M. H. RAKES, plaintiff and appellee, vs.

THE ATLANTIC, GULF AND PACIFIC COMPANY,

defendant and appellant

No. 1719. January 23, 1907

1. CIVIL LIABILITY FOR DAMAGES.In order to enforce the liability of an employer for injuries to his
employee, it is not necessary that a criminal action be first prosecuted against the employer or his
representative primarily chargeable with the accident. No criminal proceeding having been taken, the
civil action may proceed to judgment.

2. LIABILITY OF EMPLOYER TO WORKMEN.The responsibility of an employer to his employee

arises out of the contractual relations between them and is regulated by article 1101 and the following
articles of the Civil Code.

3. FELLOW-SERVANT RULE.The doctrine known as the "Fellow-servant rule," exonerating the

employer where the injury was incurred through the negligence of a fellow-servant of the employee
injured, is not adopted in Philippine jurisprudence.

4. CONTRIBUTORY NEGLIGENCE.The negligence of the injured person contributing to his injury

but not being one of the determining causes of the principal accident, does not operate as a bar to
recovery, but only in reduction of his damages. Each party is chargeable with damages in proportion to
his fault.

APPEAL from a judgment of the Court of First Instance of Manila.

The facts are stated in the opinion of the court.

A. D. Gibbs, for appellant.

F. G. Waite and Thomas Kepner, for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of
the defendant, was at work transporting iron rails from a barge in the harbor to the company's yard near
the Malecon in Manila. Plaintiff claims that but one hand car was used in this work. The defendant has
proved that there were two immediately following one another, upon which were piled lengthwise seven
rails, each weighing 560 pounds, so that the ends of the rails projected beyond the cars both in front
and behind. The rails lay ujMm two crosspieces or sills secured to the cars, but without side pieces or
guards to prevent them from slippingoff. According to the testimony of the plaintiff, the men were worc
either in the rear of the car or at its sides. According to that of the defendant, some of them were also
in front, hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke,
the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was
afterwards amputated at about the knee.

The first point for the plaintiff to establish was that the accident happened through the negligence of the
defendant. The detailed description by the defendant's witnesses of the construction and quality of the
track proves that it was up to the general standard of trainways of that character, the foundation
consisting on land of blocks or cross-pieces of wood, 6 by 8 inches thick and from 8 to 10 feet long, laid
on the surface of the ground, upon which at a right angle ivstnl stringers of the same thickness, but from
24 to 30 feet in length. On and across the stringers and parallel with the blocks were the ties to which
the tracks were fastened. After the road reached the water's edge, the blocks or crosspieces were
replaced with piling, capped by timbers extending from one side to the other. The tracks were each
about 2 feet wide and the two inside rails of the parallel tracks about 18 inches apart, It was admitted
that there were 110 side pieces or guards on the car; that where the ends of the rails of the track met
each other and also where the stringers joined, there were no fish plates. The defendant has not
effectually overcome the plaintiff's proof that the joints between the rails were immediately above the
joints between the underlying stringers.
The cause of the sagging of the track and the breaking of the tie, which was the immediate occasion of
the accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and
in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water
of the bay raised by a recent typhoon. The superintendent of the company attributed it to the giving way
of the block laid in the sand. No effort was made to repair the injury at the time of the occurrence.
According to plaintiff's witnesses, a depression of the track, varying from one-half inch to one inch and
a half, was thereafter apparent to the eye, and a fellow-workman of the plaintiff swears that the day
before the accident he called the attention of McKenna, the foreman, to it and asked him to have it
repaired. After the accident it was mended by simply straightening out the crosspiece, resetting the
block under the stringer and renewing the tie, but otherwise leaving the very same timbers as before. It
has not been proved that the company inspected the track after the typhoon or had any proper system
of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part
in failing either to properly secure the load of iron to the vehicles transporting it, or to skillfully build the
trainway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as
the depression in it became visible. It is upon the failure of the defendant to repair the weakened track,
after notice of its condition, that the judge below based his judgment.

This case presents many important matters for our decision, and first among them is the standard of
duty which we shall establish in our jurisprudence on the part of employers toward employees.

The lack or the harshness of legal rules on this subject has led many countries to enact laws designed
to put these relations on a fair basis in the form of compensation or liability laws or the institution of
industrial insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.

Article 1092 of the Civil Code provides:

"Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the
Penal Code."

And article 568 of the latter code provides:

"He who shall execute through reckless negligence an act that if done with malice would constitute a
grave crime, shall be punished."

And article 590 provides that the following shall be punished:

"4. Those who by simple imprudence or negligence, without committing any infraction of regulations,
shall cause an injury which, had malice intervened, would have constituted a crime or misdemeanor."

And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants
and representatives is declared to be civil and subsidiary in its character.

It is contended by the defendant, as its first defense to the action, that the necessary conclusion from
these collated laws is that the remedy for injuries through negligence lies only in a criminal action in
which the official criminally responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the track, and on his prosecution a suitable
fine should have been imposed, payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil
Code makes obligations arising from faults or negligence not punished by the law, subject to the
provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault or negligence shall
be obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts
and omissions, but also for those of the persons for whom they should be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors
who live with them.

* * * * *

"Owners or directors of an establishment or enterprise are equally liable for the damages caused by
their employees in the service of the branches in which the latter may be employed or in the
performance of their duties.

* * * * *

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

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere
in our general statutes is the employer penalized for failure to provide or maintain safe appliances for
his workmen. His obligation therefore is one "not punished by the law" and falls under civil rather than
criminal jurisprudence. But the answer may be a broader one. We should be reluctant, under any
conditions, to adopt a forced construction of these scientific codes, such as is proposed by the
defendant, that would rob some of these articles of effect, would shut out litigants against their will from
the civil courts, would make the assertion of their rights dependent upon the selection for prosecution
of the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always stood alone, such a construction would
be unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual force in these
Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes
of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out
of a crime that could be enforced only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on
the same subject

