People vs.

Sazon For the death of Wilfredo Longno, alias, "Inday," on September 17, 1983 at Barangay Progreso, Lapuz, La Paz, Iloilo City, herein accused-appellant Gerardo Sazon, alias "Insik," and Cornelio Altejos, alias "Toto," were charged with murder before the Regional Trial Court of Iloilo, 1 in an amended information dated October 18, 1983. 2 However, only herein accused was arraigned, and pleaded not guilty, since Cornelio Altejos was not apprehended and has since remained at large. After trial, appellant was found guilty and sentenced to serve the penalty of reclusion perpetua. He was further ordered to pay the heirs of the deceased the amount of P16,628.40 representing hospital bills, expenses for the coffin, tomb, wake and attorney's fees, and P30,000.00 as indemnity for the death of the victim. The antecedental facts which led to the filing of the criminal action below are herein under set forth as synthesized by the court a quo from the testimonies of the witnesses, 3 and as clarified and amplified by us from the transcripts of the notes of the hearings. On September 15, 1983, in the barangay aforementioned, a certain Ernesto Romualdez was accosted by appellant near the barangay hall for allegedly circulating the rumor that appellant and his companions were engaged in stealing. Upon confrontation, appellant boxed Romualdez which caused the latter to fall. Wilfredo Longo, who was then present at the scene, approached and helped the fallen Romualdez and pushed appellant away. This apparently angered appellant who, in his native dialect said "Andam ka lang Inday kay patyon ta guid," ("Watch out Inday for I will kill you") to which Longno retorted, "Just do it." Two days later, or on September 17, 1983, at about 8:00 o'clock P.M., appellant and his cousin, Cornelio Altejos, were drinking softdrinks at the shire of Gloria Aposaga when Longno passed by. Thereupon, appellant and Altejos left their softdrinks half-assumed and followed Longno. Longno eventually reached the bench near the public faucet where the group of Massulini Dullete, Samuel Canoso and Nathaniel Ramos were sitting. He joined the group in their conversation by saying, "Upon ako dira." ("I'll go with what you say."). Shortly thereafter, appellant and Altejos arrived and appellant accosted and pointed a gun at Longno, saying, "Maano ka?" ("What are you going to do?"). Longno then faced appellant and said, "Brod, tiruha lang." ("Brod, just shoot.") Apparently irked by the response, appellant fired the gun, hitting Longno in the left forearm. Dullete, Canoso and Ramos then scampered for safety as appellant and the wounded Longno grappled for the gun. It was while the two were thus struggling that Altejos stabbed Longno in the chest, after which both appellant and Altejos ran away. Longno then came out of the footwalk shouting, "Tay tiniro ako ni Insik, binuno ako ni Toto." ("Father, I was shot by Insik and stabbed by Toto."). He was able to run about thirty (30) meters before he fell. His father, Julio Longno, ran to his son who was then lying sprawled on the ground. Rushed to the St. Paul's Hospital, Wilfredo Longno died. Later, it was established that the cause of death was hemorrhage, secondary to stab wound. Appellant's version of the incident, however, differs. He admits having shot Longno but pleads selfdefense. He claims that on September 17, 1983, he left the house of his father-in-law at about 8:00 o'clock P.M. with his cousin, Altejos. The latter had asked for help to have a .22 caliber revolver repaired and appellant was taking the revolver to a policeman friend of his. On their way, appellant saw Longno from a distance. Upon his approach, Longno allegedly said, "Insik, I heard that you are not afraid of me. Maybe you want to be taught a lesson." 4 Appellant claims that the deceased had a revolver tucked in his waist and was about to draw the same. He, therefore, parried the gun but it fired hitting one of appellant's left fingers which was later amputated. It was then that appellant pulled out his gun and shot Longno in the forearm. Appellant and Longno afterwards grappled for the gun. Altejos allegedly tried to separate appellant and Longno but he was brushed aside by the latter. In the course of their struggle, Altejos then shouted to appellant, "I stabbed Inday, run," and so he and Altejos ran away. 5 Appellant, in his brief, makes the following assignment of errors: 1. The trial court erred in not acquitting the accused-appellant for having acted in complete self-defense. 2. The trial court erred in convicting the accused-appellant of the crime of murder and in imposing the penalty of reclusion perpetua when the prosecution has not established by competent evidence the existence of conspiracy and the presence of the aggravating circumstances of evident premeditation and abuse of superior strength. 6 Appellant's version does not inspire credence. Well-entrenched is the rule that where the accused invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself. He must rely on the strength of his own evidence and not on the weakness of the prosecution. For, even if the prosecution evidence is weak, it could not be disbelieved after the accused himself had admitted the killing. 7 It is a statutory and doctrinal requirement that for the justifying circumstance of self-defense, the presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself. 8 In the present case, the burden of evidence having been shifted, we hold that the defense failed to establish the primary element of unlawful aggression on the part of the victim and, therefore, the plea of self-defense must fail. The narrations of the sequence of events by the accused, and by the lone alleged eyewitness for the defense, Jose Randera, are unconvincing primarily on account of their inherent inconsistency and conflict with each other.

The testimonies aforequoted reveal an inconsistency on the matter of the gun for which appellant and the victim supposedly grappled. While appellant claimed that the victim's weapon fell to the ground, witness Randera stated that appellant and the victim still grappled for the latter's gun. The latter statement is itself difficult to imagine since appellant at that precise moment was also allegedly holding with his right hand the gun which he used in shooting Longno. It is necessary to stress that such inconsistency cannot be considered a minor detail since the homogeneity of the answers to the inquiry could very well have established the existence of not only a single gun. Had this prevarication not been exposed, said testimonies could have bolstered the defense theory that the victim himself carried a gun which he used to assault the appellant and thus establish the element of unlawful aggression contrived by the defense. Furthermore, the credibility of witness Randera is shattered by this finding of the trial court which is sustained by the evidence: The testimony of security guard Jose Randera deserves scant consideration not only because he admitted that he was one of those threatened by the deceased Wilfredo Longno but also because he wilfully falsified the truth when he testified that the deceased was shot and hit by the accused on the body and that he saw blood come out just below the right breast of the deceased. The physical evidence in this case showed that there was no wound on the right breast of the deceased nor on any part of his body. The gunshot wound sustained by the deceased was only on his left forearm. Considering that he testified that there were no other persons there during the incident except the accused, the deceased and Cornelio Altejos when the overwhelming weight of evidence is that there were a lot of other people during the incident (this) showed that this witness had small regard for the truth. 11 Coming back to appellant's representations in court, his vacillation as to what he allegedly did after Altejos stabbed the victim is another instance which renders his version highly suspect. While stating on direct examination that he ran to the main road, 12 he claimed on cross-examination that he only walked a short distance and then went to the hospital upon seeing that his hand was wounded. 13 The latter statement is itself inconsistent with his earlier declaration during the same proceeding that he was brought by a policeman to the hospital. 14 This irresolution on the part of the appellant was obviously to avoid any imputation of guilt against him arising from his flight. 15 At any rate, unlawful aggression on the part of the victim is further negated by the physical evidence in the case. Again, we quote the trial court with approval: The testimony of the accused Gerardo Sazon that the deceased was armed with a gun and fired at him is not borne out by the physical evidence in this case. The paraffin test conducted on the cadaver of the deceased showed that the hands of the deceased were negative for gunpowder residues indicating that he did not fire a gun during the incident. The other parts of his body like his forearm and his abdomen bore strong traces of gunpowder residues because of the burst of the gun of the accused. The court is convinced beyond reasonable doubt that there was only one gun during the incident and that the gun belonged to and/or was used by the accused Gerardo Sazon. That a part of one of his fingers was blown off at very close range, according to Dr. Ely Canja strongly indicated that the accused accidentally hit his finger when he and the deceased grappled for the possession of the gun. 16 In contrast, appellant was found positive for the presence of gunpowder residues (nitrates). While the presence or absence of nitrates cannot indeed be considered conclusive proof that one has or has not fired a gun, the following testimony on direct examination by prosecution witness Zenaida Sinfuego a forensic chemist whose expertise on the matter was sufficiently established, yields this verification: Parenthetically, it is true that the bad moral character of the offended party may be proven in evidence to establish in any reasonable degree the probability of the offense charged, 19 e.g., the quarrelsome nature of the victim may tend to establish that he started the unlawful aggression. Nonetheless, such evidence, seeking to establish as it does only a probability, cannot prevail over facts sufficiently proven by the prosecution during the trial belying such aggression. These observations find application in the instant case where the defense presented and now argue on character evidence consisting of criminal charges involving minor offenses which had been filed against the deceased, but not one of which resulted in conviction and were in fact dismissed except for one case which was sent to the archives. 20 Obviously, whether or not appellant acted in self-defense is essentially a question of fact. Being so and in the absence of any showing that the Court a quo failed to appreciate facts or circumstances of weight and substance that would have altered its conclusion, the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies. No compelling reason, therefore, lies for this Court to disturb the trial court's finding that appellant did not act in self-defense. 21 The Court, however, holds that appellant, albeit guilty, can only be convicted of homicide and not murder. The trial court correctly held that the killing was not accompanied by treachery. It, however, ruled that there was evident premeditation on the part of appellant. We find the records sorely wanting in evidence to support the latter conclusion. The fact that appellant told the deceased that he would kill him and that two days later, after the deceased passed by the store where appellant and Altejos were drinking softdrinks the latter followed the former and inflicted the fatal blows, cannot adequately sustain a conclusion of premeditated killing. To justify its attendance, the prosecution must prove (1) the time when the offender determined to commit the crime, (2) an act manifestly indicating that the culprit has clung to his determination, and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect upon the consequences of his act. 22

In the case at bar, the first and second elements are lacking. The angry outburst of appellant in that incident of September 15, 1983, warning the victim that the former would kill him, does not convince us that, under the circumstances therein, appellant as of that time had already decided to kill the victim. A homicidal premeditation is studiedly conceived and not impulsively adopted just like that and, worse, publicly announced. It was more of a spontaneous expression of resentment or bravado on the part of appellant. Again, the circumstance that appellant and Altejos were by chance at the store when the victim passed by cannot be taken as manifestly indicating that appellant had clung to his determination to kill the victim. No evidence was presented to show that appellant purposely waited there for the deceased. Nor was there any showing that the deceased frequently passed by the same route as to warrant and explain appellant's waiting for the former at that place. Indeed, that the meeting may have been purely accidental is not a remote possibility. We are more inclined to believe that it was the belligerent and defiant demeanor of the victim when confronted by appellant near the public faucet that precipitated assault. Under such considerations and there being no other evidence to prove that the death of the victim was the result of meditation, calculation or reflection, evident premeditation cannot be appreciated to qualify the killing to murder. 23 The circumstances qualifying or aggravating the act must be proved in an evident and incontestable manner. They must be proved as conclusively as the acts constituting the offense. 24 Thus, for the same reason, the aggravating circumstance of abuse of superior strength cannot be appreciated in this case. Superior strength may aggravate or qualify a crime, only if it is clearly shown that there was deliberate intent to take advantage of it. 25 In the absence of any evidence to show that the accused purposely sought to use their superior strength to their advantage in the present case, a finding to that effect by the trial court cannot be sustained. Finally, the fact that appellant did not inflict the mortal wound upon the deceased is of no moment, since the existence of conspiracy was satisfactorily shown by the evidence. The coordinated acts of appellant and Altejos of immediately following the victim and jointly confronting him thereafter reveal a concordance and unity of thought which resulted in the encounter. The circumstances that after the accused shot the victim in the forearm and, while he and the victim were grappling for appellant's gun, Altejos stabbed the victim to death, indicate closeness and coordination of their action geared towards a common purpose, that is, to kill the victim. 26 Proof of a previous agreement to commit the crime is not absolutely essential to establish a conspiracy. It is sufficient that the accused be shown to have acted in concert pursuant to the same objective, 27 as such circumstance is invariably indicative of a conspiratorial agreement. It bears mention, at this point, that while we have ruled out evident premeditation in the case, this does not negate the existence of a conspiracy. True, conspiracy generally involves evident premeditation, but this circumstance requires for its raison d' etre a sufficient time in a juridical sense for the accused to meditate and reflect on the consequences of his intended action. Such time element is not an indispensable requirement for a conspiracy to exist. 28 Consequently, we find that there was a conspiracy between appellant and Altejos although, for lack of conclusive showing, we cannot consider evident premeditation against appellant. The rule is that where a conspiracy is proven, a showing as to who inflicted the fatal wound is not required to sustain a conviction. 29 The act of one in killing the victim becomes the act of all the accused. Insofar as Cornelio Altejos is concerned, however, the trial court never acquired jurisdiction over him and he can neither be convicted nor exculpated herein. References in this judgment to him are, therefore, obiter and with no binding effect on him. 30 WHEREFORE, the judgment of the trial court is MODIFIED. Accused-appellant Gerardo Sazon is declared GUILTY beyond reasonable doubt of the crime of homicide and is hereby sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal. The award by the lower court of the items of civil liability to be paid by accused-appellant to the heirs of the deceased is hereby MODIFIED by disallowing the grant of attorney's fees for lack of basis, and increasing the death indemnity to P50,000.00 in accordance with the policy adopted by the Court en banc on August 30,1990. ________ Air France v. Rafael Carrascoso + CA (1966) / Sanchez Facts Rafael Carrascoso was part of a group of pilgrims leaving for Lourdes. Air France, through PAL, issued to Carrascoso a first class round trip ticket. From Manila to Bangkok, he traveled in first class but at Bangkok, the manager of Air France forced him to vacate his seat, because a "white man" had a "better right" to it. He refused and even had a heated discussion with the manager but after being pacified by fellow passengers, he reluctantly gave up the seat. Air France asserts that the ticket does not represent the true and complete intent and agreement of the parties, and that the issuance of a first class ticket did not guarantee a first class ride (depends upon the availability of seats). CFI and CA disposed of this contention. Issue and Holding WON Carrascoso was entitled to the first class seat he claims. YES

Ratio On CA's decision Air France charges that CA failed to make complete findings of fact on all issues presented. SC says that so long as CA's decision contains the facts necessary to warrant its conclusions, there is nothing wrong in withholding any specific finding of facts with respect to the evidence for the defense.

