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G.R. No.

L-68102 July 16, 1992


GEORGE
MCKEE
and
ARACELI
KOH
MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG
and ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA
KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO
KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG
and ROSALINDA MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the
Resolution of the Court of Appeals in C.A.-G.R. CV Nos.
69040-41, promulgated on 3 April 1984, which set
aside its previous Decision dated 29 November 1983
reversing the Decision of the trial court which
dismissed petitioners' complaints in Civil Case No.
4477 and Civil Case No. 4478 of the then Court of First
Instance (now Regional Trial Court) of Pampanga
entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla
vs. Jaime Tayag and Rosalinda Manalo," and "George
McKee and Araceli Koh McKee vs. Jaime Tayag and
Rosalinda Manalo," respectively, and granted the
private respondents' counterclaim for moral damages,
attorney's fees and litigation expenses.
The said civil cases for damages based on quasidelict were filed as a result of a vehicular accident
which led to the deaths of Jose Koh, Kim Koh McKee
and Loida Bondoc and caused physical injuries to
George Koh McKee, Christopher Koh McKee and
petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors
George Koh McKee, Christopher Koh McKee and the
deceased Kim Koh McKee, were the plaintiffs in Civil
Case No. 4478, while petitioner Carmen Dayrit Koh
and her co-petitioners in G.R. No. 68103, who are the
wife and children, respectively, of the late Jose Koh,
were the plaintiffs in Civil Case No. 4477. Upon the
other hand, private respondents are the owners of the
cargo truck which figured in the mishap; a certain
Ruben Galang was the driver of the truck at the time
of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8
January 1977, in Pulong Pulo Bridge along MacArthur
Highway, between Angeles City and San Fernando,
Pampanga, a head-on-collision took place between an
International cargo truck, Loadstar, with Plate No.
RF912-T Philippines '76 owned by private respondents,
and driven by Ruben Galang, and a Ford Escort car

bearing Plate No. S2-850 Pampanga '76 driven by Jose


Koh. The collision resulted in the deaths of Jose Koh,
Kim Koh McKee and Loida Bondoc, and physical
injuries to George Koh McKee, Christopher Koh McKee
and Araceli Koh McKee, all passengers of the Ford
Escort.
Jose Koh was the father of petitioner Araceli Koh
McKee, the mother of minors George, Christopher and
Kim Koh McKee. Loida Bondoc, on the other hand, was
the baby sitter of one and a half year old Kim. At the
time of the collision, Kim was seated on the lap of
Loida Bondoc who was at the front passenger's seat of
the car while Araceli and her two (2) sons were seated
at the car's back seat.
Immediately before the collision, the cargo truck,
which was loaded with two hundred (200) cavans of
rice weighing about 10,000 kilos, was traveling
southward from Angeles City to San Fernando
Pampanga, and was bound for Manila. The Ford Escort,
on the other hand, was on its way to Angeles City from
San Fernando. When the northbound car was about
(10) meters away from the southern approach of the
bridge, two (2) boys suddenly darted from the right
side of the road and into the lane of the car. The boys
were moving back and forth, unsure of whether to
cross all the way to the other side or turn back. Jose
Koh blew the horn of the car, swerved to the left and
entered the lane of the truck; he then switched on the
headlights of the car, applied the brakes and thereafter
attempted to return to his lane. Before he could do so,
his car collided with the truck. The collision occurred in
the lane of the truck, which was the opposite lane, on
the said bridge.
The incident was immediately reported to the police
station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the
spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be
sixty (60) "footsteps" long and fourteen (14)
"footsteps" wide seven (7) "footsteps" from the
center line to the inner edge of the side walk on both
sides. 2 Pulong Pulo Bridge, which spans a dry brook,
is made of concrete with soft shoulders and concrete
railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that
the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while
its left front portion was touching the center line of the
bridge, with the smashed front side of the car resting
on its front bumper. The truck was about sixteen (16)
"footsteps" away from the northern end of the bridge
while the car was about thirty-six (36) "footsteps"
from the opposite end. Skid marks produced by the
right front tire of the truck measured nine (9)
"footsteps", while skid marks produced by the left front
tire measured five (5) "footsteps." The two (2) rear
tires of the truck, however, produced no skid marks.
In his statement to the investigating police officers
immediately after the accident, Galang admitted that

he was traveling at thirty (30) miles (48 kilometers)


per hour.
As a consequence of the collision, two (2) cases, Civil
Case No. 4477 and No. 4478, were filed on 31 January
1977 before the then Court of First Instance of
Pampanga and were raffled to Branch III and Branch V
of the said court, respectively. In the first, herein
petitioners in G.R. No. 68103 prayed for the award of
P12,000.00 as indemnity for the death of Jose Koh,
P150,000.00 as moral damages, P60,000.00 as
exemplary
damages,
P10,000.00
for
litigation
expenses, P6,000.00 for burial expenses, P3,650.00
for the burial lot and P9,500.00 for the tomb, plus
attorney's fees. 3 In the second case, petitioners in
G.R. No. 68102 prayed for the following: (a) in
connection with the death of Kim McKee, the sum of
P12,000.00 as death benefit, P3,150.00 for funeral
services, P3,650.00 for the cemetery lot, P3,000.00 for
the tomb, P50,000.00 as moral damages, P10,000.00
as
exemplary
damages
and
P2,000.00
as
miscellaneous damages; (b) in the case of Araceli Koh
McKee, in connection with the serious physical injuries
suffered, the sum of P100,000.00 as moral damages,
P20,000.00 as exemplary damages, P12,000.00 for
loss of earnings, P5,000.00 for the hospitalization
expenses up to the date of the filing of the complaint;
and (c) with respect to George McKee, Jr., in
connection with the serious physical injuries suffered,
the sum of P50,000.00 as moral damages, P20,000.00
as exemplary damages and the following medical
expenses: P3,400 payable to the Medical Center,
P3,500.00 payable to the St. Francis Medical Center,
P5,175.00 payable to the Clark Air Base Hospital, and
miscellaneous expenses amounting to P5,000.00. They
also sought an award of attorney's fees amounting to
25% of the total award plus traveling and hotel
expenses, with costs. 4
On 1 March 1977, an Information charging Ruben
Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical
Injuries and Damage to Property" was filed with the
trial court. It was docketed as Criminal Case No. 3751
and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No.
4477, private respondents asserted that it was the
Ford Escort car which "invaded and bumped (sic) the
lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as
attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and
P30,000.00 as business losses. 6 In Civil Case No.
4478, private respondents first filed a motion to
dismiss on grounds of pendency of another action
(Civil Case No. 4477) and failure to implead an
indispensable party, Ruben Galang, the truck driver;
they also filed a motion to consolidate the case with
Civil Case No. 4477 pending before Branch III of the
same
court,
which
was
opposed
by
the
plaintiffs. 7 Both motions were denied by Branch V,
then presided over by Judge Ignacio Capulong.

Thereupon, private respondents filed their Answer with


Counter-claim 8 wherein they alleged that Jose Koh
was the person "at fault having approached the lane of
the truck driven by Ruben Galang, . . . which was on
the right lane going towards Manila and at a moderate
speed observing all traffic rules and regulations
applicable under the circumstances then prevailing;" in
their counterclaim, they prayed for an award of
damages as may be determined by the court after due
hearing, and the sums of P10,000.00 as attorney's
fees and P5,000.00 as expenses of litigation.
Petitioners filed their Answers to the Counterclaims in
both cases.
To expedite the proceedings, the plaintiffs in Civil Case
No. 4478 filed on 27 March 1978 a motion to adopt the
testimonies of witnesses taken during the hearing of
Criminal Case No. 3751, which private respondents
opposed and which the court denied. 9 Petitioners
subsequently moved to reconsider the order denying
the motion for consolidation, 10 which Judge Capulong
granted in the Order of 5 September 1978; he then
directed that Civil Case No. 4478 be consolidated with
Civil Case No. 4477 in Branch III of the court then
presided over by Judge Mario Castaeda, Jr.
Left then with Branch V of the trial court was Criminal
Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses
Araceli Koh McKee, Fernando Nuag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen
Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private
respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as
witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert
Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday,
Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel,
Rogelio Pineda, Benito Caraan and Eugenio Tanhueco,
and offered several documentary exhibits. 13 Upon the
other hand, the defense presented the accused Ruben
Galang, Luciano Punzalan, Zenaida Soliman and
Roman Dayrit, and offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a
decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of the
decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered finding the accused Ruben Galang
guilty beyond reasonable doubt of the crime charged in
the information and after applying the provisions of
Article 365 of the Revised Penal Code and
indeterminate sentence law, this Court, imposes upon
said accused Ruben Galang the penalty of six (6)
months of arresto mayor as minimum to two (2) years,
four (4) months and one (1) day of prision

correccional as maximum; the accused is further


sentenced to pay and indemnify the heirs of Loida
Bondoc the amount of P12,000.00 as indemnity for her
death; to reimburse the heirs of Loida Bondoc the
amount of P2,000.00 representing the funeral
expenses; to pay the heirs of Loida Bondoc the amount
of P20,000.00 representing her loss of income; to
indemnify and pay the heirs of the deceased Jose Koh
the value of the car in the amount of P53,910.95, and
to pay the costs. 15
The aforecited decision was promulgated only on 17
November 1980; on the same day, counsel for
petitioners filed with Branch III of the court where
the two (2) civil cases were pending a manifestation
to that effect and attached thereto a copy of the
decision. 16
Upon the other hand, Judge Mario Castaeda, Jr.
dismissed the two (2) civil cases on 12 November 1980
and awarded the private respondents moral damages,
exemplary damages and attorney's fees. 17 The
dispositive portion of the said decision reads as
follows:
WHEREFORE, finding the preponderance of evidence to
be in favor of the defendants and against the plaintiffs,
these cases are hereby ordered DISMISSED with costs
against the plaintiffs. The defendants had proven their
counter-claim, thru evidences (sic) presented and
unrebutted. Hence, they are hereby awarded moral
and exemplary damages in the amount of P100,000.00
plus attorney's fee of P15,000.00 and litigation
expenses for (sic) P2,000.00. The actual damages
claimed for (sic) by the defendants is (sic) hereby
dismissing for lack of proof to that effect (sic). 18
A copy of the decision was sent by registered mail to
the petitioners on 28 November 1980 and was
received on 2 December 1980. 19

A motion for reconsideration of the decision was


denied
by
the
respondent
Court
in
its Kapasiyahan promulgated
on
25
November
1982. 22 A petition for its review 23 was filed with this
Court; said petition was subsequently denied. A motion
for its reconsideration was denied with finality in the
Resolution of 20 April 1983. 24
On 29 November 1983, respondent Court, by then
known as
the
Intermediate
Appellate
Court,
promulgated its consolidated decision in A.C.-G.R. CV
Nos. 69040 and 69041, 25 the dispositive portion of
which reads:
WHEREFORE, the decision appealed from it hereby
reversed and set aside and another one is rendered,
ordering defendants-appellees to pay plaintiffsappellants as follows:
For the death of Jose Koh:
P
50,000.00
as
moral
damages
P
12,000.00
as
death
indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April
19,
1979)
P
950.00
for
the
casket
(Exh.
M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:
P
50,000.00
as
moral
damages
P
12,000.00
as
death
indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P
950.00
for
funeral
services
(Exh.
M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by
George Koh McKee:

Accused Ruben Galang appealed the judgment of


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

P
25,000.00
as
moral
damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1
and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B
and B-1)

On 4 October 1982, the respondent Court promulgated


its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the
conviction of Galang. 21 The dispositive portion of the
decision reads:

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

DAHIL DITO, ang hatol na paksa ng


naritong
paghahabol
ay
Aming
pinagtitibay sa kanyang kabuuan. Ang
naghahabol pa rin ang pinagbabayad
ng gugol ng paghahabol.

For the physical injuries suffered by


Araceli Koh McKee:

For the physical injuries suffered by


Christopher Koh McKee:

P
10,000.00
as
moral
damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and
L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees
in Civil Case No. 4477 and another P10,000.00; as
counsel (sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED.

26

The decision is anchored principally on the respondent


Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused
the accident. The appellate court further said that the
law presumes negligence on the part of the defendants
(private respondents), as employers of Galang, in the
selection and supervision of the latter; it was further
asserted that these defendants did not allege in their
Answers the defense of having exercised the diligence
of a good father of a family in selecting and
supervising the said employee. 27 This conclusion of
reckless imprudence is based on the following findings
of fact:
In the face of these diametrically opposed judicial
positions, the determinative issue in this appeal is
posited in the fourth assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic)
DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS
HORN SWITCHED ON HIS HEADLIGHTS AND COULD
NOT SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness
Araceli Koh McKee testified thus:

A After avoiding the two (2) boys, the car tried to go


back to the right lane since the truck is (sic) coming,
my father stepped on the brakes and all what (sic) I
heard is the sound of impact (sic), sir. (tsn, pp. 5-6,
July 22, 1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the
herein accused, Ruben Galang did not reduce its speed
before the actual impact of collision (sic) as you
narrated in this Exhibit "1," how did you know (sic)?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right lane
on side (sic) of the highway, sir. (tsn. pp. 33-34 July
22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 3031, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our
satisfaction by the following facts and circumstances:
1. An impartial eye-witness to the mishap, Eugenio
Tanhueco, declared that the truck stopped only when it
had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the
hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an
accommodation witness because he was one of the
first to arrive at the scene of the accident. As a matter
of fact, he brought one of the injured passengers to
the hospital.

Q What happened after that, as you approached the


bridge?

We are not prepared to accord faith and credit to


defendants' witnesses, Zenaida Soliman, a passenger
of the truck, and Roman Dayrit, who supposedly lived
across the street.

A When we were approaching the bridge, two (2) boys


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

Regarding Soliman, experience has shown that in the


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

Q Did the truck slow down?

With respect to Dayrit, We can not help suspecting


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

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


Q What happened after that?

2. Exhibit 2, the statement of Galang, does not include


the claim that Galang stopped his truck at a safe
distance from the car, according to plaintiffs (p. 25,
Appellants' Brief). This contention of appellants was
completely passed sub-silencio or was not refuted by
appellees in their brief. Exhibit 2 is one of the exhibits
not included in the record. According to the Table of
Contents submitted by the court below, said Exhibit 2
was not submitted by defendants-appellees. In this
light, it is not far-fetched to surmise that Galang's
claim that he stopped was an eleventh-hour desperate
attempt to exculpate himself from imprisonment and
damages.
3. Galang divulged that he stopped after seeing the car
about 10 meters away:
ATTY. SOTTO:
Q Do I understand
from your testimony
that inspite of the fact
that you admitted that
the road is straight and
you may be able to
(sic)
see
500-1000
meters away from you
any vehicle, you first
saw that car only about
ten (10) meters away
from you for the first
time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters
away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your
oath that you have (sic) not noticed it before that ten
(10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16,
Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's
statement that Galang stopped only because of the
impact. At ten (10) meters away, with the truck
running at 30 miles per hour, as revealed in Galang's
affidavit (Exh. 2; p. 25, Appellants' brief), it is wellnigh impossible to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and
not because he waited for Jose Koh to return to his
proper lane. The police investigator, Pfc. Fernando L.
Nuag, stated that he found skid marks under the
truck but there were not (sic) skid marks behind the
truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence
of skid marks show (sic) that the truck was speeding.
Since the skid marks were found under the truck and
none were found at the rear of the truck, the
reasonable conclusion is that the skid marks under the
truck were caused by the truck's front wheels when

the trucks (sic) suddenly stopped seconds before the


mishap in an endeavor to avoid the same. But, as
aforesaid, Galang saw the car at barely 10 meters
away, a very short distance to avoid a collision, and in
his futile endeavor to avoid the collision he abruptly
stepped on his brakes but the smashup happened just
the same.
For the inattentiveness or reckless imprudence of
Galang, the law presumes negligence on the part of
the defendants in the selection of their driver or in the
supervision over him. Appellees did not allege such
defense of having exercised the duties of a good father
of a family in the selection and supervision of their
employees in their answers. They did not even adduce
evidence that they did in fact have methods of
selection
and
programs
of
supervision.
The
inattentiveness or negligence of Galang was the
proximate cause of the mishap. If Galang's attention
was on the highway, he would have sighted the car
earlier or at a very safe distance than (sic) 10 meters.
He proceeded to cross the bridge, and tried to stop
when a collision was already inevitable, because at the
time that he entered the bridge his attention was not
riveted to the road in front of him.
On the question of damages, the claims of appellants
were amply proven, but the items must be reduced. 28
A motion for reconsideration alleging improper
appreciation of the facts was subsequently filed by
private respondents on the basis of which the
respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November
1983 decision and affirmed in toto the trial court's
judgment of 12 November 1980. A motion to
reconsider this Resolution was denied by the
respondent Court on 4 July 1984. 30
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR
WHEN IT TOTALLY REVERSED ITS DECISION BY
MERELY
BASING
IT
FROM
(sic)
A
MERE
"PRESUMPTION,"
TOTALLY
DISREGARDING
THE
PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND
CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND
FOUND IN THE RECORDS; THEREFORE, RESPONDENT
COURT'S RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED
ON SPECULATIONS, CONJECTURES AND WITHOUT
SURE FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED
WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID

DOWN BY THIS HONORABLE COURT BY STATING


AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT
THE FINDINGS OF GUILT IN THE CRIMINAL CASE
WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF
DISCRETION
AND
MADE
A
MISLEADING
PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS
INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES
WRONGLY
MENTIONED
IN
THE
RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE
NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR;
COMMITTED GRAVE ABUSE OF DISCRETION AND
CITED
ANOTHER
CASE
WHICH
IS
CLEARLY
INAPPLICABLE TO THESE CASES.
V
. . . COMMITTED A PATENT ERROR AND GRAVELY
ABUSED ITS DISCRETION IN ADOPTING THE
FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY
ERRONEOUS AND CONTRARY TO THE EVIDENCE
FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE
CONTRARY TO THE ADMITTED FACTS AND JUDICIAL
ADMISSIONS MADE BY THE PRIVATE RESPONDENTS'
DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED
GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED
WHEN IT AWARDED DAMAGES TO THE PRIVATE
RESPONDENTS WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE RECORDS, AND
SAID AWARD IS NOT ALLOWED BY LAW AND THE
CONSISTENT DECISIONS OF THIS HONORABLE
COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED
GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED
WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION
AWARDING DAMAGES TO PETITIONERS WHICH IS
CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE
LAW AND JURISPRUDENCE RELATIVE TO THE AWARD
OF DAMAGES. 31
In the Resolution of 12 September 1984, We required
private
respondents
to
Comment
on
the
petition. 32 After the said Comment 33 was filed,
petitioners submitted a Reply 34 thereto; this Court
then gave due course to the instant petitions and

required petitioners to file their Brief,


accordingly complied with.

35

which they

There is merit in the petition. Before We take on the


main task of dissecting the arguments and counterarguments, some observations on the procedural
vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the
recovery of civil liability arising from a quasidelict under Article 2176 in relation to Article 2180 of
the Civil Code, were filed ahead of Criminal Case No.
3751. Civil Case No. 4478 was eventually consolidated
with Civil Case No. 4477 for joint trial in Branch III of
the trial court. The records do not indicate any attempt
on the part of the parties, and it may therefore be
reasonably concluded that none was made, to
consolidate Criminal Case No. 3751 with the civil
cases, or vice-versa. The parties may have then
believed, and understandably so, since by then no
specific provision of law or ruling of this Court
expressly allowed such a consolidation, that an
independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the
civil cases in this case, cannot be consolidated with the
criminal case. Indeed, such consolidation could have
been farthest from their minds as Article 33 itself
expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence." Be that as
it may, there was then no legal impediment against
such consolidation. Section 1, Rule 31 of the Rules of
Court, which seeks to avoid a multiplicity of suits,
guard against oppression and abuse, prevent delays,
clear congested dockets to simplify the work of the
trial court, or in short, attain justice with the least
expense to the parties litigants, 36 would have easily
sustained a consolidation, thereby preventing the
unseeming, if no ludicrous, spectacle of two (2) judges
appreciating, according to their respective orientation,
perception and perhaps even prejudice, the same
facts differently, and
thereafter
rendering conflicting decisions.
Such
was
what
happened in this case. It should not, hopefully, happen
anymore. In the recent case of Cojuangco vs. Court or
Appeals, 37 this Court held that the present provisions
of Rule 111 of the Revised Rules of Court allow a
consolidation of an independent civil action for the
recovery of civil liability authorized under Articles 32,
33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final
judgment has been rendered in that criminal case.
Let it be stressed, however, that the judgment in
Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue
of the denial by no less than this Court of his last
attempt to set aside the respondent Court's affirmance
of the verdict of conviction, has no relevance or
importance to this case.
As
We
held
in Dionisio
vs.
Alvendia, 38 the
responsibility arising from fault or negligence in
a quasi-delict is entirely separate and distinct from the

civil liability arising from negligence under the Penal


Code. And, as more concretely stated in the concurring
opinion of Justice J.B.L. Reyes, "in the case of
independent civil actions under the new Civil Code, the
result of the criminal case, whether acquittal or
conviction, would be entirely irrelevant to the civil
action." 39 In Salta vs. De Veyra and PNB vs.
Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to
conclude
that
the
civil
actions
mentioned in Article 33, permitted in
the same manner to be filed separately
from the criminal case, may proceed
similarly regardless of the result of the
criminal case.
Indeed, when the law has allowed a
civil case related to a criminal case, to
be filed separately and to proceed
independently
even
during
the
pendency of the latter case, the
intention is patent to make the court's
disposition of the criminal case of no
effect whatsoever on the separate civil
case. This must be so because the
offenses specified in Article 33 are of
such a nature, unlike other offenses
not mentioned, that they may be made
the subject of a separate civil action
because of the distinct separability of
their respective juridical cause or basis
of action . . . .
What remains to be the most important consideration
as to why the decision in the criminal case should not
be considered in this appeal is the fact that private
respondents were not parties therein. It would have
been entirely different if the petitioners' cause of
action was for damages arising from a delict, in which
case private respondents' liability could only be
subsidiary pursuant to Article 103 of the Revised Penal
Code. In the absence of any collusion, the judgment of
conviction in the criminal case against Galang would
have been conclusive in the civil cases for the
subsidiary liability of the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the
principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution
are supported by evidence or are based on mere
speculations, conjectures and presumptions.
The principle is well-established that this Court is not a
trier
of
facts.
Therefore,
in
an
appeal
by certiorari under Rule 45 of the Revised Rules of
Court, only questions of law may be raised. The
resolution of factual issues is the function of the lower
courts whose findings on these matters are received
with respect and are, as a rule, binding on this
Court. 42

The foregoing rule, however, is not without exceptions.


Findings of facts of the trial courts and the Court of
Appeals may be set aside when such findings are not
supported by the evidence or when the trial court
failed to consider the material facts which would have
led to a conclusion different from what was stated in
its judgment. 43The same is true where the appellate
court's conclusions are grounded entirely on
conjectures, speculations and surmises 44 or where the
conclusions of the lower courts are based on a
misapprehension of facts. 45
It is at once obvious to this Court that the instant case
qualifies as one of the aforementioned exceptions as
the findings and conclusions of the trial court and the
respondent Court in its challenged resolution are not
supported by the evidence, are based on an
misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent
Court's decision of 29 November 1983 makes the
correct findings of fact.
In the assailed resolution, the respondent Court held
that the fact that the car improperly invaded the lane
of the truck and that the collision occurred in said lane
gave rise to the presumption that the driver of the car,
Jose Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded
that it was Jose Koh's negligence that was the
immediate and proximate cause of the collision. This is
an unwarranted deduction as the evidence for the
petitioners convincingly shows that the car swerved
into the truck's lane because as it approached the
southern end of the bridge, two (2) boys darted across
the road from the right sidewalk into the lane of the
car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the
bridge?
A When we were approaching the bridge, two (2) boys
tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic)
the driver of the car tried to avoid the two (2) boys
who were crossing, he blew his horn and swerved to
the left to avoid hitting the two (2) boys. We noticed
the truck, he switched on the headlights to warn the
truck driver, to slow down to give us the right of way
to come back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go
back to the right lane since the truck is (sic) coming,
my father stepped on the brakes and all what (sic) I
heard is the sound of impact (sic), sir. 46
Her credibility and testimony remained intact even
during cross examination. Jose Koh's entry into the

lane of the truck was necessary in order to avoid what


was, in his mind at that time, a greater peril death
or injury to the two (2) boys. Such act can hardly be
classified as negligent.
Negligence was defined and described by this Court
in Layugan vs. Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do
something which a reasonable man,
guided by those considerations which
ordinarily regulate the conduct of
human affairs, would do, or the doing
of something which a prudent and
reasonable man would not do (Black's
Law Dictionary, Fifth Edition, 930), or
as Judge Cooley defines it, "(T)he
failure to observe for the protection of
the interests of another person, that
degree of care, precaution, and
vigilance which the circumstances
justly demand, whereby such other
person suffers injury." (Cooley on
Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more
than seventy years ago but still a sound rule, (W)e
held:
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that(reasonable care and caution
which an ordinarily prudent person would have used in
the same situation?) If not, then he is guilty of
negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of
the
discreet paterfamiliasof
the
Roman
law. . . .
In Corliss vs. Manila Railroad Company,

48

We held:

. . . Negligence is want of the care


required by the circumstances. It is a
relative or comparative, not an
absolute, term and its application
depends upon the situation of the
parties and the degree of care and
vigilance which the circumstances
reasonably require. Where the danger
is great, a high degree of care is
necessary, and the failure to observe it
is a want of ordinary care under the
circumstances. (citing Ahern v. Oregon
Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of
negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose
Koh. Any reasonable and ordinary prudent man would
have tried to avoid running over the two boys by
swerving the car away from where they were even if
this would mean entering the opposite lane. Avoiding

such immediate peril would be the natural course to


take particularly where the vehicle in the opposite lane
would be several meters away and could very well slow
down, move to the side of the road and give way to
the oncoming car. Moreover, under what is known as
the emergency rule, "one who suddenly finds himself
in a place of danger, and is required to act without
time to consider the best means that may be adopted
to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better
method, unless the emergency in which he finds
himself is brought about by his own negligence." 49
Considering the sudden intrusion of the two (2) boys
into the lane of the car, We find that Jose Koh adopted
the best means possible in the given situation to avoid
hitting them. Applying the above test, therefore, it is
clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is
negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has
been defined as:
. . . that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result
would not have occurred. And more comprehensively,
the proximate legal cause is that acting first and
producing the injury, either immediately or by setting
other events in motion, all constituting a natural and
continuous chain of events, each having a close causal
connection with its immediate predecessor, the final
event in the chain immediately effecting the injury as a
natural and probable result of the cause which first
acted, under such circumstances that the person
responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable
ground to expect at the moment of his act or default
that an injury to some person might probably result
therefrom. 50
Applying the above definition, although it may be said
that the act of Jose Koh, if at all negligent, was the
initial act in the chain of events, it cannot be said that
the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening
event, the negligent act of the truck driver, which was
the actual cause of the tragedy. The entry of the car
into the lane of the truck would not have resulted in
the collision had the latter heeded the emergency
signals given by the former to slow down and give the
car an opportunity to go back into its proper lane.
Instead of slowing down and swerving to the far right
of the road, which was the proper precautionary
measure under the given circumstances, the truck
driver continued at full speed towards the car. The
truck driver's negligence becomes more apparent in
view of the fact that the road is 7.50 meters wide while
the car measures 1.598 meters and the truck, 2.286
meters, in width. This would mean that both car and
truck could pass side by side with a clearance of 3.661
meters to spare. 51 Furthermore, the bridge has a level

sidewalk which could have partially accommodated the


truck. Any reasonable man finding himself in the given
situation would have tried to avoid the car instead of
meeting it head-on.