An examination of this topic might be carried much further, but the citation of these articles suffices to
show that the civil liability was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law. Where an individual is civilly liable for a negligent act
or omission, it is not required that the injured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in
respect of criminal actions against his employees only while they are in process of prosecution, or in so
far as they determine the existence of the criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not barred thereby unless by the election of
the injured person. Inasmuch as no criminal proceeding had been instituted, growing out of the accident
in question, the provisions of the Penal Code can not affect this action. This construction renders it
unnecessary to finally determine here whether this subsidiary civil liability in penal actions has survived
the laws that fully regulated it or has been abrogated by the American civil and criminal procedure now
in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the
Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee
who is the offender is not to be regarded as derived from negligence punished by the law, within the
meaning of articles 1092 and 1093. More than this, however, it can not be said to fall within the class
of acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of
the Civil Code. The acts to which these articles are applicable are understood to be those not growing
out of preexisting duties of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may be found
in the consequences of a railway accident due to defective machinery supplied by the employer. His
liability to his employee would arise out of the contract of employment, that to the passengers out of the
contract for passage, while that to the injured bystander would originate in the negligent act itself. This
distinction is thus clearly set forth by Manresa in his commentary on article 1093:

"We see with reference to such obligations, that culpa, or negligence, may be understood in two different
senses; either as culpa, substantive and independent, which 011 account of its origin arises in an
obligation between two persons not formerly bound by any other obligation; or as an incident in the
performance of an obligation which already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already existing obligation.

"Of these two species of CII?/MI the first one mentioned, existing by itself, may be also considered as
a real source of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted
to it, it is logical to presume that the reference contained in article 1093 is limited thereto and that it does
not extend to those provisions relating to the other species of culpa (negligence), the nature of which
we will discuss later." (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence may
be somewhat inexactly described as contractual and extra-contractual, the latter being the culpa
aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology is
unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No.
12), and the principle stated is supported by decisions of the supreme court of Spain, among them
those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia
Civil, No. 182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia
Civil, No. 107.)

Spanish jurisprudence, prior to the adoption of the Working Men's Accident Law of January 30, 1900,
throws uncertain light on the relation between master and workman. Moved by the quick industrial
development of their people, the courts of France early applied to the subject the principles common to
the law of both countries, which are lucidly discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles
1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the
Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 1896, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the
discovery of a third basis for liability in an article of the French Code making the possessor of any object
answerable for damage done by it while in his charge. Our law having no counterpart of this article,
applicable to every kind of object, we need consider neither the theory growing out of it nor that of
"professional risk" more recently imposed by express legislation, but rather adopting the interpretation
of our Civil Code above given, find a rule for this case in the contractual obligation. This contractual
obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties,
binds the employer to provide safe appliances for the use of the employee, thus closely corresponding
to English and American law. On these principles it was the duty of the defendant to build and to
maintain its track in reasonably sound condition, so as to protect its workingmen from unnecessary
danger. It is plain that in one respect or the other it failed in its duty, otherwise the accident could not
have occurred; cousequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by hiiu. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect it, for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused upon
the ground that the negligence leading to the accident was that of a fellow-servant of the injured man.
It is not apparent to us that the intervention of a third person can relieve the defendant from the
performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his
own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant rule," we are not disposed to
introduce into our jurisprudence. Adopted in England by Lord Abinger in the case of Prescott vs. Fowler
(3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by "the Employers' Liability
Acts" and the "Compensation Compensation Law." The American States which applied it appear to be
gradually getting rid of it; for instance, the New York State legislature of 1906 did away with it in respect
to railroad companies, and had in hand a scheme for its total abolition. It has never found place in the
civil law of continental Europe. (Dalloz, vol. 30, 1858, Title Responsibilit, 630, and vol. 15, 1895, same
title, 804. Also more recent instances in Fuzier-Herman, Title Responsibilit Civile, 710.)

The French Cour de Cassation clearly laid down the contrary trary principle in its judgment of June
28,1841, in the case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing to the
accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars is he
charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either
before or behind it.

As to the first point, the depression in the track might indicate either a serious or a trivial difficulty. There
is nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath the
sleeper. The claim that he must have done so is a conclusion drawn from what is assumed to have
been a probable condition of things not before us, rather than a fair inference from the testimony. While
the method of construction may have been known to the men who had helped build the road, it was
otherwise with the plaintiff who had worked at this job less than two days. A man may easily walk along
a railway without perceiving a displacement of the underlying timbers. The foreman testified that he
knew the state of the track on the day of the accident and that it was then in good condition, and one
Danridge, a witness for the defendant, Working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The sagging of the track this plaintiff did
perceive, but that was reported in his hearing to the foreman who neither promised nor refused to repair
it. His lack of caution in continuing at his work after noticing the slight depression of the rail was not of
so gross a nature as to constitute negligence, barring his recovery under the severe American rule. On
this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know
the cause of the one rail being lower than the other" and "it does not appear in this case that the plaintiff
knew before the accident occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United States
in the De la Rama case (201 U. S., 303).

In respect of the second charge of m'gligeiur against the plaintiff, the judgment below is not so specific.
While the judge remarks that the evidence does not justify the finding that the car was pulled by means
of a rope attached to the front end or to the rails upon it, and further that the circumstances in evidence
make it clear that the persons necessary to operate the car could not walk upon the plank between the
rails and that, therefore, it was necessary for the employees moving it to get hold upon it as best they
could, there is no specific finding upon the instruction given by the defendant to its employees to walk
only upon the planks, nor upon the necessity of the plaintiff putting himself upon the ties at the side in
order to get hold upon the car. Therefore the findings of the judge below leave the conduct of the plaintiff
in walking along the side of the loaded car, upon the open ties, over the depressed track, free to our
inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way,
but were expressly directed by the foreman to do so, both the officers of the company and three of the
workmen testify that there was a general prohibition frequently made known to all the gang against
walking by the side of the car, and the foreman swears that he repeated the prohibition before the
starting of this particular load. On this contradiction of proof we think that the preponderance is in favor
of the defendant's contention to the extent of the general order being made known to the workmen. If
so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury
as a proximate, although not as its primary cause. This conclusion presents sharply the question, What
effect is to be given such an act of contributory negligence? Does it defeat a recovery, according to the
American rule, or is it to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of comparative
negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his
negligence 'Was slight as compared with that of the defendant, and some others have accepted the
theory of proportional damages, reducing the award to a plaintiff in proportion to his responsibility for
the accident, yet the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured which is one of the
causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia of
law, Titles "Comparative Negligence" and "Contributory Negligence.")

