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TORTS AND DAMAGES

FULL TEXT PAGE 3

III. DEFENSE AGAINST CHARGE OF NEGLIGENCE

E. Prescription (Art 1146)

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-41767 August 23, 1978

MR. AND MRS. ROMEO FERRER and ANNETTE FERRER, petitioners, vs.HON. VICENTE G. ERICTA, in his capacity as Presiding Judge of theCourt of First Instance of Rizal, Quezon City, Branch XVIII, MR. AND MRS. FRANCIS PFLEIDER and DENNIS PFLEIDER, respondents.

Delano F. Villaruz for petitioners.

Porderio C. David for private respondents.

 

ANTONIO, J:

Mandamus to compel the immediate execution of the Decision of theCourt of First Instance of Quezon City, Branch XVIII, presided

over by respondent Judge, in Civil Case No. Q-19647, dated July 21, 1975. The pertinent facts are as follows:

In a complaint for damages against respondents, dated December 27, 1974 but actually filed on January 6, 1975 (Civil Case No. Q-19647), and assigned to the sala of respondent Judge, it was alleged that defendants Mr. and Mrs. Francis Pfleider, residents of Bayawan, Negros Oriental, were the owners or operators of a Ford pick-up car; that at about 5:00 o'clock in the afternoon of December 31, 1970, in the streets of Bayawan, Negros Oriental, their son, defendant Dennis Pfleider, who was then only sixteen (16) years of age, without proper official authority, drove the above-described vehicle, without due regard to traffic rules and regulations, and without taking the necessary precaution to prevent injury to persons or damage to property, and as a consequence the pickup car was overturned, causing physical injuries to plaintiff Annette Ferrer, who was then a passenger therein, which injuries paralyzed her and required medical treatment and confinement at different hospitals for more than two (2) years; that as a result of the physical injuries sustained by Annette, she suffered unimaginable physical pain, mental anguish, and her parents also suffered mental anguish, moral shock and spent a considerable sum of money for her treatment. They prayed that defendants be ordered to reimburse them for actual expenses as well as other damages.

In due time, defendants filed their answer, putting up the affirmative defense that defendant Dennis Pfleider exercised due care and utmost diligence in driving the vehicle aforementioned and alleging that Annette Ferrer and the other persons aboard said vehicle were not passengers in the strict sense of the term,but were merely joy riders and that, consequently, defendants hadno obligation whatsoever to plaintiffs.

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At the pre-trial on May 12, 1975, only plaintiffs-petitioners andtheir counsel were present. Consequently, defendants-private respondents were declared in default and the plaintiff petitioners were allowed to present their evidence ex parte. On May21, 1975, petitioners moved that they be granted an extension of ten (10) days from May 22, 1975 to present her evidence, which was granted by the court a quo. The presentation of petitioners' evidence was later continued by the trial court to June 16, 1975,when the deposition of Annette Ferrer was submitted by petitioners and admitted by the trial court.

On June 26, 1975, private respondents filed a motion to "set aside the order of default and subsequent pleadings" on the ground that "defendants' failure to appear for pre-trial was due to accident or excusable neglect." This was opposed by petitioners on the ground that the said pleading was not under oath, contrary to the requirements of Sec. 3, Rule 18 of the Rules, and that it was not accompanied by an affidavit of merit showing that the defendants have a good defense. In view of this,the motion of private respondents was denied by respondent Judge on July 21, 1975. On the same date, respondent Judge rendered judgment against private respondents, finding that the minor Dennis Pfleider, was allowed by his parents to operate a Ford pick-up car and because of his reckless negligence caused the accident in question, resulting in injuries to Annette, and ordering the defendants, as a result thereof, to pay jointly and severally the plaintiffs the following amounts: (1) P24,500.00 for actual expenses, hospitalization and medical expenses; (2) P24,000.00 for actual expenses for the care, medicines of plaintiff Annette for helps from December 31, 1970 to December 31, 1974; (3) P50,000.00 for moral damages; (4) P10,000.00 for exemplary damages; (5) P5,000.00 for attorney's fees; and (6) costs of suit.

On September 1, 1975, private respondents filed a Motion for Reconsideration 1 of the decision and of the order denying the motion to set aside order of default, based on the following grounds: (1) the complaint states no cause of action insofar as Mr. and Mrs. Pfleider are concerned because it does not allege that at the time of the mishap, defendant Dennis Pfleider was living with them, the fact being that at such time he was living apart from them, hence, there can be no application of Article 2180 of the Civil Code, upon which parents' liability is premised; and (2) that tile complaint shows on its face "that it was filed only on January 6, 1975, or after the lapse of MORE THAN FOUR YEARS from the date of the accident on December 31, 1970", likewise appearing from the complaint and, therefore, the action has already prescribed under Article 1146 of the Civil Code.

A Supplemental Motion for Reconsideration 2 was subsequently filedby defendants-private respondents on September 10, 1975, allegingthat their defense of prescription has not been waived and may beraised even at such stage of the proceedings because on the face of the complaint, as well as from the plaintiff's evidence, theircause of action had already prescribed, citing as authority the decision of this Court in Philippine National Bank v. Pacific Commission House, 3 as well as the decisions quoted therein. The Opposition 4

to the above supplemental motion interposed by plaintiffs-petitioners averred that: (a) the defense of prescription had been waived while the defense that the complaint states no cause of action "is available only at any time not later than the trialand prior to the decision"; (b) inasmuch as defendants have been declared in default for failure to appear at the pretrial conference, they have lost their standing in court and cannot be allowed to adduce evidence nor to take part in the trial, in accordance with Section 2 of Rule 18 of the Rules of Court; and (c) the motion and supplemental motion for reconsideration are proforma because the defenses raised therein have been previously raised and passed upon by respondent court in resolving

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defendants' motion to set aside order of default. Being pro forma, said motion and supplemental motion do not suspend the running ofthe thirty-day period to appeal, which was from August 5, 1975, when defendants received a copy of the decision, to September 4, 1975, and hence the decision has already become final and executory. Plaintiffs-petitioners accordingly prayed that a writ of execution be issued to enforce the judgment in their favor.

On September 23, 1975, respondent judge, without setting aside the order of default, issued an order absolving defendants from any liability on the grounds that: (a) the complaint states no cause of action because it does not allege that Dennis Pfleider was living with his parents at the time of the vehicular accident, considering that under Article 2180 of the Civil Code, the father and, in case of his death or incapacity the mother, are only responsible for the damages caused by their minor children who live in their company; and (b) that the defense of prescription is meritorious, since the complaint was filed more than four (4) years after the date of the accident, and the action to recover damages based on quasi-delict prescribes in four (4) years. Hence, the instant petition for mandamus.

The basic issue is whether the defense of prescription had been deemed waived by private respondents' failure to allege the same in their answer.

As early as Chua Lamko v. Dioso, et al., 5 this Court sustained the dismissal of a counterclaim on the ground of prescription, although such defense was not raised in the answer of the plaintiff. Thus, this Court held that where the answer does not take issue with the complaint as to dates involved in the defendant's claim of prescription, his failure to specifically plead prescription in the answer does not constitute a waiver of the defense of prescription. It was explained that the defense ofprescription, even if not raised in a motion to dismiss or in the

answer, is not deemed waived unless such defense raises issues of fact not appearing upon the preceding pleading.

In Philippine National Bank v. Perez, et al., 6 which was an action filed by the Philippine National Bank on March 22, 1961 for revival of a judgment rendered on December 29, 1949 against Amando Perez, Gregorio Pumuntoc and Virginia de Pumuntoc pursuant to Section 6,Rule 39 of the rules of court the defendants were declared in default for their failure to file their answer. There upon, the plaintiff submitted its evidence, but when the case was submittedfor decision, the court a quo dismissed the complaint on the groundthat plaintiff's cause of action had already prescribed under Articles 1144 and 1152 of the Civil Code. The plaintiff in said case, contending that since prescription is a defense that can only be set up by defendants, the court could not motu proprio consider it as a basis for dismissal, moved to reconsider the order, but its motion was denied. When the issue was raised to this Court, We ruled:

It is true that the defense of prescription can only be considered if the same is invoked as such in the answer of the defendant and that in this particular instance no such defense was invoked because the defendants had been declared in default, but such ruledoes riot obtain when the evidence shows that the cause of action upon which plaintiff's complaint is based is already barred by the statute of limitations.(Emphasis supplied.)

Again, in Philippine National Bank v. Pacific Commission House, 7 where the action sought to revive a judgment rendered by the Court of FirstInstance of Manila on February 3, 1953 and it was patent from thestamp appearing on the first page of the complaint that the complaint was actually filed on May 31, 1963, this Court sustained the dismissal of the complaint on the ground of

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prescription, although such defense was not raised in the answer,overruling the appellants' invocation of Section 2 of Rule 9 of the Rules of Court that "defenses and objections not pleaded either in a motion to dismiss or in tile answer are deemed waived." We held therein that "... the fact that the plaintiff's own allegation in tile complaint or the evidence it presented shows clearly that the action had prescribed removes this case from the rule regarding waiver of the defense by failure to pleadthe same."

In the present case, there is no issue of fact involved in connection with the question of prescription. The complaint in Civil Case No. Q-19647 alleges that the accident which caused theinjuries sustained by plaintiff Annette Ferrer occured on December 31, 1970. It is undisputed that the action for damages was only filed on January 6, 1975. Actions for damages arising from physical injuries because of a tort must be filed within four years. 8 The four-year period begins from the day the quasi-delict is committed or the date of the accident. 9

WHEREFORE, the instant petition for mandamus is hereby DISMISSED,without pronouncement as to costs.

Fernando (Chairman), Barredo, Aquino, Concepcion, Jr. and Santos, JJ., concur.

G.R. No. L-83524 October 13, 1989

ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners, vs.HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.

Rodolfo D. Mapile for petitioners.

Jose Al. Perez for private respondent.

 

GANCAYCO, J.:

The principal issue in this Petition for Review is whether or nota Complaint for damages instituted by the petitioners against theprivate respondent arising from a marine collision is barred by the statute of limitations.

The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating its way from Marinduque to Manila. Somewhere near Maricabon Island and Cape Santiago, the boat figured in a collision with aninter-island vessel, the M/V Asia Philippines owned by the private respondent Trans-Asia Shipping Lines, Inc. As a consequence of the collision, the F/B Marjolea sank, taking with it its fish catch.

After the mishap, the captains of both vessels filed their respective marine protests with the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted an investigation for the purpose of determining the proximate cause of the maritime collision.

On October 19, 1981, the Board concluded that the loss of the F/BMarjolea and its fish catch was attributable to the negligence ofthe employees of the private respondent who were on board the M/VAsia Philippines during the collision. The findings made by the Board served as the basis of a subsequent Decision of the Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia Philippines was suspendedfrom pursuing his profession as a marine officer. 1

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On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent before Branch 117 of the Regional Trial Court in Pasay City. 2 The suit was docketed as Civil Case No. 2907-P.

The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of prescription. He argued that underArticle 1146 of the Civil Code, 3 the prescriptive period for instituting a Complaint for damages arising from a quasi-delict like a maritime collision is four years. He maintained that the petitioners should have filed their Complaint within four years from the date when their cause of action accrued, i.e., from April 8, 1976 when the maritime collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond the four-year prescriptive period.

For their part, the petitioners contended that maritime collisions have peculiarities and characteristics which only persons with special skill, training and experience like the members of the Board of Marine Inquiry can properly analyze and resolve. The petitioners argued that the running of the prescriptive period was tolled by the filing of the marine protest and that their cause of action accrued only on April 29, 1982, the date when the Decision ascertaining the negligence of the crew of the M/V Asia Philippines had become final, and that the four-year prescriptive period under Article 1146 of the CivilCode should be computed from the said date. The petitioners concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was seasonably filed.

In an Order dated September 25, 1986, 4 the trial court denied theMotion filed by the private respondent. The trial court observed that in ascertaining negligence relating to a maritime collision,there is a need to rely on highly technical aspects attendant to such collision, and that the Board of Marine Inquiry was

constituted pursuant to the Philippine Merchant Marine Rules and Regulations, which took effect on January 1, 1975 by virtue of Letter of Instruction No. 208 issued on August 12, 1974 by then President Ferdinand E. Marcos, precisely to answer the need. The trial court went on to say that the four-year prescriptive periodprovided in Article 1146 of the Civil Code should begin to run only from April 29, 1982, the date when the negligence of the crew of the M/V Asia Philippines had been finally ascertained. The pertinent portions of the Order of the trial court are as follows —

Considering that the action concerns an incident involving a collision at sea of two vehicles and to determine negligence for that incident there is an absolute need to rely on highly technical aspects attendant to such collisions. It is obviously to answer such a need that the Marine Board of Inquiry (Sic) was constituted pursuant to the Philippine Merchant Marine Rules and Regulations which became effective January 1, 1975 under Letter of Instruction(s) No. 208 dated August 12, 1974. The relevant section of that law (Art. XVI/b/ provided as follow(s):

1. Board of Marine Inquiry (BMI) — Shall have the jurisdiction to investigate marine accidents orcasualties relative to the liability of shipowners and officers, exclusive jurisdiction to investigate cases/complaints against the marine officers; and to review all proceedings or investigation conducted by

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the Special Boards of Marine Inquiry.

2. Special Board of Marine Inquiry. — Shall have original jurisdiction to investigate marine casualties and disasterswhich occur or are committed within the limits of the Coast Guard District concerned or those referred by the Commandant.

The Court finds reason in the argument of the plaintiff that marine incidents have those 'peculiarities which only persons of special skill, training and exposure can rightfully decipher and resolve on the matter of the negligence and liabilities of parties involved and inasmuch as the report of the Board of Inquiry (sic) admittedly came out only on April 29, 1982, the prescriptive period provided x x x under Art. 1146 of the Civil Code should begin to run only from that date. The complaintwas filed with this Court on May 10, 1985, hence the statute of limitations can not constitute a bar to thefiling of this case. 5

The private respondent elevated the case to the Court of Appeals by way of a special civil action for certiorari and prohibition, alleging therein that the trial court committed a grave abuse of discretion in refusing to dismiss the Complaint filed by the petitioners. The case was assigned to the Second Division of the appellate court and was docketed as Case No. CA-G.R. SP No. 12032. 6

In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated January 12, 1988, 8 the Court of Appeals granted the Petition filed by the private respondent and ordered the trial court to dismiss the Complaint. The pertinent portions of the Decision of the appellate court are as follows —

It is clear that the cause of action of private respondent (the herein petitioners Ernesto Kramer, Jr.and Marta Kramer) accrued from the occurrence of the mishap because that is the precise time when damages were inflicted upon and sustained by the aggrieved party and from which relief from the court is presently sought. Private respondents should have immediately instituted a complaint for damages based on a quasi-delict within four years from the said marine incident because its cause of action had already definitely ripened at the onset of the collision. For this reason, he (sic) could cite the negligence on the part of the personnel of the petitioner to exercise due care and lack of (sic) diligence to prevent the collision that resulted in the total loss of their x x x boat.

We can only extend scant consideration to respondent judge's reasoning that in view of the nature of the marine collision that allegedly involves highly technical aspects, the running of the prescriptive period should only commence from the finality of the investigation conducted by the Marine Board of Inquiry(sic) and the decision of the Commandant, Philippine Coast Guard, who has original jurisdiction over the mishap. For one, while it is true that the findings and recommendation of the Board and the decision of the Commandant may be helpful to the court in ascertaining which of the parties are at fault, still

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the former (court) is not bound by said findings and decision. Indeed, the same findings and decision couldbe entirely or partially admitted, modified, amended, or disregarded by the court according to its lights and judicial discretion. For another, if the accrual of a cause of action will be made to depend on the action to be taken by certain government agencies, then necessarily, the tolling of the prescriptive period would hinge upon the discretion of such agencies. Said alternative it is easy to foresee wouldbe fraught with hazards. Their investigations might bedelayed and lag and then witnesses in the meantime might not be available or disappear, or certain documents may no longer be available or might be mislaid. ... 9

The petitioners filed a Motion for the reconsideration of the said Decision but the same was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10

Hence, the instant Petition wherein the arguments raised by the petitioner before the trial court are reiterated. 11 In addition thereto, the petitioner contends that the Decision of the Court of Appeals 12 The private respondent filed its Comment on the Petition seeking therein the dismissal of the same. 13 It is also contended by the private respondent that the ruling of the Court in Vasquez is not applicable to the case at bar because the said case involves a maritime collision attributable to a fortuitous event. In a subsequent pleading, the private respondent argues that the Philippine Merchant Marine Rules and Regulations cannot have the effect of repealing the provisions of the Civil Code on prescription of actions. 14

On September 19,1988, the Court resolved to give due course to the petition. 15 After the parties filed their respective memoranda, the case was deemed submitted for decision.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a quasi-delict must be instituted within four (4) years. The prescriptive period begins from the day the quasi-delict is committed. In Paulan vs. Sarabia, 16 this Courtruled that in an action for damages arising from the collision oftwo (2) trucks, the action being based on a quasi-delict, the four (4) year prescriptive period must be counted from the day ofthe collision.

In Espanol vs. Chairman, Philippine Veterans Administration, 17 this Court held as follows-

The right of action accrues when there exists a cause of action, which consists of 3 elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff ... It is only when the last element occurs or takes placethat it can be said in law that a cause of action has arisen ... .

From the foregoing ruling, it is clear that the prescriptive period must be counted when the last element occurs or takes place, that is, the time of the commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises.

It is therefore clear that in this action for damages arising from the collision of two (2) vessels the four (4) year

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prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or negligence of the other party before he can file an action for damages. The ruling in Vasquez does not apply in this case. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence or fault of the owners, agents or personnel of the other vessel.

Thus, the respondent court correctly found that the action of petitioner has prescribed. The collision occurred on April 8, 1976. The complaint for damages was filed iii court only on May 30, 1 985, was beyond the four (4) year prescriptive period.

WHEREFORE, the petition is dismissed. No costs.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

 

F. Fortituous Event (Art 1174)

G.R. No. 71871 November 6, 1989

TEODORO M. HERNANDEZ, petitioner, vs.THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, respondent.

Al-Fred O. Concepcion for petitioner.

 

CRUZ, J.:

It was one of those prosaic decisions not requiring deep thought or long deliberation. The petitioner arrived at it almost as a matter of course, applying what he believed then to be common sense. Little did he realize until later that it would cause him much anguish, even endanger his life, and ultimately lead to thislitigation. But such are the quirks of fate.

At the time of the incident in question, Teodoro M. Hernandez wasthe officer-in-charge and special disbursing officer of the Ternate Beach Project of the Philippine Tourism Authority in Cavite. As such, he went to the main office of the Authority in Manila on July 1, 1983, to encash two checks covering the wages of the employees and the operating expenses of the Project. He estimated that the money would be available by ten o'clock in themorning and that he would be back in Ternate by about two o'clockin the afternoon of the same day. For some reason, however, the processing of the checks was delayed and was completed only at three o'clock that afternoon. The petitioner decided neverthelessto encash them because the Project employees would be waiting fortheir pay the following day. He thought he had to do this for their benefit as otherwise they would have to wait until the following Tuesday at the earliest when the main office would reopen. And so, on that afternoon of July 1, 1983, he collected the cash value of the checks and left the main office with not aninsubstantial amount of money in his hands. 1

What would he do with the money in the meantime? The petitioner had two choices, to wit: (1) return to Ternate, Cavite, that sameafternoon and arrive there in the early evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate the following morning. He opted for the second, thinking it the safer one. And so, on that afternoon

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of July 1, 1983, at a little past three o'clock, he took a passenger jeep bound for his house in Bulacan.

It was while the vehicle was along Epifanio de los Santos Avenue that two persons boarded with knives in hand and robbery in mind.One pointed his weapon at the petitioner's side while the other slit his pocket and forcibly took the money he was carrying. The two then jumped out of the jeep and ran. Hernandez, after the initial shock, immediately followed in desperate pursuit. He caught up with Virgilio Alvarez and overcame him after a scuffle.The petitioner sustained injuries in the lip arms and knees. Alvarez was subsequently charged with robbery and pleaded guilty.But the hold-upper who escaped is still at large and the stolen money he took with him has not been recovered. 2

On July 5, 1983, the petitioner, invoking the foregoing facts, filed a request for relief from money accountability under Section 638 of the Revised Administrative Code. This was favorably indorsed by the General Manager of the Philippine Tourism Authority the same day 3 and by its Corporate Auditor on July 27, 1983. 4 The Regional Director, National Capital Region, of the Commission on Audit, made a similar recommendation on January 17, 1984, and also absolved Hernandez of negligence. 5 On June 29, 1984, however, the Commission on Audit, through then Chairman Francisco S. Tantuico, jr. denied the petitioner's request, observing inter alia:

In the instant case, the loss of the P10,175.00 under the accountability of Mr. Hernandez can be attributed to his negligence because had he brought the cash proceeds of the checks (replenishment fund) to the Beach Park in Ternate, Cavite, immediately after encashment for safekeeping in his office, which is thenormal procedure in the handling of public funds, the

loss of said cash thru robbery could have been aborted. 6

In the petition at bar, Hernandez claims that the respondent Commission on Audit acted with grave abuse of discretion in denying him relief and in holding him negligent for the loss of the stolen money. He avers he has done only what any reasonable man would have done and should not be held accountable for a fortuitous event over which he had no control.

The petitioner stresses that he decided to encash the checks in the afternoon of July 1, 1983, which was a Friday, out of concernfor the employees of the Project, who were depending on him to make it possible for them to collect their pay the following day.July 2 and 3 being non-working days and July 4 being a holiday, they could receive such payment only on the following Tuesday unless he brought the encashed checks on July 1, 1983, and took it to Ternate the following day.

On his decision to take the money home that afternoon instead of returning directly to Ternate, he says that the first course was more prudent as he saw it, if only because his home in Marilao, Bulacan, was much nearer than his office in Ternate, Cavite. The drive to Ternate would take three hours, including a 30-minute tricycle ride along the dark and lonely Naic-Ternate road; and ashe would be starting after three o'clock in the afternoon, it wasnot likely that he would reach his destination before nightfall. By contrast, the road to Marilao was nearer and safer (or so he reasonably thought) and there was less risk involved in his taking the money the following morning to Ternate rather than on that same afternoon of July 1.

The petitioner maintains that the likelihood of robbery during the time in question was stronger in Ternate than in Marilao, so he should not be blamed if the robbery did occur while he was on

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the way to Marilao that afternoon. That was a fortuitous event that could not have reasonably been foreseen, especially on that busy highway. At any rate, he contends, he had not been remiss inprotecting the money in his custody; in fact, he immediately pursued the hold-uppers and succeeded in catching one of them whowas subsequently prosecuted and convicted. It might have been different if he had simply resigned himself to the robbery and allowed the culprits to go scot-free. But he acted. His action after the robbery only goes to show his vigilance over the money entrusted to his custody and his readiness to protect it even at great personal risk.

In his Comment, then Solicitor-General Sedfrey A. Ordonez supported the denial of the petitioner's request, arguing that Hernandez was negligent in the safekeeping of the stolen funds ascorrectly found by the Commission on Audit. 7 Later, however, his successor, Solicitor General Francisco I. Chavez, submitted a Manifestation in Lieu of Memorandum in which he sided with the petitioner, agreeing that Hernandez had not committed any negligence or, assuming he was guilty of contributory negligence,had made up for it with his efforts to retrieve the money and hiscapture of one of the robbers, who was eventually convicted. 8 This prompted the respondent Commission on Audit to submit its own memorandum.

The Commission on Audit insists in this memorandum that the petitioner should not be relieved from his money accountability because it was his own negligence that led to the loss of the cash he had sought to take not to Ternate in Cavite but to Marilao.

Its contention is that the petitioner should not have encashed the cheeks on July 1, 1983, as the hour was already late and he knew he could not return to Ternate before nightfall. Knowing this, he should have prudently deferred encashing the checks

until the morning of the next working day on July 5, 1983, when he could have safely taken the money to Ternate. His alleged concern for the convenience of his fellow workers was not really a valid reason because one of the checks he had encashed, in the greater amount of P6,964.00, was in fact not for salaries and wages but for the operating expenses of the Project. There was nourgency to encash that check. Moreover, if it is true that he hadthat much concern for the employees, he should have gone to the main office earlier than July 1, 1983, since the vouchers representing the checks had already been prepared as of June 29, 1983.

The memorandum concludes that in deciding to take the money with him to Marilao after imprudently withdrawing it from the main office, the petitioner was assuming a risk from which he cannot now be excused after the loss of the money as a result of the robbery to which it was unreasonably exposed. In any event, the burden of proof in petitions for relief from money accountabilityrests with the petitioner, who has not clearly established that the loss of the money was not the result of his negligence.

Section 638 of the Revised Administrative Code reads as follows:

Section 638. Credit for loss occurring in transit or due to casualty — Notice to Auditor. — When a loss of government funds or property occurs while the same is in transit or is caused by fire, theft, or other casualty, the officer accountable therefor or having custody thereof shall immediately notify the Auditor General, or the provincial auditor, according as a matter is within the original jurisdiction of the one or the other, andwithin thirty days or such longer period as the Auditor, or provincial auditor, may in the particular case allow, shall present his application for relief, with the available evidence in support thereof. An

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officer who fails to comply with this requirement shall not be relieved of liability or allowed credit for any such loss in the settlement of his accounts.

This provision has since then been reiterated, with some slight modification, in Section 73 of P.D. No. 1445, otherwise known as the "Government Auditing Code of the Philippines," which was promulgated on June 11. 1978.

Applying the letter and spirit of the above-mentioned laws, and after considering the established facts in the light of the arguments of the parties, this Court inclines in favor of the petitioner.

Hindsight is a cruel judge. It is so easy to say, after the event, that one should have done this and not that or that he should not have acted at all, or else this problem would not havearisen at all. That is all very well as long as one is examining something that has already taken place. One can hardly be wrong in such a case. But the trouble with this retrospective assessment is that it assumes for everybody an uncanny presciencethat will enable him by some mysterious process to avoid the pitfalls and hazards that he is expected to have foreseen. It does not work out that way in real life. For most of us, all we can rely on is a reasoned conjecture of what might happen, based on common sense and our own experiences, or our intuition, if youwill, and without any mystic ability to peer into the future. So it was with the petitioner.

It is pointless to argue that Hernandez should have encashed the vouchers earlier because they were dated anyway on June 29, 1983.He was not obliged to encash the checks earlier and then again there might have been any number of reasons why he did so only onJuly 1, 1983. The point is that he did encash the checks on that date and took the money to Marilao and not Ternate in view of the

lateness of the hour. The question before us is whether these acts are so tainted with negligence or recklessness as to justifythe denial of the petitioner's request for relief from accountability for the stolen money.

It seems to us that the petitioner was moved only by the best of motives when he encashed the checks on July 1, 1983, so his co-employees in Ternate could collect their salaries and wages the following day. Significantly, although this was a non-working day, he was intending to make the trip to his office the following day for the unselfish purpose of accommodating his fellow workers. The other alternative was to encash the check is on July 5, 1983, the next working day after July 1, 1983, which would have meant a 5-day wait for the payment of the said salaries and wages. Being a modest employee himself, Hernandoz must have realized the great discomfort it would cause the laborer who were dependent on their wages for their sustenance and were anxious to collect their pay as soon as possible.

For such an attitude, Hernandez should be commended rather than faulted.

As for Hernandez's choice between Marilao, Bulacan, and Ternate, Cavite, one could easily agree that the former was the safer destination, being nearer, and in view of the comparative hazardsin the trips to the two places. It is true that the petitioner miscalculated, but the Court feels he should not be blamed for that. The decision he made seemed logical at that time and was one that could be expected of a reasonable and prudent person. And if, as it happened, the two robbers attacked him in broad daylight in the jeep while it was on a busy highway, and in the presence of other passengers, it cannot be said that all this wasthe result of his imprudence and negligence. This was undoubtedlya fortuitous event covered by the said provisions, something that

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could not have been reasonably foreseen although it could have happened, and did.

We find, in sum, that under the circumstances as above narrated, the petitioner is entitled to be relieved from accountability forthe money forcibly taken from him in the afternoon of July 1, 1983. To impose such liability upon him would be to read the law too sternly when it should be softened by the proven facts.

ACCORDINGLY, the petition is GRANTED, without any pronouncement as to costs. It is so ordered.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

 

G.R. No. 126389 July 10, 1998

SOUTHEASTERN COLLEGE INC., petitioner,vs. COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.

 

PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision 1 promulgated on July 31, 1996, and Resolution 2 dated September 12, 1996 of the Court of Appeals 3 inCA-G.R. No. 41422, entitled "Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc.", which reduced the moral damages awarded below from P1,000,000.00 to P200,000.00. 4 The Resolution under attack denied petitioner's motion for reconsideration.

Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit Metro Manila. Buffeted by very strong winds, the roof of petitioner's building was partly ripped off and blown away, landing on and destroying portions of the roofing of private respondents' house. After the typhoon had passed, an ocular inspection of the destroyed building was conducted by a team of engineers headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of thelatter's Report 5 dated October 18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the building in the area and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped formation of 4-storey building. Thus, with the strong winds having a westerly direction, the general formation of the building becomes a big funnel-like structure, the one situated along College Road, receiving the heaviest impact of the strong winds. Hence, there are portions of the roofing, those located on both ends of the building, which remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofing structural trusses is the improper anchorage of the said trusses to the roof beams. The 1/2' diameter steel bars embedded on the concrete roof beams which serve as truss anchorageare not bolted nor nailed to the trusses. Still, thereare other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to the roof beams.

13

It then recommended that "to avoid any further loss and damage to lives, limbs and property of persons living in thevicinity," the fourth floor of subject school building be declared as a "structural hazard."

In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for damages based on culpa aquiliana, private respondents alleged that the damage to their house rendered the same uninhabitable, forcing them to stay temporarily in others' houses. And so they sought to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and P100,000.00, for and as attorney's fees; plus costs.

In its Answer, petitioner averred that subject school building had withstood several devastating typhoons and other calamities in the past, without its roofing or any portion thereof giving way; that it has not been remiss in its responsibility to see to it that said school building, which houses school children, faculty members, and employees, is "in tip-top condition"; and furthermore, typhoon "Saling" was "an act of God and therefore beyond human control" such that petitioner cannot be answerable for the damages wrought thereby, absent any negligence on its part.

The trial court, giving credence to the ocular inspection report to the effect that subject school building had a "defective roofing structure," found that, while typhoon "Saling" was accompanied by strong winds, the damage to private respondents' houses "could have been avoided if the construction of the roof of [petitioner's] building was not faulty." The dispositive portion of the lower court's decision 7 reads, thus:

WHEREFORE, in view of the foregoing, the Court rendersjudgment (sic) in favor of the plaintiff (sic) and

against the defendants, (sic) ordering the latter to pay jointly and severally the former as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorney's fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did in a wanton fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:

I

THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON "SALING", AS AN ACT OF GOD, IS NOT "THE SOLE AND ABSOLUTE REASON" FOR THE RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERN'S FOUR (4) STOREY SCHOOL BUILDING.

II

THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION OF THE ROOF OF DEFENDANT'S SCHOOL BUILDING WAS FAULTY" NOTWITHSTANDING THE ADMISSION

14

THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON "SALING" WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.

III

THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL AS ATTORNEY'S FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THATRENDERS THIS CASE MOOT AND ACADEMIC.

IV

THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERN'S APPEAL WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.

As mentioned earlier, respondent Court of Appeals affirmed with modification the trial court's disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence, petitioner's resort to this Court, raising for resolution the issues of:

1. Whether or not the award of actual damages [sic] to respondent Dimaanos on the basis of speculation or conjecture, without proof or receipts of actual damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, with the latter having suffered, actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject matter of the case, during its pendency, has the right to pursuetheir complaint against petitioner when the case was already moot and academic by the sale of the property to third party.

4. Whether or not the award of attorney's fees when the case was already moot academic [sic] legally justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon "Saling" being an act of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without hearing, has supportin law.

The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of the building of private respondents resulting from the impact of the falling portions of the school building's roof ripped off by the strong winds of typhoon "Saling", was, within legal contemplation, due to fortuitous event? If so, petitioner cannot be held liable for thedamages suffered by the private respondents. This conclusion finds support in Article 1174 of Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible forthose events which could not be foreseen, or which, though foreseen, were inevitable.

15

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as "an event which takes place by accident and could not have been foreseen." 9 Escriche elaborates it as "an unexpected event or act of God which could neither be foreseen nor resisted." 10 Civilist Arturo M. Tolentino adds that "[f]ortuitous events may be produced by two general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires,etc. and (2) by the act of man, such as an armed invasion, attackby bandits, governmental prohibitions, robbery, etc." 11

In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any previous negligence or misconduct by reason of which the loss may have been occasioned. 12 An act of God cannot be invoked for the protection of a person who has been guilty of gross negligence innot trying to forestall its possible adverse consequences. When aperson's negligence concurs with an act of God in producing damage or injury to another, such person is not exempt from liability by showing that the immediate or proximate cause of thedamages or injury was a fortuitous event. When the effect is found to be partly the result of the participation of man — whether it be from active intervention, or neglect, or failure toact — the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. 13

In the case under consideration, the lower court accorded full credence to the finding of the investigating team that subject school building's roofing had "no sufficient anchorage to hold itin position especially when battered by strong winds." Based on such finding, the trial court imputed negligence to petitioner and adjudged it liable for damages to private respondents.

After a thorough study and evaluation of the evidence on record, this Court believes otherwise, notwithstanding the general rule that factual findings by the trail court, especially when

affirmed by the appellate court, are binding and conclusive upon this Court. 14 After a careful scrutiny of the records and the pleadings submitted by the parties, we find exception to this rule and hold that the lower courts misappreciated the evidence proffered.

There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be foreseen but is unavoidable despite any amount of foresight, diligence or care. 15

In order to be exempt from liability arising from any adverse consequence engendered thereby, there should have been no human participation amounting to a negligent act. 16 In other words; theperson seeking exoneration from liability must not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may be the failure to observe that degree of care, precaution, and vigilance which the circumstances justify demand, 17 or the omission to do something which a prudent and reasonable man, guided by considerations which ordinarily regulate the conduct ofhuman affairs, woulddo. 18 From these premises, we proceed to determine whether petitioner was negligent, such that if it were not, the damage caused to private respondents' house could have been avoided?

At the outset, it bears emphasizing that a person claiming damages for the negligence of another has the burden of proving the existence of fault or negligence causative of his injury or loss. The facts constitutive of negligence must be affirmatively established by competent evidence, 19 not merely by presumptions and conclusions without basis in fact. Private respondents, in establishing the culpability of petitioner, merely relied on the aforementioned report submitted by a team which made an ocular inspection of petitioner's school building after the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or viewing. 20 What is visual to the eye through, is not

16

always reflective of the real cause behind. For instance, one whohears a gunshot and then sees a wounded person, cannot always definitely conclude that a third person shot the victim. It couldhave been self-inflicted or caused accidentally by a stray bullet. The relationship of cause and effect must be clearly shown.

In the present case, other than the said ocular inspection, no investigation was conducted to determine the real cause of the partial unroofing of petitioner's school building. Private respondents did not even show that the plans, specifications and design of said school building were deficient and defective. Neither did they prove any substantial deviation from the approved plans and specifications. Nor did they conclusively establish that the construction of such building was basically flawed. 21

On the other hand, petitioner elicited from one of the witnesses of private respondents, city building official Jesus Reyna, that the original plans and design of petitioner's school building were approved prior to its construction. Engr. Reyna admitted that it was a legal requirement before the construction of any building to obtain a permit from the city building official (cityengineer, prior to the passage of the Building Act of 1977). In like manner, after construction of the building, a certification must be secured from the same official attesting to the readinessfor occupancy of the edifice. Having obtained both building permit and certificate of occupancy, these are, at the very least, prima facie evidence of the regular and proper construction of subject school building. 22

Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon "Saling", the same city official gave the go-signal for such repairs — without any deviation from the original design — and subsequently, authorized the use of the

entire fourth floor of the same building. These only prove that subject building suffers from no structural defect, contrary to the report that its "U-shaped" form was "structurally defective."Having given his unqualified imprimatur, the city building official is presumed to have properly performed his duties 23 in connection therewith.

In addition, petitioner presented its vice president for finance and administration who testified that an annual maintenance inspection and repair of subject school building were regularly undertaken. Petitioner was even willing to present its maintenance supervisor to attest to the extent of such regular inspection but private respondents agreed to dispense with his testimony and simply stipulated that it would be corroborative ofthe vice president's narration.

Moreover, the city building official, who has been in the city government service since 1974, admitted in open court that no complaint regarding any defect on the same structure has ever been lodged before his office prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are common occurrences in this country. If subject school building's roofing was not firmly anchored to its trusses, obviously, it could not have withstood long years and several typhoons even stronger than "Saling."

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the construction and maintenance of its school buildingin question and that typhoon "Saling" was the proximate cause of the damage suffered by private respondents' house.

With this disposition on the pivotal issue, private respondents' claim for actual and moral damages as well as attorney's fees

17

must fail. 24 Petitioner cannot be made to answer for a purely fortuitous event. 25 More so because no bad faith or willful act to cause damage was alleged and proven to warrant moral damages.

Private respondents failed to adduce adequate and competent proofof the pecuniary loss they actually incurred. 26 It is not enough that the damage be capable of proof but must be actually proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for measuring whatever compensatory damages are borne. 27 Private respondents merely submitted an estimated amount needed for the repair of the roof their subject building. What is more, whether the "necessary repairs" were caused ONLY by petitioner's alleged negligence in the maintenanceof its school building, or included the ordinary wear and tear ofthe house itself, is an essential question that remains indeterminable.

The Court deems unnecessary to resolve the other issues posed by petitioner.

As regards the sixth issue, however, the writ of execution issuedon April 1, 1993 by the trial court is hereby nullified and set aside. Private respondents are ordered to reimburse any amount orreturn to petitioner any property which they may have received byvirtue of the enforcement of said writ.

WHEREFORE, the petition is GRANTED and the challenged Decision isREVERSED. The complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET ASIDE. Accordingly, private respondents are ORDERED to return to petitioner any amount or property received by them by virtue of said writ. Costs against the private respondents.

SO ORDERED.

Narvasa, C.J., Romero and Kapunan, JJ., concur.

G. Exercise of Negligence (Art 2180)

H. Mistake and Waiver

G.R. No. L-56487 October 21, 1991

REYNALDA GATCHALIAN, petitioner, vs.ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.

Pedro G. Peralta for petitioner.

Florentino G. Libatique for private respondent.

 

FELICIANO, J.:p

At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's "Thames" mini bus ata point in San Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the way, while the bus was running along the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound"was suddenly heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side ofthe road, went off the road, turned turtle and fell into a ditch.Several passengers, including petitioner Gatchalian, were injured. They were promptly taken to Bethany Hospital at San Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found to have sustained physical injuries on the leg, arm and forehead, specifically described as follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1

18

On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their hospitalization and medical expenses. She also gave petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers, including petitioner,sign an already prepared Joint Affidavit which stated, among other things:

That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames metan accident at Barrio Payocpoc Norte, Bauang, La Unionwhile passing through the National Highway No. 3;

That after a thorough investigation the said Thames met the accident due to mechanical defect and went offthe road and turned turtle to the east canal of the road into a creek causing physical injuries to us;

xxx xxx xxx

That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries.

xxx xxx xxx 2

(Emphasis supplied)

Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action extra contractu to recover compensatory and moral damages. She alleged inthe complaint that her injuries sustained from the vehicular

mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that as a result, she had toretire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and deprived her of opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00as attorney's fees.

In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover had waived any right to institute any action against him(private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973.

After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminalor civil) that she may have had against respondent and the driverof the mini-bus.

On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages:

We are not in accord, therefore, of (sic) the ground ofthe trial court's dismissal of the complaint, althoughwe conform to the trial court's disposition of the case — its dismissal.

IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing

19

the plaintiff-appellant's complaint, the judgment of dismissal is hereby affirmed.