On the seat issue If a first-class ticket holder is not entitled to a corresponding seat, what security can a passenger have? It's very easy to strike out the stipulations in the ticket and say that there was a contrary verbal agreement. There was no explanation as to why he was allowed to take a first class seat before coming to Bangkok if indeed he had no seat or if someone had a better right to it.

On contract to transport, QD, etc. This is different in kind and degree from any other contractual obligation because of the relation which an air carrier sustains with the public. Passengers do not contract merely for transportation as they have a right to be treated by the employees with kindness, respect, courtesy, consideration. What happened was a violation of public duty by Air France--a case of QD, so damages are proper. A case was cited wherein it was said that although the relation of passenger and carrier is contractual in origin and nature, the act that breaks the K may be also a tort. On the issue of award of damages Air France assails CA's award of moral damages, claiming that since Carrascoso's action is based on breach of contract, there must be an averment of fraud or bad faith in order to avail of said award. While there was no specific mention of "bad faith," it may be drawn from the facts and circumstances set forth. Deficiency in the complaint, if any, was cured by evidence.

Allegations in the complaint on this issue: 1. There was a K to furnish plaintiff a first class passage covering the Bangkok-Teheran leg 2. This K was breached when Air France failed to furnish first class transpo at Bangkok 3. There was bad faith when the manager compelled Carrascoso to leave his seat after he was already seated and to transfer to the tourist class, thereby making him suffer inconvenience, embarrassment, humiliation, etc. bad faith - state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes See NCC 21. Upon the provisions of NCC 2219 (10), moral damages are recoverable. Exemplary damages are well awarded also, since NCC gives the court power to grant such in K and QK, with the condition that the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. __________________ Zulueta vs. Pan American World Airways4 SCRA 397 Facts : Plaintiff Zulueta, his wife and daughter were passengers aboard defendants plane from Honolulu to Manila. Upon reaching Wake Island the passengers were advised that they could disembark for a stopover for about30 minutes. Plaintiff went to the toilet at the terminal building but finding it full walked 200 yards away. Upon returning he told an employee of the defendant that they almost made him miss the flight because of a defective announcing system. He had a discussion with either the plan captain or the terminal manager. He was told that they would open his bags which herefused and he warned them of the consequences. Just the same they opened his bags and found nothing prohibited. They forced him to go out of the plane and left him at Wake Island. His wife had to send him money andhe was able to leave Wake Island and return to Manila thru Honolulu and Tokyo after two days. This action was to recover damages from the defendant. Issue: WON moral damages may be recovered. Held : The records amply establish plaintiffs right to recover both moral and exemplary damages. Indeed, the rude and rough reception plaintiff received at the hands of Sitton or Captain Zentner when the latter met him at the ramp (What in the hell do you think you are? Get on that plane); the menacing attitude of

Zentner or Sitton and the supercilious manner in which he had asked plaintiff to open his bags (open your bag, and when told that a fourth bag was missing, I dont give a damn); the abusive language and highly scornful reference to plaintiffs as monkeys by one of PAN AMs employees (who turning to Mrs. Zulueta remarked, will you pull these three monkeys out of here?); the unfriendly attitude, the ugly stares and unkind remarks to which plaintiffs were subjected, and their being cordoned by men in uniform as if they were criminals, while plaintiff was arguing with Sitton; the airline officials refusal to allow plaintiff to board the plane on the pretext that he was hiding a bomb in his luggage and their arbitrary and highhandeddecision to leave him in Wake; Mrs. Zuluetas having suffered a nervousbreakdown for which she was hospitalized as a result of the embarrassment, insults and humiliations to which plaintiffs were exposed by the conduct of PAN AMs employees; Mrs. Zulueta having suffered shame, humiliation and embarrassment for the treatment received by her parents at the airport all these justify an award for moral damages resulting from mental anguish,serious anxiety, wounded feelings, moral shock, and social humiliation thereby suffered by plaintiffs. Plaintiffs were awarded Pesos 500,000.00 and moral damages, Pesos 200,000.00 exemplary damages, Pesos 75,000.00attorneys fees and Pesos 5,502.85 actual damages. _________

DAVID INES and HORTENCIA CASTRO-INES, petitioners, vs. COURT OF APPEALS and DIONISIO GERONIMO, respondents.

FRANCISCO, J.: Petitioners spouses David Ines and Hortencia Castro-Ines filed an action before the Regional Trial Court to annul a deed of sale over their conjugal residential house and lot in favor of private respondents spouses Geronimo. The trial court declared the deed of sale void as to the one-half conjugal share of David Ines in the subject property due to the forgery of his signature and the other half belonging to his wife as equitable mortgage. Private respondents were ordered to reconvey the one-half share of the wife upon the return of the sum of P150,000.00, the consideration of the contract. Petitioners appealed to the Court of Appeals on the ground that the husband's forged signature did not bind the conjugal partnership, hence the entire contract is voidable as the consent of an indispensable party, the husband, was lacking. Private respondents did not appeal. Public respondent Court of Appeals 1 sustained petitioners' contention, declared the deed of sale void in its entirety and ordered private respondents to reconvey the entire subject property in favor of petitioners who were again ordered to return the P150,000.00 consideration they received from the sale, but with legal interest from April 15, 1982 until fully paid. Petitioners' motion for the partial reconsideration of the decision to delete the imposition of legal interest on the amount of P150,000.00 was subsequently denied. Hence this petition under Rule 45 of the Revised Rules of Court, assigning a lone assignment of error, to wit: THE COURT OF APPEALS ERRED IN AWARDING "LEGAL INTEREST" IN FAVOR OF DEFENDANTS (NOW PRIVATE RESPONDENTS) WHO DID NOT APPEAL FROM THE TRIAL COURT'S DECISION WHICH DID NOTAWARD ANY SUCH "LEGAL INTEREST". 2 In support thereto, petitioners argue that a party who has not himself appealed cannot obtain from the appellate court any affirmative relief other than those granted in the decision of the court below. Thus, they maintain that the award of legal interest, an affirmative relief granted by the respondent court, is erroneous as private respondents never appealed from the trial court's decision which did not award such interest. We find the appeal unmeritorious. The respondent court ruled for the return of the contract price of P150,000.00 with legal interest over the subject property to private respondents with the following justification which we quote with approval: . . . Since the sale is annulled the parties are to be governed by Article 1398 of the Civil Code whereunder they shall restore to each other the things which have been the subject matter of the contract, with their fruits, and the price with interest; the same precept is substantially embodied in Article 1385 in reference to rescission of contracts. Indeed even the principle against unjust enrichment (Article 22, Civil Code) would eschew a contrary conclusion. 3 Furthermore, in resolving the petitioner's motion for reconsideration to delete the award of interest, respondent court correctly explained that the imposition of legal interest on the amount due was made not because the appellees sought affirmative relief but because the award of legal interest on the amount due is a necessary consequence of the finding that the Contract of Sale executed by appellant Hortencia Ines is void in its entirety, and in the exercise of its appellate jurisdiction it may resolve or consider errors not assigned in the appellant's brief when it is necessary for a

just, fair and equitable resolution of the case, or when an issue is closely related to an error properly assigned in the appellants' brief and upon which the resolution of an assigned error is dependent. 4 To the above quoted justification, we must moreover add that the award of legal interest is based on equitable grounds duly sanctioned by the Civil Code under Article 2210 which provides: Interest may, in the discretion of the court, be allowed upon damages awarded for breach of contract. Thus, in De Lima v. Laguna Tayabas Co. 5 and Cabral v. Court of Appeals, 6 We sustained the Court of Appeals' award of legal interest on the basis of said provision despite its absence in the trial courts' decisions and despite the lack of appeal of private respondents therein. We take exception, however, to the ruling of public respondent as to the date when the legal interest should commence to run which we hold, in view of the consistent rulings of this Court, 7 should start from the time of the rendition of the trial court's decision on July 31, 1990 instead of April 15, 1982, the date when the deed of sale was executed. ACCORDINGLY, subject to the above modification that the legal interest should commence to run from July 31, 1990 until fully paid, the decision appealed from should be, as it is hereby AFFIRMED in all other respects. ___________ Eastern Shipping Lines vs. Court of Appeals 234 SCRA 7 Facts: On December 4, 1981, two fiber drums of riboflavin were shipped from Yokohama, Japan for delivery vessel "SS EASTERN COMET" owned by defendant Eastern Shipping Lines under a bill of lading. The shipment was insured under plaintiff's Marine Insurance Policy. Upon arrival of the shipment in Manila on December 12, 1981, it was discharged unto the custody of defendant Metro Port Service, Inc. The latter excepted to one drum, said to be in bad order, which damage was unknown to plaintiff. On January 7, 1982 defendant Allied Brokerage Corporation received the shipment from defendant Metro Port Service, Inc., one drum opened and without seal. On January 8 and 14, 1982, defendant Allied Brokerage Corporation made deliveries of the shipment to the consignee's warehouse. The latter excepted to one drum which contained spillages, while the rest of the contents was adulterated/fake. Plaintiff contended that due to the losses/damage sustained by said drum, the consignee suffered losses totaling P19, 032.95, due to the fault and negligence of defendants. Claims were presented against defendants who failed and refused to pay the same. As a consequence of the losses sustained, plaintiff was compelled to pay the consignee P19, 032.95 under the aforestated marine insurance policy, so that it became subrogated to all the rights of action of said consignee against defendants. Issue: Whether or not a claim for damage sustained on a shipment of goods can be a solidary or joint and several, liability of the common carrier, the arrastre operator and the customs broker? Held: The common carrier's duty to observe the requisite diligence in the shipment of goods lasts from the time the articles are surrendered to or unconditionally placed in the possession of, and received by, the carrier for transportation until delivered to, or until the lapse of a reasonable time for their acceptance by, the person entitled to receive them (Arts. 1736-1738, Civil Code). When the goods shipped either are lost or arrive in damaged condition, a presumption arises against the carrier of its failure to observe that diligence, and there need not be an express finding of negligence to hold it liable (Art. 1735, Civil Code). There are, of course, exceptional cases when such presumption of fault is not observed but these cases, enumerated in Article 1734 of the Civil Code, are exclusive, not one of which can be applied to this case.