A I saw it stopped (sic) when it has (sic) already


collided with the car and it was already motionless.
(tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27,
Appellants' Brief). 55

The truck driver's negligence is apparent in the


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

Clearly, therefore, it was the truck driver's


subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the
collision which was the proximate cause of the
resulting accident.

The truck driver's negligence was likewise duly


established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly
corroborated by the testimony of Eugenio Tanhueco,
an impartial eyewitness to the mishap.

In Bustamante vs. Court of Appeals,

Araceli Koh McKee testified further, thus:


xxx xxx xxx
Q Mrs. how did you know that the truck driven by the
herein accused, Ruben Galang did not reduce its speed
before the actual impact of collision as you narrated in
this Exhibit "1," how did you know?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right lane
on side (sic) of the highway, sir. (tsn, pp. 33-34, July
22, 1977) or (Exhibit; "O" in these Civil Cases) (pp.
30-31, Appellants' Brief) 54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know
what happened?
A I saw the truck and a car collided (sic), sir, and I
went to the place to help the victims. (tsn. 28, April
19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the
impact, will you tell us if the said truck ever stopped?

Even if Jose Koh was indeed negligent, the doctrine of


last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states
that the contributory negligence of the party injured
will not defeat the claim for damages if it is shown that
the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequences of
the negligence of the injured party. In such cases, the
person who had the last clear chance to avoid the
mishap is considered in law solely responsible for the
consequences thereof. 56
57

We held:

The respondent court adopted the doctrine of "last


clear chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery
for the negligence of the defendant where it appears
that the defendant, by exercising reasonable care and
prudence, might have avoided injurious consequences
to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear
chance means that even though a person's own acts
may have placed him in a position of peril, and an
injury results, the injured person is entitled to recovery
(sic). As the doctrine is usually stated, a person who
has the last clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the
opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and
Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent
defendant is held liable to a negligent plaintiff, or even
to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiff's peril, or
according to some authorities, should have been aware
of it in the reasonable exercise of due care, had in fact
an opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa,
ruled:

58

We

The doctrine of last clear chance was defined by this


Court in the case of Ong v. Metropolitan Water District,
104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means
that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it

appears that the latter, by exercising reasonable care


and prudence, might
have avoided
injurious
consequences
to
claimant
notwithstanding
his
negligence.
The doctrine applies only in a situation where the
plaintiff was guilty of prior or antecedent negligence
but the defendant, who had the last fair chance to
avoid the impending harm and failed to do so, is made
liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff
[Picart v. Smith, 37 Phil. 809 (1918); Glan People's
Lumber and Hardware, et al. vs. Intermediate
Appellate Court, Cecilia Alferez Vda. de Calibo, et al.,
G.R. No. 70493, May, 18, 1989]. The subsequent
negligence of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff becomes the
immediate or proximate cause of the accident which
intervenes between the accident and the more remote
negligence of the plaintiff, thus making the defendant
liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for
the purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat
claim (sic) for damages.
Applying the foregoing doctrine, it is not difficult to
rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the
collision which was, in law, the proximate cause of the
collision. As employers of the truck driver, the private
respondents are, under Article 2180 of the Civil Code,
directly and primarily liable for the resulting damages.
The presumption that they are negligent flows from
the negligence of their employee. That presumption,
however, is only juris tantum, not juris et de
jure. 59 Their only possible defense is that they
exercised all the diligence of a good father of a family
to prevent the damage. Article 2180 reads as follows:
The obligation imposed by Article 2176 is demandable
not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family
to prevent damage.
The diligence of a good father referred to means the
diligence in the selection and supervision of
employees. 60The answers of the private respondents

in Civil Cases Nos. 4477 and 4478 did not interpose


this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision
of 29 November 1983 in reversing the decision of the
trial court which dismissed Civil Cases Nos. 4477 and
4478. Its assailed Resolution of 3 April 1984 finds no
sufficient legal and factual moorings.
In the light of recent decisions of this Court, 61 the
indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The
assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November
1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED,
subject to the modification that the indemnity for
death is increased from P12,000.00 to P50,000.00
each for the death of Jose Koh and Kim Koh McKee.
Costs against private respondents.
SO ORDERED.

not distinguish between damage caused to the


caretaker and makes the owner liable whether or not
he has been negligent or at fault. For authority counsel
cites the following opinion which Manresa quotes from
a decision of the Spanish Supreme Court:

G.R. No. L-2075

November 29, 1949

MARGARITA
AFIALDA, plaintiff-appellant,
vs.
BASILIO
HISOLE
and
FRANCISCO
HISOLE, defendants-appellees.
Nicolas
P.
Nonato
for
Gellada, Mirasol and Ravena for appellees.

appellant.

REYES, J.:
This is an action for damages arising from injury
caused by an animal. The complaint alleges that the
now deceased, Loreto Afialda, was employed by the
defendant spouses as caretaker of their carabaos at a
fixed compensation; that while tending the animals he
was, on March 21, 1947, gored by one of them and
later died as a consequence of his injuries; that the
mishap was due neither to his own fault nor to force
majeure; and that plaintiff is his elder sister and heir
depending upon him for support.
Before filing their answer, defendants moved for the
dismissal of the complaint for lack of a cause of action,
and the motion having been granted by the lower
court, plaintiff has taken this appeal.
Plaintiff seeks to hold defendants liable under article
1905 of the Civil Code, which reads:
The possessor of an animal, or the one who
uses the same, is liable for any damages it
may cause, even if such animal should escape
from him or stray away.
This liability shall cease only in case, the
damage should arise from force majeure or
from the fault of the person who may have
suffered it.
The question presented is whether the owner of the
animal is liable when damage is caused to its
caretaker.
The lower court took the view that under the abovequoted provision of the Civil Code, the owner of an
animal is answerable only for damages caused to a
stranger, and that for damage caused to the caretaker
of the animal the owner would be liable only if he had
been negligent or at fault under article 1902 of the
same code. Claiming that the lower court was in error,
counsel for plaintiff contends that the article 1905 does

El articulo 1905 del codigo Civil no consienta


otra interpretacion que la que, clara y
evidentemente, se deriva de sus terminos
literales, bastando, segun el mismo, que un
animal cause perjuicio para que nasca la
responsibilidad del dueno, aun no imputandose
a este ninguna clase de culpa o negligencia,
habida,sin duda, cuenta por el lgislador de que
tal concepto de dueno es suficiente para que
arrastre las consecuencias favorables o
adversas de esta clase de propiedad, salvo la
exception en el mismo contenida. (12 Manresa,
Commentaries on the Spanish CivilCode, 573.)
This opinion, however, appears to have been rendered
in a case where an animal caused injury to a stranger
or third person. It is therefore no authority for a case
like the present where the person injured was the
caretaker of the animal. The distinction is important.
For the statute names the possessor or user of the
animal as the person liable for "any damages it may
cause," and this for the obvious reason that the
possessor or user has the custody and control of the
animal and is therefore the one in a position to prevent
it from causing damage.
In the present case, the animal was in custody and
under the control of the caretaker, who was paid for
his work as such. Obviously, it was the caretaker's
business to try to prevent the animal from causing
injury or damage to anyone, including himself. And
being
injured
by
the
animal
under
those
circumstances, was one of the risks of the occupation
which he had voluntarily assumed and for which he
must take the consequences.
In a decision of the Spanish Supreme Court, cited by
Manresa in his Commentaries (Vol. 12, p. 578), the
death of an employee who was bitten by a feline which
his master had asked him to take to his establishment
was by said tribunal declared to be "a veritable
accident of labor" which should come under the labor
laws rather than under article 1905 of the Civil Code.
The present action, however, is not brought under the
Workmen's Compensation Act, there being no
allegation that, among other things, defendant's
business, whatever that might be, had a gross income
of P20,000. As already stated, defendant's liability is
made to rest on article 1905 of the Civil Code. but
action under that article is not tenable for the reasons
already stated. On the other hand, if action is to be
based on article 1902 of the Civil Code, it is essential
that there be fault or negligence on the part of the
defendants as owners of the animal that caused the
damage. But the complaint contains no allegation on
those points.

There being no reversible error in the order appealed


from, the same is hereby affirmed, but without costs in
view of the financial situation of the appellant.

G.R. No. L-57079 September 29, 1989


PHILIPPINE LONG DISTANCE TELEPHONE CO.,
INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO
ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:
This case had its inception in an action for damages
instituted in the former Court of First Instance of
Negros Occidental 1 by private respondent spouses
against petitioner Philippine Long Distance Telephone
Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their
jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for
the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban
failed to notice the open trench which was left
uncovered because of the creeping darkness and the
lack of any warning light or signs. As a result of the
accident,
respondent
Gloria
Esteban
allegedly
sustained injuries on her arms, legs and face, leaving a
permanent scar on her cheek, while the respondent
husband suffered cut lips. In addition, the windshield
of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention
that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent
contractor which undertook the construction of the
manhole and the conduit system. 3 Accordingly, PLDT
filed a third-party complaint against Barte alleging
that, under the terms of their agreement, PLDT should
in no manner be answerable for any accident or
injuries arising from the negligence or carelessness of
Barte or any of its employees. 4 In answer thereto,
Barte claimed that it was not aware nor was it notified
of the accident involving respondent spouses and that
it had complied with the terms of its contract with
PLDT by installing the necessary and appropriate
standard signs in the vicinity of the work site, with
barricades at both ends of the excavation and with red
lights at night along the excavated area to warn the
traveling public of the presence of excavations. 5

On October 1, 1974, the trial court rendered a decision


in favor of private respondents, the decretal part of
which reads:
IN
VIEW
OF
THE
FOREGOING
considerations the defendant Philippine
Long Distance Telephone Company is
hereby ordered (A) to pay the plaintiff
Gloria Esteban the sum of P20,000.00
as moral damages and P5,000.00
exemplary
damages;
to
plaintiff
Antonio Esteban the sum of P2,000.00
as moral damages and P500.00 as
exemplary damages, with legal rate of
interest from the date of the filing of
the complaint until fully paid. The
defendant is hereby ordered to pay the
plaintiff the sum of P3,000.00 as
attorney's fees.
(B) The third-party defendant is hereby
ordered to reimburse whatever amount
the defendant-third party plaintiff has
paid to the plaintiff. With costs against
the defendant. 6
From this decision both PLDT and private respondents
appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division
of the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava
as ponente, reversing the decision of the lower court
and dismissing the complaint of respondent spouses. It
held that respondent Esteban spouses were negligent
and consequently absolved petitioner PLDT from the
claim for damages. 7 A copy of this decision was
received by private respondents on October 10,
1979. 8 On October 25, 1979, said respondents filed a
motion for reconsideration dated October 24,
1979. 9 On January 24, 1980, the Special Ninth
Division of the Court of Appeals denied said motion for
reconsideration.10 This resolution was received by
respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals
received private respondents' motion for leave of court
to file a second motion for reconsideration, dated
February 27, 1980. 12 On March 11, 1980, respondent
court, in a resolution likewise penned by Justice
Agrava, allowed respondents to file a second motion
for reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to
and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the
divergent opinions on the resolution of the second
motion for reconsideration, designated two additional
justices to form a division of five. 16 On September 3,

1980, said division of five promulgated its resolution,


penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in
toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion
to set aside and/or for reconsideration of the resolution
of September 3, 1980, contending that the second
motion for reconsideration of private respondent
spouses was filed out of time and that the decision of
September 25, 1979 penned by Justice Agrava was
already final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be
viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not
liable for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals
promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in
toto the decision of the lower court dated October 1,
1974. 19
Coming to this Court on a petition for review
on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying
private respondents' second motion for reconsideration
on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the
resolution of the Special Ninth Division, dated January
24, 1980, are already final, and on the additional
ground that said second motion for reconsideration
is pro forma.
2. Respondent court erred in reversing the aforesaid
decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to
respondent Esteban spouses.
A convenient resume of the relevant proceedings in the
respondent court, as shown by the records and
admitted by both parties, may be graphically
presented as follows:
(a) September 25, 1979, a decision
was rendered by the Court of Appeals
with Justice Agrava asponente;
(b) October 10, 1979, a copy of said
decision was received by private
respondents;
(c) October 25, 1979, a motion for
reconsideration was filed by private
respondents;
(d) January 24, 1980, a resolution was
issued denying said motion for
reconsideration;

(e) February 22, 1980, a copy of said


denial resolution was received by
private respondents;
(f) February 29, 1980, a motion for
leave to file a second motion for
reconsideration was filed by private
respondents
(g) March 7, 1980, a second motion for
reconsideration was filed by private
respondents;
(h) March 11, 1980, a resolution was
issued allowing respondents to file a
second motion for reconsideration
within ten (10) days from receipt; and
(i) September 3, 1980, a resolution
was issued, penned by Justice Zosa,
reversing the original decision dated
September 25, 1979 and setting aside
the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that
both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion
for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had
procedural governance at the time, provided that a
second motion for reconsideration may be presented
within fifteen (15) days from notice of the order or
judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed
their first motion for reconsideration on the last day of
the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt
of the order denying said motion to file, with leave of
court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980
of the resolution denying their first motion for
reconsideration, private respondents had two remedial
options. On February 23, 1980, the remaining one (1)
day of the aforesaid reglementary period, they could
have filed a motion for leave of court to file a second
motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so.
On the other hand, they could have appealed through
a petition for review on certiorari to this Court within
fifteen (15) days from February 23, 1980. 22 Instead,
they filed a motion for leave to file a second motion
'for reconsideration on February 29, 1980, and said
second motion for reconsideration on March 7, 1980,
both of which motions were by then time-barred.
Consequently, after the expiration on February 24,
1980 of the original fifteen (15) day period, the
running of which was suspended during the pendency
of the first motion for reconsideration, the Court of
Appeals could no longer validly take further
proceedings on the merits of the case, much less to
alter, modify or reconsider its aforesaid decision and/or

resolution. The filing of the motion for leave to file a


second motion for reconsideration by herein
respondents on February 29, 1980 and the subsequent
filing of the motion itself on March 7, 1980, after the
expiration of the reglementary period to file the same,
produced no legal effects. Only a motion for re-hearing
or reconsideration filed in time shall stay the final
order or judgment sought to be re-examined. 23
The consequential result is that the resolution of
respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving
them an extension of ten (10) days to file a second
motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had
already expired when private respondents sought leave
to file the same, and respondent court no longer had
the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private
respondents to file their second motion for
reconsideration was of no legal consequence since it
was given when there was no more period to extend.
It is an elementary rule that an application for
extension of time must be filed prior to the expiration
of the period sought to be extended. 24 Necessarily,
the discretion of respondent court to grant said
extension for filing a second motion for reconsideration
is conditioned upon the timeliness of the motion
seeking the same.
No appeal having been taken seasonably, the
respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980.
The subsequent resolutions of respondent court, dated
March 11, 1980 and September 3, 1980, allowing
private respondents to file a second motion for
reconsideration and reversing the original decision are
null and void and cannot disturb the finality of the
judgment nor restore jurisdiction to respondent court.
This is but in line with the accepted rule that once a
decision has become final and executory it is removed
from the power and jurisdiction of the court which
rendered it to further alter or amend, much less
revoke it. 25 The decision rendered anew is null and
void. 26 The court's inherent power to correct its own
errors should be exercised before the finality of the
decision or order sought to be corrected, otherwise
litigation will be endless and no question could be
considered finally settled. Although the granting or
denial of a motion for reconsideration involves the
exercise of discretion, 27 the same should not be
exercised whimsically, capriciously or arbitrarily, but
prudently in conformity with law, justice, reason and
equity. 28
Prescinding from the aforesaid procedural lapses into
the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced

by the respondent court's resolution of January 24,


1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane
of Lacson Street. If it had remained on that inside
lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the
ACCIDENT MOUND was hit by the jeep swerving from
the left that is, swerving from the inside lane. What
caused the swerving is not disclosed; but, as the cause
of the accident, defendant cannot be made liable for
the damages suffered by plaintiffs. The accident was
not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the
inside lane. That may explain plaintiff-husband's
insistence that he did not see the ACCIDENT MOUND
for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane
before it swerved to hit the ACCIDENT MOUND could
have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street
had already been covered except the 3 or 4 meters
where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not
in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation
could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers
an hour as plaintiff-husband claimed. At that speed, he
could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed
the ACCIDENT MOUND several feet as indicated by the
tiremarks in Exhibit B. The jeep must have been
running quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiff's would not have been
thrown against the windshield and they would not have
suffered their injuries.
Fourth. If the accident did not happen because the
jeep was running quite fast on the inside lane and for
some reason or other it had to swerve suddenly to the
right and had to climb over the ACCIDENT MOUND,
then plaintiff-husband had not exercised the diligence
of a good father of a family to avoid the accident. With
the drizzle, he should not have run on dim lights, but
should have put on his regular lights which should
have made him see the ACCIDENT MOUND in time. If
he was running on the outside lane at 25 kilometers an
hour, even on dim lights, his failure to see the
ACCIDENT MOUND in time to brake the car was
negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 11/2 feet wide. If he did not see the ACCIDENT MOUND
in time, he would not have seen any warning sign
either. He knew of the existence and location of the
ACCIDENT MOUND, having seen it many previous

times. With ordinary precaution, he should have driven


his jeep on the night of the accident so as to avoid
hitting the ACCIDENT MOUND. 29

only rely on the testimonial evidence of


plaintiffs
themselves,
and
such
evidence should be very carefully
evaluated, with defendant, as the party
being charged, being given the benefit
of any doubt. Definitely without
ascribing the same motivation to
plaintiffs, another person could have
deliberately engineered
a
similar
accident in the hope and expectation
that the Court can grant him
substantial moral and exemplary
damages from the big corporation that
defendant is. The statement is made
only to stress the disadvantageous
position of defendant which would have
extreme difficulty in contesting such
person's claim. If there were no
witness or record available from the
police
department
of
Bacolod,
defendant would not be able to
determine for itself which of the
conflicting testimonies of plaintiffs is
correct as to the report or non-report
of
the
accident
to
the
police
department. 32

The above findings clearly show that the negligence of


respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the
very cause of the occurrence of the accident, as one of
its determining factors, and thereby precludes their
right to recover damages. 30 The perils of the road
were known to, hence appreciated and assumed by,
private respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only purpose of
said signs was to inform and warn the public of the
presence of excavations on the site. The private
respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to
fall into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes
the proximate cause only when the doing of the said
omitted act would have prevented the injury. 31 It is
basic that private respondents cannot charge PLDT for
their injuries where their own failure to exercise due
and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last
clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had
knowledge of the presence and location of the
excavations there. It was his negligence that exposed
him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent
Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the
part of PLDT. We have for consideration only the selfserving testimony of respondent Antonio Esteban and
the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of
the incident and the non-submission of a medical
report from the hospital where private respondents
were allegedly treated have not even been
satisfactorily explained.
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980
(a) There was no third party
eyewitness of the accident. As to how
the accident occurred, the Court can

A person claiming damages for the negligence of


another has the burden of proving the existence of
such fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively
established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the
burden in the first instance of proving the existence of
the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of
Appeals, dated March 11, 1980 and September
3,1980, are hereby SET ASIDE. Its original decision,
promulgated on September 25,1979, is hereby
REINSTATED and AFFIRMED.
SO ORDERED.

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


THE
ILOCOS
NORTE
ELECTRIC
COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division)
LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA
JUAN CID, GLORIA JUAN CARAG, and PURISIMA
JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.

PARAS, J.:
Sought to be reversed in this petition is the Decision *
of the respondent Court of Appeals' First Division,
setting aside the judgment of the then Court of First
Instance (CFI) of Ilocos Norte, with the following
dispositive portion:
WHEREFORE, the appealed judgment is
hereby set aside and another rendered
in its stead whereby defendant is
hereby sentenced to pay plaintiffs
actual
damages
of
P30,229.45;
compensatory damages of P50,000.00;
exemplary damages of P10,000.00;
attorney's fees of P3,000.00; plus the
costs of suit in both instances. (p. 27
Rollo)
Basically, this case involves a clash of evidence
whereby both patties strive for the recognition of their
respective versions of the scenario from which the
disputed claims originate. The respondent Court of
Appeals (CA) summarized the evidence of the parties
as follows:
From the evidence of plaintiffs it appears that in the
evening of June 28 until the early morning of June 29,
1967 a strong typhoon by the code name "Gening"
buffeted the province of Ilocos Norte, bringing heavy
rains and consequent flooding in its wake. Between
5:30 and 6:00 A.M. on June 29, 1967, after the
typhoon had abated and when the floodwaters were

beginning to recede the deceased Isabel Lao Juan,


fondly called Nana Belen, ventured out of the house of
her son-in-law, Antonio Yabes, on No. 19 Guerrero
Street, Laoag City, and proceeded northward towards
the direction of the Five Sisters Emporium, of which
she was the owner and proprietress, to look after the
merchandise therein that might have been damaged.
Wading in waist-deep flood on Guerrero, the deceased
was followed by Aida Bulong, a Salesgirl at the Five
Sisters Grocery, also owned by the deceased, and by
Linda Alonzo Estavillo, a ticket seller at the YJ Cinema,
which was partly owned by the deceased. Aida and
Linda walked side by side at a distance of between 5
and 6 meters behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank into the
water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot
where the deceased sank they saw an electric wire
dangling from a post and moving in snake-like fashion
in the water. Upon their shouts for help, Ernesto dela
Cruz came out of the house of Antonio Yabes. Ernesto
tried to go to the deceased, but at four meters away
from her he turned back shouting that the water was
grounded. Aida and Linda prodded Ernesto to seek
help from Antonio Yabes at the YJ Cinema building
which was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his
mother-in law had been electrocuted, he acted
immediately. With his wife Jane, together with Ernesto
and one Joe Ros, Yabes passed by the City Hall of
Laoag to request the police to ask the people of
defendant Ilocos Norte Electric Company or INELCO to
cut off the electric current. Then the party waded to
the house on Guerrero Street. The floodwater was
receding and the lights inside the house were out
indicating that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish for the body
of the deceased. The body was recovered about two
meters from an electric post.
In another place, at about 4:00 A.M. on that fateful
date, June 29, 1967, Engineer Antonio Juan, Power
Plant Engineer of the National Power Corporation at
the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated such
abnormalities as grounded or short-circuited lines.
Between 6:00 and 6:30 A.M., he set out of the Laoag
NPC Compound on an inspection. On the way, he saw
grounded and disconnected lines. Electric lines were
hanging from the posts to the ground. Since he could
not see any INELCO lineman, he decided to go to the
INELCO Office at the Life Theatre on Rizal Street by
way of Guerrero. As he turned right at the intersection
of Guerrero and Rizal, he saw an electric wire about 30
meters long strung across the street "and the other
end was seeming to play with the current of the
water." (p. 64, TSN, Oct. 24, 1972) Finding the Office
of the INELCO still closed, and seeing no lineman
therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the
compound again on another inspection trip. Having
learned of the death of Isabel Lao Juan, he passed by

the house of the deceased at the corner of Guerrero


and M.H. del Pilar streets to which the body had been
taken. Using the resuscitator which was a standard
equipment in his jeep and employing the skill he
acquired from an in service training on resuscitation,
he tried to revive the deceased. His efforts proved
futile. Rigor mortis was setting in. On the left palm of
the deceased, Engr. Juan noticed a hollow wound.
Proceeding to the INELCO Office, he met two linemen
on the way. He told them about the grounded lines of
the INELCO In the afternoon of the same day, he went
on a third inspection trip preparatory to the restoration
of power. The dangling wire he saw on Guerrero early
in the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of
Guerrero and M.H. del Pilar after learning that the
deceased had been electrocuted. Among the
sympathizers was Dr. Jovencio Castro, Municipal
Health Officer of Sarrat, Ilocos Norte. Upon the request
of the relatives of the deceased, Dr. Castro examined
the body at about 8:00 A.M. on June 29, 1967. The
skin was grayish or, in medical parlance, cyanotic,
which indicated death by electrocution. On the left
palm, the doctor found an "electrically charged wound"
(Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first
degree burn. About the base of the thumb on the left
hand was a burned wound. (Exh. C-2, pp. 102103, Ibid.) The certificate of death prepared by Dr.
Castro stated the cause of' death as ,'circulatory shock
electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the
testimonies of its officers and employees, namely,
Conrado Asis, electric engineer; Loreto Abijero,
collector-inspector; Fabico Abijero, lineman; and Julio
Agcaoili, president-manager of INELCO Through the
testimonies of these witnesses, defendant sought to
prove that on and even before June 29, 1967 the
electric service system of the INELCO in the whole
franchise area, including Area No. 9 which covered the
residence of Antonio Yabes at No. 18 Guerrero Street,
did not suffer from any defect that might constitute a
hazard to life and property. The service lines, devices
and other INELCO equipment in Area No. 9 had been
newly-installed prior to the date in question. As a
public service operator and in line with its business of
supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to
persons and damage to property in case of natural
calamities such as floods, typhoons, fire and others.
Defendant had 12 linesmen charged with the duty of
making a round-the-clock check-up of the areas
respectively assigned to them.
Defendant asserts that although a strong typhoon
struck the province of Ilocos Norte on June 29, 1967,
putting to streets of Laoag City under water, only a
few known places in Laoag were reported to have
suffered damaged electric lines, namely, at the
southern approach of the Marcos Bridge which was
washed away and where the INELCO lines and posts
collapsed; in the eastern part near the residence of the
late Governor Simeon Mandac; in the far north near

