Phoenix Construction, Inc. vs. Intermediate Appellate Court No. L-65295. March 10,1987.

(148 SCRA 353) PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents. Torts; Evidence; Private respondent had no curfew pass during the night the accident took place. The certification by a major assigned in Pampanga that respondent has a curfew pass is not credible as it lacks the necessary details. Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Campo Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass. Same; Same; Information gathered by a traffic investigator from persons who saw how the accident took place is admissible as part of the res gestae.We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocity at which Dionisio was travelling just before impact with the Phoenix dump truck. Same; Same; Petitioner's theory that respondent deliberately shut off his headlights as he turned the intersection where his car later on bumped a parked dumptruck is more credible than respondent's claim that his car's lights suddenly turned off.A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off his headlights even before he reached the intersection so as not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered by private respondent Dionisioi.e., that he had his headlights on but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at "bright" split seconds before contact with the dump truck. Same; Same; The fact that a driver smelled of liquor does not necessarily mean he is drunk.A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. There simply is not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affect different people differently.

Same; The theory of petitioners that the negligence of the truck driver in parking his truck on the street without any early warning devices is merely a passive and static condition, while the negligence of the car driver in ramming against the truck was the efficient, intervening cause, is a theory that has already been almost entirely discredited.The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that private respondent Dionisio's negligence was an "efficient intervening cause," and that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in various jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition" which the petitioners would have us adopt have already been "almost entirely discredited." Professors Prosser and Keeton make this quite clear: x x x. Same; The improper parking of truck created an unreasonable risk for anyone driving on that street for which the truck driver should be held responsible as the negligence of a car driver bumping that truck was no more than a forseeable consequence of the risk created by the truck driver.We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in all probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause. What the petitioners describe as an "intervening cause" was no more than a foreseeable consequence of the risk created by the negligent manner in which the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. Same; Negligence of car driver who bumps an improperly parked truck is merely contributory.We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines). Same; Doctrine of "last clear chance" is a common-law theory adopted to mitigate the harshness of the "contributory negligence of the plaintiff rule under which in common-law countries plaintiff is barred from any recovery, unlike in our system of law where the Civil Code expressly states that it will merely reduce the amount to be recovered.Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff s negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. Same; Doctrine of last clear chance in common law cannot be applied as a general rule in negligence cases in our civil law system.Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law

jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligencethe plaintiffs or the defendant'swas the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff s and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners' proposition must tend to weaken the very bonds of society. Same; Employer's failure to exercise vigilance over its employee evident from the improper parking of the truck on the street at night along employee's residence.Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix. Same; Contributory negligence may result in 20% reduction of damages. Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, we believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarily liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from Carbonel. We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court. PETITION for review of the decision of the Intermediate Appellate Court. The facts are stated in the opinion of the Court. FELICIANO, J.: In the early morning of 15 November 1975at about 1:30 a.m.private respondent Leonardo Dionisio was on his way homehe lived in 1214-B Zamora Street, Bangkal, Makatifrom a cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation. During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2- meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio

claimed that he tried to avoid a collision by swerving his car to the lef t but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures. Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due care in the selection and supervision of the dump truck driver. The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter: "(1) To pay plaintiff jointly and severally the sum of P15,000.00 for hospital bills and the replacement of the lost dentures of plaintiff; (2) To pay plaintiff jointly and severally the sum of P150,000.00 as loss of expected income for plaintiff brought about the accident in controversy and which is the result of the negligence of the defendants; (3) To pay the plaintiff jointly and severally the sum of P100,000.00 as moral damages for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man; mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation, feeling of economic insecurity, and the untold sorrows and frustration in life experienced by plaintiff and his family since the accident in controversy up to the present time; (4) To pay plaintiff jointly and severally the sum of P10,000.00 as exemplary damages for the wanton disregard of defendants to settle amicably this case with the plaintiff before the filing of this case in court for a smaller amount. (5) To pay the plaintiff jointly and severally the sum of P4,500.00 due as and for attorney 's fees; and (6) The cost of suit." (Italics supplied) Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed the decision of the trial court but modified the award of damages to the f ollowing extent: 1. The award of P1 5,000.00 as compensatory damages was reduced to P6,460.71, the latter being the only amount that the appellate court found the plaintiff to have proved as actually sustained by him; 2. The award of P1 50,000.00 as loss of expected income was reduced to P100,000.00, basically because Dionisio had voluntarily resigned his job such that, in the opinion of the appellate court, his loss of income "was not solely attributable to the accident in question;" and 3. The award of P100,000.00 as moral damages was held by the appellate court as excessive and unconscionable and hence reduced to P50,000.00. The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs remained untouched. This decision of the Intermediate Appellate Court is now bef ore us on a petition for review. Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that there

was negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further mention of it. We have examined the record both bef ore the trial court and the Intermediate Appellate Court and we find that both parties had placed into the record sufficient evidence on the basis of which the trial court and the appellate court could have and should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without having to remand it back to the trial court after eleven years, compels us to address directly the contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel. There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident. As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony "of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatment immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them along with the contents of pockets together with Patrolman Cuyno.1 Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass. On the second issuewhether or not Dionisio was speeding home that night both the trial court and the appellate court were completely silent. The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accident almost immediately after it occurred, the police station where he was based being barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights on.2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per hour and had just crossed the intersection of General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just before the collision took place.3 Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fall within any of the recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through official information and had not been given by the informants pursuant to any duty to do so. Private respondent's objection fails to take account of the fact that the

testimony of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule4 but rather as part of the res gestae.5 Testimonial evidence under this exception to the hearsay rule consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as to render inoperative the normal reflective thought processes of the observer and hence made as a spontaneous reaction to the occurrence or event, and not the result of reflective thought.6 We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocity at which Dionisio was travelling just before impact with the Phoenix dump truck. A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off his headlights even bef ore he reached the intersection so as not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered by private respondent Dionisioi.e., that he had his headlights on but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at "bright" split seconds before contact with the dump truck. A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition.7 This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence.8 There simply is not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may aff ect dif f erent people dif f erently. The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane. Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump truck was parkedin other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver' s negligence. The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that private respondent Dionisio's negligence was an "efficient intervening cause," and that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in various jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition" which the petitioners would have us adopt have already been "almost entirely discredited." Professors Prosser and Keeton make this quite clear:

"Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm and the existing "conditions" upon which that cause operated. If the defendant has created only a passive static condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. The defendant who spills gasoline about the premises creates a "condition," but the act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has created, the defendant will not escape responsibility. Even the lapse of a considerable time during which the "condition" remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who falls into it a month afterward. "Cause" and "condition" still find occasional mention in the decisions,; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between "cause" and "condition" which is important, but the nature of the risk and the character of the intervening cause. "9 We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in all probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause. What the petitioners describe as an "intervening cause" was no more than a foreseeable consequence of the risk created by the negligent manner in which the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Prosser and Keeton: "Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and customary wind arising later will spread it beyond the defendant's own property, and therefore to take precautions to prevent that event. The person who leaves the combustible or explosive material exposed in a public place may foresee the risk of fire from some independent source. x x x In all of these cases there is an intervening cause combining with the defendant's conduct to produce the result, and in each case the defendant's negligence consists in failure to protect the plaintiff against that very risk. Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility. Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on the road or a railroad track should foresee that a vehicle or a train will run into it; x x x. The risk created by the defendant may include the intervention of the foreseeable negligence of others. x x x [T]he standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the

plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is negligently driven; and one who parks an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. - - -"10 We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines). Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rulethat of contributory negligence.12 The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff s negligence was relatively minor as compared with the wrongful act or omission of the defendant.13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so.14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines.15 Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligencethe plaintiff s or the defendant'swas the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff s and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners' proposition must tend to weaken the very bonds of society. Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix. Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand,17 we believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarily liable therefor to the former. The award of exemplary

damages and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from Carbonel.18 We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court. WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20% of such amount. Costs against the petitioners. SO ORDERED. Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur. Melencio-Herrera, J., on official leave. Decision modified. Notes.In a serious physical injuries case resulting from a collision between two motor vehicles, the conviction upon a plea of guilt of the driver of one of the vehicles cannot be used as an argument for the acquittal of the driver of the other vehicle, if there is sufficient evidence that the latter drove his vehicle in a careless, reckless and imprudent manner which resulted in serious injuries to the complainant. (People vs. De la Merced, 7 SCRA 291.) A motor vehicle owner is not an absolute owner against all damages raised by its driver. The owner's responsibility ceases once it proves that it has observed the diligence of a good father of a family to prevent the damage. (Ramos vs. Pepsi Cola Bottling Co. of the P.I., 19 SCRA 294.) Vergara vs. Court of Appeals No. L-77679. September 30,1987 (154 SCRA 564) VICENTE VERGARA, petitioner, vs. THE COURT OF APPE ALS and AM ADEO AZARCON, respondents. Torts; Damages; Quasi-delict; Requisites of a quasi-delict These requisites of a quasi-delict are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose acts he must respond, was guilty; and (3) the connection of cause and effect between such negligence and the damages. Same; Same; Negligence; Common Carriers; Defective brakes cannot be considered fortuitous in character.A mishap caused by defective brakes cannot be considered as fortuitous in character. Certainly, the defects were curable and the accident preventable. Same; Same; Same; Presumption of negligence must be overcome by evidence.The petitioner failed to adduce any evidence to overcome the disputable presumption of negligence on his part in the selection and supervision of his driver. RESOLUTION

Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation, alleging that said cargo truck involved in the vehicular accident, belonging to the petitioner, was insured by the third party defendant insurance company. Petitioner asked that the latter be ordered to pay him whatever amount he may be ordered by the court to pay to the private respondent. The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals, the latter court affirmed in toto the decision of the trial court, which ordered petitioner to pay, jointly and severally with Travellers Insurance and Surety Corporation, to the private, respondent the following: (a) P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third party complaint, the insurance company was sentenced to pay to the petitioner the following: (a) P50,000.00 for third party liability under its comprehensive accident insurance policy; and (b) P3,000.00 for and as attorney's fees. Hence, this petition for review on certiorari. Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not tenable. It was established by competent evidence that the requisites of a quasi-delict are present in the case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose acts he must respond, was guilty; and (3) the connection of cause and effect between such negligence and the damages. It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner. The issue of whether or not this act or omission can be considered as a "negligent" act or omission was passed upon by the trial court. The findings of said court, affirmed by the respondent court, which we are not prepared to now disturb, show that the fact of occurrence of the "vehicular accident" was sufficiently established by the policy report and the testimony of Patrolman Masiclat. And the fact of negligence may be deduced from the surrounding circumstances thereof. According to the police report, "the cargo truck was travelling on the right side of the road going to Manila and then it crossed to the center line and went to the left side of the highway; it then bumped a tricycle; and then another bicycle; and then said cargo truck rammed the storewarehouse of the plaintiff."2 According to the driver of the cargo truck, he applied the brakes but the latter did not work due to mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes can not be considered as fortuitous in character. Certainly, the defects were curable and the accident preventable. Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of negligence on his part in the selection and supervision of his driver. Based on the foregoing finding by the respondent Court that there was negligence on the part of the petitioner, the petitioner's contention that the respondent court erred in awarding private respondent actual, moral and exemplary damages as well as attorney's fees and costs, is untenable. ACCORDINGLY, the petition is DENIED. SO ORDERED.

PADILLA, J.: Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur. An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private respondent against petitioner. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on" the store-residence of the private respondent, causing damages thereto which were inventoried and assessed at P 53,024.22. In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte operated said cargo truck in a very diligent (and) careful manner; that the steering wheel refused to respond to his effort and as a result of a blown-out tire and despite application of his brakes, the said cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident was an act of God for which he cannot be held liable.''1 Petition denied. Radio Communications of the Phils., Inc. vs. Court of Appeals G.R. No. 79578. March 13, 1991 (195 SCRA 147) RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner, vs. HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES TIMAN, respondents.

Commercial Law; RCPI, is engaged in a business affected with public interest, as such, it is bound to exercise that degree of diligence expected of it in the performance of its obligations.We fully agree with the appellate courts endorsement of the trial courts conclusion that RCPI, a corporation dealing in telecommunications and offering its services to the public, is engaged in a business affected with public interest. As such, it is bound to exercise that degree of diligence expected of it in the performance of its obligation. Damages; Petitioner RCPI is liable for moral and exemplary damages because of its gross negligence or carelessness in transmitting a condolence message expressing sadness and sorrow in a Happy Birthday card and placed inside a Christmasgram envelope.Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent court are persuasive. x x x When plaintiffs placed an order for transmission of their social condolence telegram, defendant did not inform the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant accepted through its authorized agent or agency the order and received the corresponding compensation therefor. Defendant did not comply with its contract as intended by the parties and instead of transmitting the condolence message in an ordinary form, in accordance with its guidelines, placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness. Under the circumstances, We cannot accept the defendants plea of good faith predicated on such exhaustion of social condolence forms. Gross negligence or carelessness can be attributed to defendant-appellant in not supplying its various stations with such sufficient and adequate social condolence forms when it held out to the public sometime in January, 1983, the availability of such social condolence forms and accepted for a fee the transmission of messages on said forms. Knowing that there are no such forms as testified to by its Material Control Manager Mateo Atienza, and entering into a contract for the transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud or malice. x x x Same; Exemplary Damages; RCPI gross carelessness or negligence constitute wanton misconduct, hence, exemplary damages may be awarded to the aggrieved party.RCPIs argument that it cannot be held liable for exemplary damages, being penal or punitive in character, is without merit. We have so held in many cases, and oddly, quite a number of them likewise involved the herein petitioner as the transgressor. x x x In contracts and quasicontracts, exemplary damages may be awarded if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross negligence on the part of RCPI personnel in transmitting the wrong telegram, of which RCPI must be held liable. Gross carelessness or negligence constitutes wanton misconduct. x x x punitive damages may be recovered for willful or wantonly negligent acts in respect of messages, even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. v. Stroude, 91 SW 18; West v. Western U. Tel. Co., 17 P 807; Peterson v. Western U. Tel. Co., 77 NW 985; Brown v. Western U. Tel. Co., 6 SE 146). Thus, punitive damages have been recovered for mistakes in the transmission of telegrams (Pittman v. Western Union Tel. Co., 66 SO 977; Painter v. Western Union Tel. Co., 84 SE 293) (italics supplied). PETITION for certiorari to review the decision of the Court of Appeals. Magsino, J. The facts are stated in the opinion of the Court. Salalima, Trenas, Pagaoa & Associates for petitioner. Paul P. Lentejas for private respondents. SARMIENTO, J.: A social condolence telegram sent through the facilities of the petitioner gave rise to the present petition for review on certiorari assailing the decision 1 of the respondent Court of Appeals which affirmed in toto the judgment2 of the trial court, dated February 14, 1985, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered: 1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual and compensatory damages; P10,000.00 as moral damages and P5,000.00 as exemplary damages.

2. Awarding of attorneys fees in the sum of P5,000.00. Costs against the defendant. SO ORDERED.3 The facts as gleaned from the records of the case are as follows: On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a telegram of condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City, through petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at Cubao, Quezon City, to convey their deepest sympathy for the recent death of the mother-inlaw of Hilario Midoranda,4 to wit: MR & MRS. TRINIDAD, CALBAYOG CITY HILARIO MIDORANDA

MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST SYMPATHY TO YOU AND MEMBERS OF THE FAMILY. MINER & FLORY.5 The condolence telegram was correctly transmitted as far as the written text was concerned. However, the condolence message as communicated and delivered to the addressees was typewritten on a Happy Birthday card and placed inside a Christmasgram envelope. Believing that the transmittal to the addressees of the aforesaid telegram in that nonsuch manner was done intentionally and with gross breach of contract resulting to ridicule, contempt, and humiliation of the private respondents and the addressees, including their friends and relatives, the spouses Timan demanded an explanation. Unsatisfied with RCPIs explanations in its letters, dated March 9 and April 20, 1983, the Timans filed a complaint for damages.6 The parties stipulated at the pre-trial that the issue to be resolved by the trial court was: WHETHER or not the act of delivering the condolence message in a Happy Birthday card with a Christmasgram envelope constitutes a breach of contract on the part of the defendant. If in the affirmative, whether or not plaintiff is entitled to damages.7 The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by the Court of Appeals. RCPI now submits the following assignment of errors: I THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL AND COMPENSATORY DAMAGES IN THE AMOUNT OF P30,848.05. II THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL DAMAGES IN THE AMOUNT OF P10,000.00. III THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY EXEMPLARY DAMAGES IN THE AMOUNT OF P5,000.00. IV THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ATTORNEYS FEES IN THE AMOUNT OF P5,000.00 PLUS COSTS OF SUIT.8

The four assigned errors are going to be discussed jointly because they are all based on the same findings of fact. We fully agree with the appellate courts endorsement of the trial courts conclusion that RCPI, a corporation dealing in telecommunications and offering its services to the public, is engaged in a business affected with public interest. As such, it is bound to exercise that degree of diligence expected of it in the performance of its obligation.9 One of RCPIs main arguments is that it still correctly transmitted the text of the telegram and was received by the addressees on time despite the fact that there was error in the social form and envelope used.10 RCPI asserts that there was no showing that it has any motive to cause harm or damage on private respondents: Petitioner humbly submits that the error in the social form used does not come within the ambit of fraud, malice or bad faith as understood/defined under the law.11 We do not agree. In a distinctly similar case,12 and oddly also involving the herein petitioner as the same culprit, we held: Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes to transmit the message accurately x x x As a corporation, the petitioner can act only through its employees. Hence the acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable directly for the acts of its employees in the pursuit of petitioners business is to deprive the general public availing of the services of the petitioner of an effective and adequate remedy.13 Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to convey a message of sorrow and sympathy. Precisely, it is denominated telegram of condolence because it tenders sympathy and offers to share anothers grief. It seems out of this world, therefore, to place that message of condolence in a birthday card and deliver the same in a Christmas envelope for such acts of carelessness and incompetence not only render violence to good taste and common sense, they depict a bizarre presentation of the senders feelings. They ridicule the deceaseds loved ones and destroy the atmosphere of grief and respect for the departed. Anyone who avails of the facilities of a telegram company like RCPI can choose to send his message in the ordinary form or in a social form. In the ordinary form, the text of the message is typed on plain newsprint paper. On the other hand, a social telegram is placed in a special form with the proper decorations and embellishments to suit the occasion and the message and delivered in an envelope matching the purpose of the occasion and the words and intent of the message. The sender pays a higher amount for the social telegram than for one in the ordinary form. It is clear, therefore, that when RCPI typed the private respondents message of condolence in a birthday card and delivered the same in a colorful Christmasgram envelope, it committed a breach of contract as well as gross negligence. Its excuse that it had ruun out of social condolonce cards and envelopes14 is flimsy and unacceptable. It could not have been faulted had it delivered the message in the ordinary form and reimbursed the difference in the cost to the private respondents. But by transmitting it unfittinglythrough other special forms clearly, albeit outwardly, portraying the opposite feelings of joy and happiness and thanksgivingRCPI only exacerbated the sorrowful situation of the addressees and the senders. It bears stress that this botchery exposed not only the petitioners gross negligence but also its callousness and disregard for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must be held liable for damages. It is not surprising that when the Timans telegraphic message reached their cousin, it became the joke of the Midorandas friends, relatives, and associates who thought, and rightly so, that the unpardonable mix-up was a mockery of the death of the mother-in-law of the senders cousin. Thus it was not unexpected that because of this unusual incident, which caused much embarrassment and distress to respondent Minerva Timan, he suffered nervousness and hypertension resulting in his confinement for three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City.15

