolen from garages and parking areas and the instances of service station attendants or mechanics of auto repair shops using, without the
owner's consent, vehicles entrusted to them for servicing or repair.
We cannot blindly apply absolute rules based on precedents whose facts do not jibe four square with pending cases. Every case must be determined on
its own peculiar factual circumstances. Where, as in this case, the records of the petition fail to indicate the slightest indicia of an employer-employee
relationship between the owner and the erring driver or any consent given by the owner for the vehicle's use, we cannot hold the owner liable.
We, therefore, find that the respondent appellate court committed reversible error in holding the petitioner jointly and severally liable with Sabiniano to
the private respondent.
WHEREFORE, the petition is GRANTED and the decision and resolution appealed from are hereby ANNULLED and SET ASIDE. The decision of the then
Court of First Instance (now Regional Trial Court) of Laguna, 8th Judicial District, Branch 6, dated July 30, 1981 is REINSTATED.
SO ORDERED.
VICARIOUS LIABILITY OF STATE
G.R. No. L-21362 November 29, 1968
DEVELOPMENT BANK OF THE PHILIPPINES, plaintiff-appellant,

vs.
LOURDES GASPAR BAUTISTA, THE DIRECTOR OF THE LANDS and THE NATIONAL TREASURER OF THE PHILIPPINES, defendants-
appellees.
FERNANDO, J.:
The question this appeal from a judgment of a lower court presents is one that possesses both novelty and significance. It is this: What is the right, if
any, of a creditor which previously satisfied its claim by foreclosing extrajudicially on a mortgage executed by the debtor, whose title was thereafter
nullified in a judicial proceeding where she was not brought in as a party?
As creditor, the Development Bank of the Philippines now appellant, filed a complaint against one of its debtors, Lourdes Gaspar Bautista, now appellee,
for the recovery of a sum of money representing the unpaid mortgage indebtedness, which previously had been wiped out with the creditor bank acquiring
the title of the mortgaged property in an extrajudicial sale. Thereafter, the title was nullified in a judicial proceeding, the land in question being adjudged
as belonging to another claimant, without, however, such debtor, as above noted, having been cited to appear in such court action.
The Development Bank was unsuccessful, the lower court being of the view that with the due process requirement thus flagrantly disregarded, since she
was not a party in such action where her title was set aside, such a judgment could in no wise be binding on her and be the source of a claim by the
appellant bank. The complaint was thus dismissed by the lower court, then presided by Judge, now Justice, Magno Gatmaitan of the Court of Appeals.
Hence, this appeal by appellant bank.
Such dismissal is in accordance with law. There is no occasion for us to repudiate the lower court.
From the very statement of facts in the brief for appellant bank, the following appears: "On or before May 31, 1949, the defendant-appellee, Lourdes
Gaspar Bautista, who shall hereafter be referred to as Bautista, applied to the Government for the sale favor of a parcel of land with an area of 12 has.,
44 ares, and 22 centares, located at Bo. Barbara, San Jose, Nueva Ecija. After proper investigation, Sales Patent no. V-132 covering said property was
issued in her favor on June 1, 1949 (Exh. A-1) by the Director of Lands. Sales Patent No. V-132 was registered in the office of the Register of Deeds of
Nueva Ecija pursuant to Section 122 of Act 496 on June 3, 1949 (Exh. A), as a result of which Original Certificate of Title No. P-389 was issued in her
favor."1
How the loan was contracted by now appellee Bautista was therein set forth. Thus: "On July 16, 1949, Bautista applied for a loan with the Rehabilitation
Finance Corporation (RFC), predecessor in interest of the plaintiff-appellee Development Bank of the Philippines (DBP), offering as security the parcel of
land covered by O.C.T. No. P-389. Aside from her certificate of title, Bautista also submitted to the RFC other documents to show her ownership and
possession of the land in question, namely, Tax Declaration No. 5153 (Exh. A-4) in her name and the blueprint plan of the land. On the basis of the
documents mentioned and the appraisal of the property by its appraiser, the RFC approved a loan of P4,000.00 in favor of Bautista. On July 16, 1949,
Page | 92
Bautista executed the mortgage contract over the property covered by O.C.T. No. P-389 and the promissory note for P4,000.00 in
favor of RFC (Exhs. C and C-1), after which the proceeds of the loan were released."2
The satisfaction of the mortgage debt with the acquisition of the title to such property by appellant Bank, by virtue of an extrajudicial foreclosure sale,
and such title losing its validity in view of a court proceeding, where however, appellee Bautista, was not made a party, was next taken up in the brief of
plaintiff-appellant. Thus: "Bautista failed to pay the amortization on the loan so that the RFC took steps to foreclose the mortgage extra-judicially under
Act 3135, as amended. In the ensuing auction sale conducted by the sheriff of Nueva Ecija on June 27, 1951, the RFC acquired the mortgaged property
as the highest bidder (Exh. D). On the date of the sale, the total obligation of Bautista with the RFC was P4,858.48 (Exh. I). On July 21, 1952, upon failure
of Bautista to redeem the property within the one (1) year period as provided bylaw, plaintiff-appellant RFC consolidated its ownership thereon (Exhs. E
and E-I). On July 26, 1952, the Register of Deeds of Nueva Ecija cancelled O.C.T. No. P-389 and replaced it with T.C.T. No. NT-12108 in the name of the
RFC (Exhs. F and F-1). On or about this time, however, an action (Civil Case No. 870) was filed by Rufino Ramos and Juan Ramos in the Court of First
Instance of Nueva Ecija against the Government of the Republic of the Philippines and the RFC (as successor in interest of Bautista) claiming ownership
of the land in question and seeking the annulment of T.C.T. No. 2336 in the name of the Government, O.C.T. No. P-389 in the name of Bautista and
T.C.TG. No. NT-12108 in the name of the RFC. A decision thereon was rendered on June 27, 1955 (Exhs. G, G-1, and G-3) whereby the aformentioned
certificates of title were declared null and void."3
Why the complaint had to be dismissed was explained thus in the decision now on appeal: "The Court after examining the proofs, is constrained to sustain
her on that; it will really appear that she had never been placed within the jurisdiction of the Nueva Ecija Court; as the action there was one to annual
the title, it was an action strictly in personam, if that was the case as it was, the judgment there could not in any way bind Lourdes who had not acquired
in said decision in any way for what only happened is that as to the mortgage, the Bank foreclosed, and then sold unto Conrada and when the title had
been annulled, the Bank reimbursed Conrada; stated otherwise, the annulment of Lourdes' title was a proceeding ex parte as far as she was concerned
and could not bind her at all; and her mortgage was foreclosed an the Bank realized on it, when the Bank afterwards acquiesced in the annulment of the
title and took it upon itself to reimburse Conrada, the Bank was acting on its own peril because it could not have by that, bound Lourdes at all."4
As stated at the outset, the decision must be affirmed. The fundamental due process requirement having been disregarded, appellee Bautista could not
in any wise be made to suffer, whether directly or indirectly, from the effects of such decision. After appellant bank had acquired her title by such
extrajudicial foreclosure sale and thus, through its own act, seen to it that her obligation had been satisfied, it could not thereafter, seek to revive the
same on the allegation that the title in question was subsequently annulled, considering that she was not made a party on the occasion of such nullification.
If it were otherwise, then the cardinal requirement that no party should be made to suffer in person or property without being given a hearing would be
brushed aside. The doctrine consistently adhered to by this Court whenever such a question arises in a series of decisions is that a denial of due process
suffices to cast on the official act taken by whatever branch of the government the impress of nullity.5
A recent decision, Macabingkil v. Yatco,6 possesses relevance. "A 1957 decision, Cruzcosa v. Concepcion, is even more illuminating in so far as the
availability of the remedy sought is concerned. In the language of this Court, speaking through Justice J.B.L. Reyes: 'The petition is clearly meritorious.
Petitioners were conclusively found by the Court of Appeals to be co-owners of the building in question. Having an interest therein, they should have been
made parties to the ejectment proceedings to give them a chance to protect their rights: and not having been made parties thereto, they are not bound
and can not be affected by the judgment rendered therein against their co-owner Catalino Cruzcosa. Jr. ....' Two due process cases deal specifically with
a writ of execution that could not validly be enforced against a party who was not given his day in court, Sicat v. Reyes, and Hamoy v. Batingoplo.
According to the former: 'The above agreement, which served as basis for the ejectment of Alipio Sicat, cannot be binding and conclusive upon the latter,
who is not a party to the case. Indeed, that order, as well as the writ of execution, cannot legally be enforced against Alipio Sicat for the simple reason
that he was not given his day in court.' From the latter: 'The issue raised in the motion of Rangar is not involved in the appeal for it concerns a right which
he claims over the property which has not so far been litigated for the reason that he was not made a party to the case either as plaintiff for a defendant.
He only came to know of the litigation when he was forced out of the property by the sheriff, and so he filed the present motion to be heard and prove
his title to the property. This he has the right to do as the most expeditious manner to protect his interest instead of filing a separate action which generally
is long, tedious and protracted.'"
Reinforcement to the above conclusion comes from a codal provision. According to the Civil Code: 7 "The vendor shall not be obliged to make good the
proper warranty, unless he is summoned in the suit for eviction at the instance of the vendee. "While not directly in point, the principle on which the
above requirement is based sustains the decision of the lower court. In effect, appellant bank would hold appellee Bautista liable for the warranty on her
title, its annullment having the same effect as that of an eviction. In such a case, it is wisely provided by the Civil Code that appellee Bautista, as vendor,
should have been summoned and given the opportunity to defend herself. In view of her being denied her day in court, it would to be respected, that she
is not "obliged to made good the proper warranty."
In the suit before the lower court, the Director of Lands and the National Treasurer of the Philippines were likewise made defendants by appellant bank
because of its belief that if no right existed as against appellee Bautista, recovery could be had from the Assurance Fund. Such a belief finds no support
in the applicable, law, which allows recovery only upon a showing that there be no negligence on the part of the party sustaining any loss or damage or
being deprived of any land or interest therein by the operation of the Land Registration Act.8 This certainly is not the case here, plaintiff-appellant being
solely responsible for the light in which it now finds itself. Accordingly, the Director of Lands and the National Treasurer of the Philippines are likewise
exempt from any liability.
WHEREFORE, the judgment appealed from is affirmed, with costs against the Development Bank of the Philippines.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.
Page | 93
G.R. No. L-55963 December 1, 1989
SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,