As to The question of charging both the carrier and the arrastre operator with the obligation of properly delivering the goods to the consignee, the legal relationship between the consignee and the arrastre operator is akin to that of a depositor and warehouseman while the relationship between the consignee and the common carrier is similar to that of the consignee and the arrastre operator. Since it is the duty of the arrastre to take good care of the goods that are

in its custody and to deliver them in good condition to the consignee, such responsibility also devolves upon the carrier. Both the arrastre and the carrier are therefore charged with the obligation to deliver the goods in good condition to the consignee. A factual finding of both the Supreme Court and the appellate court was that there was sufficient evidence that the shipment sustained damage while in the successive possession of appellants. Accordingly, the liability imposed on Eastern Shipping Lines, Inc., the sole petitioner in this case, is inevitable regardless of whether there are others solidarily liable with it. ________________ G.R. No. L-59096 October 11, 1985PACITA F. REFORMINA and HEIRS OFFRANCISCO REFORMINA, petitioners,vs. THE HONORABLE VALERIANOP. TOMOL, JR., as Judge of the Court of First Instance, Branch XI, CEBU CITY,SHELL REFINING COMPANY (PHILS.),INC., and MICHAEL,INCORPORATED, respondents. FACTS This is a a Petition for Review on certiorariof the Resolution of CFI-Cebu Judge Tomolfor an action for Recovery of Damages forinjury to Person and Loss of Property.On June 7, 1972, judgment was renderedby the Court of First instance of Cebu inCivil Case No. R-11279, 2 the dispositiveportion of which readsWHEREFORE, judgment is hereby renderedin favor of the plaintiffs and third partydefendants and against the defendantsand third party plaintiffs as follows:Ordering defendants and third partyplaintiffs Shell and Michael, Incorporated topay jointly and severally the followingpersons:(g) Plaintiffs Pacita andFrancisco Reformina the sum of P131,084.00 which is the value of the boatF B Pacita Ill together with its accessories,fishing gear and equipment minusP80,000.00 which is the value of theinsurance recovered and t he amount of P10,000.00 a month as the estimatedmonthly loss suffered by them as a resultof the fire of May 6, 1969 up to the timethey are actually paid or already the totalsum of P370,000.00 as of June 4,1972 with legal interest from the filing of the complaint until paid and to payattorney's fees of P5,000.00 with costs against defendants and third partyplaintiffs.On appeal to the then Court of Appeals, thetrial court's judgment was modified toreads as followsWHEREFORE. the judgment appealed fromis modified such that defendants-appellants Shell Refining Co. (Phils.), Inc.and Michael, Incorporated are herebyordered to pay ... The two (2) defendantsappellants are also directed to payP100,000.00 with legal interests from the filing of the complaint until paid ascompensatory and moral damages andP41,000.00 compensation for the value of the lost boat with legal interest from thefiling of the complaint until fully paid to Pacita F.Reformina and the heirs of Francisco Reformina . The liability of thetwo defendants for an the awards issolidary.Petitioners' motion for the reconsiderationof the questioned Resolution having beendenied, they now come before Us throughthe instant petition praying for the setting aside of the said Resolution and for adeclaration that the judgment in their favorshould bear legal interest at the rate of twelve (12%) percent per annum pursuantto Central Bank Circular No. 416 dated July29, 1974. ISSUE How much, by way of legal interest, shoulda judgment debtor pay the judgment creditor?WON legal interest meant 6% as provided for under Article 2209 of the Civil Code .What kind of judgment is covered underUSURY Law? RULING Article 2209 of the Civil Code is applicablein case at bar. It must be noted that thedecision herein sought to be executed isone rendered in an Action for Damages forinjury to persons and loss of property anddoes not involve any loan, much lessforbearances of any money, goods orcredits. As correctly argued by the privaterespondents, the law applicable to the saidcase is Article 2209 of the New Civil Codewhich readsArt. 2209. If the obligation consists in thepayment of a sum of money, and thedebtor incurs in delay, the indemnity fordamages, there being no stipulation to thecontrary, shall be the payment of interestagreed upon, and in the absence of stipulation, the legal interest which is sixpercent per annum. The above provision remains untoucheddespite the grant of authority to theCentral Bank by Act No. 2655, as amended. To make Central Bank Circular No. 416applicable to any case other than thosespecifically provided for by the Usury Lawwill make the same of doubtfulconstitutionality since the Monetary Boardwill be exercising legislative functions which was beyond the intendment of P.D.No. 116.Central Bank Circular No. 416 which provides By virtue of the authority granted to itunder Section 1 of Act 2655, as amended,otherwise known as the "Usury Law" theMonetary Board in its Resolution No. 1622dated July 29, 1974, has prescribed thatthe rate of interest for the loan or forbearance of any money, goods, orcredits and the rate allowed in judgments, in the absence of expresscontract as to such rate of interest,shall be twelve (12%) per cent per annum. This Circular shall take effectimmediately. (Italics supplied) The judgments spoken of and referred toare Judgments in litigations involving loans or forbearance of any 'money, goods or credits. Any other kind of monetary judgment which has nothing to do with,

norinvolving loans or forbearance of anymoney, goods or credits does not fallwithin the coverage of the said law for it is not within the ambit of the authority granted to the Central Bank. ____________________ THE INSULAR LIFE ASSURANCE COMPANY, LTD., petitioner, vs. COURT OF APPEALS and SUN BROTHERS & COMPANY, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks the reversal of the Decision,1 dated May 20, 1996, of the Court of Appeals (CA for brevity) in CA-G.R. CV No. 46987 affirming the Decision,2 dated April 25, 1994, rendered by the Regional Trial Court (Branch 150), Makati City (RTC for brevity) in Civil Case No. 92-27754 extending the lease contract subject of the petition for declaratory relief and ordering petitioner to pay attorneys fees and costs. The factual antecedents are as follows: On September 24, 1992, Sun Brothers & Company (Sun Brothers for brevity) filed a petition for declaratory relief with the RTC seeking judicial interpretation of the "option to renew" clause under a Contract of Lease dated September 20, 1988.3 Under the contract, Sun Brothers leased for a period of five years from December 1, 1987 until November 30, 1992, a parcel of land, with an approximate area of 4,215 square meters, and the building constructed thereon, located in Makati (then a Municipality). The contract stipulated that the lease was renewable at the option of the tenant, Sun Brothers, for an additional five years, provided the exercise of the option to renew the lease shall be made by the tenant in writing to The Insular Life Assurance Company, Ltd. (Insular for brevity) at least ninety days before the expiration of the period. The contract further provided for monthly rental of P50,000.00 for the first year and an increase of 10% per annum for the succeeding years, exclusive of real estate taxes and insurance premiums which are for the account of Sun Brothers.4 Sun Brothers alleged that since the lease contract does not contain any provision as to the rental or any provision for any new or additional terms or conditions in case of renewal, the terms and conditions of the renewal of lease should be the same and the monthly rental should remain at P73,205.00. It prayed that judgment be rendered: (a) declaring that renewal under the contract of lease be for an additional period of five years under the same terms and conditions and the monthly rental should be P73,205.00; and, (b) ordering Insular to pay Sun BrothersP20,000.00 as attorneys fees and to pay the costs of suit.5 On November 6, 1992, Insular filed its Answer6 claiming that while the lease contract grants Sun Brothers the option to renew the lease by giving notice thereof to Insular at least ninety days before the expiration of the period, it has always been the agreement of the parties that Sun Brothers does not have the right to impose, on its sole will, a renewal of the lease as to the period or the rentals;7 that despite the presence of the renewal clause in the previous contracts of lease, the parties still negotiated, as a matter of course, for the renewal of the lease in 1977 and 1987; that negotiation was the usual norm between the parties, clearing up as it did vague portions of the previous contracts. After trial on the merits, the RTC rendered its decision, dated April 25, 1994, ruling as follows: The wording of the xxx provisions of the contract is clear, unambiguous and need no further interpretation. The tenant, herein petitioner, is vested solely with the option to renew the said contract of lease on the only condition that the same be made known to respondent in writing at least 90 days before its expiration. Petitioner, in its letter to respondent dated May 22, 1993 (Exh. "D"), expressed its desire to exercise the option granted in the contract, since there is no mention of any change or increase in the amount of monthly rental, petitioner understood it to mean that the renewal will be under the same terms and conditions. Respondents claim that the lease contract (Exh. "C") does not contain the true intent of the parties deserves scant consideration. It must be noted, as correctly pointed out by the petitioner, that all the contracts of lease between the parties and the repeated renewals thereof were entirely drafted, finalized and notarized by respondent and is, thus, a contract of adhesion. Being a contract of adhesion, petitioners only role was for its general manager, Amancio L. Sun to sign the same. The respondent could have easily deleted this questioned renewal clause in the contract if, indeed, such was not the intention of the parties. It could have provided therein that any renewal of the lease would be by mutual agreement of the parties or had specifically limited the period of the lease.8

The dispositive portion of the assailed decision reads: WHEREFORE, considering all the foregoing, judgment is hereby rendered as follows: a) declaring that the contract of lease dated 30 September 1988 be renewed for another 5 years starting from 30 November 1992 and up to 1 December 1997; b) declaring that the monthly rental on the leased premises be P100,000.00 exclusive of real estate taxes and insurance premiums, less any amounts that petitioner may have paid respondent in the meantime; c) ordering the respondent to pay herein petitioner the amount of P20,000.00 as attorneys fees; and d) to pay the cost. SO ORDERED.9 On June 1, 1994, Insular filed a motion for reconsideration10 which the RTC denied in its Order dated July 18, 1994.11 Dissatisfied, Insular appealed to the CA.12 In a Decision dated May 20, 1996, the CA affirmed the decision of the trial court.13 It reasoned that since the renewal clause in the latest contract of Insular and Sun Brothers is silent as to the terms and conditions of the subsequent contract, such subsequent contract should follow the terms and conditions of the original contract, applying the doctrine laid down in the cases of Ledesma vs. Javellana,14 Millare vs. Hernando,15 and Fernandez vs. Court of Appeals.16 As regards the monthly rental, the CA held that there was no merit to Insulars allegation that the trial court acted arbitrarily in fixing the amount of the rent at P100,000.00 a month since it considered the testimony of Insulars witness that improvements introduced by Sun Brothers still have an appraised value, which value is considered by the CA in favor of Sun Brothers in the determination of the terms of the extended lease. The CA added that the trial court arrived at the amount of P100,000.00 after considering that Sun Brothers had shouldered the maintenance expenses on the building and paid real estate taxes as well as insurance premiums thereon. 17 Insular filed a motion for reconsideration18 which was denied by the CA in its Resolution dated October 10, 1996. 19 Hence, the present petition for review anchored on the following grounds: A. THE EXERCISE OF JUDICIAL POWER ENTAILS THE DUTY TO SETTLE ACTUAL CONTROVERSIES OF LEGALLY DEMANDABLE RIGHTS AND TO DECIDE UPON ISSUES SUBMITTED BY THE PARTIES. B. WHERE A PARTY PUTS IN ISSUE IN HIS PLEADING THAT THE CONTRACT FAILS TO EXPRESS THE TRUE INTENT OF THE PARTIES, THE LOWER COURT IS MANDATED TO CONSIDER THE EXTRINSIC EVIDENCE PRESENTED AND THEN DECIDE WHAT THE TRUE INTENT IS; BY THE VERY NATURE OF THIS CHALLENGE, IT IS A JUDICIAL ABDICATION OF DUTY TO SIMPLY AND MERELY RULE THAT THE CONTRACT IS CLEAR AND MUST BE INTERPRETED AS SUCH. C. THE AMOUNT OF REASONABLE RENT IS DETERMINED ON THE BASIS OF EVIDENCE PRESENTED. D. PETITIONER IS ENTITLED TO AN AWARD OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEES.20 Succinctly, the issue herein is the real nature of the option to renew the lease under the contractual agreement of the parties. Insular insists that the option to renew is a bilateral agreement subject to the terms and conditions the parties may agree upon. Sun Brothers, on the other hand, posits that the option to renew is its unilateral right effectively exercised by mere notice to Insular of the intention to extend the lease, at least ninety days before the expiration of the period, without qualification as to monthly rental or term of the lease. It is a settled rule that in the exercise of the Supreme Courts power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. 21However, the Court had recognized several exceptions to this rule, to wit: (1) when the findings are grounded entirely on

speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts ; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition a s well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.22 Exceptions (4), (10) and (11) are present in this case. It is a cardinal rule in contract interpretation that the ascertainment of the intention of the contracting parties is to be discharged by looking to the words they used to project that intention in their contract, that is, all the words, not just a particular word or two, and words in context, not words standing alone.23 Furthermore, Article 1374 of the Civil Code requires that the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. Conformably, to ascertain the true meaning or import of the disputed "option to renew" clause in the contract of lease, the entirety of the contract must be considered; not merely the clause relating to the "option to renew." After a careful examination of the records of the case, the Court finds it significant that the disputed contract of lease is not the first contract between the parties but, in fact, the third contract or the second renewal contract. The parties lessor-lessee relationship all started on January 29, 1958, with the original contract of lease,24portions of which provide: I INSULAR does hereby lease the abovementioned land and building unto the TENANT and the TENANT does hereby accept in lease from INSULAR the said land and building, for a period of TEN (10) YEARS from the date provided for in Clause IX hereof, renewable at the option of the TENANT for an additional period of TEN (10) YEARS; PROVIDED, HOWEVER, that the exercise of the options to renew the lease as herein stated shall be made by the TENANT in writing to INSULAR at least NINETY (90) DAYS before the expiration of the periods herein mentioned. All renewals shall be under the same terms and conditions hereinstated. ......... III INSULAR expressly covenants that if on or before the expiration of the period of TWENTY (20) YEARS (covered by the original TEN (10) years period of the lease and the renewal period of TEN (10) years hereinabove stipulated) TENANT still desires to occupy the building, INSULAR shall give the TENANT first priority to lease the building at the monthly rental and under such other terms and conditions as may be agreed upon by the parties at that time .25 (Emphasis supplied) The first renewal of the lease contract was made on January 20, 1978 for a period of another 10 years, from December 1, 1977 until November 30, 1987, which by that time had added up to twenty years of lease. The parties agreed that the lease was renewable at the option of the Sun Brothers for an additional period of five years with the proviso that the exercise of the option to renew the lease shall be made by the tenant in writing to Insular at least ninety days before the expiration of the period provided. 26 The contract further provided that: 2) For the use and occupancy of the leased premises TENANT shall, during the first (5) years of the above 10-year period, pay in advance at the office of INSULAR, within the first five (5) days of every month a monthly rental of P24,325.00 exclusive of real estate taxes and insurance premiums. (All real estate taxes, other assessments and insurance premiums of the leased properties shall be for the account of the TENANT). Thereafter, the rental shall be adjusted beginning on the sixth year of this lease with an effective increase equivalent to 6.5% per annum of the imputed value increment on the land compounded at 5% annually for a period of five (5) years using the current value of the leased property as base, which current value is hereby agreed upon by the parties as follows: Land ---------------------------- P 3,793,500.00 Improvements ---------------Total Current Value ---------697,100.00