Without special pronouncement as to costs.

SO ORDERED. 3

In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her actual or compensatory damages as well asmoral damages.

We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit may be quoted again:

That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied)

A waiver, to be valid and effective, must in the first placebe couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him. 4 A waiver may not casually be attributed to a person when the terms thereof donot explicitly and clearly evidence an intent to abandon a right vested in such person.

The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes and Susaya v. Samar Express Transit (supra), where the Court in reading and rejecting a purported waiver said:

. . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they signed the document Exhibit I wherein they stated that "in consideration of the expenses which said operator has incurred in properly giving us the proper medical treatment, we hereby manifest our desire to waive any and all claims against the operator of the Samar Express Transit."

xxx xxx xxx

Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive their right to claim damages from appellant for the latter's failure to comply with their contract of carriage. Allthat said document proves is that they expressed a "desire" to make the waiver — which obviously is not the same as making an actual waiver of their right. A waiver of the kind invoked by appellant must be clear and unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) — which is not the case of the one relied upon in this appeal. (Emphasis supplied)

If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in the instant case cannot be regarded as a waiver cast in "clear and unequivocal" terms. Moreover, the circumstances under which the Joint Affidavit was signed by petitioner Gatchalian need to be considered. Petitioner testified that she was still reeling from the effects of the vehicular accident, having been in the hospital for only three days, when the purported waiver in the form of the Joint Affidavitwas presented to her for signing; that while reading the same, she experienced dizziness but that, seeing the other passengers who had also suffered injuries sign the document,she too signed without bothering to read the Joint Affidavit

20

in its entirety. Considering these circumstances there appears substantial doubt whether petitioner understood fully the import of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether she actually intended thereby to waive any right of action against private respondent.

Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect ofwhose safety a common carrier must exercise extraordinary diligence, we must construe any such purported waiver most strictly against the common carrier. For a waiver to be valid and effective, it must not be contrary to law, morals, public policy or good customs. 5 To uphold a supposed waiver of any right to claim damages by an injured passenger, under circumstances like those exhibited in this case, would be to dilute and weaken the standard of extraordinary diligence exacted by the law from common carriers and hence to render that standard unenforceable. 6 We believe such a purported waiver is offensive to public policy.

Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there was no enforceable waiverof her right of action, should have awarded her actual or compensatory and moral damages as a matter of course.

We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed upon a common carrier. 7 In case of death or injuries to passengers, a statutory presumption arises that the common carrier was at fault or had acted negligently "unless it proves that it [had] observed extraordinary diligence as prescribed in Articles 1733 and 1755." 8 In fact, because of this statutory presumption, it has been held that a court need not even make an express finding of fault or negligence on the part of the common

carrier in order to hold it liable. 9 To overcome this presumption, the common carrier must slow to the court that it had exercised extraordinary diligence to prevent the injuries. 10The standard of extraordinary diligence imposed upon common carriers is considerably more demanding than the standard of ordinary diligence, i.e., the diligence of a good paterfamilias established in respect of the ordinary relations between members of society. A common carrier is bound to carry its passengers safely" as far as human care and foresight can provide, using the utmost diligence of a very cautious person, with due regard to all the circumstances". 11

Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records before the Court are bereft of any evidence showing that respondent had exercised the extraordinary diligencerequired by law. Curiously, respondent did not even attempt, during the trial before the court a quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of force majeure. But allegation is not proof and here again, respondent utterly failedto substantiate his defense of force majeure. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure, the carrier must clearlyshow not only that the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court summed up the essential characteristics of force majeure by quoting with approval from the Enciclopedia Juridica Española:

21

Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligoris exempt from liability non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines "caso fortuito" as 'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpectedfire, shipwreck, violence of robber.

In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says: 'In legal sense and, consequently, also in relation to contracts, a "caso fortuito" presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the "caso fortuito", or ifit can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation ina normal manner; and (4) the obligor must be free fromany participation in the aggravation of the injury resulting to the creditor.

Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of respondent common carrier. In her direct examination, petitioner Gatchalian narrated that shortly before the vehicle went off the road and into a ditch, a "snapping sound" was suddenly heard at one part of the bus. One of the passengers, an old woman, cried out, "What happened?" ("Apay addan samet nadadaelen?"). The driver replied, nonchalantly, "That is only normal" ("Ugali ti makina dayta"). The driver did not stop to check if anything had gone wrong with the bus. Moreover, the driver's reply necessarily indicated that the same "snapping

sound" had been heard in the bus on previous occasions. This could only mean that the bus had not been checked physically or mechanically to determine what was causing the "snapping sound" which had occurred so frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating condition, and even a modicum of concern for life and limb of passengers dictated that the bus be checked and repaired. The obvious continued failure of respondentto look after the roadworthiness and safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had heard once again the "snapping sound" and the cry of alarmfrom one of the passengers, constituted wanton disregard of the physical safety of the passengers, and hence gross negligence on the part of respondent and his driver.

We turn to petitioner's claim for damages. The first item in thatclaim relates to revenue which petitioner said she failed to realize because of the effects of the vehicular mishap. Petitioner maintains that on the day that the mini-bus went off the road, she was supposed to confer with the district supervisorof public schools for a substitute teacher's job, a job which shehad held off and on as a "casual employee." The Court of Appeals,however, found that at the time of the accident, she was no longer employed in a public school since, being a casual employeeand not a Civil Service eligible, she had been laid off. Her employment as a substitute teacher was occasional and episodic, contingent upon the availability of vacancies for substitute teachers. In view of her employment status as such, the Court of Appeals held that she could not be said to have in fact lost any employment after and by reason of the accident. 13 Such was the factual finding of the Court of Appeals, a finding entitled to due respect from this Court. Petitioner Gatchalian has not submitted any basis for overturning this finding of fact, and shemay not be awarded damages on the basis of speculation or conjecture. 14

22

Petitioner's claim for the cost of plastic surgery for removal ofthe scar on her forehead, is another matter. A person is entitledto the physical integrity of his or her body; if that integrity is violated or diminished, actual injury is suffered for which actual or compensatory damages are due and assessable. PetitionerGatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A scar, especially one on the face of the woman, resulting from the infliction of injuryupon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to her conditio ante. If the scar isrelatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be correspondingly modest.In Araneta, et al. vs. Areglado, et al., 15 this Court awarded actual or compensatory damages for, among other things, the surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:

We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as compensation for the "permanent deformity and — something like an inferiority complex"as well as for the "pathological condition on the leftside of the jaw" caused to said plaintiff, the court below overlooked the clear evidence on record that to arrest the degenerative process taking place in the mandible and restore the injured boy to a nearly normal condition, surgical intervention was needed, for which the doctor's charges would amount to P3,000.00, exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation, according to Dr. Diño, would probably have to be repeated in order to effectuate a complete cure, while removal of the scar on the face obviously demanded plastic surgery.

xxx xxx xxx

The father's failure to submit his son to a plastic operation as soon as possible does not prove that suchtreatment is not called for. The damage to the jaw andthe existence of the scar in Benjamin Araneta's face are physical factsthat can not be reasoned out of existence. That the injury should be treated in order to restore him as far as possible to his originalcondition is undeniable. The father's delay, or even his negligence, should not be allowed to prejudice the sonwho has no control over the parent's action nor impairhis right to a full indemnity.

. . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his feelings of inferiority due to consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and further considering that a repair, however, skillfully conducted, is never equivalent to the original state, we are of the opinion that the indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis supplied)

Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00. 16 Upon the other hand, Dr. Fe Tayao Lasam, a witness presented as an expert by petitioner, testified that the cost would probably be between P5,000.00 to P10,000.00. 17 In view of this testimony, and the fact that a considerable amount of time has lapsed since the mishap in 1973 which may be expected to increase not only thecost but also very probably the difficulty of removing the scar, we consider that the amount of P15,000.00 to cover the cost of such plastic surgery is not unreasonable.

Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may be awarded where gross

23

negligence on the part of the common carrier is shown. 18 Since we have earlier concluded that respondent common carrier and his driver had been grossly negligent in connection with the bus mishap which had injured petitioner and other passengers, and recalling the aggressive manuevers of respondent, through his wife, to get the victims to waive their right to recover damages even as they were still hospitalized for their injuries, petitioner must be held entitled to such moral damages. Considering the extent of pain and anxiety which petitioner must have suffered as a result of her physical injuries including the permanent scar on her forehead, we believe that the amount of P30,000.00 would be a reasonable award. Petitioner's claim for P1,000.00 as atttorney's fees is in fact even more modest. 19

WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instanceof La Union dated 4 December 1975 are hereby REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for theremoval of the scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregateamount to bear interest at the legal rate of 6% per annum counting from the promulgation of this decision until full payment thereof. Costs against private respondent.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

I. Damnum Absque Injuria

 

G.R. No. 96410 July 3, 1992

NATIONAL POWER CORPORATION and BENJAMIN CHAVEZ, petitioners, vs.THE COURT OF APPEALS, RICARDO CRUZ, DOMINGO CRUZ, FERNANDO CRUZ, LEOPOLDO CRUZ, MARIA CRUZ, MAURA MARCIAL, JUAN PALAD, NICANOR PALAD, ZOSIMO PALAD, NICASIO SAN PEDRO, FELIMON SANTOS, ISAIAS SANTOS, JEREMIAS SANTOS, and JOSE SANTOS, respondents.

 

NOCON, J.:

Before Us is a petition for review on certiorari instituted by the National Power Corporation (NPC) and Benjamin Chavez, Plant Superintendent ofNPC, from the decision of the Court of Appeals promulgated on September 18, 1990. 1 The appellate court affirmed in toto the decision in Civil Case No.SM-1552 of the Regional Trial Court of Malolos, Bulacan, Branch XVI, which awarded damages, interest, attorney's fees and litigation expenses against petitioners in the following amounts with interest at 12% per annum from the date of filing of the complaint until fully paid:

Ricardo Cruz P 22,800.00Zosimo Palad 24,200.00Isaias T. Santos 45,500.00Felimon Santos 42,900.00Maura T. Marcial 49,280.00Domingo Cruz 121,900.00Leopoldo Cruz 21,000.00Maria R. Cruz 34,000.00Nicanor Palad 28,768.00Nicasio San Pedro 16,950.00

24

Juan Palad 27,600.00Jose T. Santos 38,410.00Jeremias T. Santos 11,500.00Fernando Cruz 55,780.00

The petitioners were further ordered to pay the private respondents 30% of the amounts payable by them as attorney's feesand P10,000.00 as litigation expenses, and to pay the costs of suit. 2

It appears that in the early morning hours of October 27, 1978, at the height of typhoon "Kading", a massive flood covered the towns near Angat Dam, particularly the town of Norzagaray, causing several deaths and the loss and destruction of houses, farms, plants, working animals and other properties of the peopleresiding near the Angat River. Private respondents recalled that on the said day, they were awakened by the sound of rampaging water all around them. The water came swiftly and strongly that before they could do anything to save their belongings, their houses had submerged, some even swept away by the strong current.A number of people were able to save their lives only by climbingtrees.

Private respondents blamed the sudden rush of water to the reckless and imprudent opening of all the three (3) floodgates ofthe Angat Dam spillway, without prior warning to the people living near or within the vicinity of thedam. 3

Petitioners denied private respondents' allegations and, by way of defense, contended that they have maintained the water in the Angat Dam at a safe level and that the opening of the spillways was done gradually and after all precautionary measures had been taken. Petitioner NPC further contended that it had always exercised the diligence of a good father in the selection of its

officials and employees and in their supervision. It also claimedthat written warnings were earlier sent to the towns concerned. At the time typhoon "Kading" hit Bulacan with its torrential rain, a great volume of flood water flowed into the dam's reservoir necessitating the release of the water therein in orderto prevent the dam from collapsing and causing the loss of lives and tremendous damage to livestock and properties.

Petitioners further contended that there was no direct causal relationship between the alleged damages suffered by the respondents and the acts and omissions attributed to the former. That it was the respondents who assumed the risk of residing nearthe Angat River, and even assuming that respondents suffered damages, the cause was due to a fortuitous event and such damagesare of the nature and character of damnum absque injuria, hence, respondents have no cause of action against them.

As assignment of errors of the appellate court, petitioners raised the following:

(a) IN HOLDING THAT THE RULING IN JUAN F. NAKPIL & SONS VS. COURT OF APPEALS, 4 IS APPLICABLE TO THE INSTANT CASE UNDER WHICH PETITIONERS ARE LIABLE EVEN THOUGH THE COMING OF A TYPHOON WAS FORCE MAJEURE;

(b) IN NOT HOLDING THAT THE GIVING OF THE WRITTEN NOTICE OF WARNING BY PETITIONERS ABSOLVED THEM FROM LIABILITY;

(c) IN NOT HOLDING THAT ANY DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS DAMNUM ABSQUE INJURIA; and

(d) IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION.

We find the petition devoid of merit.

25

We do not agree with the petitioners that the decision handed down in Juan F. Nakpil & Sons, supra, is not applicable to the present case. The doctrine laid down in the said case is still good law, as far as the concurrent liability of an obligor in case of a force majeure, is concerned.

The case of National Power Corp. v. Court of Appeals, 5 as a matter of fact,reiterated the ruling in Juan F. Nakpil & Sons. In the former case, this Court ruled that the obligor cannot escape liability, if upon the happening of a fortuitous event or an act of God, a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided in Article 1170 of the Civil Code 6 which results in lossor damage.

Petitioners contended that unlike in Juan F. Nakpil & Sons, there was no privity of contract between herein petitioners and private respondents. They further alleged that they owed no specific dutyto private respondents in the same way that the architect of a building owed a specific duty to its owner. Petitioners, however,failed to consider that even if there was no contractual relationbetween themselves and private respondents, they are still liableunder the law on quasi-delict. Article 2176 of the Civil Code explicitly provides "whoever by act or omission causes damage to another there being fault or negligence is obliged to pay for thedamage done."

Neither can petitioners escape liability by invoking force majeure. Act of God or force majeure, by definition, are extraordinary events not foreseeable or avoidable, events that could not be foreseen, or which, though foreseen, are inevitable. It is therefore not enough that the event should not have been foreseen or anticipated, as is commonly believed, but it must be one impossible to foresee or to avoid. 7 As a general rule, no person

shall be responsible for those events which could not be foreseenor which though foreseen, were inevitable. 8

However, the principle embodied in the act of God doctrine strictly requires that the act must be occasioned solely by the violence of nature. Human intervention is to be excluded from creating or entering into the cause of the mischief. When the effect is found to be in part the result of the participation of man, whether due to his active intervention or neglect or failureto act, the whole occurrence is then humanized and removed from the rules applicable to the acts of God. 9

So generally it cannot be said that damage, injury or loss is due to an act of God where it was caused merely by excessive or heavy rainfall, storms and to weather conditions which are not unusual in character,those which could have been reasonably anticipated or where the injury complained of is due rather to the negligence or mismanagement of man than to the disturbance of the elements or where such damage, injury or loss might have been mitigated or prevented by diligence exercised after the occurrence. 10

In the case at bar, although the typhoon "Kading" was an act of God, petitioners can not escape liability because their negligence was the proximate cause of the loss and damage. The Court of Appeals found that:

As hereinabove stated, it has been shown that the defendants failed to take the necessary safeguards to prevent the danger that the Angat Dam posed in a situation of such nature as that of typhoon "Kading". The representative of the "PAG-ASA" who testified in these proceedings, Justo Iglesias, Jr., stated that based on their records the rainfall on October 26 and

26

27, 1978 is classified only as moderate, and could nothave caused flash floods. He testified that flash floods exceeds 50 millimeters per hour and lasts for at least two (2) hours. He stated that typhoon "Yaning" which occurred on October 7 to 14, 1978 gave a much heavier rainfall than "Kading", and so did other previous typhoons. 11

This was corroborated by the testimonies of private respondents, most of whom have lived in the area all their lives, but had never before experienced such flooding as would have placed them on alert, even during previous stronger typhoons such as "Dading" and "Yoling."

What more, when the evidence shows that as early as October 25, 1978 the newspapers had announced the expected occurrence of a powerful typhoon code-named "Kading". 12 On October 26, 1978, Bulletin Today had as its headline the coming of the typhoon. 13 Despite these announcements, the water level in the dam was maintained at its maximum from October 21, until midnight of October 26, 1978. 14

At 2100 hrs. of October 26, 1978, NPC started to open the three floodgates simultaneously from 1 meter to 8 meters at 0100 hrs. of October 27, 1978, until all floodgates were opened to the maximum of 14 to 14.5 meters by 0600 hrs. of the same day. 15

This was also the finding of the court a quo which We quote:

The defendants contended that the release of water hadbeen "gradual". The lower court did not find this true. The exhibit presented by the defendants (Exhs. AA and BB-2) show that on October 26, 1978 there was very little opening of the spillways, ranging from 1 meter to 2 meters. However, from midnight or from the

first hours of October 27, 1978 the opening of all thethree (3) spillways started at 5 meters and swiftly went as far up as 14 meters. As observed correctly by the trial court had the opening of all the three (3) spillways been made earlier and gradually, there wouldhave been no need to open the same suddenly.

What made the situation worse was that the opening of the spillways was made at the unholy hours when residents were asleep. The plaintiffs all testified that they were never given any warning that the spillways would be opened to that extent. . . . 16

It has been held in several cases that when the negligence of a person concurs with an act of God producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt he must be free from any previous negligence or misconduct by which the loss or damage may have been occasioned. 17

Thus, We cannot give credence to petitioners' third assignment oferror that the damage caused by the opening of the dam was in thenature of damnum absque injuria, which presupposes that although there was physical damage, there was no legal injury in view of the fortuitous events. There is no question that petitioners havethe right, duty and obligation to operate, maintain and preserve the facilities of Angat Dam, but their negligence cannot be countenanced, however noble their intention may be. The end does not justify the means, particularly because they could have done otherwise than simultaneously opening the spillways to such extent. Needless to say, petitioners are not entitled to counterclaim.

Petitioners insist that their giving of prior written warning should absolve them from liability. Notice of warning was served

27

by them on "a responsible employee in the office of the mayor of the municipality, or in the absence of such responsible employee,on a member of the municipal police force." 18 That being the case, they alleged that the presumption that official duty has been performed must be credited in their favor. The presumption was, however, refuted by the evidence and testimonies of respondents who all denied having been given any warning that thespillways would be opened to such extent and at a short period oftime.

The letter 19 itself, addressed merely "TO ALL CONCERNED", would not strike one to be of serious importance, sufficient enough to set alarm and cause people to take precautions for their safety'ssake. As testified to by driver Leonardo Garcia of the NPC, he was instructed by Chavez to give notice "to any personnel of the municipality [sic] or even the policemen of the municipalities concerned regarding the release of water from the reservoir." 20 His instructions did not specify the municipal officer who shouldreceive the notice, but that priority must be given to the police. 21 Thus, copies of the notices were given to Pat. Carillo of Norzagaray, Cicero Castro, municipal employee of Angat, Pat. Jaime Nicholas of Bustos, Cpl. Josefino Legaspi of Baliwag, Pat. Luzvimin Mariano of Plaridel and Pat. Dantes Manukduk of Calumpit.

As observed by the Court of Appeals:

Clearly, the notices were not delivered, or even addressed to responsible officials of the municipalities concerned who could have disseminated the warning properly. They were delivered to ordinary employees and policemen. As it happened, the said notices do not appear to have reached the people concerned, which are the residents beside the Angat River. The plaintiffs in this case definitely did not

receive any such warning. Indeed, the methods by whichthe defendants allegedly sent the notice or warning was so ineffectual that they cannot claim, as they do in their second assignment of error, that the sending of said notice has absolved them from liability. 22

WHEREFORE, finding no reversible error in the Decision appealed from, the same is hereby affirmed in toto, with cost against petitioner.

SO ORDERED.

Narvasa, C.J., Paras, Padilla and Regalado, JJ., concur.

J. Emergency Rule

 

G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

28

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners, vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

 

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil CaseNo. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral damages, attorney's fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George Koh McKee, Christopher Koh McKee and petitioner AraceliKoh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the deceased Kim Koh McKee, werethe plaintiffs in Civil Case No. 4478, while petitioner Carmen

Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck atthe time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, inPulong Pulo Bridge along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of the collision, Kim was seated on thelap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando.When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted

29

from the right side of the road and into the lane of the car. Theboys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn ofthe car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakesand thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred inthe lane of the truck, which was the opposite lane, on the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a team of police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the investigating officers, the bridge isdescribed to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the bridgewhile the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine (9) "footsteps", while skid marks produced bythe left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid marks.

In his statement to the investigating police officers immediatelyafter the accident, Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 asmoral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 forthe burial lot and P9,500.00 for the tomb, plus attorney's fees. 3

In the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the sumof P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 forthe hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable to the MedicalCenter, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide

30

and Physical Injuries and Damage to Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, privaterespondents asserted that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidatethe case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751,

which private respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge Mario Castañeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses AraceliKoh McKee, Fernando Nuñag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs.Araceli McKee, Salud Samia, Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against theaccused Ruben Galang in the aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty beyond reasonable doubt of the crime charged inthe information and after applying the provisions of Article 365 of the Revised Penal Code and

31

indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs ofLoida Bondoc the amount of P20,000.00 representing herloss of income; to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980;on the same day, counsel for petitioners filed with Branch III ofthe court — where the two (2) civil cases were pending — a manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two(2) civil cases on 12 November 1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees.17 The dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to bein favor of the defendants and against the plaintiffs,these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented andunrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed for

(sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads:

32

WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damagesP 12,000.00 as death indemnityP 16,000.00 for the lot and tomb (Exhs. U and U-1)P 4,000.00 expenses for holding a wake (p.9, tsn April 19, 1979)P 950.00 for the casket (Exh. M)P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damagesP 12,000.00 as death indemnityP 1,000.00 for the purchase of the burial lot (Exh. M)P 950.00 for funeral services (Exh. M-1)P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damagesP 672.00 for Clark Field Hospital (Exh. E)P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 andD-2)

P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damagesP 1,055.00 paid to St. Francis Medical Center (Exhs. G andG-1)P 75.00 paid to St. Francis Medical Center(Exhs. G-2 and G-3)P 428.00 to Carmelite General Hospital (Exh. F)P 114.20 to Muñoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damagesP 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)P 321.95 to F.C.E.A. Hospital (Exhs. G andD-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless

33

imprudence which caused the accident. The appellate court furthersaid that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defenseof having exercised the diligence of a good father of a family inselecting and supervising the said employee. 27 This conclusion ofreckless imprudence is based on the following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two(2) boys tried to cross the right lane on the right side of the highway going to SanFernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to

give us the right of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continuedon its way.

Q What happened after that?

A After avoiding the two (2) boys, the cartried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit"O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galangdid not reduce its speed before the actualimpact of collision (sic) as you narrated in this Exhibit "1," how did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of thehighway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31, Appellants' Brief).

34

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when ithad already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger ofthe truck, and Roman Dayrit, who supposedly lived across the street.

Regarding Soliman, experience has shown that in the ordinary course of events people usually take the sideof the person with whom they are associated at the time of the accident, because, as a general rule, theydo not wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously created among the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan.31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not go to the succor of the injured persons. He said he wanted to call the police authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents submitted by the court below,said Exhibit 2 was not submitted by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony thatinspite of the fact that you admitted thatthe road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only about ten (10) meters away from you for the first time?

35

xxx xxx xxx

A I noticed it, sir, that it was about ten(10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p.16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L. Nuñag, stated that he found skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and none were found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck were caused by the truck's frontwheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a

collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of thedefendants in the selection of their driver or in the supervision over him. Appellees did not allege such defense of having exercised the duties of a good father of a family in the selection and supervision oftheir employees in their answers. They did not even adduce evidence that they did in fact have methods of selection and programs of supervision. The inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's attention was on the highway, he would have sighted the car earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried tostop when a collision was already inevitable, because at the time that he entered the bridge his attention was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the items must be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court, in its Resolution of 3 April1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30

Hence, this petition.

36

Petitioners allege that respondent Court:

I

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN ITTOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM(sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION ANDMADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.

V

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURTWHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARECONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONSMADE BY THE PRIVATE RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSEOF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSEOF DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERSWHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the petition. 32 After the said Comment

37

33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave due course to the instant petitions and required petitioners to file their Brief, 35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-arguments, some observations on the procedural vicissitudes of these cases are inorder.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed, and understandably so, since by then no specific provision of law or ruling of this Court expressly allowed such aconsolidation, that an independent civil action, authorized underArticle 33 in relation to Article 2177 of the Civil Code, such asthe civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33 itself expressly providesthat the "civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." Be that as it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigants, 36

would have easily sustained a consolidation, thereby preventing

the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their respective orientation, perception and perhaps even prejudice, the same facts differently, andthereafter rendering conflicting decisions. Such was what happened in this case. It should not, hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that thepresent provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action subject, however, to the condition that no final judgment has been rendered in that criminal case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirelyirrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the same manner to be filed separately from the criminal case, may proceed similarly regardless of the resultof the criminal case.

38

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed independently even during the pendency of the latter case, the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be sobecause the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why thedecision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. It would have been entirely different if the petitioners' cause of action was for damages arising from a delict, in which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against Galang would have been conclusive in the civil cases for the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule 45 of theRevised Rules of Court, only questions of law may be raised. The

resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment. 43 The same is true where the appellate court's conclusions are grounded entirely on conjectures, speculations and surmises 44 or where the conclusions of the lower courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the findingsand conclusions of the trial court and the respondent Court in its challenged resolution are not supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the laneof the car. As testified to by petitioner Araceli Koh McKee:

39

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two(2) boys tried to cross the right lane on the right side of the highway going to SanFernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the cartried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane of the truck was necessary in order to avoid what was, in his mind at that time, agreater peril — death or injury to the two (2) boys. Such act canhardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus:

. . . Negligence is the omission to do something whicha reasonable man, guided by those considerations whichordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other personsuffers injury." (Cooley on Torts, Fourth Edition, vol. 3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e held:

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that (reasonable care and caution which an ordinarily prudent person would have used in the same situation?) If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Romanlaw. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

40

. . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not anabsolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a placeof danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of thecollision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,produces the injury, and without which the result would not have occurred. And more comprehensively, theproximate legal cause is that acting first and producing the injury, either immediately or by settingother events in motion, all constituting a natural andcontinuous chain of events, each having a close causalconnection with its immediate predecessor, the final event in the chain immediately effecting the injury asa natural and probable result of the cause which firstacted, under such circumstances that the person responsible for the first event should, as an ordinaryprudent and intelligent person, have reasonable groundto expect at the moment of his act or default that an injury to some person might probably result therefrom.50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in thecollision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continuedat full speed towards the car. The truck driver's negligence

41

becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which couldhave partially accommodated the truck. Any reasonable man findinghimself in the given situation would have tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents' claim that there was an error in the translation by the investigating officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly performed; 53 unless there is proof to the contrary, this presumption holds. In the instant case, private respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang

did not reduce its speed before the actualimpact of collision as you narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of thehighway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31, Appellants' Brief) 54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic),sir, and I went to the place to help the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless. (tsn. 31,

42

April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clearchance finds application here. Last clear chance is a doctrine inthe law of torts which states that the contributory negligence ofthe party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. 56

In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person'sown acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, aperson who has the last clear chance or opportunity ofavoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed

to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grosslynegligent in placing himself in peril, if he, aware ofthe plaintiff's peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimantnotwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligencebut the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff

43

[Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate AppellateCourt, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence ofthe plaintiff, thus making the defendant liable to theplaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence in failingto exert ordinary care to avoid the collision which was, in law, the proximate cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage. Article 2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also forthose of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

The diligence of a good father referred to means the diligence inthe selection and supervision of employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolutionof 3 April 1984 finds no sufficient legal and factual moorings.

In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

44

SO ORDERED.

Gutierrez, Jr., Feliciano and Romero, JJ., concur.

Bidin, J., took no part.

K. VOLENTI NON-FIT INJURIA

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs.HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

Herman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

 

PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant ishereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of

P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)

Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in theevening of June 28 until the early morning of June 29,1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoonhad abated and when the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the direction ofthe Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which waspartly owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts

45

for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at theYJ Cinema building which was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his wife Jane, together with Ernestoand one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in Guerrero. Yabes instructed his boys to fish for thebody of the deceased. The body was recovered about twometers from an electric post.

In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric

wire about 30 meters long strung across the street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired from an in service training on resuscitation,he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen onthe way. He told them about the grounded lines of the INELCO In the afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been electrocuted. Among the sympathizerswas Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin wasgrayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound" (Exh.

46

C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand wasa burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated thecause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to prove that on and even before June 29, 1967 the electric service system of the INELCO in the whole franchise area, including Area No. 9 which covered theresidence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute ahazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. Asa public service operator and in line with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries to persons and damage to property in case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up of the areas respectively assigned to them.

Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely, at the

southern approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in the eastern part near the residence of the late Governor Simeon Mandac; in the far north nearthe defendant's power plant at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967he passed by the intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9.He did not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out thebody of Isabel Lao Juan.

A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the deceased three hours after her death, because cyanosis which means lack of oxygencirculating in the blood and rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of thedeceased (Exhibits C-1 and C-2) is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the laceration in her palm would have been bigger and the injury moremassive. (CA Decision, pp. 18-21, Rollo)

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An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI onJune 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died simply either by drowning or byelectrocution due to negligence attributable only to herself and not to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installationof a burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.

In this petition for review the petitioner assigns the following errors committed by the respondent CA:

1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay alleged declarations of Ernesto de la Cruzas part of the res gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake

were not fortuitous events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan.

3. The respondent Court of Appeals gravelyabused its discretion and erred in not applying the legal principle of "assumption of risk" in the present case to bar private respondents from collectingdamages from petitioner company.

4. That the respondent Court of Appeals gravely erred and abused its discretion incompletely reversing the findings of fact of the trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.

6. The trial court did not err in awardingmoral damages and attorney's fees to defendant corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the damages granted by respondent Court of Appeals areimproper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, three main issues are apparent: (1) whether or not thedeceased died of electrocution; (2) whether or not petitioner may

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be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on theleft palm of the former. Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns," and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really thecase when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests thatthe switch to said burglar alarm was left on. But this is mere

speculation, not backed up with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that"during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).

Furthermore the CA properly applied the principle of res gestae. TheCA said:

Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to discredit the testimonies of these two young ladies. They were one in the affirmation that the deceased, while wadingin the waist-deep flood on Guerrero Street five or sixmeters ahead of them, suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to help, they were stopped by the sight of anelectric wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also tried to approach the deceased, but he turned back shouting that the water was grounded. These bits of evidence carry much weight. For the subject of the testimonies was a startling occurrence, and the declarations may be considered part of the res gestae. (CA Decision, p. 21, Rollo)

For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the statements made must concern the occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any

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abuse of discretion on the CA' part in view of the satisfaction of said requisites in the case at bar.

The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify does not make the testimony ofLinda Alonzo Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly, We considered partof the res gestae a conversation between two accused immediately after commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).

While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the waist-deep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained submerged.Under such a circumstance, it is undeniable that a state of mind characterized by nervous excitement had been triggered in Ernestode la Cruz's being as anybody under the same contingency could have experienced. As such, We cannot honestly exclude his shouts that the water was grounded from the res gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay."

Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the submission that the statement must be one of facts rather than opinion, We cannot agree to the proposition that the one made by him was a mere opinion. On the contrary, his shout was a translation of an actuality as perceived by him through his sense of touch.

Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party to a case, it is necessary that the evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence in question is equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross examination:

Q. And that Erning de la Cruz, how far did he reach from the gate of the house?

A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)

The foregoing shows that petitioner had the opportunity to verifythe declarations of Ernesto de la Cruz which, if truly adverse toprivate respondent, would have helped its case. However, due to reasons known only to petitioner, the opportunity was not taken.

Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted correctly in disposing the argument that petitioner be exonerated from

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liability since typhoons and floods are fortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not said eventuality which directly caused the victim's death. It was through the intervention of petitioner's negligence that death took place. We subscribe to the conclusions of the respondent CA when it found:

On the issue whether or not the defendant incurred liability for the electrocution and consequent death of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The witnesses testified in a general way about their duties and the measures which defendant usually adopts to prevent hazards to life and limb. From these testimonies, the lower court found "that the electric lines and other equipment of defendant corporation were properly maintained by a well-trained team of lineman, technicians and engineers working around the clock to insure that these equipments were in excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower court, however, was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of the emergency situation brought about by the typhoon.

The lower court made a mistake in assuming that defendant's employees worked around the clock during the occurrence of the typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out on an inspection

trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Officeat the Life theatre on Rizal Street was still closed. (pp.63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of the franchise area of the INELCO only on June 30, 1967, the day following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. on June 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days after the typhoon, the INELCO people heard "rumors that someone was electrocuted" so he sent one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came tothe INELCO plant and asked the INELCO people to inspect their lines. He went with Engr. Juan and theirinspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29,1967 the typhoon ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)

In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be in constant vigil to

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prevent or avoid any probable incident that might imperil life or limb. The evidence does not show that defendant did that. On the contrary, evidence discloses that there were no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)

Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the general public"... considering that electricity is an agency, subtle and deadly, the measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to a fortuitousevent. "When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were ontheir way to the latter's grocery store "to see to it that the goods were not flooded." As such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been heldthat a person is excused from the force of the rule, that when he

voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life orproperty of another is in peril (65A C.S.C. Negligence(174(5), p.301), or when he seeks to rescue his endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2,p. 1167). Clearly, an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impendingloss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be without regard to petitioner's consent as she was on her way to protect her merchandise. Hence, private respondents, as heirs, may not bebarred from recovering damages as a result of the death caused bypetitioner's negligence (ibid., p. 1165, 1166).

But petitioner assails the CA for having abused its discretion incompletely reversing the trial court's findings of fact, pointingto the testimonies of three of its employees its electrical engineer, collector-inspector, lineman, and president-manager to the effect that it had exercised the degree of diligence requiredof it in keeping its electric lines free from defects that may imperil life and limb. Likewise, the said employees of petitionercategorically disowned the fatal wires as they appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated above, petitioner wasin fact negligent. In a like manner, petitioner's denial of ownership of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the wounds as described by the witnesses who saw them can lead to

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no other conclusion than that they were 'burns', and there was nothing else in the street where the victim was wading thru whichcould cause a burn except the dangling live wire of defendant company" (supra).

"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair broken lines"(Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National Power Corporation set out in the early morning of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The foregoing shows that petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming the negligence of petitioner. To aggravate matters, the CA found:

. . .even before June 28 the people in Laoag were already alerted about the impending typhoon, through radio announcements. Even the fire department of the city announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularitiesin the flow of electric current were noted because "amperes of the switch volts were moving". And yet, despite these danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm was done. Asked why the delay, LoretoAbijero answered that he "was not the machine tender of the electric plant to switch off the current." (pp.467-468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)

From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but tediously considered the factual circumstances at hand pursuant to its

power to review questions of fact raised from the decision of theRegional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).

In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's fees.Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.

The exclusion of moral damages and attorney's fees awarded by thelower court was properly made by the respondent CA, the charge ofmalice and bad faith on the part of respondents in instituting his case being a mere product of wishful thinking and speculation. Award of damages and attorney's fees is unwarranted where the action was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, itis damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).

WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.

SO ORDERED.

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Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

IV. VICARIOUS LIABILITY (Art 2180)

A. PARENTS AND GUARDIANS

G.R. No. L-10134             June 29, 1957

SABINA EXCONDE, plaintiff-appellant, vs.DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

Magno T. Bueser for appellant.Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees.

BAUTISTA ANGELO, J.:

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of Isidoro

Caperina and Amado Ticzon on March 31, 1949 in the Court of FirstInstance of Laguna (Criminal Case No. 15001). During the trial, Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a separate civil action for damages against the accused. After trial, Dante Capuno was found guilty of the crime charged and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was only (15) years old when he committed the crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno asking for damages in the aggregate amount of P2,959.00 for the death of herson Isidoro Caperiña. Defendants set up the defense that if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father Delfin because at the time of the accident, the former was not under the control, supervision and custody, of the latter. This defense was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the case was certified to us on the ground that the appeal only involves questions of law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said cityupon instruction of the city school's supervisor. From the schoolDante, with other students, boarded a jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeepturned turtle and two of its passengers, Amado Ticzon and IsidoreCaperiña, died as a consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that his son was going to attend a

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parade. He only came to know it when his son told him after the accident that he attended the parade upon instruction of his teacher.

The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally with his son Dante, for damages resulting from the death of Isidoro Caperiña caused by the negligent act of minor Dante Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and omissions, but also for those of persons for whom another isresponsible.

The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor children who live with them.

x x x           x x x           x x x

Finally, teachers or directors of arts and trades are liablefor any damages caused by their pupils or apprentices while they are under their custody.

Plaintiff contends that defendant Delfin Capuno is liable for thedamages in question jointly and severally with his son Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a minor and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is evident. And so,

plaintiff contends, the lower court erred in relieving the fatherfrom liability.

We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School and as part ofhis extra-curricular activity, he attended the parade in honor ofDr. Jose Rizal upon instruction of the city school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred. In the circumstances, it is clear that neither the headof that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institute of arts and trades as provided by law.

The civil liability which the law impose upon the father, and, incase of his death or incapacity, the mother, for any damages thatmay be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating themand instructing them in proportion to their means", while, on theother hand, gives them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good fatherof a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.

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WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action.

Bengzon, Montemayor, Labrador and Endencia, JJ., concur.Paras, C.J., concurs in the result.

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendantsof Agapito Elcano, deceased, plaintiffs-appellants, vs.REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said minor, defendants-appellees.

Cruz & Avecilla for appellants.

Marvin R. Hill & Associates for appellees.

 

BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion todismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground that his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such denial, reiterating theabove grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after thoroughly examining the arguments therein contained, the Court finds the same to be meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964is hereby reconsidered by ordering the dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)

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Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF DEFENDANTS THAT -

I

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THEREVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICTA;

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194OF THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of

First Instance of Quezon City. After due trial, he was acquitted on the ground that his act was not criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has favored Us with a copy of the decision of acquittal, presumably because appellants do not dispute that suchindeed was the basis stated in the court's decision. And so, whenappellants filed their complaint against appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case wherein the action forcivil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill, notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald, though a minor, living with and getting subsistenee from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of the dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated,on the basis of a scholarly dissertation by Justice Bocobo on thenature of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault, with pertinent citation of decisions of the SupremeCourt of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same given act can result in civil liability not only under the Penal Code but also under the Civil Code. Thus, the opinion holds:

57

The, above case is pertinent because it shows that thesame act machinist. come under both the Penal Code andthe Civil Code. In that case, the action of the agent killeth unjustified and fraudulent and therefore couldhave been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was being sued. (pp. 615-616, 73 Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a proper subject matter either of a criminal action withits consequent civil liability arising from a crime orof an entirely separate and independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana, under theCivil Code has been fully and clearly recognized, evenwith regard to a negligent act for which the wrongdoercould have been prosecuted and convicted in a criminalcase and for which, after such a conviction, he could have been sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that although J. V. House couldhave been criminally prosecuted for reckless or simplenegligence and not only punished but also made civillyliable because of his criminal negligence,

nevertheless this Court awarded damages in an independent civil action for fault or negligence underarticle 1902 of the Civil Code. (p. 618, 73 Phil.) 3

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But inasmuch as we are announcing doctrinesthat have been little understood, in the past, it might not he inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple negligence.If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, accordingly to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to personsand damage to property- through any degree of negligence - even the slightest - would have to be Idemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so absurd andanomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquilianaor cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.