The petitioner argues that a court cannot rely on speculation, conjectures or guess work as to the fact and amount of damages, but must depend on the actual proof that damages had been suffered and evidence of the actual amount.16 In other words, RCPI insists that there is no causal relation of the illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a question of fact. The findings of fact of the trial court and the respondent court concur in favor of the private respondents. We are bound by such findingsthat is the general rule well-established by a long line of cases. Nothing has been shown to convince us to justify the relaxation of this rule in the petitioners favor. On the contrary, these factual findings are supported by substantial evidence on record. Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent court are persuasive. x x x When plaintiffs placed an order for transmission of their social condolence telegram, defendant did not inform the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant accepted through its authorized agent or agency the order and received the corresponding compensation therefor. Defendant did not comply with its contract as intended by the parties and instead of transmitting the condolence message in an ordinary form, in accordance with its guidelines, placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness. Under the circumstances, We cannot accept the defendants plea of good faith predicated on such exhaustion of social condolence forms. Gross negligence or carelessness can be attributed to defendant-appellant in not supplying its various stations with such sufficient and adequate social condolence forms when it held out to the public sometime in January, 1983, the availability of such social condolence forms and accepted for a fee the transmission of messages on said forms. Knowing that there are no such forms as testified to by its Material Control Manager Mateo Atienza, and entering into a contract for the transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud or malice. x x x17 RCPIs argument that it can not be held liable for exemplary damages, being penal or punitive in character,18 is without merit. We have so held in many cases, and oddly, quite a number of them likewise involved the herein petitioner as the transgressor. xxx xxx xxx

x x x In contracts and quasi-contracts, exemplary damages may be awarded if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross negligence on the part of RCPI personnel in transmitting the wrong telegram, of which RCPI must be held liable. Gross carelessness or negligence constitutes wanton misconduct. xxx xxx xxx

x x x punitive damages may be recovered for wilful or wantonly negligent acts in respect of messages, even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. v. Stroude, 91 SW 18; West v. Western U. Tel. Co., 17 P 807; Peterson v. Western U. Tel. Co., 77 NW 985; Brown v. Western U. Tel. Co., 6 SE 146). Thus, punitive damages have been recovered for mistakes in the transmission of telegrams (Pittman v. Western Union Tel. Co., 66 SO 977; Painter v. Western Union Tel. Co., 84 SE 293) (italics supplied).19 We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has reached this Court in which the petitioner was time and again held liable for the same causes as in the present casebreach of contract and gross negligencethe ineluctable conclusion is that it has not in any way reformed nor improved its services to the public. It must do so now or else next time the Court may be constrained to adjudge stricter sanctions. WHEREFORE, premises considered, the AFFIRMED in toto. Costs against the petitioner. SO ORDERED. Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur. decision appealed from is

Decision affirmed. Note.Inclusion of extraneous and libelous matter in telegraphic message constitutes breach of contract. (Radio Communications of the Philippines vs. Court of Appeals, 143 SCRA 657.) St. Francis High School vs. Court of Appeals G.R. No. 82465. February 25, 1991 (194 SCRA 341) ST. FRANCIS HIGH SCHOOL, as represented by SPS. FER-NANDO 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. Civil Law; Negligence; 4th paragraph Article 2180 of the Civil Code; When employer held liable for the negligence of its employees; Rule.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. Same; Same; Same; Same; Employees were not in the actual performance of their assigned tasks; 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. Same; Same; Same; Same; Negligence attributed to the employees not proven; Case at bar.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. Same; Same; Same; Same; Liability; Moral Damages; Where no negligence was established no moral damages can be recovered.Moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. PADILLA, J., Dissenting: Civil Law; Negligence; Test.Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on the doer TO TAKE PRECAUTION against its mischievous results and the failure to do so constitutes negligence. Same; Same; Same; Under this test petitioners negligence established; Case at bar.Despite awareness that the waters in the area were deep, petitionersteachers did not take concrete steps to make sure their wards did not stray too far and too deeply. Even if they were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first tested the waters, so to speak, to ensure which parts thereof were safe for swimming purposes. However, this was not the case for as testified to by petitioner de Chavez, they admitted that they did not even go to the water to check its depth although they were aware that some parts of it were deep. At best, it appears that only oral safety instructions were imparted to the young excursionists. But, what I find most disturbing is the fact that at the time the trouble arose, Vinas and de Chavez, the male teachers who were supposed to ensure the childrens safety, being physical education instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, at his house getting some foods (sic) and drinks. The Court a quo even

went as far as to say that they were somewhere and as testified to by plaintiffs witness they were having a drinking spree! Same; Same; Article 2176 of the Civil Code in relation to paragraphs (1) and (5) of Article 2180 of the Civil Code; Construed.The negligence of the employee in causing injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the establishment. While this presumption is not conclusive, it may be overcome only by clear and convincing evidence 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 employees causing the injury or damage. Same; Same; Same; Same; Case at bar.The record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion and had, in fact, been invited to attend. As the majority see it, such knowledge does not in any manner show acquiescence or consent to the holding of the excursion, a view which I do not accept. It seems to me that having known of the forthcoming activity, petitioner Illumin, as school principal, should have taken appropriate measures to ensure the safety of his students. Having preferred to remain silent, and even indifferent, he now seeks excuse from such omission by invoking his alleged lack of consent to the excursion. But it is precisely his silence and negligence in performing his role as principal head of the school that must be construed as an implied consent to such activity xxxIagree with the respondent court that no proof was presented to absolve the owner and/or manager. Same; Same; Liability; Moral Damages; Where negligence results to the death of the victim moral damages recoverable; Basis2nd paragraph Article 2219 Civil Code.Moral damages may be recovered in quasi-delicts causing physical injuries. PETITION for review of the decision of the Court of Appeals. Lombos-De la Fuente, J. The facts are stated in the opinion of the Court. Jose C. Flores, Jr. for petitioners. Jovito E. Talabong for private 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 attorneys 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 attorneys 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) The complaint alleged that Ferdinand Castillo, then a fresh-man 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. Ferdinands 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, Ferdi-nand went on with them to the beach. During the picnic and while the students, including Ferdi-nand, 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. Carmel 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 Lacan-dula, 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 sons drowning, respondents prayed of actual, moral and exemplary damages, attorneys fees and expenses for litigation. The trial court found in favor of the respondents and against petitionersteachers 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 attorneys 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. 29-30, Rollo) xxx xxx xxx.

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 solidarity 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 Ferdi-nand Castillo in favor of plaintiffs-appellants against all the defen-dants. (pp. 56-57, Rollo) The Court of Appeals ruled: 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 defendantsteachers who, as such, were charged with the supervision of the children during the picnic, the St. Francis High School and the school principal, Benjamin Illu-min, 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-curricu-lar 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 defendantsteachers 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 victims 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:

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 Illu-min 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 Illu-min as

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 victims 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-vis the supervision of the victims 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 defendantsteachers, 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. 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 oclock in the morning up to 12:00 oclock 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. 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 examina tion? 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 dont know if she actually permitted her son although she said she cooked adobo so he could join. (Italics 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 respondents son. Article 2180, par. 4 states that: The obligation imposed by article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. 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-curricu-lar 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 will 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. 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. 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 defendants wrongful act or omission. Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages can be assessed against them. While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the required diligence. Hence, the claim for moral or exemplary damages becomes baseless. PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their counterclaim, there being no merit, is hereby AFFIRMED. SO ORDERED. Sarmiento and Regalado, JJ., concur. Melencio-Herrera (Chairman), J., I concur in the dissent of Justice Padilla. Padilla, J., See dissenting opinion. PADILLA, J., Dissenting Opinion: I regret that I can not concur with the majority. I believe that the reversal of respondent appellate courts decision gives rise to a situation which was neither contemplated nor intended by the applicable laws. I refer more particularly to the fact that the ponencia has left private respondents-spouses with no one to hold liable for the untimely demise of their son. On the other hand, they have, to my mind, been wronged and they should at least be recompensed for their sufferings. For this and other reasons stated hereunder. I dissent. The issues, as adopted by the ponencia from the record, are as follows: 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.1 In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception of Aragones and Jaro. As to these two, respondent court absolved them from liability for their having satisfactorily demonstrated lack of participation in the negligence of their colleagues. I am in agreement with said conclusion. But I also agree with the respondent court in its finding that Tirso de Chavez, Luisito Vias, Connie Arguio and Patria Cadiz failed to exercise DILIGENT SUPERVISION over the children during the illfated excursion. I may concede, albeit with reservation, that the afore-men-tioned petitioners may not have been negligent in finding ways and means to revive the young Castillo AFTER the drowning incident. Their application of first-aid measures may have failed to revive him but the petitioners had fully exhausted their efforts to save the deceased. This concession, however, is given with hesitation, for there is indication in the record that petitioners may have tarried too long in securing immediate medical attention for the deceased. I refer to the trial courts finding that it still took the jeep which brought Ferdinand Castillo to the poblacion six (6) minutes before it finally moved to await the other teachers.2 All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of diligence on the part of the petitioners-teachers BEFORE the unfortunate incident took place. Despite awareness that the waters in the area were deep, petitioners-teachers did not take concrete steps to make sure their wards did not stray too far and too deeply. Even if they were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first tested the waters, so to speak, to ensure which parts thereof were safe for swimming purposes. However, this was not the case for as testified to by petitioner de Chavez, they admitted that they did not even go to the water to check its depth although they were aware that some parts of it were deep.3 At best, it appears that only oral safety instructions were imparted to the young excursionists. But, what I find most disturbing is the fact that at the time the trouble arose, Vias and de Chavez, the male teachers who were supposed to ensure the childrens safety, being physical education instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, at his house getting some foods (sic) and drinks. The Court a quo even went as far as to say that they were somewhere and as testified to by plaintiffs witness they were having a drinking spree!4 It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer to as DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps taken to revive the deceased may be considered adequate, despite my reservations, but the over-all lack of diligence on the part of petitioners-teachers suffices to put them within the standards set by this Court in determining the existence of negligence. As held in Hedy Gan y Yu vs. Court of Appeals, et al., the test in determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on the doer TO TAKE PRECAUTION against its mischivous results and the failure to do so constitutes negligence.5 The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as represented by petitioners-spouses Fernando Nantes and Rosario Lacandula. The majority would like to emphasize the fact that the unfortunate incident having occurred during a purely private affair, the teachers involved therein were not in the actual performance of their assigned tasks. Consequently, any act or omission caused by them cannot bind their employer, petitioner St. Francis High School. I take exception to this proposition. Although the excursion may not have been attended by the appropriate school authorities, the presence or stamp of authority of the school nevertheless pervaded by reason of the participation not of one but of several teachers, the petitioners. As found by the court a quo, the excursion was an activity organized by the teachers themselves, for the students and to which the student, NATURALLY, acceded.6

Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion and had, in fact, been invited to attend. As the majority see it, such knowledge does not in any manner show acquiescence or consent to the holding of the excursion, a view which I do not accept. It seems to me that having known of the forthcoming activity, petitioner Illumin, as school principal, should have taken appropriate measures to ensure the safety of his students. Having preferred to remain silent, and even indifferent, he now seeks excuse from such omission by invoking his alleged lack of consent to the excursion. But it is precisely his silence and negligence in performing his role as principal head of the school that must be construed as an implied consent to such activity. As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of his principal (the school) or its representatives, the petitioners-spouses Nantes and Lacandula. Consequently, and as found by the respondent court. Article 2176 in conjunction with Article 2180, paragraphs (1) and (5) are applicable to the situation. In the application of these provisions, the negligence of the employee in causing injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the establishment. While this presumption is not conclusive, it may be overcome only by clear and convincing evidence 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 employees causing the injury or damage. I agree with the respondent court that no proof was presented to absolve the owner and/or manager, herein petitioners-spouses Nantes and Lacandula, and Illumin. Thus, as correctly held by the respondent court, they too must be accountable for the death of Ferdinand Castillo. The majority view appears to be apprehensive that employers will be continuously held accountable for misdeeds of their employees committed even when the same are done not in the actual exercise of their duties. I fail to appreciate such apprehensions, which need not arise on the part of employers, so long as the latter have no knowledge of, or give consent to, such act or omission on the part of their employee. Educational institutions have responsibilities which cannot be equated with those of the ordinary employer or business establishment. Such institutions, particularly the primary and secondary schools, hold the tremendous responsibility of exercising supervision over young children. Too often, such schools avoid liabilities, as in the instant case,by invoking the absence of approval on their part for activities that may be held outside school premises or held on a day not a school day. It is about time that such schools realize that theirs is not a mere moneymaking entity or one impersonally established for the sole task of teaching the rudimentary skills of reading, writing and rithmetic. They must consider that their students are children of tender years who are in need of adequate care, continuing attention and guidance. Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only wish to point out the basis for moral damages which is found in Article 2219 of the Civil Code, to wit: Moral damages may be recovered in the following and analogous cases: 1. x x x 2. x x x Quasi-delicts causing physical injuries;

It should be noted that the term physical injuries must not be construed in its penal sense alone but rather in its generic sense, in the spirit of this Courts rulings in Carandang vs. Santiago (51 O.G. 2878) and Madeja vs. Caro, et al., (G.R. No. 51183, 21 December 1983,126 SCRA 293). Thus, the death of private respondents son as a result of petitioners negligence gives rise to an action for quasi-delict which, as provided, entitles the claimant to an award of moral damages. In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the petitioners jointly and severally liable for the death of Ferdinand Castillo. Decision set aside. Portion of the decision affirmed. Note.Under Articles 2176 and 2180 of the Civil Code, liability is based on culpa aquiliana which holds the employer primarily liable for tortious acts of its

employees subject to the defense that the former exercised all the diligence of a good father of a family in the selection and supervision of his employees. (Franco vs. Intermediate Appellate Court, 178 SCRA 331.) China Air Lines, Ltd. vs. Court of Appeals G.R. No. 45985. May 18, 1990 (185 SCRA 449) CHINA AIR LINES, LTD., petitioner, vs. COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, respondents. G.R. No. 46036. May 18, 1990.
*

pay the sum of P10,000.00 by way of nominal damages, without prejudice to the right of Philippine Air Lines, Inc. to recover from Roberto Espiritu reimbursement of the damages that it may pay respondent Jose Pagsibigan. PETITIONS to review the decision of the Court of Appeals. The facts are stated in the opinion of the Court. Balgos & Perez Law Offices for petitioner China Air Lines, Ltd. Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R. No. 46036. Syquia Law Offices for Jose Pagsibigan. REGALADO, J.:

PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners, vs. COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES, LTD., respondents. Actions; Torts; Contracts; Common Carriers; An airline passenger cannot file an action for quasi-delict and then change his theory to breach of contract.It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can not hold CAL liable on a quasidelict, decided on appeal to instead make a sinistral detour, so to speak, by claiming that his action against CAL is based on a breach of contract of carriage. We can not permit respondent Pagsibigan to change his theory at this stage; it would be unfair to the adverse party who would have no more opportunity to present further evidence, material to the new theory, which it could have done had it been aware earlier of the new theory at the time of the hearing before the trial court. Same; Same; Same; Same; Airline cannot be held liable for negligence of employee of its ticketing agent (another airline).There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa aquiliana. As hereinbefore stated, the court a quo absolved CAL of any liability for fault or negligence. This finding was shared by respondent court when it concluded that defendant CAL did not contribute to the negligence committed by therein defendants-appellants PAL and Roberto Espiritu. Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in the selection and supervision of its employees. This argument is obviously misplaced. CAL is not the employer of PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al., we have stressed the need of first establishing the existence of an employer-employee relationship before an employer may be vicariously liable under Article 2180 of the Civil Code. Same; Same; Same; Same; Agency; As employer, PAL is liable for negligence of its employee even if PAL was acting as ticketing agent of CAL.With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely an agent of CAL and that the suit should have been directed against CAL alone. There is no question that the contractual relation between both air lines is one of agency. Suffice it to say, however, that in an action premised on the employees negligence, whereby respondent Pagsibigan seeks recovery for the resulting damages from both PAL and Espiritu without qualification, what is sought to be imposed is the direct and primary liability of PAL as an employer under said Article 2180. Same; Same; Same; Same; Same.PALs main defense is that it is only an agent. As a general proposition, an agent who duly acts as such is not personally liable to third persons. However, there are admitted exceptions, as in this case where the agent is being sued for damages arising from a tort committed by his employee. Same; Same; Employer must rebut presumption of negligence of its employee.Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of the Civil Code. For the failure of PAL to rebut the legal presumption of negligence in the selection and supervision of its employee, it is also primarily liable under Article 2180 of the same code which explicitly provides 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. Same; Amount of damages may be reduced to reasonable level. WHEREFORE, the decision of respondent Court of Appeals is MODIFIED accordingly. China Air Lines, Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and Roberto Espiritu are declared jointly and severally liable to

These consolidated petitions seek the review of the decision of respondent court in CA-G.R. No. 53023-R entitled Jose E. Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and Roberto Espiritu, Defendants-Appellants; China Air Lines, Ltd., Defendant-Appellee,1 the dispositive portion of which declares: WHEREFORE, except for a modification of the judgment in the sense that the award of P20,000.00 in favor of the plaintiff shall be in the concept of nominal damages instead of exemplary damages, and that defendant China Air Lines, Ltd. shall likewise be liable with its two co-defendants in a joint and solidary capacity, the judgment appealed from is hereby affirmed in all other respects, without costs.2 The challenged decision of respondent court contains a synthesis of the facts that spawned these cases and the judgment of the court a quo which it affirmed with modifications, thus: On June 4, 1968, plaintiff Jose E. Pagsibigan, then vice-president and general manager of Rentokil (Phils.) Inc., a local firm dealing in insecticides, pesticides and related services appurtenant thereto, purchased a plane ticket for a Manila-Taipei-Hongkong-Manila flight from the Transaire Travel Agency. The said agency, through its Cecille Baron, contacted the Manila Hotel branch of defendant Philippine Air Lines which at that time was a sales and ticketing agent of defendant China Air Lines. On June 6, 1968, PAL, through its ticketing clerk defendant Roberto Espiritu, cut and issued CAL Ticket No. 017991 for a Manila-Taipei-Hongkong-Manila flight. According to the plane ticket, the plaintiff was booked on CAL CI Flight No. 812 to depart from Manila for Taipei on June 10, 1968 at 1720 hours (5:20 p.m.), Exhibit A. On June 10, 1968, one hour before the scheduled time of the flight as stated in his ticket, the plaintiff arrived at the airport to check in for CI Flight No. 812. Upon arriving at the airport, the plaintiff was informed that the plane he was supposed to take for Taipei had left at 10:20 in the morning of that day. The PAL employees at the airport made appropriate arrangements for the plaintiff to take PALs flight to Taipei the following day, June 11, 1968. The plaintiff took said flight and arrived in Taipei around noontime of the said date. On July 8, 1968, the plaintiff, through counsel, made formal demand on defendant PAL for moral damages in not less than P125,000.00 for what the plaintiff allegedly suffered as a result of his failure to take the flight as stated in his plane ticket. (Exhibit E) After a series of negotiations among the plaintiff, PAL and CAL failed to reach an amicable settlement, the plaintiff instituted this action in the Court of First Instance of Rizal on September 22, 1969. In his complaint, plaintiff prays for the recovery of P125,000.00 as moral damages and P25,000.00 for and as attorneys fees. The moral damages allegedly arose from the gross negligence of defendant Roberto Espiritu in stating on the plane ticket that the time of departure was 1720 hours, instead of 1020 hours which was the correct time of departure in the revised summer schedule of CAL. Plaintiff claims that by reason of his failure to take the plane, he suffered besmirched reputation, embarrassment, mental anguish, wounded feelings and sleepless nights, inasmuch as when he went to the airport, he was accompanied by his business associates, close friends and relatives. He further averred that his trip to Taipei was for the purpose of conferring with a certain Peng Siong Lim, president of the Union Taiwan Chemical Corporation, scheduled at 9:00 a.m. on June 11, 1968.