P 4,490,600.00 On the basis of the above current value, the monthly rental for the 2nd Five (5) years of the said 10-year period is estimated to be P30,002.00 exclusive of real estate taxes, other assessments and insurance premiums for the leased properties. 3) Except for the foregoing modification/amendment, all the other terms and conditions of the Contract of Lease dated 29 January 1958 remain in full force and effect.27 (Emphasis supplied) Thereafter, prior to the expiration of the foregoing contract in November 1987, an exchange of letters ensued between the contracting parties, as follows: 1. SUN BROTHERS, in a letter dated July 15, 1987, expressed its intention to renew the lease for a period of five years.28 2. On July 31, 1987, INSULAR informed SUN BROTHERS that it was agreeable to the renewal of the lease subject to the following terms: (a) lease period from 01 December 1987 to 30 November 1992; (b) basic monthly rental of P60,000.00; (c) annual escalation rate of 10%; and, (d) insurance premiums, realty taxes, other government assessments if any, shall be for the account of SUN BROTHERS. 29 3. SUN BROTHERS acceded to the terms of INSULAR30 but subsequently found the said terms to be "quite heavy", hence in a letter dated October 5, 1987, it offered the following "compromise" term: (a) basic monthly rental increase of 50% over the present monthly rental of P30,000.00, thereby making the new monthly rental to P45,000.00; and, (b) annual escalation rate of 5% which is a new condition not in the old contract, in addition to the insurance premiums, realty taxes, other government assessments if any, which shall be for the account of SUN BROTHERS.31 4. On November 20, 1987 INSULAR informed SUN BROTHERS that it was not amenable to the foregoing "compromise" terms. It reasoned that the new basic rental rate of P60,000.00 is fair and reasonable considering the present market value rates of other properties in the immediate vicinity. 32 5. On November 27, 1987, SUN BROTHERS requested reconsideration and accept its new offer ofP50,000.00 monthly rental and yearly increase of 5%. 33 6. On December 10, 1987, INSULAR informed SUN BROTHERS that it was agreeable to renewal of the lease subject to the following terms: (a) lease period from 01 December 1987 to 30 November 1992; (b) basic monthly rental of P50,000.00; (c) annual escalation rate of 10%; and, (d) insurance premiums, realty taxes, other government assessments if any, shall be for the account of SUN BROTHERS. 34 The foregoing exchange of communications ultimately led to the Contract of Lease dated September 20, 1988, which is the second renewed Contract of Lease or third contract of lease between the parties. The contract again stipulated that the lease was renewable at the option of the tenant for an additional five years provided the exercise of the option to renew the lease shall be made by the tenant in writing to Insular at least ninety days before the expiration of the period. The lease was for a period of five years, from December 1, 1987 until November 30, 1992, with a monthly rental of P50,000.00 for the first year, and an increase of 10% per annum for the succeeding years, exclusive of real estate taxes and insurance premiums which are for the account of Sun Brothers. 35 Again, the contract provided that "except for the foregoing modification/amendment, all the other terms and conditions of the Contract of Lease dated 29 January 1958 remain in full force and effect ."36 Prior to the expiration of the second renewal Contract of Lease in 1992, an exchange of letters once more transpired between the parties, thus: 1. On May 22, 1992, SUN BROTHERS communicated to INSULAR its intention to renew the lease contract, quoting P100,000.00 as monthly rental.37 2. In response thereto in a letter dated June 10, 1992, INSULAR offered a lease period of one year at a monthly rental of P500,000.00.38 3. More than a month later, SUN BROTHERS, in a letter dated August 5, 1992, expressed that, under the provisions of the contract of lease, SUN BROTHERS has the right to renew the lease for another period of five (5) years without any condition for the exercise of the option, except the giving of written notice at least ninety (90) days before November 30, 1992 and that the rental due INSULAR is the current rental. Thus, SUN BROTHERS insisted that INSULARs consent is not necessary to the renewal of the lease and the monthly rental due is the current rental paid by it.39

4. On September 1, 1992, INSULAR replied to the foregoing letter, explaining that the contract of lease granted SUN BROTHERS only the option to renew the lease contract and not the right to dictate the terms and conditions of the renewed contract, especially on the amount of rentals to be paid. 40 5. On September 5, 1992, SUN BROTHERS reiterated its position that it has the validly exercised the option to renew the lease contract under the same terms and conditions by giving notice to INSULAR as provided in the lease contract.41 which apparently brought about an impasse by reason of which Sun Brothers filed the petition for declaratory relief with the RTC. Clearly, in this case, the original contract of lease dictates the interpretation of the renewal clause. Under the original contract of lease, the "option to renew" clause means simply that after the 20-year period of lease, or after the second contract of lease which was to expire November 30, 1987, the lessee, Sun Brothers, is given "first priority to lease the building at the monthly rental and under such other terms and conditions as may be agreed upon by the parties at that time." The renewal contracts of 1978 and 1987 each contained the stipulation that except for the modification or amendment relating to the monthly rental and term of the lease, " all the other terms and conditions of the Contract of Lease dated 29 January 1958 remain in full force and effect ,"42 and, therefore, in pursuance thereof, the monthly rentals and other terms and conditions of the proposed renewal contract were agreed upon by the parties in said 1978 and 1987 renewed contracts of lease. Consequently, Sun Brothers interpretation based solely on the renewal clause under scrutiny completely ignoring the original contract of lease, is not plausible. The contracting parties intent as can be gleaned from the original contract of lease and confirmed by their subsequent acts in the 1977 and 1987 renewal contracts, was to constitute the renewal of the lease subject to terms and conditions to be agreed upon by the parties at the time of each renewal. Furthermore, the subsequent acts of the parties, evidenced by the exchange of letters between the two contenders, clearly show that their understanding and interpretation of the "option to renew" clause is that which is explicitly provided in the original contract of lease. Thus, after Sun Brothers signified its intention to renew the lease in 1977 and in 1987, a series of offers and counter-offers on the monthly rental and the term of lease followed until the parties reached an agreement thereon. Sun Brothers complied with the terms of the original contract of lease on the option to renew until 1992 when, midway through the negotiations, in the face of aP500,000.00 monthly rental pegged by Insular, Sun Brothers did a volte face and suddenly insisted that it had a unilateral right to renew. The cases of Ledesma vs. Javellana, Millare vs. Hernando and Fernandez vs. Court of Appeals, relied upon by the lower courts, find no application in the present case since the 1977 and 1987 renewal contracts explicitly adopted all the other provisions of the original contract of lease dated January 29, 1958, including the provision on contract renewals, except those that relate to the monthly rental and the term of the lease. When the language of the contract is explicit leaving no doubt as to the intention of the drafters thereof, the courts may not read into it any other intention that would contradict its plain import.43 The Court would be rewriting the contract of lease between Insular and Sun Brothers under the guise of construction were we to interpret the "option to renew" clause as Sun Brothers propounds it, despite the express provision in the original contract of lease and the contracting parties subsequent acts. As the Court has held in Riviera Filipina, Inc. vs. Court of Appeals,44 a court, even the Supreme Court, has no right to make new contracts for the parties or ignore those already made by them, simply to avoid seeming hardships. Neither abstract justice nor the rule of liberal construction justifies the creation of a contract for the parties which they did not make themselves or the imposition upon one party to a contract of an obligation not assumed."45 The Court will now discuss the merit of Insulars claim for monthly rental and damages. Insular pleads that the Court should fix the monthly rental at P500,000.00. Sun Brothers alleges that the said amount is unreasonable, if not, unconscionable. However, no evidence, other than its self-serving assertion, was offered by Sun Brothers to substantiate its contention. On the other hand, Insular submitted in evidence the Appraisal Report which estimated the fair rental value of the subject leased property at P700,000.00 as of October 30, 1991.46 The testimony of the appraiser, Executive Vice President, Engr. Oliver Morales, of the Cuervo Appraisers, Inc. 47 was not proven by Sun Brothers to be biased and partial on their estimation of the fair rental value of the subject leased property. In addition, Insular presented the Contract of Lease it entered into with Winsome Development Corporation dated March 30, 1993 involving an 8,200 square meter property which is almost twice the size of the subject leased property and likewise located in Makati, where the monthly rental for the first year, starting December 1992, was fixed at P600,000.00.48 Sun Brothers failed to demonstrate that this contract has been assailed in court or that the agreed monthly rental was found to be unconscionable. Suffice it to state that courts may take judicial notice of the general increase in rentals of lease contract renewals much more with business establishments, 49 especially in this case where the subject leased property covers a 4,215 square meter prime property centrally located in a well-

developed commercial district of the City of Makati.50 Based thereon, the Court finds the amount ofP500,000.00 as reasonable monthly rental. However, the Court cannot validly impose said amount on Sun Brothers as monthly rental since it was not agreed upon by the parties. It is not the province of the Court to make a contract for the parties or bind parties to one when no consensual agreement was entered into.51 But the amount of P500,000.00 a month since 1992 or P6 Million a year, can be considered actual or compensatory damages representing reasonable rental value or unrealized monthly income for Sun Brothers continued occupation and enjoyment of the leased property. This is in consonance with Producers Bank of the Philippines vs. Court of Appeals52 wherein the Court had enunciated the kinds of actual damages, thus: . . . There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses, and the other is the failure to receive as a benefit that which would have pertained to him x x x. In the latter instance, the familiar rule is that damages consisting of unrealized profits, frequently referred as "ganacias frustradas" or "lucrum cessans, are not to be granted on the basis of mere speculation, conjecture, or surmise, but rather by reference to some reasonably definite standard such as market value, established experience, or direct inference from known circumstances .53 In addition, records disclose that in an Order dated April 30, 1993 the trial court authorized Sun Brothers to make a consignation of its monthly rentals of P69,544.75 staring the month of December 1992 while the case pends in the trial court.54 The amount of monthly rentals consigned55 should be deducted from the total amount of actual or compensatory damages herein granted to Insular. Furthermore, such actual or compensatory damages due shall earn interest at the legal rate of 12% per annum computed from the date of finality of this decision until full payment would have actually been made, in accordance with the ruling of this Court in Eastern Shipping Lines, Inc. vs. Court of Appeals,56 to wit: I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for damages. The provisions under Title XVIII on "Damages" of the Civil Code govern in determining the measure of recoverable damages. II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of interest, as well as the accrual thereof, is imposed, as follows: 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. (Emphasis supplied)57 Moreover, the Court takes exception from the CAs opinion that the improvements introduced by Sun Brothers should be considered in the latters favor in considering the terms of the rent. The fact that Sun Brothers had shouldered maintenance expenses on the building and paid real estate taxes as well as insurance premiums is inconsequential and immaterial in fixing the rent. The improvements introduced and the payment of expenses, taxes and premiums have always been excluded in the determination of the monthly rental in the contracts of lease between the parties. The Court cannot disregard this fact simply because it later becomes disadvantageous to one party, especially when Sun Brothers voluntarily assumed the obligation in the original contract. As to moral damages, Insulars prayer that moral damages not less than P5 Million be awarded because its name and reputation has been defamed by Sun Brothers, is not tenable. The rule is that moral damages can not be granted in