vs.
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION, respondents.
G.R. No. L-61045 December 1, 1989
NATIONAL IRRIGATION ADMINISTRATION, appellant,

vs.
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.
Cecilio V. Suarez, Jr. for Spouses Fontanilla.
Felicisimo C. Villaflor for NIA.
PARAS, J.:
In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated March 20, 1980 of the then Court of First Instance of
Nueva Ecija, Branch VIII, at San Jose City and its modification with respect to the denial of petitioner's claim for moral and exemplary damages and
attorneys fees.
In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid decision of the lower court. The original appeal of
this case before the Court of Appeals was certified to this Court and in the resolution of July 7, 1982, it was docketed with the aforecited number. And in
the resolution of April 3, this case was consolidated with G.R. No. 55963.
It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent National Irrigation Administration, a government
agency bearing Plate No. IN-651, then driven officially by Hugo Garcia, an employee of said agency as its regular driver, bumped a bicycle ridden by
Francisco Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway. As a result of the impact,
Francisco Fontanilla and Restituto Deligo were injured and brought to the San Jose City Emergency Hospital for treatment. Fontanilla was later transferred
to the Cabanatuan Provincial Hospital where he died.
Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the accident, was a licensed professional driver and
who qualified for employment as such regular driver of respondent after having passed the written and oral examinations on traffic rules and maintenance
of vehicles given by National Irrigation Administration authorities.
The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitioners-spouses on April 17, 1978 against respondent NIA
before the then Court of First Instance of Nueva Ecija, Branch VIII at San Jose City, for damages in connection with the death of their son resulting from
the aforestated accident.
After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National Irrigation Administration to pay damages (death
benefits) and actual expenses to petitioners. The dispositive portion of the decision reads thus:
. . . . . Judgment is here rendered ordering the defendant National Irrigation Administration to pay to the heirs of the deceased
P12,000.00 for the death of Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for the hospitalization and
burial of the deceased Francisco Fontanilla; and to pay the costs. (Brief for the petitioners spouses Fontanilla, p. 4; Rollo, p. 132)
Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of the aforesaid decision which respondent trial court
denied in its Order of June 13, 1980. Respondent National Irrigation Administration thus appealed said decision to the Court of Appeals (C.A.-G.R. No.
67237- R) where it filed its brief for appellant in support of its position.
Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant petition with this Court.
The sole issue for the resolution of the Court is: Whether or not the award of moral damages, exemplary damages and attorney's fees is legally proper in
a complaint for damages based on quasi-delict which resulted in the death of the son of herein petitioners.
Petitioners allege:
Page | 94
1. The award of moral damages is specifically allowable. under paragraph 3 of Article 2206 of the New Civil
Code which provides that the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased. Should moral damages be granted, the award should be made
to each of petitioners-spouses individually and in varying amounts depending upon proof of mental and depth of intensity of the
same, which should not be less than P50,000.00 for each of them.
2. The decision of the trial court had made an impression that respondent National Irrigation Administration acted with gross
negligence because of the accident and the subsequent failure of the National Irrigation Administration personnel including the driver
to stop in order to give assistance to the, victims. Thus, by reason of the gross negligence of respondent, petitioners become entitled
to exemplary damages under Arts. 2231 and 2229 of the New Civil Code.
3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%) had been sufficiently established in the hearing
of May 23, 1979.
4. This petition has been filed only for the purpose of reviewing the findings of the lower court upon which the disallowance of moral
damages, exemplary damages and attorney's fees was based and not for the purpose of disturbing the other findings of fact and
conclusions of law.
The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration, contends thus:
1. The filing of the instant petition is rot proper in view of the appeal taken by respondent National Irrigation Administration to the
Court of Appeals against the judgment sought to be reviewed. The focal issue raised in respondent's appeal to the Court of Appeals
involves the question as to whether or not the driver of the vehicle that bumped the victims was negligent in his operation of said
vehicle. It thus becomes necessary that before petitioners' claim for moral and exemplary damages could be resolved, there should
first be a finding of negligence on the part of respondent's employee-driver. In this regard, the Solicitor General alleges that the trial
court decision does not categorically contain such finding.
2. The filing of the "Appearance and Urgent Motion For Leave to File Plaintiff-Appellee's Brief" dated December 28, 1981 by petitioners
in the appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent National Irrigation Administration before the Court of
Appeals, is an explicit admission of said petitioners that the herein petition, is not proper. Inconsistent procedures are manifest
because while petitioners question the findings of fact in the Court of Appeals, they present only the questions of law before this
Court which posture confirms their admission of the facts.
3. The fact that the parties failed to agree on whether or not negligence caused the vehicular accident involves a question of fact
which petitioners should have brought to the Court of Appeals within the reglementary period. Hence, the decision of the trial court
has become final as to the petitioners and for this reason alone, the petition should be dismissed.
4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity with the law.
5. Respondents do not assail petitioners' claim to moral and exemplary damages by reason of the shock and subsequent illness they
suffered because of the death of their son. Respondent National Irrigation Administration, however, avers that it cannot be held liable
for the damages because it is an agency of the State performing governmental functions and driver Hugo Garcia was a regular driver
of the vehicle, not a special agent who was performing a job or act foreign to his usual duties. Hence, the liability for the tortious act
should. not be borne by respondent government agency but by driver Garcia who should answer for the consequences of his act.
6. Even as the trial court touched on the failure or laxity of respondent National Irrigation Administration in exercising due diligence
in the selection and supervision of its employee, the matter of due diligence is not an issue in this case since driver Garcia was not its
special agent but a regular driver of the vehicle.
The sole legal question on whether or not petitioners may be entitled to an award of moral and exemplary damages and attorney's fees can very well be
answered with the application of Arts. 2176 and 2180 of theNew Civil Code.
Art. 2176 thus provides:
Whoever by act omission causes damage to another, there being fault or negligence, is obliged to pay for damage done. Such fault
or negligence, if there is no pre-existing cotractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter
Paragraphs 5 and 6 of Art. 21 80 read as follows:
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned
tasks, even the though the former are not engaged in any business or industry.
Page | 95
The State is responsible in like manner when it acts through a special agent.; but not when the damage has
been caused by the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable.
The liability of the State has two aspects. namely:
1. Its public or governmental aspects where it is liable for the tortious acts of special agents only.
2. Its private or business aspects (as when it engages in private enterprises) where it becomes liable as an ordinary employer. (p.
961, Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ).
In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or conduct of its special agent.
Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done through special agents. The State's agent, if a
public official, must not only be specially commissioned to do a particular task but that such task must be foreign to said official's usual governmental
functions. If the State's agent is not a public official, and is commissioned to perform non-governmental functions, then the State assumes the role of an
ordinary employer and will be held liable as such for its agent's tort. Where the government commissions a private individual for a special governmental
task, it is acting through a special agent within the meaning of the provision. (Torts and Damages, Sangco, p. 347, 1984 Ed.)
Certain functions and activities, which can be performed only by the government, are more or less generally agreed to be "governmental" in character,
and so the State is immune from tort liability. On the other hand, a service which might as well be provided by a private corporation, and particularly
when it collects revenues from it, the function is considered a "proprietary" one, as to which there may be liability for the torts of agents within the scope
of their employment.
The National Irrigation Administration is an agency of the government exercising proprietary functions, by express provision of Rep. Act No. 3601. Section
1 of said Act provides:
Section 1. Name and domicile.-A body corporate is hereby created which shall be known as the National Irrigation Administration,
hereinafter called the NIA for short, which shall be organized immediately after the approval of this Act. It shall have its principal seat
of business in the City of Manila and shall have representatives in all provinces for the proper conduct of its business.
Section 2 of said law spells out some of the NIA's proprietary functions. Thus-
Sec. 2. Powers and objectives.-The NIA shall have the following powers and objectives:
(a) x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x
(c) To collect from the users of each irrigation system constructed by it such fees as may be necessary to finance the continuous
operation of the system and reimburse within a certain period not less than twenty-five years cost of construction thereof; and
(d) To do all such other tthings and to transact all such business as are directly or indirectly necessary, incidental or conducive to the
attainment of the above objectives.
Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate body
performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driver-employee.
In this particular case, the NIA assumes the responsibility of an ordinary employer and as such, it becomes answerable for damages.
This assumption of liability, however, is predicated upon the existence of negligence on the part of respondent NIA. The negligence referred to here is
the negligence of supervision.
At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in determining its liability since it has been established
that respondent is a government agency performing proprietary functions and as such, it assumes the posture of an ordinary employer which, under Par.
5 of Art. 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due diligence in the selection and
supervision of the driver.
It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco Fontanilla was thrown to a distance 50 meters away
from the point of impact while Restituto Deligo was thrown a little bit further away. The impact took place almost at the edge of the cemented portion of
the road." (Emphasis supplied,) [page 26, Rollo]
Page | 96
The lower court further declared that "a speeding vehicle coming in contact with a person causes force and impact upon the vehicle
that anyone in the vehicle cannot fail to notice. As a matter of fact, the impact was so strong as shown by the fact that the vehicle suffered dents on the
right side of the radiator guard, the hood, the fender and a crack on the radiator as shown by the investigation report (Exhibit "E"). (Emphasis supplied)
[page 29, Rollo]
It should be emphasized that the accident happened along the Maharlika National Road within the city limits of San Jose City, an urban area. Considering
the fact that the victim was thrown 50 meters away from the point of impact, there is a strong indication that driver Garcia was driving at a high speed.
This is confirmed by the fact that the pick-up suffered substantial and heavy damage as above-described and the fact that the NIA group was then "in a
hurry to reach the campsite as early as possible", as shown by their not stopping to find out what they bumped as would have been their normal and
initial reaction.
Evidently, there was negligence in the supervision of the driver for the reason that they were travelling at a high speed within the city limits and yet the
supervisor of the group, Ely Salonga, failed to caution and make the driver observe the proper and allowed speed limit within the city. Under the situation,
such negligence is further aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered damage from
the object it bumped, thus showing imprudence and reckelessness on the part of both the driver and the supervisor in the group.
Significantly, this Court has ruled that even if the employer can prove the diligence in the selection and supervision (the latter aspect has not been
established herein) of the employee, still if he ratifies the wrongful acts, or take no step to avert further damage, the employer would still be liable.
(Maxion vs. Manila Railroad Co., 44 Phil. 597).
Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this Court held that a driver should be especially
watchful in anticipation of others who may be using the highway, and his failure to keep a proper look out for reasons and objects in the line to be
traversed constitutes negligence.
Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the amounts of P12,000.00 for the death of Francisco
Fontanilla; P3,389.00 for hospitalization and burial expenses of the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as exemplary
damages and attorney's fees of 20% of the total award.
SO ORDERED.
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.