Defendant Philippine Air Lines alleges in its answer that the departure time indicated by Espiritu in the ticket was furnished and confirmed by the reservation office of defendant China Air Lines. It further avers that CAL had not informed PALs Manila Hotel Branch of the revised schedule of its flight, nor provided it with revised timetable; that when the travel agency sought to purchase the ticket for the plaintiff on CAL CI Flight No. 812 for June 10, 1968, Espiritu who was then the ticketing clerk on duty, checked with the reservation office of CAL on the availability of space, the date and the time of said flight; that CALs Dory Chan informed Espiritu that the departure time of Flight No. 812 on June 10, 1968 was at 5:20 in the afternoon of said date. PAL asserted a cross-claim against CAL for attorneys fees and for reimbursement of whatever amount the court may adjudge PAL to be liable to the plaintiff. Defendant Espiritu adopted the defenses of his co-defendant PAL. Defendant China Air Lines, for its part, disclaims liability for the negligence and incompetence of the employees of PAL. It avers that it had revised its schedule since April 1, 1968, the same to be effective on April 20, 1968, and the said revised schedule was adopted only after proper petition with and approval of the Civil Aeronautics Board of which all airlines, including defendant PAL, were notified; that both printed copies of the international timetable and of the mimeographed notices of the official schedule and flight departure schedules were distributed to all its sales agents, including PAL; that after the effectivity of the new time schedules, PALs Manila Hotel office had been issuing and selling tickets based on the revised time schedule; and that, assuming that the plaintiff is entitled to recover damages, the liability is on PAL and not on CAL. A cross-claim was likewise asserted by CAL against its codefendant PAL. After due trial, the Court a quo rendered judgment laying the blame for the erroneous entry in the ticket as to the time of departure to defendant Roberto Espiritu, ticketing agent of defendant PAL, and that no employee of CAL contributed to such erroneous entry. It was further ruled that the plaintiff had no reason to claim moral damages but may be entitled to recover exemplary damages. The dispositive portion of the decision makes the following adjudication: WHEREFORE, premises considered, judgment is hereby rendered sentencing the defendants Philippine Air Lines, Inc. and Roberto Espiritu, to pay to plaintiff Jose Pagsibigan jointly and severally, by way of exemplary damages, the sum of Twenty Thousand Pesos (P20,000.00) plus Two Thousand Pesos (P2,000.00) as reimbursement for attorneys fees and the costs. The complaint is dismissed with respect to the defendant China Air Lines, Ltd. The cross-claim filed by defendant PAL and Espiritu against defendant CAL as well as the cross-claim filed by the defendant CAL against defendant PAL and Espiritu are also hereby dismissed. 3 From said decision of the court below, all the parties, except China Air Lines, Ltd. appealed to respondent court which, however, sustained the ruling of the trial court denying Pagsibigans claim for moral damages. It concluded that Roberto Espiritu did not act with malice or in bad faith in making a wrong entry of the time of departure on the ticket, and that the mistake committed by Espiritu appears to be an honest one done in good faith. Respondent court also ruled out the claim for exemplary damages for lack of legal basis. Nonetheless, as earlier noted, it awarded Pagsibigan P20,000.00 as nominal damages, under Article 2221 of the Civil Code, for the vindication of a legal wrong committed against him. As regards the liability of the parties, respondent court held: There can be little question as to the liability of PAL and Espiritu for the damage caused to the plaintiff due to the erroneous entry in the plane ticket made by the latter. They seek to justify the erroneous statement as to the time of departure on the ground that such was the time given by Dory Chan to Espiritu when the latter called up for the reservation in favor of plaintiff. Aside from the fact that Dory Chan had vigorously disclaimed having given such information to Espiritu, We are convinced that, as the trial court had found, CAL had no share in the error committed by Espiritu in indicating the time of departure of Flight No. 812. PAL had shown through the testimony of Carmen Ibazeta Gallaga, ticket representative of PAL at the Manila Hotel Office, that they received circulars and timetables of airlines in the PAL main office. It further appears that on two occasions, defendant PAL cut and issued tickets for CAL based on the new schedule even before June 10, 1968. As a matter of

fact, the other entries of time departures in the ticket issued to the plaintiff are in accordance with the revised schedule, and that the only error therein was with respect to the departure from Manila on June 10, 1968. However, in proving that the fault lied with Espiritu, defendant CAL derives no solace nor gains an advantage. It may not claim exemption from liability by reason thereof. Espiritu was an employee of PAL and whatever negligence was committed by him is attributable to PAL. It is an admitted fact that PAL is an authorized agent of CAL. In this relationship, the responsibility of defendant PAL for the tortious act of its agent or representative is inescapable. x x x xxx A similar principle is recognized in our Civil Code in its Art. 2180 x x x. Unlike in the doctrine of respondeat superior, however, the Civil Code permits the employer to escape this liability upon proof of having observed all the diligence of a good father of a family to prevent the damage. We find the evidence of defendant CAL to be insufficient to overcome the presumption of negligence on its part for the act done by defendant Roberto Espiritu. (Italics supplied) The liability for the damage sustained by the plaintiff should, therefore, be borne by all of the defendants in a joint and solidary capacity (Art. 2194). The liability of an employer under Art. 2180 is primary and direct. x x x xxx It appearing that defendant CAL, as employer or principal, did not contribute to the negligence committed by defendants PAL and Roberto Espiritu, its liability to the plaintiff could be passed on to said defendants. Defendant CAL, however, did not take an appeal and did not, therefore, take exception to the dismissal of its cross-claim against defendants PAL and Espiritu. This serves as an obstacle for a rendition of judgment favorable to CAL on its said counterclaim.4 In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air Lines, Ltd. (CAL) relied on the following grounds: 1. A principal cannot be held liable, much less solidarily, for the negligence of the sub-agent, where the former never participated in, ratified or authorized the latters act or omission. 2. Dismissal of the cross-claim of petitioner against the private respondents Philippine Air Lines, Inc. and Roberto Espiritu will not prevent the release of the petitioner from liability to the private respondent Pagsibigan. 3. The award of damages was unwarranted both legally and factually.5 On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu made the following submissions in G.R. No. L-46036, to wit: 1. The respondent Court of Appeals erred in not holding that respondent China Air Lines, Ltd., being the principal, is solely liable to respondent Pagsibigan. 2. The respondent Court of Appeals erred in awarding respondent Pagsibigan the sum of P20,000.00 as nominal damages.6 In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that CALs liability is based on breach of contract of transportation which was the proximate result of the negligence and/or error committed by PAL and Espiritu; that even assuming that CAL has no share in the negligence of PAL and Espiritu, the liability of CAL does not cease upon proof that it exercised all the diligence of a good father of a family in the selection and supervision of its employees. Traversing such contentions, CAL argues that it can not be made liable under Article 2180 of the Civil Code because of the absence of employer-employee relationship between it and PAL. On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL is liable under Article 1909 of the said code which holds an agent responsible not only for fraud but also for negligence which shall be judged

with more or less rigor by the courts, according to whether the agency was or was not for a compensation. PAL, however, maintains that for lack of privity with Pagsibigan, the suit for breach of contract should have been directed against CAL. What surfaces as a procedural maneuver taken by respondent Pagsibigan in the course of the proceedings in these cases has confused the real issues in the controversy subject of both petitions before us. Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the same time, that is, to enforce the civil liability of CAL for breach of contract and, likewise, to recover from PAL and Espiritu for tort or culpa aquiliana. What he has overlooked is the proscription against double recovery under Article 2177 of the Civil Code which, while not preventing recourse to any appropriate remedy, prevents double relief for a single wrong. To avoid inequitable effects under such confluence of remedies, the true nature of the action instituted by respondent Pagsibigan must be determined. A careful perusal of the complaint of respondent Pagsibigan will readily disclose that the allegations thereof clearly and unmistakably make out a case for a quasi-delict in this wise: 4. That at all pertinent times particularly in June of 1968, defendant China Air Lines Ltd. has been operating regular scheduled flights to and from Manila, and has offered accommodations thereon through, among others, defendant PAL as its authorized sales agent and/or ticketing agent, such that China Airlines Ltd. is here impleaded as being the principal of defendant PAL; 5. That at all pertinent times, particularly in June of 1968, defendant Roberto Espiritu has been in the employ of defendant PAL at its sales counter at the PAL Manila Hotel branch office and is here impleaded as defendant as being the proximate malfeasor in this cause of action; xxx 12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10, 1968, as set forth in his ticket (Annex A) solely and exclusively by reason of gross incompetence and inexcusable negligence amounting to bad faith of defendant PALacting, through its sales representative, the defendant Roberto Espiritu, of its Manila Hotel branch officein the discharge of its duties as sales agent and/or ticketing agent for defendant China Airlines Ltd. as principal. 13. That as a direct result of culpable incompetence and negligence of defendant Roberto Espiritu as sales representative of defendant PAL, plaintiff was unable to attend to previously scheduled business commitments in Taipei x x x resulting in direct and indirect prejudice to plaintiff that has yet to be fully assessed; (Italics supplied)7 xxx Had the intention of respondent Pagsibigan been to maintain an action based on breach of contract of carriage, he could have sued CAL alone considering that PAL is not a real party to the contract. Moreover, in cases of such nature, the aggrieved party does not have to prove that the common carrier was at fault or was negligent. All he has to prove is the existence of the contract and the fact of its non-performance by the carrier.8 The records disclose that the trial court delved much into the issues of who was at fault, and its decision is primarily anchored on its factual findings regarding the civil liability arising from culpa aquiliana of the erring party, to this effect: Plaintiff said that the erroneous entry in his ticket which made it appear that his CAL flight of June 10, 1968 was to be at 5:20 in the afternoon was due to the fault or negligence of PALs Roberto Espiritu, a co-defendant herein, as well as the employees of the defendant CAL. In making CAL co-responsible, plaintiff appears to rely on the doctrine that the principal is responsible for the act of an agent done within the scope of the agency. There is no proof extant that any of the employees of CAL had contributed to the erroneous entry in plaintiffs CAL ticket for Taipei which placed his time of departure to 5:20 oclock in the afternoon of June 10, 1968. Only defendant