the defendant's power plant at the corner of Segundo


and Castro Streets, Laoag City and at the far
northwest side, near the premises of the Ilocos Norte
National High School. Fabico Abijero, testified that in
the early morning before 6 o'clock on June 29, 1967 he
passed by the intersection of Rizal and Guerrero
Streets to switch off the street lights in Area No. 9. He
did not see any cut or broken wires in or near the
vicinity. What he saw were many people fishing out the
body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was
presented by the defense to show that the deceased
could not have died of electrocution Substantially, the
testimony of the doctor is as follows: Without an
autopsy on the cadaver of the victim, no doctor, not
even a medicolegal expert, can speculate as to the real
cause of death. Cyanosis could not have been found in
the body of the deceased three hours after her death,
because cyanosis which means lack of oxygen
circulating in the blood and rendering the color of the
skin purplish, appears only in a live person. The
presence of the elongated burn in the left palm of the
deceased (Exhibits C-1 and C-2) is not sufficient to
establish her death by electrocution; since burns
caused by electricity are more or less round in shape
and with points of entry and exit. Had the deceased
held the lethal wire for a long time, the laceration in
her palm would have been bigger and the injury more
massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of
P250,000 was instituted by the heirs of the deceased
with the aforesaid CFI on June 24, 1968. In its Answer
(Vide, Record on Appeal, p. 55, Rollo), petitioner
advanced the theory, as a special defense, that the
deceased could have died simply either by drowning or
by electrocution due to negligence attributable only to
herself and not to petitioner. In this regard, it was
pointed out that the deceased, without petitioner's
knowledge, caused the installation of a burglar
deterrent by connecting a wire from the main house to
the iron gate and fence of steel matting, thus, charging
the latter with electric current whenever the switch is
on. Petitioner then conjectures that the switch to said
burglar deterrent must have been left on, hence,
causing the deceased's electrocution when she tried to
open her gate that early morning of June 29, 1967.
After due trial, the CFI found the facts in favor of
petitioner and dismissed the complaint but awarded to
the latter P25,000 in moral damages and attorney's
fees of P45,000. An appeal was filed with the CA which
issued the controverted decision.
In this petition for review the petitioner assigns the
following errors committed by the respondent CA:
1. The respondent Court of Appeals committed grave
abuse of discretion and error in considering the purely
hearsay alleged declarations of Ernesto de la Cruz as
part of theres gestae.
2. The respondent Court of Appeals committed grave
abuse of discretion and error in holding that the strong

typhoon "Gening" which struck Laoag City and Ilocos


Norte on June 29, 1967 and the flood and deluge it
brought in its wake were not fortuitous events and did
not exonerate petitioner-company from liability for the
death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its
discretion and erred in not applying the legal principle
of "assumption of risk" in the present case to bar
private respondents from collecting damages from
petitioner company.
4. That the respondent Court of Appeals gravely erred
and abused its discretion in completely reversing the
findings of fact of the trial court.
5. The findings of fact of the respondent Court of
Appeals are reversible
under the recognized
exceptions.
6. The trial court did not err in awarding moral
damages and attorney's fees to defendant corporation,
now petitioner company.
7. Assuming arguendo that petitioner company may be
held liable from the death of the late Isabel Lao Juan,
the damages granted by respondent Court of Appeals
are
improper
and
exhorbitant.
(Petitioners
Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether
or not the deceased died of electrocution; (2) whether
or not petitioner may be held liable for the deceased's
death; and (3) whether or not the respondent CA's
substitution of the trial court's factual findings for its
own was proper.
In considering the first issue, it is Our view that the
same be resolved in the affirmative. By a
preponderance of evidence, private respondents were
able to show that the deceased died of electrocution, a
conclusion which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C-1", "C2") on the left palm of the former. Such wounds
undoubtedly point to the fact that the deceased had
clutched a live wire of the petitioner. This was
corroborated by the testimony of Dr. Jovencio Castro
who actually examined the body of the deceased a few
hours after the death and described the said burnt
wounds as a "first degree burn" (p. 144, TSN,
December 11, 1972) and that they were "electrically
charged" (p. 102, TSN, November 28, 1972).
Furthermore, witnesses Linda Alonzo Estavillo and Aida
Bulong added that after the deceased screamed "Ay"
and sank into the water, they tried to render some
help but were overcome with fear by the sight of an
electric wire dangling from an electric post, moving in
the water in a snake-like fashion (supra). The
foregoing therefore justifies the respondent CA in
concluding that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to
no other conclusion than that they were "burns," and
there was nothing else in the street where the victim

was wading thru which could cause a burn except the


dangling live wire of defendant company" (CA
Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into
the theory that the deceased was electrocuted, if such
was really the case when she tried to open her steel
gate, which was electrically charged by an electric wire
she herself caused to install to serve as a burglar
deterrent. Petitioner suggests that the switch to said
burglar alarm was left on. But this is mere speculation,
not backed up with evidence. As required by the Rules,
"each party must prove his own affirmative
allegations." (Rule 131, Sec. 1). Nevertheless, the CA
significantly noted that "during the trial, this theory
was abandoned" by the petitioner (CA Decision, p. 23,
Rollo).
Furthermore the CA properly applied the principle
of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong,
a salesgirl, were with the deceased during that fateful
morning of June 29, 1967. This Court has not been
offered any sufficient reason to discredit the
testimonies of these two young ladies. They were one
in the affirmation that the deceased, while wading in
the waist-deep flood on Guerrero Street five or six
meters ahead of them, suddenly screamed "Ay" and
quickly sank into the water. When they approached the
deceased to help, they were stopped by the sight of an
electric wire dangling from a post and moving in
snake-like fashion in the water. Ernesto dela Cruz also
tried to approach the deceased, but he turned back
shouting that the water was grounded. These bits of
evidence carry much weight. For the subject of the
testimonies was a startling occurrence, and the
declarations may be considered part of the res gestae.
(CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the
following requisites must be present: (1) that the
principal act, the res gestae, be a startling occurrence;
(2) that the statements were made before the
declarant had time to contrive or devise; (3) that the
statements made must concern the occurrence in
question and its immediately attending circumstances
(People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122
SCRA 959). We do not find any abuse of discretion on
the CA' part in view of the satisfaction of said
requisites in the case at bar.
The statements made relative to the startling
occurrence are admitted in evidence precisely as an
exception to the hearsay rule on the grounds of
trustworthiness and necessity. "Trustworthiness"
because the statements are made instinctively (Wesley
vs. State, 53 Ala. 182), and "necessity" because such
natural and spontaneous utterances are more
convincing than the testimony of the same person on
the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore,
the fact that the declarant, Ernesto de la Cruz, was not
presented to testify does not make the testimony of
Linda Alonzo Estavillo and Aida Bulong hearsay since

the said declaration is part of the res gestae. Similarly,


We considered part of the res gestae a conversation
between two accused immediately after commission of
the crime as overheard by a prosecution witness
(People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide
petitioner's Memorandum, p. 135, Rollo), Ernesto de la
Cruz was not an actual witness to the instant when the
deceased sank into the waist-deep water, he acted
upon the call of help of Aida Bulong and Linda Alonzo
Estavillo with the knowledge of, and immediately after,
the sinking of the deceased. In fact the startling event
had not yet ceased when Ernesto de la Cruz entered
the scene considering that the victim remained
submerged. Under such a circumstance, it is
undeniable that a state of mind characterized by
nervous excitement had been triggered in Ernesto de
la Cruz's being as anybody under the same
contingency could have experienced. As such, We
cannot honestly exclude his shouts that the water was
grounded from the res gestae just because he did not
actually see the sinking of the deceased nor hear her
scream "Ay."
Neither can We dismiss the said declaration as a mere
opinion of Ernesto de la Cruz. While We concede to the
submission that the statement must be one of facts
rather than opinion, We cannot agree to the
proposition that the one made by him was a mere
opinion. On the contrary, his shout was a translation of
an actuality as perceived by him through his sense of
touch.
Finally, We do not agree that the taking of Ernesto de
la Cruz' testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them
pursuant to Section 5(e), Rule 131. For the application
of said Rule as against a party to a case, it is
necessary that the evidence alleged to be suppressed
is available only to said party (People vs. Tulale, L7233, 18 May 1955, 97 Phil. 953). The presumption
does not operate if the evidence in question is equally
available to both parties (StaplesHowe Printing Co. vs.
Bldg. and Loan Assn., 36 Phil. 421). It is clear from the
records that petitioner could have called Ernesto de la
Cruz to the witness stand. This, precisely, was Linda
Alonzo Estavillo's suggestion to petitioner's counsel
when she testified on cross examination:
Q. And that Erning de la Cruz,
how far did he reach from the
gate of the house?
A. Well, you can ask that
matter from him sir because he
is here. (TSN, p. 30, 26 Sept.
1972)
The foregoing shows that petitioner had the
opportunity to verify the declarations of Ernesto de la
Cruz which, if truly adverse to private respondent,
would have helped its case. However, due to reasons

known only to petitioner, the opportunity was not


taken.
Coming now to the second issue, We tip the scales in
the private respondents' favor. The respondent CA
acted correctly in disposing the argument that
petitioner be exonerated from liability since typhoons
and floods are fortuitous events. While it is true that
typhoons and floods are considered Acts of God for
which no person may be held responsible, it was not
said eventuality which directly caused the victim's
death. It was through the intervention of petitioner's
negligence that death took place. We subscribe to the
conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred
liability for the electrocution and consequent death of
the late Isabel Lao Juan, defendant called to the
witness-stand its electrical engineer, chief lineman,
and lineman to show exercise of extraordinary
diligence and to negate the charge of negligence. The
witnesses testified in a general way about their duties
and the measures which defendant usually adopts to
prevent hazards to life and limb. From these
testimonies, the lower court found "that the electric
lines and other equipment of defendant corporation
were properly maintained by a well-trained team of
lineman, technicians and engineers working around the
clock to insure that these equipments were in excellent
condition at all times." (P. 40, Record on Appeal) The
finding of the lower court, however, was based on
what the defendant's employees were supposed to do,
not on what they actually did or failed to do on the
date in question, and not on the occasion of
theemergency situation brought about by the typhoon.
The lower court made a mistake in assuming that
defendant's employees worked around the clock during
the occurrence of the typhoon on the night of June 28
and until the early morning of June 29, 1967, Engr.
Antonio Juan of the National Power Corporation
affirmed that when he first set out on an inspection
trip between 6:00 and 6:30 A.M. on June 29, 1967, he
saw grounded and disconnected electric lines of the
defendant but he saw no INELCO lineman. The INELCO
Office at the Life theatre on Rizal Street was still
closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the
witnesses of defendant contradict the finding of the
lower court. Conrado Asis, defendant's electrical
engineer, testified that he conducted a general
inspection of the franchise area of the INELCO only
on June 30, 1967, the day following the typhoon. The
reason he gave for the delay was that all their vehicles
were submerged. (p. 337, TSN, July 20, 1973)
According to Asis, he arrived at his office at 8:00 A.M.
onJune 30 and after briefing his men on what to do
they started out. (p. 338, lbid) One or two days after
the typhoon, the INELCO people heard "rumors that
someone was electrocuted" so he sent one of his men
to the place but his man reported back that there was
no damaged wire. (p. 385, Id.) Loreto Abijero, chief
lineman of defendant, corroborated Engr. Juan. He
testified that at about 8:00 A.M. on June 29, 1967
Engr. Juan came to the INELCO plant and asked the

INELCO people to inspect their lines. He went with


Engr. Juan and their inspection lasted from 8:00 A.M.
to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975)
Fabico Abijero lineman of defendant, testified that at
about 6:00 on June 29, 1967 the typhoon ceased. At
that time, he was at the main building of the Divine
Word College of Laoag where he had taken his family
for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred
in Laoag City on the night of June 28 until the early
hours of June 29, 1967, extraordinary diligence
requires a supplier of electricity to be inconstant
vigil to prevent or avoid any probable incident that
might imperil life or limb. The evidence does not show
that defendant did that. On the contrary, evidence
discloses that there were no men (linemen or
otherwise) policing the area, nor even manning its
office. (CA Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner
was negligent in seeing to it that no harm is done to
the general public"... considering that electricity is an
agency, subtle and deadly, the measure of care
required of electric companies must be commensurate
with or proportionate to the danger. The duty of
exercising this high degree of diligence and care
extends to every place where persons have a right to
be" (Astudillo vs. Manila Electric, 55 Phil. 427). The
negligence of petitioner having been shown, it may not
now absolve itself from liability by arguing that the
victim's death was solely due to a fortuitous event.
"When an act of God combines or concurs with the
negligence of the defendant to produce an injury, the
defendant is liable if the injury would not have resulted
but for his own negligent conduct or omission" (38 Am.
Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied
upon by petitioner finds no application in the case at
bar. It is imperative to note the surrounding
circumstances which impelled the deceased to leave
the comforts of a roof and brave the subsiding
typhoon. As testified by Linda Alonzo Estavillo (see
TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN,
p. 43, 26 Sept. 1972), the deceased, accompanied by
the former two, were on their way to the latter's
grocery store "to see to it that the goods were not
flooded." As such, shall We punish her for exercising
her right to protect her property from the floods by
imputing upon her the unfavorable presumption that
she assumed the risk of personal injury? Definitely not.
For it has been held that a person is excused from the
force of the rule, that when he voluntarily assents to a
known danger he must abide by the consequences, if
an emergency is found to exist or if the life or property
of another is in peril (65A C.S.C. Negligence(174(5), p.
301), or when he seeks to rescue his endangered
property (Harper and James, "The Law of Torts." Little,
Brown and Co., 1956, v. 2, p. 1167). Clearly, an
emergency was at hand as the deceased's property, a
source of her livelihood, was faced with an impending
loss. Furthermore, the deceased, at the time the fatal
incident occurred, was at a place where she had a right

to be without regard to petitioner's consent as she was


on her way to protect her merchandise. Hence, private
respondents, as heirs, may not be barred from
recovering damages as a result of the death caused by
petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its
discretion in completely reversing the trial court's
findings of fact, pointing to the testimonies of three of
its employees its electrical engineer, collectorinspector, lineman, and president-manager to the
effect that it had exercised the degree of diligence
required of it in keeping its electric lines free from
defects that may imperil life and limb. Likewise, the
said employees of petitioner categorically disowned the
fatal wires as they appear in two photographs taken on
the afternoon of June 29, 1967 (Exhs. "D" and "E"),
suggesting that said wires were just hooked to the
electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the
lower court ... was based on what the defendant's
employees were supposed to do, not on what they
actually did or failed to do on the date in question, and
not on the occasion of the emergency situation brought
about by the typhoon" (CA Decision, p. 25, Rollo). And
as found by the CA, which We have already reiterated
above, petitioner was in fact negligent. In a like
manner, petitioner's denial of ownership of the several
wires cannot stand the logical conclusion reached by
the CA when it held that "(t)he nature of the wounds
as described by the witnesses who saw them can lead
to no other conclusion than that they were 'burns', and
there was nothing else in the street where the victim
was wading thru which could cause a burn except the
dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the
wires, due care requires prompt efforts to discover and
repair broken lines" (Cooley on Torts, 4th ed., v. 3, p.
474). The fact is that when Engineer Antonio Juan of
the National Power Corporation set out in the early
morning of June 29, 1967 on an inspection tour, he
saw grounded and disconnected lines hanging from
posts to the ground but did not see any INELCO
lineman either in the streets or at the INELCO office
(vide, CA Decision, supra). The foregoing shows that
petitioner's duty to exercise extraordinary diligence
under the circumstance was not observed, confirming
the negligence of petitioner. To aggravate matters, the
CA found:
. . .even before June 28 the people in
Laoag were already alerted about the
impending typhoon, through radio
announcements.
Even
the
fire
department of the city announced the
coming of the big flood. (pp. 532-534,
TSN, March 13, 1975) At the INELCO
irregularities in the flow of electric
current were noted because "amperes
of the switch volts were moving". And
yet, despite these danger signals,
INELCO had to wait for Engr. Juan to
request that defendant's switch be cut

off but the harm was done. Asked why


the delay, Loreto Abijero answered
that he "was not the machine tender of
the electric plant to switch off the
current." (pp. 467-468, Ibid.) How
very characteristic of gross inefficiency!
(CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse
its discretion in reversing the trial court's findings but
tediously considered the factual circumstances at hand
pursuant to its power to review questions of fact raised
from the decision of the Regional Trial Court, formerly
the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent
CA awarded the following in private respondent's
favor: P30,229.45 in actual damages (i.e., P12,000 for
the victim's death and P18,229.45 for funeral
expenses); P50,000 in compensatory damages,
computed in accordance with the formula set in the
Villa-Rey Transit case (31 SCRA 511) with the base of
P15,000 as average annual income of the deceased;
P10,000 in exemplary damages; P3,000 attorney's
fees; and costs of suit. Except for the award of
P12,000 as compensation for the victim's death, We
affirm the respondent CA's award for damages and
attorney's fees. Pusuant to recent jurisprudence
(People vs. Mananquil, 132 SCRA 196; People vs.
Traya, 147 SCRA 381), We increase the said award of
P12,000 to P30,000, thus, increasing the total actual
damages to P48,229.45.
The exclusion of moral damages and attorney's fees
awarded by the lower court was properly made by the
respondent CA, the charge of malice and bad faith on
the part of respondents in instituting his case being a
mere product of wishful thinking and speculation.
Award of damages and attorney's fees is unwarranted
where the action was filed in good faith; there should
be no penalty on the right to litigate (Espiritu vs. CA,
137 SCRA 50). If damage results from a person's
exercising his legal rights, it is damnum absque
injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the
respondent, except for the slight modification that
actual damages be increased to P48,229.45 is hereby
AFFIRMED.
SO ORDERED.

defendant, father of Gumersindo, the payment of the


indemnity the latter has failed to pay, but defendant
refused, thus causing plaintiffs to institute the present
action.
The question for determination is whether appellee can
be held subsidiary liable to pay the indemnity of
P2,000.00 which his son was sentenced to pay in the
criminal case filed against him.
In holding that the civil liability of the son of appellee
arises from his criminal liability and, therefore, the
subsidiary liability of appellee must be determined
under the provisions of the Revised Penal Code, and
not under Article 2180 of the new Civil Code which
only applies to obligations which arise from quasidelicts, the trial court made the following observation:

G.R. No. L-14414

April 27, 1960

SEVERINO
SALEN
and
SALBANERA, plaintiffs-appellants,
vs.
JOSE BALCE, defendant-appellee.
Marciano
C.
Dating,
Severino Balce for appellee.

Jr.

for

ELENA

appellants.

BAUTISTA ANGELO, J.:


On February 5, 1957, plaintiffs brought this action
against defendant before the Court of First Instance of
Camarines Norte to recover the sum of P2,000.00,
with legal interest thereon from July 18, 1952, plus
attorney' fees and other incidental expenses.
Defendant, in his answer, set up the defense that the
law upon which plaintiffs predicate their right to
recover does not here apply for the reason that law
refers to quasi-delicts and not to criminal cases.
After trial, the court sustained the theory of defendant
and dismissed the complaint with costs. Hence the
present appeal.
Plaintiffs are the legitimate parents of Carlos Salen
who died single from wounds caused by Gumersindo
Balce, a legitimate son of defendant. At the time,
Gumersindo Balce was also Single, a minor below 18
years of age, and was living with defendant. As a
result of Carlos Salen's death, Gumersindo Balce
accused and convicted of homicide and was sentenced
to imprisonment and to pay the heirs of the deceased
an indemnity in the amount of P2,000.00. Upon
petition of plaintiff, the only heirs of the deceased, a
writ of execution was issued for the payment of the
indemnity but it was returned unsatisfied because
Gumersindo Balce was insolvent and had no property
in his name. Thereupon, plaintiffs demanded upon

The law provides that a person criminally liable


for a felony is also civilly liable (Art. 100 of the
Revised Penal Code). But there is no law which
holds the father either primarily or subsidiarily
liable for the civiliability inccured by the son
who is a minor of 8 years. Under Art. 101 of
the Penal Code, the father is civilly liable for
the acts committed by his son if the latter is an
imbecile, or insane, or under 9 years of age or
over 9 but under 15, who has acted without
discernment. Under Art. 102, only in keepers
and tavern-keepers are held subsidiarily liable
and under Art. 103 of the same Penal Code,
the subsidiary liability established in Art. 102
shall apply only to "employers, teachers,
persons and corporations engaged in any kind
of industry for felonies committed by their
servants, pupils, workmen, apprentices or
employees in the discharge of their duties." By
the principle of exclusio unus exclusio ulterius,
the defendant in this case cannot be held
subsidiary liable for the civil liability of
Gumersindo Balce who has been convicted of
homicide for the killing of the plaintiff's son
Carlos Salen.
Art. 2180 of the Civil Code, relied by the
plaintiff's, is not applicable to the case at bar.
It applies to obligations which arise from quasidelicts and not obligations which arise from
criminal offenses. Civil liability arising from
criminal negligence or offenses is governed by
the provisions of the Penal Code and civil
liability arising from civil negligence is
governed by the provision of the Civil Code.
The obligation imposed by Art. 2176 of the
New Civil Code expressly refers to obligations
which arise from quasi-delicts. And obligations
arising from quasi-delict (Commissioner's
note). And according to Art. 2177, the
'responsibility for fault of negligence under Art.
2176 is entirely separate and distinct from the
civil liabilty arising from negligence under the
Penal Code. . . .

While we agree with the theory that, as a rule, the civil


liability arising from a crime shall be governed by the
provisions of the Revised Penal Code, we disagree with
the contention that the subsidiary liability of persons
for acts of those who are under their custody should
likewise be governed by the same Code even in the
absence of any provision governing the case, for that
would leave the transgression of certain right without
any punishment or sanction in the law. Such would be
the case if we would uphold the theory of appellee as
sustained by the trial court.
It is true that under Article 101 of the Revised Penal
Code, a father is made civilly liable for the acts
committed by his son only if the latter is an imbecile,
an insane, under 9 years of age, over 9 but under 15
years of age, who act without discernment, unless it
appears that there is no fault or negligence on his part.
This is because a son who commits the act under any
of those conditions is by law exempt from criminal
liability (Article 12, subdivisions 1, 2 and 3, Revised
Penal Code). The idea is not to leave the act entirely
unpunished but to attach certain civil liability to the
person who has the deliquent minor under his legal
authority or control. But a minor over 15 who acts with
discernment is not exempt from criminal liability, for
which reason the Code is silent as to the subsidiary
liability of his parents should he stand convicted. In
that case, resort should be had to the general law
which is our Civil Code.
The particular law that governs this case is Article
2180, the pertinent portion of which provides: "The
father and, in case of his death or incapacity, the
mother, are responsible for damages caused by the
minor children who lived in their company." To hold
that this provision does not apply to the instant case
because it only covers obligations which arise from
quasi-delicts and not obligations which arise from
criminal offenses, would result in the absurdity that
while for an act where mere negligence intervenes the
father or mother may stand subsidiarily liable for the
damage caused by his or her son, no liability would
attach if the damage is caused with criminal intent.
Verily, the void that apparently exists in the Revised
Penal Code is subserved by this particular provision of
our Civil Code, as may be gleaned from some recent
decisions of this Court which cover equal or identical
cases.
A case in point is Exconde vs. Capuno, 101 Phil., 843,
the facts of which are as follows:
Dante Capuno, a minor of 15 years of age,
lives in the company of his father, Delfin
Capuno. He is a student of the Balintawak
Elementary School in the City of San Pablo and
a member of the Boy Scout Organization of his
school. On Marcy 31, 1949, on the occasion of
a certain parade in honor of Dr. Jose Rizal in
the City of San Pablo, Dante Capuno was one
of those instructed by the City School
Supervisor to join the parade. From the school,
Dante Capuno, together with other students,

boarded a jeep. When the jeep started to run,


Dante Capuno took hold of the wheel and
drove it while the driver sat on his left side.
They have not gone far when the jeep turned
turtle and two of its passengers, Amando
Ticson and Isidro Caperina died as a
consequence. The corresponding criminal
action for double homicide through reckless
imprudence was instituted against Dante
Capuno. During the trial, Sabina Exconde, as
mother of the deceased Isidro Caperina,
reserved her right to bring a separate civil
action for damages against the accused. Dante
Capuno was found guilty of the criminal
offense charged against him. In line with said
reservation
of
Sabina
Exconde,
the
corresponding civil action for damages was
filed against Delfin Capuno, Dante Capuno and
others.
In holding Delfin Capuno jointly and severally liable
with his minor son Dante Capuno arising from the
criminal act committed by the latter, this Court made
the following ruling:
The civil liability which the law imposes upon
the father and, in case of his death or
incapacity, the mother, for any damages that
may be caused by the minor children who live
with them, is obvious. This is a necessary
consequence of the parental authority they
exercise over them which imposes upon the
parents the "duty of supporting them, keeping
them in their company, educating them in
proportion to their means", while, on the other
hand, gives them the "right to correct and
punish them in moderation" (Arts. 134 and
135, Spanish Civil Code). The only way by
which they can relieved themselves of this
liability is if they prove that they exercised all
the diligence of a good father of a family to
prevent the damage (Art. 1903, last
paragraph,
Spanish
Civil
Code.)
This
defendants failed to prove.
Another case in point is Araneta vs. Arreglado 104
Phil., 524; 55 Off. Gaz. [9] 1961. The facts of this case
are as follows:
On March 7, 1951, while plaintiff Benjamin
Araneta was talking with the other students of
the Ateneo de Manila while seated atop a low
ruined wall bordering the Ateneo grounds
along Dakota Street, in the City of Manila,
Dario Arreglado, a former student of the
Ateneo, chanced to pass by. Those on the wall
called Dario and conversed with him, and in
the course of their talk, twitted him on his
leaving the Ateneo and enrolling in the De La
Salle College. Apparently, Arreglado resented
the banter and suddenly pulling from his
pocket a Japanese Luger pistol (licensed in the
name of his father Juan Arreglado), fired the
same at Araneta, hitting him in the lower jaw,

causing him to drop backward, bleeding


profusely. Helped by his friends, the injured lad
was taken first to the school infirmary and
later to the Singian Hospital, where he lay
hovering between life and death for three
days. The vigor of youth came to his rescue;
he rallied and after sometime finally recovered,
the gunshot would left him with a degenerative
injury to the jawbone (mandible) and a scar in
the lower portion of the face, where the bullet
had plowed through. The behavior of Benjamin
was likewise affected, he becoming inhibited
and morose after leaving the hospital.
Dario Arreglado was indicted for frustrated homicide
and pleaded guilty, but in view of his youth, he being
only 14 years of age, the court suspended the
proceedings as prescribed by Article 80 of the Revised
Penal Code. Thereafter, an action was instituted by
Araneta and his father against Juan Arreglado, his
wife, and their son Dario, to recover material, moral
and exemplary damages. The court of first instance,
after trial, sentenced the Arreglados to pay P3,943.00
as damages and attorney's fees. From this decision,
the Araneta appealed in view of the meager amount of
indemnity awarded. This Court affirmed the decision
but increased the indemnity to P18,000.00. This is a
typical case of parental subsidiary liability arising from
the criminal act of a minor son.
Wherefore, the decision appealed from is reversed.
Judgement is hereby rendered ordering appellee to pay
appellants the sum of P2,000.00, with legal interest
thereon from the filing of the complaint, and the costs.

of Candidates for graduation for the Degree of


Bachelor of Laws (LL.B) as of Second Semester
(1987-1988) with the following annotation:
JADER ROMEO A.
Def. Conflict of Laws x-1-87-88, Practice
Court I Inc., 1-87-88 C-1 to submit transcript
with S.O. (Exhibits "3", "3-C-1", "3-C-2").
The 35th Investitures & Commencement
Ceremonies for the candidates of Bachelor of
Laws was scheduled on the 16th of April 1988
at 3:00 o'clock in the afternoon, and in the
invitation for that occasion the name of the
plaintiff appeared as one of the candidates.
(Exhibits "B", "B-6", "B-6-A"). At the foot of
the list of the names of the candidates there
appeared however the following annotation:

G.R. No. 132344

February 17, 2000

UNIVERSITY
OF
THE
vs.
ROMEO A. JADER, respondent.