In Grand Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:

"Although the defendant's negligence may have been the primary cause of the injury complained of, yet
an action for such injury can not be maintained if the proximate and immediate cause of the injury can
be traced to the want of ordinary care and caution in the person injured; subject to this qualification,
which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546)
that the contributory negligence of the party injured will not defeat the action if it be shown that the
defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of
the injured party's negligence."

There are many cases in the supreme court of Spain in which the defendant was exonerated, but when
analyzed they prove to have been decided either upon the point that he was not negligent or that the
negligence of the plaintiff was the immediate cause of the casualty or that the accident was due to
casus fortuitus. Of the first class is the decision of January 26, 1887 (38 Jurisprudencia Criminal, No.
70), in which a railway employee, standing on a car, was thrown therefrom and killed by the shock
following the backing up of the engine. It was held that the management of the train and engine being
in conformity with proper rules of the company, showed no fault on its part.

Of the second class are the decisions of the 15th of January, the 19th of February, and the 7th of March,
1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888
(64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the logs of the
defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, 011 which stress has been laid, rested on two bases, one, that
the defendant was not negligent, because expressly relieved by royal order from the common obligation
imposed by the police law of maintaining a guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in front of a train running at speed, with
the engine whistle blowing was the determining cause of the accident. It is plain that the train was doing
nothing but what it had a right to do and that the only fault lay with the injured man. His negligence was
not contributory, it was sole, and was of such an efficient nature that without it no catastrophe could
have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of December,
1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the latter must have perceived beforehand
the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed to his
injury as one of its causes, though not the principal one, and we are left to seek the theory of the civil
law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness
of the victim did not civilly relieve the person without whose fault the accident could not have happened,
but that the contributory negligence of the injured man had the effect only of reducing the damages.
The same principle was applied in the case of Recullet, November 10, 1888, and that of Laugier of the
11th of November, 1896. (Fuzier-Herman, Title Responsibilit Civile, 411, 412.) Of like tenor are
citations in Dalloz (vol. 18, 1896, Title Travail, 363, 364, and vol. 15, 1895, Title Responsibilit, 193,
198).

In the Canadian Province of Quebec, which has retained for the most part the French Civil Law, now
embodied in a code following the Code Napoleon, a practice in accord with that of France is laid down
in many cases collected in the annotations to article 1053 of the code edited by Beauchamps, 1904.
One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which
the court of King's bench, otherwise known as the court of appeals, the highest authority in the Dominion
of Canada on points of French law, held that contributory negligence did not exonerate the defendants
whose fault had been the immediate cause of the accident, but entitled him to a reduction of damages.
Other similar cases in the provincial courts have been overruled by appellate tribunals made up of
common law judges drawn from other provinces, who have preferred to impose uniformly throughout
the Dominion the English theory of contributory negligence. Such decisions throw no light upon the
doctrines of the civil law. Elsewhere we find this practice embodied in legislation; for instance, section
2 of article 2398 of the Code of Portugal reads as follows:

"lf in the case of damage there was fault or negligence on the part of the person injured or on the part
of some one else, the indemnification shall be reduced in the first case, and in the second case it shall
be apportioned in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section
2372."

And article 1304 of the Austrian Code provides that the victim who is partly chargeable with the accident
shall stand his damages in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person principally responsible. The principle
of proportional damages appears to be also adopted in article 51 of the S wiss Code. Even in the United
States in admiralty jurisdictions, whose principles are derived from the civil law, common fault in cases
of collision have been disposed of not on the ground of contributory negligence, but on that of equal
loss, the fault of the one party being offset against that of the other. (Ralli vs. Troop, 157 U. S., 386, p.
406.)

The damage of both being added together and the sum equally divided, a decree is entered in favor of
the vessel sustaining the greater loss against the other for the excess of her damages over one-half of
the aggregate sum. (The Manitoba, 122 U. S., 97.)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of
Commerce, article 827, makes each vessel liable for its own damage when both are at fault; this
provision restricted to a single class of maritime accidents, falls far short of a recognition of the principle
of contributory negligence as understood in American law, with which, indeed, it has little in common.
This is plain from other articles of the same code; for instance, article 829, referring to articles 826, 827,
and 828, which provides: "In the cases above mentioned the civil action of the owner against the person
liable for the damage is reserved, as well as the criminal liability which may appear.?

The rule of the common law, a hard and fast one, not adjustable with respect of the faults of the parties,
appears to have grown out of the original method of trial by jury, which rendered difficult a nice balancing
of responsibilities and which demanded an inflexible standard as a safeguard against too ready
sympathy for the injured. It was assumed that an exact measure of several concurring faults was
unattainable.

"The reason why, in cases of mutual concurring negligence, neither party can maintain an action against
the other, is, not that the wrong of the one is set off against the wrong of the other; it is that the law can
not measure how much of the damage suffered is attributable to the plaintiff s own fault. If he were
allowed to recover, it might be that he would obtain from the other party compensation for his own
misconduct." (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)

"The parties being mutually in fault, there can be no apportionment of damages. The law has no scales
to determine in such cases whose wrongdoing weighed most in the compound that occasioned the
mischief." Railroad vs. Norton, 24 Penn. St. Rep., 465, 469.)

Experience with jury trials in negligence cases has brought American courts of review to relax the vigor
of the rule by freely exercising the power of setting aside verdicts deemed excessive, through the device
of granting new trials, unless reduced damages are stipulated for, amounting to a partial revision of
damages by the courts. It appears to us that the control by the court of the subjectmatter may be secured
on a more logical basis and its judgment adjusted with greater nicety to the merits of the litigants through
the practice of offsetting their respective responsibilities. In the civil-law system this desirable end is not
deemed beyond the capacity of its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress
and counter stress of novel schemes of legislation, we find the theory of damages laid down in this
judgment the most consistent with the history and the principles of our law in these Islands and with its
logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be made between the accident
and the injury, between the event itself, without which there could have been no accident, and those
acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. For
instance, the cause of the accident under review was the displacement of the crosspiece or the failure
to replace it. This produced the event giving occasion for damagesthat is, the sinking of the track and
the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had the crosspiece been
out of place wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that
the defendant responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by
the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom
2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be entered in favor
of the plaintiff for the resulting sum of 2,500 pesos, with costs of both instances, and ten days hereafter
let the case be remanded to the court below for proper action. 80 ordered.