Roberto Espiritu appears to be solely and exclusively responsible for such error and therefor the conclusion becomes inevitable that CAL must be absolved from any blame because defendant Roberto Espiritu who committed the error is not an employee or agent of the defendant CAL.9 It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can not hold CAL liable on a quasi-delict, decided on appeal to instead make a sinistral detour, so to speak, by claiming that his action against CAL is based on a breach of contract of carriage. We can not permit respondent Pagsibigan to change his theory at this stage; it would be unfair to the adverse party who would have no more opportunity to present further evidence, material to the new theory, which it could have done had it been aware earlier of the new theory at the time of the hearing before the trial court.10 There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa aquiliana. As hereinbefore stated, the court a quo absolved CAL of any liability for fault or negligence. This finding was shared by respondent court when it concluded that defendant CAL did not contribute to the negligence committed by therein defendants-appellants PAL and Roberto Espiritu. Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in the selection and supervision of its employees. This argument is obviously misplaced. CAL is not the employer of PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al.,11 we have stressed the need of first establishing the existence of an employer-employee relationship before an employer may be vicariously liable under Article 2180 of the Civil Code. With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely an agent of CAL and that the suit should have been directed against CAL alone. There is no question that the contractual relation between both air lines is one of agency. Suffice it to say, however, that in an action premised on the employees negligence, whereby respondent Pagsibigan seeks recovery for the resulting damages from both PAL and Espiritu without qualification, what is sought to be imposed is the direct and primary liability of PAL as an employer under said Article 2180. When an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there was negligence on the part of the employer either in the selection of the employee or in the supervision over him after such selection. The presumption, however, may be rebutted by a clear showing on the part of the employer that it has exercised the care and diligence of a good father of a family in the selection and supervision of his employee.12 Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is imperative that PAL must adduce sufficient proof that it exercised such degree of care. PAL failed to overcome the presumption. As found by respondent court, CAL had revised its schedule of flights since April 1, 1968; that after the Civil Aeronautics Board had approved the revised schedule of flights, PAL was duly informed thereof and, in fact, PALs Manila Hotel branch office had been issuing and selling tickets based on the revised time schedule before June 10, 1968. PALs main defense is that it is only an agent. As a general proposition, an agent who duly acts as such is not personally liable to third persons. However, there are admitted exceptions, as in this case where the agent is being sued for damages arising from a tort committed by his employee. The respondent court found that the mistake committed by Espiritu was done in good faith. While there is no evidence that he acted with malice, we can not entirely condone his actuations. As an employee of PAL, the nature of his functions requires him to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances justly demand. He committed a clear neglect of duty. Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of the Civil Code. For the failure of PAL to rebut the legal presumption of negligence in the selection and supervision of its employee, it is also primarily liable under Article 2180 of the same code which explicitly provides 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.

Under the aforesaid provision, all that is required is that the employee, by his negligence, committed a quasi-delict which caused damage to another, and this suffices to hold the employer primarily and solidarily responsible for the tortious act of the employee. PAL, however, can demand from Espiritu reimbursement of the amount which it will have to pay the offended partys claim.13 On the issue of damages, we agree, except as to the amount, that nominal damages may be awarded to respondent Pagsibigan to vindicate the legal wrong committed against him. It appearing that the wrong committed was immediately rectified when PAL promptly booked him for the next mornings flight to Taipei where he arrived before noon of June 11, 1968 and was able to attend his scheduled conference, and considering the concept and purpose of nominal damages, the award of P20,000.00 must accordingly be reduced to an amount equal or at least commensurate to the injury sustained. WHEREFORE, the decision of respondent Court of Appeals is MODIFIED accordingly. China Air Lines, Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and Roberto Espiritu are declared jointly and severally liable to pay the sum of P10,000.00 by way of nominal damages, without prejudice to the right of Philippine Air Lines, Inc. to recover from Roberto Espiritu reimbursement of the damages that it may pay respondent Jose Pagsibigan. SO ORDERED. Melencio-Herrera (Chairman), Paras, Padilla and Sarmiento, JJ., concur. Decision modified. Notes.The actual owner of a passenger jeep is solidarily liable with the registered owner in a civil action on quasi-delict. (Jereos vs. Court of Appeals, 117 SCRA 395.) The liability of the employer under Art. 2180 of the new Civil Code is direct and immediate and not conditioned on a prior showing of negligence of the employer. (Kapalaran Bus Line vs. Coronado, 176 SCRA 792.) Pagsuyuin vs. Intermediate Appellate Court G.R. No. 72121. February 6, 1991 (193 SCRA 547) RAFAEL PAGSUYUIN and PEREGRINA PAGSUYUIN-SUBIDO, petitioners, vs. INTERMEDIATE APPELLATE COURT and SALUD PAGSUYUIN, respondents. Remedial Law; Civil Procedure; Parol Evidence; The rule making a writing the exclusive evidence of the agreement therein stated is not applicable when the validity of such agreement is the fact in dispute.As can be clearly gleaned from the foregoing, the rule making a writing the exclusive evidence of the agreement therein stated, is not applicable when the validity of such agreement is the fact in dispute. A contract may be annulled where the consent of one of the contracting parties was procured by mistake, fraud, intimidation, violence or undue influence (Art. 1330, New Civil Code). In fact, as early as 1919 in the case of Bough v. Cantiveros, 40 Phil. 209, this Court laid down the rule that where the validity of the agreement is the issue, parol evidence may be introduced to establish illegality or fraud. Same; Same; Same; Same; No Instrument is so sacred when tainted with fraud as to place it beyond the scrutiny of extrinsic evidence.While the writing itself may have been accompanied by the most solemn formalities, no instrument is so sacred when tainted with fraud as to place it beyond the scrutiny of extrinsic evidence. This evidence overcomes the known presumption fraus est odiosa et non praesumenda. Same; Same; Same; Same; Private respondents evidence have made out a case of fraud by evidence clear, convincing and more than merely preponderant.The testimonies of private respondent Salud Pagsuyuin and her two instrumental witnesses which have not been satisfactorily rebutted by the petitioners Rafael Pagsuyuin, et al. have made out a case of fraud by evidence clear, convincing and more than merely preponderant.

Same; Same; Same; Same; It is a fundamental rule in criminal as well as in civil cases that in the matter of credibility of witnesses the findings of the trial court are given great weight and the highest degree of respect by the appellate court.Moreover, it is axiomatic that the factual findings of the trial court and Court of Appeals are entitled to great respect (Vda. de Roxas v. IAC, 143 SCRA 77 [1987]), that it is a fundamental rule in criminal as well as in civil cases that in the matter of credibility of witnesses the findings of the trial court are given great weight and the highest degree of respect by the appellate court (People v. Sarol, 139 SCRA 125 [1985]), unquestionably because the trial judge is in a superior position to gauge the credibility of those who take the witness seat before him. He has the opportunity to size up the appearance, the demeanor, the manner of testifying, the probability or improbability of the testimony, of the witnesses. Indeed, the trial court has a first hand advantage to assess the value to be given the testimony of a witness. Civil Law; Damages; For moral damages to be awarded, it is essential that the claimant must have satisfactorily proved during the trial the existence of the factual basis of the damages and its causal connection with adverse partys acts.As shown in the records of the case, the trial court and respondent Court of Appeals are in unison as to the findings of the former that a sufficient cause of action had been proved by overwhelming preponderance of evidence of the private respondent as against the petitioners Rafael Pagsuyuin, et al. For moral damages to be awarded, it is essential that the claimant must have satisfactorily proved during the trial the existence of the factual basis of the damages and its causal connection with adverse partys acts. This is so because moral damages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. PETITION for certiorari to review the decision of the then Intermediate Appellate Court. Ejercito, J. The facts are stated in the opinion of the Court. R.G. Carlos & Associates Law Offices for petitioners. Aurea Aragon-Casiano for private respondent. PARAS, J.: In this petition for review on certiorari, petitioners seek to reverse and set aside the decision1 of the Intermediate Appellate Court (now Court of Appeals) dated June 6, 1985 in AC G.R. No. CV-67019 entitled Salud Pagsuyuin vs. Rafael Pagsuyuin, et al. affirming with modification the decision 2 of the then Court of First Instance (now RTC) of Zambales, Branch I in Civil Case No. 2139-0 entitled Salud Pagsuyuin v. Rafael Pagsuyuin et al. for annulment of document, damages with preliminary injunction. Records show that private respondent Salud Pagsuyuin and petitioners Peregrina Pagsuyuin-Subido and Rafael Pagsuyuin are first cousins. Sometime in August, 1974, one Mrs. Gregoria B. Schlander, then a resident of Olongapo City and an acquintance of private respondent Salud Pagsuyuin was able to secure a loan in the amount of P165,000.00 with the Manila Banking Corporation at Olongapo City upon a security of a real estate mortgage of property belonging to Salud Pagsuyuin consisting of two (2) two-storey buildings: the first two-storey building has an area of 114 square meters and the second two-storey building has an area of 98 square meters, as well as the commercial lot (Lot 3114, TS-308, Olongapo Townsite Subdivision) with an area of 339 square meters upon which these two (2) two-storey buildings are erected, which loan was obtained by the said Mrs. Gregoria B. Schlander upon a forged power of attorney allegedly signed by Salud Pagsuyuin (Rollo, Annex D, Amended Record on Appeal, p. 54; pp. 6-7). On December 1975, Salud Pagsuyuin was informed that her property had been mortgaged by Mrs. Gregoria B. Schlander in favor of said bank and she immediately went to verify the accuracy of the information which she found to be true, but then Mrs. Schlander had already absconded and left for the United States (Rollo, Ibid., p. 46). As the loan indicated hereinabove was not paid at maturity, the Manila Banking Corporation at Olongapo City started to foreclose the mortgaged properties extrajudicially (Rollo, Ibid., p. 7).