Attorney-General Avanceña for defendant..
TRENT, J.:
This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila in favor of the plaintiff for the sum of
P14,741, together with the costs of the cause.
Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the plaintiff suff ered to P5,000, instead of
P25,000 as claimed in the complaint," and (2) "in limiting the time when plaintiff was entirely disabled to two months and twenty-one days and
fixing the damage accordingly in the sum of P2,666, instead of P6,000 as claimed by plaintiff in his complaint."
The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the collision between the plaintiff's motorcycle
and the ambulance of the General Hospital was due to the negligence of the chauffeur; (b) in holding that the Government of the Philippine
Islands is liable for the damages sustained by the plaintiff as a result of the collision, even if it be true that the collision was due to the negligence
of the chauffeur; and (c) in rendering judgment against the defendant for the sum of P14,741.
The trial court's findings of fact, which are fully supported by the record, are as follows:
It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a motorcycle, was going toward the western part
of Calle Padre Faura, passing along the west side thereof at a speed of ten to twelve miles an hour, upon crossing Taft Avenue and
when he was ten feet from the southwestern intersection of said streets, the General Hospital ambulance, upon reaching said avenue,
instead of turning toward the south, after passing the center thereof, so that it would be on the left side of said avenue, as is prescribed
Page | 97
by the ordinance and the Motor Vehicle Act, turned suddenly and unexpectedly and long before reaching the
center of the street, into the right side of Taft Avenue, without having sounded any whistle or horn, by which movement it st ruck the
plaintiff, who was already six feet from the southwestern point or from the post place there.
By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr. Saleeby, who examined him on the very
same day that he was taken to the General Hospital, he was suffering from a depression in the left parietal region, a would in the same
place and in the back part of his head, while blood issued from his nose and he was entirely unconscious.
The marks revealed that he had one or more fractures of the skull and that the grey matter and brain was had suffered material injury.
At ten o'clock of the night in question, which was the time set for performing the operation, his pulse was so weak and so ir regular
that, in his opinion, there was little hope that he would live. His right leg was broken in such a way that the fracture extended to the
outer skin in such manner that it might be regarded as double and the would be exposed to infection, for which reason it was of the
most serious nature.
At another examination six days before the day of the trial, Dr. Saleeby noticed that the plaintiff's leg showed a contraction of an inch
and a half and a curvature that made his leg very weak and painful at the point of the fracture. Examination of his head revealed a
notable readjustment of the functions of the brain and nerves. The patient apparently was slightly deaf, had a light weakness in his
eyes and in his mental condition. This latter weakness was always noticed when the plaintiff had to do any difficult mental labor,
especially when he attempted to use his money for mathematical calculations.
According to the various merchants who testified as witnesses, the plaintiff's mental and physical condition prior to the acc ident was
excellent, and that after having received the injuries that have been discussed, his physical condition had undergone a noticeable
depreciation, for he had lost the agility, energy, and ability that he had constantly displayed before the accident as one of the best
constructors of wooden buildings and he could not now earn even a half of the income that he had secured for his work because he
had lost 50 per cent of his efficiency. As a contractor, he could no longer, as he had before done, climb up ladders and scaffoldings to
reach the highest parts of the building.
As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor, he had to dissolved the partnership he
had formed with the engineer. Wilson, because he was incapacitated from making mathematical calculations on account of the condition
of his leg and of his mental faculties, and he had to give up a contract he had for the construction of the Uy Chaco building."
We may say at the outset that we are in full accord with the trial court to the effect that the collision between the plaintiff's motorcycle and the
ambulance of the General Hospital was due solely to the negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff are (a) P5,000, the awa rd awarded for
permanent injuries, and (b) the P2,666, the amount allowed for the loss of wages during the time the plaintiff was incapacitated from pursuing
his occupation. We find nothing in the record which would justify us in increasing the amount of the first. As to the second, the record shows,
and the trial court so found, that the plaintiff's services as a contractor were worth P1,000 per month. The court, however, limited the time to
two months and twenty-one days, which the plaintiff was actually confined in the hospital. In this we think there was error, because it was clearly
established that the plaintiff was wholly incapacitated for a period of six months. The mere fact that he remained in the hospital only two months
and twenty-one days while the remainder of the six months was spent in his home, would not prevent recovery for the whole time. We, therefore,
find that the amount of damages sustained by the plaintiff, without any fault on his part, is P18,075.
As the negligence which caused the collision is a tort committed by an agent or employee of the Government, the inquiry at once arises whether
the Government is legally-liable for the damages resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-General of said
Islands to appear in said suit.
Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E. Merritt, of Manila, for damages resulting
from a collision between his motorcycle and the ambulance of the General Hospital on March twenty-fifth, nineteen hundred and
thirteen;
Whereas it is not known who is responsible for the accident nor is it possible to determine the amount of damages, if any, to which the
claimant is entitled; and
Whereas the Director of Public Works and the Attorney-General recommended that an Act be passed by the Legislature authorizing Mr.
E. Merritt to bring suit in the courts against the Government, in order that said questions may be decided: Now, therefore,
Page | 98
By authority of the United States, be it enacted by the Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the city of Manila against the Government of
the Philippine Islands in order to fix the responsibility for the collision between his motorcycle and the ambulance of the General
Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, and the
Attorney-General of the Philippine Islands is hereby authorized and directed to appear at the trial on the behalf of the Government of
said Islands, to defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also concede its liability to the plaintiff? If only
the former, then it cannot be held that the Act created any new cause of action in favor of the plaintiff or extended the defendant's liability to
any case not previously recognized.
All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent. It is also admitted that the instant
case is one against the Government. As the consent of the Government to be sued by the plaintiff was entirely voluntary on its part, it is our duty
to look carefully into the terms of the consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility for the collision between his motorcycle
and the ambulance of the General Hospital and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of
said collision, . . . ." These were the two questions submitted to the court for determination. The Act was passed "in order that said questions
may be decided." We have "decided" that the accident was due solely to the negligence of the chauffeur, who was at the time an employee of
the defendant, and we have also fixed the amount of damages sustained by the plaintiff as a result of the collision. Does the Act authorize us to
hold that the Government is legally liable for that amount? If not, we must look elsewhere for such authority, if it exists.
The Government of the Philippine Islands having been "modeled after the Federal and State Governments in the United States," we may look to
the decisions of the high courts of that country for aid in determining the purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it employs, except when expressly
made so by legislative enactment, is well settled. "The Government," says Justice Story, "does not undertake to guarantee to any person the
fidelity of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, difficulties and
losses, which would be subversive of the public interest." (Claussen vs. City of Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat,
720; 6 L. Ed., 199; and Beers vs. States, 20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for personal injuries received on account of
the negligence of the state officers at the state fair, a state institution created by the legislature for the purpose of imp roving agricultural and
kindred industries; to disseminate information calculated to educate and benefit the industrial classes; and to advance by such means the material
interests of the state, being objects similar to those sought by the public school system. In passing upon the question of the state's liability for
the negligent acts of its officers or agents, the court said:
No claim arises against any government is favor of an individual, by reason of the misfeasance, laches, or unauthorized exerc ise of
powers by its officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. Rep., 440;
Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am. St . Rep.,
203; Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting individuals to sue the state where the cause of action arises out of either fort or contract,
the rule is stated in 36 Cyc., 915, thus:
By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any
cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a
preexisting liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913, which authorized the bringing of this suit,
read:
SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit, Waukesha County, Wisconsin, to bring suit in
such court or courts and in such form or forms as he may be advised for the purpose of settling and determining all controversies which
he may now have with the State of Wisconsin, or its duly authorized officers and agents, relative to the mill property of said George
Page | 99
Apfelbacher, the fish hatchery of the State of Wisconsin on the Bark River, and the mill property of Evan Humphrey
at the lower end of Nagawicka Lake, and relative to the use of the waters of said Bark River and Nagawicka Lake, all in the county of
Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its officers, and
that the suit now stands just as it would stand between private parties. It is difficult to see how the act does, or was intended to do,
more than remove the state's immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff's
controversies with the estate. Nowhere in the act is there a whisper or suggestion that the court or courts in the disposition of the suit
shall depart from well established principles of law, or that the amount of damages is the only question to be settled. The act opened
the door of the court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it would be in the absence
of the state's immunity from suit. If the Legislature had intended to change the rule that obtained in this state so long and to declare
liability on the part of the state, it would not have left so important a matter to mere inference, but would have done so in express
terms. (Murdock Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as follows:
All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the state board of
examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the state in an y of the
courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply
to such suits, except as herein otherwise provided.
And the court said:
This statute has been considered by this court in at least two cases, arising under different facts, and in both it was held that said
statute did not create any liability or cause of action against the state where none existed before, but merely gave an additional remedy
to enforce such liability as would have existed if the statute had not been enacted. (Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep.,
158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against the commonwealth, whether at law or in
equity," with an exception not necessary to be here mentioned. In construing this statute the court, in Murdock Grate Co. vs. Commonwealth (152
Mass., 28), said:
The statute we are discussing disclose no intention to create against the state a new and heretofore unrecognized class of liabilities,
but only an intention to provide a judicial tribunal where well recognized existing liabilities can be adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of New York, jurisdiction of claims for
damages for injuries in the management of the canals such as the plaintiff had sustained, Chief Justice Ruger remarks: "It must be conceded
that the state can be made liable for injuries arising from the negligence of its agents or servants, only by force of some positive statute assuming
such liability."
It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause not previously recognized, we will now
examine the substantive law touching the defendant's liability for the negligent acts of its officers, agents, and employees. Paragraph 5 of article
1903 of the Civil Code reads:
The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official
to whom properly it pertained to do the act performed, in which case the provisions of the preceding article shall be applicable.
The supreme court of Spain in defining the scope of this paragraph said:
That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based, as is evidenced
by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes part in the act o r omission
of the third party who caused the damage. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for
the damages suffered by private individuals in consequence of acts performed by its employees in the discharge of the functions
pertaining to their office, because neither fault nor even negligence can be presumed on the part of the state in the organization of
branches of public service and in the appointment of its agents; on the contrary, we must presuppose all foresight humanly possible
on its part in order that each branch of service serves the general weal an that of private persons interested in its operation. Between
these latter and the state, therefore, no relations of a private nature governed by the civil law can arise except in a case where the
state acts as a judicial person capable of acquiring rights and contracting obligations. (Supreme Court of Spain, January 7, 1898; 83
Jur. Civ., 24.)
Page | 100
That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of fault or negligence;
and whereas in the first article thereof. No. 1902, where the general principle is laid down that where a person who by an act or
omission causes damage to another through fault or negligence, shall be obliged to repair the damage so done, reference is made to
acts or omissions of the persons who directly or indirectly cause the damage, the following articles refers to this persons and imposes
an identical obligation upon those who maintain fixed relations of authority and superiority over the authors of the damage, because
the law presumes that in consequence of such relations the evil caused by their own fault or negligence is imputable to them. This legal
presumption gives way to proof, however, because, as held in the last paragraph of article 1903, responsibility for acts of third persons
ceases when the persons mentioned in said article prove that they employed all the diligence of a good father of a family to avoid the
damage, and among these persons, called upon to answer in a direct and not a subsidiary manner, are found, in addition to the mother
or the father in a proper case, guardians and owners or directors of an establishment or enterprise, the state, but not always, except
when it acts through the agency of a special agent, doubtless because and only in this case, the fault or negligence, which is the original
basis of this kind of objections, must be presumed to lie with the state.
That although in some cases the state might by virtue of the general principle set forth in article 1902 respond for all the damage that
is occasioned to private parties by orders or resolutions which by fault or negligence are made by branches of the central administration
acting in the name and representation of the state itself and as an external expression of its sovereignty in the exercise of its executive
powers, yet said article is not applicable in the case of damages said to have been occasioned to the petitioners by an executive official,
acting in the exercise of his powers, in proceedings to enforce the collections of certain property taxes owing by the owner of the
property which they hold in sublease.
That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent(and a special agent, in
the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of
the duties of his office if he is a special official) so that in representation of the state and being bound to act as an agent thereof, he
executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the acting administration
and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated
by law and the regulations." (Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others, of the 18th of
May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a special agent, duly empowered
by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim, and not
where the claim is based on acts or omissions imputable to a public official charged with some administrative or technical of fice who
can be held to the proper responsibility in the manner laid down by the law of civil responsibility. Consequently, the trial court in not so
deciding and in sentencing the said entity to the payment of damages, caused by an official of the second class referred to, has by
erroneous interpretation infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme Court of Spain, July 30, 1911;
122 Jur. Civ., 146.)
It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the above quoted decisions of the
Supreme Court of Spain, for the acts of its agents, officers and employees when they act as special agents within the meaning of paragraph 5 of
article 1903, supra, and that the chauffeur of the ambulance of the General Hospital was not such an agent.
For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance. Whether the Government intends to
make itself legally liable for the amount of damages above set forth, which the plaintiff has sustained by reason of the negligent acts of one of
its employees, by legislative enactment and by appropriating sufficient funds therefor, we are not called upon to determine. This matter rests
solely with the Legislature and not with the courts.
Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.
Page | 101
VICARIOUS LIABILITY OF TEACHERS AND HEADS OF ESTABLISHMENTS OF ARTS AND TRADE
G.R. No. L-10134 June 29, 1957
SABINA EXCONDE, plaintiff-appellant,