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Secondary, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise. there wouldbe many instances of unvindicated civil wrongs. "Ubi jusIdemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisionsof both the Penal Code and the Civil Code on this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lackof understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking articles1902-1910 of the Civil Code. Although this habitual method is allowed by, our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harms done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of

a crime under the Penal Code. This will, it is believed, make for the better safeguarding or private rights because it realtor, an ancient and additional remedy, and for the further reason that an independentcivil action, not depending on the issues, limitationsand results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress. (p.621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein referredto contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would reveal that the thrust of the pronouncements therein is not so limited, but that in factit actually extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraudor estafa, not a negligent act. Indeed, Article 1093 of the CivilCode of Spain, in force here at the time of Garcia, provided textually that obligations "which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of the law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the law to smother and renderalmost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or quasi-delito, which is conservedand made enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was Chairman of the Code Commission that drafted the original text of the new Civil Code,

59

it is to be noted that the said Code, which was enacted after theGarcia doctrine, no longer uses the term, 11 not punishable by law," thereby making it clear that the concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed by the provisions of Chapter 2, TitleXVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of the new code provides:

ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and "culpa extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but fordamages due to a quasi-delict or 'culpa aquiliana'. But said

article forestalls a double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that which is literal that killeth the intent of the lawmaker should be observed in applying the same. And consideringthat the preliminary chapter on human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil action for acts criminal in character (underArticles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice, and more in harmony with modern progress"- to borrow the felicitous relevant languagein Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or negligenciacovers not only acts "not punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against theoffender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two,assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not estinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here

60

hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the possible civil liability of Atty.Hill, his father, it is also Our considered opinion that the conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is, however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate parental authority over the child's person. It shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and,in case of his death or incapacity, the mother, are responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company." In the instant case, it is not controverted that Reginald, although married, was living with his

father and getting subsistence from him at the time of the occurrence in question. Factually, therefore, Reginald was still subservient to and dependent on his father, a situation which is not unusual.

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

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

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

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

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Concepcion Jr., J, is on leave.

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

 

March 31, 1915 G.R. No. L-9734

JUAN BAHIA, plaintiff-appellant,vs.FAUSTA LITONJUA, defendant-appellee. and MARIANO LEYNES, defendant-appellant.

Felipe Agoncillo for appellant Bahia. Ramon Diokno for appellee Litonjua. Silvestre Apacible for appellant Leynes.

MORELAND, J.:

This is an appeal by the defendant Leynes from a judgment of the Court of First Instance of Manila against him for the sum of P1,000, with costs; and by the plaintiff from Fausta Litonjua.

This is an action to recover damages from the defendants for the death of plaintiff's daughter alleged to have been caused by the negligence of defendant's servant in driving an automobile over the child and causing her death.

It appears from the evidence that one Ramon Ramirez was the ownerand manager of a garage in the city of Manila known as the International Garage. His mother, the defendant Fausta Litonjua, sometime before the accident from which this action springs, purchased an automobile and turned it over to the garage to assist her son in the business in which he was engaged. On the 14th of May, 1911, Ramirez rented the automobile so purchased and

donated by his mother to the defendant Mariano Leynes, together with a chauffeur and a machinist, to be used by him for a short time between Balayan and Tuy, Province of Batangas, to carry persons living in Balayan to and from the fiesta which was about to take place in Tuy. According to the arrangement between them, Ramires was to furnish the automobile, chauffeur, and machinist, and the defendant Leynes was to pay him therefor P20 a day.

On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by reason of a defect in the steering gear, refused to obey the direction of the driver in turning a corner in the streets of Balayan, and, as a consequence, ran across the street and into the wall of a house against which the daughter of plaintiff was leaning at the time. The font of the machine struckthe child in the center of the body and crushed her to death.

The action was brought against the mother of Ramirez, who bought the automobile, and Leynes, under whose direction and control theautomobile was being operated at the time of the accident. Ramirez was not made a party. The plaintiff and the defendant Leynes appealed from the judgment, the former on the ground that the court erred in dismissing the action as to the mother of Ramirez and the latter from that portion of the judgment requiring him to pay to plaintiff P1,000.

We are of the opinion that the action was properly dismissed as to Fuasta Litonjua. It is a fact proved in the action and undisputed that, although the mother purchased the automobile, she turned it over to the garage of her son for use therein. The establishment belonged to the son, Ramon Ramirez, and he had the full management and control of it and received all the profits therefrom. So far as appears, the contract with Leynes was made without her knowledge or consent by Ramirez as the owner and manager of the International Garage. While she may have been in one sense the owner of the machine, that fact does not, under the

62

other facts of the case, make her responsible for the results of the accident.

We are of the opinion that the judgment against Leynes must be reversed and the complaint dismissed as to him. While it may be said that, at the time of the accident, the chauffeur who was driving the machine was a servant of Leynes, in as much as the profits derived from the trips of the automobile belonged to him and the automobile was operated under his direction, nevertheless, this fact is not conclusive in making him responsible for the negligence of the chauffeur or for defects inthe automobile itself. Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides when that liability shall cease. It says:

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damages.

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee thereinstantly arises a presumption of a law that there was negligenceon the part of the master or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that presumption is juris tantum and notjuris et de jure, and consequently, may be rebutted. It follows necessarily that if the employees shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is the notable peculiarly of the Spanish law negligence. It is, of course, in striking contrast to the American doctrine that, in

relations with strangers, the negligence of the servant is conclusively the negligence of the master.

In the case before us the death of the child caused by a defect in the steering gear of the automobile immediately raised the presumption that Leynes was negligent in selecting a defective automobile or in his failure to maintain it in good condition after selection, and the burden of proof was on him to show that he had exercised the care of a good father of a family. As to selection, the defendant has clearly shown that he exercised the care and diligence of a good father of a family. He obtained the machine from a reputable garage and it was, so far as appeared, in good condition. The workmen were likewise selected from a standard garage, were duly licensed by the Government in their particular calling, and apparently thoroughly competent. The machine had been used but a few hours when the accident occurred and it is clear from the evidence that the defendant had no notice, either actual or constructive, of the defective conditionof the steering gear. From the commencement of the use of the machine until the accident occurred sufficient time had not elapsed to require an examination of the machine by the defendantas a part of his duty of inspection and supervision. While it does not appear that the defendant formulated rules and regulations for the guidance of the drivers and gave them proper instructions, designed for the protection of the public and the passengers, the evidence shows, as we have seen, that the death of the child was not caused by a failure to promulgate rules and regulations. It was caused by a defect in the machine as to whichthe defendant has shown himself free from responsibility.

The defendant Leynes having shown to the satisfaction of the court that he exercised the care and diligence of a good father of a family is relieved of responsibility with respect to the death of plaintiff's child.

63

The judgment, in so far as it dismisses the complaint against Fausta Litonjua, is affirmed with costs, and, in so far as to finds against Mariano Leynes, is reversed and the complaint as tohis dismissed, without special finding as to costs in this instance. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Araullo, JJ., concur. Trent, J., concurs in the result.

G.R. No. 85044 June 3, 1992

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners, vs.HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

 

FELICIANO, J.:

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years ofage, shot Jennifer Tamargo with an air rifle causing injuries

which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to this case for damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that he bad acted without discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption was grunted on, 18 November 1982, that is, after Adelbertohad shot and killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for adoption, claimed that not they, but rather the adopting parents,namely the spouses Sabas and Felisa Rapisura, were indispensable parties to the action since parental authority had shifted to theadopting parents from the moment the successful petition for adoption was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents, parental authority had not ceased nor been relinquished by the mere filingand granting of a petition for adoption.

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The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto indeed were not indispensable parties to the action.

Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on 14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration on 15 January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all parties concerned at least three (3) days before the hearing of said motion; and that said notice shall state the time and place of hearing — both motions were denied by the trial court in an Orderdated 18 April 1988. On 28 April 1988, petitioners filed a noticeof appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period ending 22 December 1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision dated 3December 1987 and the Orders dated 18 April 1988 and 6 June 1988,The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of this Petition hingeson the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal, may still file theinstant Petition; conversely, whether the Court may still take cognizance of the case even through petitioners' appeal had been filed out of time; and (2) whether or not the effects of

adoption, insofar as parental authority is concerned may be givenretroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological parents.

1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court held that the motions, not having contained a notice of time and place of hearing, had become useless pieces of paper which did not interrupt the reglementary period. 1 As in fact repeatedly held bythis Court, what is mandatory is the service of the motion on theopposing counsel indicating the time and place of hearing. 2

In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice may be served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to treatthe notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted the reglementary period for appeal. As the Court heldin Gregorio v. Court of Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure are used only to help secure not override, substantial justice.

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if d technical and rigid enforcement of the rules is made their aim would be defeated. 4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay forthe damage done. Such fault or negligence, if there isno pre-existing contractual relation between the parties, is called a quasi-delict . . .

Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them.Article 2180 of the Civil Code reads:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also forthose of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person herein mentioned prove that theyobserved all the diligence of a good father of a family to prevent damage. (Emphasis supplied)

This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and responsibilities of parents — their parental authority — which includes the instructing, controlling and disciplining of the child. 5 The basis for the doctrine of vicarious liability wasexplained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms:

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect — and our Legislature has so elected — to limit such liability to cases in which the person upon whom such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy. to extend thatliability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose acts or omissions are imputable, by a legalfiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted ourCivil Code has elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failedto exercise due care in one's own acts, or in having failed to exercise due care in the selection and control of one's agent or servants, or in the control of persons who, by reasons of their status, occupy a position of dependency with respect to the person made liable for their conduct. 7 (Emphasis Supplied)

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The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an unemancipated child living with its parents commits a tortious acts, the parents were negligent in the performanceof their legal and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be overtuned under Article 2180 of the CivilCode by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage.

In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensableparties to the suit for damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the filing of the petition for adoption that is, before Adelberto had shot Jennifer which an air rifle. The Bundoc spouses contend that they were therefore free of any parental responsibility for Adelberto's allegedly tortiousconduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows:

Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social Welfare or duly licensed child placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original petition was filed. The decree shall state the name by whichthe child is thenceforth to be known. (Emphasis supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code:

Art. 39. Effect of Adoption. — The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural parent;

xxx xxx xxx

(Emphasis supplied)

and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship existing between the parents and the

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minor child living with them and over whom, the law presumes, theparents exercise supervision and control. Article 58 of the Childand Youth Welfare Code, re-enacted this rule:

Article 58 Torts — Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the civil Code. (Emphasis supplied)

Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing damage:

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (Emphasis supplied)

We do not believe that parental authority is properly regarded ashaving been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifleshooting happened. We do not consider that retroactive effect maybe giver to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen

and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows:

Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and until the adopting parents are given by the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for the legal union. During the period of trial custody, parental authority shall be vested in the adopting parents. (Emphasis supplied)

Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period. In the instant case, the trial custody period either had not yet begun or bad already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable

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parties being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is herebyGRANTED DUE COURSE and the Decision of the Court of Appeals dated6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further proceedings consistent with this Decision. Costs against respondent Bundoc spouses. This Decision is immediately executory.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, concur.

 

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON.INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG,

Respondents.

Alex Y. Tan, for Petitioners.

Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINORCHILDREN; RULE. — The parents are and should be held primarily liable for the civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years ofage or under, or over 9 but under 15 years of age who acted

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without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 yearsor over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under saidArticle 2180, the enforcement of such liability shall be effectedagainst the father and, in case of his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend ofthe youthful offender. However, under the Family Code, this civilliability is now, without such alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

D E C I S I O N

REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those whose lives they have touched. While we cannot expect to award complete assuagement to their families through seemingly prosaic legal verbiage, this disposition should at least terminate the acrimony and rancor of an extended judicial contest resulting from the unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are now before us seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.69060 with the following decretal portion:jgc:chanrobles.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is hereby reversed; and instead, judgment is hereby rendered sentencing defendants, jointly and solidarily,to pay to plaintiffs the following amounts:chanrobles.com : virtual law library

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney’s fees, P20,000.00, and costs.

However, denial of defendants-appellees’ counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable incident which took place and from which she died on January 14, 1979, was an 18-yearold first year commerce student of the University of San Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of age living with his aforesaid parents, and who also died in the same event on the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978 when Julie Ann broke up her relationship with Wendell after she

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supposedly found him to be sadistic and irresponsible. During thefirst and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation but the latter persisted in her refusal, prompting the former to resort to threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a Smith andWesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the crime inside the residence of private respondents at the corner of General Maxilomand D. Jakosalem streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents, who are the contending parties herein, posited their respective theories drawn from their interpretation of circumstantial evidence, available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewisedistressed over the death of their son, rejected the imputation and contended that an unknown third party, whom Wendell may have displeased or antagonized by reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused Wendell’s death and then shot Julie Ann to eliminate any witness and thereby avoid identification.chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil

Case No. R-17774 in the then Court of First Instance of Cebu against the parents of Wendell to recover damages arising from the latter’s vicarious liability under Article 2180 of the Civil Code. After trial, the court below rendered judgment on October 20, 1980 as follows:jgc:chanrobles.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendereddismissing plaintiffs’ complaint for insufficiency of the evidence. Defendants’ counterclaim is likewise denied for lack ofsufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants was setaside and another judgment was rendered against defendants-appellees who, as petitioners in the present appeal by certiorari, now submit for resolution the following issues in this case:chanrob1es virtual 1aw library

1. Whether or not respondent court correctly reversed the trial court in accordance with established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings and opinions on some postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act. However, undue emphasis was placed by the lower court on theabsence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only circumstance to be taken into account in thedetermination of whether it was suicide or not.

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It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the entrance wound. However, as pointed out by private respondents, the body of deceased Wendell Libi must have been washed at the funeral parlor, considering the hasty interment thereof a little after eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not categorically state that the body of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendell’s hands was forever lost when Wendell was hastily buried.cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arrived at theCosmopolitan Funeral Homes, the body of the deceased was already on the autopsy table and in the stage of rigor mortis; and that said body was not washed, but it was dried. 4 However, on redirect examination, he admitted that during the 8-hour interval, he never saw the body nor did he see whether said body was wiped or washed in the area of the wound on the head which heexamined because the deceased was inside the morgue. 5 In fact, on cross-examination, he had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are concerned, it is possible that Wendell Libi shothimself. 6

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no burning or singeing of the hair or extensive laceration on the gunshot woundof entrance which are general characteristics of contact or near-contact fire. On direct examination, Dr. Cerna nonetheless made these clarification:jgc:chanrobles.com.ph

"Q Is it not a fact that there are certain guns which are so madethat there would be no black residue or tattooing that could result from these guns because they are what we call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ:chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not rule out the possibility that the gun was closer than 24 inches, is that correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in your own sketch, is it not a fact that the gun could have been fired by the person himself, the victim himself, Wendell Libi, because it shows a point of entry a little above the right ear and point of exit a little above that, to be very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as the angle or the manner of fire is concerned, it could have been fired by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the National

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Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna states:chanrob1es virtual 1aw library

x       x       x

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus, directed slightly forward, upward and to the left, involving skinand soft tissues, making a punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating extensively along its course the brain tissues, fracturing parietal bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms. behind and12.9 cms. above left external auditory meatus.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

x       x       x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the skin from theunderlying tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which wasmade of record, thus:jgc:chanrobles.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory of the bullet

and the exit of the wound, and measuring yourself 24 inches, willyou please indicate to the Honorable Court how would it have beenpossible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS:chanrob1es virtual 1aw library

A Actually, sir, the 24 inches is approximately one arm’s length.

ATTY. SENINING:chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his right arm almost straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies of defendants’ witnesses Lydia Ang and James Enrique Tan, the first being a resident of an apartmentacross the street from the Gotiongs and the second, a resident ofthe house adjacent to the Gotiong residence, who declared having seen a "shadow" of a person at the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the second apartment; that from her window she can see directly the gate of the Gotiongs and, that there is a firewall between her apartment and the gas station. 12 After seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines were busy. Later on, she talked with James Enrique Tan and told him that she saw a manleap from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied having talked with anyone regarding what he saw. He explained that he lives in a

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duplex house with a garden in front of it; that his house is nextto Felipe Gotiong’s house; and he further gave the following answers to these questions:chanrobles.com : virtual law library

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong’s in relation to your house?

WITNESS:chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS:chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the reliabilityand accuracy of the witnesses’ observations, since the visual perceptions of both were obstructed by high walls in their respective houses in relation to the house of herein private respondents. On the other hand, witness Manolo Alfonso,

testifying on rebuttal, attested without contradiction that he and his sister, Malou Alfonso, were waiting for Julie Ann Gotiongwhen they heard her scream; that when Manolo climbed the fence tosee what was going on inside the Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he went down from the fence and droveto the police station to report the incident. 15 Manolo’s direct and candid testimony establishes and explains the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners’ effete and unsubstantiated pretension that it was another man who shot Wendell and Julie Ann. It is significant that the Libi family didnot even point to or present any suspect in the crime nor did they file any case against any alleged "John Doe." Nor can we sustain the trial court’s dubious theory that Wendell Libi did not die by his own hand because of the overwhelming evidence — testimonial, documentary and pictorial — the confluence of which point to Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of his persistent pleas for a reconciliation.chanrobles.com:cralaw:red

Petitioners’ defense that they had exercised the due diligence ofa good father of a family, hence they should not be civilly liable for the crime committed by their minor son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a safetydeposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and Amelita’s key is always in her bag, all of which facts were known to Wendell. They have never seen their son Wendell taking or using the gun. She admitted, however, that on that fateful night the

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gun was no longer in the safety deposit box. 16 We, accordingly, cannot but entertain serious doubts that petitioner spouses had really been exercising the diligence of a good father of a familyby safely locking the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to the safety deposit box was negligently left lying around or he had free access to the bag of his mother where the other key was.

The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of theinstruction and supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently supervising the activities of their son, despite his minority andimmaturity, so much so that it was only at the time of Wendell’s death that they allegedly discovered that he was a CANU agent andthat Cresencio’s gun was missing from the safety deposit box. Both parents were sadly wanting in their duty and responsibility in monitoring and knowing the activities of their children who, for all they know, may be engaged in dangerous work such as beingdrug informers, 17 or even drug users. Neither was a plausible explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back thereof, 18 holding upright what clearly appears as a revolver and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this opinion, respondent court waved aside the protestations of diligence on the part of petitioners and had this to say:jgc:chanrobles.com.ph

". . . It is still the duty of parents to know the activity of their children who may be engaged in this dangerous activity involving the menace of drugs. Had the defendants-appellees been diligent in supervising the activities of their son, Wendell, and

in keeping said gun from his reach, they could have prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants areliable under Article 2180 of the Civil Code which provides:chanrob1es virtual 1aw library

‘The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by their minor children who live in their company.’

"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly kept in a safety deposit box, defendants-appellees are subsidiarily liable for thenatural consequence of the criminal act of said minor who was living in their company. This vicarious liability of herein defendants-appellees has been reiterated by the Supreme Court in many cases, prominent of which is the case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:chanrob1es virtual 1aw library

‘The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses.’

‘The subsidiary liability of parent’s arising from the criminal acts of their minor children who acted with discernment is determined under the provisions of Article 2180, N.C.C. and underArticle 101 of the Revised Penal Code, because to hold that the former only covers obligations which arise from quasi-delicts andnot obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable forthe damages caused by his or her son, no liability would attach if the damage is caused with criminal intent.’ (3 SCRA 361-362).

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". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the key to the drawerwhere said gun was kept under lock without defendant-spouses everknowing that said gun had been missing from that safety box since1978 when Wendell Libi had) a picture taken wherein he proudly displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then, Wendell Libi was said to havekept said gun in his car, in keeping up with his supposed role ofa CANU agent . . ." chanrobles lawlibrary : rednad

x       x       x

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct in dismissing herein plaintiffs-appellants’ complaint because as preponderantlyshown by evidence, defendants-appellees utterly failed to exercise all the diligence of a good father of the family in preventing their minor son from committing this crime by means ofthe gun of defendants-appellees which was freely accessible to Wendell Libi for they have not regularly checked whether said gunwas still under lock, but learned that it was missing from the safety deposit box only after the crime had been committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitionersshould be held liable for the civil liability based on what appears from all indications was a crime committed by their minorson. We take this opportunity, however, to digress and discuss its ratiocination therefor on jurisprudential dicta which we feelrequire clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v. Cadano, Et. Al. 20which supposedly holds that" (t)he subsidiary liability of

parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses," followed by an extended quotation ostensibly from the same case explaining why under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should assume subsidiary liability fordamages caused by their minor children. The quoted passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion hereunder.chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability as being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on the matter which warrant comparative analyses. Our concern stems fromour readings that if the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a good father of a family to prevent damages. On the other hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in case of his death of incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of Article 2180 provides that" (t)he responsibility treated of in this article shall ceasewhen the persons herein mentioned prove that they observed all

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the diligence of a good father of a family to prevent damages."cralaw virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal Code provides:jgc:chanrobles.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases. —

x       x       x

First. In cases of subdivisions . . . 2, and 3 of Article 12, thecivil liability for acts committed by . . . a person under nine years of age, or by one over nine but under fifteen years of age,who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unlessit appears that there was no fault or negligence on their part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents for crimes committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or negligence on their part, that is, the exercise of the diligence of a good father of a family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding provisions in both codes that the minor transgressor shall be answerable or shall respond with his own property only in the absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents or

guardian, the minor . . . shall be answerable with his own property in an action against him where a guardian ad litem shallbe appointed." For civil liability ex delicto of minors, an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to wit:jgc:chanrobles.com.ph

"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if such person be insolvent, said . . . minor shall respond with (his) own property, excepting property exempt from execution, in accordancewith civil law."cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a number of cases adjudicated by this Court, viz.:Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et.Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the civil liability of parents for crimes committed by their minor childrenover 9 but under 15 years of age, who acted with discernment, andalso of minors 15 years of aye or over, since these situations are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental civil liability should be resolved in accordance with the provisions ofArticle 2180 of the Civil Code for the reasons well expressed in Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply onlyto quasi-delicts and not to criminal offenses would result in theabsurdity that in an act involving mere negligence the parents would be liable but not where the damage is caused with criminal intent. In said cases, however, there are unfortunate variances resulting in a regrettable inconsistency in the Court’s

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determination of whether the liability of the parents, in cases involving either crimes or quasi-delicts of their minor children,is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil action arising from the crime the minor and his father were held jointlyand severally liable for failure of the latter to prove the diligence of a good father of a family. The same liability in solidum and, therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their 14-yearold son who was found guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code providing for solidary responsibility of two or more persons who are liable fora quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present case, as already explained, the petitioners herein were also held liable but supposedly in line with Fuellas which purportedly declared the parents subsidiarily liable for the civil liability for serious physical injuries committed by their 13-year old son. On the other hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for damages arising from his conviction for homicide by the application of Article 2180 of the Civil Code since this is likewise not coveredby Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to "lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary liabilityfor damages, since the son, "although married, was living with his father and getting subsistence from him at the time of the occurrence," but "is now of age, as a matter of equity" the

father was only held subsidiarily liable.

It bears stressing, however, that the Revised Penal Code providesfor subsidiary liability only for persons causing damages under the compulsion of irresistible force or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietorsof establishments; 28 employers, teachers, persons and corporations engaged in industry; 29 and principals, accomplices and accessories for the unpaid civil liability of their co-accused in the other classes. 30

Also, coming back to respondent court’s reliance on Fuellas in its decision in the present case, it is not exactly accurate to say that Fuellas provided for subsidiary liability of the parentstherein. A careful scrutiny shows that what respondent court quoted verbatim in its decision now on appeal in the present case, and which it attributed to Fuellas, was the syllabus on thelaw report of said case which spoke of "subsidiary" liability. However, such categorization does not specifically appear in the text of the decision in Fuellas. In fact, after reviewing thereinthe cases of Exconde, Araneta and Salen and the discussions in said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this Court concluded its decision in this wise:jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals onthe basis of evidence submitted therein by both parties, independent of the criminal case. And responsibility for fault ornegligence under Article 2176 upon which the present action was instituted, is entirely separate and distinct from the civil liability arising from fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minor’s criminal responsibility is of no moment."cralaw virtua1aw library

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Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for the civil liability arising from criminal offenses committed by theirminor children under their legal authority or control, or who live in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over9 but under 15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant toArticle 2180 of the Civil Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the Child and YouthWelfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. 32 However, under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. 33For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by Wendell Libi, respondent court did not err in holding petitionersliable for damages arising therefrom. Subject to the preceding modifications of the premises relied upon by it therefor and on

the bases of the legal imperatives herein explained, we conjoin in its findings that said petitioners failed to duly exercise therequisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby AFFIRMED, with costs against petitioners.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Padilla, Bidin, Griño-Aquino, Medialdea, Romero, Nocon and Bellosillo, Jr., JJ., concur.

Feliciano, J., is on leave.

Davide, Jr., J., took no part. I used to be counsel of one of the parties.

Melo and Campos, Jr., JJ., took no part.

B. OWNERS AND MANAGERS OF ESTABLISHMENTS

G.R. No. L-12191             October 14, 1918

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JOSE CANGCO, plaintiff-appellant, vs.MANILA RAILROAD CO., defendant-appellee.

Ramon Sotelo for appellant.Kincaid & Hartigan for appellee.

 

FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of Manila Railroad Company in the capacity of clerk, with a monthly wage ofP25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant railroad company; and in coming daily by train to the company's office in the city of Manila where he worked, he used a pass, supplied by the company, which entitled him to ride upon the company's trainsfree of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his seat in the second class-car where he was riding and, making, his exit through the door, took his position upon the steps of the coach, seizing the upright guardrail with his right hand for support.

On the side of the train where passengers alight at the San Mateostation there is a cement platform which begins to rise with a moderate gradient some distance away from the company's office and extends along in front of said office for a distance sufficient to cover the length of several coaches. As the train slowed down another passenger, named Emilio Zuñiga, also an employee of the railroad company, got off the same car, alightingsafely at the point where the platform begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off also, but one or

both of his feet came in contact with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the platform. His body at once rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a single light located some distance away, objects on the platform where the accident occurred were difficult to discern especially to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that it was the customary season for harvesting these melons and a large lot had been brought to the station for the shipment to themarket. They were contained in numerous sacks which has been piled on the platform in a row one upon another. The testimony shows that this row of sacks was so placed of melons and the edgeof platform; and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon the platform. His statement that hefailed to see these objects in the darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had received were very serious. He was therefore brought at once to acertain hospital in the city of Manila where an examination was made and his arm was amputated. The result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital where a second operation was performed and the member was again amputated higher up near the shoulder. It appears in

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evidence that the plaintiff expended the sum of P790.25 in the form of medical and surgical fees and for other expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover damages of thedefendant company, founding his action upon the negligence of theservants and employees of the defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to the security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor,the trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use due caution in alighting fromthe coach and was therefore precluded form recovering. Judgment was accordingly entered in favor of the defendant company, and the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary responsibility of the defendant company and the contributory negligence of the plaintiff should be separately examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual obligations — or to use the technical form of expression, that article relates only to culpa aquiliana and not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference between "culpa, substantive and independent, which of itself constitutes the source of an obligation between personsnot formerly connected by any legal tie" and culpa considered as anaccident in the performance of an obligation already existing . .. ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of the CivilCode is not applicable to acts of negligence which constitute thebreach of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the CivilCode] are applicable are understood to be those not growing

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out of pre-existing duties of the parties to one another. But where relations already formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed upon employers with respect to damages occasioned by the negligence oftheir employees to persons to whom they are not bound by contract, is not based, as in the English Common Law, upon the principle of respondeat superior — if it were, the master would be liable in every case and unconditionally — but upon the principleannounced in article 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making good the damage caused. One whoplaces a powerful automobile in the hands of a servant whom he knows to be ignorant of the method of managing such a vehicle, ishimself guilty of an act of negligence which makes him liable forall the consequences of his imprudence. The obligation to make good the damage arises at the very instant that the unskillful servant, while acting within the scope of his employment causes the injury. The liability of the master is personal and direct. But, if the master has not been guilty of any negligence whateverin the selection and direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of hisemployment or not, if the damage done by the servant does not amount to a breach of the contract between the master and the person injured.

It is not accurate to say that proof of diligence and care in theselection and control of the servant relieves the master from liability for the latter's acts — on the contrary, that proof shows that the responsibility has never existed. As Manresa says

(vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has causeddamage to another. A master who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should possess for the discharge of the duties which it is his purpose to confide to them, and directs them with equal diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and he incursno liability whatever if, by reason of the negligence of his servants, even within the scope of their employment, such third person suffer damage. True it is that under article 1903 of the Civil Code the law creates a presumption that he has been negligentin the selection or direction of his servant, but the presumptionis rebuttable and yield to proof of due care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant to respond for the damage caused by the carelessness of his employee while acting within the scope of his employment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in selection of the servant or employee, or in supervision over

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him after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast to theAmerican doctrine that, in relations with strangers, the negligence of the servant in conclusively the negligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence, it is necessary that there shall have been some fault attributable to the defendant personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption, is in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposedby reason of the breach of the duties inherent in the special relations of authority or superiority existing between the personcalled upon to repair the damage and the one who, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for thenegligent acts or omissions of their servants or agents, when such acts or omissions cause damages which amount to the breach of a contact, is not based upon a mere presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care in this regard does not

relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in the breach or omission of those mutual duties which civilized societyimposes upon it members, or which arise from these relations, other than contractual, of certain members of society to others, generally embraced in the concept of status. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all other members of society. The breach of these general duties whether due to willful intent or to mere inattention, if productive of injury, give rise to an obligation to indemnify the injured party. The fundamental distinction between obligations of this character andthose which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect — and our Legislature has so elected — whom such an obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend that liability,without regard to the lack of moral culpability, so as to includeresponsibility for the negligence of those person who acts or mission are imputable, by a legal fiction, to others who are in aposition to exercise an absolute or limited control over them. The legislature which adopted our Civil Code has elected to limitextra-contractual liability — with certain well-defined exceptions — to cases in which moral culpability can be directly

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imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in the selection and control of one's agents or servants, or in the control of persons who, by reason of their status, occupy a position of dependency with respect to the person made liable fortheir conduct.

The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly different from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence — if he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged thatplaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to warrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the burdenof proof of its existence, as the only fact upon which his action is based; while on the contrary, in a case of negligence which presupposes the existence of a contractual obligation, if the creditor shows that it exists and that ithas been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach, it is obvious

that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach of the contract would not constitute a defense to the action. If the negligence of servants or agents could be invoked as a means of discharging the liability arising from contract, the anomalous result would be that person acting through the medium of agents or servants in the performance of their contracts, would be in a better position than those acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its destruction, he isunquestionably liable. Would it be logical to free him from his liability for the breach of his contract, which involves the dutyto exercise due care in the preservation of the watch, if he shows that it was his servant whose negligence caused the injury?If such a theory could be accepted, juridical persons would enjoypractically complete immunity from damages arising from the breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act through agents or servants, and it would no doubt be true in most instances that reasonable care had been taken in selection and direction of suchservants. If one delivers securities to a banking corporation as collateral, and they are lost by reason of the negligence of someclerk employed by the bank, would it be just and reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon the payment of the debt by proving that due care had been exercised in the selectionand direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident to the performance of a contract has frequently been recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that defendant sought to avail himself of the provisions of

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article 1902 of the Civil Code as a defense. The Spanish Supreme Court rejected defendant's contention, saying:

These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as those to which article 1902 of the Civil Code relates, but of damages caused by the defendant's failure to carry out the undertakings imposed bythe contracts . . . .

A brief review of the earlier decision of this court involving the liability of employers for damage done by the negligent acts of their servants will show that in no case has the court ever decided that the negligence of the defendant's servants has been held to constitute a defense to an action for damages for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for the damages caused by the negligence of his driver. In that case the court commented on the fact that no evidence had been adduced in the trial court that the defendant had been negligent in the employment of the driver, or that he had any knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co's Successors vs. Compania Maritima(6 Phil. Rep., 215), the plaintiff sued the defendant for damagescaused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the negligence of defendant's servants in the course of the performance of a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and the plaintiff . . . we do not think that the provisions ofarticles 1902 and 1903 are applicable to the case."

In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for the personal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in which defendant was riding at the time. The court found that the damages were caused by the negligence of the driver of the automobile, but held that the master was not liable, although he was present at the time, saying:

. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable opportunity to observe them and to direct the driver to desist therefrom. . . . The act complained of must be continued in the presence of the owner for such length of time that the owner by his acquiescence, makes the driver's acts his own.

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of the defendant upon article 1903, although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to himarising out of the contract of transportation. The express groundof the decision in this case was that article 1903, in dealing with the liability of a master for the negligent acts of his servants "makes the distinction between private individuals and public enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the selection or direction of servants; and that in the particular case the presumption of negligence had not been overcome.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tort ratherthan as based upon the breach of the contract of carriage, and anexamination of the pleadings and of the briefs shows that the

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questions of law were in fact discussed upon this theory. Viewed from the standpoint of the defendant the practical result must have been the same in any event. The proof disclosed beyond doubtthat the defendant's servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It alsoaffirmatively appeared that defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual.As Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of a contractual undertaking or its itself the source of an extra-contractual undertaking obligation, its essential characteristicsare identical. There is always an act or omission productive of damage due to carelessness or inattention on the part of the defendant. Consequently, when the court holds that a defendant isliable in damages for having failed to exercise due care, either directly, or in failing to exercise proper care in the selection and direction of his servants, the practical result is identical in either case. Therefore, it follows that it is not to be inferred, because the court held in the Yamada case that defendant was liable for the damages negligently caused by its servants to a person to whom it was bound by contract, and made reference to the fact that the defendant was negligent in the selection and control of its servants, that in such a case the court would have held that it would have been a good defense to the action, if presented squarely upon the theory of the breach of the contract, for defendant to have proved that it did in factexercise care in the selection and control of the servant.

The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and extra-contractual obligations. The field of non- contractual obligationis much more broader than that of contractual obligations,

comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him from extra-contractual liabilityto such person. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes the source of an extra-contractual obligation had no contract existed between the parties.

The contract of defendant to transport plaintiff carried with it,by implication, the duty to carry him in safety and to provide safe means of entering and leaving its trains (civil code, article 1258). That duty, being contractual, was direct and immediate, and its non-performance could not be excused by proof that the fault was morally imputable to defendant's servants.

The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in placing anobstruction upon the platform was a breach of its contractual obligation to maintain safe means of approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a complete stop before alighting. Under the doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of negligence.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injury suffered by him could not have occurred. Defendant contends, and cites many authorities in support of the contention, that it is negligence per se for a passenger to alight from a moving train. We

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are not disposed to subscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is at variance with the experience of every-day life. In this particular instance, that the train was barely moving when plaintiff alighted is shown conclusively by the fact that itcame to stop within six meters from the place where he stepped from it. Thousands of person alight from trains under these conditions every day of the year, and sustain no injury where thecompany has kept its platform free from dangerous obstructions. There is no reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it not been for defendant's negligent failure to perform its duty to provide a safe alighting place.

We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:

The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person, of the age, sex and condition of the passenger, would have acted as the passenger acted under the circumstances disclosed by the evidence. This care has been defined to be, not the care which may or should be used by the prudent man generally, but the care which a man of ordinary prudence would use under similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he alighted from the train

which would have admonished a person of average prudence that to get off the train under the conditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to desist was contributory negligence.1awph!l.net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the condition of the platform and while the train was yet slowly moving. In considering the situation thus presented, it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was caused by the sacks of melonspiled on the platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of some circumstance to warn him to the contrary, that the platform was clear. The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of thedefendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility concede that it had right to pile these sacks in the path of alighting passengers, the placing of them adequately so that their presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following circumstances are to be noted: The company's platform was constructed upon a level higher than that of the roadbed and the surrounding ground.The distance from the steps of the car to the spot where the alighting passenger would place his feet on the platform was thusreduced, thereby decreasing the risk incident to stepping off. The nature of the platform, constructed as it was of cement

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material, also assured to the passenger a stable and even surfaceon which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no means sorisky for him to get off while the train was yet moving as the same act would have been in an aged or feeble person. In determining the question of contributory negligence in performingsuch act — that is to say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the passenger are circumstances necessarily affecting the safety of the passenger, and should be considered. Women, it has been observed, as a general rule are less capable than men of alighting with safety under such conditions, as the nature of their wearing apparel obstructs the free movement of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind with regard either to the length of the step which hewas required to take or the character of the platform where he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and that the injuries he has suffered have permanently disabled him from continuing that employment. Defendant has not shown that any other gainful occupation is open to plaintiff. His expectancy of life, according to the standard mortality tables, is approximately thirty-three years. We are of the opinion that a fair compensation for the damage suffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of P790.25 for medical attention, hospital services, and other incidental expenditures connected with the treatment of his injuries.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and for the costs ofboth instances. So ordered.

Arellano, C.J., Torres, Street and Avanceña, JJ., concur.

G.R. No. L-25142 March 25, 1975

PHILIPPINE RABBIT BUS LINES, INC. and FELIX PANGALANGAN, plaintiffs-appellants, vs.PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO PINEDA, defendants-appellees.

Angel A. Sison for plaintiffs-appellants.

Fidel Zosimo U. Canilao for defendants-appellees.

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AQUINO, J.:ñé+.£ªwph!1

Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure questions of law from the order of the Court of First Instance of Tarlac, dismissing their complaint against ArchimedesJ. Balingit.

The dismissal was based on the ground that Balingit as the manager of Phil-American Forwarders, Inc., which together with Fernando Pineda and Balingit, was sued for damages in an action based on quasi-delict or culpa aquiliana, is not the manager of an establishment contemplated in article 2180 of the Civil Code (Civil Case No. 3865).

In the complaint for damages filed by the bus company and Pangalangan against Phil-American Forwarders, Inc., Balingit and Pineda, it was alleged that on November 24, 1962, Pineda drove recklessly a freight truck, owned by Phil-American Forwarders, Inc., along the national highway at Sto. Tomas, Pampanga. The truck bumped the bus driven by Pangalangan, which was owned by Philippine Rabbit Bus Lines, Inc. As a result of the bumping, Pangalangan suffered injuries and the bus was damaged and could not be used for seventy-nine days, thus depriving the company of earnings amounting to P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc.

Among the defenses interposed by the defendants in their answer was that Balingit was not Pineda's employer.

Balingit moved that the complaint against him be dismissed on theground that the bus company and the bus driver had no cause of action against him. As already stated, the lower court dismissed

the action as to Balingit. The bus company and its driver appealed.

The Civil Code provides:têñ.£îhqwâ£

ART. 2176. Whoever by act or omission causes damage toanother, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

ART. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages causedby their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that

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they observed all the diligence of a good father of a family to prevent damage. (1903a)

The novel and unprecedented legal issue in this appeal is whetherthe terms "employers" and "owners and managers of an establishment or enterprise" (dueños o directores de un establicimiento o empresa) used in article 2180 of the Civil Code, formerly article 1903 of the old Code, embrace the manager of a corporation owninga truck, the reckless operation of which allegedly resulted in the vehicular accident from which the damage arose.

We are of the opinion that those terms do not include the managerof a corporation. It may be gathered from the context of article 2180 that the term "manager" ("director" in the Spanish version) is used in the sense of "employer".

Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can be fastened on Balingit as manager of Phil-American Forwarders, Inc., in connection with the vehicular accident already mentioned because he himself may be regarded as an employee or dependiente of his employer, Phil-American Forwarders, Inc.

Thus, it was held "que es dependiente, a los efectos de la responsabilidad subsidiaria establecida en el num 3.0 del (art.) 1903, el director de un periodico explotado por una sociedad, porque cualquiera que sea su jerarquia y aunque Ileve la direccion de determinadas convicciones politicas no por eso deja de estar subordinado a la superior autoridad de la Empresa" (Decision of Spanish Supreme Court dated December 6, 1912 cited in 12 Manresa, Codigo Civil Español 5th Ed. 662; 1913 Enciclopedia Juridica Española 992).