To protect, her interest on her property, Salud Pagsuyuin filed suit in the Court of First Instance of Olongapo City, Branch III, Civil Case No. 1918-0 against the Manila Banking Corporation, Mrs. Gregoria B. Schlander and her husband Mr. Schlander, including the City Sheriff of Olongapo City, to annul the said real estate mortgage with a prayer for preliminary injunction (Rollo, Ibid., p. 8). Petitioners Rafael Pagsuyuin and Peregrina Pagsuyuin-Subido, brother and sister and first cousins of Salud Pagsuyuin, offered to the latter to settle the bank loan so as to keep her peace of mind and to retain the ownership of her mortgaged properties (Rollo, Ibid., p. 47). The three cousins, namely Peregrina, Rafael and Salud, went to the Manila Banking Corporation to inquire about the possibility of an amicable settlement of the loan, and it was at this juncture that the petitioners told Salud Pagsuyuin that they would help her in settling her mortgage loan if petitioner Peregrina Pagsuyuin-Subido will stay free of charge in the leased premises and that Salud Pagsuyuin will repay whatever amount will be advanced by the petitioners to Salud with interest (Rollo, Ibid., p. 48). Consequently, two (2) documents were allegedly executed involving the transfer of the properties of Salud Pagsuyuin to Peregrina Pagsuyuin-Subido and Rafael Pagsuyuin. These documents were: 1) Deed of Assignment (morning version) stating that Salud Pagsuyuin allegedly transferred her properties for and in consideration of the amount of P256,362.95, and that the amount of P30,000.00 will be delivered to Salud Pagsuyuin upon signing the instrument, which was allegedly signed in the morning of September 13, 1976 (Rollo, Petition, pp. 13-16); 2) Deed of Assignment (afternoon version) stating that Salud Pagsuyuin allegedly transferred her properties for and in consideration of the amount of P256,362.96 but there was no indication that there will be a down payment of P30,000.00, which was allegedly signed in the afternoon of September 13, 1976 (Rollo, Petition, pp. 17-19). The two (2) documents (Deeds of Assignment) were notarized by Notary Public Edmundo Tubio allegedly on the 13th of September, 1976 in the presence of witnesses Marietta Javier and Federico Javier (Rollo, Petition, pp. 16; 18). Salud Pagsuyuin and her witnesses denied having executed the above deeds of assignment on September 13, 1976 as she was on that date at Alitagtag, Batangas while her instrumental witnesses Federico Javier was working at the U.S. Naval Base, while his wife Marietta Javier was at Olongapo City. Consequently, on March 1, 1977, an amended complaint was filed by Salud Pagsuyuin before the Court of First Instance of Zambales for the annulment of documents, damages with preliminary injunction, alleging among others, that the signature of private respondent Salud Pagsuyuin and her witnesses, namely; Marietta Pagsuyuin-Javier and Federico Javier in the Deeds of Assignment were obtained thru fraud and trickery perpetrated by the petitioners Rafael Pagsuyuin and Peregrina Pagsuyuin-Subido (Rollo, Annex D, Amended Record on Appeal, p. 54; pp. 5-19). On March 24, 1977, petitioners filed an answer claiming by way of special defense that it was the private respondent Salud Pagsuyuin who proposed to the petitioners the transfer of all the properties covered by a Real Estate Mortgage (Rollo, Annex D, Amended Record on Appeal, p. 54; pp. 23-32). On March 21, 1980, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff (Salud) and against the defendants (herein petitioners) as follows: a) Declaring the Deeds of Assignment (Exhs. A and B) as null and void; b) If there was payment of indebtedness in the amount of P226,362.96 to the Manila Bank, the plaintiff is hereby directed to refund the same amount to the defendants with legal interest;

c) Ordering all other payments made by the defendants offsetting the plaintiffs indebtedness such as made to Felix Makalintal, Theodore Ilagan, and Irene de Leon, refunded by the plaintiff to the defendants with legal interest; d) Ordering defendants jointly and severally to pay plaintiff the amount of P20,000.00 as moral damages and exemplary damages; and e) Ordering defendants jointly and severally to pay the amount of P20,000.00 as attorneys fees. Defendants counterclaim are hereby denied. SO ORDERED. (Rollo, Annex H; Amended Record on Appeal, p. 54; pp. 6970). On Appeal, the Intermediate Appellate Court in its decision dated June 6, 1985, ruled: WHEREFORE, premises considered, the decision appealed from is affirmed but with the modification of paragraphs b, d, and e of the dispositive portion of the decision to read as follows: b.) Ordering plaintiff to pay defendants the amount of P226,362.96 with legal interest from dates of said payment and expenses paid by the defendants to the Manila Bank; d.) Ordering defendants jointly and severally to pay plaintiff the amount of P5,000.00 as moral and exemplary damages; and e.) Ordering defendants jointly and severally to pay the amount of P5,000.00 as attorneys fees. With costs against the defendants. SO ORDERED. (Rollo, Annex A, Decision, pp. 50-51). A motion for reconsideration was filed on June 25, 1985, however, it was denied (Rollo, Annex B, p. 52). Hence, this petition. The main issue in the instant case is whether or not parol evidence is admissible to annul the deed of assignment on the ground of fraud. Petitioners Rafael Pagsuyuin, et al. contend that both lower courts gravely erred in voiding the Deeds of Assignment based upon extrinsic evidence of alleged vitiated consent of the assignor-private respondent Salud Pagsuyuin in defiance of the settled rule of parol evidence that a document reduced to writing is deemed to have contained all such terms and conditions as contemplated by the parties and there can be, between the said parties and their successors in interest, no evidence of the terms of the agreement other than the contents of the writing itself. The contention is untenable. The rule on parol evidence recognizes the following exceptions: (a) where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, or the validity of the agreement is put in issue by the pleadings; (b) xxxx xxx (Sec. 7, Rule 130).

As can be clearly gleaned from the foregoing, the rule making a writing the exclusive evidence of the agreement therein stated, is not applicable when the validity of such agreement is the fact in dispute. A contract may be annulled where the consent of one of the contracting parties was procured by mistake,

fraud, intimidation, violence or undue influence (Art. 1330, New Civil Code). In fact, as early as 1919 in the case of Bough v. Cantiveros, 40 Phil. 209, this Court laid down the rule that where the validity of the agreement is the issue, parol evidence may be introduced to establish illegality or fraud. In the case at bar, petitioners relied heavily on the fact of notarial certification of the Deeds of Assignment by Notary Public Edmundo Tubio allegedly on the 13th of September, 1976 in the presence of witnesses Marietta PagsuyuinJavier and Federico Javier to deflect the admissibility of parol evidence. On the other hand, private respondents evidence clearly shows that on September 7, 1976 a document was brought to her at the Manila International Airport, which she signed that same evening (when she returned to her house) in the presence of witnesses Federico and Marietta Javier but they were not given copies thereof (Rollo, pp. 72-76). Then on September 8, 1976 at around 6:00 a.m., Rafael Pagsuyuin went to the house of the private respondent Salud Pagsuyuin with more documents for signature. Relying on the assurances of petitioner Rafael that the same were additional copies of the documents they had signed in the evening of September 7, 1976 (TSN, Hearing of May 9, 1978, pp. 9-13; Rollo, pp. 73-74), Salud and her witnesses signed without reading as petitioner Rafael was in a hurry (TSN, Hearing of January 31, 1978; Rollo, pp. 74-75) and he only showed them the latter portion and refused to show the contents of the documents (TSN, Hearing of October 13, 1977; Rollo, pp. 75-76). After he had obtained their signatures, Rafael left the house of Salud again without leaving any copy of the document (TSN, Hearing of January 31, 1978, Ibid.). As it turned out, the documents were denominated as Deeds of Assignment, contrary to the intent of private respondent. These testimonies were never satisfactorily rebutted by the petitioners. At this juncture, the findings of the trial court which were affirmed by the appellate court are quoted with approval: x x x the instruments of sale (Exh. A and B) lacked the valid consent of the transferor Salud Pagsuyuin as there was fraud enlisted in making plaintiff sign the documents without understanding the contents thereof. The authenticity and genuineness of the documents were attacked because . . . . . defendants vitiated consent in the preparation and execution of said documents as plaintiff was misled into believing the same is a deed of mortgage instead of a deed of assignment. The evidence had proven that plaintiff was tricked and deceived into signing two (2) deeds of assignment which was not her intention to do so (sic). The trial court continued: The person who could have enlightened this court as to the disputed facts is none other than Rafael Pagsuyuin himself, but said witness developed cold feet and discontinued declaring against the plaintiff, most probably because of deep-rooted fear of being discovered falsifying the truth and experiencing the fangs of guilty conscience, he broke completely down in court and could not continue his declaration against his cousin the herein plaintiff, so that his counsel withdrew him as a witness and his entire testimony was disregarded by this court. Judging from his demeanor and attitude, the court had very well observed that he could not explain the dubious circumstances that characterized the transfer of the property between him and the plaintiff. The failure of defendant Rafael Pagsuyuin to give testimony was a fatal defect that torpedoed the efforts of the defendants and witnesses to prove the defense that there was a valid transfer of the properties. (C.A. Decision, Rollo, pp. 4051). While the writing itself may have been accompanied by the most solemn formalities, no instrument is so sacred when tainted with fraud as to place it beyond the scrutiny of extrinsic evidence. This evidence overcomes the known presumption fraus est odiosa et non praesumenda (Yturralde v. Vagilidad, 28 SCRA 393 [1969]). The testimonies of private respondent Salud Pagsuyuin and her two instrumental witnesses which have not been satisfactorily rebutted by the petitioners Rafael Pagsuyuin, et al. have made out a case of fraud by evidence clear, convincing and more than merely preponderant. Moreover, it is axiomatic that the factual findings of the trial Court and Court of Appeals are entitled to great respect (Vda. de Roxas v. IAC, 143 SCRA 77 [1987]), that it is a fundamental rule in criminal as well as in civil cases that in the matter of credibility of witnesses the findings of the trial court are given