EAST, petitioner,

YNARES-SANTIAGO, J.:
May an educational institution be held liable for
damages for misleading a student into believing that
the latter had satisfied all the requirements for
graduation when such is not the case? This is the issue
in the instant petition for review premised on the
following undisputed facts as summarized by the trial
court and adopted by the Court of Appeals (CA), 1 to
wit:
Plaintiff was enrolled in the defendants' College
of Law from 1984 up to 1988. In the first
semester of his last year (School year 19871988), he failed to take the regular final
examination in Practice Court I for which he
was given an incomplete grade (Exhibits "2",
also Exhibit "H"). He enrolled for the second
semester as fourth year law student (Exhibit
"A") and on February 1, 1988 he filed an
application for the removal of the incomplete
grade given him by Professor Carlos Ortega
(Exhibits "H-2", also Exhibit "2") which was
approved by Dean Celedonio Tiongson after
payment of the required fee. He took the
examination on March 28, 1988. On May 30,
1988, Professor Carlos Ortega submitted his
grade. It was a grade of five (5). (Exhibits "H4", also Exhibits "2-L", "2-N").1wphi1.nt
In the meantime, the Dean and the Faculty
Members of the College of Law met to
deliberate on who among the fourth year
students should be allowed to graduate. The
plaintiff's name appeared in the Tentative List

This is a tentative list Degrees will be


conferred upon these candidates who
satisfactorily complete requirements as
stated in the University Bulletin and as
approved of the Department of
Education, Culture and Sports (Exhibit
"B-7-A").
The
plaintiff
attended
the
investiture
ceremonies at F. dela Cruz Quadrangle, U.E.,
Recto Campus, during the program of which he
went up the stage when his name was called,
escorted by her (sic) mother and his eldest
brother who assisted in placing the Hood, and
his Tassel was turned from left to right, and he
was thereafter handed by Dean Celedonio a
rolled white sheet of paper symbolical of the
Law Diploma. His relatives took pictures of the
occasion (Exhibits "C" to "C-6", "D-3" to "D11").
He tendered a blow-out that evening which
was attended by neighbors, friends and
relatives who wished him good luck in the
forthcoming bar examination. There were
pictures taken too during the blow-out
(Exhibits "D" to "D-1").
He thereafter prepared himself for the bar
examination. He took a leave of absence
without pay from his job from April 20, 1988 to
September 30, 1988 (Exhibit "G") and enrolled
at the pre-bar review class in Far Eastern
University. (Exhibits "F" to "F-2"). Having
learned of the deficiency he dropped his review
class and was not able to take the bar
examination.2
Consequently, respondent sued petitioner for damages
alleging that he suffered moral shock, mental anguish,
serious anxiety, besmirched reputation, wounded
feelings and sleepless nights when he was not able to
take the 1988 bar examinations arising from the

latter's negligence. He prayed for an award of moral


and exemplary damages, unrealized income, attorney's
fees, and costs of suit.
In its answer with counterclaim, petitioner denied
liability arguing mainly that it never led respondent to
believe that he completed the requirements for a
Bachelor of Laws degree when his name was included
in the tentative list of graduating students. After trial,
the lower court rendered judgment as follows:
WHEREFORE, in view of the foregoing
judgment is hereby rendered in favor of the
plaintiff and against the defendant ordering the
latter to pay plaintiff the sum of THIRTY FIVE
THOUSAND FOUR HUNDRED SEVENTY PESOS
(P35,470.00) with legal rate of interest from
the filing of the complaint until fully paid, the
amount
of
FIVE
THOUSAND
PESOS
(P5,000.00) as attorney's fees and the cost of
suit.
Defendant's counterclaim is, for lack of merit,
hereby dismissed.
SO ORDERED.3
which on appeal by both parties was affirmed by the
Court of Appeals (CA) with modification. The
dispositive portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the
lower Court's Decision is hereby AFFIRMED
with the MODIFICATION that defendantappellee, in addition to the sum adjudged by
the lower court in favor of plaintiff-appellant, is
also ORDERED to pay plaintiff-appellant the
amount of FIFTY THOUSAND (P50,000.00)
PESOS for moral damages. Costs against
defendant-appellee.
SO ORDERED.4
Upon the denial of its motion for reconsideration,
petitioner UE elevated the case to this Court on a
petition for review under Rule 45 of the Rules of Court,
arguing that it has no liability to respondent Romeo A.
Jader, considering that the proximate and immediate
cause of the alleged damages incurred by the latter
arose out of his own negligence in not verifying from
the professor concerned the result of his removal
exam.
The petition lacks merit.
When a student is enrolled in any educational or
learning institution, a contract of education is entered
into between said institution and the student. The
professors, teachers or instructors hired by the school
are considered merely as agents and administrators
tasked to perform the school's commitment under the
contract. Since the contracting parties are the school
and the student, the latter is not duty-bound to deal

with the former's agents, such as the professors with


respect to the status or result of his grades, although
nothing prevents either professors or students from
sharing with each other such information. The Court
takes judicial notice of the traditional practice in
educational institutions wherein the professor directly
furnishes his/her students their grades. It is the
contractual obligation of the school to timely inform
and furnish sufficient notice and information to each
and every student as to whether he or she had already
complied with all the requirements for the conferment
of a degree or whether they would be included among
those who will graduate. Although commencement
exercises are but a formal ceremony, it nonetheless is
not an ordinary occasion, since such ceremony is the
educational institution's way of announcing to the
whole world that the students included in the list of
those who will be conferred a degree during the
baccalaureate ceremony have satisfied all the
requirements for such degree. Prior or subsequent to
the ceremony, the school has the obligation to
promptly inform the student of any problem involving
the latter's grades and performance and also most
importantly, of the procedures for remedying the
same.
Petitioner, in belatedly informing respondent of the
result of the removal examination, particularly at a
time when he had already commenced preparing for
the bar exams, cannot be said to have acted in good
faith. Absence of good faith must be sufficiently
established for a successful prosecution by the
aggrieved party in a suit for abuse of right under
Article 19 of the Civil Code. Good faith connotes an
honest intention to abstain from taking undue
advantage of another, even though the forms and
technicalities of the law, together with the absence of
all information or belief of facts, would render the
transaction unconscientious.5 It is the school that has
access to those information and it is only the school
that can compel its professors to act and comply with
its rules, regulations and policies with respect to the
computation and the prompt submission of grades.
Students do not exercise control, much less influence,
over the way an educational institution should run its
affairs, particularly in disciplining its professors and
teachers and ensuring their compliance with the
school's rules and orders. Being the party that hired
them, it is the school that exercises general
supervision and exclusive control over the professors
with respect to the submission of reports involving the
students' standing. Exclusive control means that no
other person or entity had any control over the
instrumentality which caused the damage or injury.6
The college dean is the senior officer responsible for
the operation of an academic program, enforcement of
rules and regulations, and the supervision of faculty
and student services.7 He must see to it that his own
professors and teachers, regardless of their status or
position outside of the university, must comply with
the rules set by the latter. The negligent act of a
professor who fails to observe the rules of the school,
for instance by not promptly submitting a student's

grade, is not only imputable to the professor but is an


act of the school, being his employer.
Considering further, that the institution of learning
involved herein is a university which is engaged in
legal education, it should have practiced what it
inculcates in its students, more specifically the
principle of good dealings enshrined in Articles 19 and
20 of the Civil Code which states:
Art. 19. Every person must, in the exercise of
his rights and in the performance of his duties,
act with justice, give everyone his due, and
observe honesty and good faith.
Art. 20. Every person who, contrary to law,
wilfully or negligently causes damage to
another, shall indemnify the latter for the
same.
Art. 19 was intended to expand the concept of torts by
granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human
foresight to provide specifically in statutory law. 8 In
civilized society, men must be able to assume that
others will do them no intended injury that others
will commit no internal aggressions upon them; that
their fellowmen, when they act affirmatively will do so
with due care which the ordinary understanding and
moral sense of the community exacts and that those
with whom they deal in the general course of society
will act in good faith. The ultimate thing in the theory
of liability is justifiable reliance under conditions of
civilized society.9 Schools and professors cannot just
take students for granted and be indifferent to them,
for without the latter, the former are useless.
Educational institutions are duty-bound to inform the
students of their academic status and not wait for the
latter to inquire from the former. The conscious
indifference of a person to the rights or welfare of the
person/persons who may be affected by his act or
omission can support a claim for damages. 10 Want of
care to the conscious disregard of civil obligations
coupled with a conscious knowledge of the cause
naturally calculated to produce them would make the
erring party liable.11 Petitioner ought to have known
that time was of the essence in the performance of its
obligation to inform respondent of his grade. It cannot
feign ignorance that respondent will not prepare
himself for the bar exams since that is precisely the
immediate concern after graduation of an LL.B.
graduate. It failed to act seasonably. Petitioner cannot
just give out its student's grades at any time because
a student has to comply with certain deadlines set by
the Supreme Court on the submission of requirements
for taking the bar. Petitioner's liability arose from its
failure to promptly inform respondent of the result of
an examination and in misleading the latter into
believing that he had satisfied all requirements for the
course. Worth quoting is the following disquisition of
the respondent court:

It is apparent from the testimony of Dean


Tiongson that defendant-appellee University
had been informed during the deliberation that
the professor in Practice Court I gave plaintiffappellant a failing grade. Yet, defendantappellee still did not inform plaintiff-appellant
of his failure to complete the requirements for
the degree nor did they remove his name from
the tentative list of candidates for graduation.
Worse, defendant-appellee university, despite
the knowledge that plaintiff-appellant failed in
Practice
Court
I, againincluded
plaintiffappellant's name in the "tentative list of
candidates for graduation which was prepared
after the deliberation and which became the
basis for the commencement rites program.
Dean Tiongson reasons out that plaintiffappellant's name was allowed to remain in the
tentative list of candidates for graduation in
the hope that the latter would still be able to
remedy the situation in the remaining few days
before graduation day. Dean Tiongson,
however, did not explain how plaintiff appellant
Jader could have done something to complete
his deficiency if defendant-appellee university
did not exert any effort to inform plaintiffappellant of his failing grade in Practice Court
I.12
Petitioner cannot pass on its blame to the professors to
justify its own negligence that led to the delayed relay
of information to respondent. When one of two
innocent parties must suffer, he through whose agency
the loss occurred must bear it.13 The modern tendency
is to grant indemnity for damages in cases where there
is abuse of right, even when the act is not illicit. 14 If
mere fault or negligence in one's acts can make him
liable for damages for injury caused thereby, with
more reason should abuse or bad faith make him
liable. A person should be protected only when he acts
in the legitimate exercise of his right, that is, when he
acts with prudence and in good faith, but not when he
acts with negligence or abuse.15
However, while petitioner was guilty of negligence and
thus liable to respondent for the latter's actual
damages, we hold that respondent should not have
been awarded moral damages. We do not agree with
the Court of Appeals' findings that respondent suffered
shock, trauma and pain when he was informed that he
could not graduate and will not be allowed to take the
bar examinations. At the very least, it behooved on
respondent to verify for himself whether he has
completed all necessary requirements to be eligible for
the bar examinations. As a senior law student,
respondent should have been responsible enough to
ensure that all his affairs, specifically those pertaining
to his academic achievement, are in order. Given these
considerations, we fail to see how respondent could
have suffered untold embarrassment in attending the
graduation rites, enrolling in the bar review classes
and not being able to take the bar exams. If
respondent was indeed humiliated by his failure to
take the bar, he brought this upon himself by not
verifying if he has satisfied all the requirements

including his school records, before preparing himself


for the bar examination. Certainly, taking the bar
examinations does not only entail a mental preparation
on the subjects thereof; there are also prerequisites of
documentation and submission of requirements which
the prospective examinee must meet.
WHEREFORE, the assailed decision of the Court of
Appeals is AFFIRMED with MODIFICATION. Petitioner is
ORDERED to PAY respondent the sum of Thirty-five
Thousand Four Hundred Seventy Pesos (P35,470.00),
with legal interest of 6% per annum computed from
the date of filing of the complaint until fully paid; the
amount of Five Thousand Pesos (P5,000.00) as
attorney's fees; and the costs of the suit. The award of
moral damages is DELEIED.1wphi1.nt
SO ORDERED.

G.R. No. 132266 December 21, 1999


CASTILEX
INDUSTRIAL
CORPORATION, petitioner,
vs.
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ,
and
CEBU
DOCTORS'
HOSPITAL,
INC., respondents.

DAVIDE, JR., C.J.:


The pivotal issue in this petition is whether an
employer may be held vicariously liable for the death
resulting from the negligent operation by a managerial
employee of a company-issued vehicle.
The antecedents, as succinctly summarized by the
Court of Appeals, are as follows:
On 28 August 1988, at around 1:30 to
2:00 in the morning, Romeo So
Vasquez,
was
driving
a
Honda
motorcycle around Fuente Osmea
Rotunda. He was traveling counterclockwise, (the normal flow of traffic in
a rotunda) but without any protective
helmet or goggles. He was also only
carrying a Student's Permit to Drive at
the time. Upon the other hand,
Benjamin Abad [was a] manager of
Appellant
Castilex
Industrial
Corporation, registered owner [of] a
Toyota Hi-Lux Pick-up with plate no.
GBW-794. On the same date and time,
Abad drove the said company car out
of a parking lot but instead of going
around the Osmea rotunda he made a

short cut against [the] flow of the


traffic in proceeding to his route to
General Maxilom St. or to Belvic St.
In the process, the motorcycle of
Vasquez and the pick-up of Abad
collided with each other causing severe
injuries to the former. Abad stopped
his vehicle and brought Vasquez to the
Southern Islands Hospital and later to
the Cebu Doctor's Hospital.
On September 5, 1988, Vasquez died
at the Cebu Doctor's Hospital. It was
there
that
Abad
signed
an
acknowledgment of Responsible Party
(Exhibit K) wherein he agreed to pay
whatever hospital bills, professional
fees and other incidental charges
Vasquez may incur.
After the police authorities had
conducted the investigation of the
accident, a Criminal Case was filed
against
Abad
but
which
was
subsequently dismissed for failure to
prosecute. So, the present action for
damages was commenced by Vicente
Vasquez, Jr. and Luisa So Vasquez,
parents of the deceased Romeo So
Vasquez, against Jose Benjamin Abad
and Castilex Industrial Corporation. In
the same action, Cebu Doctor's
Hospital intervened to collect unpaid
balance for the medical expense given
to Romeo So Vasquez. 1
The trial court ruled in favor of private respondents
Vicente and Luisa Vasquez and ordered Jose Benjamin
Abad (hereafter ABAD) and petitioner Castilex
Industrial Corporation (hereafter CASTILEX) to pay
jointly and solidarily (1) Spouses Vasquez, the
amounts of P8,000.00 for burial expenses; P50,000.00
as moral damages; P10,000.00 as attorney's fees; and
P778,752.00 for loss of earning capacity; and (2) Cebu
Doctor's Hospital, the sum of P50,927.83 for unpaid
medical and hospital bills at 3% monthly interest from
27 July 1989 until fully paid, plus the costs of
litigation. 2
CASTILEX and ABAD separately appealed the decision.
In its decision 3 of 21 May 1997, the Court of Appeals
affirmed the ruling of the trial court holding ABAD and
CASTILEX liable but held that the liability of the latter
is "only vicarious and not solidary" with the former. It
reduced the award of damages representing loss of
earning capacity from P778,752.00 to P214,156.80;
and the interest on the hospital and medical bills, from
3% per month to 12% per annum from 5 September
1988 until fully paid.

Upon CASTILEX's motion for reconsideration, the Court


of Appeals modified its decision by (1) reducing the
award of moral damages from P50,000 to P30,000 in
view of the deceased's contributory negligence; (b)
deleting the award of attorney's fees for lack of
evidence; and (c) reducing the interest on hospital and
medical bills to 6%per annum from 5 September 1988
until fully paid. 4
Hence, CASTILEX filed the instant petition contending
that the Court of Appeals erred in (1) applying to the
case the fifth paragraph of Article 2180 of the Civil
Code, instead of the fourth paragraph thereof; (2) that
as a managerial employee, ABAD was deemed to have
been always acting within the scope of his assigned
task even outside office hours because he was using a
vehicle issued to him by petitioner; and (3) ruling that
petitioner had the burden to prove that the employee
was not acting within the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of
facts of petitioner which holds fast on the theory of
negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez
argue that their son's death was caused by the
negligence of petitioner's employee who was driving a
vehicle issued by petitioner and who was on his way
home from overtime work for petitioner; and that
petitioner is thus liable for the resulting injury and
subsequent death of their son on the basis of the fifth
paragraph of Article 2180. Even if the fourth paragraph
of Article 2180 were applied, petitioner cannot escape
liability therefor. They moreover argue that the Court
of Appeals erred in reducing the amount of
compensatory damages when the award made by the
trial court was borne both by evidence adduced during
the trial regarding deceased's wages and by
jurisprudence on life expectancy. Moreover, they point
out that the petition is procedurally not acceptable on
the following grounds: (1) lack of an explanation for
serving the petition upon the Court of Appeals by
registered mail, as required under Section 11, Rule 13
of the Rules of Civil Procedure; and (2) lack of a
statement of the dates of the expiration of the original
reglementary period and of the filing of the motion for
extension of time to file a petition for review.
For its part, respondent Cebu Doctor's Hospital
maintains that petitioner CASTILEX is indeed
vicariously liable for the injuries and subsequent death
of Romeo Vasquez caused by ABAD, who was on his
way home from taking snacks after doing overtime
work for petitioner. Although the incident occurred
when ABAD was not working anymore "the inescapable
fact remains that said employee would not have been
situated at such time and place had he not been
required by petitioner to do overtime work." Moreover,
since petitioner adopted the evidence adduced by
ABAD, it cannot, as the latter's employer, inveigle itself
from the ambit of liability, and is thus estopped by the
records of the case, which it failed to refute.

We shall first address the issue raised by the private


respondents regarding some alleged procedural lapses
in the petition.
Private respondent's contention of petitioner's violation
of Section 11 of Rule 13 and Section 4 of Rule 45 of
the 1997 Rules of Civil Procedure holds no water.
Sec. 11 of Rule 13 provides:
Sec. 11. Priorities in modes of services
and filing. Whenever practicable, the
service and filing of pleadings and
other papers shall be done personally.
Except
with
respect
to
papers
emanating from the court, a resort to
other modes must be accompanied by
a written explanation why the service
or filing was not done personally. A
violation of this Rule may be cause to
consider the paper as not filed.
The explanation why service of a copy of the petition
upon the Court of Appeals was done by registered mail
is found on Page 28 of the petition. Thus, there has
been compliance with the aforequoted provision.
As regards the allegation of violation of the material
data rule under Section 4 of Rule 45, the same is
unfounded. The material dates required to be stated in
the petition are the following: (1) the date of receipt of
the judgment or final order or resolution subject of the
petition; (2) the date of filing of a motion for new trial
or reconsideration, if any; and (3) the date of receipt
of the notice of the denial of the motion. Contrary to
private respondent's claim, the petition need not
indicate the dates of the expiration of the original
reglementary period and the filing of a motion for
extension of time to file the petition. At any rate, aside
from the material dates required under Section 4 of
Rule 45, petitioner CASTILEX also stated in the first
page of the petition the date it filed the motion for
extension of time to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this
instance.
Petitioner
CASTILEX
presumes
said
negligence but claims that it is not vicariously liable for
the injuries and subsequent death caused by ABAD.
Petitioner contends that the fifth paragraph of Article
2180 of the Civil Code should only apply to instances
where the employer is not engaged in business or
industry. Since it is engaged in the business of
manufacturing and selling furniture it is therefore not
covered by said provision. Instead, the fourth
paragraph should apply.
Petitioner's interpretation of the fifth paragraph is not
accurate. The phrase "even though the former are not
engaged in any business or industry" found in the fifth
paragraph should be interpreted to mean that it is not

necessary for the employer to be engaged in any


business or industry to be liable for the negligence of
his employee who is acting within the scope of his
assigned task. 5
A distinction must be made between the two provisions
to determine what is applicable. Both provisions apply
to employers: the fourth paragraph, to owners and
managers of an establishment or enterprise; and the
fifth paragraph, to employers in general, whether or
not engaged in any business or industry. The fourth
paragraph covers negligent acts of employees
committed either in the service of the branches or on
the occasion of their functions, while the fifth
paragraph encompasses negligent acts of employees
acting within the scope of their assigned task. The
latter is an expansion of the former in both employer
coverage and acts included. Negligent acts of
employees, whether or not the employer is engaged in
a business or industry, are covered so long as they
were acting within the scope of their assigned task,
even though committed neither in the service of the
branches nor on the occasion of their functions. For,
admittedly, employees oftentimes wear different hats.
They perform functions which are beyond their office,
title or designation but which, nevertheless, are still
within the call of duty.
This court has applied the fifth paragraph to cases
where the employer was engaged in a business or
industry such as truck operators 6 and banks. 7 The
Court of Appeals cannot, therefore, be faulted in
applying the said paragraph of Article 2180 of the Civil
Code to this case.
Under the fifth paragraph of Article 2180, whether or
not engaged in any business or industry, an employer
is liable for the torts committed by employees within
the scope of his assigned tasks. But it is necessary to
establish the employer-employee relationship; once
this is done, the plaintiff must show, to hold the
employer liable, that the employee was acting within
the scope of his assigned task when the tort
complained of was committed. It is only then that the
employer may find it necessary to interpose the
defense of due diligence in the selection and
supervision of the employee. 8
It is undisputed that ABAD was a Production Manager
of petitioner CASTILEX at the time of the tort
occurrence. As to whether he was acting within the
scope of his assigned task is a question of fact, which
the court a quo and the Court of Appeals resolved in
the affirmative.
Well-entrenched in our jurisprudence is the rule that
the factual findings of the Court of Appeals are entitled
to great respect, and even finality at times. This rule
is, however, subject to exceptions such as when the
conclusion is grounded on speculations, surmises, or
conjectures. 9 Such exception obtain in the present
case to warrant review by this Court of the finding of
the Court of Appeals that since ABAD was driving

petitioner's vehicle he was acting within the scope of


his duties as a manager.
Before we pass upon the issue of whether ABAD was
performing acts within the range of his employment,
we shall first take up the other reason invoked by the
Court of Appeals in holding petitioner CASTILEX
vicariously liable for ABAD's negligence, i.e., that the
petitioner did not present evidence that ABAD was not
acting within the scope of his assigned tasks at the
time of the motor vehicle mishap. Contrary to the
ruling of the Court of Appeals, it was not incumbent
upon the petitioner to prove the same. It was enough
for petitioner CASTILEX to deny that ABAD was acting
within the scope of his duties; petitioner was not under
obligation to prove this negative averment. Ei incumbit
probatio qui dicit, non qui negat (He who asserts, not
he who denies, must prove). The Court has
consistently applied the ancient rule that if the
plaintiff, upon whom rests the burden of proving his
cause of action, fails to show in a satisfactory manner
facts which he bases his claim, the defendant is under
no obligation to prove his exception or defense. 10
Now on the issue of whether the private respondents
have sufficiently established that ABAD was acting
within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness,
testified that at the time of the incident, he was driving
a company-issued vehicle, registered under the name
of petitioner. He was then leaving the restaurant
where he had some snacks and had a chat with his
friends after having done overtime work for the
petitioner.
No absolutely hard and fast rule can be stated which
will furnish the complete answer to the problem of
whether at a given moment, an employee is engaged
in his employer's business in the operation of a motor
vehicle, so as to fix liability upon the employer because
of the employee's action or inaction; but rather, the
result varies with each state of facts. 11
In Filamer Christian Institute v. Intermediate Appellant
Court, 12 this Court had the occasion to hold that acts
done within the scope of the employee's assigned
tasks includes "any act done by an employee in
furtherance of the interests of the employer or for the
account of the employer at the time of the infliction of
the injury or damages."
The court a quo and the Court of Appeals were one in
holding that the driving by a manager of a companyissued vehicle is within the scope of his assigned tasks
regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a
service vehicle at the time of the injurious incident is
not of itself sufficient to charge petitioner with liability
for the negligent operation of said vehicle unless it
appears that he was operating the vehicle within the
course or scope of his employment.