The bus company and its driver, in their appellants' brief, injected a new factual issue which was not alleged in their

complaint. They argue that Phil- American Forwarders, Inc. is merely a business conduit of Balingit because out of its capital stock with a par value of P41,200, Balingit and his wife had subscribed P40,000 and they paid P10,000 on their subscription, while the other incorporators, namely, Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay paid P250.25 and P25, respectively.

That argument implies that the veil of corporate fiction should be pierced and that Phil-American Forwarders, Inc. and Balingit and his wife should be treated as one and the same civil personality.

We cannot countenance that argument in this appeal. It was not raised in the lower court. The case has to be decided on the basis of the pleadings filed in the trial court where it was assumed that Phil-American Forwarders, Inc. has a personality separate and distinct from that of the Balingit spouses.

The legal issue, which the plaintiffs-appellants can ventilate inthis appeal, is one which was raised in the lower court and whichis within the issues framed by the parties (Sec. 18, Rule 46, Rules of Court).

When a party deliberately adopts a certain theory and the case isdecided upon that theory in the court below, he will not be permitted to change his theory on appeal because, to permit him to do so, could be unfair to the adverse party (2 Moran's Comments on the Rules of Court, 1970 Ed. p. 505).

WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the plaintiffs-appellants.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Fernandez, JJ., concur.1äwphï1.ñët

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[G.R. No. 141994.  January 17, 2005]

FILIPINAS BROADCASTING NETWORK, INC., petitioner, vs. AGO MEDICAL ANDEDUCATIONAL CENTER-BICOL CHRISTIAN COLLEGE OF MEDICINE, (AMEC-BCCM) and ANGELITA F. AGO, respondents.

D E C I S I O N

CARPIO, J.:

The Case

This petition for review[1] assails the 4 January 1999 Decision[2] and 26 January 2000 Resolution of the Court of Appeals in CA-G.R. CV No. 40151.  The Court of Appeals affirmed with modification the 14 December 1992 Decision[3] of the Regional Trial Court of Legazpi City, Branch 10, in Civil Case No. 8236. The Court of Appeals held Filipinas Broadcasting Network, Inc. and its broadcasters Hermogenes Alegre and Carmelo Rima liable for libel and ordered them to solidarily pay Ago Medical and Educational Center-Bicol Christian College of Medicine moral damages, attorney’s fees and costs of suit.

The Antecedents

“Exposé” is a radio documentary[4] program hosted by Carmelo ‘Mel’ Rima (“Rima”) and Hermogenes ‘Jun’ Alegre (“Alegre”).[5] Exposé is aired every morning over DZRC-AM which is owned by Filipinas Broadcasting Network, Inc. (“FBNI”). “Exposé” is heard

over Legazpi City, the Albay municipalities and other Bicol areas.[6]

In the morning of 14 and 15 December 1989, Rima and Alegre exposed various alleged complaints from students, teachers and parents against Ago Medical and Educational Center-Bicol Christian College of Medicine (“AMEC”) and its administrators.  Claiming that the broadcasts were defamatory, AMEC and Angelita Ago (“Ago”), as Dean of AMEC’s College of Medicine, filed a complaint for damages[7] against FBNI, Rima and Alegre on 27 February 1990. Quoted are portions of the allegedly libelous broadcasts:

JUN ALEGRE:

Let us begin with the less burdensome:  if you have children taking medical course at AMEC-BCCM, advise them to pass all subjects because if they fail in any subject they will repeat their year level, taking up all subjects including those they have passed already.  Several students had approached me stating that they had consulted with the DECS which told them that there is no such regulation.  If [there] is no such regulation why is AMEC doing the same?

xxx

Second: Earlier AMEC students in Physical Therapy had complained that the course is not recognized by DECS. xxx

Third:  Students are required to take and pay for the subject even if the subject does not have an instructor - such greed for money on the part of AMEC’s administration.  Take the subject Anatomy: students would pay for the subject upon enrolment because it is offered by the school.  However there would be no instructor for such subject.  Students would be informed that

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course would be moved to a later date because the school is stillsearching for the appropriate instructor.

xxx

It is a public knowledge that the Ago Medical and Educational Center has survived and has been surviving for the past few yearssince its inception because of funds support from foreign foundations.  If you will take a look at the AMEC premises you’llfind out that the names of the buildings there are foreign soundings.  There is a McDonald Hall.  Why not Jose Rizal or Bonifacio Hall? That is a very concrete and undeniable evidence that the support of foreign foundations for AMEC is substantial, isn’t it?  With the report which is the basis of the expose in DZRC today, it would be very easy for detractors and enemies of the Ago family to stop the flow of support of foreign foundationswho assist the medical school on the basis of the latter’s purpose.  But if the purpose of the institution (AMEC) is to deceive students at cross purpose with its reason for being it ispossible for these foreign foundations to lift or suspend their donations temporarily.[8]

xxx

On the other hand, the administrators of AMEC-BCCM, AMEC Science High School and the AMEC-Institute of Mass Communication in theireffort to minimize expenses in terms of salary are absorbing or continues to accept “rejects”.  For example  how many teachers inAMEC are former teachers of Aquinas University but were removed because of immorality? Does it mean that the present administration of AMEC have the total definite moral foundation from catholic administrator of Aquinas University.  I will prove to you my friends, that AMEC is a dumping ground, garbage, not merely of moral and physical misfits.  Probably they only qualifyin terms of intellect.  The Dean of Student Affairs of AMEC is

Justita Lola, as the family name implies.  She is too old to work, being an old woman.  Is the AMEC administration exploiting the very [e]nterprising or compromising and undemanding Lola? Could it be that AMEC is just patiently making use of Dean Justita Lola were if she is very old.  As in atmospheric situation – zero visibility – the plane cannot land, meaning she is very old, low pay follows.  By the way, Dean Justita Lola is also the chairman of the committee on scholarship in AMEC.  She had retired from Bicol University a long time ago but AMEC has patiently made use of her.

xxx

MEL RIMA:

xxx My friends based on the expose, AMEC is a dumping ground for moral and physically misfit people.  What does this mean? Immoraland physically misfits as teachers.

May I say I’m sorry to Dean Justita Lola.  But this is the truth.  The truth is this, that your are no longer fit to teach. You are too old.  As an aviation, your case is zero visibility.  Don’t insist.

xxx Why did AMEC still absorb her as a teacher, a dean, and chairman of the scholarship committee at that.  The reason is practical cost saving in salaries, because an old person is not fastidious, so long as she has money to buy the ingredient of beetle juice.  The elderly can get by – that’s why she (Lola) wastaken in as Dean.

xxx

xxx On our end our task is to attend to the interests of students.  It is likely that the students would be influenced by

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evil.  When they become members of society outside of campus willbe liabilities rather than assets.  What do you expect from a doctor who while studying at AMEC is so much burdened with unreasonable imposition?  What do you expect from a student who aside from peculiar problems – because not all students are rich – in their struggle to improve their social status are even more burdened with false regulations. xxx[9]  (Emphasis supplied)

The complaint further alleged that AMEC is a reputable learning institution.  With the supposed exposés, FBNI, Rima and Alegre “transmitted malicious imputations, and as such, destroyed plaintiffs’ (AMEC and Ago) reputation.”  AMEC and Ago included FBNI as defendant for allegedly failing to exercise due diligencein the selection and supervision of its employees, particularly Rima and Alegre.

On 18 June 1990, FBNI, Rima and Alegre, through Atty. Rozil Lozares, filed an Answer[10] alleging that the broadcasts againstAMEC were fair and true.  FBNI, Rima and Alegre claimed that theywere plainly impelled by a sense of public duty to report the “goings-on in AMEC, [which is] an institution imbued with public interest.”

Thereafter, trial ensued.  During the presentation of the evidence for the defense, Atty. Edmundo Cea, collaborating counsel of Atty. Lozares, filed a Motion to Dismiss[11] on FBNI’sbehalf.  The trial court denied the motion to dismiss. Consequently, FBNI filed a separate Answer claiming that it exercised due diligence in the selection and supervision of Rima and Alegre.  FBNI claimed that before hiring a broadcaster, the broadcaster should (1) file an application; (2) be interviewed; and (3) undergo an apprenticeship and training program after passing the interview.  FBNI likewise claimed that it always reminds its broadcasters to “observe truth, fairness and objectivity in their broadcasts and to refrain from using

libelous and indecent language.”  Moreover, FBNI requires all broadcasters to pass the Kapisanan ng mga Brodkaster sa Pilipinas (“KBP”) accreditation test and to secure a KBP permit.

On 14 December 1992, the trial court rendered a Decision[12] finding FBNI and Alegre liable for libel except Rima. The trial court held that the broadcasts are libelous per se.  The trial court rejected the broadcasters’ claim that their utterances werethe result of straight reporting because it had no factual basis.The broadcasters did not even verify their reports before airing them to show good faith.  In holding FBNI liable for libel, the trial court found that FBNI failed to exercise diligence in the selection and supervision of its employees.

In absolving Rima from the charge, the trial court ruled that Rima’s only participation was when he agreed with Alegre’s exposé.  The trial court found Rima’s statement within the “bounds of freedom of speech, expression, and of the press.” The dispositive portion of the decision reads:

WHEREFORE, premises considered, this court finds for the plaintiff.  Considering the degree of damages caused by the controversial utterances, which are not found by this court to bereally very serious and damaging, and there being no showing thatindeed the enrollment of plaintiff school dropped, defendants Hermogenes “Jun” Alegre, Jr. and Filipinas Broadcasting Network (owner of the radio station DZRC), are hereby jointly and severally ordered to pay plaintiff Ago Medical and Educational Center-Bicol Christian College of Medicine (AMEC-BCCM) the amountof P300,000.00 moral damages, plus P30,000.00 reimbursement of attorney’s fees, and to pay the costs of suit.

SO ORDERED. [13] (Emphasis supplied)

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Both parties, namely, FBNI, Rima and Alegre, on one hand, and AMEC and Ago, on the other, appealed the decision to the Court ofAppeals. The Court of Appeals affirmed the trial court’s judgmentwith modification. The appellate court made Rima solidarily liable with FBNI and Alegre.  The appellate court denied Ago’s claim for damages and attorney’s fees because the broadcasts weredirected against AMEC, and not against her. The dispositive portion of the Court of Appeals’ decision reads:

WHEREFORE, the decision appealed from is hereby AFFIRMED, subjectto the modification that broadcaster Mel Rima is SOLIDARILY ADJUDGED liable with FBN[I] and Hermo[g]enes Alegre.

SO ORDERED.[14]

FBNI, Rima and Alegre filed a motion for reconsideration which the Court of Appeals denied in its 26 January 2000 Resolution.

Hence, FBNI filed this petition.[15]

The Ruling of the Court of Appeals

The Court of Appeals upheld the trial court’s ruling that the questioned broadcasts are libelous per se and that FBNI, Rima and Alegre failed to overcome the legal presumption of malice. The Court of Appeals found Rima and Alegre’s claim that they were actuated by their moral and social duty to inform the public of the students’ gripes as insufficient to justify the utterance of the defamatory remarks.

Finding no factual basis for the imputations against AMEC’s administrators, the Court of Appeals ruled that the broadcasts were made “with reckless disregard as to whether they were true or false.”  The appellate court pointed out that FBNI, Rima and

Alegre failed to present in court any of the students who allegedly complained against AMEC. Rima and Alegre merely gave a single name when asked to identify the students.  According to the Court of Appeals, these circumstances cast doubt on the veracity of the broadcasters’ claim that they were “impelled by their moral and social duty to inform the public about the students’ gripes.”

The Court of Appeals found Rima also liable for libel since he remarked that “(1) AMEC-BCCM is a dumping ground for morally and physically misfit teachers; (2) AMEC obtained the services of Dean Justita Lola to minimize expenses on its employees’ salaries; and (3) AMEC burdened the students with unreasonable imposition and false regulations.”[16]

The Court of Appeals held that FBNI failed to exercise due diligence in the selection and supervision of its employees for allowing Rima and Alegre to make the radio broadcasts without theproper KBP accreditation.  The Court of Appeals denied Ago’s claim for damages and attorney’s fees because the libelous remarks were directed against AMEC, and not against her.  The Court of Appeals adjudged FBNI, Rima and Alegre solidarily liableto pay AMEC moral damages, attorney’s fees and costs of suit.

Issues

FBNI raises the following issues for resolution:

I.         WHETHER THE BROADCASTS ARE LIBELOUS;

II.        WHETHER AMEC IS ENTITLED TO MORAL DAMAGES;

III.        WHETHER THE AWARD OF ATTORNEY’S FEES IS PROPER; and

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IV.       WHETHER FBNI IS SOLIDARILY LIABLE WITH RIMA AND ALEGRE FOR PAYMENT OF MORAL DAMAGES, ATTORNEY’S FEES AND COSTS OF SUIT.

The Court’s Ruling

We deny the petition.

This is a civil action for damages as a result of the allegedly defamatory remarks of Rima and Alegre against AMEC.[17] While AMEC did not point out clearly the legal basis for its complaint,a reading of the complaint reveals that AMEC’s cause of action isbased on Articles 30 and 33 of the Civil Code.  Article 30[18] authorizes a separate civil action to recover civil liability arising from a criminal offense.  On the other hand, Article 33[19] particularly provides that the injured party may bring a separate civil action for damages in cases of defamation, fraud, and physical injuries.  AMEC also invokes Article 19[20] of the Civil Code to justify its claim for damages.  AMEC cites Articles2176[21] and 2180[22] of the Civil Code to hold FBNI solidarily liable with Rima and Alegre.

I.Whether the broadcasts are libelous

A libel[23] is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or omission, condition, status, or circumstance tending to cause the dishonor,discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.[24]

There is no question that the broadcasts were made public and imputed to AMEC defects or circumstances tending to cause it

dishonor, discredit and contempt.  Rima and Alegre’s remarks suchas “greed for money on the part of AMEC’s administrators”; “AMEC is a dumping ground, garbage of xxx moral and physical misfits”; and AMEC students who graduate “will be liabilities rather than assets” of the society are libelous per se.  Taken as a whole, thebroadcasts suggest that AMEC is a money-making institution where physically and morally unfit teachers abound.

However, FBNI contends that the broadcasts are not malicious. FBNI claims that Rima and Alegre were plainly impelled by their civic duty to air the students’ gripes.  FBNI alleges that there is no evidence that ill will or spite motivated Rima and Alegre in making the broadcasts.  FBNI further points out that Rima and Alegre exerted efforts to obtain AMEC’s side and gave Ago the opportunity to defend AMEC and its administrators.  FBNI concludes that since there is no malice, there is no libel.

FBNI’s contentions are untenable.

Every defamatory imputation is presumed malicious.[25] Rima and Alegre failed to show adequately their good intention and justifiable motive in airing the supposed gripes of the students.As hosts of a documentary or public affairs program, Rima and Alegre should have presented the public issues “free from inaccurate and misleading information.”[26] Hearing the students’ alleged complaints a month before the exposé,[27] they had sufficient time to verify their sources and information.  However, Rima and Alegre hardly made a thorough investigation of the students’ alleged gripes. Neither did they inquire about nor confirm the purported irregularities in AMEC from the Department of Education, Culture and Sports. Alegre testified that he merelywent to AMEC to verify his report from an alleged AMEC official who refused to disclose any information.  Alegre simply relied onthe words of the students “because they were many and not becausethere is proof that what they are saying is true.”[28] This

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plainly shows Rima and Alegre’s reckless disregard of whether their report was true or not.

Contrary to FBNI’s claim, the broadcasts were not “the result of straight reporting.” Significantly, some courts in the United States apply the privilege of “neutral reportage” in libel cases involving matters of public interest or public figures. Under this privilege, a republisher who accurately and disinterestedly reports certain defamatory statements made against public figuresis shielded from liability, regardless of the republisher’s subjective awareness of the truth or falsity of the accusation.[29] Rima and Alegre cannot invoke the privilege of neutral reportage because unfounded comments abound in the broadcasts. Moreover, there is no existing controversy involving AMEC when the broadcasts were made.  The privilege of neutral reportage applies where the defamed person is a public figure who is involved in an existing controversy, and a party to that controversy makes the defamatory statement.[30]

However, FBNI argues vigorously that malice in law does not applyto this case.  Citing Borjal v. Court of Appeals,[31] FBNI contends that the broadcasts “fall within the coverage of qualifiedly privileged communications” for being commentaries on matters of public interest.  Such being the case, AMEC should prove malice in fact or actual malice.  Since AMEC allegedly failed to prove actual malice, there is no libel.

FBNI’s reliance on Borjal is misplaced. In Borjal, the Court elucidated on the “doctrine of fair comment,” thus:

[F]air commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially

proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must eitherbe a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based onestablished facts, then it is immaterial that the opinion happensto be mistaken, as long as it might reasonably be inferred from the facts.[32] (Emphasis supplied)

True, AMEC is a private learning institution whose business of educating students is “genuinely imbued with public interest.”  The welfare of the youth in general and AMEC’s students in particular is a matter which the public has the right to know.  Thus, similar to the newspaper articles in Borjal, the subject broadcasts dealt with matters of public interest.  However, unlike in Borjal, the questioned broadcasts are not based on established facts.  The record supports the following findings ofthe trial court:

xxx Although defendants claim that they were motivated by consistent reports of students and parents against plaintiff, yet, defendants have not presented in court, nor even gave name of a single student who made the complaint to them, much less present written complaint or petition to that effect.  To accept this defense of defendants is too dangerous because it could easily give license to the media to malign people and establishments based on flimsy excuses that there were reports tothem although they could not satisfactorily establish it.  Such laxity would encourage careless and irresponsible broadcasting which is inimical to public interests.

Secondly, there is reason to believe that defendant radio broadcasters, contrary to the mandates of their duties, did not

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verify and analyze the truth of the reports before they aired it,in order to prove that they are in good faith.

Alegre contended that plaintiff school had no permit and is not accredited to offer Physical Therapy courses.  Yet, plaintiff produced a certificate coming from DECS that as of Sept. 22, 1987or more than 2 years before the controversial broadcast, accreditation to offer Physical Therapy course had already been given the plaintiff, which certificate is signed by no less than the Secretary of Education and Culture herself, Lourdes R. Quisumbing (Exh. C-rebuttal).  Defendants could have easily knownthis were they careful enough to verify.  And yet, defendants were very categorical and sounded too positive when they made theerroneous report that plaintiff had no permit to offer Physical Therapy courses which they were offering.

The allegation that plaintiff was getting tremendous aids from foreign foundations like Mcdonald Foundation prove not to be truealso.  The truth is there is no Mcdonald Foundation existing.  Although a big building of plaintiff school was given the name Mcdonald building, that was only in order to honor the first missionary in Bicol of plaintiffs’ religion, as explained by Dr. Lita Ago.  Contrary to the claim of defendants over the air, not a single centavo appears to be received by plaintiff school from the aforementioned McDonald Foundation which does not exist.

Defendants did not even also bother to prove their claim, though denied by Dra. Ago, that when medical students fail in one subject, they are made to repeat all the other subject[s], even those they have already passed, nor their claim that the school charges laboratory fees even if there are no laboratories in the school.  No evidence was presented to prove the bases for these claims, at least in order to give semblance of good faith.

As for the allegation that plaintiff is the dumping ground for misfits, and immoral teachers, defendant[s] singled out Dean Justita Lola who is said to be so old, with zero visibility already.  Dean Lola testified in court last Jan. 21, 1991, and was found to be 75 years old.  xxx Even older people prove to be effective teachers like Supreme Court Justices who are still verymuch in demand as law professors in their late years.  Counsel for defendants is past 75 but is found by this court to be still very sharp and effective.  So is plaintiffs’ counsel.

Dr. Lola was observed by this court not to be physically decrepityet, nor mentally infirmed, but is still alert and docile.

The contention that plaintiffs’ graduates become liabilities rather than assets of our society is a mere conclusion.  Being from the place himself, this court is aware that majority of the medical graduates of plaintiffs pass the board examination easilyand become prosperous and responsible professionals.[33]

Had the comments been an expression of opinion based on established facts, it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[34] However, the comments of Rima and Alegre were not backed up by facts.  Therefore, the broadcasts are not privilegedand remain libelous per se.

The broadcasts also violate the Radio Code[35] of the Kapisanan ng mga Brodkaster sa Pilipinas, Ink. (“Radio Code”).  Item I(B) of the Radio Code provides:

B. PUBLIC AFFAIRS, PUBLIC ISSUES AND COMMENTARIES

1.      x x x

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4.      Public affairs program shall present public issues free from personal bias, prejudice and inaccurate and misleading information. x x x  Furthermore, the stationshall strive to present balanced discussion of issues. x x x.

x x x

7.      The station shall be responsible at all times in thesupervision of public affairs, public issues and commentary programs so that they conform to the provisions and standards of this code.

8.      It shall be the responsibility of the newscaster, commentator, host and announcer to protect public interest, general welfare and good order in the presentation of public affairs and public issues.[36] (Emphasis supplied)

The broadcasts fail to meet the standards prescribed in the RadioCode, which lays down the code of ethical conduct governing practitioners in the radio broadcast industry.  The Radio Code isa voluntary code of conduct imposed by the radio broadcast industry on its own members.  The Radio Code is a public warrantyby the radio broadcast industry that radio broadcast practitioners are subject to a code by which their conduct are measured for lapses, liability and sanctions.

The public has a right to expect and demand that radio broadcast practitioners live up to the code of conduct of their profession,just like other professionals.  A professional code of conduct provides the standards for determining whether a person has actedjustly, honestly and with good faith in the exercise of his rights and performance of his duties as required by Article 19[37] of the Civil Code.  A professional code of conduct also

provides the standards for determining whether a person who willfully causes loss or injury to another has acted in a manner contrary to morals or good customs under Article 21[38] of the Civil Code.

II.Whether AMEC is entitled to moral damages

FBNI contends that AMEC is not entitled to moral damages because it is a corporation.[39]

A juridical person is generally not entitled to moral damages because, unlike a natural person, it cannot experience physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish or moral shock.[40] The Court of Appeals cites Mambulao Lumber Co. v. PNB, et al.[41] to justify the award of moral damages.  However, the Court’s statement in Mambulao that “a corporation may have a good reputation which, if besmirched, may also be a ground for the award of moral damages” is an obiter dictum.[42]

Nevertheless, AMEC’s claim for moral damages falls under item 7 of Article 2219[43] of the Civil Code.  This provision expressly authorizes the recovery of moral damages in cases of libel, slander or any other form of defamation. Article 2219(7) does notqualify whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as a corporation can validly complain for libel or any other form of defamation and claim for moral damages.[44]

Moreover, where the broadcast is libelous per se, the law implies damages.[45] In such a case, evidence of an honest mistake or thewant of character or reputation of the party libeled goes only inmitigation of damages.[46] Neither in such a case is the plaintiff required to introduce evidence of actual damages as a

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condition precedent to the recovery of some damages.[47] In this case, the broadcasts are libelous per se.  Thus, AMEC is entitled to moral damages.

However, we find the award of P300,000 moral damages unreasonable.  The record shows that even though the broadcasts were libelous per se, AMEC has not suffered any substantial or material damage to its reputation. Therefore, we reduce the awardof moral damages from P300,000 to P150,000.

III.Whether the award of attorney’s fees is proper

FBNI contends that since AMEC is not entitled to moral damages, there is no basis for the award of attorney’s fees.  FBNI adds that the instant case does not fall under the enumeration in Article 2208[48] of the Civil Code.

The award of attorney’s fees is not proper because AMEC failed tojustify satisfactorily its claim for attorney’s fees. AMEC did not adduce evidence to warrant the award of attorney’s fees.  Moreover, both the trial and appellate courts failed to explicitly state in their respective decisions the rationale for the award of attorney’s fees.[49] In Inter-Asia Investment Industries, Inc. v. Court of Appeals,[50] we held that:

[I]t is an accepted doctrine that the award thereof as an item ofdamages is the exception rather than the rule, and counsel’s feesare not to be awarded every time a party wins a suit.  The power of the court to award attorney’s fees under Article 2208 of the Civil Code demands factual, legal and equitable justification, without which the award is a conclusion without a premise, its basis being improperly left to speculation and conjecture.  In all events, the court must explicitly state in the text of the

decision, and not only in the decretal portion thereof, the legalreason for the award of attorney’s fees.[51]  (Emphasis supplied)

While it mentioned about the award of attorney’s fees by stating that it “lies within the discretion of the court and depends uponthe circumstances of each case,” the Court of Appeals failed to point out any circumstance to justify the award.

IV.Whether FBNI is solidarily liable with Rima and Alegrefor moral damages, attorney’s feesand costs of suit

FBNI contends that it is not solidarily liable with Rima and Alegre for the payment of damages and attorney’s fees because it exercised due diligence in the selection and supervision of its employees, particularly Rima and Alegre.  FBNI maintains that itsbroadcasters, including Rima and Alegre, undergo a “very regimented process” before they are allowed to go on air.  “Thosewho apply for broadcaster are subjected to interviews, examinations and an apprenticeship program.”

FBNI further argues that Alegre’s age and lack of training are irrelevant to his competence as a broadcaster.  FBNI points out that the “minor deficiencies in the KBP accreditation of Rima andAlegre do not in any way prove that FBNI did not exercise the diligence of a good father of a family in selecting and supervising them.”  Rima’s accreditation lapsed due to his non-payment of the KBP annual fees while Alegre’s accreditation card was delayed allegedly for reasons attributable to the KBP Manila Office.  FBNI claims that membership in the KBP is merely voluntary and not required by any law or government regulation.

FBNI’s arguments do not persuade us.

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The basis of the present action is a tort. Joint tort feasors arejointly and severally liable for the tort which they commit.[52] Joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit.[53] Thus, AMEC correctly anchored its cause of action against FBNI on Articles 2176 and 2180 of the Civil Code.

As operator of DZRC-AM and employer of Rima and Alegre, FBNI is solidarily liable to pay for damages arising from the libelous broadcasts. As stated by the Court of Appeals, “recovery for defamatory statements published by radio or television may be hadfrom the owner of the station, a licensee, the operator of the station, or a person who procures, or participates in, the makingof the defamatory statements.”[54] An employer and employee are solidarily liable for a defamatory statement by the employee within the course and scope of his or her employment, at least when the employer authorizes or ratifies the defamation.[55] In this case, Rima and Alegre were clearly performing their officialduties as hosts of FBNI’s radio program Exposé when they aired the broadcasts.  FBNI neither alleged nor proved that Rima and Alegre went beyond the scope of their work at that time. There was likewise no showing that FBNI did not authorize and ratify the defamatory broadcasts.

Moreover, there is insufficient evidence on record that FBNI exercised due diligence in the selection and supervision of its employees, particularly Rima and Alegre. FBNI merely showed that it exercised diligence in the selection of its broadcasters without introducing any evidence to prove that it observed the same diligence in the supervision of Rima and Alegre. FBNI did not show how it exercised diligence in supervising its broadcasters.  FBNI’s alleged constant reminder to its broadcasters to “observe truth, fairness and objectivity and to

refrain from using libelous and indecent language” is not enough to prove due diligence in the supervision of its broadcasters. Adequate training of the broadcasters on the industry’s code of conduct, sufficient information on libel laws, and continuous evaluation of the broadcasters’ performance are but a few of the many ways of showing diligence in the supervision of broadcasters.

FBNI claims that it “has taken all the precaution in the selection of Rima and Alegre as broadcasters, bearing in mind their qualifications.” However, no clear and convincing evidence shows that Rima and Alegre underwent FBNI’s “regimented process” of application. Furthermore, FBNI admits that Rima and Alegre haddeficiencies in their KBP accreditation,[56] which is one of FBNI’s requirements before it hires a broadcaster. Significantly,membership in the KBP, while voluntary, indicates the broadcaster’s strong commitment to observe the broadcast industry’s rules and regulations. Clearly, these circumstances show FBNI’s lack of diligence in selecting and supervising Rima and Alegre. Hence, FBNI is solidarily liable to pay damages together with Rima and Alegre.

WHEREFORE, we DENY the instant petition.  We AFFIRM the Decision of 4 January 1999 and Resolution of 26 January 2000 of the Court of Appeals in CA-G.R. CV No. 40151 with the MODIFICATION that theaward of moral damages is reduced from P300,000 to P150,000 and the award of attorney’s fees is deleted.  Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

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G.R. No. 75112 August 17, 1992

FILAMER CHRISTIAN INSTITUTE, petitioner, vs.HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial Court, Branch XIV, Roxas City and POTENCIANO KAPUNAN, SR., respondents.

Bedona & Bedona Law Office for petitioner.

Rhodora G. Kapunan for private respondents.

 

GUTIERREZ, JR., J.:

The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of the decision rendered by this Court on October 16, 1990 (Filamer Christian Institute v. Court of Appeals, 190 SCRA 477) reviewing the appellate court's conclusionthat there exists an employer-employee relationship between the petitioner and its co-defendant Funtecha. The Court ruled that the petitioner is not liable for the injuries caused by Funtecha on the grounds that the latter was not an authorized driver for whose acts the petitioner shall be directly and primarily answerable, and that Funtecha was merely a working scholar who, under Section 14, Rule X, Book III of the Rules and Regulations Implementing the Labor Code is not considered an employee of the petitioner.

The private respondents assert that the circumstances obtaining in the present case call for the application of Article 2180 of the Civil Code since Funtecha is no doubt an employee of the petitioner. The private respondents maintain that under Article 2180 an injured party shall have recourse against the servant as well as the petitioner for whom, at the time of the incident, theservant was performing an act in furtherance of the interest and for the benefit of the petitioner. Funtecha allegedly did not steal the school jeep nor use it for a joy ride without the knowledge of the school authorities.

After a re-examination of the laws relevant to the facts found bythe trial court and the appellate court, the Court reconsiders its decision. We reinstate the Court of Appeals' decision penned by the late Justice Desiderio Jurado and concurred in by JusticesJose C. Campos, Jr. and Serafin E. Camilon. Applying Civil Code provisions, the appellate court affirmed the trial court decisionwhich ordered the payment of the P20,000.00 liability in the Zenith Insurance Corporation policy, P10,000.00 moral damages, P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.

It is undisputed that Funtecha was a working student, being a part-time janitor and a scholar of petitioner Filamer. He was, inrelation to the school, an employee even if he was assigned to clean the school premises for only two (2) hours in the morning of each school day.

Having a student driver's license, Funtecha requested the driver,Allan Masa, and was allowed, to take over the vehicle while the latter was on his way home one late afternoon. It is significant to note that the place where Allan lives is also the house of hisfather, the school president, Agustin Masa. Moreover, it is also the house where Funtecha was allowed free board while he was a student of Filamer Christian Institute.

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Allan Masa turned over the vehicle to Funtecha only after drivingdown a road, negotiating a sharp dangerous curb, and viewing thatthe road was clear. (TSN, April 4, 1983, pp. 78-79) According to Allan's testimony, a fast moving truck with glaring lights nearlyhit them so that they had to swerve to the right to avoid a collision. Upon swerving, they heard a sound as if something had bumped against the vehicle, but they did not stop to check. Actually, the Pinoy jeep swerved towards the pedestrian, Potenciano Kapunan who was walking in his lane in the direction against vehicular traffic, and hit him. Allan affirmed that Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of the incident (6:30 P.M.) in Roxas City, the jeep had only one functioning headlight.

Allan testified that he was the driver and at the same time a security guard of the petitioner-school. He further said that there was no specific time for him to be off-duty and that after driving the students home at 5:00 in the afternoon, he still had to go back to school and then drive home using the same vehicle.

Driving the vehicle to and from the house of the school presidentwhere both Allan and Funtecha reside is an act in furtherance of the interest of the petitioner-school. Allan's job demands that he drive home the school jeep so he can use it to fetch students in the morning of the next school day.

It is indubitable under the circumstances that the school president had knowledge that the jeep was routinely driven home for the said purpose. Moreover, it is not improbable that the school president also had knowledge of Funtecha's possession of astudent driver's license and his desire to undergo driving lessons during the time that he was not in his classrooms.

In learning how to drive while taking the vehicle home in the direction of Allan's house, Funtecha definitely was not having a

joy ride. Funtecha was not driving for the purpose of his enjoyment or for a "frolic of his own" but ultimately, for the service for which the jeep was intended by the petitioner school.(See L. Battistoni v. Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR 722 [1932]; See also Association of Baptists for World Evangelism, Inc. v. Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]). Therefore, the Court is constrained to conclude that theact of Funtecha in taking over the steering wheel was one done for and in behalf of his employer for which act the petitioner-school cannot deny any responsibility by arguing that it was donebeyond the scope of his janitorial duties. The clause "within thescope of their assigned tasks" for purposes of raising the presumption of liability of an employer, includes any act done byan employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the employee driving the vehicle derivedsome benefit from the act, the existence of a presumptive liability of the employer is determined by answering the questionof whether or not the servant was at the time of the accident performing any act in furtherance of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])

Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors its defense, was promulgated by the Secretary of Labor and Employment only for thepurpose of administering and enforcing the provisions of the Labor Code on conditions of employment. Particularly, Rule X of Book III provides guidelines on the manner by which the powers ofthe Labor Secretary shall be exercised; on what records should bekept; maintained and preserved; on payroll; and on the exclusion of working scholars from, and inclusion of resident physicians inthe employment coverage as far as compliance with the substantive

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labor provisions on working conditions, rest periods, and wages, is concerned.

In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, makes the distinction and so holds that Section 14, Rule X, Book III of theRules is not the decisive law in a civil suit for damages instituted by an injured person during a vehicular accident against a working student of a school and against the school itself.

The present case does not deal with a labor dispute on conditionsof employment between an alleged employee and an alleged employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a person, againstboth doer-employee and his employer. Hence, the reliance on the implementing rule on labor to disregard the primary liability of an employer under Article 2180 of the Civil Code is misplaced. Animplementing rule on labor cannot be used by an employer as a shield to avoid liability under the substantive provisions of theCivil Code.

There is evidence to show that there exists in the present case an extra-contractual obligation arising from the negligence or reckless imprudence of a person "whose acts or omissions are imputable, by a legal fiction, to other(s) who are in a position to exercise an absolute or limited control over (him)." (Bahia v.Litonjua and Leynes, 30 Phil. 624 [1915])

Funtecha is an employee of petitioner Filamer. He need not have an official appointment for a driver's position in order that thepetitioner may be held responsible for his grossly negligent act,it being sufficient that the act of driving at the time of the incident was for the benefit of the petitioner. Hence, the fact that Funtecha was not the school driver or was not acting within

the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the presumption juris tantum that there was negligence on its part either in the selection of a servant or employee, or in the supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good father of a family over its employees Funtecha and Allan.

The Court reiterates that supervision includes the formulation ofsuitable rules and regulations for the guidance of its employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his employees. (Bahia v. Litonjua and Leynes, supra, at p. 628; Phoenix Construction, v. Intermediate Appellate Court, 148 SCRA 353 [1987])

An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer.

In the present case, the petitioner has not shown that it has setforth such rules and guidelines as would prohibit any one of its employees from taking control over its vehicles if one is not theofficial driver or prohibiting the driver and son of the Filamer president from authorizing another employee to drive the school vehicle. Furthermore, the petitioner has failed to prove that it had imposed sanctions or warned its employees against the use of its vehicles by persons other than the driver.

The petitioner, thus, has an obligation to pay damages for injuryarising from the unskilled manner by which Funtecha drove the vehicle. (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 [1918]). In the absence of evidence that the petitioner had exercised the diligence of a good father of a family in the supervision of its employees, the law imposes upon it the

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vicarious liability for acts or omissions of its employees. (Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v. Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner v. Coronado, 176 SCRA 792 [1989];Franco v. Intermediate Appellate Court, 178 SCRA 331 [1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The liability of the employer is, under Article 2180, primary and solidary. However, the employer shall have recourse against the negligent employee for whatever damages are paid to the heirs of the plaintiff.

It is an admitted fact that the actual driver of the school jeep,Allan Masa, was not made a party defendant in the civil case for damages. This is quite understandable considering that as far as the injured pedestrian, plaintiff Potenciano Kapunan, was concerned, it was Funtecha who was the one driving the vehicle and presumably was one authorized by the school to drive. The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the petitioner for the consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while. For the purpose of recovering damages under the prevailing circumstances, it is enough that theplaintiff and the private respondent heirs were able to establishthe existence of employer-employee relationship between Funtecha and petitioner Filamer and the fact that Funtecha was engaged in an act not for an independent purpose of his own but in furtherance of the business of his employer. A position of responsibility on the part of the petitioner has thus been satisfactorily demonstrated.

WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is hereby GRANTED. The decision of the respondent appellate court affirming the trial court decision is REINSTATED.

SO ORDERED.

Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.

G.R. No. 163609             November 27, 2008

SPS. BUENAVENTURA JAYME AND ROSARIO JAYME, petitioners, vs.RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO SIMBULAN, MAYOR FERNANDO Q. MIGUEL, MUNICIPALITY OF KORONADAL (NOW CITY OF KORONADAL), PROVINCE OF SOUTH COTABATO, represented by the MUNICIPAL TREASURER and/or MUNICIPAL MAYOR FERNANDO Q. MIGUEL, and THE FIRST INTEGRATED BONDING AND INSURANCE COMPANY, INC., respondents.

D E C I S I O N

REYES, R.T., J.:

MAY a municipal mayor be held solidarily liable for the negligentacts of the driver assigned to him, which resulted in the death of a minor pedestrian?

Challenged in this petition for review on certiorari is the Decision1

of the Court of Appeals (CA) which reversed and set aside the decision of the Regional Trial Court (RTC), Polomolok, Cotabato City, Branch 39, insofar as defendant Mayor Fernando Q. Miguel isconcerned. The CA absolved Mayor Miguel from any liability since it was not he, but the Municipality of Koronadal, that was the employer of the negligent driver.

The Facts

On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on board the Isuzu pick-up truck driven by Fidel Lozano, an

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employee of the Municipality of Koronadal.2 The pick-up truck was registered under the name of Rodrigo Apostol, but it was then in the possession of Ernesto Simbulan.3 Lozano borrowed the pick-up truck from Simbulan to bring Miguel to Buayan Airport at General Santos City to catch his Manila flight.4

The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then crossing the National Highway in Poblacion, Polomolok, South Cotabato.5 The intensity of the collision sent Marvin some fifty (50) meters away from the point of impact, a clear indication that Lozano was driving at a very high speed at the time of the accident.6

Marvin sustained severe head injuries with subdural hematoma and diffused cerebral contusion.7 He was initially treated at the Howard Hubbard Memorial Hospital.8 Due to the seriousness of his injuries, he was airlifted to the Ricardo Limso Medical Center inDavao City for more intensive treatment.9 Despite medical attention, Marvin expired six (6) days after the accident.10

Petitioners spouses Buenaventura and Rosario Jayme, the parents of Marvin, filed a complaint for damages with the RTC against respondents.11 In their complaint, they prayed that all respondents be held solidarily liable for their loss. They pointed out that that proximate cause of Marvin's death was Lozano's negligent and reckless operation of the vehicle. They prayed for actual, moral, and exemplary damages, attorney's fees,and litigation expenses.

In their respective Answers, all respondents denied liability forMarvin's death. Apostol and Simbulan averred that Lozano took thepick-up truck without their consent. Likewise, Miguel and Lozano pointed out that Marvin's sudden sprint across the highway made it impossible to avoid the accident. Yet, Miguel denied being on board the vehicle when it hit Marvin. The Municipality of

Koronadal adopted the answer of Lozano and Miguel. As for First Integrated Bonding and Insurance Company, Inc., the vehicle insurer, it insisted that its liability is contributory and is only conditioned on the right of the insured. Since the insured did not file a claim within the prescribed period, any cause of action against it had prescribed.

RTC Disposition

On January 25, 1999, the RTC rendered judgment in favor of spouses Jayme, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the defendant Municipality of Koronadal cannot be held liable for the damages incurred by other defendant (sic) being an agency ofthe State performing a (sic) governmental functions. The same with defendant Hermogenes Simbulan, not being the ownerof the subject vehicle, he is absolved of any liability. Thecomplaint against defendant First Integrated Bonding Insurance Company, Inc. is hereby ordered dismissed there being no cause of action against said insurance company.