Arellano, C. J., Torres, and Mapa, JJ., concur.

WILLARD, J., with whom concurs CARSON, J., dissenting:

The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own
evidence. He testified, among other things, as follows:

"Q. Now, describe the best you can the character of the track that ran from the place where you loaded
the irons from the barge up to the point where you unloaded them on the ground.A Well, it was pretty
bad character.
* * * * *

"Q. And you were familiar with the track before thatits construction?A. Familiar with what?

"Q. Well, you have described it here to the courtA. Oh, yes; I knew the condition of the track.

"Q. You knew its condition as you have described it here at the time you were working around there?
A. Yes, sir.

* * * * *

"Q. And while operating it from the side it was necessary for you to step from board to board on the
cross-ties which extended out over the stringers?A. Yes, sir.

"Q. And these were of very irregular shape, were they not?A. They were in pretty bad condition.

* * * * *

"Q. And it was not safe to walk along on the outside of these crosspieces?A. It was safe if the car
stayed on the track. We didn't try to hold the load on. We tried to hold the car back, keep it from going
too fast, because we knew the track was in bad condition just here, and going down too fast we would
be liable to run off most any time.

"Q. You knew the track was in bad condition when you got hold?A. Sure, it was in bad condition.

* * * * *

"Q. And the accident took place at the point where you believed it to be so dangerous?A. Yes, sir.

"Q. But you knew it was dangerous?A. Why certainly, anybody could see it; but a workingman had to
work in those days or get arrested for a vag here in Manila."

The court below, while it found that the plaintiff knew in a general way of the bad condition of the track,
found that he was not informed of the exact cause of the accident, namely, the washing away of the
large crosspiece laid upon the ground or placed upon the posts as the foundation upon which the
stringers rested. This finding of fact to my mind is plainly and manifestly against the weight of the
evidence. Ellis, a witness for the plaintiff, testified that on the morning of the accident he called the
attention of McKenna, the foreman, to the defective condition of the track at this precise point where
the accident happened. His testimony in part is as f ollows:

"A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and that
if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it it would
hold it. He said, you keep on fishing around here for fish plates and you will be fishing for another job
the first thing you know.' He says, 'You see too much.'

* * * * *

"Q. Who else was present at the time you had this conversation with Mr. McKenna?A. Well, at that
conversation as far as I can remember, we were all walking down the track and I know that McCoy and
Mr. Rakes was along at the time. I remember them two, but we were all walking down the track in a
bunch, but I disremember them.

* * * * *
"Q. Was that the exact language that you used, that you wanted. some fish plates put on?A. No, sir;
I told him look at that track. I says get some fish plates. I says if there was any fish plates we would fix
that.

"Q. What did the fish plates have to do with that?A. It would have strengthened that joint.

"Q. Why didn't you put the 8 by 8 which was washed crossways in place?A. That would have taken
the raising of the track and digging out along this upright piece and then putting it up again."

The plaintiff himself testified that he was present with Ellis at the time this conversation was had with
McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing
directly over the place where the accident happened later in the day. The accident was caused, as the
court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course
anyone standing on the track at a particular place could see the ground and the entire construction of
the road, including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these
stringers, and the rails placed on the ties. The plaintiff himself must have seen that this 8 by 8 piece of
timber was out of place.

If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to the
plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were
therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the
posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot to
two feet and a half As has been said, Ellis testified that the reason why they did not put the 8 by 8 back
in its place was because that would have required the raising up of the track and digging out along this
upright piece and then putting it up again.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the
exact condition of the track and was informed and knew of the defect which caused -the accident. There
was no promise on the part of McKenna to repair the track.

Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he
knew that he would be injured by the falling of the rails from the car when they reached this point in the
track where the two stringers were left without any support at their ends. He either should have refused
to work at all or he should have placed himself behind the car, on the other side of it, or in front of it,
drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover.

It is said, however, that contributory negligence on the part of the plaintiff in a case like this is no defense
under the law in force in these Islands. To this proposition I can not agree. The liability of the defendant
is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.

In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contributory negligence on the part of the plaintiff is a defense in this class
of cases is that the negligence of the defendant did not alone cause the accident, If nothing but that
negligence had existed, the accident would not have happened and, as I understand it, in every case
in which contributory negligence is a defense it is made so because the negligence of the plaintiff is the
cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not
have happened, although the defendant was also negligent. In other words, the negligence of the
defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.

There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the
Roman law was: "Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire." (Digest,
book 50, tit. 17, rule 203.)

The Partidas contain the following provisions:

"The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another." (Law 25, tit. 5, partida 3 3.)

"And they even said that when a man received an injury through his own negligence, he should blame
himself for it." (Rule 22, tit. 34, partida 7.)

"According to ancient sages, when a man received an injury through his own acts, the grievance should
be against himself and not against another." ( Law 2, tit. 7, partida 2.)

In several cases in the supreme court of Spain the fact has been mentioned that the plaintiff was himself
guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of February,
1897, and in the criminal judgments of the 20th of February 1888, the 9th of March, 1876, and the 6th
of October, 1882. These cases do not throw much light upon the subject. The judgment of the 7th of
March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court
of Spain said:

"According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury thereby caused there exists the relation of
cause and effect; but if the injury caused should not be the result of acts or omissions of a third party,
the latter has no obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of
the injured party himself.

"For the reasons above stated, and the court below having found that the death of the deceased was
due to his own imprudence, and not therefore due -to the absence of a guard at the grade crossing
where the accident occurred, it seems clear that that court in acquitting the railroad company of the
complaint filed by the widow did not violate the provisions of the aforesaid article of the Civil Code.

"For the same reason, although the authority granted to the railroad company to open the grade
crossing without a special guard was nullified by the subsequent promulgation of the railroad police law
and the regulations for the execution of the same, the result would be identieal, leaving one of the
grounds upon which the judgment of acquittal is based, to wit, that the accident was caused by the
imprudence of the injured party himself, unaffected."