vs.
DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.
Magno T. Bueser for appellant.

Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees.
BAUTISTA ANGELO, J.:
Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of Isidoro Caperina
and Amado Ticzon on March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No. 15001). During the trial, Sabina
Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a separate civil action for damages against the accused.
After trial, Dante Capuno was found guilty of the crime charged and, on appeal, the Court Appeals affirmed the decision. Dante Capuno
was only (15) years old when he committed the crime.
In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno asking for damages
in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperiña. Defendants set up the defense that if any one should
be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father Delfin because at the time of the accident, the
former was not under the control, supervision and custody, of the latter. This defense was sustained by the lower court and, as a
consequence it only convicted Dante Capuno to pay the damages claimed in the complaint. From decision, plaintiff appealed to the Court
of Appeals but the case was certified to us on the ground that the appeal only involves questions of law.
It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary School situated
in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said city upon instruction
of the city school's supervisor. From the school Dante, with other students, boarded a jeep and when the same started to run, he took
hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its
passengers, Amado Ticzon and Isidore Caperiña, died as a consequence. It further appears that Delfin Capuno, father of Dante, was not
with his son at the time of the accident, nor did he know that his son was going to attend a parade. He only came to know it when his
son told him after the accident that he attended the parade upon instruction of his teacher.
The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally with his son
Dante, for damages resulting from the death of Isidoro Caperiña caused by the negligent act of minor Dante Capuno.
The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:
ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and omissions, but
also for those of persons for whom another is responsible.
The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor children who
live with them.
xxx xxx xxx
Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are
under their custody.
Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son Dante because at
the time the latter committed the negligent act which resulted in the death of the victim, he was a minor and was then living with his
father, and inasmuch as these facts are not disputed, the civil liability of the father is evident. And so, plaintiff contends, the lower court
erred in relieving the father from liability.
Page | 102
We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are
liable for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an
institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See 12
Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School and as part of his extra-curricular
activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city school's supervisor. And it was in connection with
that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred. In the circumstances, it is clear
that neither the head of that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was
not then a student of an institute of arts and trades as provided by law.
The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any damages that may
be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they exercise
over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them and instructing
them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation" (Articles
154 and 155, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised
all the diligence of a good father of a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants
failed to prove.
WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno shall pay to plaintiff,
jointly and severally, the sum of P2,959.00 as damages, and the costs of action.
Bengzon, Montemayor, Labrador and Endencia, JJ., concur.
G.R. No. L-14342 May 30, 1960
CIRIACO L. MERCADO, petitioner,

vs.
THE COURT OF APPEALS, MANUEL QUISUMBING, JR., ET AL., respondents.
Abad Santos and Pablo for petitioner.