favor of a corporation. Being an artificial person and having existence only in legal contemplation, a corporation has no feelings, no emotions, no senses; it cannot, therefore, experience physical suffering, mental anguish, fright, serious anxiety, wounded feelings or moral shock or social humiliation, which can be suffered only by one having a nervous system.58 As to Insulars plea for exemplary damages, the Court finds the same meritorious. In contracts and quasi -contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.59 Sun Brothers was in evident bad faith when in the course of negotiations for the third renewal of the lease contract in 1992, it wantonly and oppressively insisted that it had a unilateral right to renew to lease thereby resulting in an impasse between the parties and which Sun Brothers took advantage of and used as a basis for instituting the proceedings for declaratory relief, although its prior actions since January 29, 1958 when the original contract of lease was executed, spanning more than three decades, indicated that it was well-aware of the contractual stipulation that after a twenty-year period of lease, the right to renew the lease was subject to such terms and conditions that the parties may mutually agree upon at the time, as expressly provided for in the original contract of lease. Consequently, an award of exemplary damages in the amount ofP500,000.00 is in order by way of example and correction for the public good and also to serve as a deterrent to the commission of similar misdeeds by others. Under Article 2208 of the Civil Code, attorneys fees may be awarded not only when exemplary damages is awarded but also when a party is compelled to litigate or to incur expenses to protect its interest by reason of an unjustified act of the other party.60 In the present case, Insular was constrained to engage the services of counsel and to incur expenses of litigation in order to protect its interest to the subject property against Sun Brothers utterly unfounded insistence on an alleged unilateral right to renew the lease. The award of P250,000.00 is reasonable in view of the time it has taken this case to be resolved.61 WHEREFORE, the assailed Decision, dated May 20, 1996, of the Court of Appeals in CA-G.R. CV No. 46987 isREVERSED and SET ASIDE. In lieu thereof, judgment is rendered ordering respondent Sun Brothers and Company to pay petitioner Insular Life Assurance Company, Ltd. actual damages in the amount of Five Hundred Thousand Pesos (P500,000.00) monthly, representing the unrealized monthly income of petitioner or P6 Million a year from December 1, 1992 until respondent vacates the leased premises. The amount of monthly rentals consigned with the trial court shall be deducted from the total amount of actual or compensatory damages due. Furthermore, such actual or compensatory damages due shall earn interest at the legal rate of 12% per annum computed from the date of finality of this decision until full payment thereof. In addition, private respondent Sun Brothers and Company is ordered to pay petitioner exemplary damages in the amount of Five Hundred Thousand Pesos (P500,000.00); and attorneys fees in the sum of Two Hundred Fifty Thousand Pesos ( P250,000.00). Double costs against private respondent. ______________ Victory Liner v. Gammad Ynares-Santiago | Nov. 25, 2004Pet: Victory Liner owner of bus that killed Marie Grace Gammad wife of Resp: Respondent Rosalito Gammad, April Rossan, Rois Rozano and Diana Gammad (children) Facts:1.3:00 am, 14 Mar 96: Aircon Victory Liner bus (Tugegarao to Manila). The bus was running at high speed. The bus fellinto a ravine at Sta Fe, Nueva Vizcaya. 2.Death of Marir Grace and physical injuries of other passengers. 3.FILED:Damages arising from culpa contractual.ANSWER: Incident was purely accidental. Always exercised extra-ord diligence in 50yr ops.4. RTC : In favor of Gammad. Awarded: Actual Damages 122K, Death Indemnity 50K, Exemplary and Moral Damages 400K, Compensatory Dam 1.5M, attys fees 10% total, costs of suit. CA: Affirmed but changed amounts, deleting completely the death indemnity and costs of suit. Actual P88K, Compe 1.5M, Moral and Exemp P400, attys fees 10%. Issues: 1. w/n the pet. counsel was guilty of gross negligence2. w/n pet should be held liable for breach of C of Carriage3. w/n the award of damages was proper.Held:1. Counsel guilty of negligence, but Pet. also guilty of contributory negligence.a. GN: Negligence counsel binds the client.EXC: where reckless or gross negligence deprives client of due process.Application will result in outright deprivation of liberty.b. The exceptions are not present in this case. Although initially declared in default Atty Paguirigan was able to successfully move for setting aside of the order of default. He also filed a timely appeal. Hence pet was

not deprived of DP. Pet also was late in issuing an SPA, only after the order of default. Therefore contributory negligence.2. Victory liner was correctly found liable for breach of contract of carriage.a. When a passenger dies or id injured, CC presumed at fault. Unless presumption rebutted. Here no evidence waspresented to rebut this statutory presumption that the proximate cause of the death of Marie Grace is the negligenceof petitioner.The award of damages should be modified.3. Compensatory damages should be deleted for lack of basis.GN:Docu evi should be presented to substantiate damages for loss of earn capacity.EXC: (1) Deceased was self-employed earning less than min wage. (2) deceased was a daily wage worker earning less thanminimum wage.HERE: Only testimony of Resp. was presented that the deceased was 39yo, employed as Section Chief of BIR, earningP83K per annum. No docu evidence was presented and the case fall on neither of the two exception. Therefore the claim for loss of earn capacity was unsubstantiated.4. Loss having been established, but the amount unsubstantiated, temperate damages may be awarded @P500K, pursuant to NCC 2224, when the court finds that there is a loss but its amount cannot be proved with certainty.a.Pleno v. CA the court awarded P200K temperate damages because the income of the victim was not sufficientlyproven. 5. Moral Damages cannot be lumped with exemplary damages. They are based on different jural foundations. (People v.Trapane)In Culpa Contractual, moral damages may be awarded when the defendant acted in bad faith or was guilty of gross negligence (amounting to BF) or in wanton disregard of contractual obli and AS IN THIS CASE when the act of breachof contract itself constitutes the ort that results in physical injuries. By special provision (NCC1764 in relation to NCC2206) moral damages may also be awarded in case of the death of a passenger results from the breach of carriage.HERE: respondents should be awarded moral damages due to compensate for the grief caused by the death of thedeceased.6. Furthermore Victory failed to prove the exercise the extra ord diligence, and is presumed to have acted recklessly. Thus.The award for exemplary damages is proper.7. People v. Duban: Only substantiated and proven expenses or those that appear to have been genuinely incurred will be recognized. HERE actual damages will be further reduced to the amount actually supported by receipts in Ex J and F.8. Attys fees may also be recovered in case at bar where exemplary damages are awarded. 10%WHEREFORE Affirmed with modification. P50K indemnity for death, P100K moral damages, P100K exemplary damages, P78K actual damages, P500K temperate damages, 10% total amount as attys fees. Note: Finally, in Eastern Shipping Lines, Inc. v. Court of Appeals, 56 it was held that when an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for payment of interest in the concept of actual and compensatory damages, subject to the following rules, to wit 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. (Emphasis supplied). In the instant case, petitioner should be held liable for payment of interest as damages for breach of contract of carriage. Considering that the amounts payable by petitioner has been determined with certainty only in the instant petition, the interest due shall be computed upon the finality of this decision at the rate of 12% per annum until satisfaction, per paragraph 3 of the aforecited rule. 57 WHEREFORE, in view of all the foregoing, the petition is partially granted. The April 11, 2003 decision of the Court of Appeals in CA-G.R. CV No. 63290, which modified the decision of the Regional Trial Court of

Tuguegarao, Cagayan in Civil Case No. 5023, is AFFIRMED with MODIFICATION. As modified, petitioner Victory Liner, Inc., is ordered to pay respondents the following: (1) P50,000.00 as indemnity for the death of Marie Grace Pagulayan-Gammad; (2) P100,000.00 as moral damages; (3) P100,000.00 as exemplary damages; (4) P78,160.00 as actual damages; (5) P500,000.00 as temperate damages; (6) 10% of the total amount as attorneys fees; and the costs of suit. ______________ Villa Rey Transit v. CA Facts: On March 17, 1960, Policronio Quintos, Jr. was riding the petitioners bus, when the said bus frontally hit the rear side of a bullcart filled with hay. The protruding end of the bamboo pole at the rear of the cart penetrated the windshield of the bus and landed at Policronios face. He died of traumatic shock due to cerebral injuries. Private respondents are sisters and surviving heirs of the deceased. They brought this action against Villa Rey Transit for breach of contract of carriage. The trial court found that the death was caused by the negligence of the bus driver, for whom petitioner was liable under the contract of carriage with the deceased. Issues: (1) The number of years to be used as basis of computation (2) The rate at which the losses sustained by respondents should be fixed Held: (1) The determination of the indemnity to be awarded to the heirs of a deceased person has no fixed basis. Much is left to the discretion of the court considering the moral and material damages involved, and so it has been said that "(t)here can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiary, whichever is shorter, is an important factor.' Other factors that are usually considered are: (1) pecuniary loss to plaintiff or beneficiary; (2) loss of support; (3) loss of service; (4) loss of society; (5) mental suffering of beneficiaries; and (6) medical and funeral expenses." Thus, life expectancy is, not only relevant, but, also, an importantelement in fixing the amount recoverable by private respondents herein. Although it is not the sole element determinative of said amount, no cogent reason has been given to warrant its disregard and the adoption, in the case at bar, of a purely arbitrary standard, such as a four-year rule. In short, the Court of Appeals has not erred in basing the computation of petitioner's liability upon the life expectancy of Policronio Quintos, Jr. (2) With respect to the rate at which the damages shall be computed, petitioner impugns the decision appealed from upon the ground that the damages awarded therein will have to be paid now, whereas most of those sought to be indemnified will be sufferedyears later. This argument is basically true, and this is, perhaps, one of the reasons why the Alcantara case points out the absence of a "fixed basis" for the ascertainment of the damages recoverable in litigations like the one at bar. Just the same, the force of the said argument of petitioner herein is offset by the fact that, although payment of the award in the case at bar will have to take place upon the finality of the decision therein, the liability of petitioner herein had been fixed at the rate only of P2,184.00 a year, which is the annual salary of Policronio Quintos, Jr. at the time of his death, as a young "training assistant" in the Bacnotan Cement Industries, Inc. In other words, unlike the Alcantara case, on which petitioner relies, the lower courts did not consider, in the present case, Policronio's potentiality and capacity to increase his future income. Indeed, upon the conclusion of his training period, he was supposed to have a better job and be promoted from time to time, and, hence, to earn more, if not considering the growing importance of trade, commerce and industry and the concomitant rise in the income level of officers and employees therein much more. Damages consist, not of the full amount of his earnings, but of the support, they received or would have received from him had he not died in consequence of the negligence of petitioner's agent. In fixing the amount of that support, We must reckon with the "necessary expenses of his own living", which should be deducted from his earnings. Only net earnings, not gross earning, are to be considered that is, the total of the earnings less expenses necessary in the creation of such earnings or income and less living and other incidental expenses. All things considered, We are of the opinion that it is fair and reasonable to fix the deductible living and other expenses of the deceased at the sum of P1,184.00 a year, or about P100.00 a month, and that, consequently, the loss sustained by his sisters may be roughly estimated at P1,000.00 a year or P33,333.33 for the 33-1/3 years of his life expectancy. To this sum of P33,333.33, the following should be added: (a) P12,000.00, pursuant to Arts. 104 and 107 of the Revised Penal Code, in relation to Article 2206 of our Civil Code, as construed and applied by this Court; (b) P1,727.95, actually spent by private respondents for medical and burial expenses; and (c) attorney's fee, which was fixed by the trial court, at P500.00, but which, in view of the appeal taken by petitioner herein, first to the Court of Appeals and later to this Supreme Court, should be increased to P2,500.00. In other words, the amount adjudged in the decision

appealed from should be reduced to the aggregate sum of P49,561.28, with interest thereon, at the legal rate, from December 29, 1961, date of the promulgation of the decision of the trial court. _________

THE RECEIVER FOR NORTH NEGROS SUGAR COMPANY, INC., Petitioner, vs. PEDRO V. YBAEZ ET AL., Respondents. Ross, Selph and Carrascoso for petitioner. Pedro V. Ibaez in his own behalf as respondent. Jose Ma. Lopez Vito for other respondents. ZALDIVAR, J.:chanrobles virtual law library A petition for review of the decision of the Court of Appeal, rendered on October 14, 1963, in CA-G.R. No. 28608R, entitled "Pedro V. Ybaez, and Rosario V. Ybaez, represented by her legal guardian, Pedro V. Yba ez, plaintiffs-appellants, versus North Negros Sugar Company, Inc., Primitivo Gustilo, and Loreto Perez, defendantsappellees."chanrobles virtual law library Plaintiffs-appellants Pedro V. Ybaez and Rosario V. Ybaez, named respondents in the instant petition,1 are the brother and sister, respectively, and immediate heirs of Cesar V. Yba ez who was one of two persons who died as a result of the collision between the car, where said Cesar V. Yba ez was riding and being driven by Gil Dominguez, and train No. 5, owned by the North Negros Sugar Company, Inc., in the evening of August 31, 1937 in the railroad intersection at Hacienda Santa Teresa, Manapla, Occidental Negros, while the car was on its way from Bacolod City to Cadiz. Criminal prosecution for double homicide and serious physical injuries through reckless imprudence was instituted against Gil Dominguez, driver of the car, and Primitivo Gustilo and Loreto Perez, operator and brakeman, respectively, of the locomotive. The offended parties reserved their right to institute separate civil actions for damages. Primitivo Gustilo and Loreto Perez were tried together and acquitted of the crime charged. Gil Dominguez was also acquitted in a separate trial.chanroblesvirtualawlibrarychanrobles virtual law library Thereafter, a civil action based on culpa aquiliana was instituted, on May 15, 1940, in the Court of First Instance of Negros Occidental by Pedro V. Ybaez and Rosario V. Ybaez against Primitivo Gustilo, Loreto Perez, and their employer, North Negros Sugar Company, Inc., docketed as Civil Case No. 8367, seeking to recover damages for the death of the deceased. In their answer, defendants interposed as special defense the previous acquittal of defendants Primitivo Gustilo and Loreto Perez in the criminal case, and prayed for the dismissal of the complaint.chanroblesvirtualawlibrarychanrobles virtual law library At the pre-trial, on August 5, 1940, the parties agreed to reproduce in the civil case all the evidence submitted in the criminal case, as well as the decision in and the transcript of the stenographic notes taken during the trial of, the criminal case. Defendants filed a motion for summary judgment, praying for the dismissal of the civil case. The trial court, without any further hearing, considered the case submitted, and rendered a decision dismissing the case. Appeal was taken by the plaintiffs to the Court of Appeals, but the appeal was certified to this Court on the ground that the appeal merely involved questions of law. This Court, in G.R. No. L-6790, on March 28, 1955, reversed the decision of the lower court and remanded the case for further proceedings.chanroblesvirtualawlibrarychanrobles virtual law library During the pendency of the case in the lower court, plaintiff Rosario V. Yba ez died, leaving as her only heir, coplaintiff Pedro V. Ybaez, to continue the case. On the other hand, the North Negros Sugar Company, Inc. was dissolved and was accordingly substituted by its receiver Dr. Claudio R. Luzurriaga. One of the defendants, Loreto Perez, also died in the interim and the case against him was dismissed.chanroblesvirtualawlibrarychanrobles virtual law library After having received additional evidence, the Court of First Instance of Negros Occidental rendered judgment, on July 23, 1958, dismissing the case anew. Appeal was taken by plaintiff Pedro V. Yba ez to this Court, docketed as G.R. No. L-14849, but because questions of fact were involved, and the amount involved was less than P200,000, the case was certified, on August 25, 1960, to the Court of Appeals and docketed in the latter court as Case No. 28608-R.chanroblesvirtualawlibrarychanrobles virtual law library The Court of Appeals, on October 14, 1963, reversed the judgment of the lower court and held the North Negros Sugar Company, Inc. liable for the death of Cesar V. Yba ez, ordering it to pay plaintiff-appellant Pedro V. Ybaez damages consisting of P9,600.00 as compensatory damages for lost earnings of the deceased; P6,000.00 for death indemnity; P1,000.00 for funeral expenses; P5,000.00 "as moral damages for the mental anguish suffered by the heir"; P5,000.00 "for attorney's fees, considering the years and extensive work - the protracted litigation had taken;"2 and costs. A motion for reconsideration filed by defendant North Negros Sugar Company, Inc., upon the