The following are principles in American Jurisprudence


on the employer's liability for the injuries inflicted by
the negligence of an employee in the use of an
employer's motor vehicle:
I. Operation of Employer's Motor Vehicle in
Going to
or from Meals
It has been held that an employee who uses his
employer's vehicle in going from his work to a place
where he intends to eat or in returning to work from a
meal is not ordinarily acting within the scope of his
employment in the absence of evidence of some
special business benefit to the employer. Evidence that
by using the employer's vehicle to go to and from
meals, an employee is enabled to reduce his time-off
and so devote more time to the performance of his
duties supports the finding that an employee is acting
within the scope of his employment while so driving
the vehicle. 13
II. Operation of Employer's Vehicle in Going to
or from Work
In the same vein, traveling to and from the place of
work is ordinarily a personal problem or concern of the
employee, and not a part of his services to his
employer. Hence, in the absence of some special
benefit to the employer other than the mere
performance of the services available at the place
where he is needed, the employee is not acting within
the scope of his employment even though he uses his
employer's motor vehicle. 14
The employer may, however, be liable where he
derives some special benefit from having the employee
drive home in the employer's vehicle as when the
employer benefits from having the employee at work
earlier and, presumably, spending more time at his
actual duties. Where the employee's duties require him
to circulate in a general area with no fixed place or
hours of work, or to go to and from his home to
various outside places of work, and his employer
furnishes him with a vehicle to use in his work, the
courts have frequently applied what has been called
the "special errand" or "roving commission" rule, under
which it can be found that the employee continues in
the service of his employer until he actually reaches
home. However, even if the employee be deemed to
be acting within the scope of his employment in going
to or from work in his employer's vehicle, the employer
is not liable for his negligence where at the time of the
accident, the employee has left the direct route to his
work or back home and is pursuing a personal errand
of his own.
III. Use of Employer's Vehicle Outside Regular
Working Hours

An employer who loans his motor vehicle to an


employee for the latter's personal use outside of
regular working hours is generally not liable for the
employee's negligent operation of the vehicle during
the period of permissive use, even where the employer
contemplates that a regularly assigned motor vehicle
will be used by the employee for personal as well as
business purposes and there is some incidental benefit
to the employer. Even where the employee's personal
purpose in using the vehicle has been accomplished
and he has started the return trip to his house where
the vehicle is normally kept, it has been held that he
has not resumed his employment, and the employer is
not liable for the employee's negligent operation of the
vehicle during the return trip. 15
The foregoing principles and jurisprudence are
applicable in our jurisdiction albeit based on the
doctrine of respondent superior, not on the principle
of bonus pater familias as in ours. Whether the fault or
negligence of the employee is conclusive on his
employer as in American law or jurisprudence, or
merely gives rise to the presumption juris tantum of
negligence on the part of the employer as in ours, it is
indispensable that the employee was acting in his
employer's business or within the scope of his assigned
task. 16
In the case at bar, it is undisputed that ABAD did some
overtime work at the petitioner's office, which was
located in Cabangcalan, Mandaue City. Thereafter, he
went to Goldie's Restaurant in Fuente Osmea, Cebu
City, which is about seven kilometers away from
petitioner's place of business. 17 A witness for the
private respondents, a sidewalk vendor, testified that
Fuente Osmea is a "lively place" even at dawn
because Goldie's Restaurant and Back Street were still
open and people were drinking thereat. Moreover,
prostitutes, pimps, and drug addicts littered the
place. 18
At the Goldie's Restaurant, ABAD took some snacks
and had a chat with friends. It was when ABAD was
leaving the restaurant that the incident in question
occurred. That same witness for the private
respondents testified that at the time of the vehicular
accident, ABAD was with a woman in his car, who then
shouted: "Daddy, Daddy!" 19This woman could not
have been ABAD's daughter, for ABAD was only 29
years old at the time.
To the mind of this Court, ABAD was engaged in affairs
of his own or was carrying out a personal purpose not
in line with his duties at the time he figured in a
vehicular accident. It was then about 2:00 a.m. of 28
August 1988, way beyond the normal working hours.
ABAD's working day had ended; his overtime work had
already been completed. His being at a place which, as
petitioner put it, was known as a "haven for
prostitutes, pimps, and drug pushers and addicts," had
no connection to petitioner's business; neither had it
any relation to his duties as a manager. Rather, using
his service vehicle even for personal purposes was a

form of a fringe benefit or one of the perks attached to


his position.
Since there is paucity of evidence that ABAD was
acting within the scope of the functions entrusted to
him, petitioner CASTILEX had no duty to show that it
exercised the diligence of a good father of a family in
providing ABAD with a service vehicle. Thus, justice
and equity require that petitioner be relieved of
vicarious liability for the consequences of the
negligence of ABAD in driving its vehicle. 20
WHEREFORE, the petition is GRANTED, and the
appealed decision and resolution of the Court of
Appeals is AFFIRMED with the modification that
petitioner Castilex Industrial Corporation be absolved
of any liability for the damages caused by its
employee, Jose Benjamin Abad.
SO ORDERED.

Administration of the officers thereof, were guilty of


negligence in storing a highly combustible and
inflammable substance in its warehouse on bodega in
Manila in violation of City Ordinances, and therefore
the government is liable for the damages sustained by
the claimant under article 1903 of the Civil Code,
which in its pertinent part reads as follows:
ART. 1903. The
preceding article
personal acts and
persons for whom
xxx

xxx

obligation imposed by the


is enforceable not only for
omissions but also for those
another is responsible.
xxx

The state is liable in the scene when it acts


through a special agent, but not when the
damage should have been caused by the
official to whom it properly pertained to do the
act performed, in which case the provisions of
the preceding article shall be applicable.
In the case of Merritt vs. Government of the Philippine
Islands (34 Phil., 311), this Court held the following:

G.R. No. L-1120

August 31, 1948

INOCENCIO
ROSETE, petitioner,
vs.
THE AUDITOR GENERAL, respondent.
Quijano,
Rosete
and
Tizon
for
petitioner.
First Assistant Solicitor General Jose B. L. Reyes and
Solicitor Manuel Tomacruz for respondent.
FERIA, J.:
This is an appeal from the decision of the Insular
Auditor denying the claim of Inocencio Rosete and
others against the Government in the amount of
P35,376, for damages caused to buildings belonging to
the claimant, which according to the appellant's claim
were destroyed by fire that came from the contiguous
warehouse of the Emergency Control Administration,
ECA, located at No. 2262 Azcarraga, due to the
negligence of a certain Jose Frayno y Panlilio in igniting
recklessly his cigarette-lighter near a five gallon drum
into which gasoline was being drained, and of the
officers of the said ECA, which is an office or agency of
the Government, in storing gasoline in said warehouse
contrary to the provisions of Ordinances of the City of
Manila.
It is not necessary for us to pass upon the facts
alleged by the appellant, but only on the question
whether, assuming them to be true, the Insular
Auditor erred in denying or dismissing the appellant's
claim.
The claimant contends that the Auditor General erred
in not finding that the government agency or
instrumentality known as the Emergency Control

. . . Paragraph 5 of article 1903 of the Civil


Code reads:
"The state is liable in this sense when it acts
through a special agent, but not when the
damage should have been caused by the
official to whom properly it pertained to do the
act performed, in which cast the provisions of
the preceding article shall be applicable."
The supreme court of Spain in defining the
scope of this paragraph said:
"That the obligation to indemnify for damages
which a third person causes to another by his
fault or negligence is based, as is evidenced by
the same Law 3, Title 15, Partida 7, on that the
person obligated, by his own fault or
negligence, takes part in the act or omission of
the third party who caused the damage. It
follows therefrom that the state, by virtue of
such provisions of law, is not responsible for
the damage suffered by private individuals in
consequence of acts performed by its
employees in the discharge of the functions
pertaining to their office, because neither fault
nor even negligence can be presumed on the
part of the state in the organization of
branches of the public service and the
appointment of its agents; on the contrary, we
must presuppose all foresight humanly
possible on its part in order that each branch
of service serves the general weal and that of
private persons interested in its operation.
Between these latter and the state, therefore,
no relations of a private nature governed by
the civil law can arise except in a case where
the state acts as a judicial person capable of

acquiring rights and contracting obligations."


(Supreme Court of Spain, January 7, 1898; 83
Jur. Civ., 24.).
xxx

xxx

xxx

"That the responsibility of the state is limited


by article 1903 to the case wherein it
acts through a special agent (and a special
agent, in the sense in which these words are
employed, is one who receives a definite and
fixed order or commission, foreign to the
exercise of the duties of his office if he is a
special official) so that in representation of the
state and being bound to act as an agent
thereof, he executes the trust confided to him.
This concept does not apply to any executive
agent who is an employee of the active
administration
and
who
on
his
own
responsibility performs the functions which are
inherent in and naturally pertain to his office
and which are regulated by law and the
regulations." (Supreme Court of Spain, May
18, 1904; 98 Jur. Civ., 389, 390.).
"That according to paragraph 5 of article 1903
of the Civil Code and the principle laid down in
a decision, among others, of the 18th of May,
1904, in a damage case, the responsibility of
the state is limited to that which it contracts
through a special agent, duly empowered by
a definite order or commission to perform
some act or charged with some definite
purpose which gives rise to the claim, and not
where the claim is based on acts or omissions
imputable to a public official charged with
some administrative or technical office who can
be
held
to
the
proper responsibility.
Consequently, the trial court in not so deciding
and in sentencing the said entity to the
payment of damages, caused by an official of
the second class referred to, has by erroneous
interpretation infringed the provisions of article
1902 and 1903 of the Civil Code.' (Supreme
Court of Spain, July 30, 1911; 122 Jur. Civ.,
146.)"
There being no showing that whatever negligence may
be imputed to the Emergency Control Administration or
its officers, was done by an special agent, because the
officers of the Emergency Control Administration did
not act as special agents of the government within the
above defined meaning of that word in article 1903 of
the Civil Code in storing gasoline in warehouse of the
ECA, the government is not responsible for the
damages caused through such negligence.
The case of Marine Trading vs. Government, 39 Phil.,
29, cited by the appellant, is inapplicable, because the
plaintiff in that case recovered under the special
provisions of articles 862, 827, 828 and 830 of the
Code of Commerce and the Philippine Marine
Regulations of the Collector of Customs, regarding

collision of vessels, and not on the ground of tort in


general provided for in article 1903 of the Civil Code.
Act No. 327, in authorizing the filing of claims against
the Government with the Insular Auditor, and appeal
by the private persons or entities from the latter's
decision to the Supreme Court, does not make any and
all claims against the Government allowable, and the
latter responsible for all claims which may be filed with
the Insular Auditor under the provisions of said Act.
In view of the foregoing, the decision appealed from is
affirmed.
Paras, Actg. C.J., Pablo Bengzon, Briones, Padilla, and
Tuason, JJ., concur.

Defendants, per the trial court's decision, are: "(T)he


defendant Antonio C. Brillantes, at the time when the
incident which gave rise to his action occurred was a
member of the Board of Directors of the institute; 1 the
defendant Teodosio Valenton, the president thereof;
the defendant Santiago M. Quibulue, instructor of the
class to which the deceased belonged; and the
defendant Virgilio L. Daffon, a fellow student of the
deceased. At the beginning the Manila Technical
Institute was a single proprietorship, but lately on
August 2, 1962, it was duly incorporated."

G.R. No. L-29025 October 4, 1971


Spouses MOISES P. PALISOC and BRIGIDA P.
PALISOC, plaintiffs-appellants,
vs.
ANTONIO C. BRILLANTES and TEODOSIO V.
VALENTON, owner and President, respectively, of
a school of arts and trades, known under the
name and style of "Manila Technical Institute"
(M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M.
QUIBULUE, defendants-appellees.
Leovillo C. Agustin for plaintiffs-appellants. .
Honorato S. Reyes for appellee Brillantes, et al. .
Villareal, Almacen Navarra & Amores for appellee
Daffon. .

TEEHANKEE, J.:
An appeal in forma pauperis on pure questions of law
from a decision of the Court of First Instance of Manila.
.
Plaintiffs-appellants as parents of their sixteen-year old
son, Dominador Palisoc, and a student in automotive
mechanics at the Manila Technical Institute, Quezon
Boulevard, Manila, had filed on May 19, 1966, the
action below for damages arising from the death on
March 10, 1966 of their son at the hands of a fellow
student, defendant Virgilio L. Daffon, at the laboratory
room of the said Institute. .

The facts that led to the tragic death of plaintiffs' son


were thus narrated by the trial court: "(T)he deceased
Dominador Palisoc and the defendant Virgilio L. Daffon
were classmates, and on the afternoon of March 10,
1966, between two and three o'clock, they, together
with another classmate Desiderio Cruz were in the
laboratory room located on the ground floor. At that
time the classes were in recess. Desiderio Cruz and
Virgilio L. Daffon were working on a machine while
Dominador Palisoc was merely looking on at them.
Daffon made a remark to the effect that Palisoc was
acting like a foreman. Because of this remark Palisoc
slapped slightly Daffon on the face. Daffon, in
retaliation, gave Palisoc a strong flat blow on the face,
which was followed by other fist blows on the stomach.
Palisoc retreated apparently to avoid the fist blows, but
Daffon followed him and both exchanged blows until
Palisoc stumbled on an engine block which caused him
to fall face downward. Palisoc became pale and fainted.
First aid was administered to him but he was not
revived, so he was immediately taken to a hospital. He
never regained consciousness; finally he died. The
foregoing is the substance of the testimony of
Desiderio Cruz, the lone witness to the incident."
The trial court expressly gave credence to this version
of the incident, as testified to by the lone eyewitness,
Desiderio Cruz, a classmate of the protagonists, as
that of a disinterested witness who "has no motive or
reason to testify one way or another in favor of any
party" and rejected the self-exculpatory version of
defendant Daffon denying that he had inflicted any fist
blows on the deceased. .
With the postmortem findings of Dr. Angelo Singian of
the Manila Police Department who performed the
autopsy re "Cause of death: shock due to traumatic
fracture of theribs (6th and 7th, left, contusion of the
pancreas and stomach with intra-gastric hemorrhage
and slight subarachnoid hemorrhage on the brain," and
his testimony that these internal injuries of the
deceased were caused "probably by strong fist blows,"
the trial court found defendant Daffon liable for
the quasi delict under Article 2176 of the Civil
Code. 3 It held that "(T)he act, therefore, of the
accused Daffon in giving the deceased strong fistblows
in the stomach which ruptured his internal organs and
caused his death falls within the purview of this article
of the Code." 4

The trial court, however, absolved from liability the


three other defendants-officials of the Manila Technical
Institute, in this wise:
... Their liabilities are based on the
provisions of Article 2180 of the New
Civil Code which reads:
Art. 2180. ... .
Lastly, teachers or heads of establishments of arts
and trades shall be liable for damages caused by
their pupils and students and apprentices, so long
as they remain in their custody.
In the opinion of the Court, this article
of the Code is not applicable to the
case at bar, since this contemplates
the situation where the control or
influence of the teachers and heads of
school establishments over the conduct
and actions by the pupil supersedes
those of the parents.
CIVIL LAW: DAMAGES ART 2180. NEW CIVIL
CODE CONSTRUED: The clause "so long as
they remain in their custody" contained in
Article 2180 of the new civil code contemplated
a situation where the pupil lives and boards with
the teacher, such that the control or influence
on the pupil supersedes those of the parents. In
those circumstances the control or influence
over the conduct and actions of the pupil as well
as the responsibilities for their sort would pass
from the father and mother to the teachers.
(Ciriaco L. Mercado, Petitioner vs. the Court of
Appeals, Manuel Quisumbing, Jr., et al.,
respondents, G.R. No. L-14862, May 30,
1960). 5
There is no evidence that the accused
Daffon lived and boarded with his
teacher or the other defendant officials
of the school. These defendants cannot
therefore be made responsible for the
tort of the defendant Daffon.
Judgment was therefore rendered by the trial court as
follows:
1. Sentencing the defendant Virgilio L. Daffon to pay
the plaintiffs as heirs of the deceased Dominador
Palisoc (a) P6,000.00 for the death of Dominador
Palisoc; (b) P3,375.00 for actual and compensatory
expenses; (c) P5,000.00 for moral damages; (d)
P10,000.00 for loss of earning power, considering that
the deceased was only between sixteen and seventeen
years, and in good health when he died, and (e)
P2,000.00 for attorney's fee, plus the costs of this
action. .
2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of


merit.
Plaintiffs' appeal raises the principal legal question that
under the factual findings of the trial court, which are
now beyond review, the trial court erred in absolving
the defendants-school officials instead of holding them
jointly and severally liable as tortfeasors, with
defendant Daffon, for the damages awarded them as a
result of their son's death. The Court finds the appeal,
in the main, to be meritorious. .
1. The lower court absolved defendants-school officials
on the ground that the provisions of Article 2180, Civil
Code, which expressly hold "teachers or heads of
establishments of arts and trades ... liable for damages
caused by their pupils and students and apprentices,
so long as they remain in their custody," are not
applicable to to the case at bar, since "there is no
evidence that the accused Daffon [who inflicted the
fatal fistblows] 6 lived and boarded with his teacher or
the other defendants-officials of the school. These
defendants cannot therefore be made responsible for
the tort of the defendant Daffon."
The lower court based its legal conclusion expressly on
the Court's dictum in Mercado vs. Court of
Appeals, 7 that "(I)t would seem that the clause "so
long as they remain in their custody," contemplates a
situation where the pupil lives and boards with the
teacher, such that the control, direction and influence
on the pupil supersedes those of the parents. In these
circumstances the control or influence over the
conduct and actions of the pupil would pass from the
father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation
does not appear in the case at bar; the pupils appear
to go to school during school hours and go back to
their homes with their parents after school is over."
This dictum had been made in rejecting therein
petitioner father's contention that his minor son's
school, Lourdes Catholic School at Kanlaon, Quezon
City [which was not a party to the case] should be held
responsible, rather than him as father, for the moral
damages of P2,000.00 adjudged against him for the
physical injury inflicted by his son on a classmate. [A
cut on the right cheek with a piece of razor which costs
only P50.00 by way of medical expenses to treat and
cure, since the wound left no scar.] The moral
damages award was after all set aside by the Court on
the ground that none of the specific cases provided in
Article 2219, Civil Code, for awarding moral damages
had been established, petitioner's son being only nine
years old and not having been shown to have "acted
with discernment" in inflicting the injuries on his
classmate. .
The dictum in Mercado was based in turn on another
dictum
in
the
earlier
case
of Exconde
vs.
Capuno, 8 where the only issue involved as expressly
stated in the decision, was whether the therein
defendant-father could be civilly liable for damages
resulting from a death caused in a motor vehicle
accident driven unauthorizedly and negligently by his

minor son, (which issue was resolved adversely


against the father). Nevertheless, the dictum in such
earlier case that "It is true that under the law
abovequoted, teachers or directors of arts and trades
are liable for any damage caused by their pupils or
apprentices while they are under their custody, but
this provision only applies to an institution of arts and
trades and not to any academic educational institution"
was expressly cited and quoted in Mercado. .
2. The case at bar was instituted directly against the
school officials and squarely raises the issue of liability
of teachers and heads of schools under Article 2180,
Civil Code, for damages caused by their pupils and
students against fellow students on the school
premises. Here, the parents of the student at fault,
defendant Daffon, are not involved, since Daffon was
already of age at the time of the tragic incident. There
is no question, either, that the school involved is a
non-academic school, 9 the Manila Technical Institute
being admittedly a technical vocational and industrial
school. .
The Court holds that under the cited codal article,
defendants head and teacher of the Manila Technical
Institute
(defendants
Valenton
and
Quibulue,
respectively) are liable jointly and severally for
damages to plaintiffs-appellants for the death of the
latter's minor son at the hands of defendant Daffon at
the school's laboratory room. No liability attaches to
defendant Brillantes as a mere member of the school's
board of directors. The school itself cannot be held
similarly liable, since it has not been properly
impleaded as party defendant. While plaintiffs sought
to so implead it, by impleading improperly defendant
Brillantes, its former single proprietor, the lower court
found that it had been incorporated since August 2,
1962, and therefore the school itself, as thus
incorporated, should have been brought in as party
defendant. Plaintiffs failed to do so, notwithstanding
that Brillantes and his co-defendants in their reply to
plaintiffs' request for admission had expressly
manifested and made of record that "defendant
Antonio C. Brillantes is not the registered owner/head
of the "Manila Technical Institute" which is now a
corporation and is not owned by any individual
person." 10
3. The rationale of such liability of school heads and
teachers for the tortious acts of their pupils and
students, so long as they remain in their custody, is
that they stand, to a certain extent, as to their pupils
and students, in loco parentis and are called upon to
"exercise reasonable supervision over the conduct of
the child." 11 This is expressly provided for in Articles
349, 350 and 352 of the Civil Code. 12 In the law of
torts, the governing principle is that the protective
custody of the school heads and teachers is
mandatorily substituted for that of the parents, and
hence, it becomes their obligation as well as that of
the school itself to provide proper supervision of the
students' activities during the whole time that they are
at attendance in the school, including recess time, as
well as to take the necessary precautions to protect

the students in their custody from dangers and


hazards that would reasonably be anticipated,
including injuries that some student themselves may
inflict willfully or through negligence on their fellow
students. .
4. As tersely summarized by Mr. Justice J.B.L. Reyes in
his dissenting opinion in Exconde, "the basis of the
presumption of negligence of Art. 1903 [now 2180] is
some culpa in vigilando that the parents, teachers, etc.
are supposed to have incurred in the exercise of their
authority" 13 and "where the parent places the child
under the effective authority of the teacher, the latter,
and not the parent, should be the one answerable for
the torts committed while under his custody, for the
very reason that the parent is not supposed to
interfere with the discipline of the school nor with the
authority and supervision of the teacher while the child
is under instruction." The school itself, likewise, has to
respond for the fault or negligence of its school head
and teachers under the same cited article. 14
5. The lower court therefore erred in law in absolving
defendants-school officials on the ground that they
could be held liable under Article 2180, Civil Code, only
if the student who inflicted the fatal fistblows on his
classmate and victim "lived and boarded with his
teacher or the other defendants officials of the school."
As stated above, the phrase used in the cited article
"so long as (the students) remain in their custody"
means the protective and supervisory custody that the
school and its heads and teachers exercise over the
pupils and students for as long as they are at
attendance in the school, including recess time. There
is nothing in the law that requires that for such liability
to attach the pupil or student who commits the tortious
act must live and board in the school, as erroneously
held by the lower court, and the dicta in Mercado (as
well as in Exconde) on which it relied, must now be
deemed to have been set aside by the present
decision. .
6. Defendants Valenton and Quibulue as president and
teacher-in-charge of the school must therefore be held
jointly and severally liable for the quasi-delict of their
co-defendant Daffon in the latter's having caused the
death of his classmate, the deceased Dominador
Palisoc. The unfortunate death resulting from the fight
between the protagonists-students could have been
avoided, had said defendants but complied with their
duty of providing adequate supervision over the
activities of the students in the school premises to
protect their students from harm, whether at the
hands of fellow students or other parties. At any rate,
the law holds them liable unless they relieve
themselves of such liability, in compliance with the last
paragraph of Article 2180, Civil Code, by "(proving)
that they observed all the diligence of a good father of
a family to prevent damage." In the light of the factual
findings of the lower court's decision, said defendants
failed to prove such exemption from liability. .
7. Plaintiffs-appellees' contention that the award of
P6,000.00 as indemnity for the death of their son

should be increased to P12,000.00 as set by the Court


in People vs. Pantoja, 15 and observed in all death
indemnity cases thereafter is well taken. The Court,
in Pantoja, after noting the decline in the purchasing
power of the Philippine peso, had expressed its
"considered opinion that the amount of award of
compensatory damages for death caused by a crime
orquasi-delict should now be P12,000.00." The Court
thereby
adjusted
the
minimum
amount
of
"compensatory damages for death caused by a crime
or quasi-delict" as per Article 2206, Civil Code, from
the old stated minimum of P3,000.00 to P12,000.00,
which amount is to be awarded "even though there
may have been mitigating circumstances" pursuant to
the express provisions of said codal article. .
8. Plaintiffs-appellees' other claims on appeal that the
lower court should have awarded exemplary damages
and imposed legal interest on the total damages
awarded, besides increasing the award of attorney's
fees all concern matters that are left by law to the
discretion of the trial court and the Court has not been
shown any error or abuse in the exercise of such
discretion on the part of the trial court. 16 Decisive
here is the touchstone provision of Article 2231, Civil
Code, that "In quasi-delicts, exemplary damages may
be granted if the defendant acted with gross
negligence." No gross negligence on the part of
defendants was found by the trial court to warrant the
imposition of exemplary damages, as well as of
interest and increased attorney's fees, and the Court
has not been shown in this appeal any compelling
reason to disturb such finding. .
ACCORDINGLY, the judgment appealed
modified so as to provide as follows: .

from

is

1.
Sentencing
the defendants Virgilio
L.
Daffon, TeodosioV. Valenton and Santiago M. Quibulue
jointly and severally to pay plaintiffs as heirs of the
deceased Dominador Palisoc (a) P12,000.00 for the
death of Dominador Palisoc; (b) P3,375.00 for actual
and compensatory expenses; (c) P5,000.00 for moral,
damages; (d) P10,000.00 for loss of earning power
and (e) P2,000.00 for attorney's fee, plus the costs of
this action in both instances; 2. absolving defendant
Antonio C. Brillantes from the complaint; and 3.
dismissing defendants' counterclaims. .

his expectations and his life as well. The victim was


only seventeen years old. 1
Daffon was convicted of homicide thru reckless
imprudence . 2 Additionally, the herein petitioners, as
the victim's parents, filed a civil action for damages
under Article 2180 of the Civil Code against the Colegio
de San Jose-Recoletos, its rector the high school
principal, the dean of boys, and the physics teacher,
together with Daffon and two other students, through
their respective parents. The complaint against the
students was later dropped. After trial, the Court of
First Instance of Cebu held the remaining defendants
liable to the plaintiffs in the sum of P294,984.00,
representing death compensation, loss of earning
capacity, costs of litigation, funeral expenses, moral
damages, exemplary damages, and attorney's fees
. 3 On appeal to the respondent court, however, the
decision was reversed and all the defendants were
completely absolved . 4

G.R. No. L-47745 April 15, 1988


JOSE S. AMADORA, LORETA A. AMADORA, JOSE A.
AMADORA JR., NORMA A. YLAYA PANTALEON A.
AMADORA, JOSE A. AMADORA III, LUCY A.
AMADORA, ROSALINDA A. AMADORA, PERFECTO
A. AMADORA, SERREC A. AMADORA, VICENTE A.
AMADORA
and
MARIA
TISCALINA
A.
AMADORA,petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE
SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P.
DLMASO JR., CELESTINO DICON, ANIANO
ABELLANA, PABLITO DAFFON thru his parents
and natural guardians, MR. and MRS. NICANOR
GUMBAN, and ROLANDO VALENCIA, thru his
guardian, A. FRANCISCO ALONSO, respondents.
Jose S. Amadora & Associates for petitioners.
Padilla Law Office for respondents.