It appears that the accident in this case took place at a grade crossing where, according to the claim of
the plaintiff, it was the duty of the railroad company to maintain a guard. It did not do so, and the plaintiff's
deceased husband was injured by a train at this crossing, his negligence contributing to the injury
according to the ruling of the court below. This judgment, then, amounts to a holding that contributory
negligence is a defense according to the law of Spain. (See also judgment of the 21st of October, 1903,
vol. 96, p. 400, Jurisprudencia Civil)

Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce
there is found a distinct declaration upon it in reference to damages caused by collisions at sea. Article
827 of the Code of Commerce is as follows:

"If both vessels may be blamed for the collision, each one shall be liable for his own damages, and both
shall be jointly responsible for the loss and damage suffered by their cargoes."

That article is an express recognition of the fact that in collision cases contributory negligence is a
defense.

I do not think that this court is justified in vu*\v of the Roman law, of the provisions of the I'ttrtMnH, of
the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absemr of any
declaration upon the subject in the Civil Code, in saying that it was the intention of the legislature of
Spain to adopt for the Civil Code the rule announced in the majority opinion, a rule diametrically opposed
to that put in force by the Code of Commerce.
The chief, if not the only, reason stated in the opinion for adopting the rule that contributory negligence
is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be secondary in accordance with the provisions
of the Penal Code, or primary, in accordance with the provisions of the Civil Code, I express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

Judgment modified.

o0o

C. S. GILCHRIST, plaintiff and appellee, vs. E. A. CUDDY ET AL., defendants. JOSE

FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants.

No. 9356. February 18, 1915.

1. DAMAGES; INTERFERENCE WITH CONTRACTS BY STRANGERS.The interference with lawful

contracts by strangers thereto gives rise to an action for damages in favor of the injured person. The
law does not require that the responsible person shall have known the identity of the injured person.

2. INJUNCTION; WHEN IT ISSUES; GENERAL DOCTRINE.The general doctrine as to when

injunction issues, as stated in Devesa vs. Arbes (13 Phil. Rep., 273), affirmed.

3. ID.; INTERFERENCE WITH CONTRACTS BY STRANGERS.The interference with lawful

contracts by strangers thereto does not of itself give the injured person a remedy by injunction.

4. ID.; WHEN INJUNCTION ISSUES.Courts usually grant an injunction where the profits of the injured
person are derived from his contractual relations with a large and indefinite number of individuals, thus
reducing him to the necessity of proving in an action against the tort feasor that the latter is responsible
in each case for the broken contract, or else obliging him to institute individual suits against each
contracting party, and so exposing him to a multiplicity of suits.

5. ID.; ID.; FACTS OF THIS CASE.The defendants induced the owner of a cinematograph film to
break his contract of lease with a theater owner and lease the film to them, with the avowed purpose of
exhibiting it in another theater in the same city. As the profits of the lessee depended upon the patronage
of the public and hence the task of estimating his damages with accuracy would be quite difficult if not
impossible: Held, That injunction against further interference with the contract was properly issued.

6. APPEAL; REVIEW OF EVIDENCE.In order that this court may review the evidence on appeal, it
is necessary that all the evidence be brought up. This is the duty of the appellant. and upon his failure
to perform it, we decline to review the evidence, but rely entirely upon the pleadings and findings of fact
of the trial court and examine only assigned errors of law. This rule is subject to some exceptions, but
the present case is not within any of them.

7. EVIDENCE; JUDICIAL NOTICE; CINEMATOGRAPH.Judicial notice taken of the general character

of a cinematograph or motionpicture theater.

APPEAL from a judgment of the Court of First Instance of Iloilo. Powell, J.

The facts are stated in the opinion of the court.

C. Lozano for appellants.

Bruce, Lawrence, Ross & Block for appellee.

TRENT, J.:

An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of the
Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for damages against
the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction,

Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of May,
1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain cinematograph film called
"Zigomar" in compliance with an alleged contract which had been entered into between these two
parties, and at the same time an ex parte preliminary injunction was issued restraining the appellants
from receiving and exhibiting in their theater the Zigomar until further orders of the court. On the 26th
of that month the appellants appeared and moved the court to dissolve the preliminary injunction. This
motion was denied, after hearing, on the same day. On June 5 the appellants filed their answer, wherein
they denied all of the allegations in the complaint and by way of a cross-complaint asked for damages
in the sum of P800 for the wrongful issuance of the preliminary injunction. When the case was called
for trial on August 6, the appellee moved for the dismissal of the complaint "for the reason that there is
no further necessity for the maintenance of the injunction." The motion was granted without objection
as to Cuddy and denied as to the appellants in order to give them an oppor.tunity to prove that the
injunctions were wrongfully issued and the amount of damages suffered by reason thereof.

The pertinent part of the trial court's findings of fact in this case is as follows:

"It appears in this case that Cuddy was the owner of the film Zigomar and that on the 24th of April he
rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the 26th of May, the week
beginning that day. A few days prior to this Cuddy sent the money back to Gilchrist, which he had
forwarded to him in Manila, saying that he had made other arrangements with his film. The other
arrangements was the rental to these defendants Espejo and his partner for P350 for the week and the
injunction was asked by Gilchrist against these parties from showing it for the week beginning the 26th
of May.

"It appears from the testimony in this case, conclusively, that Cuddy willfuly violated his contract, he
being the owner of the picture, with Gilchrist because the defendants had offered him more for the same
period. Mr. Espejo at the trial on the permanent injunction on the 26th of May admitted that he knew
that Cuddy was the owner of the film. He was trying to get it through his agents Pathe Brothers in
Manila. He is the agent of the same concern in Iloilo. There is in evidence in this case on the trial today
as well as on the 28th of May, letters showing that the Pathe Brothers in Manila advised this man on
two different occasions not to contend for this film Zigomar because the rental price was prohibitive and
assured him also that he could not' get the film for about six weeks. The last of these letters was written
on the 26th of April, which showed conclusively that he knew they had to get this film from Cuddy and
from this letter that the agent in Manila could not get it, but he made Cuddy an offer himself and Cuddy
accepted it because he was paying about three times as much as he had contracted with Gilchrist for.
Therefore, in the opinion of this court, the defendants failed signally to show the injunction against the
defendants was wrongfully procured."