great weight and the highest degree of respect by the appellate court (People v. Sarol, 139 SCRA 125 [1985]), unquestionably because the trial judge is in a superior position to gauge the credibility of those who take the witness seat before him. He has the opportunity to size up the appearance, the demeanor, the manner of testifying, the probability or improbability of the testimony, of the witnesses. Indeed, the trial court has a first hand advantage to assess the value to be given the testimony of a witness (Yturralde v. Vagilidad, supra). Petitioners Rafael Pagsuyuin, et. al., also assign as error the grant of moral and exemplary damages plus attorneys fees in favor of private respondent Salud Pagsuyuin. As shown in the records of the case, the trial court and respondent Court of Appeals are in unison as to the findings of the former that a sufficient cause of action had been proved by overwhelming preponderance of evidence of the private respondent as against the petitioners Rafael Pagsuyuin, et al. For moral damages to be awarded, it is essential that the claimant must have satisfactorily proved during the trial the existence of the factual basis of the damages and its causal connection with adverse partys acts. This is so because moral damages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer (Makabili v. Court of Appeals, 157 SCRA 253 [1988]). The wrongful act attributable to the petitionersthe employment of frauddis the proximate cause of the mental anguish suffered by private respondent Salud Pagsuyuin. PREMISES CONSIDERED, the decision of the Intermediate Appellate Court dated June 6, 1985 is AFFIRMED. SO ORDERED. Melencio-Herrera (Chairman), Padilla, Sarmiento and Regalado, JJ., concur. Decision affirmed. Note.Admission of parol testimony to prove that a deed, absolute in form, was in fact given and accepted as a mortgage does not violate the rule against admission of oral evidence to vary or contradict the terms of a written instrument. (Ramos vs. Court of Appeals, 180 SCRA 635.)

[No. L-8194. July 11, 1956] 99 Phil. 506 EMERENCIANA M. VDA. DE MEDINA, ET AL., plaintiffs and appellees vs. GUILLERMO CRESENCIA, ET AL., defendants. GUILLERMO CRESENCIA, appellant. 1. FRANCHISE; SALE WITHOUT APPROVAL OP THB PUBLIC SERVICE COMMISSION, EFFECT OF.The sale of franchise, or any privilege pertaining thereto, without the approval of the Public Service Commission, is not binding against the public or the Service Commission; and in contemplation of law, the grantee of record continues to be responsible under the franchise in relation to the Commission and tp the public. 2. CONTRACT OF CARRIAGE; "CULPA CONTRACTUAL"; NATURE OF LlABILITY OF CARRIER.Where there is a breach of the carrier's contractual obligation to ca*ry his passengers safely to their destination (culpa contractual), the liability of the carrier is not merely subsidiary or secondary, but direct and immediate (Article 1755, 1756, and 1759, New Civil Code). 3. DAMAGES; NOMINAL DAMAGES; WHEN AWARD IMPROPER. Where the court has already awarded compensatory and exemplary damages that are in themselves a judicial recognition that plaintiffs' right was violated, the award of nominal damages is unnecessary and improper. Nominal damages can not coeyist with compensatory damages.

APPEAL from a judgment of the Court of First Instance of Manila. Zulueta, J. The facts are stated in the opinion of the Court. Bernardo A. Bunyi for appellant. Gwfdao & Herrera for appellees. REYES, J. B. L., J.: Appeal by def^ndant Guillermo Cresencia from the judgment of the Court of First Instance of Manila in its civil case No. 19890, sentencing appellant, jointly and severally with his co-defendant Brigido Avorque, to pay plaintiffs Emerencia M. Vda. de Medina and her minor children damages in the total amount of P56,000, P5|,000 attorneys' fees, and costs. It appears that on May 31, 1953, passenger jeepney bearing plate No. TPU2232 (Manila), driven by Brigido Avorque, smashed into a Meralco post on Azcarraga Street, resulting in the death of Vicente Medina, one of its passengers. A criminal case for homicide through reckless imprudence was filed against' Avorque (criminal case No. 22775 of the Court of First Instance of Manila), to which he pleaded guilty on September 9, 1953. The heirs of the deceased, however, reserved their right to file a separate action JBor damages, and on June 16, 1953, brought suit against the driver Brigido Avorque and appellant Guillermo Cresencia, the registered owner and operator of the jeepney in question. Defendant Brigido Avorque did not file any answer; while defendant Cresencia answered, disclaiming liability on the ground that he had sold the jeepney in question on October 14, 1950 to one Maria A. Cudiamat; that the jeepney had been repeatedly sold by one buyer after another, until the vehicle was purchased on January 29, 1953 by Rosario Avorque, the absolute owner thereof at the time of the accident. In view of Cresencia's answer, plaintiffs filed leave, and was allowed, to amend their complaint making Rosario Avorque a co-defendant; and the latter, by way of answer, admitted having purchased the aforesaid jeepney on May 31, 1953, but alleged in defense that she was never the public utility operator thereof. The case then proceeded to trial, during which, after the plaintiffs had presented their evidence, defendants Guillermo Cresencia and Rosario Avorque made manifestations admitting that the former was still the registered operator of the jeepney in question in the records of the Motor Vehicles Office and the Public Service Commission, while the latter was the owner thereof at the time of the accident; and submitted the case for the decision on the question of who, as between the two, should be held liable to plaintiffs for damages. The lower court, by Judge Jose Zulueta, held that as far as the public is concerned, defendant Cresencia, in the eyes of the law, continued to be the legal owner of the jeiepney in question; and rendered judgment against him, jointly and severally with the driver Brigido Avorque, for P6,000 compensatory damages, P30,000 moral damages, P10,000 exemplary datmages, P10,000 nominal damages, F5,000 attorneys fees, and costs, while defendant Rosario Avorque was absolved from liability. From this judgment, defendant Cresencia appealed. We have already held in the case of Montoya vs. Ignacio, 94 Phil., 182 (December 29, 1953), which the court below cited, that the law (section 20 [g], C. A. No. 146 as amended) requires' the approval of the Public Service Commission in order that a franchise, or any privilege pertaining thereto, may be sold or leased without in~ fringing the certificate issued to the grantee; and that if property covered by the franchise is transferred or leased without this requisite approval, the transfer is not binding against the public or the Service Commission; and in contemplation of law, the grantee of record continues to be responsible under the franchise in relation to the Commission and to the public. There we gave the reason for this rule to be as follows: "* * * Since a franchise is personal in nature any transfer or lease thereof sliould be notified to the Public Service Commission so that the latter may take proper safeguards to protect the interest of the public. In fact, the law requires that, before the approval is granted, there should be a public hearing, with notice to all interested parties, in order that the Commission may determine if there are good and reasonable grounds justifying the transfer or lease of the property covered by the franchise, or if the sale or lease is detrimental to public interest. * * *" The above ruling was later reiterated in the cases of Timbol vs. Osias, L-7547, April 30, 1955 and Roque vs. Malibay Transit Inc., L-8561, November 18, 1955.

As the sale of the jeepney here in question was admittedly without the approval of the Public Service Commission, appellant herein, Guillermo Cresencia, who is the registered owner and operator thereof, continued to be liable to the Commission and the public for the consequences incident to its operation. Wherefore, the lower court did not err in holding him, and not the buyer Rosario Avorque, responsible for the damages sustained by plaintiff by reason of the death of Vicente Medina resulting from the reckless negligence of the jeepney's driver, Brigido Avorque. Appellant also argues that the basis of plaintiffs' action being the employer's subsidiary liability under the Revised Penal Code for damages arising from his employee's criminal acts, it is defendant Rosario Avorque who should answer subsidiarily for the damages sustained by plaintiffs, since she admits that she, and not appellant, is the employer of the negligent driver Brigido Avorque. The argument is untenable, because plaintiffs' action for damages is independent of the criminal case filed against Brigido Avorque, and based, not on the employer's subsidiary liability under the Revised Penal Code, but on a breach of the carrier's contractual obligation to carry his passengers safely to their destination (culpa, contractuaJ,). And it is also for this reason that there is no need of first proving the insolveney of the driver Brigido Avorque before damages can be recovered from the carrier> for in culpa contmctual, the liability of the carrier is ncft merely subsidiary or secondary, but direct and immediate (Articles 1755, 1756, and 1759, New Civil Code). The propriety of the damages awarded has not been questioned. Nevertheless, it is patent upon the record that the award of Pl0,000 by way of nominal damages is untenable as a matter of law, since nominal damages can not co-exist with compensatory damages. The purpose of nominal damages is to vindicate or recognize a right that has been violated, in order to preclude further contest thereon; "and not for the purpose of indemnifying the plaintiff for any loss suffered by him" (Articles 2221, 2223, new Civil Code.) Since the court below has alteady awarded compensatory and exemplary damages that are in themselves a judicial recognition that plaintiff's right was violated, the award of nominal damages is unnecessary and improper. Anyway, ten thousand pesos can not, in common sense, be deemed "nominal". With the modification that the award of P10,000 nominal damages" be eliminated, the decision appealed from is affirmed. Costs against appellant. So ordered. Pards, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, and Endenda, JJ., concur. Judgment affirmed with modification.