However, defendants Fidel Lozano, Rodrigo Apostol, and MayorFernando Miguel of Koronadal, South Cotabato, are hereby ordered jointly and severally to pay the plaintiff (sic) thefollowing sums:

1. One Hundred Seventy Three Thousand One Hundred One and Forty Centavos (P173,101.40) Pesos as actual damages with legal interest of 12% per annum computed from February 11, 1989 until fully paid;

2. Fifty Thousand (P50,000.00) Pesos as moral damages;

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3. Twenty Thousand (P20,000.00) Pesos as exemplary damages;

4. Twenty Thousand (P20,000.00) Pesos as Attorney's fees;

5. Fifty Thousand (P50,000.00) Pesos for the death of Marvin Jayme;

6. Three Thousand (P3,000.00) as litigation expenses; and

7. To pay the cost of this suit.

SO ORDERED.12

Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the CA.

CA Disposition

In his appeal, Mayor Miguel contended that the RTC erred in ruling that he was Lozano's employer and, hence, solidarily liable for the latter's negligent act. Records showed that the Municipality of Koronadal was the driver's true and lawful employer. Mayor Miguel also denied that he did not exercise due care and diligence in the supervision of Lozano. The incident, although unfortunate, was unexpected and cannot be attributed to him.

On October 22, 2003, the CA granted the appeal, disposing as follows:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE, insofar as defendant-appellant Mayor Fernando Q.

Miguel is concerned, and the complaint against him is DISMISSED.

IT IS SO ORDERED.13

The CA held that Mayor Miguel should not be held liable for damages for the death of Marvin Jayme. Said the appellate court:

Moreover, plaintiffs-appellees admitted that Mayor Miguel was not the employer of Lozano. Thus, paragraph 9 of the complaint alleged that the Municipality of Koronadal was theemployer of both Mayor Miguel and Lozano. Not being the employer of Lozano, Mayor Miguel could not thus be held liable for the damages caused by the former. Mayor Miguel was a mere passenger in the Isuzu pick-up at the time of theaccident.14 (Emphasis supplied)

The CA also reiterated the settled rule that it is the registeredowner of a vehicle who is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the operation of the vehicle.

Issues

The spouses Jayme have resorted to the present recourse and assign to the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT MAYOR FERNANDO MIGUEL CANNOT BE HELD LIABLE FOR THE DEATH OF MARVIN JAYME WHICH CONCLUSION IS CONTRARY TO LAW AND THE SETTLED PRONOUNCEMENTS OF THIS HONORABLE TRIBUNAL;

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II.

THE FINDINGS OF FACTS OF THE HONORABLE COURT OF APPEALS ARE CONTRARY TO THE FINDINGS OF THE TRIAL COURT AND ARE CONTRADICTED BY THE EVIDENCE ON RECORD; MOREOVER, THE CONCLUSIONS DRAWN BY THE HONORABLE COURT OF APPEALS ARE ALL BASED ON CONJECTURES AND SURMISES AND AGAINST ACCEPTED COURSE OF JUDICIAL PROCEEDINGS WHICH URGENTLY CALL FOR AN EXERCISE OF THIS HONORABLE COURT'S SUPERVISION.15

Our Ruling

The doctrine of vicarious liability or imputed liability finds noapplication in the present case.

Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor Miguel. He was not a mere passenger, but instead one whohad direct control and supervision over Lozano during the time ofthe accident. According to petitioners, the element of direct control is not negated by the fact that Lozano's employer was theMunicipality of Koronadal. Mayor Miguel, being Lozano's superior,still had control over the manner the vehicle was operated.

Article 218016 of the Civil Code provides that a person is not only liable for one's own quasi-delictual acts, but also for those persons for whom one is responsible for. This liability is popularly known as vicarious or imputed liability. To sustain claims against employers for the acts of their employees, the following requisites must be established: (1) That the employee was chosen by the employer personally or through another; (2) That the service to be rendered in accordance with orders which the employer has the authority to give at all times; and (3) Thatthe illicit act of the employee was on the occasion or by reason of the functions entrusted to him.17

Significantly, to make the employee liable under paragraphs 5 and6 of Article 2180, it must be established that the injurious or tortuous act was committed at the time the employee was performing his functions.18

Furthermore, the employer-employee relationship cannot be assumed. It is incumbent upon the plaintiff to prove the relationship by preponderant evidence. In Belen v. Belen,19 this Courtruled that it was enough for defendant to deny an alleged employment relationship. The defendant is under no obligation to prove the negative averment. This Court said:

It is an old and well-settled rule of the courts that the burden of proving the action is upon the plaintiff, and thatif he fails satisfactorily to show the facts upon which he bases his claim, the defendant is under no obligation to prove his exceptions. This rue is in harmony with the provisions of Section 297 of the Code of Civil Procedure holding that each party must prove his own affirmative allegations, etc.20

In resolving the present controversy, it is imperative to find out if Mayor Miguel is, indeed, the employer of Lozano and therefore liable for the negligent acts of the latter. To determine the existence of an employment relationship, We rely onthe four-fold test. This involves: (1) the employer's power of selection; (2) payment of wages or other remuneration; (3) the employer's right to control the method of doing the work; and (4)the employer's right of suspension or dismissal.21

Applying the foregoing test, the CA correctly held that it was the Municipality of Koronadal which was the lawful employer of Lozano at the time of the accident. It is uncontested that Lozanowas employed as a driver by the municipality. That he was subsequently assigned to Mayor Miguel during the time of the

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accident is of no moment. This Court has, on several occasions, held that an employer-employee relationship still exists even if the employee was loaned by the employer to another person or entity because control over the employee subsists.22 In the case under review, the Municipality of Koronadal remains to be Lozano's employer notwithstanding Lozano's assignment to Mayor Miguel.

Spouses Jayme argued that Mayor Miguel had at least supervision and control over Lozano and how the latter operated or drove the Isuzu pick-up during the time of the accident. They, however, failed to buttress this claim.

Even assuming arguendo that Mayor Miguel had authority to give instructions or directions to Lozano, he still can not be held liable. In Benson v. Sorrell,23 the New England Supreme Court ruled that mere giving of directions to the driver does not establish that the passenger has control over the vehicle. Neither does it render one the employer of the driver. This Court, in Soliman, Jr. v. Tuazon,24 ruled in a similar vein, to wit:

x x x The fact that a client company may give instructions or directions to the security guards assigned to it, does not, by itself, render the client responsible as an employerof the security guards concerned and liable for their wrongful acts and omissions. Those instructions or directions are ordinarily no more than requests commonly envisaged in the contract for services entered into with thesecurity agency. x x x25 (Emphasis supplied)

Significantly, no negligence may be imputed against a fellow employee although the person may have the right to control the manner of the vehicle's operation.26 In the absence of an employer-employee relationship establishing vicarious liability, the driver's negligence should not be attributed to a fellow

employee who only happens to be an occupant of the vehicle.27 Whatever right of control the occupant may have over the driver is not sufficient by itself to justify an application of the doctrine of vicarious liability. Handley v. Lombardi28 is instructive on this exception to the rule on vicarious liability:

Plaintiff was not the master or principal of the driver of the truck, but only an intermediate and superior employee oragent. This being so, the doctrine of respondeat superior or qui facit per alium is not properly applicable to him. His power to direct and control the driver was not as master, but only byvirtue of the fact that they were both employed by Kruse, and the further fact that as Kruse's agent he was delegated Kruse's authority over the driver. x x x

In the case of actionable negligence, the rule is well settled both in this state and elsewhere that the negligenceof a subordinate employee or subagent is not to be imputed to a superior employee or agent, but only to the master or principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297, 269 Pac. 425; Guild v. Brown, 115 Cal. App. 374 [1 Pac. (2d) 528; Ellis v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N. S.) 378, 52S. E. 228; Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141 [108 Pac. 588]; 2 Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R. 277, and particularly that part commencing atp. 290.) We can see no logical reason for drawing any distinction in this regard between actionable negligence andcontributory negligence. x x x29

The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30 and again in Sichterman v. Hollingshead Co.31

In Swanson v. McQuown,32 a case involving a military officer who happened to be riding in a car driven by a subordinate later involved in an accident, the Colorado Supreme Court adhered to

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the general rule that a public official is not liable for the wrongful acts of his subordinates on a vicarious basis since the relationship is not a true master-servant situation.33 The court went on to rule that the only exception is when they cooperate inthe act complained of, or direct or encourage it.34

In the case at bar, Mayor Miguel was neither Lozano's employer nor the vehicle's registered owner. There existed no causal relationship between him and Lozano or the vehicle used that willmake him accountable for Marvin's death. Mayor Miguel was a mere passenger at the time of the accident.

Parenthetically, it has been held that the failure of a passengerto assist the driver, by providing him warnings or by serving as lookout does not make the passenger liable for the latter's negligent acts.35 The driver's duty is not one that may be delegated to others.36

As correctly held by the trial court, the true and lawful employer of Lozano is the Municipality of Koronadal. Unfortunately for Spouses Jayme, the municipality may not be suedbecause it is an agency of the State engaged in governmental functions and, hence, immune from suit. This immunity is illustrated in Municipality of San Fernando, La Union v. Firme,37 where this Court held:

It has already been remarked that municipal corporations aresuable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liablefor torts committed by them in the discharge of governmentalfunctions and can only be held answerable only if it can be shown that they were acting in proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in governmental capacity when the injury was

committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover.38

Verily, liability attaches to the registered owner, the negligentdriver and his direct employer. The CA observation along this line are worth restating:

Settled is the rule that the registered owner of a vehicle is jointly and severally liable with the driver for damages incurred by passengers and third persons as a consequence ofinjuries or death sustained in the operation of said vehicles. Regardless of who the actual owner of the vehicle is, the operator of record continues to be the operator of the vehicle as regards the public and third persons, and as such is directly and primarily responsible for the consequences incident (sic) to its operation x x x.39

The accidental death of Marvin Jayme is a tragic loss for his parents. However, justice demands that only those liable under our laws be held accountable for Marvin's demise. Justice can notsway in favor of petitioners simply to assuage their pain and loss. The law on the matter is clear: only the negligent driver, the driver's employer, and the registered owner of the vehicle are liable for the death of a third person resulting from the negligent operation of the vehicle.

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.

SO ORDERED.

RUBEN T. REYESAssociate Justice

109

FIRST DIVISION 

 

 

MERCURY DRUG CORPORATION and ROLANDOJ. DEL ROSARIO,

Petitioners,

 

 

 

- versus -

 

 

 

SPOUSES RICHARD HUANG and CARMEN HUANG, and STEPHEN HUANG,

Respondents.

G.R. No. 172122

 

Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

CORONA,

AZCUNA, and

GARCIA, JJ.

 

Promulgated:

 

June 22, 2007

 

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

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D E C I S I O N

PUNO, C.J.:

On appeal are the Decision1[1] and Resolution2[2] of the

Court of Appeals in CA-G.R. CV No. 83981, dated February 16, 2006

and March 30, 2006, respectively which affirmed with modification

the Decision3[3] of the Regional Trial Court (RTC) of Makati City,

dated September 29, 2004. The trial court found petitioners

jointly and severally liable to pay respondents damages for the

injuries sustained by respondent Stephen Huang, son of respondent

spouses Richard and Carmen Huang.

First, the facts:

Petitioner Mercury Drug Corporation (Mercury Drug) is the

registered owner of a six-wheeler 1990 Mitsubishi Truck with

plate number PRE 641 (truck). It has in its employ petitioner

Rolando J. del Rosario as driver. Respondent spouses Richard and

Carmen Huang are the parents of respondent Stephen Huang and own

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the red 1991 Toyota Corolla GLI Sedan with plate number PTT 775

(car).

These two vehicles figured in a road accident on December

20, 1996 at around 10:30 p.m. within the municipality of Taguig,

Metro Manila. Respondent Stephen Huang was driving the car,

weighing 1,450 kg., while petitioner Del Rosario was driving the

truck, weighing 14,058 kg. Both were traversing the C-5 Highway,

north bound, coming from the general direction of Alabang going

to Pasig City. The car was on the left innermost lane while the

truck was on the next lane to its right, when the truck suddenly

swerved to its left and slammed into the front right side of the

car. The collision hurled the car over the island where it hit a

lamppost, spun around and landed on the opposite lane. The truck

also hit a lamppost, ran over the car and zigzagged towards, and

finally stopped in front of Buellah Land Church.

At the time of the accident, petitioner Del Rosario only had

a Traffic Violation Receipt (TVR). His driver’s license had been

confiscated because he had been previously apprehended for

reckless driving.

The car, valued at P300,000.00, was a total wreck.

Respondent Stephen Huang sustained massive injuries to his spinal

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cord, head, face, and lung. Despite a series of operations,

respondent Stephen Huang is paralyzed for life from his chest

down and requires continuous medical and rehabilitation

treatment.

Respondents fault petitioner Del Rosario for committing

gross negligence and reckless imprudence while driving, and

petitioner Mercury Drug for failing to exercise the diligence of

a good father of a family in the selection and supervision of its

driver.

In contrast, petitioners allege that the immediate and

proximate cause of the accident was respondent Stephen Huang’s

recklessness. According to petitioner Del Rosario, he was

driving on the left innermost lane when the car bumped the

truck’s front right tire. The truck then swerved to the left,

smashed into an electric post, crossed the center island, and

stopped on the other side of the highway. The car likewise

crossed over the center island and landed on the same portion of

C-5. Further, petitioner Mercury Drug claims that it exercised

due diligence of a good father of a family in the selection and

supervision of all its employees.

The trial court, in its Decision dated September 29, 2004,

found petitioners Mercury Drug and Del Rosario jointly and

severally liable to pay respondents actual, compensatory, moral

and exemplary damages, attorney’s fees, and litigation expenses.

The dispositive portion reads:

WHEREFORE, judgment is rendered findingdefendants Mercury Drug Corporation, Inc. and Rolandodel Rosario, jointly and severally liable to payplaintiffs Spouses Richard Y. Huang and Carmen G.Huang, and Stephen Huang the following amounts:

1.      Two Million Nine Hundred Seventy ThreeThousand Pesos (P2,973,000.00) actualdamages;

2.      As compensatory damages:a.       Twenty Three Million Four Hundred

Sixty One Thousand, and Sixty-Two Pesos(P23,461,062.00) for life care cost ofStephen;

b.      Ten Million Pesos (P10,000,000.00) asand for lost or impaired earning capacityof Stephen;

3.      Four Million Pesos (P4,000,000.00) asmoral damages;

4.      Two Million Pesos (P2,000,000.00) asexemplary damages; and

5.      One Million Pesos (P1,000,000.00) asattorneys fees and litigation expense.4[4]

4

112

On February 16, 2006, the Court of Appeals affirmed the

decision of the trial court but reduced the award of moral

damages to P1,000,000.00. The appellate court also denied the

motion for reconsideration filed by petitioners.

Hence, this appeal.

Petitioners cite the following grounds for their appeal:

1. That the subject Decision which dismissed theappeal of petitioners herein but AFFIRMED WITHMODIFICATION the decision of the Regional Trial Court,Branch 64, Makati City, in that the award of moraldamages was reduced to P1,000,000.00 and itsResolution dated March 30, 2006, which dismissedoutright the Motion for Reconsideration must be setaside because the Honorable Court of Appeals committedreversible error: A.         IN DENYING OUTRIGHTLY THE MOTION FOR

RECONSIDERATION ON ALLEGEDLY BEING FILED OUT OFTIME FOR ONE DAY;

B.         IN ACCORDING GREATER WEIGHT TO THEEVIDENCE ADDUCED BY THE RESPONDENTS HEREIN ANDCOMPLETELY DISREGARDING THE DEFENSE INTERPOSED BYTHE PETITIONERS HEREIN;

C.         IN DISREGARDING COMPLETELY ALL EVIDENCESPRESENTED BY THE PETITIONERS HEREIN AND PROCEEDEDTO RENDER ITS DECISION BASED ON PRESUMPTIONS ANDPERSONAL OPINIONS OF PEOPLE WHO ARE NOT WITNESSESTO THE ACCIDENT;

D.        IN AWARDING DAMAGES IN FAVOR OF RESPONDENTSHEREIN;

E.         IN FINDING THAT MERCURY DRUG CORPORATIONFAILED TO EXERCISE THE DILIGENCE REQUIRED INSUPERVISING ITS EMPLOYEES DESPITE OVERWHELMINGEVIDENCE PRESENTED BY PETITIONER COMPANY;

F.          IN FINDING THAT PETITIONER ROLANDO DELROSARIO WAS NEGLIGENT IN DRIVING THE TRUCK AT THETIME OF ACCIDENT AND TOTALLY DISREGARDING THEEVIDENCES PRESENTED DURING THE TRIAL OF THE CASE.

G.        IN PRESENTING ONLY IN THE DECISIONTESTIMONIES FAVORABLE TO THE RESPONDENTS HEREINAND COMPLETELY DISREGARDING THE EVIDENCESPRESENTED BY THE PETITIONERS HEREIN WHICHCONTRADICTED SUCH TESTIMONIES NOT ONLY THROUGHORAL TESTIMONIES BUT AS WELL AS DOCUMENTARYEVIDENCES.5[5]

We affirm the findings of the trial court and the appellate

court that petitioner Del Rosario was negligent. The evidence

does not support petitioners’ claim that at the time of the

accident, the truck was at the left inner lane and that it was

respondent Stephen Huang’s car, at its right, which bumped the

right front side of the truck. Firstly, petitioner Del Rosario

could not precisely tell which part of the truck was hit by the

car,6[6] despite the fact that the truck was snub-nosed and a lot

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6

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higher than the car. Petitioner Del Rosario could not also

explain why the car landed on the opposite lane of C-5 which was

on its left side. He said that “the car did not pass in front of

him after it hit him or under him or over him or behind him.”7[7]

If the truck were really at the left lane and the car were at its

right, and the car hit the truck at its front right side, the car

would not have landed on the opposite side, but would have been

thrown to the right side of the C-5 Highway. Noteworthy on this

issue is the testimony of Dr. Marlon Rosendo H. Daza, an expert

in the field of physics. He conducted a study based on the

following assumptions provided by respondents:

1.      Two vehicles collided;2.      One vehicle is ten times heavier, more massive

than the other;3.      Both vehicles were moving in the same

direction and at the same speed of about 85 to 90kilometers per hour;

4.      The heavier vehicle was driving at theinnermost left lane, while the lighter vehicle wasat its right.

Dr. Daza testified that given the foregoing assumptions, if the

lighter vehicle hits the right front portion of the heavier

vehicle, the general direction of the light vehicle after the

impact would be to the right side of the heavy vehicle, not the

7

other way around. The truck, he opined, is more difficult to

move as it is heavier. It is the car, the lighter vehicle, which

would move to the right of, and away from the truck. Thus, there

is very little chance that the car will move towards the opposite

side, i.e., to the left of the truck.

Dr. Daza also gave a further study on the basis of the same

assumptions except that the car is on the left side of the truck,

in accordance with the testimony of respondent Stephen Huang.

Dr. Daza concluded that the general direction of the car after

impact would be to the left of the truck. In this situation, the

middle island against which the car was pinned would slow down

the car, and enable the truck to catch up and hit the car again,

before running over it.8[8]

To support their thesis, petitioners tried to show the

damages that the truck sustained at its front right side. The

attempt does not impress. The photographs presented were taken a

month after the accident, and Rogelio Pantua, the automechanic

who repaired the truck and authenticated the photographs,

admitted that there were damages also on the left side of the

truck.9[9]

8

9

114

Worse still, petitioner Del Rosario further admitted that

after the impact, he lost control of the truck and failed to

apply his brakes. Considering that the car was smaller and

lighter than the six-wheeler truck, the impact allegedly caused

by the car when it hit the truck could not possibly be so great

to cause petitioner to lose all control that he failed to even

step on the brakes. He testified, as follows:

ATTY. DIAZ:May I proceed, Your Honor. You were able to applythe brakes, were you sir?

WITNESS:No more, sir, because I went over the island.

ATTY. DIAZ:Because as you said you lost control, correct sir?

WITNESS:Yes, sir.

ATTY. DIAZ:In other words, sir from the time your truck washit according to you up to the time you rested onthe shoulder, you traveled fifty meters?

WITNESS:Yes, sir, about that distance.

ATTY. DIAZ:

And this was despite the fact that you were onlytraveling at the speed of seventy five kilometersper hour, jumped over the island, hit the lamppost,and traveled the three lanes of the opposite laneof C-5 highway, is that what you want to impressupon this court?

WITNESS:Yes, sir.10[10]

We therefore find no cogent reason to disturb the findings

of the RTC and the Court of Appeals. The evidence proves

petitioner Del Rosario’s negligence as the direct and proximate

cause of the injuries suffered by respondent Stephen Huang.

Petitioner Del Rosario failed to do what a reasonable and prudent

man would have done under the circumstances.

We now come to the liability of petitioner Mercury Drug as

employer of Del Rosario. Articles 2176 and 2180 of the Civil

Code provide:

Art. 2176. Whoever by act or omission causesdamage to another, there being fault or negligence, isobliged to pay for the damage done. Such fault ornegligence, if there is no pre-existing contractualrelation between the parties, is called a quasi-delictand is governed by the provisions of this Chapter.

10

115

Art. 2180. The obligation imposed by article2176 is demandable not only for one’s own acts oromissions, but also for those of persons for whom oneis responsible.

x x xThe owners and managers of an establishment or

enterprise are likewise responsible for damages causedby their employees in the service of the branches inwhich the latter are employed or on the occasion oftheir functions.

x x x

The liability of the employer under Art. 2180 of the Civil

Code is direct or immediate. It is not conditioned on a prior

recourse against the negligent employee, or a prior showing of

insolvency of such employee. It is also joint and solidary with

the employee.11[11]

To be relieved of liability, petitioner Mercury Drug should

show that it exercised the diligence of a good father of a

family, both in the selection of the employee and in the

supervision of the performance of his duties. Thus, in the

selection of its prospective employees, the employer is required

to examine them as to their qualifications, experience, and

11

service records.12[12] With respect to the supervision of its

employees, the employer should formulate standard operating

procedures, monitor their implementation, and impose disciplinary

measures for their breach. To establish compliance with these

requirements, employers must submit concrete proof, including

documentary evidence.13[13]

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring procedure. According to Mrs. Merlie Caamic, the Recruitment and Training Manager of petitionerMercury Drug, applicants are required to take theoretical and actual driving tests, and psychological examination. In the caseof petitioner Del Rosario, however, Mrs. Caamic admitted that he took the driving tests and psychological examination when he applied for the position of Delivery Man, but not when he appliedfor the position of Truck Man. Mrs. Caamic also admitted that petitioner Del Rosario used a Galant which is a light vehicle, instead of a truck during the driving tests. Further, no tests were conducted on the motor skills development, perceptual speed,visual attention, depth visualization, eye and hand coordination and steadiness of petitioner Del Rosario. No NBI and police clearances were also presented. Lastly, petitioner Del Rosario attended only three driving seminars – on June 30, 2001, February5, 2000 and July 7, 1984. In effect, the only seminar he attended before the accident which occurred in 1996 was held twelve years ago in 1984.

It also appears that petitioner Mercury Drug does not

12

13

116

provide for a back-up driver for long trips. At the time of the

accident, petitioner Del Rosario has been out on the road for

more than thirteen hours, without any alternate. Mrs. Caamic

testified that she does not know of any company policy requiring

back-up drivers for long trips.14[14]

Petitioner Mercury Drug likewise failed to show that it

exercised due diligence on the supervision and discipline over

its employees. In fact, on the day of the accident, petitioner

Del Rosario was driving without a license. He was holding a TVR

for reckless driving. He testified that he reported the incident

to his superior, but nothing was done about it. He was not

suspended or reprimanded.15[15] No disciplinary action whatsoever

was taken against petitioner Del Rosario. We therefore affirm

the finding that petitioner Mercury Drug has failed to discharge

its burden of proving that it exercised due diligence in the

selection and supervision of its employee, petitioner Del

Rosario.

We now consider the damages which respondents should recover

from the petitioners.

14

15

The trial court awarded the following amounts:

1.      Two Million Nine Hundred Seventy-ThreeThousand Pesos (P2,973,000.00) actual damages;

2.      As compensatory damages:a.       Twenty-Three Million Four Hundred Sixty

One Thousand, and Sixty-Two Pesos(P23,461,062.00) for life care cost of Stephen;

b.      Ten Million Pesos (P10,000,000.00) as andfor lost or impaired earning capacity ofStephen;

3.      Four Million Pesos (P4,000,000.00) as moraldamages;

4.      Two Million Pesos (P2,000,000.00) as exemplarydamages; and

5.      One Million Pesos (P1,000,000.00) asattorney’s fees and litigation expense.

The Court of Appeals affirmed the decision of the trial

court but reduced the award of moral damages to P1,000,000.00.

With regard to actual damages, Art. 2199 of the Civil Code

provides that “[E]xcept as provided by law or by stipulation one

is entitled to an adequate compensation only for such pecuniary

loss suffered by him as he has duly proved x x x.” In the

instant case, we uphold the finding that the actual damages

claimed by respondents were supported by receipts. The amount of

P2,973,000.00 represented cost of hospital expenses, medicines,

117

medical services and supplies, and nursing care services provided

respondent Stephen from December 20, 1996, the day of the

accident, until December 1998.

Petitioners are also liable for all damages which are the

natural and probable consequences of the act or omission

complained of.16[16] The doctors who attended to respondent

Stephen are one in their prognosis that his chances of walking

again and performing basic body functions are nil. For the rest

of his life, he will need continuous rehabilitation and therapy

to prevent further complications such as pneumonia, bladder and

rectum infection, renal failure, sepsis and severe bed sores,

osteoporosis and fractures, and other spinal cord injury-related

conditions. He will be completely dependent on the care and

support of his family. We thus affirm the award of

P23,461,062.00 for the life care cost of respondent Stephen

Huang, based on his average monthly expense and the actuarial

computation of the remaining years that he is expected to live;

and the conservative amount of P10,000,000.00, as reduced by the

trial court, for the loss or impairment of his earning capacity,17

[17] considering his age, probable life expectancy, the state of

his health, and his mental and physical condition before the

16

17

accident. He was only seventeen years old, nearly six feet tall

and weighed 175 pounds. He was in fourth year high school, and a

member of the school varsity basketball team. He was also class

president and editor-in-chief of the school annual. He had shown

very good leadership qualities. He was looking forward to his

college life, having just passed the entrance examinations of the

University of the Philippines, De La Salle University, and the

University of Asia and the Pacific. The University of Sto. Tomas

even offered him a chance to obtain an athletic scholarship, but

the accident prevented him from attending the basketball try-

outs. Without doubt, he was an exceptional student. He excelled

both in his academics and extracurricular undertakings. He is

intelligent and motivated, a go-getter, as testified by Francisco

Lopez, respondent Stephen Huang’s godfather and a bank

executive.18[18] Had the accident not happened, he had a rosy

future ahead of him. He wanted to embark on a banking career,

get married and raise children. Taking into account his

outstanding abilities, he would have enjoyed a successful

professional career in banking. But, as Mr. Lopez stated, it is

highly unlikely for someone like respondent to ever secure a job

18

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in a bank. To his knowledge, no bank has ever hired a person

suffering withthe kind of disability as Stephen Huang’s.19[19]

We likewise uphold the award of moral and exemplary damages

and attorney’s fees.

“The award of moral damages is aimed at a restoration,

within the limits of the possible, of the spiritual status quo

ante.”20[20] Moral damages are designed to compensate and

alleviate in some way the physical suffering, mental anguish,

fright, serious anxiety, besmirched reputation, wounded feelings,

moral shock, social humiliation, and similar injury unjustly

caused a person. Although incapable of pecuniary computation,

they must be proportionate to the suffering inflicted.21[21] The

amount of the award bears no relation whatsoever with the wealth

or means of the offender.

In the instant case, respondent Stephen Huang and respondent

spouses Richard and Carmen Huang testified to the intense

suffering they continue to experience as a result of the

accident. Stephen recounted the nightmares and traumas he

19

20

21

suffers almost every night when he relives the accident. He also

gets depression when he thinks of his bleak future. He feels

frustration and embarrassment in needing to be helped with almost

everything and in his inability to do simple things he used to

do. Similarly, respondent spouses and the rest of the family

undergo their own private suffering. They live with the day-to-

day uncertainty of respondent Stephen Huang’s condition. They

know that the chance of full recovery is nil. Moreover,

respondent Stephen Huang’s paralysis has made him prone to many

other illnesses. His family, especially respondent spouses, have

to make themselves available for Stephen twenty-four hours a day.

They have patterned their daily life around taking care of him,

ministering to his daily needs, altering the lifestyle to which

they had been accustomed.

Respondent Carmen Huang’s brother testified on the

insensitivity of petitioner Mercury Drug towards the plight of

respondent. Stephen, viz.:

Maybe words cannot describe the anger that wefeel towards the defendants. All the time that wewere going through the crisis, there was none (sic) asingle sign of nor offer of help, any consolation oranything whatsoever. It is funny because, you know, I

119

have many colleagues, business associates, people evenas far as United States, Japan, that I probably metonly once, when they found out, they make a call, theysent card, they write small notes, but from thedefendant, absolute silence. They didn’t care, andworst, you know, this is a company that have (sic) allthe resources to help us. They were (sic) on our part,it was doubly painful because we have no choice but togo back to them and buy the medicines that we need forStephen. So, I don’t know how someone will reallyhave no sense of decency at all to at least find outwhat happened to my son, what is his condition, or ifthere is anything that they can do to help us.22[22]

On the matter of exemplary damages, Art. 2231 of the Civil

Code provides that in cases of quasi-delicts, exemplary damages

may be granted if the defendant acted with gross negligence. The

records show that at the time of the accident, petitioner Del

Rosario was driving without a license because he was previously

ticketed for reckless driving. The evidence also shows that he

failed to step on his brakes immediately after the impact. Had

petitioner Del Rosario done so, the injuries which respondent

Stephen sustained could have been greatly reduced. Wanton acts

such as that committed by petitioner Del Rosario need be

suppressed; and employers like petitioner Mercury Drug should be

more circumspect in the observance of due diligence in the

selection and supervision of their employees. The award of

22

exemplary damages in favor of the respondents is therefore

justified.

With the award of exemplary damages, we also affirm the

grant of attorney’s fees to respondents.23[23] In addition,

attorney’s fees may be granted when a party is compelled to

litigate or incur expenses to protect his interest by reason of

an unjustified act of the other party.24[24]

Cost against petitioners.

IN VIEW THEREOF, the petition is DENIED. The Decision and

Resolution of the Court of Appeals dated February 16, 2006 and

March 30, 2006, respectively, in CA-G.R. CV No. 83981, are

AFFIRMED.

SO ORDERED. REYNATO S. PUNO

Chief Justice

C. STATE

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24

120

G.R. No. L-11154            March 21, 1916

E. MERRITT, plaintiff-appellant, vs.GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.

Crossfield and O'Brien for plaintiff.Attorney-General Avanceña for defendant..

TRENT, J.:

This is an appeal by both parties from a judgment of the Court ofFirst Instance of the city of Manila in favor of the plaintiff for the sum of P14,741, together with the costs of the cause.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the plaintiff suffered to P5,000, instead of P25,000 as claimed in the complaint," and (2) "in limiting the time when plaintiff was entirely disabled to twomonths and twenty-one days and fixing the damage accordingly in the sum of P2,666, instead of P6,000 as claimed by plaintiff in his complaint."

The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due to the negligence of the chauffeur; (b) in holding that the Government of the Philippine Islands is liable for the damages sustained by the plaintiff as a result of the collision, even if it be true that the collision was due to the negligence of the chauffeur; and (c) in rendering judgment against the defendant for the sum of P14,741.

The trial court's findings of fact, which are fully supported by the record, are as follows:

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a motorcycle, was going towardthe western part of Calle Padre Faura, passing along the west side thereof at a speed of ten to twelve miles an hour,upon crossing Taft Avenue and when he was ten feet from the southwestern intersection of said streets, the General Hospital ambulance, upon reaching said avenue, instead of turning toward the south, after passing the center thereof, so that it would be on the left side of said avenue, as is prescribed by the ordinance and the Motor Vehicle Act, turned suddenly and unexpectedly and long before reaching the center of the street, into the right side of Taft Avenue, without having sounded any whistle or horn, by whichmovement it struck the plaintiff, who was already six feet from the southwestern point or from the post place there.

By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr. Saleeby, who examined him on the very same day that he was taken to the General Hospital, he was suffering from a depression in the left parietal region, a would in the same place and in the back part of his head, while blood issued from his nose and he was entirely unconscious.

The marks revealed that he had one or more fractures of the skull and that the grey matter and brain was had suffered material injury. At ten o'clock of the night in question, which was the time set for performing the operation, his pulse was so weak and so irregular that, in his opinion, there was little hope that he would live. His right leg was broken in such a way that the fracture extended to the outerskin in such manner that it might be regarded as double and the would be exposed to infection, for which reason it was of the most serious nature.

121

At another examination six days before the day of the trial,Dr. Saleeby noticed that the plaintiff's leg showed a contraction of an inch and a half and a curvature that made his leg very weak and painful at the point of the fracture. Examination of his head revealed a notable readjustment of the functions of the brain and nerves. The patient apparently was slightly deaf, had a light weakness in his eyes and in his mental condition. This latter weakness was always noticed when the plaintiff had to do any difficult mental labor, especially when he attempted to use his money for mathematical calculations.

According to the various merchants who testified as witnesses, the plaintiff's mental and physical condition prior to the accident was excellent, and that after having received the injuries that have been discussed, his physicalcondition had undergone a noticeable depreciation, for he had lost the agility, energy, and ability that he had constantly displayed before the accident as one of the best constructors of wooden buildings and he could not now earn even a half of the income that he had secured for his work because he had lost 50 per cent of his efficiency. As a contractor, he could no longer, as he had before done, climbup ladders and scaffoldings to reach the highest parts of the building.

As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor, he had to dissolved the partnership he had formed with the engineer. Wilson, because he was incapacitated from making mathematical calculations on account of the condition of his leg and of his mental faculties, and he had to give up a contract he had for the construction of the Uy Chaco building."

We may say at the outset that we are in full accord with the trial court to the effect that the collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the negligence of the chauffeur.

The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff are (a) P5,000, the award awarded for permanent injuries, and (b) the P2,666, the amount allowed for the loss of wages during the time the plaintiff was incapacitated from pursuing his occupation. We find nothing in the record which would justify us in increasing the amount of thefirst. As to the second, the record shows, and the trial court sofound, that the plaintiff's services as a contractor were worth P1,000 per month. The court, however, limited the time to two months and twenty-one days, which the plaintiff was actually confined in the hospital. In this we think there was error, because it was clearly established that the plaintiff was wholly incapacitated for a period of six months. The mere fact that he remained in the hospital only two months and twenty-one days while the remainder of the six months was spent in his home, would not prevent recovery for the whole time. We, therefore, find that the amount of damages sustained by the plaintiff, without any fault on his part, is P18,075.

As the negligence which caused the collision is a tort committed by an agent or employee of the Government, the inquiry at once arises whether the Government is legally-liable for the damages resulting therefrom.

Act No. 2457, effective February 3, 1915, reads:

An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-General of said Islands to appear in said suit.

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Whereas a claim has been filed against the Government of thePhilippine Islands by Mr. E. Merritt, of Manila, for damagesresulting from a collision between his motorcycle and the ambulance of the General Hospital on March twenty-fifth, nineteen hundred and thirteen;

Whereas it is not known who is responsible for the accident nor is it possible to determine the amount of damages, if any, to which the claimant is entitled; and

Whereas the Director of Public Works and the Attorney-General recommended that an Act be passed by the Legislatureauthorizing Mr. E. Merritt to bring suit in the courts against the Government, in order that said questions may be decided: Now, therefore,

By authority of the United States, be it enacted by the Philippine Legislature, that:

SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the city of Manila against the Government of the Philippine Islands in order to fix theresponsibility for the collision between his motorcycle and the ambulance of the General Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, and the Attorney-General of the Philippine Islands is hereby authorized and directed to appear at the trial on the behalf of the Government of said Islands, to defendant said Government at the same.

SEC. 2. This Act shall take effect on its passage.

Enacted, February 3, 1915.

Did the defendant, in enacting the above quoted Act, simply waiveits immunity from suit or did it also concede its liability to the plaintiff? If only the former, then it cannot be held that the Act created any new cause of action in favor of the plaintiffor extended the defendant's liability to any case not previously recognized.

All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent. It is also admitted that the instant case is one against the Government. As the consent of the Government to be sued by the plaintiff was entirely voluntary on its part, it is our duty to look carefully into the terms of the consent, and render judgment accordingly.

The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility for the collision between his motorcycle and the ambulance of the General Hospital and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . . . ." These were the two questions submitted to the court for determination. The Act was passed "in order that said questions may be decided." We have "decided" that the accident was due solely to the negligence of the chauffeur, who was at the time anemployee of the defendant, and we have also fixed the amount of damages sustained by the plaintiff as a result of the collision. Does the Act authorize us to hold that the Government is legally liable for that amount? If not, we must look elsewhere for such authority, if it exists.

The Government of the Philippine Islands having been "modeled after the Federal and State Governments in the United States," wemay look to the decisions of the high courts of that country for aid in determining the purpose and scope of Act No. 2457.

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In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it employs, except when expressly made so by legislative enactment, is well settled. "The Government," says Justice Story, "does not undertake to guarantee to any person the fidelity of the officersor agents whom it employs, since that would involve it in all itsoperations in endless embarrassments, difficulties and losses, which would be subversive of the public interest." (Claussen vs. City of Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States, 20 How., 527; 15L. Ed., 991.)

In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for personal injuries received on account of the negligence of the state officers at the state fair, a state institution created by the legislature for the purpose of improving agricultural and kindred industries; to disseminate information calculated to educate and benefit the industrial classes; and to advance by such means the material interests of the state, being objects similar to those sought by the public school system. In passing upon the question of the state's liability for the negligent acts of its officers or agents, the court said:

No claim arises against any government is favor of an individual, by reason of the misfeasance, laches, or unauthorized exercise of powers by its officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State,73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)

As to the scope of legislative enactments permitting individuals to sue the state where the cause of action arises out of either fort or contract, the rule is stated in 36 Cyc., 915, thus:

By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized.It merely gives a remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court, subjectto its right to interpose any lawful defense.

In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913, which authorized the bringing ofthis suit, read:

SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit, Waukesha County, Wisconsin, to bring suit in such court or courts and in such form or forms as hemay be advised for the purpose of settling and determining all controversies which he may now have with the State of Wisconsin, or its duly authorized officers and agents, relative to the mill property of said George Apfelbacher, the fish hatchery of the State of Wisconsin on the Bark River, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the watersof said Bark River and Nagawicka Lake, all in the county of Waukesha, Wisconsin.

In determining the scope of this act, the court said:

Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its officers, and that the suit now stands just as it would stand between private parties. It is difficult

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to see how the act does, or was intended to do, more than remove the state's immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff's controversies with the estate. Nowhere in the act is there a whisper or suggestion that the court or courts in the disposition of the suit shall depart from wellestablished principles of law, or that the amount of damagesis the only question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it wouldbe in the absence of the state's immunity from suit. If the Legislature had intended to change the rule that obtained inthis state so long and to declare liability on the part of the state, it would not have left so important a matter to mere inference, but would have done so in express terms. (Murdock Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E.,854; 8 L. R. A., 399.)

In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as follows:

All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the state board of examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereonagainst the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided.

And the court said:

This statute has been considered by this court in at least two cases, arising under different facts, and in both it washeld that said statute did not create any liability or cause

of action against the state where none existed before, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted. (Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)

A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against the commonwealth, whether at law or in equity," with an exception not necessary to be here mentioned. In construing this statute the court, in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said:

The statute we are discussing disclose no intention to create against the state a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilitiescan be adjudicated.