CRUZ, J.:
Like any prospective graduate, Alfredo Amadora was
looking forward to the commencement exercises where
he would ascend the stage and in the presence of his
relatives and friends receive his high school diploma.
These ceremonies were scheduled on April 16, 1972.
As it turned out, though, fate would intervene and
deny him that awaited experience. On April 13, 1972,
while they were in the auditorium of their school, the
Colegio de San Jose-Recoletos, a classmate, Pablito
Damon, fired a gun that mortally hit Alfredo, ending all

In its decision, which is now the subject of this petition


for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not
applicable as the Colegio de San Jose-Recoletos was
not a school of arts and trades but an academic
institution of learning. It also held that the students
were not in the custody of the school at the time of the
incident as the semester had already ended, that there
was no clear identification of the fatal gun and that in
any event the defendant, had exercised the necessary
diligence in preventing the injury. 5
The basic undisputed facts are that Alfredo Amadora
went to the San Jose-Recoletos on April 13, 1972, and
while in its auditorium was shot to death by Pablito
Daffon, a classmate. On the implications and
consequences of these facts, the parties sharply
disagree.
The petitioners contend that their son was in the
school to show his physics experiment as a
prerequisite to his graduation; hence, he was then
under the custody of the private respondents. The
private respondents submit that Alfredo Amadora had
gone to the school only for the purpose of submitting
his physics report and that he was no longer in their
custody because the semester had already ended.
There is also the question of the identity of the gun
used which the petitioners consider important because
of an earlier incident which they claim underscores the
negligence of the school and at least one of the private
respondents. It is not denied by the respondents that
on April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but
later returned it to him without making a report to the
principal or taking any further action . 6 As Gumban
was one of the companions of Daffon when the latter
fired the gun that killed Alfredo, the petitioners
contend that this was the same pistol that had been
confiscated from Gumban and that their son would not
have been killed if it had not been returned by
Damaso. The respondents say, however, that there is

no proof that the gun was the same firearm that killed
Alfredo.
Resolution of all these disagreements will depend on
the interpretation of Article 2180 which, as it happens,
is invoked by both parties in support of their conflicting
positions. The pertinent part of this article reads as
follows:
Lastly,
teachers
or
heads
of
establishments of arts and trades shall
be liable for damages caused by their
pupils and students or apprentices so
long as they remain in their custody.
Three cases have so far been decided by the Court in
connection with the above-quoted provision, to wit:
Exconde
v.
Capuno 7 Mercado
v.
Court
of
8
Appeals, and Palisoc v. Brillantes. 9 These will be
briefly reviewed in this opinion for a better resolution
of the case at bar.
In the Exconde Case, Dante Capuno, a student of the
Balintawak Elementary School and a Boy Scout,
attended a Rizal Day parade on instructions of the city
school supervisor. After the parade, the boy boarded a
jeep, took over its wheel and drove it so recklessly that
it turned turtle, resulting in the death of two of its
passengers. Dante was found guilty of double homicide
with reckless imprudence. In the separate civil action
flied against them, his father was held solidarily liable
with him in damages under Article 1903 (now Article
2180) of the Civil Code for the tort committed by the
15-year old boy.
This decision, which was penned by Justice Bautista
Angelo on June 29,1957, exculpated the school in
an obiter dictum (as it was not a party to the case) on
the ground that it was riot a school of arts and trades.
Justice J.B.L. Reyes, with whom Justices Sabino Padilla
and Alex Reyes concurred, dissented, arguing that it
was the school authorities who should be held liable
Liability under this rule, he said, was imposed on (1)
teachers in general; and (2) heads of schools of arts
and trades in particular. The modifying clause "of
establishments of arts and trades" should apply only to
"heads" and not "teachers."
Exconde was reiterated in the Mercado Case, and with
an elaboration. A student cut a classmate with a razor
blade during recess time at the Lourdes Catholic
School in Quezon City, and the parents of the victim
sued the culprits parents for damages. Through Justice
Labrador, the Court declared in another obiter (as the
school itself had also not been sued that the school
was not liable because it was not an establishment of
arts and trades. Moreover, the custody requirement
had not been proved as this "contemplates a situation
where the student lives and boards with the teacher,
such that the control, direction and influences on the
pupil supersede those of the parents." Justice J.B.L.
Reyes did not take part but the other members of the
court concurred in this decision promulgated on May
30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a


16-year old student was killed by a classmate with fist
blows in the laboratory of the Manila Technical
Institute. Although the wrongdoer who was already
of age was not boarding in the school, the head
thereof and the teacher in charge were held solidarily
liable with him. The Court declared through Justice
Teehankee:
The phrase used in the cited article
"so long as (the students) remain in
their custody" means the protective
and supervisory custody that the
school and its heads and teachers
exercise over the pupils and students
for as long as they are at attendance in
the school, including recess time.
There is nothing in the law that
requires that for such liability to
attach, the pupil or student who
commits the tortious act must live and
board in the school, as erroneously
held by the lower court, and
the dicta in Mercado (as well as in
Exconde) on which it relied, must now
be deemed to have been set aside by
the present decision.
This decision was concurred in by five other
members, 10 including Justice J.B.L. Reyes, who
stressed, in answer to the dissenting opinion, that
even students already of age were covered by the
provision since they were equally in the custody of the
school and subject to its discipline. Dissenting with
three others, 11 Justice Makalintal was for retaining the
custody interpretation in Mercado and submitted that
the rule should apply only to torts committed by
students not yet of age as the school would be acting
only in loco parentis.
In a footnote, Justice Teehankee said he agreed with
Justice Reyes' dissent in the Exconde Case but added
that "since the school involved at bar is a nonacademic school, the question as to the applicability of
the cited codal provision to academic institutions will
have to await another case wherein it may properly be
raised."
This is the case.
Unlike in Exconde and Mercado, the Colegio de San
Jose-Recoletos has been directly impleaded and is
sought to be held liable under Article 2180; and unlike
in Palisoc, it is not a school of arts and trades but an
academic institution of learning. The parties herein
have also directly raised the question of whether or not
Article 2180 covers even establishments which are
technically not schools of arts and trades, and, if so,
when the offending student is supposed to be "in its
custody."
After an exhaustive examination of the problem, the
Court has come to the conclusion that the provision in
question should apply to all schools, academic as well

as non-academic. Where the school is academic rather


than technical or vocational in nature, responsibility for
the tort committed by the student will attach to the
teacher in charge of such student, following the first
part of the provision. This is the general rule. In the
case of establishments of arts and trades, it is the
head thereof, and only he, who shall be held liable as
an exception to the general rule. In other words,
teachers in general shall be liable for the acts of their
students except where the school is technical in
nature, in which case it is the head thereof who shall
be answerable. Following the canon ofreddendo singula
singulis "teachers" should apply to the words "pupils
and students" and "heads of establishments of arts and
trades" to the word "apprentices."
The Court thus conforms to the dissenting opinion
expressed by Justice J.B.L. Reyes in Exconde where he
said in part:
I can see no sound reason for limiting
Art. 1903 of the Old Civil Code to
teachers of arts and trades and not to
academic ones. What substantial
difference is there between them
insofar as
concerns
the proper
supervision and vice over their pupils?
It cannot be seriously contended that
an academic teacher is exempt from
the duty of watching that his pupils do
not commit a tort to the detriment of
third Persons, so long as they are in a
position to exercise authority and
Supervision over the pupil. In my
opinion, in the phrase "teachers or
heads of establishments of arts and
trades" used in Art. 1903 of the old
Civil Code, the words "arts and trades"
does not qualify "teachers" but only
"heads of establishments." The phrase
is only an updated version of the
equivalent
terms
"preceptores
y
artesanos" used in the Italian and
French Civil Codes.
If, as conceded by all commentators,
the basis of the presumption of
negligence of Art. 1903 in someculpa
in vigilando that the parents, teachers,
etc. are supposed to have incurred in
the exercise of their authority, it would
seem clear that where the parent
places the child under the effective
authority of the teacher, the latter, and
not the parent, should be the one
answerable for the torts committed
while under his custody, for the very
reason/that the parent is not supposed
to interfere with the discipline of the
school nor with the authority and
supervision of the teacher while the
child is under instruction. And if there
is no authority, there can be no
responsibility.

There is really no substantial distinction between the


academic and the non-academic schools insofar as
torts committed by their students are concerned. The
same vigilance is expected from the teacher over the
students under his control and supervision, whatever
the nature of the school where he is teaching. The
suggestion in the Exconde and Mercado Cases is that
the provision would make the teacher or even the head
of the school of arts and trades liable for an injury
caused by any student in its custody but if that same
tort were committed in an academic school, no liability
would attach to the teacher or the school head. All
other circumstances being the same, the teacher or
the head of the academic school would be absolved
whereas the teacher and the head of the non-academic
school would be held liable, and simply because the
latter is a school of arts and trades.
The Court cannot see why different degrees of
vigilance should be exercised by the school authorities
on the basis only of the nature of their respective
schools. There does not seem to be any plausible
reason for relaxing that vigilance simply because the
school is academic in nature and for increasing such
vigilance where the school is non-academic. Notably,
the injury subject of liability is caused by the student
and not by the school itself nor is it a result of the
operations of the school or its equipment. The injury
contemplated may be caused by any student
regardless of the school where he is registered. The
teacher certainly should not be able to excuse himself
by simply showing that he is teaching in an academic
school where, on the other hand, the head would be
held liable if the school were non-academic.
These questions, though, may be asked: If the teacher
of the academic school is to be held answerable for the
torts committed by his students, why is it the head of
the school only who is held liable where the injury is
caused in a school of arts and trades? And in the case
of the academic or non- technical school, why not
apply the rule also to the head thereof instead of
imposing the liability only on the teacher?
The reason for the disparity can be traced to the fact
that historically the head of the school of arts and
trades exercised a closer tutelage over his pupils than
the head of the academic school. The old schools of
arts and trades were engaged in the training of
artisans apprenticed to their master who personally
and directly instructed them on the technique and
secrets of their craft. The head of the school of arts
and trades was such a master and so was personally
involved in the task of teaching his students, who
usually even boarded with him and so came under his
constant control, supervision and influence. By
contrast, the head of the academic school was not as
involved with his students and exercised only
administrative duties over the teachers who were the
persons directly dealing with the students. The head of
the academic school had then (as now) only a
vicarious relationship with the students. Consequently,
while he could not be directly faulted for the acts of
the students, the head of the school of arts and trades,

because of his closer ties with them, could be so


blamed.
It is conceded that the distinction no longer obtains at
present in view of the expansion of the schools of arts
and trades, the consequent increase in their
enrollment, and the corresponding diminution of the
direct and personal contract of their heads with the
students. Article 2180, however, remains unchanged.
In its present state, the provision must be interpreted
by the Court according to its clear and original
mandate until the legislature, taking into account the
charges in the situation subject to be regulated, sees
fit to enact the necessary amendment.
The other matter to be resolved is the duration of the
responsibility of the teacher or the head of the school
of arts and trades over the students. Is such
responsibility co-extensive with the period when the
student is actually undergoing studies during the
school term, as contended by the respondents and
impliedly admitted by the petitioners themselves?
From a reading of the provision under examination, it
is clear that while the custody requirement, to
repeatPalisoc v. Brillantes, does not mean that the
student must be boarding with the school authorities,
it does signify that the student should be within the
control and under the influence of the school
authorities at the time of the occurrence of the injury.
This does not necessarily mean that such, custody be
co-terminous with the semester, beginning with the
start of classes and ending upon the close thereof, and
excluding the time before or after such period, such as
the period of registration, and in the case of
graduating
students,
the
period
before
the
commencement exercises. In the view of the Court,
the student is in the custody of the school authorities
as long as he is under the control and influence of the
school and within its premises, whether the semester
has not yet begun or has already ended.
It is too tenuous to argue that the student comes
under the discipline of the school only upon the start of
classes notwithstanding that before that day he has
already registered and thus placed himself under its
rules. Neither should such discipline be deemed ended
upon the last day of classes notwithstanding that there
may still be certain requisites to be satisfied for
completion of the course, such as submission of
reports, term papers, clearances and the like. During
such periods, the student is still subject to the
disciplinary authority of the school and cannot consider
himself released altogether from observance of its
rules.
As long as it can be shown that the student is in the
school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right,
and even in the enjoyment of a legitimate student
right, and even in the enjoyment of a legitimate
student privilege, the responsibility of the school
authorities over the student continues. Indeed, even if
the student should be doing nothing more than

relaxing in the campus in the company of his


classmates and friends and enjoying the ambience and
atmosphere of the school, he is still within the custody
and subject to the discipline of the school authorities
under the provisions of Article 2180.
During all these occasions, it is obviously the teacherin-charge who must answer for his students' torts, in
practically the same way that the parents are
responsible for the child when he is in their custody.
The teacher-in-charge is the one designated by the
dean, principal, or other administrative superior to
exercise supervision over the pupils in the specific
classes or sections to which they are assigned. It is not
necessary that at the time of the injury, the teacher be
physically present and in a position to prevent it.
Custody does not connote immediate and actual
physical control but refers more to the influence
exerted on the child and the discipline instilled in him
as a result of such influence. Thus, for the injuries
caused by the student, the teacher and not the parent
shag be held responsible if the tort was committed
within the premises of the school at any time when its
authority could be validly exercised over him.
In any event, it should be noted that the liability
imposed by this article is supposed to fall directly on
the teacher or the head of the school of arts and
trades and not on the school itself. If at all, the school,
whatever its nature, may be held to answer for the
acts of its teachers or even of the head thereof under
the general principle ofrespondeat superior, but then it
may exculpate itself from liability by proof that it had
exercised the diligence of abonus paterfamilias.
Such defense is, of course, also available to the
teacher or the head of the school of arts and trades
directly held to answer for the tort committed by the
student. As long as the defendant can show that he
had taken the necessary precautions to prevent the
injury complained of, he can exonerate himself from
the liability imposed by Article 2180, which also states
that:
The responsibility treated of in this
article shall cease when the Persons
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damages.
In this connection, it should be observed that the
teacher will be held liable not only when he is acting
in loco parentis for the law does not require that the
offending student be of minority age. Unlike the
parent, who wig be liable only if his child is still a
minor, the teacher is held answerable by the law for
the act of the student under him regardless of the
student's age. Thus, in the Palisoc Case, liability
attached to the teacher and the head of the technical
school although the wrongdoer was already of age. In
this sense, Article 2180 treats the parent more
favorably than the teacher.

The Court is not unmindful of the apprehensions


expressed by Justice Makalintal in his dissenting
opinion in Palisoc that the school may be unduly
exposed to liability under this article in view of the
increasing activism among the students that is likely to
cause violence and resulting injuries in the school
premises. That is a valid fear, to be sure.
Nevertheless, it should be repeated that, under the
present ruling, it is not the school that will be held
directly liable. Moreover, the defense of due diligence
is available to it in case it is sought to be held
answerable as principal for the acts or omission of its
head or the teacher in its employ.
The school can show that it exercised proper measures
in selecting the head or its teachers and the
appropriate supervision over them in the custody and
instruction of the pupils pursuant to its rules and
regulations for the maintenance of discipline among
them. In almost all cases now, in fact, these measures
are effected through the assistance of an adequate
security force to help the teacher physically enforce
those rules upon the students. Ms should bolster the
claim of the school that it has taken adequate steps to
prevent any injury that may be committed by its
students.
A fortiori, the teacher himself may invoke this defense
as it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as
long as they are in the school premises and
presumably under his influence. In this respect, the
Court is disposed not to expect from the teacher the
same measure of responsibility imposed on the parent
for their influence over the child is not equal in degree.
Obviously, the parent can expect more obedience from
the child because the latter's dependence on him is
greater than on the teacher. It need not be stressed
that such dependence includes the child's support and
sustenance whereas submission to the teacher's
influence, besides being coterminous with the period of
custody is usually enforced only because of the
students' desire to pass the course. The parent can
instill more las discipline on the child than the teacher
and so should be held to a greater accountability than
the teacher for the tort committed by the child.
And if it is also considered that under the article in
question, the teacher or the head of the school of arts
and trades is responsible for the damage caused by
the student or apprentice even if he is already of age
and therefore less tractable than the minor then
there should all the more be justification to require
from the school authorities less accountability as long
as they can prove reasonable diligence in preventing
the injury. After all, if the parent himself is no longer
liable for the student's acts because he has reached
majority age and so is no longer under the former's
control, there is then all the more reason for leniency
in assessing the teacher's responsibility for the acts of
the student.
Applying the foregoing considerations, the Court has
arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he


was still in the custody of the authorities of Colegio de
San Jose-Recoletos notwithstanding that the fourth
year classes had formally ended. It was immaterial if
he was in the school auditorium to finish his physics
experiment or merely to submit his physics report for
what is important is that he was there for a legitimate
purpose. As previously observed, even the mere
savoring of the company of his friends in the premises
of the school is a legitimate purpose that would have
also brought him in the custody of the school
authorities.
2. The rector, the high school principal and the dean of
boys cannot be held liable because none of them was
the teacher-in-charge as previously defined. Each of
them was exercising only a general authority over the
student body and not the direct control and influence
exerted by the teacher placed in charge of particular
classes or sections and thus immediately involved in its
discipline. The evidence of the parties does not disclose
who the teacher-in-charge of the offending student
was. The mere fact that Alfredo Amadora had gone to
school that day in connection with his physics report
did not necessarily make the physics teacher,
respondent Celestino Dicon, the teacher-in-charge of
Alfredo's killer.
3. At any rate, assuming that he was the teacher-incharge, there is no showing that Dicon was negligent
in enforcing discipline upon Daffon or that he had
waived observance of the rules and regulations of the
school or condoned their non-observance. His absence
when the tragedy happened cannot be considered
against him because he was not supposed or required
to report to school on that day. And while it is true that
the offending student was still in the custody of the
teacher-in-charge even if the latter was physically
absent when the tort was committed, it has not been
established that it was caused by his laxness in
enforcing discipline upon the student. On the contrary,
the private respondents have proved that they had
exercised due diligence, through the enforcement of
the school regulations, in maintaining that discipline.
4. In the absence of a teacher-in-charge, it is probably
the dean of boys who should be held liable especially
in view of the unrefuted evidence that he had earlier
confiscated an unlicensed gun from one of the students
and returned the same later to him without taking
disciplinary action or reporting the matter to higher
authorities. While this was clearly negligence on his
part, for which he deserves sanctions from the school,
it does not necessarily link him to the shooting of
Amador as it has not been shown that he confiscated
and returned pistol was the gun that killed the
petitioners' son.
5. Finally, as previously observed, the Colegio de San
Jose-Recoletos cannot be held directly liable under the
article because only the teacher or the head of the
school of arts and trades is made responsible for the
damage caused by the student or apprentice. Neither
can it be held to answer for the tort committed by any

of the other private respondents for none of them has


been found to have been charged with the custody of
the offending student or has been remiss in the
discharge of his duties in connection with such
custody.
In sum, the Court finds under the facts as disclosed by
the record and in the light of the principles herein
announced that none of the respondents is liable for
the injury inflicted by Pablito Damon on Alfredo
Amadora that resulted in the latter's death at the
auditorium of the Colegio de San Jose-Recoletos on
April 13, 1972. While we deeply sympathize with the
petitioners over the loss of their son under the tragic
circumstances here related, we nevertheless are
unable to extend them the material relief they seek, as
a balm to their grief, under the law they have invoked.
WHEREFORE, the petition is DENIED, without any
pronouncement as to costs. It is so ordered.

G.R. No. L-14342

May 30, 1960

CIRIACO
L.
MERCADO, petitioner,
vs.
THE COURT OF APPEALS, MANUEL QUISUMBING,
JR., ET AL., respondents.
Abad
Santos
and
Pablo
for
petitioner.
Sycip, Quisumbing, Salazar and Associates for
respondents.
LABRADOR, J.:
This is a petition to review a decision of the Court of
Appeals, which condemned petitioner to pay P2,000 as
moral damages and P50 for medical expenses, for a
physical injury caused by the son of petitioner,
Augusto Mercado, on a classmate, Manuel Quisumbing,
Jr., both pupils of the Lourdes Catholic School,
Kanlaon, Quezon City. The case had originated in the
Court of First Instance of Manila, Hon. Bienvenido A.
Tan, presiding, which dismissed the complaint filed by
Manuel Quisumbing, Jr. and his father against
petitioner, father of the above-mentioned Mercado.
The facts found by the Court of Appeals are as follows:
Plaintiff-appellant Manuel Quisumbing, Jr. is
the son of his co-plaintiff-appellants Ana
Pineda and Manuel L. Quisumbing, while
Augusto Mercado is the son of defendantappellee
Ciriaco
L.
Mercado,
Manuel
Quisumbing, Jr. and Augusto Mercado were
classmates in the Lourdes Catholic School on
Kanlaon, Quezon City. A "pitogo", which
figures prominently in this case, may be
described as an empty nutshell used by
children as a piggy bank. On February 22,
1956,
Augusto
Mercado
and
Manuel
Quisumbing, Jr. quarrelled over a "pitogo". As

a result, Augusto wounded Manuel, Jr. on the


right cheek with a piece of razor.
xxx

xxx

xxx

The facts of record clearly show that it was


Augusto Mercado who started the aggression.
Undeniably, the "pitogo" belonged to Augusto
Mercado but he lent it to Benedicto P. Lim and
in turn Benedicto lent it to Renato Legaspi.
Renato was not aware that the "pitogo"
belonged to Augusto, because right after
Benedicto gave it to him, Benedicto ran away
to get a basket ball with which they could play.
Manuel Quisumbing, Jr. was likewise unaware
that the "pitogo" belonged to Augusto. He
thought it was the "pitogo" of Benedicto P.
Lim, so that when Augusto attempted to get
the "pitogo" from Renato, Manuel, Jr. told him
not to do so because Renato was better at
putting the chain into the holes of the "pitogo".
However, Augusto resented Manuel, Jr.'s
remark and he aggresively pushed the latter.
The fight started then. After Augusto gave
successive blows to Manuel, Jr., and the latter
was clutching his stomach which bore the
brunt of Augusto's anger, Augusto seeing that
Manuel, Jr. was in a helpless position, cut him
on the right check with a piece of razor.
xxx

xxx

xxx

Although the doctor who treated Manuel


Quisumbing, Jr., Antonio B. Past, testified for
plaintiffs-appellants, he did not declare as to
the amount of fees he collected from plaintiffappellants for the treatment of Manuel, Jr. the
child was not even hospitalized for the wound.
We believe that the sum of P50.00 is a fair
approximation of the medical expenses
incurred by plaintiffs-appellants.
xxx

xxx

xxx

The damages specified in paragraphs C and D


of the aforequoted portion of plaintiffsappellant's complaint come under the class of
moral damages. The evidence of record shows
that the child suffered moral damages by
reason of the wound inflicted by Augusto
Mercado. Though such kind of damages cannot
be fully appreciated in terms of money, we
believe that the sum of P2,000.00 would fully
compensate the child.
As second cause of action, plaintiffs-appellants
pray for P5,000.00 covering the moral
damages they allegedly suffered due to their
son's being wounded; and the sum of
P3,000.00 as attorney's fees. The facts of
record do not warrant the granting of moral
damages
to
plaintiffs-appellants
Manuel
Quisumbing and Ana Pineda. "In law mental

anguish is restricted, as a rule, to such mental


pain or suffering as arises from an injury or
wrong to the person himself, as distinguished
from that form of mental suffering which is the
accompaniment of sympathy or sorrow for
another's suffering of which arises from a
contemplation of wrong committed on the
person of another. Pursuant to the rule stated,
a husband or wife cannot recover for mental
suffering caused by his or her sympathy for the
other's suffering. Nor can a parent recover for
mental distress and anxiety on account of
physical injury sustained by a child or for
anxiety for the safety of his child placed in peril
by the negligence of another." (15 Am. Jur.
597). Plaintiffs-appellants are not entitled to
attorney's fees, it not appearing that
defendant-appellee had wantonly disregarded
their claim for damages.
In the first, second and third assignments of error,
counsel for petitioner argues that since the incident of
the inflicting of the wound on respondent occurred in a
Catholic School (during recess time), through no fault
of the father, petitioner herein, the teacher or head of
the school should be held responsible instead of the
latter. This precise question was brought before this
Court in Exconde vs. Capuno and Capuno, 101 Phil.,
843, but we held, through Mr. Justice Bautista:
We find merit in this claim. It is true that under
the law above-quoted, "teachers or directors of
arts and trades are liable for any damage
caused by their pupils or apprentices while
they are under their custody", but this
provision only applies to an institution of arts
and trades and not to any academic
educational institution (Padilla, Civil Law, 1953
Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed.,
p. 557)
The last paragraph of Article 2180 of the Civil Code,
upon which petitioner rests his claim that the school
where his son was studying should be made liable, is
as follows:
ART. 2180. . . .
Lastly, teachers or heads of establishments of
arts and trades shall be liable for damages
caused by their pupils and students or
apprentices, so long as they remain in their
custody.
It would be seem that the clause "so long as they
remain in their custody," contemplates a situation
where the pupil lives and boards with the teacher, such
that the control, direction and influence on the pupil
supersedes those of the parents.
In these
circumstances the control or influence over the
conduct and actions of the pupil would pass from the
father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation
does not appear in the case at bar; the pupils appear

to go to school during school hours and go back to


their homes with their parents after school is over. The
situation contemplated in the last paragraph of Article
2180 does not apply, nor does paragraph 2 of said
article, which makes father or mother responsible for
the damages caused by their minor children. The claim
of petitioner that responsibility should pass to the
school must, therefore, be held to be without merit.
We next come to the claim of petitioner that the moral
damages fixed at P2,000 are excessive. We note that
the wound caused to respondent was inflicted in the
course of an ordinary or common fight between boys in
a grade school. The Court of Appeals fixed the medical
expenses incurred in treating and curing the wound at
P50. Said court stated that the wound did not even
require hospitalization. Neither was Mercado found
guilty of any offense nor the scar in Quisumbing's face
pronounced to have caused a deformity, unlike the
case of Araneta, et al. vs. Arreglado, et al., 104 Phil.,
529; 55 Off. Gaz. (9) 1561. Petitioner's counsel argues
that if death call for P3,000 to P6,000, certainly the
incised wound could cause mental pain and suffering to
the tune of P2,000.
In the decision of the Court of Appeals, said court
pronounces that the child Quisumbing suffered moral
damages "by reason of the wound inflicted by Augusto
Mercado." While moral damages included physical
suffering, which must have been caused to the
wounded boy Quisumbing (Art. 2217, Civil Code), the
decision of the court below does not declare that any
of the cases specified in Article 2219 of the Civil Code
in which moral damages may be recovered, has
attended or occasioned the physical injury. The only
possible circumstance in the case at bar in which moral
damages are recoverable would be if a criminal offense
or a quasi-delict has been committed.
It does not appear that a criminal action for physical
injuries was ever presented. The offender, Augusto
Mercado, was nine years old and it does not appear
that he had acted with discernment when he inflicted
the physical injuries on Manuel Quisumbing, Jr.
It is possible that the Court of Appeals may have
considered Augusto Mercado responsible for or guilty,
of a quasi-delict causing physical injuries, within the
meaning of paragraph 2 of Article 2219. Even if we
assume that said court considered Mercado guilty of a
quasi-delict when it imposed the moral damages, yet
the facts found by said court indicate that Augusto's
resentment, which motivated the assault, was
occasioned by the fact that Manuel, Jr. had tried to
intervene in or interfere with the attempt of Mercado
to get "his pitogo from Renato." This is, according to
the decision appealed from, the reason why Mercado
was incensed and pushed Quisumbing who, in turn,
also pushed Mercado. It is, therefore, apparent that
the proximate cause of the injury caused to
Quisumbing was Quisumbing's own fault or negligence
for having interfered with Mercado while trying to get
the pitogo from another boy. (Art. 2179, Civil Code.)

After considering all the facts as found by the Court of


Appeals, we find that none of the cases mentioned in
Article 2219 of the Civil Code, which authorizes the
grant of moral damages, was shown to have existed.
Consequently, the grant of moral damages is not
justified.
For the foregoing considerations, the decision appealed
from is hereby reversed and the petitioner is declared
exempt or free from the payment of moral damages.
The award of P50 for medical expenses, however, is
hereby affirmed. Without costs.