Sycip, Quisumbing, Salazar and Associates for respondents.
LABRADOR, J.:
This is a petition to review a decision of the Court of Appeals, which condemned petitioner to pay P2,000 as moral damages and P50 for medical expenses,
for a physical injury caused by the son of petitioner, Augusto Mercado, on a classmate, Manuel Quisumbing, Jr., both pupils of the Lourdes Catholic School,
Kanlaon, Quezon City. The case had originated in the Court of First Instance of Manila, Hon. Bienvenido A. Tan, presiding, which dismissed the complaint
filed by Manuel Quisumbing, Jr. and his father against petitioner, father of the above-mentioned Mercado. The facts found by the Court of Appeals are as
follows:
Plaintiff-appellant Manuel Quisumbing, Jr. is the son of his co-plaintiff-appellants Ana Pineda and Manuel L. Quisumbing, while Augusto Mercado
is the son of defendant-appellee Ciriaco L. Mercado, Manuel Quisumbing, Jr. and Augusto Mercado were classmates in the Lourdes Catholic
School on Kanlaon, Quezon City. A "pitogo", which figures prominently in this case, may be described as an empty nutshell used by children as
a piggy bank. On February 22, 1956, Augusto Mercado and Manuel Quisumbing, Jr. quarrelled over a "pitogo". As a result, Augusto wounded
Manuel, Jr. on the right cheek with a piece of razor.
xxx xxx xxx
The facts of record clearly show that it was Augusto Mercado who started the aggression. Undeniably, the "pitogo" belonged to Augusto Mercado
but he lent it to Benedicto P. Lim and in turn Benedicto lent it to Renato Legaspi. Renato was not aware that the "pitogo" belonged to Augusto,
because right after Benedicto gave it to him, Benedicto ran away to get a basket ball with which they could play. Manuel Quisumbing, Jr. was
likewise unaware that the "pitogo" belonged to Augusto. He thought it was the "pitogo" of Benedicto P. Lim, so that when Augusto attempted
to get the "pitogo" from Renato, Manuel, Jr. told him not to do so because Renato was better at putting the chain into the holes of the "pitogo".
However, Augusto resented Manuel, Jr.'s remark and he aggresively pushed the latter. The fight started then. After Augusto gave successive
blows to Manuel, Jr., and the latter was clutching his stomach which bore the brunt of Augusto's anger, Augusto seeing that Manuel, Jr. was in
a helpless position, cut him on the right check with a piece of razor.
xxx xxx xxx
Page | 103
Although the doctor who treated Manuel Quisumbing, Jr., Antonio B. Past, testified for plaintiffs-appellants, he did not
declare as to the amount of fees he collected from plaintiff-appellants for the treatment of Manuel, Jr. the child was not even hospitalized for
the wound. We believe that the sum of P50.00 is a fair approximation of the medical expenses incurred by plaintiffs-appellants.
xxx xxx xxx
The damages specified in paragraphs C and D of the aforequoted portion of plaintiffs-appellant's complaint come under the class of moral
damages. The evidence of record shows that the child suffered moral damages by reason of the wound inflicted by Augusto Mercado. Though
such kind of damages cannot be fully appreciated in terms of money, we believe that the sum of P2,000.00 would fully compensate the child.
As second cause of action, plaintiffs-appellants pray for P5,000.00 covering the moral damages they allegedly suffered due to their son's being
wounded; and the sum of P3,000.00 as attorney's fees. The facts of record do not warrant the granting of moral damages to plaintiffs-appellants
Manuel Quisumbing and Ana Pineda. "In law mental anguish is restricted, as a rule, to such mental pain or suffering as arises from an injury or
wrong to the person himself, as distinguished from that form of mental suffering which is the accompaniment of sympathy or sorrow for
another's suffering of which arises from a contemplation of wrong committed on the person of another. Pursuant to the rule stated, a husband
or wife cannot recover for mental suffering caused by his or her sympathy for the other's suffering. Nor can a parent recover for mental distress
and anxiety on account of physical injury sustained by a child or for anxiety for the safety of his child placed in peril by the negligence of
another." (15 Am. Jur. 597). Plaintiffs-appellants are not entitled to attorney's fees, it not appearing that defendant-appellee had wantonly
disregarded their claim for damages.
In the first, second and third assignments of error, counsel for petitioner argues that since the incident of the inflicting of the wound on respondent
occurred in a Catholic School (during recess time), through no fault of the father, petitioner herein, the teacher or head of the school should be held
responsible instead of the latter. This precise question was brought before this Court in Exconde vs. Capuno and Capuno, 101 Phil., 843, but we held,
through Mr. Justice Bautista:
We find merit in this claim. It is true that under the law above-quoted, "teachers or directors of arts and trades are liable for any damage caused
by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to
any academic educational institution (Padilla, Civil Law, 1953 Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557)
The last paragraph of Article 2180 of the Civil Code, upon which petitioner rests his claim that the school where his son was studying should be made
liable, is as follows:
ART. 2180. . . .
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.
It would be seem that the clause "so long as they remain in their custody," contemplates a situation where the pupil lives and boards with the teacher,
such that the control, direction and influence on the pupil supersedes those of the parents. In these circumstances the control or influence over the
conduct and actions of the pupil would pass from the father and mother to the teacher; and so would the responsibility for the torts of the pupil. Such a
situation does not appear in the case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after
school is over. The situation contemplated in the last paragraph of Article 2180 does not apply, nor does paragraph 2 of said article, which makes father
or mother responsible for the damages caused by their minor children. The claim of petitioner that responsibility should pass to the school must, therefore,
be held to be without merit.
We next come to the claim of petitioner that the moral damages fixed at P2,000 are excessive. We note that the wound caused to respondent was inflicted
in the course of an ordinary or common fight between boys in a grade school. The Court of Appeals fixed the medical expenses incurred in treating and
curing the wound at P50. Said court stated that the wound did not even require hospitalization. Neither was Mercado found guilty of any offense nor the
scar in Quisumbing's face pronounced to have caused a deformity, unlike the case of Araneta, et al. vs. Arreglado, et al., 104 Phil., 529; 55 Off. Gaz. (9)
1561. Petitioner's counsel argues that if death call for P3,000 to P6,000, certainly the incised wound could cause mental pain and suffering to the tune of
P2,000.
In the decision of the Court of Appeals, said court pronounces that the child Quisumbing suffered moral damages "by reason of the wound inflicted by
Augusto Mercado." While moral damages included physical suffering, which must have been caused to the wounded boy Quisumbing (Art. 2217, Civil
Code), the decision of the court below does not declare that any of the cases specified in Article 2219 of the Civil Code in which moral damages may be
recovered, has attended or occasioned the physical injury. The only possible circumstance in the case at bar in which moral damages are recoverable
would be if a criminal offense or a quasi-delict has been committed.
It does not appear that a criminal action for physical injuries was ever presented. The offender, Augusto Mercado, was nine years old and it does not
appear that he had acted with discernment when he inflicted the physical injuries on Manuel Quisumbing, Jr.
It is possible that the Court of Appeals may have considered Augusto Mercado responsible for or guilty, of a quasi-delict causing physical injuries, within
the meaning of paragraph 2 of Article 2219. Even if we assume that said court considered Mercado guilty of a quasi-delict when it imposed the moral
damages, yet the facts found by said court indicate that Augusto's resentment, which motivated the assault, was occasioned by the fact that Manuel, Jr.
Page | 104
had tried to intervene in or interfere with the attempt of Mercado to get "his pitogo from Renato." This is, according to the decision
appealed from, the reason why Mercado was incensed and pushed Quisumbing who, in turn, also pushed Mercado. It is, therefore, apparent that the
proximate cause of the injury caused to Quisumbing was Quisumbing's own fault or negligence for having interfered with Mercado while trying to get the
pitogo from another boy. (Art. 2179, Civil Code.)
After considering all the facts as found by the Court of Appeals, we find that none of the cases mentioned in Article 2219 of the Civil Code, which authorizes
the grant of moral damages, was shown to have existed. Consequently, the grant of moral damages is not justified.
For the foregoing considerations, the decision appealed from is hereby reversed and the petitioner is declared exempt or free from the payment of moral
damages. The award of P50 for medical expenses, however, is hereby affirmed. Without costs.
Paras, C.J., Bengzon, Montemayor, Barrera, and Gutierrez David, JJ., concur.
Bautista Angelo and Concepcion, JJ., concur in the result.
G.R. No. L-47745 April 15, 1988
JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III,
LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA
TISCALINA A. AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON,
ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO
VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents.
Jose S. Amadora & Associates for petitioners.
Padilla Law Office for respondents.
CRUZ, J.:
Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the
presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate
would intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-
Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen
years old. 1
Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages
under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics
teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial,
the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation,
loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees .3 On appeal to the respondent
court, however, the decision was reversed and all the defendants were completely absolved .4
In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent court found that Article 2180
was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and trades but an academic institution of learning. It also held that the
students were not in the custody of the school at the time of the incident as the semester had already ended, that there was no clear identification of the
fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5
The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its auditorium was shot to death by
Pablito Daffon, a classmate. On the implications and consequences of these facts, the parties sharply disagree.
The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his graduation; hence, he was then under the
custody of the private respondents. The private respondents submit that Alfredo Amadora had gone to the school only for the purpose of submitting his
physics report and that he was no longer in their custody because the semester had already ended.
Page | 105
There is also the question of the identity of the gun used which the petitioners consider important because of an earlier incident
which they claim underscores the negligence of the school and at least one of the private respondents. It is not denied by the respondents that on April
7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to
the principal or taking any further action .6 As Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners
contend that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it had not been returned
by Damaso. The respondents say, however, that there is no proof that the gun was the same firearm that killed Alfredo.
Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by both parties in support of their
conflicting positions. The pertinent part of this article reads as follows:
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or
apprentices so long as they remain in their custody.
Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of
Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the case at bar.
In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal Day parade on instructions of the
city school supervisor. After the parade, the boy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death
of two of its passengers. Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father
was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.
This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum (as it was not a party to the case)
on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented,
arguing that it was the school authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2)
heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and not
"teachers."
Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade during recess time at the Lourdes
Catholic School in Quezon City, and the parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in
another obiter (as the school itself had also not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover,
the custody requirement had not been proved as this "contemplates a situation where the student lives and boards with the teacher, such that the control,
direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred
in this decision promulgated on May 30, 1960.
In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in the laboratory of the Manila
Technical Institute. Although the wrongdoer — who was already of age — was not boarding in the school, the head thereof and the teacher in charge
were held solidarily liable with him. The Court declared through Justice Teehankee:
The phrase used in the cited article — "so long as (the students) remain in their custody" — means the protective and supervisory
custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the
school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who
commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well
as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision.
This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even
students already of age were covered by the provision since they were equally in the custody of the school and subject to its discipline. Dissenting with
three others,11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed
by students not yet of age as the school would be acting only in loco parentis.
In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since the school involved at bar is a non-
academic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may
properly be raised."
This is the case.
Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be held liable under Article 2180; and
unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning. The parties herein have also directly raised the question of
whether or not Article 2180 covers even establishments which are technically not schools of arts and trades, and, if so, when the offending student is
supposed to be "in its custody."
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
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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 singulis"teachers" should apply to the words "pupils and students" and "heads of establishments of
arts and trades" to the word "apprentices."
The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part:
I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic ones. What
substantial difference is there between them insofar as concerns the proper supervision and vice over their pupils? It cannot be
seriously contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment
of third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In my opinion, in the phrase
"teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not
qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent terms "preceptores y
artesanos" used in the Italian and French Civil Codes.
If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando that the
parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent
places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts
committed while under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of the school
nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no
responsibility.
There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed by their students are concerned.
The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is
teaching. The suggestion in the Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts and
trades liable for an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability would attach to
the teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school would be absolved whereas the
teacher and the head of the non-academic school would be held liable, and simply because the latter is a school of arts and trades.
The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective
schools. There does not seem to be any plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing
such vigilance where the school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a
result of the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is
registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an academic school where, on the other
hand, the head would be held liable if the school were non-academic.
These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts committed by his students, why is it
the head of the school only who is held liable where the injury is caused in a school of arts and trades? And in the case of the academic or non- technical
school, why not apply the rule also to the head thereof instead of imposing the liability only on the teacher?
The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils
than the head of the academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master who
personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and so
was personally involved in the task of teaching his students, who usually even boarded with him and so came under his constant control, supervision and
influence. By contrast, the head of the academic school was not as involved with his students and exercised only administrative duties over the teachers
who were the persons directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with the
students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer
ties with them, could be so blamed.
It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their
enrollment, and the corresponding diminution of the direct and personal contract of their heads with the students. Article 2180, however, remains
unchanged. In its present state, the provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into
account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.
The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and trades over the students. Is such
responsibility co-extensive with the period when the student is actually undergoing studies during the school term, as contended by the respondents and
impliedly admitted by the petitioners themselves?
From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v. Brillantes, does not mean that the
student must be boarding with the school authorities, it does signify that the student should be within the control and under the influence of the school
authorities at the time of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning
with the start of classes and ending upon the close thereof, and excluding the time before or after such period, such as the period of registration, and in
the case of graduating students, the period before the commencement exercises. In the view of the Court, the student is in the custody of the school
authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already
ended.
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It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes notwithstanding
that before that day he has already registered and thus placed himself under its rules. Neither should such discipline be deemed ended upon the last day
of classes notwithstanding that there may still be certain requisites to be satisfied for completion of the course, such as submission of reports, term papers,
clearances and the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released
altogether from observance of its rules.
As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student
right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school
authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his
classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school
authorities under the provisions of Article 2180.
During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in practically the same way that the parents are
responsible for the child when he is in their custody. The teacher-in-charge is the one designated by the dean, principal, or other administrative superior
to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the
teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to the
influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and
not the parent shag be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly
exercised over him.
In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and
trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof
under the general principle of respondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus
paterfamilias.
Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to answer for the tort committed by the
student. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself
from the liability imposed by Article 2180, which also states that:
The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all the diligence
of a good father of a family to prevent damages.
In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis for the law does not require that
the offending student be of minority age. Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held answerable by the law
for the act of the student under him regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the
technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher.
The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that the school may be unduly exposed
to liability under this article in view of the increasing activism among the students that is likely to cause violence and resulting injuries in the school
premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly
liable. Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head
or the teacher in its employ.
The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate supervision over them in the custody and
instruction of the pupils pursuant to its rules and regulations for the maintenance of discipline among them. In almost all cases now, in fact, these
measures are effected through the assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms
should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its students.
A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for the damage caused by his
students as long as they are in the school premises and presumably under his influence. In this respect, the Court is disposed not to expect from the
teacher the same measure of responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent can
expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such dependence
includes the child's support and sustenance whereas submission to the teacher's influence, besides being coterminous with the period of custody is usually
enforced only because of the students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so should be
held to a greater accountability than the teacher for the tort committed by the child.
And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is responsible for the damage caused
by the student or apprentice even if he is already of age — and therefore less tractable than the minor — then there should all the more be justification
to require from the school authorities less accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent
himself is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's control, there is then all the
more reason for leniency in assessing the teacher's responsibility for the acts of the student.
Applying the foregoing considerations, the Court has arrived at the following conclusions:
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1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos
notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or
merely to submit his physics report for what is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring
of the company of his friends in the premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities.
2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-in-charge as previously defined.
Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in
charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-
charge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not
necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer.
3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing discipline upon Daffon or that he
had waived observance of the rules and regulations of the school or condoned their non-observance. His absence when the tragedy happened cannot be
considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still
in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was
caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence,
through the enforcement of the school regulations, in maintaining that discipline.
4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of the unrefuted evidence that he
had earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action or reporting the
matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link
him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son.
5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article because only the teacher or the head
of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort
committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or
has been remiss in the discharge of his duties in connection with such custody.
In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable
for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on
April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless
are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked.
WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.
G.R. No. L-29025 October 4, 1971
Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,