In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of New York, jurisdictionof claims for damages for injuries in the management of the canals such as the plaintiff had sustained, Chief Justice Ruger remarks: "It must be conceded that the state can be made liable for injuries arising from the negligence of its agents or servants, only by force of some positive statute assuming such liability."

It being quite clear that Act No. 2457 does not operate to extendthe Government's liability to any cause not previously recognized, we will now examine the substantive law touching the defendant's liability for the negligent acts of its officers, agents, and employees. Paragraph 5 of article 1903 of the Civil Code reads:

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The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding article shall be applicable.

The supreme court of Spain in defining the scope of this paragraph said:

That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for the damages suffered by private individuals in consequence of acts performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even negligence can be presumed onthe part of the state in the organization of branches of public service and in the appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that each branch of service serves the general weal an that of private persons interested in its operation. Between these latter and the state, therefore, norelations of a private nature governed by the civil law can arise except in a case where the state acts as a judicial person capable of acquiring rights and contracting obligations. (Supreme Court of Spain, January 7, 1898; 83 Jur. Civ., 24.)

That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of fault or negligence; and whereas in the first article thereof. No.

1902, where the general principle is laid down that where a person who by an act or omission causes damage to another through fault or negligence, shall be obliged to repair the damage so done, reference is made to acts or omissions of the persons who directly or indirectly cause the damage, thefollowing articles refers to this persons and imposes an identical obligation upon those who maintain fixed relationsof authority and superiority over the authors of the damage,because the law presumes that in consequence of such relations the evil caused by their own fault or negligence is imputable to them. This legal presumption gives way to proof, however, because, as held in the last paragraph of article 1903, responsibility for acts of third persons ceases when the persons mentioned in said article prove thatthey employed all the diligence of a good father of a familyto avoid the damage, and among these persons, called upon toanswer in a direct and not a subsidiary manner, are found, in addition to the mother or the father in a proper case, guardians and owners or directors of an establishment or enterprise, the state, but not always, except when it acts through the agency of a special agent, doubtless because andonly in this case, the fault or negligence, which is the original basis of this kind of objections, must be presumed to lie with the state.

That although in some cases the state might by virtue of thegeneral principle set forth in article 1902 respond for all the damage that is occasioned to private parties by orders or resolutions which by fault or negligence are made by branches of the central administration acting in the name and representation of the state itself and as an external expression of its sovereignty in the exercise of its executive powers, yet said article is not applicable in the case of damages said to have been occasioned to the petitioners by an executive official, acting in the exercise of his

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powers, in proceedings to enforce the collections of certainproperty taxes owing by the owner of the property which theyhold in sublease.

That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the acting administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations." (Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)

That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others, of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public official charged with some administrative or technical office who canbe held to the proper responsibility in the manner laid downby the law of civil responsibility. Consequently, the trial court in not so deciding and in sentencing the said entity to the payment of damages, caused by an official of the second class referred to, has by erroneous interpretation infringed the provisions of articles 1902 and 1903 of the

Civil Code. (Supreme Court of Spain, July 30, 1911; 122 Jur.Civ., 146.)

It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the above quoteddecisions of the Supreme Court of Spain, for the acts of its agents, officers and employees when they act as special agents within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the ambulance of the General Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance. Whether the Government intends to make itself legally liable for the amount of damages above set forth, which the plaintiff has sustained by reason of the negligent acts of one of its employees, by legislative enactment and by appropriating sufficient funds therefor, we are not called upon to determine. This matter rests solely with the Legislature and not with the courts.

Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-1120             August 31, 1948

INOCENCIO ROSETE, petitioner, vs.THE AUDITOR GENERAL, respondent.

Quijano, Rosete and Tizon for petitioner.First Assistant Solicitor General Jose B. L. Reyes and Solicitor Manuel Tomacruz for respondent.

FERIA, J.:

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This is an appeal from the decision of the Insular Auditor denying the claim of Inocencio Rosete and others against the Government in the amount of P35,376, for damages caused to buildings belonging to the claimant, which according to the appellant's claim were destroyed by fire that came from the contiguous warehouse of the Emergency Control Administration, ECA, located at No. 2262 Azcarraga, due to the negligence of a certain Jose Frayno y Panlilio in igniting recklessly his cigarette-lighter near a five gallon drum into which gasoline wasbeing drained, and of the officers of the said ECA, which is an office or agency of the Government, in storing gasoline in said warehouse contrary to the provisions of Ordinances of the City ofManila.

It is not necessary for us to pass upon the facts alleged by the appellant, but only on the question whether, assuming them to be true, the Insular Auditor erred in denying or dismissing the appellant's claim.

The claimant contends that the Auditor General erred in not finding that the government agency or instrumentality known as the Emergency Control Administration of the officers thereof, were guilty of negligence in storing a highly combustible and inflammable substance in its warehouse on bodega in Manila in violation of City Ordinances, and therefore the government is liable for the damages sustained by the claimant under article 1903 of the Civil Code, which in its pertinent part reads as follows:

ART. 1903. The obligation imposed by the preceding article is enforceable not only for personal acts and omissions but also for those persons for whom another is responsible.

x x x           x x x           x x x

The state is liable in the scene when it acts through a special agent, but not when the damage should have been caused by the official to whom it properly pertained to do the act performed, in which case the provisions of the preceding article shall be applicable.

In the case of Merritt vs. Government of the Philippine Islands (34 Phil., 311), this Court held the following:

. . . Paragraph 5 of article 1903 of the Civil Code reads:

"The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which cast the provisions of the preceding article shall be applicable."

The supreme court of Spain in defining the scope of this paragraph said:

"That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for the damage suffered by private individuals in consequence of acts performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even negligence can be presumed onthe part of the state in the organization of branches of thepublic service and the appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that each branch of service serves the

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general weal and that of private persons interested in its operation. Between these latter and the state, therefore, norelations of a private nature governed by the civil law can arise except in a case where the state acts as a judicial person capable of acquiring rights and contracting obligations." (Supreme Court of Spain, January 7, 1898; 83 Jur. Civ., 24.).

x x x           x x x           x x x

"That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations." (Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.).

"That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others, of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public official charged with some administrative or technical office who canbe held to the proper responsibility. Consequently, the

trial court in not so deciding and in sentencing the said entity to the payment of damages, caused by an official of the second class referred to, has by erroneous interpretation infringed the provisions of article 1902 and 1903 of the Civil Code.' (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)"

There being no showing that whatever negligence may be imputed tothe Emergency Control Administration or its officers, was done byan special agent, because the officers of the Emergency Control Administration did not act as special agents of the government within the above defined meaning of that word in article 1903 of the Civil Code in storing gasoline in warehouse of the ECA, the government is not responsible for the damages caused through suchnegligence.

The case of Marine Trading vs. Government, 39 Phil., 29, cited bythe appellant, is inapplicable, because the plaintiff in that case recovered under the special provisions of articles 862, 827,828 and 830 of the Code of Commerce and the Philippine Marine Regulations of the Collector of Customs, regarding collision of vessels, and not on the ground of tort in general provided for inarticle 1903 of the Civil Code.

Act No. 327, in authorizing the filing of claims against the Government with the Insular Auditor, and appeal by the private persons or entities from the latter's decision to the Supreme Court, does not make any and all claims against the Government allowable, and the latter responsible for all claims which may befiled with the Insular Auditor under the provisions of said Act.

In view of the foregoing, the decision appealed from is affirmed.

Paras, Actg. C.J., Pablo Bengzon, Briones, Padilla, and Tuason, JJ., concur.

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G.R. No. L-55963 December 1, 1989

SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners, vs.HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION, respondents.

G.R. No. L-61045 December 1, 1989

NATIONAL IRRIGATION ADMINISTRATION, appellant, vs.SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.

Cecilio V. Suarez, Jr. for Spouses Fontanilla.

Felicisimo C. Villaflor for NIA.

 

PARAS, J.:

In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated March 20, 1980 of the then Court of First Instance of Nueva Ecija, Branch VIII, at San Jose City and its modification with respect to the denial of petitioner's claim for moral and exemplary damages and attorneys fees.

In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid decision of the lower court. The original appeal of this case before the Court of Appeals was certified to this Court and in the resolution of July 7, 1982, itwas docketed with the aforecited number. And in the resolution ofApril 3, this case was consolidated with G.R. No. 55963.

It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent National Irrigation Administration, a government agency bearing Plate No. IN-651, then driven officially by Hugo Garcia, an employee of said agencyas its regular driver, bumped a bicycle ridden by Francisco Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway. As a result ofthe impact, Francisco Fontanilla and Restituto Deligo were injured and brought to the San Jose City Emergency Hospital for treatment. Fontanilla was later transferred to the Cabanatuan Provincial Hospital where he died.

Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the accident, was alicensed professional driver and who qualified for employment as such regular driver of respondent after having passed the writtenand oral examinations on traffic rules and maintenance of vehicles given by National Irrigation Administration authorities.

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The within petition is thus an off-shot of the action (Civil CaseNo. SJC-56) instituted by petitioners-spouses on April 17, 1978 against respondent NIA before the then Court of First Instance ofNueva Ecija, Branch VIII at San Jose City, for damages in connection with the death of their son resulting from the aforestated accident.

After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National Irrigation Administration to pay damages (death benefits) and actual expenses to petitioners. The dispositive portion of the decision reads thus:

. . . . . Judgment is here rendered ordering the defendant National Irrigation Administration to pay tothe heirs of the deceased P12,000.00 for the death of Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for the hospitalization and burial of the deceased Francisco Fontanilla; and to pay the costs. (Brief for the petitioners spouses Fontanilla, p. 4; Rollo, p. 132)

Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of the aforesaid decision which respondent trial court denied in its Order of June 13, 1980. Respondent National Irrigation Administration thus appealedsaid decision to the Court of Appeals (C.A.-G.R. No. 67237- R) where it filed its brief for appellant in support of its position.

Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant petition with this Court.

The sole issue for the resolution of the Court is: Whether or notthe award of moral damages, exemplary damages and attorney's fees

is legally proper in a complaint for damages based on quasi-delict which resulted in the death of the son of herein petitioners.

Petitioners allege:

1. The award of moral damages is specifically allowable. under paragraph 3 of Article 2206 of the New Civil Code which provides that the spouse, legitimate and illegitimate descendants and ascendantsof the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Shouldmoral damages be granted, the award should be made to each of petitioners-spouses individually and in varying amounts depending upon proof of mental and depth of intensity of the same, which should not be less than P50,000.00 for each of them.

2. The decision of the trial court had made an impression that respondent National Irrigation Administration acted with gross negligence because of the accident and the subsequent failure of the National Irrigation Administration personnel includingthe driver to stop in order to give assistance to the,victims. Thus, by reason of the gross negligence of respondent, petitioners become entitled to exemplary damages under Arts. 2231 and 2229 of the New Civil Code.

3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%) had been sufficiently established in the hearing of May 23, 1979.

4. This petition has been filed only for the purpose of reviewing the findings of the lower court upon

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which the disallowance of moral damages, exemplary damages and attorney's fees was based and not for the purpose of disturbing the other findings of fact and conclusions of law.

The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration, contends thus:

1. The filing of the instant petition is rot proper inview of the appeal taken by respondent National Irrigation Administration to the Court of Appeals against the judgment sought to be reviewed. The focal issue raised in respondent's appeal to the Court of Appeals involves the question as to whether or not thedriver of the vehicle that bumped the victims was negligent in his operation of said vehicle. It thus becomes necessary that before petitioners' claim for moral and exemplary damages could be resolved, there should first be a finding of negligence on the part ofrespondent's employee-driver. In this regard, the Solicitor General alleges that the trial court decision does not categorically contain such finding.

2. The filing of the "Appearance and Urgent Motion ForLeave to File Plaintiff-Appellee's Brief" dated December 28, 1981 by petitioners in the appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent National Irrigation Administration before the Court of Appeals, is an explicit admission of saidpetitioners that the herein petition, is not proper. Inconsistent procedures are manifest because while petitioners question the findings of fact in the Courtof Appeals, they present only the questions of law before this Court which posture confirms their admission of the facts.

3. The fact that the parties failed to agree on whether or not negligence caused the vehicular accident involves a question of fact which petitionersshould have brought to the Court of Appeals within thereglementary period. Hence, the decision of the trial court has become final as to the petitioners and for this reason alone, the petition should be dismissed.

4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity with the law.

5. Respondents do not assail petitioners' claim to moral and exemplary damages by reason of the shock andsubsequent illness they suffered because of the death of their son. Respondent National Irrigation Administration, however, avers that it cannot be held liable for the damages because it is an agency of the State performing governmental functions and driver Hugo Garcia was a regular driver of the vehicle, not aspecial agent who was performing a job or act foreign to his usual duties. Hence, the liability for the tortious act should. not be borne by respondent government agency but by driver Garcia who should answer for the consequences of his act.

6. Even as the trial court touched on the failure or laxity of respondent National Irrigation Administration in exercising due diligence in the selection and supervision of its employee, the matter of due diligence is not an issue in this case since driver Garcia was not its special agent but a regular driver of the vehicle.

The sole legal question on whether or not petitioners may be entitled to an award of moral and exemplary damages and

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attorney's fees can very well be answered with the application ofArts. 2176 and 2180 of theNew Civil Code.

Art. 2176 thus provides:

Whoever by act omission causes damage to another, there being fault or negligence, is obliged to pay fordamage done. Such fault or negligence, if there is no pre-existing cotractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter

Paragraphs 5 and 6 of Art. 21 80 read as follows:

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even the though theformer are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent.; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable.

The liability of the State has two aspects. namely:

1. Its public or governmental aspects where it is liable for the tortious acts of special agents only.

2. Its private or business aspects (as when it engagesin private enterprises) where it becomes liable as an ordinary employer. (p. 961, Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ).

In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or conduct of its special agent.

Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done through special agents. The State's agent, if a public official, must not only bespecially commissioned to do a particular task but that such taskmust be foreign to said official's usual governmental functions. If the State's agent is not a public official, and is commissioned to perform non-governmental functions, then the State assumes the role of an ordinary employer and will be held liable as such for its agent's tort. Where the government commissions a private individual for a special governmental task,it is acting through a special agent within the meaning of the provision. (Torts and Damages, Sangco, p. 347, 1984 Ed.)

Certain functions and activities, which can be performed only by the government, are more or less generally agreed to be "governmental" in character, and so the State is immune from tortliability. On the other hand, a service which might as well be provided by a private corporation, and particularly when it collects revenues from it, the function is considered a "proprietary" one, as to which there may be liability for the torts of agents within the scope of their employment.

The National Irrigation Administration is an agency of the government exercising proprietary functions, by express provisionof Rep. Act No. 3601. Section 1 of said Act provides:

Section 1. Name and domicile.-A body corporate is herebycreated which shall be known as the National Irrigation Administration, hereinafter called the NIA for short, which shall be organized immediately after the approval of this Act. It shall have its principal

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seat of business in the City of Manila and shall have representatives in all provinces for the proper conduct of its business.

Section 2 of said law spells out some of the NIA's proprietary functions. Thus-

Sec. 2. Powers and objectives.-The NIA shall have the following powers and objectives:

(a) x x x x x x x x x x x x x x x x x x

(b) x x x x x x x x x x x x x x x x x x

(c) To collect from the users of each irrigation system constructed by it such fees as may be necessaryto finance the continuous operation of the system and reimburse within a certain period not less than twenty-five years cost of construction thereof; and

(d) To do all such other tthings and to transact all such business as are directly or indirectly necessary,incidental or conducive to the attainment of the aboveobjectives.

Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate body performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driver-employee. In this particular case, the NIA assumes the responsibility of an ordinary employer and as such, it becomes answerable for damages.

This assumption of liability, however, is predicated upon the existence of negligence on the part of respondent NIA. The negligence referred to here is the negligence of supervision.

At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in determining its liability since it has been established that respondent is a government agency performing proprietary functions and as such, it assumes the posture of an ordinary employer which, under Par. 5 of Art. 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due diligence in the selection and supervision of the driver.

It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco Fontanilla was thrown to a distance 50 meters away from the point of impact while Restituto Deligo was thrown a little bit further away. The impact took place almost atthe edge of the cemented portion of the road." (Emphasis supplied,) [page 26, Rollo]

The lower court further declared that "a speeding vehicle coming in contact with a person causes force and impact upon the vehiclethat anyone in the vehicle cannot fail to notice. As a matter of fact, the impact was so strong as shown by the fact that the vehicle suffered dents on the right side of the radiator guard, the hood, the fender and a crack on the radiator as shown by the investigation report (Exhibit "E"). (Emphasis supplied) [page 29, Rollo]

It should be emphasized that the accident happened along the Maharlika National Road within the city limits of San Jose City, an urban area. Considering the fact that the victim was thrown 50meters away from the point of impact, there is a strong indication that driver Garcia was driving at a high speed. This is confirmed by the fact that the pick-up suffered substantial and heavy damage as above-described and the fact that the NIA

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group was then "in a hurry to reach the campsite as early as possible", as shown by their not stopping to find out what they bumped as would have been their normal and initial reaction.

Evidently, there was negligence in the supervision of the driver for the reason that they were travelling at a high speed within the city limits and yet the supervisor of the group, Ely Salonga,failed to caution and make the driver observe the proper and allowed speed limit within the city. Under the situation, such negligence is further aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered damage from the object it bumped, thus showing imprudence and reckelessness on the part of both the driver and the supervisor in the group.

Significantly, this Court has ruled that even if the employer canprove the diligence in the selection and supervision (the latter aspect has not been established herein) of the employee, still ifhe ratifies the wrongful acts, or take no step to avert further damage, the employer would still be liable. (Maxion vs. Manila Railroad Co., 44 Phil. 597).

Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this Court held that a driver should be especially watchful in anticipation of others who may be using the highway, and his failure to keep a proper look out for reasons and objects in the line to be traversed constitutes negligence.

Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the amounts of P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for hospitalization and burial expenses of the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as exemplary damages and attorney's fees of 20% of the total award.

SO ORDERED.

Padilla, Sarmiento and Regalado, JJ., concur.

Melencio- Herrera (Chairperson,), J., is on leave.

D. TEACHERS AND HEADS OF ACADEMIC ESTABLISHMENTS

G.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A.YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA,ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners vs.HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTORLLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents.

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Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

 

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April16, 1972. As it turned out, though, fate would intervene and denyhim that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher,together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the defendants were completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent courtfound that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the school at the time of the incidentas the semester had already ended, that there was no clear identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its auditoriumwas shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the parties sharplydisagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his graduation; hence, he was then under the custody of the private respondents. The private respondents submit that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an earlier incidentwhich they claim underscores the negligence of the school and at least one of the private respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the principalor taking any further action . 6 As Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that this was the same pistol

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that had been confiscated from Gumban and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however, that there is no proof that the gun wasthe same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by theirpupils and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal Day parade oninstructions of the city school supervisor. After the parade, theboy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of double homicide withreckless imprudence. In the separate civil action flied against them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum (as it was not a party to the case) on the ground that it was riot a school

of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should be held liable Liabilityunder this rule, he said, was imposed on (1) teachers in general;and (2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody requirement had not been proved as this "contemplates a situation where the student lives and boardswith the teacher, such that the control, direction and influenceson the pupil supersede those of the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the protective and supervisory custody that the school andits heads and teachers exercise over the pupils and students for as long as they are at attendance in the

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school, including recess time. There is nothing in thelaw that requires that for such liability to attach, the pupil or student who commits the tortious act mustlive and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision.

This decision was concurred in by five other members, 10 includingJustice J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even students already of age were covered by the provision since they were equally in the custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only to tortscommitted by students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be held liable underArticle 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even establishments which are technically notschools of arts and trades, and, if so, when the offending student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature,responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for theacts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers"should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them insofar as concerns the proper supervision and vice over their pupils? It cannot be seriously contended that an academic teacher is exemptfrom the duty of watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent

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terms "preceptores y artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed by their students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and Mercado Cases is that the provisionwould make the teacher or even the head of the school of arts andtrades liable for an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school would be absolved whereas the teacher and thehead of the non-academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should beexercised by the school authorities on the basis only of the nature of their respective schools. There does not seem to be any

plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing such vigilance where the school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of arts and trades? And in the case of the academic or non- technical school,why not apply the rule also to the head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the task of teaching hisstudents, who usually even boarded with him and so came under hisconstant control, supervision and influence. By contrast, the head of the academic school was not as involved with his studentsand exercised only administrative duties over the teachers who were the persons directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not

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be directly faulted for the acts of the students, the head of theschool of arts and trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be interpreted by the Courtaccording to its clear and original mandate until the legislature, taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and trades over the students. Is such responsibility co-extensivewith the period when the student is actually undergoing studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student should be within the control and under the influence of the school authorities at the time of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes and ending upon theclose thereof, and excluding the time before or after such period, such as the period of registration, and in the case of graduating students, the period before the commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long as he is under the

control and influence of the school and within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoymentof a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-chargewho must answer for his students' torts, in practically the same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one designated by thedean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a

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position to prevent it. Custody does not connote immediate and actual physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, theteacher and not the parent shag be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to answer forthe tort committed by the student. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liabilityimposed by Article 2180, which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the student's age.

Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism among the students that is likelyto cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the maintenance of discipline among them. In almost all cases now, in fact, thesemeasures are effected through the assistance of an adequate security force to help the teacher physically enforce those rulesupon the students. Ms should bolster the claim of the school thatit has taken adequate steps to prevent any injury that may be committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for the damage caused by his students as long as they are in the school premises and presumably under his influence. In this respect, theCourt is disposed not to expect from the teacher the same measureof responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent can

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expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas submission to the teacher's influence, besidesbeing coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so should be held to a greater accountability than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less tractable than the minor — then there should all the more be justification to require from the school authorities less accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's responsibility forthe acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his physics report forwhat is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of the school is a legitimate purpose

that would have also brought him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose whothe teacher-in-charge of the offending student was. The mere factthat Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, thereis no showing that Dicon was negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their non-observance. His absence when the tragedy happened cannot be considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in maintainingthat discipline.

4. In the absence of a teacher-in-charge, it is probably the deanof boys who should be held liable especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same later to him

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without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or has been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, Padilla and Teehankee, C.J., JJ, took no part.

 

G.R. No. L-29025 October 4, 1971

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants, vs.ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school of arts and trades, known under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M. QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .

Honorato S. Reyes for appellee Brillantes, et al. .

Villareal, Almacen Navarra & Amores for appellee Daffon. .

 

TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decisionof the Court of First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive mechanics at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action below for damages arising from the death on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L. Daffon, at the laboratory room of the said Institute. .

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Defendants, per the trial court's decision, are: "(T)he defendantAntonio C. Brillantes, at the time when the incident which gave rise to his action occurred was a member of the Board of Directors of the institute; 1 the defendant Teodosio Valenton, thepresident thereof; the defendant Santiago M. Quibulue, instructorof the class to which the deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the beginning the Manila Technical Institute was a single proprietorship, but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased Dominador Palisoc and the defendant Virgilio L. Daffon were classmates, andon the afternoon of March 10, 1966, between two and three o'clock, they, together with another classmate Desiderio Cruz were in the laboratory room located on the ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L. Daffon were working on a machine while Dominador Palisoc was merely looking on at them. Daffon made a remark to the effect that Palisoc was acting like a foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation, gave Palisoc a strong flat blow on the face, which was followed by other fist blows on the stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon followedhim and both exchanged blows until Palisoc stumbled on an engine block which caused him to fall face downward. Palisoc became paleand fainted. First aid was administered to him but he was not revived, so he was immediately taken to a hospital. He never regained consciousness; finally he died. The foregoing is the substance of the testimony of Desiderio Cruz, the lone witness tothe incident."

The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness, Desiderio Cruz,

a classmate of the protagonists, as that of a disinterested witness who "has no motive or reason to testify one way or another in favor of any party" and rejected the self-exculpatory version of defendant Daffon denying that he had inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the autopsy re "Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion of the pancreas and stomach with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the brain," and his testimony that these internal injuries of the deceased were caused "probably by strong fist blows," the trial court found defendant Daffon liable for the quasi delict under Article 2176 of the Civil Code. 3 It held that "(T)he act, therefore, of the accused Daffon in giving the deceased strong fistblows in the stomach which ruptured his internal organs and caused his death falls within the purview of this article of the Code." 4

The trial court, however, absolved from liability the three otherdefendants-officials of the Manila Technical Institute, in this wise:

... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:

Art. 2180. ... .

Lastly, teachers or heads of establishments of arts and trades shall beliable for damages caused by their pupils and students and apprentices, so long as they remain in their custody.

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In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this contemplates the situation where the control or influence of the teachers and heads of school establishments over the conduct and actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so long as they remain in their custody" contained inArticle 2180 of the new civil code contemplated a situation where the pupil lives and boards with the teacher, such that the control or influence on the pupilsupersedes those of the parents. In those circumstances the control or influence over the conduct and actions of the pupil as well as the responsibilities for their sort would pass from the father and motherto the teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of Appeals, Manuel Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30, 1960). 5

There is no evidence that the accused Daffon lived andboarded with his teacher or the other defendant officials of the school. These defendants cannot therefore be made responsible for the tort of the defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased Dominador

Palisoc (a) P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power, considering thatthe deceased was only between sixteen and seventeen years, and in good health when he died, and (e) P2,000.00 for attorney's fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack ofmerit.

Plaintiffs' appeal raises the principal legal question that underthe factual findings of the trial court, which are now beyond review, the trial court erred in absolving the defendants-school officials instead of holding them jointly and severally liable astortfeasors, with defendant Daffon, for the damages awarded them as a result of their son's death. The Court finds the appeal, in the main, to be meritorious. .

1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil Code, which expressly hold "teachers or heads of establishments of arts and trades ... liable for damages caused by their pupils and studentsand apprentices, so long as they remain in their custody," are not applicable to to the case at bar, since "there is no evidencethat the accused Daffon [who inflicted the fatal fistblows] 6 lived and boarded with his teacher or the other defendants-officials of the school. These defendants cannot therefore be made responsible for the tort of the defendant Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals, 7 that "(I)t would seem

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that the clause "so long as they remain in their custody," contemplates a situation where the pupil lives and boards with the teacher, such that the control, direction and influence on the pupil supersedes those of the parents. In these circumstancesthe control or influence over the conduct and actions of the pupil would pass from the father and mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does not appear in the case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after school is over." This dictum had been made in rejecting therein petitioner father's contention that hisminor son's school, Lourdes Catholic School at Kanlaon, Quezon City [which was not a party to the case] should be held responsible, rather than him as father, for the moral damages of P2,000.00 adjudged against him for the physical injury inflicted by his son on a classmate. [A cut on the right cheek with a pieceof razor which costs only P50.00 by way of medical expenses to treat and cure, since the wound left no scar.] The moral damages award was after all set aside by the Court on the ground that none of the specific cases provided in Article 2219, Civil Code, for awarding moral damages had been established, petitioner's sonbeing only nine years old and not having been shown to have "acted with discernment" in inflicting the injuries on his classmate. .

The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno, 8 where the only issue involved as expressly stated in the decision, was whether the therein defendant-father could be civilly liable for damages resulting from a death caused in a motor vehicle accident driven unauthorizedly and negligently by his minor son, (which issue wasresolved adversely against the father). Nevertheless, the dictum in such earlier case that "It is true that under the law abovequoted, teachers or directors of arts and trades are liable for any damage caused by their pupils or apprentices while they

are under their custody, but this provision only applies to an institution of arts and trades and not to any academic educational institution" was expressly cited and quoted in Mercado. .

2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of teachers and heads of schools under Article 2180, Civil Code, for damages caused by their pupils and students against fellow students on the school premises. Here, the parents of the student at fault, defendant Daffon, are not involved, since Daffon was already of age at the time of the tragic incident. There is no question, either, that the school involved is a non-academic school, 9 the Manila Technical Institute being admittedly a technical vocational and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute (defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-appellants for the death of the latter's minor son at the hands of defendant Daffon at the school's laboratory room. No liability attaches to defendant Brillantes as a mere member of the school's board of directors. The school itself cannot be held similarly liable, since it has not been properly impleaded as party defendant. While plaintiffs sought to so implead it, by impleading improperly defendant Brillantes, its former single proprietor, the lower court found that it had been incorporated since August 2, 1962, and thereforethe school itself, as thus incorporated, should have been broughtin as party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in their reply to plaintiffs' request for admission had expressly manifested and made of record that "defendant Antonio C. Brillantes is not the registered owner/head of the "Manila

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Technical Institute" which is now a corporation and is not owned by any individual person." 10

3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco parentis and are called upon to "exercise reasonable supervision over the conduct of the child." 11 This is expressly provided for in Articles 349, 350 and 352 of the Civil Code. 12 In the law of torts, the governing principle is that the protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school, including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some student themselves may inflict willfully or through negligence on their fellow students..

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the presumption of negligence of Art. 1903 [now 2180] is some culpa in vigilando that theparents, teachers, etc. are supposed to have incurred in the exercise of their authority" 13 and "where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction." The school itself, likewise, has to respond for the fault or negligence of its school head and teachers under the same cited article. 14

5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could be heldliable under Article 2180, Civil Code, only if the student who inflicted the fatal fistblows on his classmate and victim "lived and boarded with his teacher or the other defendants officials ofthe school." As stated above, the phrase used in the cited article — "so long as (the students) remain in their custody" means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recesstime. There is nothing in the law that requires that for such liability to attach the pupil or student who commits the tortiousact must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by thepresent decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held jointly and severallyliable for the quasi-delict of their co-defendant Daffon in the latter's having caused the death of his classmate, the deceased Dominador Palisoc. The unfortunate death resulting from the fightbetween the protagonists-students could have been avoided, had said defendants but complied with their duty of providing adequate supervision over the activities of the students in the school premises to protect their students from harm, whether at the hands of fellow students or other parties. At any rate, the law holds them liable unless they relieve themselves of such liability, in compliance with the last paragraph of Article 2180,Civil Code, by "(proving) that they observed all the diligence ofa good father of a family to prevent damage." In the light of thefactual findings of the lower court's decision, said defendants failed to prove such exemption from liability. .

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7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be increased to P12,000.00 as set by the Court in People vs. Pantoja, 15 and observed in all death indemnity cases thereafter is well taken. The Court,in Pantoja, after noting the decline in the purchasing power of the Philippine peso, had expressed its "considered opinion that the amount of award of compensatory damages for death caused by acrime or quasi-delict should now be P12,000.00." The Court thereby adjusted the minimum amount of "compensatory damages for death caused by a crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have been mitigating circumstances" pursuant to the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and imposed legal interest on the total damages awarded, besides increasing the award of attorney's fees all concern matters that are left by lawto the discretion of the trial court and the Court has not been shown any error or abuse in the exercise of such discretion on the part of the trial court. 16 Decisive here is the touchstone provision of Article 2231, Civil Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence." No gross negligence on the part of defendants was found by the trial court to warrant the imposition of exemplary damages, as well as of interest and increased attorney's fees, and the Court has not been shown in this appeal any compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton andSantiago M. Quibulue jointly and severally to pay plaintiffs as heirs of the

deceased Dominador Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both instances; 2. absolving defendant Antonio C. Brillantes from the complaint; and 3. dismissing defendants'counterclaims. .

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .

Dizon, J., took no part. .

FIRST DIVISION

[G.R. No. 143363. February 6, 2002]

ST. MARY’S ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents.

D E C I S I O N

PARDO, J.:

The Case

The case is an appeal via certiorari from the decisioni[1] of the Court of Appeals as well as the resolution denying reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student who had joined a campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts

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The facts, as found by the Court of Appeals, are as follows:

“Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos filedon June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Mary’s Academy before the Regional Trial Courtof Dipolog City.

“On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion of which reads as follows:

“‘WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1. Defendant St. Mary’s Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

b. FORTY THOUSAND PESOS (P40,000.00) actual damagesincurred by plaintiffs for burial and related expenses;

c. TEN THOUSAND PESOS (P10,000.00) for attorney’s fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.

2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay herein

plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Mary’s Academy of Dipolog City;

3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special parental authority of defendant St. Mary’s Academy, is ABSOLVED from paying the above-stated damages, same being adjudged against defendants St. Mary’s Academy, and subsidiarily, against his parents;

4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier discussed in this decision, is hereby DISMISSED.

IT IS SO ORDERED.”’ (Decision, pp. 32-33; Records, pp. 205-206).”

“From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Mary’s Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying. As a student of St. Mary’s Academy, Sherwin Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

“Sherwin Carpitanos died as a result of the injuries he sustainedfrom the accident.”ii[2]

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In due time, petitioner St. Mary’s academy appealed the decision to the Court of Appeals.iii[3]

On February 29, 2000, the Court of Appeals promulgated a decisionreducing the actual damages to P25,000.00 but otherwise affirmingthe decision a quo, in toto.iv[4]

On February 29, 2000, petitioner St. Mary’s Academy filed a motion for reconsideration of the decision. However, on May 22, 2000, the Court of Appeals denied the motion.v[5]

Hence, this appeal.vi[6]

The Issues

1) Whether the Court of Appeals erred in holding the petitionerliable for damages for the death of Sherwin Carpitanos.

2) Whether the Court of Appeals erred in affirming the award ofmoral damages against the petitioner.

The Court’s Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Mary’s Academy liable for the death of Sherwin Carpitanos under Articles 218vii[7] and 219viii[8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or

institution engaged in child care. This special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school,entity or institution. Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers.ix[9]

Under Article 219 of the Family Code, if the person under custodyis a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody.x[10]

However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident.xi[11]

“In order that there may be a recovery for an injury, however, itmust be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,produces the injury, and without which the result would not have occurred.’”xii[12]

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim.

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Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the cause of the accident was not the recklessness of James Daniel II but the mechanical defectin the jeep of Vivencio Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the steering wheel guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the negligence of the school authorities, or the reckless driving of James Daniel II. Hence, the respondents’ reliance on Article 219 of the Family Code that “those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor” was unfounded.

Further, there was no evidence that petitioner school allowed theminor James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the

steering wheel guide of the jeep, must be pinned on the minor’s parents primarily. The negligence of petitioner St. Mary’s Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened the negligence of the minor’s parents or the detachment of the steering wheel guideof the jeep.

“The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.”xiii[13]

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Mary’s Academy had no control, and which was the proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.xiv[14] In this case, the proximate causeof the accident was not attributable to petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorney’s fees as part of damages is the exception rather than the rule.xv[15] The power of the court to award attorney’s fees under Article 2208 of the Civil Code demands factual, legal and equitable justification.xvi

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[16] Thus, the grant of attorney’s fees against the petitioner islikewise deleted.

Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on the highways or streets.”xvii[17] Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsiblefor damages for the death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appealsxviii[18] and that of the trial court.xix[19] The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner St. Mary’s Academy, Dipolog City.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ.,concur.

Puno, J., in the result.

 G.R. No. 82465 February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners, vs.THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA CADIZ, respondents.

Jose C. Flores, Jr. for petitioners.

Jovito E. Talabong for private respondents.

 

PARAS, J.:p

This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:

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WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded to plaintiffs in the decision underappeal; (2) St. Francis High School, represented by the Spouses Fernando Nantes and Rosario Lacandula, andBenjamin Illumin, are hereby held jointly and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from liability, and the case against them, together with their respective counterclaims, is hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the picnic, with the directive that he should go back home after doing so. However, because of persuasion of the teachers, Ferdinand went on with them to the beach.

During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was apparently

drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who drowned.His body was recovered but efforts to resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as CivilCase No. 8834, in the Regional Trial Court, Branch LVIII of Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the proper diligence of a good fatherof the family in preventing their son's drowning, respondents prayed of actual, moral and exemplary damages, attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones, Jaro andCadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo reasoned:

Taking into consideration the evidence presented, thisCourt believes that the defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence required of them by law under the circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo)

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xxx xxx xxx

While it is alleged that when defendants Yoly Jaro andNida Aragones arrived at the picnic site, the drowningincident 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 intheir 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 partsof 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 wasindeed dangerous. And not only that, the male teacherswho according to the female teachers were there to supervise the children to ensure their safety were noteven 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 theSt. Francis High School, Benjamin Illumin and Aurora Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot findsufficient evidence showing that the picnic was a school sanctioned one. Similarly no evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna responsible for the death of Ferdinand Castillo together with the other defendant teachers. It has been sufficiently shown that Benjamin Illumin had himself not consented to the picnic and in fact hedid not join it. On the other hand, defendant Aurora Cadorna had then her own class to supervise and in fact she was not amongst those allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal Benjamin Illumin as equally liable not only for its approved co-curricular activities but also for those which they unreasonably failed to exercise control and supervision like the holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and solidarily liable with their co-defendants-teachers Rosario Lacandula, et als., for

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the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death of Ferdinand Castillo in favor of plaintiffs-appellants against all the defendants. (pp.56-57, Rollo)

The Court of Appeals ruled:

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 cannotbe gainsaid that the same was held under the supervision of the teachers employed by the said school, particularly the teacher in charge of Class I-C to whom the victim belonged, and those whom she invited to help her in supervising the class during the picnic. Considering that the court a quo found negligence on the part of the six defendants-teachers who, as such, were charged with the supervision of thechildren during the picnic, the St. Francis High School and the school principal, Benjamin Illumin, areliable under Article 2176 taken together with the 1st,4th and 5th paragraphs of Article 2180 of the Civil Code. They cannot escape liability on the mere excuse that the picnic was not an "extra-curricular activity of the St. Francis High School." We find from the evidence that, as claimed by plaintiffs-appellants, the school principal had knowledge of the picnic even from its planning stage and had even been invited to attend the affair; and yet he did not express any prohibition against undertaking the picnic, nor did he

prescribe any precautionary measures to be adopted during the picnic. At the least, We must find that theschool and the responsible school officials, particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the death of their son. It is the rule that in cases wherethe 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 afamily in the selection and/or supervision of the employee or employees causing the injury or damage (inthis 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 theabove-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiseratewith the plaintiffs for the tragedy that befell them in the untimely death of their son Ferdinand Castillo and understand their suffering as parents, especially the victim's mother who, according to appellants, suffered a nervous breakdown as a result of the

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tragedy, We find that the amounts fixed by the court aquo 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 ofexample of correction for the public good, pursuant toArticle 2229 of the Civil Code. (pp. 57-59, Rollo)

On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointlyand severally liable for damages such finding not being supported by facts and evidence.

2. ". . . in dismissing the counterclaim interposed bythe defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo, were not able to prove by their evidence that they did not give their son consent to join the picnic in question. However, We agree with the trial court in its finding that whether or not the victim's parents had given such permission to their son was immaterial to the determination of the existence of liability on the part of the defendants for the damageincurred 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 victim's group during the picnic; and, as correctly found by the trial court, an affirmative reply to this question has been satisfactorily established by the evidence, as already pointed out.

However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida Aragones, are concerned. As to them, the trial court found:

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at thepicnic 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 tothe entrance examination being conducted by the schoolwhich is part of their duty as teachers thereof. Sincethey were not at the picnic site during the occurrencein 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 actor omission to the two teachers, Yoly Jaro and Nida

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Aragones, as to make them liable for the injury causedto 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 tothe defendants which will warrant the award of damagesto 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?

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A Yes, sir.

Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the picnic?

A No, sir, I did not know.

Q Did you not look for your son during that time?

A I am too busy with my profession, that is why I was not able, sir.

Q You did not ask your wife?

A I did not, sir.

Q And neither did your wife tell you that your son join the picnic?

A Later on after 12:00, sir.

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 picniceven without knowing where it will be held, is a sign of consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examination?

A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she cooked adobo for him so he could join the excursion where her son died of drowning.

Q Why were you able to say she was feelingguilty 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 sonto join the excursion her son would have not drowned. I don't know if she actually permitted her son although she said she cookedadobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro — witness).

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school liable for the death of respondent's son.

Article 2180, par. 4 states that:

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The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also forthose of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused damage or prejudice must have occurred while an employee was in the performance of his assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happenednot within the school premises, not on a school day and most importantly while the teachers and students were holding a purelyprivate affair, a picnic. It is clear from the beginning that theincident happened while some members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular activity.