RESOLUTION
MELENCIO-HERRERA, J.:
This is a Petition for Review of the Decision of the
Intermediate Appellate Court in CA-G.R. No. 64228-R,
to which we gave due course only in so far as the
moral and exemplary damages awarded are
concerned. The decretal portion of the judgment
reads:jgc:chanrobles.com.ph
"WHEREFORE, premises considered, finding the Court
a quo in error in dismissing the complaint against
Sarkies Tours Phils., Inc., the decision insofar as it
affects Sarkies Tours Phils., Inc., is set aside and
another one entered sentencing Sarkies Tours Phils.,
Inc., jointly and solidarily, liable with Julian Mendoza.
Consequently, the appealed decision is hereby
modified to read as follows:chanrob1es virtual 1aw
library

G.R.

No.

L-63723.

September

2,

1983

SARKIES TOURS PHILIPPINES, INC., Petitioner,


v. INTERMEDIATE APPELLATE COURT, ARSENIO
S.
DIZON,
JR.
and
VIOLETA
R.
DIZON, Respondents.
Cruz, Durian, Agabin, Atienza & Alday Law Office
for Petitioner.
Romulo, Mabanta, Sayoc & Angeles Law Office
for Private Respondents.
SYLLABUS
1. CIVIL LAW; DAMAGES; AWARDS THEREOF;
ELIMINATION AND MODIFICATION IN THE CASE AT
BAR. The award of exemplary damages should be
eliminated. There is no showing that SARKIES acted
"in a wanton . . . or malevolent manner" (Art. 2232,
Civil Code). As to the award of moral damages, while
they are justly due, under the factual milieu, however,
the Supreme Court considers the sum of P100,000.00
excessive and in the exercise of its discretion, reduces
them
to
P30,000.00.
2. ID.; OBLIGATIONS AND CONTRACTS; EXTRACONTRACTUAL
OBLIGATIONS;
QUASI-DELICTS;
RIGHT OF ACTION FOR REIMBURSEMENT UNDER
ARTICLE 2181 OF CIVIL CODE. Considering that
actual negligence for the drowning of MERCEDITAS
was the responsibility of MENDOZA, it is but fair that
SARKIES should have a right of action against
MENDOZA for reimbursement. Although Article 2181 of
the Civil Code it not technically invocable, its principle
should be applied in favor of SARKIES. The provision of
the Civil Code on common carriers is based on AngloAmerican Law (Maranan v. Perez, 20 SCRA 412
[1967]).

PREMISES CONSIDERED, the plaintiffs


having
established their cause of action against both Julian
Mendoza and Sarkies Tours Phils., Inc., judgment is
hereby rendered condemning Julian Mendoza and
Sarkies Tours Phils., Inc., to pay plaintiffs, jointly and
severally:chanrob1es
virtual
1aw
library
(a) P12,000.00 in actual damages for the death of
Merceditas
Dizon;
(b) P1,650.00
belongings;

for

(c)

P3,000.00

(d)

P100,000.00

(e)
(f)
(g)
SO

loss
for

the

costs

as
as

of

cash

personal
expenses;

moral

damages;

exemplary
attorneys

suit."cralaw

ORDERED."cralaw

and

funeral

for

P50,000.00
P5,000.00

of

damages;
fees;

virtua1aw

virtua1aw

and
library
library

A few weeks before June 12, 1971, petitioner Sarkies


Tours Phils., Inc. (SARKIES, for short) advertised in
the newspapers its tour to Corregidor on Independence
Day, for a fee of "P10.00 per person including: a) boat
fare - Manila-Corregidor-Manila b) shrine fee and c)
tour of Corregidor Island by bus." A day before the
scheduled tour, private respondent spouses (the
DIZONS, for short), purchased six round-trip tickets
from SARKIES. They were issued an official receipt
under the SARKIES letterhead. Also issued by SARKIES
for each set of tickets were one (1) blue ticket and one
(1) white ticket, with the name "SARKIES" appearing
on both the blue and white tickets, while the word
"Edisco" was handwritten across the white ticket. With
the DIZONS the next day, June 12, 1971, were their

four children Cecilia, Bernardita, Merceditas and


Emerito. From the SARKIES main office at Filipinas
Hotel, Roxas Boulevard, they were transported on a
SARKIES bus, together with other excursionists, to
Muelle del Banco Nacional, alongside the Pasig River,
where they boarded the M/V Edisco. Upon departure
from Manila, Manila Bay was then rather choppy (Folio,
p. 77). The white tickets were collected on board by
Julian V. MENDOZA, while the blue tickets were
collected upon boarding the SARKIES bus at Corregidor
Island.chanrobles
virtual
lawlibrary
The M/V Edisco, owned and operated by MENDOZA, is
an oversized motorized banca with outriggers, a steel
hull, a canvas awning and rattan chairs on the deck. It
was not registered to ferry passengers, nor was it
licensed to operate as a watercraft. On that trip, it had
146 passengers on board and was overloaded and
lacked
adequate
lifesaving
equipment.
Upon reaching Corregidor, the excursionists went on a
guided tour conducted by petitioners representative.
On the return trip to Manila, the weather was
practically the same as when they left but with
intermittent rains (Folio, p. 77). Around 2:00 P.M.,
disaster struck after about thirty minutes of cruising.
The boat leaned towards starboard and the chairs slid
into the water in that direction. In a matter of seconds,
the boat capsized. Private respondents and their two
children, Bernardita and Emerito, managed to clamber
up the hull of the boat and were rescued by a passing
yacht. Another daughter, Cecilia, was picked up by one
of the other watercrafts that came to succor. Private
respondents lost cash and personal belongings.
Merceditas, their six-year old daughter was missing
and could not be located even after they reached
Manila around 7:00 P.M. of that day. After six days of
fruitless
and
heart-rending
inquiries,
private
respondents were summoned to Funeraria Quiogue
were they identified a lifeless body as that of their
daughter, Merceditas. There were other fatalities.
For damages based on the drowning of MERCEDITAS,
the DIZONS filed a complaint against SARKIES and
MENDOZA before the then Court of First Instance of
Manila. Answering, SARKIES alleged that it was not the
owner nor charterer of M/V Edisco; that it is only a
booking agent and not a carrier; and that it had acted
with due diligence and care in relying on MENDOZAs
representations that his vessel was duly authorized to
operate
and
was
sea-worthy.
MENDOZA denied liability claiming that he was not the
registered owner but merely a passenger of the
capsized vessel together with his son who also
perished in the tragedy; that the contract of carriage
was between SARKIES and private respondents, and
that the marine accident was due to force majeure.
MENDOZA was declared in default for failure to appear
during
the
pre-trial.
After trial on the merits, the Trial Court exonerated
SARKIES from liability on the ground that it was
"neither an agent nor the operator of M/V Edisco" ;

that it had merely booked private respondents with


M/V Edisco, one of the three private carriers, in
addition to a Philippine Navy boat, plying the route
from Manila to Corregidor, and attributed sole
responsibility to MENDOZA, whom it found to be the
owner-operator of M/V Edisco, for negligence
consisting of "unscrupulous conversion of a fishing
boat into a ferry boat without first securing a license to
operate
as
such."cralaw
virtua1aw
library
On appeal to the then Court of Appeals, the Appellate
Tribunal reversed and held both SARKIES and
MENDOZA jointly and severally liable for the damages
for the reason that the relationship between SARKIES
and the excursionists was "a single operation . . .
which in effect guaranteed them safe passage all
throughout" (Rollo, p. 98).chanrobles.com:cralaw:red
We concur with the view. The issue, we had resolved
to consider, as earlier mentioned, is in respect of the
award
of
moral
and
exemplary
damages.
The award of exemplary damages should be
eliminated. In Munsayac v. De Lara, 23 SCRA 1086,
1089 (1968), it was said:jgc:chanrobles.com.ph
"It is not enough to say that an example should be
made, or corrective measures be employed, for the
public good especially in accident cases where public
carriers are involved. The causative negligence in such
cases is personal to the employees actually in charge
of the vehicles, and it is they who should be made to
pay this kind of damages by way of example or
correction, unless by the demonstrative tolerance or
approval of the owners they themselves can be held at
fault and their fault is of the character described in
article 2232 of the Civil Code."cralaw virtua1aw library
In the case at bar, there is no showing that SARKIES
acted "in a wanton . . . or malevolent manner" (Art.
2232,
Civil
Code).
As to the award of moral damages, while we find them
justly due, under the factual milieu, however, we
consider the sum of P100,000.00 excessive and in the
exercise of our discretion, hereby reduce them to
P30,000.00.
In its Answer to the Complaint of the DIZONS,
SARKIES included a cross-claim against MENDOZA as
the owner/operator of the EDISCO. Considering that
actual negligence for the drowning of MERCEDITAS
was the responsibility of MENDOZA, it is but fair that
SARKIES should have a right of action against
MENDOZA for reimbursement. Although Article 2181 of
the Civil Code is not technically invocable, its principle
should be applied in favor of SARKIES. The provision of
the Civil Code on common carriers is based on AngloAmerican Law (Maranan v. Perez, 20 SCRA 412
[1967]). In regards to Grand Trunk R. Co. v. Latham,
63
Me.
177,
the
following
was
said:jgc:chanrobles.com.ph
"Where a railroad company had been compelled to pay
a judgment for damages for injuries sustained by a

passenger as a result of the maltreatment and


misconduct of the conductor . . . the Court (held) that
the servant was liable to his master for all loss and
damage sustained by it." (110 A.L.R. 836).
ACCORDINGLY, the judgment of the then Court of
Appeals (now Intermediate Appellate Court) in its CAG.R. No. 64228-R, in respect of petitioner, is modified
by (1) eliminating exemplary damages therefrom; (2)
reducing
the
adjudged
moral damages
from
P100,000.00 to P30,000.00; and (3) ordering Julian V.
Mendoza to pay and/or reimburse petitioner any and
all expenses and damages to be paid by petitioner to
the private respondents. The other parts of the
judgment are confirmed. The judgment of the Trial
Court in respect of Julian V. Mendoza, is maintained.
No

pronouncement

as

to

costs.

SO ORDERED.

G.R. No. 74431 November 6, 1989


PURITA
MIRANDA
VESTIL
and
AGUSTIN
VESTIL, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, DAVID UY
and TERESITA UY, respondents.
Pablo P. Garcia for petitioners.
Roberto R. Palmares for private respondents.

child died. The cause of death was certified as


broncho-pneumonia. 3
Seven months later, the Uys sued for damages,
alleging that the Vestils were liable to them as the
possessors of "Andoy," the dog that bit and eventually
killed their daughter. The Vestils rejected the charge,
insisting that the dog belonged to the deceased
Vicente Miranda, that it was a tame animal, and that in
any case no one had witnessed it bite Theness. After
trial, Judge Jose R. Ramolete of the Court of First
Instance of Cebu sustained the defendants and
dismissed the complaint. 4
The respondent court arrived at a different conclusion
when the case was appealed. 5 It found that the Vestils
were in possession of the house and the dog and so
should be responsible under Article 2183 of the Civil
Code for the injuries caused by the dog. It also held
that the child had died as a result of the dog bites and
not for causes independent thereof as submitted by
the appellees. Accordingly, the Vestils were ordered to
pay the Uys damages in the amount of P30,000.00 for
the death of Theness, P12,000.00 for medical and
hospitalization expenses, and P2,000.00 as attorney's
fees.
In the proceedings now before us, Purita Vestil insists
that she is not the owner of the house or of the dog
left by her father as his estate has not yet been
partitioned and there are other heirs to the property.
Pursuing the logic of the Uys, she claims, even her
sister living in Canada would be held responsible for
the acts of the dog simply because she is one of
Miranda's heirs. However, that is hardly the point.
What must be determined is the possession of the dog
that admittedly was staying in the house in question,
regardless of the ownership of the dog or of the house.
Article 2183 reads as follows:

CRUZ, J.:
Little Theness Tan Uy was dead at the age of three.
Her parents said she died because she was bitten by a
dog of the petitioners, but the latter denied this,
claiming they had nothing to do with the dog. The Uys
sued the Vestils, who were sustained by the trial court.
On appeal, the decision of the court a quo was
reversed in favor of the Uys. The Vestils are now
before us. They ask us to set aside the judgment of
the respondent court and to reinstate that of the trial
court.
On July 29, 1915, Theness was bitten by a dog while
she was playing with a child of the petitioners in the
house of the late Vicente Miranda, the father of Purita
Vestil, at F. Ramos Street in Cebu City. She was
rushed to the Cebu General Hospital, where she was
treated for "multiple lacerated wounds on the
forehead" 1 and administered an anti-rabies vaccine by
Dr. Antonio Tautjo. She was discharged after nine days
but was readmitted one week later due to "vomiting of
saliva." 2 The following day, on August 15, 1975, the

The possessor of an animal or whoever


may make use of the same is
responsible for the damage which it
may cause, although it may escape or
be lost. 'This responsibility shall cease
only in case the damages should come
from force majeure from the fault of
the person who has suffered damage.
Thus, in Afialda v. Hisole, 6 a person hired as caretaker
of a carabao gored him to death and his heirs
thereupon sued the owner of the animal for damages.
The complaint was dismissed on the ground that it was
the caretaker's duty to prevent the carabao from
causing injury to any one, including himself.
Purita Vestil's testimony that she was not in possession
of Miranda's house is hardly credible. She said that the
occupants of the house left by her father were related
to him ("one way or the other") and maintained
themselves out of a common fund or by some kind of
arrangement (on which, however, she did not

elaborate ). 7 She mentioned as many as ten of such


relatives who had stayed in the house at one time or
another although they did not appear to be close
kin. 8 She at least implied that they did not pay any
rent, presumably because of their relation with Vicente
Miranda notwithstanding that she herself did not seem
to know them very well.
There is contrary evidence that the occupants of the
house, were boarders (or more of boarders than
relatives) who paid the petitioners for providing them
with meals and accommodations. It also appears that
Purita Vestil had hired a maid, Dolores Jumao-as, who
did the cooking and cleaning in the said house for its
occupants. 9 Her mother, Pacita, who was a nursemaid
of Purita herself, categorically declared that the
petitioners were maintaining boarders in the house
where Theness was bitten by a dog. 10 Another
witness, Marcial Lao, testified that he was indeed a
boarder and that the Vestils were maintaining the
house for business purposes. 11 And although Purita
denied paying the water bills for the house, the private
respondents submitted documentary evidence of her
application for water connection with the Cebu Water
District, which strongly suggested that she was
administering the house in question. 12
While it is true that she is not really the owner of the
house, which was still part of Vicente Miranda's estate,
there is no doubt that she and her husband were its
possessors at the time of the incident in question. She
was the only heir residing in Cebu City and the most
logical person to take care of the property, which was
only six kilometers from her own house. 13 Moreover,
there is evidence showing that she and her family
regularly went to the house, once or twice weekly,
according to at least one witness, 14 and used it
virtually as a second house. Interestingly, her own
daughter was playing in the house with Theness when
the little girl was bitten by the dog. 15 The dog itself
remained in the house even after the death of Vicente
Miranda in 1973 and until 1975, when the incident in
question occurred. It is also noteworthy that the
petitioners offered to assist the Uys with their
hospitalization expenses although Purita said she knew
them only casually. 16
The petitioners also argue that even assuming that
they were the possessors of the dog that bit Theness
there was no clear showing that she died as a result
thereof.
On
the
contrary,
the
death
certificate 17 declared that she died of bronchopneumonia, which had nothing to do with the dog bites
for which she had been previously hospitalized. The
Court need not involve itself in an extended scientific
discussion of the causal connection between the dog
bites and the certified cause of death except to note
that, first, Theness developed hydrophobia, a symptom
of rabies, as a result of the dog bites, and second, that
asphyxia broncho-pneumonia, which ultimately caused
her death, was a complication of rabies. That Theness
became afraid of water after she was bitten by the dog
is established by the following testimony of Dr. Tautjo:

COURT: I think there was mention of


rabies in the report in the second
admission?
A: Now, the child was continuously
vomiting just before I referred to Dr.
Co earlier in the morning and then the
father, because the child was asking
for water, the father tried to give the
child water and this child went under
the bed, she did not like to drink the
water and there was fright in her
eyeballs. For this reason, because I
was in danger there was rabies, I
called Dr. Co.
Q: In other words, the child had
hydrophobia?
A: Yes, sir.

18

As for the link between rabies and bronchopneumonia, the doctor had the following to say under
oath:
A: Now, as 1 said before, bronchopneumonia can result from physical,
chemical and bacterial means. ... It
can be the result of infection, now, so
if you have any other disease which
can lower your resistance you can also
get pneumonia.
xxx xxx xxx
Q: Would you say that a person who
has rabies may die of complication
which is broncho-pneumonia?
A: Yes.
Q: For the record, I am manifesting
that this book shown the witness is
know as CURRENT DIANOSIS &
TREATMENT, 1968 by Henry Brainerd,
Sheldon Margen and Milton Chaton.
Now, I invite your attention, doctor, to
page 751 of this book under the title
"Rabies." There is on this page,
"Prognosis" as a result of rabies and it
says: Once the symptoms, have
appeared death inevitably occurs after
2-3 days as a result of cardiac or
respiratory failure
or generalized
paralysis. After a positive diagnosis of
rabies or after a bite by a suspected
animal if the animal cannot be
observed or if the bite is on the head,
give rabies vaccine (duck embryo). Do
you believe in this statement?
A: Yes.

Q: Would you say therefore that


persons who have rabies may die of
respiratory failure which leave in the
form of bronco-pneumonia?
A: Broncho-pneumonia
complication of rabies. 19

can

be

On the strength of the foregoing testimony, the Court


finds that the link between the dog bites and the
certified cause of death has beep satisfactorily
established. We also reiterate our ruling in Sison v.
Sun Life Assurance Company of Canada, 20 that the
death certificate is not conclusive proof of the cause of
death but only of the fact of death. Indeed, the
evidence of the child's hydrophobia is sufficient to
convince us that she died because she was bitten by
the dog even if the death certificate stated a different
cause of death. The petitioner's contention that they
could not be expected to exercise remote control of the
dog is not acceptable. In fact, Article 2183 of the Civil
Code holds the possessor liable even if the animal
should "escape or be lost" and so be removed from his
control. And it does not matter either that, as the
petitioners also contend, the dog was tame and was
merely provoked by the child into biting her. The law
does not speak only of vicious animals but covers even
tame ones as long as they cause injury. As for the
alleged provocation, the petitioners forget that
Theness was only three years old at the time she was
attacked and can hardly be faulted for whatever she
might have done to the animal.
It is worth observing that the above defenses of the
petitioners are an implied rejection of their original
posture that there was no proof that it was the dog in
their father's house that bit Theness.
According to Manresa the obligation imposed by Article
2183 of the Civil Code is not based on the negligence
or on the presumed lack of vigilance of the possessor
or user of the animal causing the damage. It is based
on natural equity and on the principle of social interest
that he who possesses animals for his utility, pleasure
or service must answer for the damage which such
animal may cause. 21
We sustain the findings of the Court of Appeals and
approve the monetary awards except only as to the
medical and hospitalization expenses, which are
reduced to P2,026.69, as prayed for in the complaint.
While there is no recompense that can bring back to
the private respondents the child they have lost, their
pain should at least be assuaged by the civil damages
to which they are entitled.
WHEREFORE, the challenged decision is AFFIRMED as
above modified. The petition is DENIED, with costs
against the petitioners. It is so ordered.

the plaintiffs for the damage sustained by their car in


the accident.
Both parties appealed to the Court of Appeals, which
certified the case to us in view of the total amount of
the plaintiffs' claim.
There are two principal questions posed for resolution:
(1) who was responsible for the accident? and (2) if it
was defendant Rafael Bernardo, was his employer,
defendant Yu Khe Thai, solidarily liable with him? On
the first question the trial court found Rafael Bernardo
negligent; and on the second, held his employer
solidarily liable with him.

G.R. No. L-20392

December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO,


and the Minors, EPHRAIM CAEDO, EILEEN CAEDO,
ROSE ELAINE CAEDO, suing through their father,
MARCIAL
T.
CAEDO,
as
guardian
ad
litem, plaintiffs-appellants,
vs.
YU KHE THAI and RAFAEL BERNARDO, defendantsappellants.
Norberto J. Quisumbing for plaintiffs-appellants.
De Joya, Lopez, Dimaguila, Hermoso and Divino for
defendants-appellants
MAKALINTAL, J.:
As a result of a vehicular accident in which plaintiff
Marcial Caedo and several members of his family were
injured they filed this suit for recovery of damages
from the defendants. The judgment, rendered by the
Court of First Instance of Rizal on February 26, 1960
(Q-2952), contains the following disposition:
IN VIEW OF THE FOREGOING, the court
renders a judgment, one in favor of the
plaintiffs and against the defendants, Yu Khe
Thai and Rafael Bernardo, jointly and severally,
to pay to plaintiffs Marcial Caedo, et al., the
sum of P1,929.70 for actual damages;
P48,000.00 for moral damages; P10,000.00 for
exemplary damages; and P5,000.00 for
attorney's fees, with costs against the
defendants.
The
counterclaim
of
the
defendants against the plaintiffs is hereby
ordered dismissed, for lack of merits.
On March 12, 1960 the judgment was amended so as
to include an additional award of P3,705.11 in favor of

The mishap occurred at about 5:30 in the morning of


March 24, 1958 on Highway 54 (now E. de los Santos
Avenue) in the vicinity of San Lorenzo Village. Marcial
was driving his Mercury car on his way from his home
in Quezon City to the airport, where his son Ephraim
was scheduled to take a plane for Mindoro. With them
in the car were Mrs. Caedo and three daughters.
Coming from the opposite direction was the Cadillac of
Yu Khe Thai, with his driver Rafael Bernardo at the
wheel, taking the owner from his Paraaque home to
Wack Wack for his regular round of golf. The two cars
were traveling at fairly moderate speeds, considering
the condition of the road and the absence of traffic
the Mercury at 40 to 50 kilometers per hour, and the
Cadillac at approximately 30 to 35 miles (48 to 56
kilometers). Their headlights were mutually noticeable
from a distance. Ahead of the Cadillac, going in the
same direction, was a caretella owned by a certain
Pedro Bautista. The carretela was towing another
horse by means of a short rope coiled around the rig's
vertical post on the right side and held at the other
end by Pedro's son, Julian Bautista.
Rafael Bernardo testified that he was almost upon the
rig when he saw it in front of him, only eight meters
away. This is the first clear indication of his negligence.
The carretela was provided with two lights, one on
each side, and they should have given him sufficient
warning to take the necessary precautions. And even if
he did not notice the lights, as he claimed later on at
the trial, the carretela should anyway have been visible
to him from afar if he had been careful, as it must
have been in the beam of his headlights for a
considerable while.
In the meantime the Mercury was coming on its own
lane from the opposite direction. Bernardo, instead of
slowing
down
or stopping
altogether behind
the carretela until that lane was clear, veered to the
left in order to pass. As he did so the curved end of his
car's right rear bumper caught the forward rim of the
rig's left wheel, wrenching it off and carrying it along
as the car skidded obliquely to the other lane, where it
collided with the oncoming vehicle. On his part Caedo
had seen the Cadillac on its own lane; he slackened his
speed,
judged
the
distances
in
relation to
the carretela and concluded that the Cadillac would
wait behind. Bernardo, however, decided to take a
gamble beat the Mercury to the point where it would

be in line with the carretela, or else squeeze in


between them in any case. It was a risky maneuver
either way, and the risk should have been quite
obvious. Or, since the car was moving at from 30 to 35
miles per hour (or 25 miles according to Yu Khe Thai)
it was already too late to apply the brakes when
Bernardo saw the carretela only eight meters in front
of him, and so he had to swerve to the left in spite of
the presence of the oncoming car on the opposite lane.
As it was, the clearance Bernardo gave for his car's
right side was insufficient. Its rear bumper, as already
stated, caught the wheel of the carretela and wrenched
it loose. Caedo, confronted with the unexpected
situation, tried to avoid the collision at the last
moment by going farther to the right, but was
unsuccessful. The photographs taken at the scene
show that the right wheels of his car were on the
unpaved shoulder of the road at the moment of
impact.
There is no doubt at all that the collision was directly
traceable to Rafael Bernardo's negligence and that he
must be held liable for the damages suffered by the
plaintiffs. The next question is whether or not Yu Khe
Thai, as owner of the Cadillac, is solidarily liable with
the driver. The applicable law is Article 2184 of the
Civil Code, which reads:
ART. 2184. In motor vehicle mishaps, the
owner is solidarily liable with his driver, if the
former, who was in the vehicle, could have, by
the use of due diligence, prevented the
misfortune. It is disputably presumed that a
driver was negligent, if he had been found
guilty of reckless driving or violating traffic
regulations at least twice within the next
preceding two months.
Under the foregoing provision, if the causative factor
was the driver's negligence, the owner of the vehicle
who was present is likewise held liable if he could have
prevented the mishap by the exercise of due diligence.
The rule is not new, although formulated as law for the
first time in the new Civil Code. It was expressed in
Chapman vs. Underwood (1914), 27 Phil. 374, where
this Court held:
... The same rule applies where the owner is
present, unless the negligent acts of the driver
are continued for such a length of time as to
give the owner a reasonable opportunity to
observe them and to direct his driver to desist
therefrom. An owner who sits in his
automobile, or other vehicle, and permits his
driver to continue in a violation of the law by
the performance of negligent acts, after he has
had a reasonable opportunity to observe them
and to direct that the driver cease therefrom,
becomes himself responsible for such acts. The
owner of an automobile who permits his
chauffeur to drive up the Escolta, for example,
at a speed of 60 miles an hour, without any
effort to stop him, although he has had a
reasonable opportunity to do so, becomes

himself responsible, both criminally and civilly,


for the results produced by the acts of the
chauffeur. On the other hand, if the driver, by
a sudden act of negligence, and without the
owner having a reasonable opportunity to
prevent the act or its continuance, injures a
person or violates the criminal law, the owner
of the automobile, although present therein at
the time the act was committed, is not
responsible, either civilly or criminally,
therefor. The act complained of must be
continued in the presence of the owner for
such a length of time that the owner, by his
acquiescence, makes his driver act his own.
The basis of the master's liability in civil law is
not respondent superior but rather the relationship
of paterfamilias. The theory is that ultimately the
negligence of the servant, if known to the master and
susceptible of timely correction by him, reflects his
own negligence if he fails to correct it in order to
prevent injury or damage.
In the present case the defendants' evidence is that
Rafael Bernardo had been Yu Khe Thai's driver since
1937, and before that had been employed by Yutivo
Sons Hardware Co. in the same capacity for over ten
years. During that time he had no record of violation of
traffic laws and regulations. No negligence for having
employed him at all may be imputed to his master.
Negligence on the part of the latter, if any, must be
sought in the immediate setting and circumstances of
the accident, that is, in his failure to detain the driver
from pursuing a course which not only gave him clear
notice of the danger but also sufficient time to act
upon it. We do not see that such negligence may be
imputed. The car, as has been stated, was not running
at an unreasonable speed. The road was wide and
open, and devoid of traffic that early morning. There
was no reason for the car owner to be in any special
state of alert. He had reason to rely on the skill and
experience of his driver. He became aware of the
presence of the carretela when his car was only twelve
meters behind it, but then his failure to see it earlier
did not constitute negligence, for he was not himself at
the wheel. And even when he did see it at that
distance, he could not have anticipated his driver's
sudden decision to pass the carretela on its left side in
spite of the fact that another car was approaching from
the opposite direction. The time element was such that
there was no reasonable opportunity for Yu Khe Thai to
assess the risks involved and warn the driver
accordingly. The thought that entered his mind, he
said, was that if he sounded a sudden warning it might
only make the other man nervous and make the
situation worse. It was a thought that, wise or not,
connotes no absence of that due diligence required by
law to prevent the misfortune.
The test of imputed negligence under Article 2184 of
the Civil Code is, to a great degree, necessarily
subjective. Car owners are not held to a uniform and
inflexible standard of diligence as are professional
drivers. In many cases they refrain from driving their

own cars and instead hire other persons to drive for


them precisely because they are not trained or
endowed with sufficient discernment to know the rules
of traffic or to appreciate the relative dangers posed by
the
different
situations
that
are
continually
encountered on the road. What would be a negligent
omission under aforesaid Article on the part of a car
owner who is in the prime of age and knows how to
handle a motor vehicle is not necessarily so on the
part, say, of an old and infirm person who is not
similarly equipped.
The law does not require that a person must possess a
certain measure of skill or proficiency either in the
mechanics of driving or in the observance of traffic
rules before he may own a motor vehicle. The test of
his intelligence, within the meaning of Article 2184, is
his omission to do that which the evidence of his own
senses tells him he should do in order to avoid the
accident. And as far as perception is concerned, absent
a minimum level imposed by law, a maneuver that
appears to be fraught with danger to one passenger
may appear to be entirely safe and commonplace to
another. Were the law to require a uniform standard of
perceptiveness, employment of professional drivers by
car owners who, by their very inadequacies, have real
need of drivers' services, would be effectively
proscribed.
We hold that the imputation of liability to Yu Khe Thai,
solidarily with Rafael Bernardo, is an error. The next
question refers to the sums adjudged by the trial court
as damages. The award of P48,000 by way of moral
damages is itemized as follows:
1. Marcial Caedo

P
20,000.00

2. Juana S. Caedo

15,000.00

3. Ephraim Caedo

3,000.00

4. Eileen Caedo

4,000.00

5. Rose Elaine Caedo

3,000.00

6. Merilyn Caedo

3,000.00

The injuries sustained by plaintiffs are the following:


MARCIAL T. CAEDO:
A. Contusion, with hematoma, scalp,
frontal left; abrasions, chest wall,
anterior;
B. Multiple fractures, ribs, right, lst to
5th inclusive. Third rib has a double
fracture;
Subparieto-plaural
hematoma; Basal disc atelectasis,
lung, right lower lobe, secondary;
C. Pseudotosis, left, secondary to
probable basal fracture, skull.
JUANA SANGALANG CAEDO:
A.