vs.
ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school of arts and trades, known
under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M. QUIBULUE, defendants-
appellees.
TEEHANKEE, J.:
An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of Manila. .
Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive mechanics at the Manila Technical Institute,
Quezon Boulevard, Manila, had filed on May 19, 1966, the action below for damages arising from the death on March 10, 1966 of their son at the hands
of a fellow student, defendant Virgilio L. Daffon, at the laboratory room of the said Institute. .
Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when the incident which gave rise to his action occurred
was a member of the Board of Directors of the institute;1 the defendant Teodosio Valenton, the president thereof; the defendant Santiago M. Quibulue,
instructor of the class to which the deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the beginning the Manila
Technical Institute was a single proprietorship, but lately on August 2, 1962, it was duly incorporated."
The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased Dominador Palisoc and the defendant Virgilio
L. Daffon were classmates, and on the afternoon of March 10, 1966, between two and three o'clock, they, together with another classmate Desiderio Cruz
were in the laboratory room located on the ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L. Daffon were working on a
machine while Dominador Palisoc was merely looking on at them. Daffon made a remark to the effect that Palisoc was acting like a foreman. Because of
this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation, gave Palisoc a strong flat blow on the face, which was followed by other fist
Page | 109
blows on the stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon followed him and both exchanged blows until
Palisoc stumbled on an engine block which caused him to fall face downward. Palisoc became pale and fainted. First aid was administered to him but he
was not revived, so he was immediately taken to a hospital. He never regained consciousness; finally he died. The foregoing is the substance of the
testimony of Desiderio Cruz, the lone witness to the incident."
The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness, Desiderio Cruz, a classmate of the protagonists,
as that of a disinterested witness who "has no motive or reason to testify one way or another in favor of any party" and rejected the self-exculpatory
version of defendant Daffon denying that he had inflicted any fist blows on the deceased. .
With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the autopsy re "Cause of death: shock due to
traumatic fracture of theribs (6th and 7th, left, contusion of the pancreas and stomach with intra-gastric hemorrhage and slight subarachnoid hemorrhage
on the brain," and his testimony that these internal injuries of the deceased were caused "probably by strong fist blows," the trial court found defendant
Daffon liable for the quasi delict under Article 2176 of the Civil Code.3 It held that "(T)he act, therefore, of the accused Daffon in giving the deceased
strong fistblows in the stomach which ruptured his internal organs and caused his death falls within the purview of this article of the Code."4
The trial court, however, absolved from liability the three other defendants-officials of the Manila Technical Institute, in this wise:
... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:
Art. 2180. ... .
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils
and students and apprentices, so long as they remain in their custody.
In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this contemplates the situation where
the control or influence of the teachers and heads of school establishments over the conduct and actions by the pupil supersedes
those of the parents.
CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so long as they remain in their
custody" contained in Article 2180 of the new civil code contemplated a situation where the pupil lives and boards
with the teacher, such that the control or influence on the pupil supersedes those of the parents. In those
circumstances the control or influence over the conduct and actions of the pupil as well as the responsibilities for
their sort would pass from the father and mother to the teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of
Appeals, Manuel Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30, 1960).5
There is no evidence that the accused Daffon lived and boarded with his teacher or the other defendant officials of the school. These
defendants cannot therefore be made responsible for the tort of the defendant Daffon.
Judgment was therefore rendered by the trial court as follows:
1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased Dominador Palisoc (a) P6,000.00 for the
death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral damages; (d) P10,000.00
for loss of earning power, considering that the deceased was only between sixteen and seventeen years, and in good health when he
died, and (e) P2,000.00 for attorney's fee, plus the costs of this action. .
2. Absolving the other defendants. .
3. Dismissing the defendants' counterclaim for lack of merit.
Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court, which are now beyond review, the trial court erred in
absolving the defendants-school officials instead of holding them jointly and severally liable as tortfeasors, with defendant Daffon, for the damages
awarded them as a result of their son's death. The Court finds the appeal, in the main, to be meritorious. .
1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil Code, which expressly hold "teachers or
heads of establishments of arts and trades ... liable for damages caused by their pupils and students and apprentices, so long as they remain in their
custody," are not applicable to to the case at bar, since "there is no evidence that the accused Daffon [who inflicted the fatal fistblows]6 lived and boarded
with his teacher or the other defendants-officials of the school. These defendants cannot therefore be made responsible for the tort of the defendant
Daffon."
The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals,7 that "(I)t would seem that the clause "so long
as they remain in their custody," contemplates a situation where the pupil lives and boards with the teacher, such that the control, direction and influence
on the pupil supersedes those of the parents. In these circumstances the control or influence over the conduct and actions of the pupil would pass from
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the father and mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does not appear in
the case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after school is over." This dictum had
been made in rejecting therein petitioner father's contention that his minor son's school, Lourdes Catholic School at Kanlaon, Quezon City [which was not
a party to the case] should be held responsible, rather than him as father, for the moral damages of P2,000.00 adjudged against him for the physical
injury inflicted by his son on a classmate. [A cut on the right cheek with a piece of razor which costs only P50.00 by way of medical expenses to treat and
cure, since the wound left no scar.] The moral damages award was after all set aside by the Court on the ground that none of the specific cases provided
in Article 2219, Civil Code, for awarding moral damages had been established, petitioner's son being only nine years old and not having been shown to
have "acted with discernment" in inflicting the injuries on his classmate. .
The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno,8 where the only issue involved as expressly stated
in the decision, was whether the therein defendant-father could be civilly liable for damages resulting from a death caused in a motor vehicle accident
driven unauthorizedly and negligently by his minor son, (which issue was resolved adversely against the father). Nevertheless, the dictum in such earlier
case that "It is true that under the law abovequoted, teachers or directors of arts and trades are liable for any damage caused by their pupils or apprentices
while they are under their custody, but this provision only applies to an institution of arts and trades and not to any academic educational institution" was
expressly cited and quoted in Mercado. .
2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of teachers and heads of schools under Article
2180, Civil Code, for damages caused by their pupils and students against fellow students on the school premises. Here, the parents of the student at
fault, defendant Daffon, are not involved, since Daffon was already of age at the time of the tragic incident. There is no question, either, that the school
involved is a non-academic school,9 the Manila Technical Institute being admittedly a technical vocational and industrial school. .
The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute (defendants Valenton and Quibulue,
respectively) are liable jointly and severally for damages to plaintiffs-appellants for the death of the latter's minor son at the hands of defendant Daffon
at the school's laboratory room. No liability attaches to defendant Brillantes as a mere member of the school's board of directors. The school itself cannot
be held similarly liable, since it has not been properly impleaded as party defendant. While plaintiffs sought to so implead it, by impleading improperly
defendant Brillantes, its former single proprietor, the lower court found that it had been incorporated since August 2, 1962, and therefore the school itself,
as thus incorporated, should have been brought in as party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in
their reply to plaintiffs' request for admission had expressly manifested and made of record that "defendant Antonio C. Brillantes is not the registered
owner/head of the "Manila Technical Institute" which is now a corporation and is not owned by any individual person."10
3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so long as they remain in their custody, is
that they stand, to a certain extent, as to their pupils and students, in loco parentis and are called upon to "exercise reasonable supervision over the
conduct of the child."11 This is expressly provided for in Articles 349, 350 and 352 of the Civil Code.12 In the law of torts, the governing principle is that
the protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well
as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school, including
recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be
anticipated, including injuries that some student themselves may inflict willfully or through negligence on their fellow students. .
4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the presumption of negligence of Art. 1903 [now
2180] is some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority" 13 and "where the parent
places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while
under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision
of the teacher while the child is under instruction." The school itself, likewise, has to respond for the fault or negligence of its school head and teachers
under the same cited article.14
5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could be held liable under Article 2180, Civil
Code, only if the student who inflicted the fatal fistblows on his classmate and victim "lived and boarded with his teacher or the other defendants officials
of the school." As stated above, the phrase used in the cited article — "so long as (the students) remain in their custody" means the protective and
supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school,
including recess time. There is nothing in the law that requires that for such liability to attach the pupil or student who commits the tortious act must live
and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed
to have been set aside by the present decision. .
6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held jointly and severally liable for the quasi-
delict of their co-defendant Daffon in the latter's having caused the death of his classmate, the deceased Dominador Palisoc. The unfortunate death
resulting from the fight between the protagonists-students could have been avoided, had said defendants but complied with their duty of providing
adequate supervision over the activities of the students in the school premises to protect their students from harm, whether at the hands of fellow students
or other parties. At any rate, the law holds them liable unless they relieve themselves of such liability, in compliance with the last paragraph of Article
2180, Civil Code, by "(proving) that they observed all the diligence of a good father of a family to prevent damage." In the light of the factual findings of
the lower court's decision, said defendants failed to prove such exemption from liability. .
7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be increased to P12,000.00 as set by the
Court in People vs. Pantoja,15 and observed in all death indemnity cases thereafter is well taken. The Court, in Pantoja, after noting the decline in the
purchasing power of the Philippine peso, had expressed its "considered opinion that the amount of award of compensatory damages for death caused by
a crime or quasi-delict should now be P12,000.00." The Court thereby adjusted the minimum amount of "compensatory damages for death caused by a
Page | 111
crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of P3,000.00 to P12,000.00, which amount is to
be awarded "even though there may have been mitigating circumstances" pursuant to the express provisions of said codal article. .
8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and imposed legal interest on the total
damages awarded, besides increasing the award of attorney's fees all concern matters that are left by law to the discretion of the trial court and the Court
has not been shown any error or abuse in the exercise of such discretion on the part of the trial court.16 Decisive here is the touchstone provision of Article
2231, Civil Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence." No gross negligence on the
part of defendants was found by the trial court to warrant the imposition of exemplary damages, as well as of interest and increased attorney's fees, and
the Court has not been shown in this appeal any compelling reason to disturb such finding. .
ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .
1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue jointly and severallyto pay plaintiffs as heirs of the deceased
Dominador Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral,
damages; (d) P10,000.00 for loss of earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both instances; 2.
absolving defendant Antonio C. Brillantes from the complaint; and 3. dismissing defendants' counterclaims. .
Concepcion, C.J., Villamor and Makasiar, JJ., concur. .
Dizon, J., took no part. .
REYES, J.B.L., J., concurring: .
I concur with the opinion of Mr. Justice Teehankee but would like to clarify that the argument of the dissenting opinion of the effect that the responsibility
of teachers and school officers under Articles 2180 should be limited to pupils who are minors (below the age of majority) is not in accord with the plain
text of the law. Article 2180 of the Civil Code of the Philippines is to the following effect: .
The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for
whom one is responsible. .
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live
in their company. .
Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their
company. .
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the occasion of their functions. .
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or industry. .
The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official
to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. .
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.
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observe all the diligence of
a good father of a family to prevent damages.
Examination of the article shows that where the responsibility prescribed therein is limited to illegal acts during minority, the article expressly so provides,
as in the case of the parents and of the guardians. It is natural to expect that if the law had intended to similarly restrict the civil responsibility of the
other categories of persons enumerated in the article, it would have expressly so stated. The fact that it has not done so indicates an intent that the
liability be not restricted to the case of persons under age. Further, it is not without significance that the teachers and heads of scholarly establishments
are not grouped with parents and guardians but ranged with owners and managers of enterprises, employers and the state, as to whom no reason is
discernible to imply that they should answer only for minors. .
Giorgi, in his well-known "Teoria de las Obligaciones en el Derecho Moderno", Volume 5, page 404, No. 272 (Sp. Ed.), after noting the split among
commentators on the point it issue, observes with considerable cogency that —
Page | 112
272. Ante esta variedad de opiniones, ninguna de las cuales se funds en argumentos merecedores de seria
ponderacion, no es facil tomar un partido. Esto no obstante, debiendo manisfestar nuestra opinion, nos acercamos a la de los que no
estiman necesaria la menor edad del discipulo o del aprendiz; porque si el aforismo ubi voluit dixit, ubi noluit tacuit, no es siempre
argumento seguro para interpreter la ley, es infalible cuanto se refiere a una misma disposicion relative a varios casos. Y tal es el art.
1.153. Lo que haya establecido important poco si, elevandones a los principios de razon, puede dudarse de la oportunidad de
semajante diferencia; porque la voluntad cierta del legislador prevalece in iure condito a cualquier otra consideracion. Por otra parte,
si bien se considera, no puede parecer extrano o absurdo el suponer que un discipulo y un aprendiz, aunque mayores de edad,
acepten voluntariamente la entera vigilancia de su preceptor mientras dura la educacion. Ni parece dudoso desde el momento que
los artesanos y los preceptores deben, al par de los padres, responder civilmente de los daños comitidos por sus discipulos, aun
cuando estos esten faltos de discernimiento.
Similarly, Planiol-Ripert, in their "Droit Civil Pratique," Volume VI, No. 635 (Spanish version), say that —
635. Personas de quien responde. — Si bien la responsibilidad del maestro es originalmente una estension de la de los padres (1), el
art. 1384 no especifica que los alumnos y aprendices han de ser menores de edad, por lo que la presuncion de culpa funcionara aun
cuando sean mayores (2); pero, la vigilancia no tendra que ser ejercida en iguales terminos. Aun respecto a los menores variara
segun la edad, extremo que tendra que ternese en ceunta a los fines de apreciar si el maestro ha podido impedir el acto nocivo o no.
.
I submit, finally, that while in the case of parents and guardians, their authority and supervision over the children and wards end by law upon the latter
reaching majority age, the authority and custodial supervision over pupils exist regardless of the age of the latter. A student over twenty-one, by enrolling
and attending a school, places himself under the custodial supervision and disciplinary authority of the school authorities, which is the basis of the latter's
correlative responsibility for his torts, committed while under such authority. Of course, the teachers' control is not as plenary as when the student is a
minor; but that circumstance can only affect the decree of the responsibility but cannot negate the existence thereof. It is only a factor to be appreciated
in determining whether or not the defendant has exercised due diligence in endeavoring to prevent the injury, as prescribed in the last paragraph of
Article 2180. .
Barredo, J., concurs.
G.R. No. 70458 October 5, 1988
BENJAMIN SALVOSA and BAGUIO COLLEGES FOUNDATION, petitioners,