grounds, among others, that the awards of moral damages and attorney's fees were not warranted under the law and the circumstances attending the litigation, was denied. Hence this petition for review.chanroblesvirtualawlibrarychanrobles virtual law library In this appeal, or petition for review petitioner limits itself to questioning the correctness of the decision of the Court of Appeals in so far as it awards moral damages and attorney's fees. In its brief, petitioner contents that the Court of Appeals erred:chanrobles virtual law library 1. "in ordering petitioner to pay P5,000 "as moral damages for mental anguish suffered" by plaintiffs who were brother and sister of the deceased"; andchanrobles virtual law library 2. "in awarding attorney's fees in the sum of P5,000 to the heirs of the deceased." 3chanrobles virtual law library 1. In support of the first assignment of error, petitioner cites paragraph 3 of Article 2206 of the new Civil Code, which provides that in case of death caused by a crime or quasi-delict, only the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Petitioner urges that in the instant case the heirs of the deceased Cesar V. Yba ez, being his brother, Pedro V. Ybaez, and his sister, Rosario V. Ybaez (now deceased), are not among those entitled to moral damages; consequently, the award to them of moral damages was not authorized by law.chanroblesvirtualawlibrarychanrobles virtual law library Respondent Pedro V. Ybaez, on the contrary, contends that the law applicable is in the old Civil Code, and not Article 2206 of the new Civil Code, because the accident that caused the death happened in 1937, and the case was filed in 1940. Said respondent maintains that the award of moral damages is authorized particularly under Articles 1902, 1903, 1103, 1104, 1106 and 1107 of the old Civil Code, and as ruled by this Court in the decisions in Lilius vs. Manila Railroad;4 Gutierrez vs. Gutierrez;5 and Castro vs. Acro Taxicab Inc.6 Moral damages, respondent urges, should be paid to the injured person; but if the injured person died as a consequence of the culpable act and the victim left no descendants or ascendants, the damages must be paid - taking into consideration the principles of the general law on damages, of the law on succession, and the fact that under the old Civil Code no specific persons are indicated to be the only ones entitled to recover moral damages - to the heirs or next of kin of the victim. Respondent further cites the rulings of this Court in the cases of Bernal vs. House, et al.7; Astudillo vs. Manila Electric Co.8; and Manzanares vs. Moreta9, wherein the fact of heirship, as viewed from the general principle of succession of the deceased victim, was taken into consideration in determining who would be paid the indemnity for damages.chanroblesvirtualawlibrarychanrobles virtual law library In reply, petitioner points out that although the cases cited by respondent show that moral damages were awarded even before the new Civil Code took effect, in none of the cases cited, however, were moral damages awarded to a brother or sister of the deceased, but only to either the victim himself, the surviving spouses, the children or the parents.chanroblesvirtualawlibrarychanrobles virtual law library To resolve the issue, we have to determine, what law is a applicable - whether the provisions of the old Civil Code or of the new Civil Code. We believe that the old Civil Code is the law applicable to the case at bar, subject to such modifications as are suggested, or are warranted, under the transitional provisions of the new Civil Code, as we may show at the later part of this opinion. This is so, because the acts and events that gave rise to the instant action took place in 1937, and the action was commenced in 1940. Article 2253 of the new Civil Code, provides: The Civil Code of 1889 and other previous laws shall govern rights originating, under said laws, from acts done or events which took place under their regime; even though this Code may regulate them in a different manner, or may not recognize them . . . . The pertinent provisions of the old Civil Code are Articles 1902 and 1903. The first article provides: Art. 1902. Any person who by act or omission causes damage to another by his fault or negligence shall be liable for the damage so done. and the second article in part, provides: Art. 1903. The obligation imposed by the next preceding article is enforcible not only for personal acts and omissions, but also for those of persons for whom another is responsible. xxx xxx x x xchanrobles virtual law library

Owners or directors of an establishment or business are equally liable for any damages caused by their employees while engaged in the branch of the service in which employed, or on the occasion of the performance of their duties.

This Court said: "Article 1902 of the Civil Code declares that any person who by an act or omission, characterized by fault or negligence, causes damage to another shall be liable for the damage done . . . a person is liable for damage done to another by any culpable act; and by culpable act is meant any act which is blameworthy when judged by accepted legal standards. The idea thus expressed is undoubtedly broad enough to include any rational conception of liability for the tortious acts likely to be developed in any society." 10 The word "damage" in said article, comprehending as it does all that are embraced in its meaning, includes any and all damages that a human being may suffer in any and all the manifestations of his life: physical or material, moral or psychological, mental or spiritual, financial, economic, social, political, and religious. 11chanrobles virtual law library It is particularly noticeable that Article 1902 stresses the passive subject of the obligation to pay damages caused by his fault or negligence. The article does not limit or specify the active subjects, much less the relation that must exist between the victim of the culpa aquiliana and the person who may recover damages, thus warranting the inference that, in principle, anybody who suffers any damage from culpa aquilianawhether a relative or not of the victim, may recover damages from the person responsible therefor. This Court had granted moral damages not only to the person who himself was injured, 12 but also to the legitimate children and heirs of the deceased. 13Parents, even natural, have also been awarded damages for the death of their children.14chanrobles virtual law library We have not come across, and herein respondent has not cited, any case in this jurisdiction where a brother and/or sister of the victim of culpa aquiliana was awarded moral damages. In our search for persuasive authority, however, we came across decisions by the courts of France whose Civil Code, in its article 1383, provides substantially the same as article 1902 of the Civil Code of Spain, as follows: Cada uno es responsable del dao que ha causado no solamente por su hecho, sino tambien por su negligencia o por su imprudencia. (Ripert and Boulanger, Tratado de Derecho Civil, Vol. V, 2nd part, p. 50). On the basis of the above-quoted article, in France, moral damages for mental anguish (sentimientos afectivos) have been awarded not only to parents, children and spouse, of the victim of culpa aquiliana but also to brothers and sisters, natural grandparents, and godchildren. 15chanrobles virtual law library We thus see that a provision in the Civil Code of France which is substantially similar to the provision of the Civil Code of Spain, relating to culpa aquiliana is so applied by the courts of France as to hold a person guilty of culpa aquiliana liable for moral damages to the person injured, or to his spouse, children, parents, brothers and sisters, and even to godchildren. If the provision of our old Civil Code - which was itself the Civil Code of Spain of 1889 relating to culpa aquiliana were to be applied as it had been applied in France, then the person guilty of culpa aquiliana under our old Civil Code would be liable for moral damages to the person injured, or to his spouse, children, parents, brothers and sisters and even to his godchildren. This would mean that under our old Civil Code the liability for moral damages for mental anguish due to culpa aquiliana was to more persons than what our new Civil Code now provides in its Article 2206 which limits the liability for moral damages to the spouse and legitimate and illegitimate descendants and ascendants of the deceased. And so, under the new Civil Code, a less severe sanction - at least as regards the persons entitled to moral damages - is provided for, than under the old Civil Code.chanroblesvirtualawlibrarychanrobles virtual law library Article 2257 of the new Civil Code - one of the transitional provisions - provides as follows: Art. 2257. Provisions of this Code which attach a civil sanction or penalty or a deprivation of rights to acts or omissions which were not penalized by the former laws, are not applicable to those who, when said laws were in force, may have executed the act or incurred in the omission forbidden or condemned by this Code. If the fault is also punished by the previous legislation, the less severe sanction shall be applied. xxx (Emphasis supplied.) It may well be said that culpa aquiliana, or quasi-delict, is punished both by the old Civil Code - the previous legislation - and by the new Civil Code. But, as we have pointed out, a less severe sanction, or penalty, for culpa aquiliana is provided for in the new Civil Code. It follows, therefore, that Article 2206 of the new Civil Code which provides that only the spouse, legitimate and illegitimate descendants and ascendants may demand moral damages for mental anguish by reason of the death of the deceased caused by quasi-delict - should be applied in the instant case. Hence, petitioner herein, who claims moral damages for the death of his brother Cesar V. Yba ez caused byquasi-delict, is not entitled to, and should not have been awarded, moral damages, by the Court of Appeals. 16chanrobles virtual law library 2. Regarding the second error assigned, petitioner argues that the Court of Appeals had no special reason for awarding attorney's fees because the petitioner had not acted in gross and evident bad faith in resisting respondent's claims for damages, and the claims of respondent herein could not be characterized as "plainly valid, just and xxx x x xchanrobles virtual law library

demandable" claims as contemplated under paragraph (5) of Article 2208 of the new Civil Code, considering that the two employees, for whose alleged negligent acts herein petitioner is made to answer, were acquitted in the criminal case, and the civil case for damages was dismissed by the trial court.chanroblesvirtualawlibrarychanrobles virtual law library Respondent, on the other hand, argues that the Court of Appeals gave as reason for the award of attorney's fees: "considering the years and extensive work - the protracted litigation had taken." Respondent also maintains that the award must have been based by the Court of Appeals on Article 2208 (11) and Article 2253 of the new Civil Code.chanroblesvirtualawlibrarychanrobles virtual law library But petitioner urges that the issue is whether or not attorney's fees might be recovered, and not the amount of attorney's fees in the determination of which the long years of litigation given as reason by the Court of Appeals would be pertinent.chanroblesvirtualawlibrarychanrobles virtual law library Respondent's argument that the award of attorney's fees was justified under Article 2208 (11) of the new Civil Code is untenable, because the instant case was filed on May 15, 1940, or before the effectivity of the new Civil Code. This Court, in the case of Bureau of Lands vs. Samia, et al., 17 held: That portion of the decision which awards P10,000 to respondents as attorney's fees is untenable. Although courts have, under paragraph (11) of Article 2208 of the Civil Code, authority to award attorney's fees whenever it may be "just and equitable," said provision is inapplicable to the present case, the same having been instituted before the effectivity of the said Code. The refusal of herein petitioner to pay the damages asked, although the case was finally decided against it, cannot be said to have been caused by bad faith. In the case of George Edward Koster Inc. vs. Zulueta, 18 this Court said: At common law, the successful party usually has no right to have the fees of his attorney, as such, taxed against his opponent (14 L. ed. 181). The Court will not ordinarily allow counsel fees to the successful party. Each party to the action must pay his own lawyer . . . . Counsel fees paid in prior action have been allowed . . . (where) the conduct of the party against whom they were allowed, so directly and certainly caused the expenditure for this purpose, that the loss of the amount so paid was easily within such causal relations to the defendant's wrong as to warrant the assessment of the damages in compensation for it (Sears vs. Inhabitants of Nahant, 102 N. E. 491.). Our rulings before the New Civil Code took effect (the present case having arisen before) have been as follows: "It is not sound public policy to place a penalty on the right to litigate. To compel the defeated party to pay the fees of counsel for his successful opponent would throw wide the door of temptation to the opposing party and his counsel to swell the fees to undue proportions, and to apportion them arbitrarily between those pertaining properly to one branch of the case from the other.chanroblesvirtualawlibrarychanrobles virtual law library "This Court has already placed itself on record as favoring the view taken by those courts which hold that attorney's fees are not a proper element of damages." (Tan Ti vs. Alvear, 26 Phil. 566; The Borden Co. vs. Doctors Pharmaceuticals, Inc., 90 Phil. 500).chanroblesvirtualawlibrarychanrobles virtual law library ". . . Counsel fees, other than those fixed in the rules as costs, are not an element of recoverable damages." (Jesswani vs. Masaram Dialdas, G.R. No. L-4651, May 12, 1952)." WHEREFORE, the decision of the Court of Appeals sought to be reviewed should be, as it is hereby, modified by eliminating therefrom the award of P5,000.00 for moral damages for mental anguish suffered by the heir, and the award of P5,000.00 for attorney's fees. No pronouncement as to costs. It is so ordered. _______________ PEOPLE OF THE PHILIPPINES, appellee, vs. EUFROCINO1 AGUDEZ y ASIONG @ "OPRING", RONILO AGUDEZ y COCOY @ "DANILO", RICARDO AGUDEZ y COCOY @ "OLONG", FERNANDO AGUDEZ y COCOY (at large), PAQUITO KATIMPO y INGGO @ "KITOY" (at large), accused. EUFROCINO AGUDEZ y ASIONG @ "OPRING", RONILO AGUDEZ y COCOY @ "DANILO", RICARDO AGUDEZ y COCOY @ "OLONG", accused-appellants. DECISION AUSTRIA-MARTINEZ, J.:

Before us for automatic review is the consolidated decision2 of the Regional Trial Court (RTC) of Kalibo, Aklan, Branch 2, in Criminal Cases Nos. 5176 and 5177 convicting appellant Eufrocino Agudez and his two sons, appellants Ronilo Agudez and Ricardo Agudez of two counts of murder and sentencing each of them to suffer the supreme penalty of death for each count. Appellants were apprehended by police authorities on June 27, 1998. They were charged with murder in two separate Informations both dated June 29, 1998 together with Fernando Agudez and Paquito Katimpo, son and sonin-law of appellant Eufrocino, respectively. The accusatory portions of the amended Informations, docketed as Criminal Cases Nos. 5176 and 5177, read as follows: Criminal Case No. 5176 The undersigned Third Assistant Provincial Prosecutor of Aklan hereby accuses EUFRICINO AGUDEZ Y ASIONG alias "OPRING", RONILO AGUDEZ Y COCOY alias "DANILO", RICARDO AGUDEZ Y COCOY alias "OLONG", all of Sitio Binitinan, Barangay Oquendo, Balete, Aklan, but presently detained at the Municipal Jail of Balete, Aklan, FERNANDO AGUDEZ Y COCOY and PAQUITO KATIMPO Y INGGO alias "KITOY" both of Sitio Binitinan, Barangay Oquendo, Balete, Aklan and both at large, of the crime of MURDER, committed as follows: That on or about the 27th day of June, 1998, in the morning, in Sitio Panukduka, Barangay Oquendo, Municipality of Balete, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, while armed with long shotguns, with intent to kill, with evident premeditation, treachery and use of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot one DOMINADOR CASTRO, thereby inflicting upon the latter mortal wounds, to wit: 1. GSW 1 cm. in diameter coursing downward and anteriorly at the occipital region. 2. GSW 1 cm. in diameter at the anterior aspect of the left wrist. 3. GSW 1 cm. in diameter at the left scapular region. 4. GSW 1 cm. in diameter coursing downward and anteriorly at the interscapular area. 5. GSW 1 cm. in diameter just below the right scapular region. 6. GSW 1 cm. in diameter right lower back. 7. GSW 1 cm. in diameter 2 cm. lateral to injury #6. 8. GSW 1 cm. in diameter coursing downward and anteriorly right buttock. 9. GSW 1 cm. in diameter posterior aspect of the distal 3rd of the right thigh. as per Post Mortem Examination Report issued by Dr. Alfredo B. Villaruel, Rural Health Physician, Balete, Aklan, hereto attached and made an integral part of this information, which wounds directly caused the death of the said DOMINADOR CASTRO. That as a result of the criminal acts of the accused, the heirs of the deceased suffered actual and compensatory damages in the amount of P50,000.00. CONTRARY TO LAW.3 Criminal Case No. 5177 The undersigned Third Assistant Provincial Prosecutor of Aklan hereby accuses EUFRICINO AGUDEZ Y ASIONG alias "OPRING", RONILO AGUDEZ Y COCOY alias "DANILO", RICARDO AGUDEZ Y COCOY alias "OLONG", all of Sitio Binitinan, Barangay Oquendo, Balete, Aklan, but presently detained at the Municipal Jail of Balete, Aklan, FERNANDO AGUDEZ Y COCOY and PAQUITO KATIMPO Y INGGO alias "KITOY" both of Sitio Binitinan, Barangay Oquendo, Balete, Aklan and both at large, of the crime of MURDER, committed as follows:

That on or about the 27th day of June, 1998, in the morning, in Sitio Panukduka, Barangay Oquendo, Municipality of Balete, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, while armed with long shotguns, with intent to kill, with evident premeditation, treachery and use of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot one MAMERTO C. NALANGAN, thereby inflicting upon the latter mortal wounds, to wit: 1. GSW 1 cm. in diameter just above the right scapular region. 2. GSW 1 cm. in diameter 2 cm lateral to injury #1. 3. GSW 1 cm. in diameter posterior aspect of the proximal 3rd of the right arm coursing downward and medially. 4. GSW 1 cm. in diameter at the interscapular area. 5. GSW 1 cm. in diameter coursing downward and anteriorly at the infrascapular area. 6. GSW 1 cm. in diameter at the level of midspinal line and 7th rib. 7. GSW 1 cm. in diameter at the right lower back. 8. GSW 1 cm. in diameter coursing downward and anteriorly at the middle 3rd of left thigh. 9. GSW 1 cm. in diameter at the distal 3rd of left thigh. 10. GSW 1 cm. in diameter at posterior aspect of the proximal 3rd of left leg. as per Post Mortem Examination Report issued by Dr. Alfredo B. Villaruel, Rural Health Physician, Balete, Aklan, hereto attached and made an integral part of this information, which wounds directly caused the death of the said MAMERTO NALANGAN. That as a result of the criminal acts of the accused, the heirs of the deceased suffered actual and compensatory damages in the amount of P50,000.00. CONTRARY TO LAW.4 Upon arraignment, appellants Eufrocino, Ronilo and Ricardo pleaded not guilty to the charges against them. The cases were consolidated and joint trial ensued. Accused Fernando and Katimpo remain at large. The prosecution evidence established the following facts: On the basis of the prosecution evidence, the following transpired on June 27, 1998: About 5:00 in the morning, Adoracion Castro, together with her husband Dominador Castro and their nephew Mamerto Nalangan, left their house at Barangay Oquendo, Balete, Aklan. Travelling by foot, they headed for Barangay Ganzon, Jamindan, Capiz to hear mass at the Seventh Day Adventist Church. Around 6:30, they reached Jal-O river which was located at Sitio Panukduka, Barangay Oquendo, Balete, Aklan. As they were crossing the river, one after the other, Adoracion suddenly heard a gunshot. She immediately turned around as she was walking ahead of Dominador and Mamerto. She then saw Dominador looking at her, biting his lips. She shouted at Dominador and told him to "duck to the ground". Immediately thereafter, she heard two shots and saw Dominador and Mamerto fall into the water. She went to the aid of Dominador and held him in her arms. While holding her husband, Adoracion looked up and saw the five accused with their bodies, from the waist up, protruding from fox holes dug in the ground. They were about ten armslength away from Adoracion and Dominador and they were all armed with shotguns locally known as "pugakhang". They immediately ran and scampered to different directions. Adoracion then told Dominador that she would go back home to ask for help. However, before leaving her husband and nephew Mamerto, she noticed that both of them were no longer breathing. She immediately informed her sons, Edwin and Efren, of the deaths of Dominador and Mamerto.5 At 11:30 in the morning, Efren and a certain Barangay Captain Dandoy reported the shooting incident to the police authorities in Balete, Aklan. The chief of police of Balete then formed a team which proceeded to the crime scene and conducted an investigation.6 After finishing their investigation, the police authorities retrieved the bodies of Dominador and Mamerto and brought them to Sitio Gubang, Barangay Guadalupe where the bodies were examined. 7 It was around 6:00 in the evening that Adoracion again saw the body of her husband at Sitio Gubang. There she was asked to identify a

person who was earlier apprehended by the police. Adoracion identified appellant Ricardo Agudez as one of the persons who shot her husband and nephew.8 Around 7:00, appellants Eufrocino and Ronilo were also apprehended by police authorities.9 The following morning, Adoracion identified them as among those who killed her husband and nephew.10 Adoracion further testified that the five accused shot at her husband and nephew because they were in the belief that it was her son who had earlier killed a son of appellant Eufrocino. 11 Appellants main defense is alibi. They, together with two other witnesses, Jenie Zaulda and Nelson Cerezo, took the witness stand to prove their defense. The gist of their testimonies taken together is as follows: Around 6:30 in the morning of June 27, 1998, Jenie went to the house of barangay kagawad Nelson Cerezo located at Barangay Julita, Libacao, Aklan. Upon arriving at Nelsons house, he saw appellants Eufrocino and Ricardo getting ready for work. Jenie is acquainted with them as he has seen them stay in the house of Nelson starting in the month of June 1998. Jenie found out that Nelson was not at home because he is attending the wake of a certain Iluminado Sagales. Since Jenie wanted to talk to Nelson, he decided to go to the wake. Appellants Ricardo and Eufrocino went out of the house with him. 12 Jenie proceeded to the wake but Eufrocino and Ricardo went to Sitio Gaob, Barangay Julita, Libacao, Aklan to construct a pigpen at the house of a certain Romeo Zamora.13 Upon arriving at the wake, Jenie saw Nelson and appellant Ronilo playing "tong-its", a card game. After briefly conversing with Nelson, Jenie went home.14 On the other hand, appellants Ricardo and Eufrocino arrived at the house of Zamora at 8:00 of the same morning and worked there until 3:00 in the afternoon of the same day. After they finished constructing the pigpen, they went home. They arrived at the house of Nelson at 4:30 of the same afternoon. 15 Meanwhile, Nelson and appellant Ronilo arrived home earlier at 2:00 in the afternoon, having stayed at the wake since 9:00 in the evening of the previous day, January 26, 1998. 16 It was in Nelsons house that police authorities apprehended appellant Ricardo in the afternoon of June 27, 1998. 17 Later in the evening of the same day, appellants Eufrocino and Ronilo were also arrested by policemen at the house of Nelson. 18 On January 14, 1999, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, this Court finds the accused Eufrocino Agudez y Asiong, Ronilo Agudez y Cocoy and Ricardo Agudez y Cocoy, GUILTY beyond reasonable doubt of two (2) counts of MURDER under Article 248 of the Revised Penal Code, as amended by R.A. 7659, and hereby imposes upon each of them the penalty of DEATH for each count, and further ORDERS them to jointly and severally pay 1) To the legal heirs of the victim Dominador Castro: a) The amount of P50,000.00 for the victims death; and b) The amount of P159,960 for the victims loss of earning capacity. 2) To the legal heirs of the victim Mamerto C. Nalangan: a) The sum of P50,000.00 only for the victims death. And lastly, for the time being, let these cases before this Court against the accused Fernando C. Agudez and Paquito I. Katimpo who, as of this moment, are still at large, be sent to the Archives, to be reopened only upon their apprehension by the authorities. With costs. SO ORDERED.19 Hence, herein automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants raise the following Assignment of Errors: I THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II