The appellants duly excepted to the order of the court denying their motion for new trial on the ground
that the evidence was insufficient to justify the decision rendered. There is lacking f rom the record
before us the deposition of the defendant Cuddy, which apparently throws light upon a contract entered
into between him and the plaintiff Gilchrist. The contents of this deposition are discussed at length in
the brief of the appellants and an endeavor is made to show that no such contract was entered into.
The trial court, which had this deposition before it, f ound that there was a contract between Cuddy and
Gilchrist. Not having the deposition in question before- us, it is imposible to say how strongly it militates
against this finding of fact. By a series of decisions we have construed sections 143 and 497 (2) of the
Code of Civil Procedure to require the production of all the evidence in this court. This is the duty of the
appellant and, upon his failure to perform it, we decline to proceed with. a review of the evidence. In
such cases we rely entirely upon the pleadings and the findings of fact of the trial court and examine
only such assigned errors as raise- questions of law. (Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324; Valle
vs. Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs. Smith, Bell & Co.,
15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen & Co. vs. Matson, Lord & Belser Co., 19
Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep., 161; Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs.
Chaves, 20 Phil. Rep., 147; Mans vs. Garry, 20 Phil. Rep., 134.) It is true that some of the more recent
of these cases make exceptions to the general rule. Thus, in Olsen & Co. vs. Matson, Lord & Belser
Co. (19 Phil. Rep., 102), that portion of the evidence before us tended to show that grave injustice might
result from a strict reliance upon the findings of fact contained in the judgment appealed from. We,
therefore, gave the appellant an opportunity to explain the omission. But we required that such
explanation must show a satisfactory reason for the omission, and that the missing portion of the
evidence must be submitted within sixty days or cause shown f or f ailing to do so. The other cases
making exceptions to the rule are based upon peculiar circumstances which will seldom arise in practice
and need not here be set forth, for the reason that they are wholly inapplicable to the present case. The
appellants would be entitled to indulgence only under the doctrine of the Olsen case. But f rom that
portion of the record before us, we are not inclined to believe that the missing deposition would be
sufficient to justify us in reversing the findings of fact of the trial court that the contract in question had
been made. There is in the record not only the positive and detailed testimony of Gilchrist to this effect,
but there is also a letter of apology f rom Cuddy to Gilchrist in which the former enters into a lengthy
explanation of his reasons for leasing the film to another party. The latter could only have been called
forth by a broken contract with Gilchrist to lease the film to him. We, therefore, fail to find any reason
for overlooking the omission of the defendants to bring up the missing portion of the evidence and,
adhering to the general rule above referred to, proceed to examine the questions of law raised by the
appellants.

From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the owner of the
"Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance with the
terms of the contract entered into between Cuddy and Gilchrist the former leased to the latter the
"Zigomar" for exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913; and that Cuddy
willfully violated his contract in order that he might accept the appellants' offer of P350 for the film for
the same period. Did the appellants know that they were inducing Cuddy to violate his contract with a
third party when they induced him to accept the P350? Espejo admitted that he knew that Cuddy was
the owner of the film. He received a letter from his agents in Manila dated April 26, assuring him that
he could not get the film for about six weeks. The arrangements between Cuddy and the appellants f
or the exhibition of the film by the latter on the 26th of May were perfected after April 26, so that the six
weeks would include and extend beyond May 26. The appellants must necessarily have known at the
time they made their offer to Cuddy that the latter had booked or contracted the film for six weeks from
April 26. Therefore, the inevitable conclusion is that the appellants knowingly induced Cuddy to violate
his contract with another person. But there is no specific finding that the appellants knew the identity of
the other party, So we must assume that they did not know that Gilchrist was the person who had
contracted for the film.

The appellants take the position that if the preliminary injunction had not been issued against them they
could have exhibited the film in their theater for a number of days beginning May 26, and could have
also subleased it to other theater owners in the nearby towns and, by so doing, could have cleared,
during the life of their contract with Cuddy, the amount claimed as damages. Taking this view of the
case, it will be unnecessary for us to inquire whether the mandatory injunction against Cuddy was
properly issued or not. No question is raised with reference to the issuance of that injunction. The right
on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be fully
recognized and admitted by all. That Cuddy was liable in an action for damages for the breach of that
contract, there can be no doubt. Were the appellants likewise liable for interfering with the contract
between Gilchrist and Cuddy, they not knowing at the time the identity of one of the contracting parties?
The appellants claim that they had a right to do what they did. The ground upon which the appellants
base this contention is, that there was no valid and binding contract between Cuddy and Gilchrist and
that, therefore, they had a right to compete with Gilchrist for the lease of the film, the right to compete
being a justification for their acts. If there had been no contract between Cuddy and Gilchrist this
defense would be tenable, but the mere right to compete could not justify the appellants in intentionally
inducing Cuddy to take away the appellee's contractual rights.

Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy the fruits
and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against
competition; but he has a right to be free from malicious and wanton interference, disturbance or
annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others,
it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with."
In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: "I think
the plaintiff has a cause of action against the defendants, unless the court is satisfied that, when they
interfered with the contractual rights of plaintiff, the defendants had a sufficient justification for their interf
erence; * *' * for it is not a justification that 'they acted bona fide in the best interests of the society of
masons,' i. e., in their own interests. Nor is it enough that 'they were not actuated by improper motives.'
I think their sufficient justification for interference with plaintiff's right must be an equal or superior right
in themselves, and that no one can legally excuse himself to a man, of whose contract he has procured
the breach, on the ground that he acted on a wrong understanding of his own rights, or without malice,
or bona fide, or in the best interests of himself, or even that he acted as an altruist, seeking only the
good of another and careless of his own advantage." (Quoted with approval in Beekman vs. Marsters,
195 Mass., 205.)

It is said that the ground on which the liability of a third party for interfering with a contract between
others rests, is that the interference was malicious. The contrary view, however, is taken by the
Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U. S., 1). The only motive
for interference by the third party in that case was the desire to make a profit to the injury of one of the
parties of the contract. There was no malice in the case beyond the desire to make an unlawf ul gain to
the detriment of one of the contracting parties.

In the case at bar the only motive f or the interf erence with the Gilchrist-Cuddy contract on the part of
the appellants was a desire to make a profit by exhibiting the film in their theater. There was no malice
beyond this desire; but this fact does not relieve them of the legal liability for interfering with that contract
and causing its breach. It is, therefore, clear, under the above authorities, that they were liable to
Gilchrist for the damages caused by their acts, unless they are relieved from such liability by reason of
the fact that they did not know at the time the identity of the original lessee (Gilchrist) of the film.