vs.
THE INTERMEDIATE APPELLATE COURT, EDUARDO B. CASTRO, DIOMEDES B. CASTRO, VIRGINIA B. CASTRO and RODOLFO B.
CASTRO., respondents.
Edilberto B. Tenefrancia for petitioners.
Leonardo L. Cocjin Jr. for respondents.
PADILLA, J.:
In this petition for review on certiorari, petitioners seek the reversal of the
decision 1 of respondent Intermediate Appellate Court, dated 7 December 1984, in AC-G.R. No. CV 69876, in so far as it affirmed the decision 2 of the
Court of First Instance of Tarlac (hereinafter referred to as the Trial Court), which held, among others, petitioners solidarily hable with Jimmy B. Abon,
under Art. 2180 of the Civil Code.
The relevant facts, as found by the Trial Court and adopted by reference by the respondent Court, are:
... Baguio Colleges Foundation (BCF, hereafter) is an academic institution ... [However], it is also an institution of arts and trade. It has so advertised
itself, as its own evidence shows. Its brochure (Exh. 2) shows that BCF has a full-fledged technical-vocational department offer Communication, Broadcast
and Teletype Technician courses as well as Electronics Serviceman and Automotive Mechanics courses... these courses divest BCF of the nature or
character of being purely or exclusively an academic institution. 3
Within the premises of the BCF is an ROTC Unit, the Baguio Colleges Foundation Reserve Officers Training Corps (ROTC) Unit, which is under the fifth
control of the Armed Forces of the Philippines. 4 The ROTC Unit, by way of accommodation to the Armed Forces of the Philippines (AFP), pursuant to
Department Order No. 14, Series of 1975 of the Department of Education and Culture, 5 is provided by the BCF an office and an armory located at the
basement of its main building. 6
Page | 113
The Baguio Colleges Foundation ROTC Unit had Jimmy B. Abon as its duly appointed armorer. 7 As armorer of the ROTC Unit, Jimmy
B. Abon received his appointment from the AFP. Not being an employee of the BCF, he also received his salary from the AFP, 8 as well as orders from
Captain Roberto C. Ungos, the Commandant of the Baguio Colleges Foundation ROTC Unit, concurrent Commandant of other ROTC units in Baguio and
an employee (officer) of the AFP. 9 Jimmy B. Abon was also a commerce student of the BCF. 10
On 3 March 1977, at around 8:00 p.m., in the parking space of BCF, Jimmy B. Abon shot Napoleon Castro a student of the University of Baguio with an
unlicensed firearm which the former took from the armory of the ROTC Unit of the BCF. 11 As a result, Napoleon Castro died and Jimmy B. Abon was
prosecuted for, and convicted of the crime of Homicide by Military Commission No. 30, AFP. 12
Subsequently, the heirs of Napoleon Castro sued for damages, impleading Jimmy B. Abon, Roberto C. Ungos (ROTC Commandant Benjamin Salvosa
(President and Chairman of the Board of BCF), Jesus Salvosa (Executive Vice President of BCF), Libertad D. Quetolio (Dean of the College of Education
and Executive Trustee of BCF) and the Baguio Colleges Foundation Inc. as party defendants. After hearing, the Trial Court rendered a decision, (1)
sentencing defendants Jimmy B. Abon, Benjamin Salvosa and Baguio Colleges Foundation, Inc., jointly and severally, to pay private respondents, as heirs
of Napoleon Castro: a) P12,000.00 for the death of Napoleon Castro, (b) P316,000.00 as indemnity for the loss of earning capacity of the deceased, (c)
P5,000.00 as moral damages, (d) P6,000.00 as actual damages, and (e) P5,000.00 as attorney's fees, plus costs; (2) absolving the other defendants; and
(3) dismissing the defendants' counterclaim for lack of merit. 13 On appeal by petitioners, the respondent Court affirmed with modification the decision of
the Trial Court. The modification consisted in reducing the award for loss of earning capacity of the deceased from P316,000.00 to P30,000.00 by way of
temperate damages, and increasing the indemnity for the death of Napoleon Castro from P12,000.00 to P30,000.00.
Hence, this petition.
The central issue in this case is whether or not petitioners can be held solidarity hable with Jimmy B. Abon for damages under Article 2180 of the Civil
Code, as a consequence of the tortious act of Jimmy B. Abon.
Under the penultimate paragraph of Art. 2180 of the Civil Code, teachers or heads of establishments of arts and trades are hable for "damages caused by
their pupils and students or apprentices, so long as they remain in their custody." The rationale of such liability is that so long as the student remains in
the custody of a teacher, the latter "stands, to a certain extent, in loco parentis [as to the student] and [is] called upon to exercise reasonable supervision
over the conduct of the [student]." 14 Likewise, "the phrase used in [Art. 2180 — 'so long as (the students) remain in their custody means the protective
and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the
school, including recess time." 15
In the case at bar, in holding that Jimmy B. Abon was stin in the protective and supervisory custody of the Baguio Colleges Foundation when he shot
Napoleon Castro, the respondent Court ruled that:
it is true that Abon was not attending any class or school function at the time of the shooting incident, which was at about 8 o'clock
in the evening; but considering that Abon was employed as an armorer and property custodian of the BCF ROTC unit, he must have
been attending night classes and therefore that hour in the evening was just about dismissal time for him or soon thereafter. The
time interval is safely within the "recess time" that the trial court spoke of and envisioned by the Palisoc case, supra . 16 (Emphasis
supplied)
In line with the case of Palisoc, 17 a student not "at attendance in the school" cannot be in "recess" thereat. A "recess," as the concept is embraced in the
phrase "at attendance in the school," contemplates a situation of temporary adjournment of school activities where the student still remains within call of
his mentor and is not permitted to leave the school premises, or the area within which the school activity is conducted. Recess by its nature does not
include dismissal. 18 Likewise, the mere fact of being enrolled or being in the premises of a school without more does not constitute "attending school" or
being in the "protective and supervisory custody' of the school, as contemplated in the law.
Upon the foregoing considerations, we hold that Jimmy B. Abon cannot be considered to have been "at attendance in the school," or in the custody of
BCF, when he shot Napoleon Castro. Logically, therefore, petitioners cannot under Art. 2180 of the Civil Code be held solidarity liable with Jimmy B. Abon
for damages resulting from his acts.
Besides, the record shows that before the shooting incident, Roberto B. Ungos ROTC Unit Commandant, AFP, had instructed Jimmy B. Abon "not to leave
the office and [to keep the armory] well guarded." 19 Apart from negating a finding that Jimmy B. Abon was under the custody of the school when he
committed the act for which the petitioners are sought to be held liable, this circumstance shows that Jimmy B. Abon was supposed to be working in the
armorywith definite instructions from his superior, the ROTC Commandant, when he shot Napoleon Castro.
Petitioners also raise the issue that, under Art. 2180 of the Civil Code, a school which offers both academic and technical/vocational courses cannot be
held liable for a tort committed by a student enrolled only in its academic program; however, considering that Jimmy B. Abon was not in the custody of
BCF when he shot Napoleon Castro, the Court deems it unnecessary to pass upon such other issue. 20
WHEREFORE, the decision appealed from is hereby REVERSED in so far as it holds petitioners solidarily liable with Jimmy B. Abon for his tortious act in
the killing of Napoleon Castro. No costs.
SO ORDERED.
Page | 114
VICARIOUS LIABILITY OF PROPRIETOR OF A BUILDING
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely,
GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.
RESOLUTION
CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals
in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30
September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since
the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of
Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still
resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring
shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a
daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the
former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by
the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private
respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August
17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period
to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the
appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but
this was denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of
time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the
rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for
appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration,
promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to
file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the
Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643],
reiterated the rule and went further to restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule,
and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution
in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file
motions for new trial or reconsideration is, as yet, not strictly enforceable.
Page | 115
Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the
grace period, which expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the
expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length
of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners
cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the
reglementary period.
Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-
publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated.
Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can
be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep
abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the
advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law
journals.
This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding
petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the
damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only
they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the
doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.
Page | 116