As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by thestudents and their teachers does not in any way or in any manner show acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of respondent Court on this score, employers

wig forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-spouses.

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence ofa 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 whohave 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) Therecords 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 claimalso 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?

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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 didnot 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 appliedthe pressure of your body on the body of Ferdinand Castillo?

A Yes, sir.

Q Will you please describe how you applieda 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.

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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 theboy 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 notfall under any of the grounds to grant moral damages.

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

Moreover, as already pointed out hereinabove, petitioners are notguilty of any fault or negligence, hence, no moral damages can beassessed 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.

  

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G.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO, petitioners, vs.COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, in her capacity asPresiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents.

Balgos and Perez for petitioners.

Collantes, Ramirez & Associates for private respondents.

 

PADILLA, J.:

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina Ordoñez-Benitez, for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year commerce course at the PSBA. It was established that his assailants were not members of the school's academic community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private

respondents) sought to adjudge them liable for the victim's untimely demise due to their alleged negligence, recklessness andlack of security precautions, means and methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued under Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the subject is to the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987, denied their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which, in a decision * promulgatedon 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellatecourt primarily anchored its decision on the law of quasi-delicts, asenunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Codeis an adoption from the old Spanish Civil Code. The comments of Manresa and learned authorities on its meaning should give way to present day changes. The law is not fixed and flexible (sic); it must be

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dynamic. In fact, the greatest value and significance of law as a rule of conduct in (sic) its flexibility toadopt to changing social conditions and its capacity to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be construed in its narrowconcept as held in the old case of Exconde vs. Capuno 2 and Mercado vs. Court of Appeals; 3 hence, the ruling in thePalisoc 4 case that it should apply to all kinds of educational institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve themselvesof such liability pursuant to the last paragraph of Article 2180 by "proving that they observed all the diligence to prevent damage." This can only be done ata trial on the merits of the case. 5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and the complaint should be tried on the merits, we do not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code,establishes the rule of in loco parentis. This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court of Appeals. 6 In all such cases, ithad been stressed that the law (Article 2180) plainly provides that the damage should have been caused or inflicted by pupils or students of he educational institution sought to be held liable forthe acts of its pupils or students while in its custody. However,this material situation does not exist in the present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which both parties are bound to comply with. 7 For its part, the school undertakes to provide the studentwith an education that would presumably suffice to equip him withthe necessary tools and skills to pursue higher education or a profession. On the other hand, the student covenants to abide by the school's academic requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realmof the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts ortort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied. However, this impression has not prevented this Courtfrom determining the existence of a tort even when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private

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respondent was awarded damages for his unwarranted expulsion froma first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual obligation, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does notrelieve him from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes a breach of the contract would haveconstituted the source of an extra-contractual obligation had no contractexisted between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good custom or public policy shall compensate the latter for the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the privaterespondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-American, supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of Appeals, (Second Circuit),to award damages to the latter. From the foregoing, it can be concluded that should the act which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, thereis, as yet, no finding that the contract between the school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a contract.In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. In other words, acontractual relation is a condition sine qua non to the school's liability. The negligence of the school cannot exist independently of the contract, unless the negligence occurs underthe circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for conceptually aschool, like a common carrier, cannot be an insurer of its students against all risks. This is specially true in the populousstudent communities of the so-called "university belt" in Manila where there have been reported several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to anticipate all types of violent trespass upon their premises, for notwithstanding the security

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measures installed, the same may still fail against an individualor group determined to carry out a nefarious deed inside school premises and environs. Should this be the case, the school may still avoid liability by proving that the breach of its contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record is bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47) is hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

SO ORDERED.

Melencio-Herrera, Paras, Regalado and Nocon, JJ., concur.

V. PRIMARY/STRICT LIABILITY

A. POSSESSORS AND OWNERS OF ANIMALS (Art. 2183)

G.R. No. 74431 November 6, 1989

PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners, vs.INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA UY, respondents.

Pablo P. Garcia for petitioners.

Roberto R. Palmares for private respondents.

 

CRUZ, J.:

Little Theness Tan Uy was dead at the age of three. Her parents said she died because she was bitten by a dog of the petitioners,but the latter denied this, claiming they had nothing to do with the dog. The Uys sued the Vestils, who were sustained by the trial court. On appeal, the decision of the court a quo was reversed in favor of the Uys. The Vestils are now before us. Theyask us to set aside the judgment of the respondent court and to reinstate that of the trial court.

On July 29, 1915, Theness was bitten by a dog while she was playing with a child of the petitioners in the house of the late Vicente Miranda, the father of Purita Vestil, at F. Ramos Street in Cebu City. She was rushed to the Cebu General Hospital, where she was treated for "multiple lacerated wounds on the forehead" 1 and administered an anti-rabies vaccine by Dr. Antonio Tautjo. She was discharged after nine days but was readmitted one week later due to "vomiting of saliva." 2 The following day, on August 15, 1975, the child died. The cause of death was certified as broncho-pneumonia. 3

Seven months later, the Uys sued for damages, alleging that the Vestils were liable to them as the possessors of "Andoy," the dogthat bit and eventually killed their daughter. The Vestils rejected the charge, insisting that the dog belonged to the deceased Vicente Miranda, that it was a tame animal, and that in any case no one had witnessed it bite Theness. After trial, Judge

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Jose R. Ramolete of the Court of First Instance of Cebu sustainedthe defendants and dismissed the complaint. 4

The respondent court arrived at a different conclusion when the case was appealed. 5 It found that the Vestils were in possession of the house and the dog and so should be responsible under Article 2183 of the Civil Code for the injuries caused by the dog. It also held that the child had died as a result of the dog bites and not for causes independent thereof as submitted by the appellees. Accordingly, the Vestils were ordered to pay the Uys damages in the amount of P30,000.00 for the death of Theness, P12,000.00 for medical and hospitalization expenses, and P2,000.00 as attorney's fees.

In the proceedings now before us, Purita Vestil insists that she is not the owner of the house or of the dog left by her father ashis estate has not yet been partitioned and there are other heirsto the property. Pursuing the logic of the Uys, she claims, even her sister living in Canada would be held responsible for the acts of the dog simply because she is one of Miranda's heirs. However, that is hardly the point. What must be determined is thepossession of the dog that admittedly was staying in the house inquestion, regardless of the ownership of the dog or of the house.

Article 2183 reads as follows:

The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. 'This responsibility shall cease only in case the damages should come from force majeure from the fault of the person who has suffered damage.

Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a carabao gored him to death and his heirs thereupon sued the owner of the

animal for damages. The complaint was dismissed on the ground that it was the caretaker's duty to prevent the carabao from causing injury to any one, including himself.

Purita Vestil's testimony that she was not in possession of Miranda's house is hardly credible. She said that the occupants of the house left by her father were related to him ("one way or the other") and maintained themselves out of a common fund or by some kind of arrangement (on which, however, she did not elaborate ). 7 She mentioned as many as ten of such relatives who had stayed in the house at one time or another although they did not appear to be close kin. 8 She at least implied that they did not pay any rent, presumably because of their relation with Vicente Miranda notwithstanding that she herself did not seem to know them very well.

There is contrary evidence that the occupants of the house, were boarders (or more of boarders than relatives) who paid the petitioners for providing them with meals and accommodations. It also appears that Purita Vestil had hired a maid, Dolores Jumao-as, who did the cooking and cleaning in the said house for its occupants. 9 Her mother, Pacita, who was a nursemaid of Purita herself, categorically declared that the petitioners were maintaining boarders in the house where Theness was bitten by a dog. 10 Another witness, Marcial Lao, testified that he was indeeda boarder and that the Vestils were maintaining the house for business purposes. 11 And although Purita denied paying the water bills for the house, the private respondents submitted documentary evidence of her application for water connection withthe Cebu Water District, which strongly suggested that she was administering the house in question. 12

While it is true that she is not really the owner of the house, which was still part of Vicente Miranda's estate, there is no doubt that she and her husband were its possessors at the time of

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the incident in question. She was the only heir residing in Cebu City and the most logical person to take care of the property, which was only six kilometers from her own house. 13 Moreover, there is evidence showing that she and her family regularly went to the house, once or twice weekly, according to at least one witness, 14 and used it virtually as a second house. Interestingly, her own daughter was playing in the house with Theness when the little girl was bitten by the dog. 15 The dog itself remained in the house even after the death of Vicente Miranda in 1973 and until 1975, when the incident in question occurred. It is also noteworthy that the petitioners offered to assist the Uys with their hospitalization expenses although Purita said she knew them only casually. 16

The petitioners also argue that even assuming that they were the possessors of the dog that bit Theness there was no clear showingthat she died as a result thereof. On the contrary, the death certificate 17 declared that she died of broncho-pneumonia, which had nothing to do with the dog bites for which she had been previously hospitalized. The Court need not involve itself in an extended scientific discussion of the causal connection between the dog bites and the certified cause of death except to note that, first, Theness developed hydrophobia, a symptom of rabies, as a result of the dog bites, and second, that asphyxia broncho-pneumonia, which ultimately caused her death, was a complication of rabies. That Theness became afraid of water after she was bitten by the dog is established by the following testimony of Dr. Tautjo:

COURT: I think there was mention of rabies in the report in the second admission?

A: Now, the child was continuously vomiting just before I referred to Dr. Co earlier in the morning andthen the father, because the child was asking for

water, the father tried to give the child water and this child went under the bed, she did not like to drink the water and there was fright in her eyeballs. For this reason, because I was in danger there was rabies, I called Dr. Co.

Q: In other words, the child had hydrophobia?

A: Yes, sir. 18

As for the link between rabies and broncho-pneumonia, the doctor had the following to say under oath:

A: Now, as 1 said before, broncho-pneumonia can resultfrom physical, chemical and bacterial means. ... It can be the result of infection, now, so if you have any other disease which can lower your resistance you can also get pneumonia.

xxx xxx xxx

Q: Would you say that a person who has rabies may die of complication which is broncho-pneumonia?

A: Yes.

Q: For the record, I am manifesting that this book shown the witness is know as CURRENT DIANOSIS & TREATMENT, 1968 by Henry Brainerd, Sheldon Margen and Milton Chaton. Now, I invite your attention, doctor, to page 751 of this book under the title "Rabies." There is on this page, "Prognosis" as a result of rabies and it says: Once the symptoms, have appeared death inevitably occurs after 2-3 days as a result of cardiac or respiratory failure or generalized

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paralysis. After a positive diagnosis of rabies or after a bite by a suspected animal if the animal cannot be observed or if the bite is on the head, giverabies vaccine (duck embryo). Do you believe in this statement?

A: Yes.

Q: Would you say therefore that persons who have rabies may die of respiratory failure which leave in the form of bronco-pneumonia?

A: Broncho-pneumonia can be a complication of rabies. 19

On the strength of the foregoing testimony, the Court finds that the link between the dog bites and the certified cause of death has beep satisfactorily established. We also reiterate our rulingin Sison v. Sun Life Assurance Company of Canada, 20 that the death certificate is not conclusive proof of the cause of death but only of the fact of death. Indeed, the evidence of the child's hydrophobia is sufficient to convince us that she died because she was bitten by the dog even if the death certificate stated a different cause of death. The petitioner's contention that they could not be expected to exercise remote control of the dog is not acceptable. In fact, Article 2183 of the Civil Code holds thepossessor liable even if the animal should "escape or be lost" and so be removed from his control. And it does not matter eitherthat, as the petitioners also contend, the dog was tame and was merely provoked by the child into biting her. The law does not speak only of vicious animals but covers even tame ones as long as they cause injury. As for the alleged provocation, the petitioners forget that Theness was only three years old at the time she was attacked and can hardly be faulted for whatever she might have done to the animal.

It is worth observing that the above defenses of the petitioners are an implied rejection of their original posture that there wasno proof that it was the dog in their father's house that bit Theness.

According to Manresa the obligation imposed by Article 2183 of the Civil Code is not based on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and on the principle ofsocial interest that he who possesses animals for his utility, pleasure or service must answer for the damage which such animal may cause. 21

We sustain the findings of the Court of Appeals and approve the monetary awards except only as to the medical and hospitalizationexpenses, which are reduced to P2,026.69, as prayed for in the complaint. While there is no recompense that can bring back to the private respondents the child they have lost, their pain should at least be assuaged by the civil damages to which they are entitled.

WHEREFORE, the challenged decision is AFFIRMED as above modified.The petition is DENIED, with costs against the petitioners. It isso ordered.

B. OWNERS OF MOTOR VEHICLES (ART 2184)

G.R. No. L-20392      December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN CAEDO, ROSE ELAINE CAEDO, suing through their father, MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants, vs.YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

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Norberto J. Quisumbing for plaintiffs-appellants.De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants

MAKALINTAL, J.:

As a result of a vehicular accident in which plaintiff Marcial Caedo and several members of his family were injured they filed this suit for recovery of damages from the defendants. The judgment, rendered by the Court of First Instance of Rizal on February 26, 1960 (Q-2952), contains the following disposition:

IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and against the defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs Marcial Caedo, et al., the sum of P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00for exemplary damages; and P5,000.00 for attorney's fees, with costs against the defendants. The counterclaim of the defendants against the plaintiffs is hereby ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in favor of the plaintiffs for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount of the plaintiffs' claim.

There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it was defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the first question the trial courtfound Rafael Bernardo negligent; and on the second, held his employer solidarily liable with him.

The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way from his home in Quezon City to the airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and three daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his Parañaque home to Wack Wack for his regular round of golf. The two cars were traveling at fairly moderate speeds, considering the condition of the road and the absence of traffic — the Mercury at 40 to 50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a distance. Ahead of theCadillac, going in the same direction, was a caretella owned by a certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical post on the right side and held at the other end by Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when hesaw it in front of him, only eight meters away. This is the firstclear indication of his negligence. The carretela was provided with two lights, one on each side, and they should have given him sufficient warning to take the necessary precautions. And even ifhe did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him from afar if he had been careful, as it must have been in the beam of his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of slowing down or stoppingaltogether behind the carretela until that lane was clear, veered tothe left in order to pass. As he did so the curved end of his car's right rear bumper caught the forward rim of the rig's left

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wheel, wrenching it off and carrying it along as the car skidded obliquely to the other lane, where it collided with the oncoming vehicle. On his part Caedo had seen the Cadillac on its own lane;he slackened his speed, judged the distances in relation to the carretela and concluded that the Cadillac would wait behind. Bernardo, however, decided to take a gamble — beat the Mercury tothe point where it would be in line with the carretela, or else squeeze in between them in any case. It was a risky maneuver either way, and the risk should have been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25 miles according to Yu Khe Thai) it was already too late to apply the brakes when Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to the left in spite of thepresence of the oncoming car on the opposite lane. As it was, theclearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the wheel of the carretela and wrenched it loose. Caedo, confronted withthe unexpected situation, tried to avoid the collision at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the scene show that the right wheels of his car were on the unpaved shoulder of the road at the moment ofimpact.

There is no doubt at all that the collision was directly traceable to Rafael Bernardo's negligence and that he must be held liable for the damages suffered by the plaintiffs. The next question is whether or not Yu Khe Thai, as owner of the Cadillac,is solidarily liable with the driver. The applicable law is Article 2184 of the Civil Code, which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarilyliable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving

or violating traffic regulations at least twice within the next preceding two months.

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by theexercise of due diligence. The rule is not new, although formulated as law for the first time in the new Civil Code. It was expressed in Chapman vs. Underwood (1914), 27 Phil. 374, where this Court held:

... The same rule applies where the owner is present, unlessthe negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunityto observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of the chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures aperson or violates the criminal law, the owner of the automobile, although present therein at the time the act wascommitted, is not responsible, either civilly or criminally,therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver act his own.

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The basis of the master's liability in civil law is not respondent superior but rather the relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years. During that time he had no record ofviolation of traffic laws and regulations. No negligence for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the accident, that is,

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in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. We do not see that such negligence may be imputed. The car, as has been stated, was not running at an unreasonable speed. The road was wide and open, and devoid of traffic that early morning. There was no reason for the car ownerto be in any special state of alert. He had reason to rely on theskill and experience of his driver. He became aware of the presence of the carretela when his car was only twelve meters behindit, but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel. And even when hedid see it at that distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. The time element was such that there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law to prevent the misfortune.

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car owners

are not held to a uniform and inflexible standard of diligence asare professional drivers. In many cases they refrain from drivingtheir own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficientdiscernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle isnot necessarily so on the part, say, of an old and infirm person who is not similarly equipped.

The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own amotor vehicle. The test of his intelligence, within the meaning of Article 2184, is his omission to do that which the evidence ofhis own senses tells him he should do in order to avoid the accident. And as far as perception is concerned, absent a minimumlevel imposed by law, a maneuver that appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were the law to require a uniform standard of perceptiveness, employment of professional drivers bycar owners who, by their very inadequacies, have real need of drivers' services, would be effectively proscribed.

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We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The next question refers to the sums adjudged by the trial court as damages. The award of P48,000 by way of moral damages is itemized as follows:

1. Marcial Caedo P20,000.00

2. Juana S. Caedo 15,000.00

3. Ephraim Caedo 3,000.00

4. Eileen Caedo 4,000.00

5. Rose Elaine Caedo 3,000.00

6. Merilyn Caedo 3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or compensatory damages, aggregating P225,000, for the injuries they sustained. Defendants, on the other hand maintain that the amounts awarded as moral damages are excessive and should be reduced. We find no justification for either side. The amount of actual damages suffered by the individual plaintiffs by reason of their injuries, other than expenses for medical treatment, has not beenshown by the evidence. Actual damages, to be compensable, must beproven. Pain and suffering are not capable of pecuniary estimation, and constitute a proper ground for granting moral, not actual, damages, as provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-plaural hematoma; Basal disc atelectasis, lung, right lower lobe, secondary;C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions, multiple:    (1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.B. Wound, lacerated, irregular, deep, frontal;C. Fracture, simple, 2nd rib posterior, left with displacement.D. Fracture, simple, base, proximal phalanx right, bigtoe.E. Fracture, simple, base, metatarsals III and V right.F. Concussion, cerebral.

EPHRAIM CAEDO:

A. Abrasions, multiple:    (1) left temporal area; (2) left frontal; (3) leftsupraorbital

EILEEN CAEDO:

A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.B. Abrasions, multiple:

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    (1) dorsum, proximal phalanx middle finger; (2) Knee, anterior, bilateral; (3) shin, lower 1/3.

ROSE ELAINE CAEDO:

A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3) nasolabial region; (4) leg, lower third, anterior.

MARILYN CAEDO:

A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4, and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts of moral damages granted bythe trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense ofdeclaring defendant-appellant Yu Khe Thai free from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against the latter.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.

Fernando, J., took no part.

THIRD DIVISION

[G.R. No. 138054. September 28, 2000]

ROSENDO C. CARTICIANO and ZACARIAS A. CARTICIANO, petitioners, vs. MARIO NUVAL, respondent.

D E C I S I O N

PANGANIBAN, J.:

To hold an employer liable for the negligent acts of the employee, it is enough to prove that the latter was hired to drive the former’s motor vehicle. It is not necessary to show, inaddition, that the employer’s children were aboard the jeep when the accident happened. Once the driver is shown to be negligent, the burden of proof to free the employer from liability shifts tothe latter.

Statement of the Case

Before this Court is a Petition for Review on Certiorarixx[1] under Rule 45 of the Rules of Court, assailing the November 10, 1999 Decisionxxi[2] of the Court of Appeals (CA)xxii[3] in CA-GR CV No. 52316, which disposed as follows:

“WHEREFORE, [the] foregoing considered, the appealed decision is hereby AFFIRMED insofar as defendant Darwin is concerned and REVERSED and SET-ASIDE as it pertains to defendant-appellant Nuval. Defendant-appellant Nuval is hereby absolved of any civil liability and the complaint against him is hereby DISMISSED.”xxiii[4]

On the other hand, the trial courtxxiv[5] ruled in this wise:

“ACCORDINGLY, judgment is hereby rendered in favor of plaintiffs and against defendants, ordering the latter to pay the former jointly and severally the following:

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1) The amount of P160,715.19 as actual damage for the medical treatment so far of plaintiff Zacarias Carticiano;

2) The amount of P100,000.00 to compensate the income and opportunities plaintiff Zacarias lost as a result of the incident;

3) The amount of P173,788.00 for the damages sustained by the Ford Laser;

4) The amount of P200,000.00 as moral damages;

5) The amount of P100,000.00 as exemplary damages;

6) The amount of P100,000.00 as attorney’s fees and expenses oflitigation.

With costs.

SO ORDERED.”

The Facts

The facts are summarized succinctly by the Court of Appeals as follows:

"On September 3, 1992 at about 9:30 in the evening, plaintiff Zacarias Carticiano was on his way home to Imus, Cavite. Plaintiff Zacarias was driving his father’s (plaintiff Rosendo Carticiano) Ford Laser car, traversing the coastal roads of Longos, Bacoor, Cavite.

“On the same date and time, defendant Nuval’s owner-type Jeep, then driven by defendant Darwin was traveling on the opposite direction going to Parañaque.

“When the two cars were about to pass one another, defendant Darwin veered his vehicle to his left going to the center island of the highway and occupied the lane which plaintiff Zacarias wastraversing.

“As a result thereof, plaintiff Zacarias’ Ford Laser collided head-on with defendant Nuval’s Jeep. Defendant Darwin immediatelyfled from the scene.

“Plaintiff Zacarias was taken out [of] the car by residents of the area and was brought to the hospital by Eduard Tangan, a Narcom agent who happened to pass by the place. Plaintiff Zacarias suffered multiple fracture on his left leg and other injuries in his body. Plaintiff Zacarias underwent a leg operation and physical therapy to repair the damaged leg.

“Defendant Nuval offered P100,000.00 as compensation for the injuries caused. Plaintiffs refused to accept the amount.

“On this account, plaintiffs filed a criminal suit against defendant Darwin. Plaintiffs also filed this present civil suit against defendants for damages.

“Plaintiffs alleged that the proximate cause of the accident is defendant’s Darwin recklessness in driving defendant Nuval’s jeep; that on account of said recklessness of defendant Darwin, plaintiff suffered damages; that defendant Darwin was an employeeof defendant Nuval at the time of accident; that defendant Nuval did not exercise due diligence in the supervision of his employee; that defendants should he held liable for damages.

“Defendant Nuval on the other hand insisted that he cannot be held answerable for the acts of defendant Darwin; that defendant Darwin was not an employee of defendant Nuval at the time of the accident; that defendant Darwin was hired only as casual and has

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worked with defendant Nuval’s company only for five days; that atthe time of the accident, defendant Darwin was no longer connected with defendant Nuval’s company; that defendant Darwin was not authorized to drive the vehicle of defendant Nuval; that defendant Nuval tried to locate defendant Darwin but the latter could no longer be found; that defendant Nuval cannot be held liable for damages.

“Defendant Darwin [h]as failed to file his answer within the reglementary period. Consequently, he was declared in default. Trial of the case proceeded.”xxv[6]

Ruling of the Court of Appeals

The Court of Appeals explained that in order to hold an employer liable for the negligent acts of an employee under Article 2180 of the Civil Code, it must be shown that the employee was “actingwithin the scope of his assigned task when the tort complained ofwas committed.”xxvi[7]

The employer in this case, Respondent Mario Nuval, cannot be heldliable for the tort committed by Darwin. First, appellants did not present evidence showing that the driver was indeed an employee of respondent at the time the accident occurred. And second, even assuming arguendo that Darwin was in fact an employee of Nuval, itwas not shown that the former was acting within the scope of his assigned task when the incident happened. Thus, the requisites for holding an employer liable for the tort committed by an employee were not satisfied.

Hence, this appeal.xxvii[8]

Issues

Petitioners present the following issues:

“A. Whether or not Defendant Darwin was in fact an employee of Defendant Nuval;

“B. Whether or not Defendant Nuval was negligent in the selection and supervision of his employees;

“C. Whether or not Defendant Nuval was grossly negligent in the safekeeping of the key to his owner-type jeep and of said vehicleitself;

“D. Whether or not respondent must be held liable for the damages and injuries suffered by appellees; [and]

“E. Whether or not findings of facts of the Court of Appeals aresubject to exceptions.”xxviii[9]

For brevity, Item A will be taken up as the first issue; while B,C, D and E will be discussed together as the second issue, since they all directly pertain to respondent’s vicarious liability.

The Court’s Ruling

The Petition is meritorious.

First Issue: No Proof That Employment Was Terminated

Respondent maintains that on the datexxix[10] the accident happened, Darwin was no longer his employee because the latter’s services had already been terminated. Nuval adds that Darwin was hired for a period of only four to six days. To substantiate thisclaim, the former presented payroll and employment records showing that the latter was no longer his employee.

We disagree. The only proof proferred by Respondent Nuval to showthat Darwin was no longer his employee was the payroll in which

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the latter’s name was not included. However, as revealed by the testimonies of the witnesses presented during trial, respondent had other employees working for him who were not listed in the payroll either. The trial court explained as follows:

“It surfaced that the payroll and daily time records presented bydefendant Nuval [were] not reliable proofs of the names and number of employees that defendant Nuval had at the time of the incident in view of the testimonies of witnesses for defendant Nuval tending to show that there were more employees of defendantNuval who were not in the payroll.”xxx[11]

The rather easy access which Darwin had to the keys to the vehicle of Nuval further weakened the latter’s cause. First, nobodyquestioned the fact that the former had freely entered respondent’s house where the keys to the vehicle were kept. The theory of Nuval that Darwin must have stolen the keys as well as the vehicle is rather farfetched and not supported by any proof whatsoever. It is obviously an afterthought concocted to present some semblance of a defense. Second, both respondent and his employees who testified did not act as if the vehicle had been stolen. He had not reported the alleged theft of his vehicle. Neither did he search nor ask his employees to search for the supposedly stolen vehicle. In fact, he testified that his employees had told him that the keys and the vehicle had merely “probably” been stolen by Darwin.

“Atty. Bobadilia:Did you ask among your employees who gave the key to Darwin?

Mario Nuval: I asked them, sir.

Atty. Bobadilla: What was the reply of your employees?

M. Nuval: According to my employees he stole the key of the jeepney at home.

Atty. Abas: I disagree with the interpretation of the interpreter because the answer of the witness is ‘ninanak yata.”

Interpreter: I agree, your Honor.

Court: So, what is the correct interpretation?

A: According to my employees perhaps the key was stolen, or perhaps Darwin stole the key to the jeep.”xxxi[12]

From the totality of the evidence, we are convinced that Darwin was Nuval’s driver at the time of the accident.

Second to Fourth Issues: Employer’s Liability

The CA agreed with the theory of respondent that he could not be held liable for the negligent acts of his employee because Darwinwas not acting within the scope of his assigned tasks when the damage occurred. Respondent adds that he observed the diligence of a good father of a family and was not negligent in safeguardingthe keys to the said vehicle.

Article 2180 of the Civil Code provides that employers shall be liable for damages caused by their employees acting within the scope of their assigned tasks. The said provision is reproduced below:

“ART. 2180. The obligation imposed by article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

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“The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live [in] their company.

“Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.

“The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in theservice of the branches in which the latter are employed or on the occasion of their functions.

“Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

“The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable.

“Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

“The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.”xxxii[13](Italics supplied)

The facts established in the case at bar show that Darwin was acting within the scope of the authority given him when the collision occurred. That he had been hired only to bring respondent’s children to and from school must be rejected. True,

this may have been one of his assigned tasks, but no convincing proof was presented showing that it was his only task. His authority was to drive Nuval’s vehicle. Third parties are not bound by the allegation that the driver was authorized to operatethe jeep only when the employer’s children were on board the vehicle. Giving credence to this outlandish theory would enable employers to escape their legal liabilities with impunity. Such loophole is easy to concoct and is simply unacceptable.

The claim of respondent that he had exercised the diligence of a good father of a family is not borne out by the evidence. Neitheris it supported by logic. His main defense that at the time of the accident Darwin was no longer his employee, having been merely hired for a few days, is inconsistent with his other argument of due diligence in the selection of an employee.

Once a driver is proven negligent in causing damages, the law presumes the vehicle owner equally negligent and imposes upon thelatter the burden of proving proper selection of employee as a defense.xxxiii[14] Respondent failed to show that he had satisfactorily discharged this burden.

No Proof of Contributory Negligence

Respondent Nuval’s accusation that Petitioner Zacarias Carticianois guilty of contributory negligence by failing to stop his car or to evade the oncoming jeep is untenable. Both the trial and the appellate courts found that the accident was caused by the fact that Darwin’s jeep suddenly veered towards Zacarias’ lane when the vehicles were about to pass each other, thus making it difficult if not impossible for petitioner to avoid the head-on collission. Nuval utterly failed to present sufficient evidence to show that Zacarias could have evaded the jeep. Given the distance between the vehicles and the speed at which they were

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travelling, the former was not able to demonstrate convincingly that the latter could have minimized the damage complained of.

Review of Factual Findings

Generally, the factual findings of lower courts are accorded great respect by this Court. However, the above rule is subject to certain exceptions, one of which is when the two lower court’sfindings oppose each other.xxxiv[15]

In the present case, there is a clear conflict between the findings of the trial court and those of the CA. Such conflict hinges on whether it was sufficiently proven that the employment of Darwin had indeed been terminated by respondent, and whether the former was acting within the scope of his assigned tasks at the time the collision occurred. The resolution of both of these pivotal factual issues is determinative of respondent’s vicariousliability for the injuries caused by Darwin. It is thus necessaryfor this Court to pore over the evidence adduced, as it did already.

Damages

Article 2199 of the Civil Code allows the aggrieved party to recover the pecuniary loss that he has suffered.

“ART. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary losssuffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.”

Based on the above, Petitioner Zacarias is entitled to indemnification for actual damages caused by the negligence of Darwin, for which the latter’s employer, Respondent Nuval, is solidarily liable. And as found by the trial court, petitioner is

entitled to P160,715.19 for his medical treatment, as testified to by Dr. Eduardo Arandia. In the same vein, both petitioners arealso entitled to P173,788, which represents the costs incurred for the repair of the damaged vehicle.xxxv[16]

The Civil Code allows indemnification for lost profit or income,xxxvi[17] but petitioners failed to adduce sufficient proof of such loss.

However, moral damages are in order, based on Articles 2217 and 2219 of the Civil Code which respectively provide:

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

“ART. 2219. Moral damages may be recovered in the following and analogous cases:

x x x x x x x x x

“(2) Quasi-delicts causing physical injuries x x x”

As a direct result of the collision, petitioner suffered physically. It is also true that he experienced and will continueto experience social humiliation and ridicule for having his leftleg shorter than the right which causes him to limp when walking.For the above, we agree with the trial court that Petitioner Zacarias is entitled to an award of moral damages.

Exemplary damages and attorney’s fees are likewise authorized by the following provisions of the Civil Code:

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“ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.”

“ART. 2234. While the amount of the exemplary damages need not beproved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in additionto the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.”

“ART. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded x x x.”xxxvii[18]

As held by the trial court, respondent’s refusal to answer adequately for the damages forced petitioners to litigate and incur expenses. And to serve as an example for the public good, exemplary damages are affirmed, since Petitioner Zacarias has already shown that he is entitled to compensatory and moral damages in accordance with Article 2234 of the Civil Code.

WHEREFORE, the Petition is hereby GRANTED. The assailed Decision is REVERSED and SET ASIDE and the trial court’s Decision REINSTATED, except that the award of P100,000 for lost “income or opportunities” is DELETED.

SO ORDERED.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

[G.R. No. 128607. January 31, 2000]

ALFREDO MALLARI SR. and ALFREDO MALLARI JR., petitioners, vs. COURT OF APPEALS and BULLETIN PUBLISHING CORPORATION, respondents.

D E C I S I O N

BELLOSILLO, J.:

ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review on certiorari seek to set aside the Decision of the Court of Appeals25[1] which reversed the court a quo and adjudged petitioners to be liable for damages due to negligence as a common carrier resulting in the death of a passenger.

On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven by petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari Sr. collided with the delivery van of respondent Bulletin Publishing Corp. (BULLETIN, for brevity) along the National Highway in Barangay San Pablo, Dinalupihan, Bataan. Petitioner Mallari Jr. testified that he went to the left lane of the highway and overtook a Fiera which had stopped on the right lane. Before he passed by the Fiera, he saw the van of respondent BULLETIN coming from the opposite direction. It was driven by one Felix Angeles. The sketch of the accident showed that the collision occurred after Mallari Jr. overtook the Fiera while negotiating a curve in the highway. The points of collision were the left rear portion of the passenger jeepney and the left front side of the delivery van of BULLETIN. The two (2) right wheels of the delivery van were on the right

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shoulder of the road and pieces of debris from the accident were found scattered along the shoulder of the road up to a certain portion of the lane travelled by the passenger jeepney. The impact caused the jeepney to turn around and fall on its left side resulting in injuries to its passengers one of whom was Israel Reyes who eventually died due to the gravity of his injuries. Manikanä

On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint for damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr. and Alfredo Mallari Jr., and also against BULLETIN, its driver Felix Angeles,and the N.V. Netherlands Insurance Company. The complaint allegedthat the collision which resulted in the death of Israel Reyes was caused by the fault and negligence of both drivers of the passenger jeepney and the Bulletin Isuzu delivery van. The complaint also prayed that the defendants be ordered jointly and severally to pay plaintiff P1,006,777.40 in compensatory damages,P40,000.00 for hospital and medical expenses, P18,270.00 for burial expenses plus such amounts as may be fixed by the trial court for exemplary damages and attorney’s fees.

The trial court found that the proximate cause of the collision was the negligence of Felix Angeles, driver of the Bulletin delivery van, considering the fact that the left front portion ofthe delivery truck driven by Felix Angeles hit and bumped the left rear portion of the passenger jeepney driven by Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN and Felix Angeles to pay jointly and severally Claudia G. Reyes, widow of the deceased victim, the sums of P42,106.93 for medical expenses;P8,600.00 for funeral and burial expenses; P1,006,777.40 for lossof earning capacity; P5,000.00 for moral damages and P10,000.00 for attorney’s fees. The trial court also ordered N.V. Netherlands Insurance Company to indemnify Claudia G. Reyes P12,000.00 as death indemnity and P2,500.00 for funeral expenses

which when paid should be deducted from the liabilities of respondent BULLETIN and its driver Felix Angeles to the plaintiff. It also dismissed the complaint against the other defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.

On appeal the Court of Appeals modified the decision of the trialcourt and found no negligence on the part of Angeles and consequently of his employer, respondent BULLETIN. Instead, the appellate court ruled that the collision was caused by the sole negligence of petitioner Alfredo Mallari Jr. who admitted that immediately before the collision and after he rounded a curve on the highway, he overtook a Fiera which had stopped on his lane and that he had seen the van driven by Angeles before overtaking the Fiera. The Court of Appeals ordered petitioners Mallari Jr. and Mallari Sr. to compensate Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as indemnity for death and P10,000.00 for attorney’s fees. It absolved from any liability respondent BULLETIN, Felix Angeles and N.V. Netherlands InsuranceCompany. Hence this petition. Oldmisâ o

Petitioners contend that there is no evidence to show that petitioner Mallari Jr. overtook a vehicle at a curve on the road at the time of the accident and that the testimony of Angeles on the overtaking made by Mallari Jr. was not credible and unreliable. Petitioner also submits that the trial court was in abetter position than the Court of Appeals to assess the evidence and observe the witnesses as well as determine their credibility;hence, its finding that the proximate cause of the collision was the negligence of respondent Angeles, driver of the delivery van owned by respondent BULLETIN, should be given more weight and consideration.

We cannot sustain petitioners. Contrary to their allegation that there was no evidence whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve on the road at the time of or

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before the accident, the same petitioner himself testified that such fact indeed did occur -

Q:.......And what was that accident all about?

A:.......Well, what happened, sir, is that at about that time 5:00 o’clock in that morning of October 14 while I was negotiating on the highway at San Pablo, Dinalupihan, Bataan, I was then following a blue Ford Fierra and my distance behind was about twenty (20) feet and then I passed that blue Ford Fierra. I overtook and when I was almost on the right lane of the highway towards Olongapo City there was an oncoming delivery van of the Bulletin Publishing Corporation which bumped the left rear portion of the jeepney which I was driving and as a result of which the jeepney x x x turned around and fell on its left side and as a result of which some of my passengers including me were injured, sir x x x x

Q:.......Before you overtook the Ford Fierra jeepney did you look x x x whether there was any vehicle coming towards you?

A:.......Yes, sir.

Q:.......Did you see the Bulletin van or the Press vancoming towards you?

A:.......Yes, sir.

Q:.......At the moment the Ford Fierra xxx stop(ped) and in overtaking the Fierra, did you not have an option to stop and not to overtake the Ford Fierra?

A:.......Well, at the time when the Ford Fierra stopped in front of me I slowed down with the intention of applying the brake, however, when I saw the oncoming vehicle which is the Press van is very far x x x which is 100 feet distance, x x x it is sufficient to overtake the Ford Fierra so I overt(ook)it x x x x

Q:.......You said that you took into consideration thespeed of the oncoming Press van but you also could notestimate the speed of the press van because it was dark at that time, which of these statements are true?Ncmâ

A:.......What I wanted to say, I took into consideration the speed of the oncoming vehicle, the Press van, although at the moment I could not estimatethe speed of the oncoming vehicle x x x x26[2]

The Court of Appeals correctly found, based on the sketch and spot report of the police authorities which were not disputed by petitioners, that the collision occurred immediately after petitioner Mallari Jr. overtook a vehicle in front of it while traversing a curve on the highway.27[3] This act of overtaking wasin clear violation of Sec. 41, pars. (a) and (b), of RA 4136 as amended, otherwise known as The Land Transportation and Traffic Code whichprovides:

Sec. 41. Restrictions on overtaking and passing. - (a)The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking or

26

27

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passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing tobe made in safety.

(b) The driver of a vehicle shall not overtake or passanother vehicle proceeding in the same direction when approaching the crest of a grade, nor upon a curve in the highway, where the driver’s view along the highwayis obstructed within a distance of five hundred feet ahead except on a highway having two or more lanes formovement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle:

Provided That on a highway, within a business or residential district, having two or more lanes for movement of traffic in one direction, the driver of a vehicle may overtake or pass another vehicle on the right.

The rule is settled that a driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear and not to proceed if he cannot do so in safety.28[4] When a motor vehicle is approaching or rounding a curve, there is special necessity for keeping to the right side of the road and the driver does not have the right to drive on the left hand side relying upon having time to turn to the right if a car approaching from the opposite direction comes into view.29[5] NcmmisÓ

28

29

In the instant case, by his own admission, petitioner Mallari Jr.already saw that the BULLETIN delivery van was coming from the opposite direction and failing to consider the speed thereof since it was still dark at 5:00 o'clock in the morning mindlesslyoccupied the left lane and overtook two (2) vehicles in front of it at a curve in the highway. Clearly, the proximate cause of thecollision resulting in the death of Israel Reyes, a passenger of the jeepney, was the sole negligence of the driver of the passenger jeepney, petitioner Alfredo Mallari Jr., who recklesslyoperated and drove his jeepney in a lane where overtaking was notallowed by traffic rules. Under Art. 2185 of the Civil Code, unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap he was violating a traffic regulation. As found by the appellate court, petitioners failed to present satisfactory evidence to overcome this legal presumption.