THE TRIAL COURT ERRED IN APPRECIATING TREACHERY AND EVIDENT PREMEDITATION AGAINST THE ACCUSED III THE TRIAL COURT ERRED IN APPRECIATING BAND AND UNINHABITED PLACE AGAINST THE ACCUSED."20 On the Credibility of Prosecution Eye-witness In their first assigned error, appellants assail the credibility of prosecution witness Adoracion Castro who is the lone eyewitness to the crime. They claim that Adoracion could not have clearly seen the perpetrators of the crime because of the presence of foliage around the holes where the assailants hid. However, SPO2 Jerry Custodio testified that from the vantage point where the holes were located, the cadavers of the victims could still be seen despite the presence of plants in the adjoining area.21 Hence, while it may be true that Adoracion did not have a clear line of vision because of the foliage surrounding the holes where appellants and their companions hid, it is not improbable for her to have seen and identified appellants as three of the five assailants of her husband and nephew, when they emerged from the holes and scampered to different directions. Moreover, Adoracion could have easily identified appellants as she was only about ten armslength away from the place where she saw them and considering that all five accused were known to her since January 1998.22 Appellants insinuate that Adoracion was ill-motivated in accusing them of killing her husband and nephew. They claim that Adoracion simply wanted appellants thrown into jail to avenge the death of her husband. However, we find appellants allegations unsubstantiated. The fact that Adoracion is related to the victims does not necessarily taint her testimony. Blood relationship between a witness and the victims does not, by itself, impair the witness credibility.23 As the widow and aunt of the victims Dominador and Mamerto, respectively, Adoracion is the most aggrieved party and her motive of putting the killers behind bars cannot be considered improper. 24 We have held that it is unnatural for an aggrieved relative who earnestly seeks justice to falsely accuse someone other than the actual culprit. Moreover, since there is no competent evidence to prove that improper motive moved Adoracion to testify falsely, the sound conclusion is that no such motive existed25 and her testimony is worthy of full faith and credit. 26 The truthfulness of Adoracions testimony is also bolstered by the fact that evidence found in the crime scene, consisting of spent shells of shotguns, the number of wounds sustained by the victims and the pellet recovered from the left wrist of Dominador Castro during the autopsy27 is consistent with her statement as to the kind of weapons used by appellants and their companions. The trial court lent credence to the testimony of Adoracion. Basic is the rule that this Court will not interfere with the trial courts assessment of the credibility of witnesses except when there appears on record some fact or circumstance of weight and influence which the trial court has overlooked, misapprehended or misinterpreted.28The reason for this rule is that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. 29 In People vs. Magallanes30, we held that: The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a discovered lie, the tremulous mutter of a reluctant answer, or the forthright tone of a ready reply, or the furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. In the present case, we find no compelling reason to depart from the trial courts observation that Adoracion Castro testified in a straightforward, sincere and natural manner and that her emotional reactions in particular, were candid and spontaneous revealing inter alia that she was telling the truth.31 The testimony of a single witness, if positive and credible, is sufficient to support a conviction.32 The trial court did not err in finding appellants guilty of Murder beyond reasonable doubt. On Conspiracy We agree with the trial courts finding of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 33 In People vs. Caballero, we held that: Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt. However, direct proof is not required as conspiracy may be proved by circumstantial evidence. Conspiracy may be proved through the collective acts of the accused, before, during and after the commission of a felony, all the accused aiming at the same object, one performing one part and another performing another for the attainment of the same objective, their acts though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and

concurrence of sentiments. The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan. Direct proof of a person in agreement to commit a crime is not necessary. It is enough that at the time of the commission of a crime, all the malefactors had the same purpose and were united in their execution. Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of them for in contemplation of the law, the act of one is the act of all.34 (Emphasis supplied). In the present case, the following circumstances prove the existence of conspiracy among the appellant and the other two accused: (1) the presence of all the accused at the same time in an isolated area where the killing took place; (2) the existence of five holes from each of which each of the five accused emerged; (3) all five of the accused were armed with shotguns or "pugakhang"; (4) after the victims fell when fired upon by all of them, all the accused simultaneously came out of hiding and scampered to the thickets. In conspiracy, "where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be appreciated".35 The second and third assigned errors refer to the appreciation by the trial court of the aggravating circumstances of treachery, evident premeditation, band and uninhabited place. On Treachery There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. 36 Hence, for treachery to be appreciated, two conditions must be met, to wit: (1) the employment of means, methods or manner of execution that would ensure the offenders safety from any defense or retaliatory act on the part of the offended party; and (2) the offenders deliberate or conscious choice of the means, method or manner of execution. 37 Adoracion did not actually see how the shooting started or how the attack was commenced. However, she testified that she was only about five armslength away from her husband and nephew when she heard the first gunshot. No amount of warning could have prepared the victims against the impending danger that befell upon them. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner of execution, affording the hapless and unsuspecting victim no chance to resist or escape. 38 When they were assaulted, the victims were peacefully crossing the Jal-O river without any inkling that they were about to be attacked. Appellants and their companions purposively established themselves in strategic positions from which vantage point they fired upon the victims, taking them by surprise. The fact that the victims backs were turned towards their assailants at the time they were fired upon only proves the treacherousness of the attack. The victims were not even given the chance to face their attackers as they were felled by successive bursts of gunshots. Moreover, at the time of the shooting, the victims were then crossing the river and the water was about thigh deep.39 This circumstance must have considerably decreased the victims mobility giving them less opportunity to seek cover and at the same time ensured the safety of appellants and their cohorts from any retaliatory act that the victims might have made. Except for their bags and the hoe Dominador was carrying, the victims were unarmed and had nothing to defend themselves with against the firearms used by their assailants. Even granting that Dominador and Mamerto saw their attackers immediately before they were fired upon, such circumstance would not render the attack less treacherous as it was executed with such swift, vicious and stealthy manner as to render any defense like the use of the hoe virtually impossible. Furthermore, the deadly nature of the weapons used and the number and location of the wounds inflicted upon the victims demonstrate a treacherous, deliberate and determined assault with intent to kill. As earlier mentioned, Dominador Castro sustained nine wounds.40 Except for a single wound on his left wrist, all of his wounds were located at his back.41 In the same manner, Mamerto Nalangan sustained ten wounds, all of which were located at his back.42 The victims were shot from behind. We have held that treachery exists when a defenseless victim was shot from behind for this shows that the appellant had employed means of attack which offered no risk to himself from any defensive or retaliatory act which the victim might have taken. 43 On Evident Premeditation Evident premeditation requires proof showing: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused has clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.44 In the present case, we find no clear and positive evidence to prove the first and third requisites. While there are pieces of evidence on the basis of which it can be inferred that appellants and their companions made preparations in shooting the victims, no proof was shown as to how and when the plan to kill was hatched or the time that elapsed before it was carried out. As we held in People vs. Jarlos,45 evident premeditation may not be appreciated where there is no proof as to how and when the plan to kill was hatched or the time that elapsed before it was carried out.

Since there is no evidence of the time when appellants conceived the plot to kill the victims, it could not be ascertained whether there is sufficient lapse of time between the determination to kill and the execution of the crime so as to allow them to reflect upon the consequences of the concerted act. On Abuse of Superior Strength Since treachery attended the killing, abuse of superior strength alleged in the Information is absorbed by said circumstance.46 Although it may be noted that the two Informations charging appellants with separate crimes of murder failed to specifically allege treachery, evident premeditation and abuse of superior strength as qualifying circumstances, the established rule is that . . . [I]t is the specific allegation of the attendant circumstance, and not the use of the words aggravating orqualifying circumstances, that raises a crime to a higher category. Thus, the words qualifying, qualified by, aggravating, or aggravated by need not be expressly stated as long as the particular attendant circumstances are specified in the information. We reiterate our pronouncements in said case that Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure merely require that the information allege, specify, or enumerate the attendant circumstances mentioned in the law that qualify or aggravate the offense.47 Hence, in the present case, while the two Informations charging appellants with separate crimes of murder did not use the words "aggravated by" or "qualified by", the presence of treachery, evident premeditation and abuse of superior strength in the killing of Dominador and Mamerto is alleged therein. Such specification, enumeration or allegation sufficiently satisfies the requirements of Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, to wit: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. The qualifying circumstance of treachery having been alleged and proved by competent evidence, the trial court correctly found appellants guilty of Murder beyond reasonable doubt. On Band and Uninhabited Place We agree with appellants that the aggravating circumstances of band and uninhabited place although established by the prosecution evidence should not have been appreciated by the trial court because they were not alleged in the two Informations as required by the aforequoted Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure. It may be noted that the crime was committed in 1998, before the effectivity of the said Revised Rules on December 1, 2000. However, the Rules may be applied retroactively because they are more favorable to the appellants.48 Appellants Defense Appellants defense of alibi cannot prosper. Basic is the rule that the defense of alibi should be rejected when the identity of the accused has been sufficiently and positively established by an eyewitness because alibi cannot prevail over positive identification.49 Criminal Liability of Appellants Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death. Article 63 of the same Code provides that when the law prescribes two indivisible penalties, the lesser penalty shall be imposed when, in the commission of the deed, there are neither mitigating nor aggravating circumstances. In the present case, no mitigating circumstances were proven. Neither did the prosecution allege and prove any aggravating circumstance. Hence, the penalty of death imposed by the trial court should be reduced to reclusion perpetua, in each case.

Civil Liability of Appellants We find no error in the trial courts award of P50,000.00 as civil indemnity to the respective heirs of Dominador Castro and Mamerto Nalangan, without need of proof other than the fact that a crime was committed resulting in the deaths of the victims and that the accused are responsible therefor. 50 The trial court awarded the heirs of Dominador Castro the amount of P159,960.00 by reason of the victims loss of earning capacity. The general rule is that documentary evidence should be presented to substantiate a claim for damages for loss of earning capacity.51 By way of exception, damages may be awarded despite the absence of documentary evidence provided that there is testimony that the victim was either (1) self-employed earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victims line of work no documentary evidence is available; or (2) employed as a daily wage worker earning less than the minimum wage under current labor laws.52 In the present case, no documentary evidence was presented to prove the claim of Dominadors heirs for damages by reason of loss of earning capacity. Howev er, Adoracion testified that at the time of his death, Dominador was 60 years old53; his occupation was farming, carpentry and making of banana fiber; and, he earned not less than P1,000.00 a month.54 We find Adoracions testimony sufficient to justify the award of damages for loss of earning capacity. Although appellants did not assail the amount awarded by the trial court, the same should be modified in accordance with current jurisprudence. In the case of People vs. Carriaga,55 we provided for the formula in determining a persons net earning capacity as follows: Net Earning Capacity = 2/3 x (80 age of the x (a reasonable victim at the time portion of the of his death) annual net income which would have been received by the heirs for support)

Absent any proof of living expenses, the net income is deemed to be 50 % of the gross income.56 Hence, in accordance with the formula outlined above, the heirs of Dominador should be awarded the amount ofP80,000.00, rounded off, for the victims loss of earning capa city, computed as follows: Net Earning Capacity = 2/3 x (80-60) x [P12,000.00 - (P12,000.00)] 2/3 x (20) x P6,000.00 13.33 x P6,000.00 P79,999.99 The trial court correctly ruled that the heirs of Mamerto Nalangan are not entitled to be indemnified for loss of earning capacity because no evidence was presented to prove Mamertos occupation as well as his income. We likewise find no error in the trial courts ruling that actual or compensatory damages may not be awarded because the prosecution failed to present competent evidence to support their claim for actual damages. Instead of official receipts, the prosecution was only able to present a self-serving list of expenses to prove the actual expenses incurred by the heirs of Dominador and Mamerto. We have held that a list of expenses cannot replace receipts when the latter should have been issued as a matter of course in business transactions.57 Neither can the mere testimonies of Adoracion Castro and Efren Castro on the amount they spent suffice. It is necessary for a party seeking an award for actual damages to produce competent proof or the best evidence obtainable to justify such award.58 Nonetheless, in lieu of actual damages, the heirs of Dominador and Mamerto may be awarded temperate damages in the amount of P25,000.00, in accordance with prevailing jurisprudence, as it has been shown that the family of the victims incurred burial and funeral expenses, although the amount thereof cannot be proved with certainty. 59 The trial court did not award moral damages. With respect to Dominador, the prosecution presented Adoracion Castro, wife of the deceased victim who testified as to the pain and the suffering experienced by the heirs. 60 Hence, the heirs of Dominador Castro are entitled to moral damages in the amount of P50,000.00. On the other hand, none of the heirs of Mamerto Nalangan was presented to testify on the emotional anguish they felt by reason of the latters death. Moral damages cannot be awarded if no evidence, testimonial or otherwise, was presented by the prosecution to support it.61 Hence, the heirs of Mamerto are not entitled to moral damages.

The heirs of the victims are entitled to exemplary damages. The presence of the aggravating circumstances of band and uninhabited place was proven in the present case as earlier discussed. While these circumstances could not aggravate the crime because they were not specifically alleged in the Informations in violation of Section 8, Rule 110 of the Revised Rules of Criminal Procedure, insofar as the civil aspect of the case is concerned, the presence of these aggravating circumstances entitles the heirs of Dominador and Mamerto to exemplary damages in the amount of P25,000.00 in accordance with Article 2230 of the Civil Code 62 and with prevailing jurisprudence.63 WHEREFORE, the Decision of the Regional Trial Court of Kalibo, Aklan, Branch 2, is AFFIRMED with MODIFICATIONS. Appellants Eufrocino Agudez y Asiong, Ronilo Agudez y Cocoy and Ricardo Agudez y Cocoy are found guilty beyond reasonable doubt of Murder in Criminal Cases Nos. 5176 and 5177 and are sentenced to suffer the penalty of reclusion perpetua for each crime. Appellants are directed to pay, jointly and severally, the heirs of Dominador Castro the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages,P80,000.00 for loss of earning capacity, P25,000.00 as temperate damages and P25,000.00 as exemplary damages; and to the heirs of Mamerto Nalangan the amounts of P50,000.00 as civil indemnity, P25,000.00 as temperate damages and P25,000.00 as exemplary damages. Costs de oficio.