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Based on the syllabus of Judge Edilu P.

G.R. No. 107356 March 31, 1995

SINGAPORE AIRLINES LIMITED, petitioner,

3. The sum of Fifty Thousand Pesos (P50,000.00) as moral damages;

5. The cost of suit.

The defendant's counterclaim is hereby dismissed.

The instant appeal is impressed with merit.

FAR EASTERN SHIPPING COMPANY, petitioner,

G.R. No. 130150 October, 1998

MANILA PILOTS ASSOCIATION, petitioner,

More particularly, the second paragraph of Section 2, Rule 42 provides:

xxx xxx xxx

AGAINST FORUM SHOPPING

VERIFICATION AND CERTIFICATION

in compliance with Section 4(e), Rule 45 in relation

to Section 2, Rule 42 of the Revised Rules of Civil Procedure

xxx xxx xxx

xxx xxx xxx

Besides, in G.R. 130068, it prefaces its discussions thus —

Similarly, in G.R. No. 130150, it states —

xxx xxx xxx

I. G.R. No. 130068

xxx xxx xxx

A Yes, your Honor.

Q And you gave this order to the captain of the vessel?

A Yes, your Honor.

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

Q Up to the time it was actually docked at the pier, is that correct?

xxx xxx xxx

Atty. Del Rosario (to the witness)

Court (to the witness)

A Yes sir, after the pier was damaged.

xxx xxx xxx

A You mean the action of Capt. Gavino or his condition?

A No sir, it was a usual docking.

A Yes sir, that is right.

xxx xxx xxx

A Yes sir, it is possible.

Q Did you know that the 2 shackles were dropped?

A Yes sir, I knew that.

A No sir, after the incident, that was my assumption.

Q Did you come to know later whether that presumption is correct?

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

xxx xxx xxx

Solicitor Abad (to the witness)

A What is the meaning of panel?

A This command was executed by the third mate and boatswain.

Court (to the witness)

A No sir, I did not observe.

A That is right, sir.

xxx xxx xxx

Solicitor Abad (to the witness)

A Yes sir, that is right.

A Yes sir, that is right.

Court (to the witness)

A Yes sir, that is right.

xxx xxx xxx

Solicitor Abad (to the witness)

A No sir, there was no imminent danger to the vessel.

A Yes sir, because the anchor dragged on the ground later.

A Yes sir, I was alerted but there was no danger.