The liability of the appellants arises from unlawful acts and not from contractual obligations, as they
were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the action
of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of the Civil
Code. Article 1902 of that code provides that a person who, by act or omission. causes damage to
another when there is fault or negligence, shall be obliged to repair the damage so done. There is
nothing in this article which requires as a condition precedent to the liability of a tortfeasor that he must
know the identity of a person to whom he causes damage. In fact, the chapter wherein this article is
found clearly shows that no such knowledge is required in order that the injured party may recover for
the damage suffered.

But the fact that the appellants' interference with the Gilchrist contract was actionable did not of itself
entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must be justified
under section 164 of the Code of Civil Procedure, which specifies the circumstances under which an
injunction may issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil.
Rep., 273):

"An injunction is a 'special remedy' adopted in that code (Act No. 190) from American practice, and
originally borrowed from English legal procedure, which was there issued by the authority and under
the seal of a court of equity, and limited, as in other cases where equitable relief is sought, to cases
where there is no 'plain, adequate, and complete remedy at law,' which 'will not be granted while the
rights between the parties are undetermined, except in extraordinary cases where material and
irreparable injury will be done,' which cannot be compensated in damages, and where there will be no
adequate remedy, and which will not, as a rule, be granted, to take property out of the possession of
one party and put it into that of another whose title has not been established by law."

We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil. Rep.,
444), and we take this occasion of again affirming it, believing, as we do, that the indiscriminate use of
injuctions should be discouraged.

Does the f act that the appellants did not know at the time the identity of the original lessee of the film
militate against Gilchrist's right to a preliminary injunction, although the appellants incurred civil liability
for damages for such interference? In the examination of the adjudicated cases, where in injunctions
have been issued to restrain wrongful interference with contracts by strangers to such contracts, we
have been unable to find any case where this precise question was involved, as in all of those cases
which we have examined, the identity of both of the contracting parties was known to the tort-f easors.
We might say, however, that this fact does not seem to have been a controlling feature in those cases.
There is nothing in section 164 of the Code of Civil Procedure which indicates, even remotely, that
before an injunction may issue restraining the wrongful interference with contracts by strangers, the
strangers must know the identity of both parties. It would seem that this is not essential, as injunctions
frequently issue against municipal corporations, public service corporations, public officers, and others
to restrain the commission of acts which would tend to injuriously affect the rights of persons whose
identity the respondents could not possibly have known beforehand. This court has held that in a proper
case injunction will issue at the instance of a private citizen to restrain ultra vires acts of public officials.
(Severino vs. Governor-General, 16 Phil. Rep., 366.) So we proceed to the determination of the main
question of whether or not the preliminary injunction ought to have been issued in this case.

As a rule, injunctions are denied to those who have an adequate remedy at law. Where the choice is
between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will
not permit the use of the latter. (In re Debs, 158 U. S., 564.) If the injury is irreparable, the ordinary
process is inadequate. In Wahle vs. Reinbach (76 III., 322), the supreme court of Illinois approved a
definition of the term "irreparable injury" in the following language: "By 'irreparable injury' is not meant
such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor
necessarily great injury or great damage, but that species of injury, whether great or small, that ought
not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the one
hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable
redress can be had therefor in a court of law." (Quoted with approval in Nashville R. R. Co. vs.
McConnell, 82 Fed., 65.)

The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy
and Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it is
conceded the appellants were at liberty to compete by all fair and legitimate means. As remarked in the
case of the "ticket scalpers" (82 Fed., 65), the novelty of the facts does not deter the application of
equitable principles. This court takes judicial notice of the general character of a cinematograph or
motion-picture theater. It is a quite modern form of the play house, wherein, by means of an apparatus
known as a cinematograph or kinematograph, a series of views- representing closely successive
phases of a moving object, are exhibited in rapid sequence, giving a picture which, owing to the
persistence of vision, appears to the observer to be in continuous motion. (The Encyclopedia Britannica,
vol. 6, p. 374.) The subjects which have lent themselves to the art of the photographer in this manner
have increased enormously in recent years, as well as have the places where such exhibitions are
given. The attendance, and, consequently, the receipts, at one of these cinematograph or motion-
picture theaters depends in no small degree upon the excellence of the photographs, and it is quite
common for the proprietor of the theater to secure an especially attractive exhibit as his "feature film"
and advertise it as such in order to attract the public. This feature film is depended upon to secure a
larger attendance than if its place on the program were filled by other films of mediocre quality. It is
evident that the failure to exhibit the f eature film will reduce the receipts of the theater,

Hence, Gilchrist was facing the Immediate prospect of diminished profits by reason of the fact that the
appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. It
is quite apparent that to estimate with any degree of accuracy the damages which Gilchrist would likely
suffer from such an event would be quite difficult if not impossible. If he allowed the appellants to exhibit
the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to witness the
production would have been already satisfied. In this extremity, the appellee applied for and was
granted, as we have indicated, a mandatory injunction against Cuddy requiring him to deliver the
Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining them from exhibiting
that film in their theater during the week he (Gilchrist) had a right to exhibit it, These Injunctions saved
the plaintiff harmless from damages due to the unwarranted interference of the defendants, as well as
the difficult task which would have been set for the court of estimating them in case the appellants had
been allowed to carry out their illegal plans, As to whether or not the mandatory injunction should have
been issued, we are not, as we have said, called upon to determine. So far as the preliminary injunction
issued against the appellants is concerned, which prohibited them f rom exhibiting the Zigomar during
the week which Gilchrist desired to exhibit it, we are of the opinion that the circumstances justified the
issuance of that injunction in the discretion of the court.
We are not lacking in authority to support our conclusion that the court was justified in issuing the
preliminary injunction against the appellants, Upon the precise question as to whether injunction will
issue to restrain wrongful interference with contracts by strangers to such contracts, it may be said that
courts in the United States have usually granted such relief where the profits of the injured person are
derived from his contractual relations with a large and indefinite number of individuals, thus reducing
him to the necessity of proving in an action against the tort-feasor that the latter was responsible in each
case for the broken contract, or else obliging him to institute individual suits against each contracting
party and so exposing him to a multiplicity of suits. Sperry & Hutchinson Co. vs. Mechanics' Clothing
Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co. (161 Fed., 219); Sperry &
Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases wherein the respondents were inducing
retail merchants to break their contracts with the company for the sale of the latters' trading stamps.
Injunction issued in each case restraining the respondents from interfering with such contracts.