Abrasions,
multiple:
(1)frontal region, left; (2) apex of
nose; (3) upper eyelid, left; (4) knees.
B. Wound, lacerated, irregular, deep,
frontal;
C. Fracture, simple, 2nd rib posterior,
left
with
displacement.
D. Fracture, simple, base, proximal
phalanx
right,
big
toe.
E. Fracture, simple, base, metatarsals
III
and
V
right.
F. Concussion, cerebral.
EPHRAIM CAEDO:
A.

Abrasions,
multiple:
(1) left temporal area; (2) left
frontal; (3) left supraorbital
EILEEN CAEDO:
A. Lacerated wound (V-shaped), base,
5th finger, right, lateral aspect.
B.
Abrasions,
multiple:
(1) dorsum,
proximal phalanx
middle finger; (2) Knee, anterior,
bilateral; (3) shin, lower 1/3.
ROSE ELAINE CAEDO:

Plaintiffs appealed from the award, claiming that the


Court should have granted them also actual or
compensatory damages, aggregating P225,000, for the
injuries they sustained. Defendants, on the other hand
maintain that the amounts awarded as moral damages
are excessive and should be reduced. We find no
justification for either side. The amount of actual
damages suffered by the individual plaintiffs by reason
of their injuries, other than expenses for medical
treatment, has not been shown by the evidence. Actual
damages, to be compensable, must be proven. Pain
and suffering are not capable of pecuniary estimation,
and constitute a proper ground for granting moral, not
actual, damages, as provided in Article 2217 of the
Civil Code.

A. Abrasions, multiple: (1) upper and


lower lids; (2) left temporal; (3)
nasolabial region; (4) leg, lower third,
anterior.
MARILYN CAEDO:
A. Abrasions, multiple: (1)shin, lower
1/3 right; (2) arm, lower third
C. Contusion with hematoma, shin,
lower 1/3, anterior aspect, right. (See
Exhibits D, D-1, D-2, D-3, D-4, and D5)

It is our opinion that, considering the nature and


extent of the above-mentioned injuries, the amounts
of moral damages granted by the trial court are not
excessive.
WHEREFORE, the judgment appealed from is modified
in the sense of declaring defendant-appellant Yu Khe
Thai free from liability, and is otherwise affirmed with
respect to defendant Rafael Bernardo, with costs
against the latter.

G.R. No. 128607 January 31, 2000


ALFREDO MALLARI, SR. and ALFREDO MALLARI,
JR., petitioners,
vs.
COURT OF APPEALS and BULLETIN PUBLISHING
CORPORATION, respondents.
BELLOSILLO, J.:
ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in
this petition for review on certiorari seek to set aside
the Decision of the Court of Appeals1 which reversed
the court a quo and adjudged petitioners to be liable
for damages due to negligence as a common carrier
resulting in the death of a passenger.
On 14 October 1987, at about 5:00 o'clock in the
morning, the passenger jeepney driven by petitioner
Alfredo Mallari Jr. and owned by his co-petitioner
Alfredo Mallari Sr. collided with the delivery van of
respondent Bulletin Publishing Corp. (BULLETIN, for
brevity) along the National Highway in Barangay San
Pablo, Dinalupihan, Bataan. Petitioner Mallari Jr.
testified that he went to the left lane of the highway
and overtook a Fiera which had stopped on the right
lane. Before he passed by the Fiera, he saw the van of
respondent BULLETIN coming from the opposite
direction. It was driven by one Felix Angeles. The
sketch of the accident showed that the collision
occurred after Mallari Jr. overtook the Fiera while
negotiating a curve in the highway. The points of
collision were the and the left rear portion of the
passenger jeepney and the left front side of the
delivery van of BULLETIN. The two (2) right wheels of
the delivery van were on the right shoulder of the road
and pieces of debris from the accident were found
scattered along the shoulder of the road up to a
certain portion of the lane travelled by the passenger

jeepney. The impact caused the jeepney to turn


around and fall on its left side resulting in injuries to its
passengers one of whom was Israel Reyes who
eventually died due to the gravity of his
injuries.1wphi1.nt
On 16 December 1987 Claudia G. Reyes, the widow of
Israel M. Reyes, filed a complaint for damages with the
Regional Trial Court of Olongapo City against Alfredo
Mallari Sr. and Alfredo Mallari Jr., and also against
BULLETIN, its driver Felix Angeles, and the N.V.
Netherlands Insurance Company. The complaint
alleged that the collision which resulted in the death of
Israel Reyes was caused by the fault and negligence of
both drivers of the passenger jeepney and the Bulletin
Isuzu delivery van. The complaint also prayed that the
defendants be ordered jointly and severally to pay
plaintiff P1,006,777.40 in compensatory damages,
P40,000.00 for hospital and medical expenses,
P18,270.00 for burial expenses plus such amounts as
may be fixed by the trial court for exemplary damages
and attorney's fees.
The trial court found that the proximate cause of the
collision was the negligence of Felix Angeles, driver of
the Bulletin delivery van, considering the fact that the
left front portion of the delivery truck driven by Felix
Angeles hit and bumped the left rear portion of the
passenger jeepney driven by Alfredo Mallari Jr. Hence,
the trial court ordered BULLETIN and Felix Angeles to
pay jointly and severally Claudia G. Reyes, widow of
the deceased victim, the sums of P42,106.93 for
medical expenses; P8,600.00 for funeral and burial
expenses; P1,006,777.40 for loss of earning capacity;
P5,000.00 for moral damages and P10,000.00 for
attorney's fees. The trial court also ordered N.V.
Netherlands Insurance Company to indemnify Claudia
G. Reyes P12,000.00 as death indemnity and
P2,500.00 for funeral expenses which when paid
should be deducted from the liabilities of respondent
BULLETIN and its driver Felix Angeles to the plaintiff. It
also dismissed the complaint against the other
defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.
On appeal the Court of Appeals modified the decision
of the trial court and found no negligence on the part
of Angeles and consequently of his employer,
respondent BULLETIN. Instead, the appellate court
ruled that the collision was caused by the sole
negligence of petitioner Alfredo Mallari Jr. who
admitted that immediately before the collision and
after he rounded a curve on the highway, he overtook
a Fiera which had stopped on his lane and that he had
seen the van driven by Angeles before overtaking the
Fiera. The Court of Appeals ordered petitioners Mallari
Jr. and Mallari Sr. to compensate Claudia G. Reyes
P1,006,777.50 for loss of earning capacity, P50,000.00
as indemnity for death and P10,000.00 for attorney's
fees. It absolved from any liability respondent
BULLETIN, Felix Angeles and N.V. Netherlands
Insurance Company. Hence this petition.
Petitioners contend that there is no evidence to show
that petitioner Mallari Jr. overtook a vehicle at a curve

on the road at the time of the accident and that the


testimony of Angeles on the overtaking made by
Mallari Jr. was not credible and unreliable. Petitioner
also submits that the trial court was in a better
position than the Court of Appeals to assess the
evidence and observe the witnesses as well as
determine their credibility; hence, its finding that the
proximate cause of the collision was the negligence of
respondent Angeles, driver of the delivery van owned
by respondent BULLETIN, should be given more weight
and consideration.

Q: You said that you took into consideration


the speed of the oncoming Press van but you
also could not estimate the speed of the press
van because it was dark at that time, which of
these statements are true?

We cannot sustain petitioners. Contrary to their


allegation that there was no evidence whatsoever that
petitioner Mallari Jr. overtook a vehicle at a curve on
the road at the time of or before the accident, the
same petitioner himself testified that such fact indeed
did occur

The Court of Appeals correctly found, based on the


sketch and spot report of the police authorities which
were not disputed by petitioners, that the collision
occurred immediately after petitioner Mallari Jr.
overtook a vehicle in front of it while traversing a
curve on the highway.3 This act of overtaking was in
clear violation of Sec. 41, pars. (a) and (b), of RA 4136
as amended, otherwise known as The Land
Transportation and Traffic Code which provides:

Q: And what was that accident all about?


A: Well, what happened, sir, is that at about
that time 5:00 o'clock in that morning of
October 14 while I was negotiating on the
highway at San Pablo, Dinalupihan, Bataan, I
was then following a blue Ford Fierra and my
distance behind was about twenty (20) feet
and then I passed that blue Ford Fierra. I
overtook and when I was almost on the right
lane of the highway towards Olongapo City
there was an oncoming delivery van of the
Bulletin Publishing Corporation which bumped
the left rear portion of the jeepney which I was
driving and as a result of which the jeepney . .
. turned around and fell on its left side and as
a result of which some of my passengers
including me were injured, sir . . . .
Q: Before you overtook the Ford Fierra jeepney
did you look . . . whether there was any
vehicle coming towards you?
A: Yes, sir.
Q: Did you see the Bulletin van or the Press
van coming towards you?
A: Yes, sir.
Q: At the moment the Ford Fierra . . .
stop(ped) and in overtaking the Fierra, did you
not have an option to stop and not to overtake
the Ford Fierra?
A: Well, at the time when the Ford Fierra
stopped in front of me I slowed down with the
intention of applying the brake, however, when
I saw the oncoming vehicle which is the Press
van is very far. . . which is 100 feet distance, .
. . it is sufficient to overtake the Ford Fierra so
I overt(ook) it . . . .

A: What I wanted to say, I took into


consideration the speed of the oncoming
vehicle, the Press van, although at the moment
I could not estimate the speed of the oncoming
vehicle . . . .2

Sec. 41. Restrictions on overtaking and


passing. (a) The driver of a vehicle shall not
drive to the left side of the center line of a
highway in overtaking or passing another
vehicle proceeding in the same direction,
unless such left side is clearly visible and is
free of oncoming traffic for a sufficient distance
ahead to permit such overtaking or passing to
be made in safety.
(b) The driver of a vehicle shall not overtake or
pass another vehicle proceeding in the same
direction when approaching the crest of a
grade, nor upon a curve in the highway, where
the driver's view along the highway is
obstructed within a distance of five hundred
feet ahead except on a highway having two or
more lanes for movement of traffic in one
direction where the driver of a vehicle may
overtake
or
pass
another
vehicle: Provided That on a highway, within a
business or residential district, having two or
more lanes for movement of traffic in one
direction, the driver of a vehicle may overtake
or pass another vehicle on the right.
The rule is settled that a driver abandoning his proper
lane for the purpose of overtaking another vehicle in
an ordinary situation has the duty to see to it that the
road is clear and not to proceed if he cannot do so in
safety.4When a motor vehicle is approaching or
rounding a curve, there is special necessity for keeping
to the right side of the road and the driver does not
have the right to drive on the left hand side relying
upon having time to turn to the right if a car
approaching from the opposite direction comes into
view.5
In the instant case, by his own admission, petitioner
Mallari Jr. already saw that the BULLETIN delivery van
was coming from the opposite direction and failing to
consider the speed thereof since it was still dark at

5:00 o'clock in the morning mindlessly occupied the


left lane and overtook two (2) vehicles in front of it at
a curve in the highway. Clearly, the proximate cause of
the collision resulting in the death of Israel Reyes, a
passenger of the jeepney, was the sole negligence of
the driver of the passenger jeepney, petitioner Alfredo
Mallari Jr., who recklessly operated and drove his
jeepney in a lane where overtaking was not allowed by
traffic rules. Under Art. 2185 of the Civil Code, unless
there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at
the time of the mishap he was violating a traffic
regulation. As found by the appellate court, petitioners
failed to present satisfactory evidence to overcome this
legal presumption.
The negligence and recklessness of the driver of the
passenger jeepney is binding against petitioner Mallari
Sr., who admittedly was the owner of the passenger
jeepney engaged as a common carrier, considering the
fact that in an action based on contract of carriage, the
court need not make an express finding of fault or
negligence on the part of the carrier in order to hold it
responsible for the payment of damages sought by the
passenger. Under Art. 1755 of the Civil Code, a
common carrier is bound to carry the passengers
safely as far as human care and foresight can provide
using the utmost diligence of very cautious persons
with due regard for all the circumstances. Moreover,
under Art. 1756 of the Civil Code, in case of death or
injuries to passengers, a common carrier is presumed
to have been at fault or to have acted negligently,
unless it proves that it observed extraordinary
diligence. Further, pursuant to Art. 1759 of the same
Code, it is liable for the death of or injuries to
passengers through the negligence or willful acts of the
former's employees. This liability of the common
carrier does not cease upon proof that it exercised all
the diligence of a good father of a family in the
selection of its employees. Clearly, by the contract of
carriage, the carrier jeepney owned by Mallari Sr.
assumed the express obligation to transport the
passengers to their destination safely and to observe
extraordinary diligence with due regard for all the
circumstances, and any injury or death that might be
suffered by its passengers is right away attributable to
the fault or negligence of the carrier.
The monetary award ordered by the appellate court to
be paid by petitioners to the widow of the deceased
passenger Israel M. Reyes of P1,006,777.50 for loss of
earning capacity, P50,000.00 as civil indemnity for
death, and P10,000.00 for attorney's fees, all of which
were not disputed by petitioners, is a factual matter
binding and conclusive upon this Court.1wphi1.nt
WHEREFORE, the Petition is DENIED and the Decision
of the Court of Appeals dated 20 September 1995
reversing the decision of the trial court being in accord
with law and evidence is AFFIRMED. Consequently,
petitioners are ordered jointly and severally to pay
Claudia G. Reyes P1,006,777.50 for loss of earning
capacity, P50,000.00 as civil indemnity for death, and

P10,000.00
petitioners.
SO ORDERED.

for

attorney's

fees.

Costs

against

arm, the right leg and the upper lip apart from an
abrasion on the right infra-patella region. These
injuries and the allergic eruption caused by antitetanus injections administered to him in the hospital,
required further medical treatment by a private
practitioner who charged therefor P1,400.00.
As a consequence of the foregoing occurrence, Teotico
filed, with the Court of First Instance of Manila, a
complaint which was, subsequently, amended for
damages against the City of Manila, its mayor, city
engineer, city health officer, city treasurer and chief of
police. As stated in the decision of the trial court, and
quoted with approval by the Court of Appeals,

G.R. No. L-23052

January 29, 1968

CITY
OF
vs.
GENARO
N.
TEOTICO
APPEALS, respondents.

MANILA, petitioner,
and

COURT

OF

City Fiscal Manuel T.


Reyes
for petitioner.
Sevilla, Daza and Associates for respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of
Appeals.
On January 27, 1958, at about 8:00 p.m., Genaro N.
Teotico was at the corner of the Old Luneta and P.
Burgos Avenue, Manila, within a "loading and
unloading" zone, waiting for a jeepney to take him
down town. After waiting for about five minutes, he
managed to hail a jeepney that came along to a stop.
As he stepped down from the curb to board the
jeepney, and took a few steps, he fell inside an
uncovered and unlighted catch basin or manhole on P.
Burgos Avenue. Due to the fall, his head hit the rim of
the manhole breaking his eyeglasses and causing
broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons
came to his assistance and pulled him out of the
manhole. One of them brought Teotico to the
Philippine General Hospital, where his injuries were
treated, after which he was taken home. In addition to
the lacerated wound in his left upper eyelid, Teotico
suffered contusions on the left thigh, the left upper

At the time of the incident, plaintiff was a


practicing public accountant, a businessman
and a professor at the University of the East.
He held responsible positions in various
business firms like the Philippine Merchandising
Co., the A.U. Valencia and Co., the Silver Swan
Manufacturing Company and the Sincere
Packing Corporation. He was also associated
with several civic organizations such as the
Wack Wack Golf Club, the Chamber of
Commerce of the Philippines, Y's Men Club of
Manila and the Knights of Rizal. As a result of
the incident, plaintiff was prevented from
engaging in his customary occupation for
twenty days. Plaintiff has lost a daily income of
about P50.00 during his incapacity to work.
Because of the incident, he was subjected to
humiliation and ridicule by his business
associates and friends. During the period of his
treatment, plaintiff was under constant fear
and anxiety for the welfare of his minor
children since he was their only support. Due
to the filing of this case, plaintiff has obligated
himself to pay his counsel the sum of
P2,000.00.
On the other hand, the defense presented
evidence, oral and documentary, to prove that
the Storm Drain Section, Office of the City
Engineer of Manila, received a report of the
uncovered condition of a catchbasin at the
corner of P. Burgos and Old Luneta Streets,
Manila, on January 24, 1958, but the same
was covered on the same day (Exhibit 4); that
again the iron cover of the same catch basin
was reported missing on January 30, 1958, but
the said cover was replaced the next day
(Exhibit 5); that the Office of the City Engineer
never received any report to the effect that the
catchbasin in question was not covered
between January 25 and 29, 1968; that it has
always been a policy of the said office, which is
charged with the duty of installation, repair
and care of storm drains in the City of Manila,
that whenever a report is received from
whatever source of the loss of a catchbasin
cover, the matter is immediately attended to,
either by immediately replacing the missing
cover or covering the catchbasin with steel

matting that because of the lucrative scrap iron


business then prevailing, stealing of iron
catchbasin covers was rampant; that the Office
of the City Engineer has filed complaints in
court resulting from theft of said iron covers;
that in order to prevent such thefts, the city
government has changed the position and
layout of catchbasins in the City by
constructing them under the sidewalks with
concrete cement covers and openings on the
side of the gutter; and that these changes had
been undertaken by the city from time to time
whenever funds were available.
After appropriate proceedings the Court of First
Instance of Manila rendered the aforementioned
decision sustaining the theory of the defendants and
dismissing the amended complaint, without costs.

property arising from the failure of" city officers "to


enforce the provisions of" said Act "or any other law or
ordinance, or from negligence" of the city "Mayor,
Municipal Board, or other officers while enforcing or
attempting to enforce said provisions." Upon the other
hand, Article 2189 of the Civil Code constitutes a
particular prescription making "provinces, cities and
municipalities . . . liable for damages for the death of,
or injury suffered by any person by reason"
specifically "of the defective condition of roads,
streets, bridges, public buildings, and other-public
works under their control or supervision." In other
words, said section 4 refers to liability arising from
negligence, in general, regardless of the object
thereof, whereas Article 2189 governs liability due to
"defective streets," in particular. Since the present
action is based upon the alleged defective condition of
a road, said Article 2189 is decisive thereon.

On appeal taken by plaintiff, this decision was affirmed


by the Court of Appeals, except insofar as the City of
Manila is concerned, which was sentenced to pay
damages in the aggregate sum of P6,750.00. 1 Hence,
this appeal by the City of Manila.

It is urged that the City of Manila cannot be held liable


to Teotico for damages: 1) because the accident
involving him took place in a national highway; and 2)
because the City of Manila has not been negligent in
connection therewith.

The first issue raised by the latter is whether the


present case is governed by Section 4 of Republic Act
No. 409 (Charter of the City of Manila) reading:

As regards the first issue, we note that it is based upon


an allegation of fact not made in the answer of the
City. Moreover, Teotico alleged in his complaint, as
well as in his amended complaint, that his injuries
were due to the defective condition of a street which is
"under the supervision and control" of the City. In its
answer to the amended complaint, the City, in turn,
alleged that "the streets aforementioned were and
have been constantly kept in good condition and
regularly inspected and the storm drains and manholes
thereof covered by the defendant City and the officers
concerned" who "have been ever vigilant and zealous
in the performance of their respective functions and
duties as imposed upon them by law." Thus, the City
had, in effect, admitted that P. Burgos Avenue was and
is under its control and supervision.

The city shall not be liable or held for damages


or injuries to persons or property arising from
the failure of the Mayor, the Municipal Board,
or any other city officer, to enforce the
provisions of this chapter, or any other law or
ordinance, or from negligence of said Mayor,
Municipal Board, or other officers while
enforcing or attempting to enforce said
provisions.
or by Article 2189 of the Civil Code of the Philippines
which provides:
Provinces, cities and municipalities shall be
liable for damages for the death of, or injuries
suffered by, any person by reason of defective
conditions of road, streets, bridges, public
buildings, and other public works under their
control or supervision.
Manila maintains that the former provision should
prevail over the latter, because Republic Act 409, is a
special law, intended exclusively for the City of Manila,
whereas the Civil Code is a general law, applicable to
the entire Philippines.
The Court of Appeals, however, applied the Civil Code,
and, we think, correctly. It is true that, insofar as its
territorial application is concerned, Republic Act No.
409 is a special law and the Civil Code a general
legislation; but, as regards the subject-matter of the
provisions above quoted, Section 4 of Republic Act 409
establishes a general rule regulating the liability of the
City of Manila for: "damages or injury to persons or

Moreover, the assertion to the effect that said Avenue


is a national highway was made, for the first time, in
its motion for reconsideration of the decision of the
Court of Appeals. Such assertion raised, therefore, a
question of fact, which had not been put in issue in the
trial court, and cannot be set up, for the first time, on
appeal, much less after the rendition of the decision of
the appellate court, in a motion for the reconsideration
thereof.
At any rate, under Article 2189 of the Civil Code, it is
not necessary for the liability therein established to
attach that the defective roads or streets belong to the
province, city or municipality from which responsibility
is exacted. What said article requires is that the
province, city or municipality have either "control or
supervision" over said street or road. Even if P. Burgos
Avenue were, therefore, a national highway, this
circumstance would not necessarily detract from its
"control or supervision" by the City of Manila, under
Republic Act 409. In fact Section 18(x) thereof
provides:

Sec. 18. Legislative powers. The Municipal


Board shall have the following legislative
powers:
xxx

xxx

xxx

(x) Subject to the provisions of existing law to


provide
for
the laying
out,
construction and improvement, and to regulate
the use of streets, avenues, alleys, sidewalks,
wharves, piers, parks, cemeteries, and other
public places; to provide for lighting, cleaning,
and sprinkling of streets and public places; . .
. to provide for the inspection of, fix the license
fees for and regulate the openings in the same
for the laying of gas, water, sewer and other
pipes, the building and repair of tunnels,
sewers, and drains, and all structures in and
under the same and the erecting of poles and
the stringing of wires therein; to provide for
and regulate cross-works, curbs, and gutters
therein, . . . to regulate traffic and sales upon
the streets and other public places; to provide
for the abatement of nuisances in the same
and punish the authors or owners thereof; to
provide for the construction and maintenance,
and regulate the use, of bridges, viaducts and
culverts; to prohibit and regulate ball playing,
kite-flying,
hoop
rolling,
and
other
amusements which may annoy persons using
the streets and public places, or frighten
horses or other animals; to regulate the
speed of horses and other animals, motor and
other vehicles, cars, and locomotives within
the limits of the city; to regulate the
lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the
location, grade, and crossing of railroads, and
compel any such railroad to raise or lower its
tracks to conform to such provisions or
changes; and to require railroad companies to
fence their property, or any part thereof,
to provide suitable protection against injury to
persons or property, and to construct and
repair
ditches,
drains,
sewers,
and
culverts along and under their tracks, so that
the natural drainage of the streets and
adjacent property shall not be obstructed.
This authority has been neither withdrawn nor
restricted by Republic Act No. 917 and Executive Order
No. 113, dated May 2, 1955, upon which the City
relies.
Said
Act governs
the
disposition or
appropriation of the highway funds and the giving of
aid to provinces, chartered cities and municipalities in
the construction of roads and streets within their
respective boundaries, and Executive Order No. 113
merely implements the provisions of said Republic Act
No. 917, concerning the disposition and appropriation
of the highway funds. Moreover, it provides that "the
construction, maintenance and
improvement
of
national primary, national secondary and national aid
provincial and city roads shall be accomplished by the
Highway District Engineers and Highway City Engineers

under the supervision of the Commissioner of Public


Highways and shall be financed from such
appropriations as may be authorized by the Republic of
the Philippines in annual or special appropriation Acts."
Then, again, the determination of whether or not P.
Burgos Avenue is under the control or supervision of
the City of Manila and whether the latter is guilty of
negligence, in connection with the maintenance of said
road, which were decided by the Court of Appeals in
the affirmative, is one of fact, and the findings of said
Court thereon are not subject to our review.
WHEREFORE, the decision appealed from should be as
it is hereby affirmed, with costs against the City of
Manila. It is so ordered.

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