The negligence and recklessness of the driver of the passenger jeepney is binding against petitioner Mallari Sr., who admittedlywas the owner of the passenger jeepney engaged as a common carrier, considering the fact that in an action based on contractof carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of damages sought by the passenger. Under Art. 1755 of the Civil Code, a common carrier is bound to carry the passengers safely as far as human care and foresight can provide using the utmost diligence of very cautious persons with due regard for all the circumstances. Moreover, under Art. 1756 of the Civil Code, in case of death or injuries to passengers, a common carrier is presumed to have been at fault orto have acted negligently, unless it proves that it observed extraordinary diligence. Further, pursuant to Art. 1759 of the same Code, it is liable for the death of or injuries to passengers through the negligence or willful acts of the former’semployees. This liability of the common carrier does not cease

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upon proof that it exercised all the diligence of a good father of a family in the selection of its employees. Clearly, by the contract of carriage, the carrier jeepney owned by Mallari Sr. assumed the express obligation to transport the passengers to their destination safely and to observe extraordinary diligence with due regard for all the circumstances, and any injury or death that might be suffered by its passengers is right away attributable to the fault or negligence of the carrier. Scncä m

The monetary award ordered by the appellate court to be paid by petitioners to the widow of the deceased passenger Israel M. Reyes of P1,006,777.50 for loss of earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for attorney’s fees,all of which were not disputed by petitioners, is a factual matter binding and conclusive upon this Court.

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals dated 20 September 1995 reversing the decision of the trial court being in accord with law and evidence is AFFIRMED. Consequently, petitioners are ordered jointly and severally to pay Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for attorney’s fees. Costs against petitioners.

SO ORDERED.

Mendoza, Quisumbing, Buena and De Leon, Jr., concur.2/22/00 9:44 AM

C. MANUFACTURERS AND PROCESSORS (ART 2187)

D, MUNICIPAL CORPORATIONS (ART 2189) (SEC. 24, RA 7160)

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner, vs.CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.

Nolan R. Evangelista for petitioner.

The City Legal Officer for respondents.

 

SARMIENTO, J.:

In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment was rendered against the respondent City of Dagupan:

x x x

(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely P8,054.00 as hospital, medical and other expenses [Exhs. H to H-60], P 7,420.00 as lost income for one (1) year [Exh. F] and P 450.00 as bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees, and litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City Council) saidamounts for said purpose;

(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco; and

(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G. Tangco, for lack of merit. 2

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The facts found by the trial court are as follows: 3

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch III, CFI--Dagupan City, while she was about to board amotorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under the control and supervision of the City of Dagupan) accidentally fell into a manhole located on said sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She also incurred hospitalization,medication and other expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P 10,000.00 inall, as other receipts were either lost or misplaced; during the period of her confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only on her right leg which was fractured butalso on all parts of her body; the pain has persisted even after her discharge from the Medical City GeneralHospital on October 9, 1978, to the present. Despite her discharge from the Hospital plaintiff is presentlystill wearing crutches and the Court has actually observed that she has difficulty in locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotionin going up the stairs of her office, located near thecity hall in Dagupan City. She earns at least P 720.00a month consisting of her monthly salary and other means of income, but since July 25, 1978 up to the present she has been deprived of said income as she has already consumed her accrued leaves in the

government service. She has lost several pounds as a result of the accident and she is no longer her formerjovial self, she has been unable to perform her religious, social, and other activities which she usedto do prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr. Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal(Exh. I; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any doubt the extent of thefracture and injuries sustained by the plaintiff as a result of the mishap. On the other hand, Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and they have confirmed the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the sidewalk alongPerez Blvd., at the time of the incident on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see Exhs. D and D-1).

Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway Engineer, City Engineer of the Public Works and Building Official forDagupan City, admitted the existence of said manhole along the sidewalk in Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He also admitted that said manhole (there are at least 11 in all in Perez Blvd.) is owned by the National Government and the sidewalk on which they are found along Perez Blvd. are also owned by the National Government. But as City Engineer of Dagupan City, he supervises the maintenance of said manholes or

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drainage system and sees to it that they are properly covered, and the job is specifically done by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as ex-officio Highway Engineer for Dagupan City he exercises supervision and control over National roads,including the Perez Blvd. where the incident happened.

On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5

The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not under the controlor supervision of the City of Dagupan. Hence, no liability shouldattach to the city. It submits that it is actually the Ministry of Public Highways that has control or supervision through the Highway Engineer which, by mere coincidence, is held concurrentlyby the same person who is also the City Engineer of Dagupan.

After examination of the findings and conclusions of the trial court and those of the appellate court, as well as the arguments presented by the parties, we agree with those of the trial court and of the petitioner. Hence, we grant the petition.

In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue: whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding the city to answer for damages in accordance with article 2189 of the Civil Code.

The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition of roads is expressed in the Civil Code as follows:

Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, publicbuildings, and other public works under their control or supervision.

It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street. 6

In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised through the City Engineer who has the following duties:

Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shallbe in charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three thousand pesos per annum. He shall have the following duties:

x x x

(j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of water supply, and shall control, maintain and regulatethe use of the same, in accordance with the ordinance relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city

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and its inhabitants, and all private sewers, and theirconnection with the public sewer system.

x x x

The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board . 7 Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the open drainage hole is located.

The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar.8

The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in particular to theliability arising from "defective streets, public buildings and other public works." 9

The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said road. But the citycan not be excused from liability by the argument that the duty of the City Engineer to supervise or control the said provincial road belongs more to his functions as an ex-officio Highway Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an honorarium from the Ministry of Public Highways, his salary from the city government substantially exceeds the honorarium.

We do not agree.

Alfredo G. Tangco "(i)n his official capacity as City Engineer ofDagupan, as Ex- Officio Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works and P 500.00 by virtue of P.D. 1096, respectively." 10 This function of supervision over streets, public buildings, and other public works pertaining to the City Engineer is coursed through a Maintenance Foreman and a Maintenance Engineer.11 Although these last two officials are employees of the National Government, they are detailed with the City of Dagupan and hence receive instruction and supervision from the city through the City Engineer.

There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in question. Hence, the liability of the city to the petitioner under article 2198 ofthe Civil Code is clear.

Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should be reduced to the proven expenses of P 8,053.65 only. The trial court should not have rounded off the amount. In determining actual damages, the court can not rely on "speculation, conjecture or guess work" as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous. 12

On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is discretionary on the court.13 Though incapable of pecuniary estimation, moral damages are in the nature of an awardto compensate the claimant for actual injury suffered but which for some reason can not be proven. However, in awarding moral damages, the following should be taken into consideration:

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(1) First, the proximate cause of the injury must be the claimee's acts.14

(2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis fordamages.15

(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the CivilCode. 16

In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses from the petitioner's place of work testified to the degeneration in her disposition-from being jovial to depressed. She refrained from attending social and civic activities.17

Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and anguish existed to warrant the award of damages,18 the moderating hand of the law is called for. The Court has time and again called attention to the reprehensible propensity of trial judges to award damages without basis,19 resulting in exhorbitant amounts.20

Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding jurisprudence, the amount of moral damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:

To serve as an example for the public good, it is hightime that the Court, through this case, should serve

warning to the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when they are engaged in construction work or when there are manholes on their sidewalks or streets which are uncovered, to immediately cover the same, in order to minimize or prevent accidents to the poor pedestrians.22

Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important than the manner in which the work is carried out. Because of this obsession for showing off, such trivial details as misplaced flower pots betraythe careless execution of the projects, causing public inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the petitioner was able to secure an order for garnishment of the funds of the City deposited with the Philippine National Bank, from the then presiding judge, Hon.Willelmo Fortun. This order for garnishment was revoked subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the petitioner's motion for reconsideration which was also denied. 23

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any good reason to justify the issuance of an order of execution even before the expiration of the time to appeal .24

WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of Appeals are hereby REVERSEDand SET ASIDE and the decision of the trial court, dated March 12, 1979 and amended on March 13, 1979, is hereby REINSTATED withthe indicated modifications as regards the amounts awarded:

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(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P 15,924 (namely P 8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year and P 450.00 as bonus); P 20,000.00 as moral damages and P 10,000.00 as exemplary damages.

The attorney's fees of P 3,000.00 remain the same.

SO ORDERED.

Melencio-Herrera, (Chaiperson), Paras, Padilla and Regalado, JJ., concur.

 

G.R. No. L-23052           January 29, 1968

CITY OF MANILA, petitioner, vs.GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was atthe corner of the Old Luneta and P. Burgos Avenue, Manila, withina "loading and unloading" zone, waiting for a jeepney to take himdown town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As he stepped down fromthe curb to board the jeepney, and took a few steps, he fell inside an uncovered and unlighted catch basin or manhole on P.

Burgos Avenue. Due to the fall, his head hit the rim of the manhole breaking his eyeglasses and causing broken pieces thereofto pierce his left eyelid. As blood flowed therefrom, impairing his vision, several persons came to his assistance and pulled himout of the manhole. One of them brought Teotico to the PhilippineGeneral Hospital, where his injuries were treated, after which hewas taken home. In addition to the lacerated wound in his left upper eyelid, Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus injections administered to him in the hospital, required further medical treatment by a private practitioner who charged therefor P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, withthe Court of First Instance of Manila, a complaint — which was, subsequently, amended — for damages against the City of Manila, its mayor, city engineer, city health officer, city treasurer andchief of police. As stated in the decision of the trial court, and quoted with approval by the Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the University of the East. He held responsible positions in various business firms like the Philippine Merchandising Co., the A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere Packing Corporation. He was also associated with several civic organizations suchas the Wack Wack Golf Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of the incident, plaintiff was prevented from engaging in his customary occupation for twenty days. Plaintiff has lost a daily income of about P50.00 during hisincapacity to work. Because of the incident, he was

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subjected to humiliation and ridicule by his business associates and friends. During the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered on the same day (Exhibit 4); that again the iron cover of the same catch basin was reported missing on January 30, 1958, but the said cover was replacedthe next day (Exhibit 5); that the Office of the City Engineer never received any report to the effect that the catchbasin in question was not covered between January 25 and 29, 1968; that it has always been a policy of the said office, which is charged with the duty of installation, repair and care of storm drains in the City of Manila, that whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by immediately replacing the missing cover or covering the catchbasin with steel matting that because of the lucrative scrap iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office of the City Engineer has filed complaints incourt resulting from theft of said iron covers; that in order to prevent such thefts, the city government has changed the position and layout of catchbasins in the City by constructing them under the sidewalks with concrete cement covers and openings on the side of the gutter; and that these changes had been undertaken by the city from timeto time whenever funds were available.

After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining the theoryof the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act No. 409 (Charter of the City of Manila) reading:

The city shall not be liable or held for damages or injuriesto persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

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The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for: "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforcesaid provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by any person by reason" — specifically — "of the defective condition of roads, streets, bridges, public buildings, and other-public works under their control or supervision." In other words, said section4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of aroad, said Article 2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident involving him took place in a national highway; and 2) because the City of Manila has not been negligent in connection therewith.

As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the defective condition of a street which is "under the supervision and control" of the City. In its answer to the amended complaint, the City, in turn, alleged that "the streets aforementioned were and have been constantly kept in

good condition and regularly inspected and the storm drains and manholes thereof covered by the defendant City and the officers concerned" who "have been ever vigilant and zealous in the performance of their respective functions and duties as imposed uponthem by law." Thus, the City had, in effect, admitted that P. BurgosAvenue was and is under its control and supervision.

Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of fact, which had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road. Even ifP. Burgos Avenue were, therefore, a national highway, this circumstance would not necessarily detract from its "control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

x x x           x x x           x x x

(x) Subject to the provisions of existing law to provide forthe laying out, construction and improvement, and to regulate the use ofstreets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for lighting,

191

cleaning, and sprinkling of streets and public places; . . .to provide for the inspection of, fix the license fees for and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires therein; to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the streets and other public places; to provide for the abatement of nuisances in the same and punish the authors or owners thereof; to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other amusements which may annoy persons using the streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their property, or any part thereof, to provide suitable protection against injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and under their tracks, so that the natural drainage of the streets and adjacent property shall not be obstructed.

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway funds and the giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets within their respective boundaries, and Executive Order No. 113 merely implements the

provisions of said Republic Act No. 917, concerning the disposition and appropriation of the highway funds. Moreover, it provides that "the construction, maintenance and improvement of national primary, national secondary and national aid provincial and city roads shall be accomplished by the Highway District Engineers and Highway City Engineers under the supervision of the Commissioner of Public Highways and shall be financed from such appropriations as may be authorized by the Republic of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenueis under the control or supervision of the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila. It is so ordered.1äwphï1.ñët

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

G.R. No. 71049 May 29, 1987

BERNARDINO JIMENEZ, petitioner, vs.CITY OF MANILA and INTERMEDIATE APPELLATE COURT, respondents.

 

PARAS, J.:

192

This is a petition for review on certiorari of: (1) the decision * of the Intermediate Appellate Court in AC-G.R. No. 013887-CV Bernardino Jimenez v. Asiatic Integrated Corporation and City of Manila, reversing the decision ** of the Court of First Instance of Manila, Branch XXII in Civil Case No. 96390 between the same parties, but only insofar as holding Asiatic Integrated Corporation solely liable for damages and attorney's fees instead of making the City of Manila jointly and solidarily liable with it as prayed for by thepetitioner and (2) the resolution of the same Appellate Court denying his Partial Motion for Reconsideration (Rollo, p. 2).

The dispositive portion of the Intermediate Appellate Court's decision is as follows:

WHEREFORE, the decision appealed from is hereby REVERSED. A new one is hereby entered ordering the defendant Asiatic Integrated Corporation to pay the plaintiff P221.90 actual medical expenses, P900.00 forthe amount paid for the operation and management of a school bus, P20,000.00 as moral damages due to pains, sufferings and sleepless nights and P l0,000.00 as attorney's fees.

SO ORDERED. (p. 20, Rollo)

The findings of respondent Appellate Court are as follows:

The evidence of the plaintiff (petitioner herein) shows that in the morning of August 15, 1974 he, together with his neighbors, went to Sta. Ana public market to buy "bagoong" at the time when the public market was flooded with ankle deep rainwater. After purchasing the "bagoong" he turned around to return home but he stepped on an uncovered opening which could not be seen because of the dirty rainwater, causing a dirty and rusty four- inch nail, stuck inside the uncovered opening, to pierce the left leg

of plaintiff-petitioner penetrating to a depth of about one and ahalf inches. After administering first aid treatment at a nearby drugstore, his companions helped him hobble home. He felt ill anddeveloped fever and he had to be carried to Dr. Juanita Mascardo.Despite the medicine administered to him by the latter, his left leg swelled with great pain. He was then rushed to the Veterans Memorial Hospital where he had to be confined for twenty (20) days due to high fever and severe pain.

Upon his discharge from the hospital, he had to walk around with crutches for fifteen (15) days. His injury prevented him from attending to the school buses he is operating. As a result, he had to engage the services of one Bienvenido Valdez to supervise his business for an aggregate compensation of nine hundred pesos (P900.00). (Decision, AC-G.R. CV No. 01387, Rollo, pp. 13-20).

Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation under whose administration the Sta. Ana Public Market had been placed by virtue of a Management and Operating Contract (Rollo, p. 47).

The lower court decided in favor of respondents, the dispositive portion of the decision reading:

WHEREFORE, judgment is hereby rendered in favor of thedefendants and against the plaintiff dismissing the complaint with costs against the plaintiff. For lack of sufficient evidence, the counterclaims of the defendants are likewise dismissed. (Decision, Civil Case No. 96390, Rollo, p. 42).

As above stated, on appeal, the Intermediate Appellate Court heldthe Asiatic Integrated Corporation liable for damages but absolved respondent City of Manila.

193

Hence this petition.

The lone assignment of error raised in this petition is on whether or not the Intermediate Appellate Court erred in not ruling that respondent City of Manila should be jointly and severally liable with Asiatic Integrated Corporation for the injuries petitioner suffered.

In compliance with the resolution of July 1, 1985 of the First Division of this Court (Rollo, p. 29) respondent City of Manila filed its comment on August 13, 1985 (Rollo, p. 34) while petitioner filed its reply on August 21, 1985 (Reno, p. 51).

Thereafter, the Court in the resolution of September 11, 1985 (Rollo, p. 62) gave due course to the petition and required both parties to submit simultaneous memoranda

Petitioner filed his memorandum on October 1, 1985 (Rollo, p. 65)while respondent filed its memorandum on October 24, 1985 (Rollo,p. 82).

In the resolution of October 13, 1986, this case was transferred to the Second Division of this Court, the same having been assigned to a member of said Division (Rollo, p. 92).

The petition is impressed with merit.

As correctly found by the Intermediate Appellate Court, there is no doubt that the plaintiff suffered injuries when he fell into adrainage opening without any cover in the Sta. Ana Public Market.Defendants do not deny that plaintiff was in fact injured although the Asiatic Integrated Corporation tries to minimize theextent of the injuries, claiming that it was only a small puncture and that as a war veteran, plaintiff's hospitalization

at the War Veteran's Hospital was free. (Decision, AC-G.R. CV No.01387, Rollo, p. 6).

Respondent City of Manila maintains that it cannot be held liablefor the injuries sustained by the petitioner because under the Management and Operating Contract, Asiatic Integrated Corporationassumed all responsibility for damages which may be suffered by third persons for any cause attributable to it.

It has also been argued that the City of Manila cannot be held liable under Article 1, Section 4 of Republic Act No. 409 as amended (Revised Charter of Manila) which provides:

The City shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other City Officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or any other officers while enforcing or attempting to enforce said provisions.

This issue has been laid to rest in the case of City of Manila v. Teotico(22 SCRA 269-272 [1968]) where the Supreme Court squarely ruled that Republic Act No. 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of city officers" toenforce the provisions of said Act, "or any other law or ordinance or from negligence" of the City "Mayor, Municipal Board, or other officers while enforcing or attempting to enforcesaid provisions."

Upon the other hand, Article 2189 of the Civil Code of the Philippines which provides that:

194

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of defective conditions of roads,streets, bridges, public buildings and other public works under their control or supervision.

constitutes a particular prescription making "provinces, cities and municipalities ... liable for damages for the death of, or injury suffered by any person by reason" — specifically — "of thedefective condition of roads, streets, bridges, public buildings,and other public works under their control or supervision." In other words, Art. 1, sec. 4, R.A. No. 409 refers to liability arising from negligence, in general, regardless of the object, thereof, while Article 2189 of the Civil Code governs liability due to "defective streets, public buildings and other public works" in particular and is therefore decisive on this specific case.

In the same suit, the Supreme Court clarified further that under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach, that the defective public works belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality has either "control or supervision" over the public building in question.

In the case at bar, there is no question that the Sta. Ana PublicMarket, despite the Management and Operating Contract between respondent City and Asiatic Integrated Corporation remained underthe control of the former.

For one thing, said contract is explicit in this regard, when it provides:

II

That immediately after the execution of this contract,the SECOND PARTY shall start the painting, cleaning, sanitizing and repair of the public markets and talipapas and within ninety (90) days thereof, the SECOND PARTY shall submit a program of improvement, development, rehabilitation and reconstruction of the city public markets and talipapas subject to prior approval of the FIRST PARTY. (Rollo, p. 44)

xxx xxx xxx

VI

That all present personnel of the City public markets and talipapas shall be retained by the SECOND PARTY aslong as their services remain satisfactory and they shall be extended the same rights and privileges as heretofore enjoyed by them. Provided, however, that the SECOND PARTY shall have the right, subject to prior approval of the FIRST PARTY to discharge any of the present employees for cause. (Rollo, p. 45).

VII

That the SECOND PARTY may from time to time be required by the FIRST PARTY, or his duly authorized representative or representatives, to report, on the activities and operation of the City public markets and talipapas and the facilities and conveniences installed therein, particularly as to their cost of construction, operation and maintenance in connection with the stipulations contained in this Contract. (lbid)

195

The fact of supervision and control of the City over subject public market was admitted by Mayor Ramon Bagatsing in his letterto Secretary of Finance Cesar Virata which reads:

These cases arose from the controversy over the Management and Operating Contract entered into on December 28, 1972 by and between the City of Manila and the Asiatic Integrated Corporation, whereby in consideration of a fixed service fee, the City hired the services of the said corporation to undertake the physical management, maintenance, rehabilitation and development of the City's public markets and' Talipapas' subject to the control and supervision of the City.

xxx xxx xxx

It is believed that there is nothing incongruous in the exercise of these powers vis-a-vis the existence of the contract, inasmuch as the City retains the power of supervision and control over its public markets and talipapas under the terms of the contract. (Exhibit "7-A") (Emphasis supplied.)(Rollo, p. 75).

In fact, the City of Manila employed a market master for the Sta.Ana Public Market whose primary duty is to take direct supervision and control of that particular market, more specifically, to check the safety of the place for the public.

Thus the Asst. Chief of the Market Division and Deputy Market Administrator of the City of Manila testified as follows:

Court This market master is an employee ofthe City of Manila?

Mr. Ymson Yes, Your Honor.

Q What are his functions?

A Direct supervision and control over the market area assigned to him."(T.s.n.,pp. 41-42, Hearing of May 20, 1977.)

xxx xxx xxx

Court As far as you know there is or is there any specific employee assigned with the task of seeing to it that the Sta. AnaMarket is safe for the public?

Mr. Ymson Actually, as I stated, Your Honor, that the Sta. Ana has its own market master. The primary duty of that market master is to make the direct supervision and control of that particular market, the check or verifying whether the place is safe for public safety is vested in the market master. (T.s.n., pp. 2425, Hearing of July 27, 1977.) (Emphasis supplied.) (Rollo, p. 76).

Finally, Section 30 (g) of the Local Tax Code as amended, provides:

The treasurer shall exercise direct and immediate supervision administration and control over public markets and the personnel thereof, including those whose duties concern the maintenance and upkeep of the market and ordinances and other pertinent rules and regulations. (Emphasis supplied.) (Rollo, p. 76)

196

The contention of respondent City of Manila that petitioner should not have ventured to go to Sta. Ana Public Market during astormy weather is indeed untenable. As observed by respondent Court of Appeals, it is an error for the trial court to attributethe negligence to herein petitioner. More specifically stated, the findings of appellate court are as follows:

... The trial court even chastised the plaintiff for going to market on a rainy day just to buy bagoong. A customer in a store has the right to assume that the owner will comply with his duty to keep the premises safe for customers. If he ventures to the store on thebasis of such assumption and is injured because the owner did not comply with his duty, no negligence can

xx

xxi

xxii

xxiii

xxiv

xxv

xxvi

xxvii

xxviii

xxix

xxx

xxxi

xxxii

xxxiii

197

be imputed to the customer. (Decision, AC-G. R. CV No.01387, Rollo, p. 19).

As a defense against liability on the basis of a quasi-delict, one must have exercised the diligence of a good father of a family. (Art. 1173 of the Civil Code).

There is no argument that it is the duty of the City of Manila toexercise reasonable care to keep the public market reasonably safe for people frequenting the place for their marketing needs.

While it may be conceded that the fulfillment of such duties is extremely difficult during storms and floods, it must however, beadmitted that ordinary precautions could have been taken during good weather to minimize the dangers to life and limb under thosedifficult circumstances.

For instance, the drainage hole could have been placed under the stalls instead of on the passage ways. Even more important is thefact, that the City should have seen to it that the openings werecovered. Sadly, the evidence indicates that long before petitioner fell into the opening, it was already uncovered, and five (5) months after the incident happened, the opening was still uncovered. (Rollo, pp. 57; 59). Moreover, while there are findings that during floods the vendors remove the iron grills tohasten the flow of water (Decision, AC-G.R. CV No. 0 1387; Rollo,p. 17), there is no showing that such practice has ever been prohibited, much less penalized by the City of Manila. Neither

xxxiv

was it shown that any sign had been placed thereabouts to warn passersby of the impending danger.

To recapitulate, it appears evident that the City of Manila is likewise liable for damages under Article 2189 of the Civil Code,respondent City having retained control and supervision over the Sta. Ana Public Market and as tort-feasor under Article 2176 of the Civil Code on quasi-delicts

Petitioner had the right to assume that there were no openings inthe middle of the passageways and if any, that they were adequately covered. Had the opening been covered, petitioner could not have fallen into it. Thus the negligence of the City ofManila is the proximate cause of the injury suffered, the City istherefore liable for the injury suffered by the peti- 4 petitioner.

Respondent City of Manila and Asiatic Integrated Corporation being joint tort-feasors are solidarily liable under Article 2194of the Civil Code.

PREMISES CONSIDERED, the decision of the Court of Appeals is hereby MODIFIED, making the City of Manila and the Asiatic Integrated Corporation solidarily liable to pay the plaintiff P221.90 actual medical expenses, P900.00 for the amount paid for the operation and management of the school bus, P20,000.00 as moral damages due to pain, sufferings and sleepless nights and P10,000.00 as attorney's fees.

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SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Padilla, Bidin and Cortes JJ., concur.

 

THE MUNICIPALITY OF SAN JUAN, METROMANILA,

Petitioner,

 

 

 

        - versus -

 

 

 

THE HON. COURT OF APPEALS, LAURA BIGLANG-AWA, METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), and KWOK CHEUNG,

Respondents.

  G.R. No. 121920

 

  Present:

 

     PANGANIBAN, J., Chairman     

    SANDOVAL-GUTIERREZ,

    CORONA,

    CARPIO MORALES, and

    GARCIA, JJ.

 

  Promulgated:

 

      August 9, 2005

 

 x-------------------------------------------------------------------------------------x

 

 

 

 

D E C I S I O N

 

GARCIA, J.:

                       

 

 

 

199

In this appeal by way of a petition for review on certiorari

under Rule 45 of the Rules of Court, petitioner Municipality of

San Juan urges us to annul and set aside the decision dated 08

September 1995[1] of the Court of Appeals in CA-G.R. CV No.

38906, affirming with modification an earlier decision of the

Regional Trial Court at Pasig City in an action for damages

thereat commenced by private respondent Laura Biglang-awa

against, among others, the herein petitioner.

 

The material facts are not at all disputed:

 

Under a “Contract For Water Service Connections”[2] entered into by

and between the Metropolitan Waterworks and Sewerage System

(MWSS) and Kwok Cheung as sole proprietor of K.C. Waterworks

System Construction (KC, for short), the former engaged the

services of the latter to install water service connections. 

Article 11 (Scope of Work), paragraph 2.01 of the agreement

provides:

 

            2.01 The CONTRACTOR agrees to installwater service connections, transfer location oftapping to the nearest main, undertake separation ofservice connection, change rusted connections, withinthe service area of the MWSS specified in each joborder covered by this Contract, from the water main upto the installation of the verticals.  Tapping of theservice pipe connection and mounting of water metershall be undertaken exclusively or solely by the MWSS;

 

On 20 May 1988, KC was given a Job Order by the South Sector

Office of MWSS to conduct and effect excavations at the corner of

M. Paterno and Santolan Road, San Juan, Metro Manila, a national

road, for the laying of water pipes and tapping of water to the

respective houses of water concessionaires.

 

That same day, KC dispatched five (5) of its workers under

Project Engineer Ernesto Battad, Jr. to conduct the digging

operations in the specified place.  The workers installed four

(4) barricades made up of two-inch thick GI pipes welded

together, 1.3 meters wide and 1.2 meters high, at the area where

the digging is to take place.  The digging operations started at

9 o’clock in the morning and ended at about 3 o’clock in the

afternoon.  The workers dug a hole one (1) meter wide and 1.5

meters deep, after which they refilled the excavated portion of

200

the road with the same gravel and stone excavated from the area. 

At that time, only ¾ of the job was finished in view of the fact

that the workers were still required to re-excavate that

particular portion for the tapping of pipes for the water

connections to the concessionaires.

 

Meanwhile, between 10 o’clock and 11 o’clock in the evening

of 31 May 1988, Priscilla Chan was driving her Toyota Crown car

with Plate No. PDK 991 at a speed of thirty (30) kilometers per

hour on the right side of Santolan Road towards the direction of

Pinaglabanan, San Juan, Metro Manila.  With her on board the car

and seated on the right front seat was Assistant City Prosecutor

Laura Biglang-awa. The road was flooded as it was then raining

hard.  Suddenly, the left front wheel of the car fell on a

manhole where the workers of KC had earlier made excavations.  As

a result, the humerus on the right arm of Prosecutor Biglang-awa

was fractured.  Thereupon, Priscilla Chan contacted Biglang-awa’s

husband who immediately arrived at the scene and brought his wife

to the Cardinal Santos Hospital.

 

Dispatched to the scene of the accident to conduct an

investigation thereof, Pfc. Felix Ramos of the Traffic Division

of the San Juan Police Station, upon arriving thereat, saw

Priscilla Chan’s car already extracted from the manhole and

placed beside the excavated portion of the road.  According to

this police officer, he did not see any barricades at the scene

when he arrived less than an hour later.  A Traffic Accident Investigation

Report[3] was thereafter prepared and signed by Pfc. Ramos.

 

At the hospital, the attending physician, after having

performed a close reduction and application of abduction splint

on Biglang-awa, placed a plastic cast on her right arm.  Barring

complications, the injury she suffered was expected to heal in

four (4) to six (6) weeks, although she must revisit her doctor

from time to time for check-up and rehabilitation.  After some

time, the plastic cast was removed.  Biglang-awa sustained no

deformity and no tenderness of the area of the injury but she

could not sleep on her right side because she still felt pain in

that portion of her body.  A Medical Certificate[4] on her injuries was

issued by Dr. Antonio Rivera.

 

Consequent to the foregoing incident, Biglang-awa filed

before the Regional Trial Court at Pasig, Metro Manila a

complaint for damages against MWSS, the Municipality of San Juan

and a number of San Juan municipal officials. 

201

 

Later, Biglang-awa amended her complaint twice.  In her

second amended complaint, she included KC as one of the

defendants.

       

        After due proceedings, the trial court rendered judgment

in favor of Biglang-awa adjudging MWSS and the Municipality of

San Juan jointly and severally liable to her.  Dated 29 February

1992, the decision[5] dispositively reads in full, thus:

 

WHEREFORE, foregoing considered, judgment is hereby rendereddeclaring the Municipality of San Juan, Metro Manila and the Metropolitan Waterworks and Sewerage System jointly and severallyliable to the plaintiff [Biglang-awa].  Both defendants are ordered to pay plaintiff the amounts of:

 

(a)     P18,389.55, for actual damages suffered by theplaintiff;

 

(b)    P15,000.00, for moral damages;

 

(c)     P10,000.00, for exemplary damages;

 

(d)    P5,000.00, for attorney’s fees; and

 

(e)     to pay the costs.

 

SO ORDERED.

 

Unable to accept the judgment, both Biglang-awa and the

Municipality of San Juan went to the Court of Appeals via ordinary

appeal under Rule 41 of the Rules of Court, which appeal was

thereat docketed as CA-G.R. CV No. 38906.

 

As stated at the outset hereof, the appellate court, in a

decision dated 08 September 1995, affirmed with modification that

of the trial court, to wit:

 

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IN THE LIGHT OF ALL THE FOREGOING, the Decision

appealed from is AFFIRMED but modified as follows:

 

1.                             The Appellees KC and

MWSS and the Appellant San Juan are hereby ordered to

pay, jointly and severally, to [Biglang-awa] the

amounts of P50,000.00 by way of moral damages,

P50,000.00 by way of exemplary damages and P5,000.00 by

way of attorney’s fees, without prejudice to the right

of the Appellee MWSS for reimbursement from the

Appellee KC under the Contract, Exhibit “3-MWSS”:

 

2.                             The counterclaims of the

Appellees and Appellant San Juan and the cross-claim of

the latter are DISMISSED.  Without pronouncement as to

costs.

 

SO ORDERED.  (Words in bracket supplied).

 

Therefrom, petitioner Municipality of San Juan came to this Court

thru the present recourse, on its submissions that:

 

I.

 

THE RESPONDENT APPELLATE COURT HAS DECIDED A QUESTION

OF SUBSTANCE NOT HEREFORE DECIDED BY THE SUPREME

COURT.

  

II.

 

THE RESPONDENT APPELLATE COURT HAS DECIDED A QUESTION

PROBABLY NOT IN ACCORD WITH THE LAW AND JURISPRUDENCE.

 

203

With no similar recourse having been taken by the other parties,

the Court shall limit itself to the liability or non-liability of

petitioner municipality for the injury sustained by Biglang-awa.

 

In denying liability for the subject accident, petitioner

essentially anchored its defense on two provisions of laws,

namely: (1) Section 149, [1][z] of Batas Pambansa Blg. 337,

otherwise known as the Local Government Code of 1983; and (2)

Section 8, Ordinance 82-01, of the Metropolitan Manila

Commission.

 

Petitioner maintains that under Section 149, [1][z] of the Local

Government Code,[6] it is obliged to provide for the

construction, improvement, repair and maintenance of only municipal

streets, avenues, alleys, sidewalks, bridges, parks and other

public places.  Ergo, since Santolan Road is concededly a national

and not a municipal road, it cannot be held liable for the

injuries suffered by Biglang-awa on account of the accident that

occurred on said road.

 

Additionally, petitioner contends that under Section 8, Ordinance

No. 82-01, of the Metropolitan Manila Commission, which reads:

 

            In the event of death, injury and/or

damages caused by the non-completion of such works

and/or failure of one undertaking the work to adopt

the required precautionary measures for the protection

of the general public or violation of any of the terms

or conditions of the permit, the permittee/excavator

shall assume fully all liabilities for such death,

injury or damage arising therefrom.  For this purpose,

the excavator/permittee shall purchase insurance

coverage to answer for third party liability,

 

204

 

only the Project Engineer of KC and MWSS can be held liable for

the same accident.

 

The petition must have to be denied. 

 

Jurisprudence[7] teaches that for liability to arise under

Article 2189[8] of the Civil Code, ownership of the roads,

streets, bridges, public buildings and other public works, is not

a controlling factor, it being sufficient that a province, city

or municipality has control or supervision thereof.  This, we

made clear in City of Manila vs. Teotico, et al[9]:

 

At any rate, under Article 2189 of the Civil Code, it

is not necessary for the liability therein established

to attach that the defective roads or streets belong to

the province, city or municipality from which

responsibility is exacted. What said article requires

is that the province, city or municipality have either

"control or supervision" over said street or road. x x

x

       

It is argued, however, that under Section 149, [1][z] of the

Local Government Code, petitioner has control or supervision only

over municipal and not national roads, like Santolan Road.

 

        Sadly, petitioner failed to take note of the other

provisions of Section 149 of the same Code, more particularly the

following:

 

Section 149.  Powers and Duties.  – (1) The sangguniang bayan shall:

           

205

(bb) Regulate the drilling and excavation of the ground forthe laying of gas, water, sewer, and other pipes; thebuilding and repair of tunnels, sewers, drains and othersimilar structures; erecting of poles and the use ofcrosswalks, curbs and gutters therein, and adopt measures toensure public safety against open canals, manholes, livewires and other similar hazards to life and property, andprovide just compensation or relief for persons sufferingfrom them; (Underscoring supplied)

       

Clear it is from the above that the Municipality of San Juan can

“regulate” the drilling and excavation of the ground for the

laying of gas, water, sewer, and other pipes within its

territorial jurisdiction. 

 

Doubtless, the term “regulate” found in the aforequoted provision

of Section 149 can only mean that petitioner municipality

exercises the power of control, or, at the very least,

supervision over all excavations for the laying of gas, water,

sewer and other pipes within its territory.

 

We must emphasize that under paragraph [1][bb] of Section 149,

supra, of the Local Government Code, the phrases “regulate the

drilling and excavation of the ground for the laying of gas,

water, sewer, and other pipes”, and “adopt measures to ensure

public safety against open canals, manholes, live wires and other

similar hazards to life and property”, are not modified by the

term “municipal road”. And neither can it be fairly inferred from

the same provision of Section 149 that petitioner’s power of

regulation vis-à-vis the activities therein mentioned applies only in

cases where such activities are to be performed in municipal

roads.  To our mind, the municipality’s liability for injuries

caused by its failure to regulate the drilling and excavation of

the ground for the laying of gas, water, sewer, and other pipes,

attaches regardless of whether the drilling or excavation is made

on a national or municipal road, for as long as the same is

within its territorial jurisdiction.

 

206

We are thus in full accord with the following pronouncements of

the appellate court in the decision under review:

           

While it may be true that the Department of Public

Works and Highways may have issued the requisite

permit to the Appellee KC and/or concessionaires for

the excavation on said road, the Appellant San Juan is

not thereby relieved of its liability to [Biglang-awa]

for its own gross negligence.  Indeed, Evangeline

Alfonso, the witness for the Appellant San Juan

unabashedly [sic] admitted, when she testified in the

Court a quo, that even if the Department of Public

Works and Highways failed to effect the requisite

refilling, the Appellant San Juan was mandated to

undertake the necessary precautionary measures to

avert accidents and insure the safety of pedestrians

and commuters:

 

x x x

 

The [petitioner] cannot validly shirk from its

obligation to maintain and insure the safe condition

of the road merely because the permit for the

excavation may have been issued by a government entity

or unit other than the Appellant San Juan or that the

excavation may have been done by a contractor under

contract with a public entity like the Appellee MWSS.

 

            Neither is the [petitioner] relieved of

liability based on its purported lack of knowledge of

the excavation and the condition of the road during

the period from May 20, 1988 up to May 30, 1988 when

the accident occurred.  It must be borne in mind that

the obligation of the [petitioner] to maintain the

safe condition of the road within its territory is a

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continuing one which is not suspended while a street

is being repaired (Corpus Juris Secundum, Municipal

Corporations, page 120).  Knowledge of the condition

of the road and the defects and/or obstructions on the

road may be actual or constructive.  It is enough that

the authorities should have known of the aforesaid

circumstances in the exercise of ordinary care (City

of Louiseville versus Harris, 180 Southwestern

Reporter. page 65).  In the present recourse, Santolan

Road and the Greenhills area coming from Ortigas

Avenue going to Pinaglabanan, San Juan, Metro Manila

is a busy thoroughfare.  The gaping hole in the middle

of the road of Santolan Road could not have been

missed by the authorities concerned.  After all, the

[petitioner] San Juan is mandated to effect a constant

and unabated monitoring of the conditions of the roads

to insure the safety of motorists.  Persuasive

authority has it that:

 

It is the duty of the municipal

authorities to exercise an active

vigilance over the streets; to see that

they are kept in a reasonably safe

condition for public travel.  They cannot

fold their arms and shut their eyes and

say they have no notice.  (Todd versus

City of Troy, 61 New York 506).  (Words in

bracket supplied).

 

        Nor can petitioner seek shelter on Section 8 of Ordinance

82-01 of the Metropolitan Manila Commission.   

        Concededly, Section 8 of the Ordinance makes the

permittee/excavator liable for death, injury and/or damages

caused by the non-completion of works and/or failure of the one

undertaking the works to adopt the required precautionary

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measures for the protection of the general public. Significantly,

however, nowhere can it be found in said Ordinance any provision

exempting municipalities in Metro Manila from liabilities caused

by their own negligent acts.  Afortiori, nothing prevents this

Court from applying other relevant laws concerning petitioner’s

liability for the injuries sustained by Biglang-awa on that

fateful rainy evening of 31 May 1988. 

 

WHEREFORE, the instant petition is DENIED and the assailed

decision of the appellate court AFFIRMED. 

 

Costs against petitioner.

          SO ORDERED.

 

 CANCIO C. GARCIAAssociate Justice

E. BUILDING PROPRIETORS (ART 2190-2193)

G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs.COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.

R E S O L U T I O N

 

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of theCourt of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsiderationand directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987denied petitioners' motion for reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outrightfor not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not

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suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis ofthe foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to filean appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied bythe appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a graveabuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. Itcorrectly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying themotion for reconsideration, promulgated on July 30, 1986 (142

SCRA 208), this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R.No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the ruleand went further to restate and clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period fromthe promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still within thegrace period, which expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]

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In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it isno longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to thepromulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas caseshould not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition totheir becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of theSupreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as theSupreme Court Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decisionholding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure isresponsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoringshop and , therefore, petitioners prior negligence should be

disregarded, since the doctrine of "last clear chance," which hasbeen applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

******NOTE: JOSE DINGCONG vs. HALIM KANAAN, NASRI KANAAN,y MICHAEL KANAAN G.R. No. L-47033  April 25, 1941, is in FULL SPANISH LANGUAGE nakalimot nako unsaon pag translate.

F. ARCHITECTS AND ENGINEERS (ART. 2192 AND 1723)

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