In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things, said:
"One who wrongfully interferes in a contract between others, and, f or the purpose of gain to himself
induces one of the parties to break it, is liable to the party in jured thereby; and his continued interference
may be ground for an injunction where the injuries resulting will be irreparable."

In Hamby & Toomer vs. Georgia Iron & Coal. Co. (127 Ga., 792), it appears that the respondents were
interfering in a contract for prison labor, and the result would be, if they were successful, the shutting
down of the petitioner's plant for an indefinite time. The court held that although there was no contention
that the respondents were insolvent, the trial court did not abuse its discretion in granting a preliminary
injunction against the respondents.

In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel
Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract whereby
he was made their exclusive agent for the New England States to solicit patronage for the hotel. The
defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him to
act also as their agent in the New England States. The court held that an action for damages would not
have afforded the plaintiff adequate relief, and that an injunction was proper compelling the defendant
to desist f rom further interference with the plaintiff's exclusive contract with the hotel company.

In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed;, 553), the
court, while admitting that there are some authorities to the contrary, held that the current authority in
the United States and England is that:

"The violation of a legal right committed knowingly is a cause of action, and that it is a violation of a
legal right to interfere with contractual relations recognized by law, if there be no sufficient justification
for the interference. (Quinn vs. Leatham, supra, 510; Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14
Sup. Ct, 240; 38 L. Ed., 55; Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y.,
82; 23 Am. Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U S., 205; 28 Sup. Ct, 91; 52 L. Ed., 171;
Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.] , 201; 122 Am. St. Rep., 232;
South Wales Miners' Fed. vs. Glamorgan Coal Co., Appeal Cases, 1905, p. 239.)"

See also Nims on Unfair Business Competition, pp. 351371.

In 3 Elliott on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a wrongful
interference with contracts by strangers to such contracts where the legal remedy is insufficient and the
resulting injury is irreparable. And where there is a malicious interf erence with lawful and valid contracts
a permanent injunction will ordinarily issue without proof of express malice. So, an injunction may be
issued where the complainant and the defendant were business rivals and the defendant had induced
the customers of the complainant to break their contracts with him by agreeing to indemnify them
against liability for damages. So, an employee who breaks his contract of employment may be enjoined
from inducing other employees to break their contracts and enter into new contracts with a new
employer of the servant who first broke his contract. But the remedy by injunction cannot be used to
restrain a legitimate competition, though such competition would involve the violation of a contract. Nor
will equity ordinarily enjoin employees who have quit the service of their employer from attempting by
proper argument to persuade others from taking their places so long as they do not resort to f orce or
intimidation or obstruct the public thoroughfares."
Beekman vs. Marsters, supra, is practically on all fours with the case at bar in that there was only one
contract in question and the profits of the injured person depended upon the patronage of the public.
Hamby & Toomer vs. Georgia Iron & Coal Co., supra, is also similar to the case at bar in that there was
only one contract, the interference of which was stopped by injunction.

For the foregoing reasons the judgment is affirmed, with costs, against the appellants.

Arellano, C. J., Torres, Carson, and Araullo, JJ., concur.

MORELAND, J., concurring:

The court seems to be of the opinion that the action is one for a permanent injunction; whereas, under
my view of the case, it is one for specific performance. The facts are simple. C. S. Gilchrist, the plaintiff,
proprietor of the Eagle Theater of Iloilo, contracted with E. A. Cuddy, one of the def endants, of Manila,
f or a film entitled "Zigomar or Eelskin, 3d series," to be exhibited in his theater in Iloilo during the week
beginning May 26, 1913. Later, the defendants Espejo and Zaldarriaga, who were also operating a
theater in Iloilo, representing Pathe Freres, also obtained from Cuddy a contract for the exhibition of the
film aforesaid in their theater in Iloilo during the same week.

The plaintiff commenced this action against Cuddy and the defendants Espejo and Zaldarriaga for the
specific performance of the contract with Cuddy. The complaint prays "that the court, by a mandatory
injunction, order Cuddy to deliver, on the 24th of May, 1913, in accordance with the af oresaid contract,
the said film 'Zigomar, 3d series, or Eelskin,' to the plaintiff Gilchrist, in accordance with the terms of the
agreement, so that plaintiff can exhibit the same during the last week beginning May 26, 1913, in the
Eagle Theater, in Iloilo; that the court issue a preliminary injunction against the defendants Espejo and
Zaldarriaga prohibiting them from receiving, exhibiting, or using said film in Iloilo during the last week
of May, 1913, or at any other time prior to the delivery to the plaintiff; that, on the trial, said injunction
be made perpetual and that Cuddy be ordered and commanded to specifically perform his contract with
the plaintiff."

On the filing of the complaint the plaintiff made an application for a mandatory injunction compelling the
defendant Cuddy to deliver to plaintiff the film in question by mailing it to him f rom Manila on the 24th
of May so that it would reach Iloilo f or exhibition on the 26th; and f or a preliminary restraining order
against the other two def endants prohibiting them from receiving or exhibiting the said film prior to its
exhibition by plaintiff.

The court, on this application, entered an order which provided that Cuddy should "not send said film
'Zigomar, 3d series, or Eelskin,' to the defendants Espejo and Zaldarriaga and that he should send it to
the plaintiff, Gilchrist, on the 24th day of May, 1913, in the mail for IIoilo." This order was duly served
on the defendants, including Cuddy, in whose possession the film still was, and, in compliance therewith
Cuddy mailed the film to the plaintiff at Iloilo on the 24th of May. The latter duly received it and exhibited
it without molestation during the week beginning the 26th of May in accordance with the contract which
he claimed to have made with Cuddy.

The defendants Espejo and Zaldarriaga having received due notice of the issuance of the mandatory
injunction and restraining order of the 22d of May, appeared before the court on the 26th of May and
moved that the court vacate so much of the order as prohibited them from receiving and exhibiting the
film. In other words, while the order of the 22d of May was composed of two parts, one a mandatory
order for immediate specific performance of the plaintiff's contract with the defendant Cuddy, and the
other a preliminary restraining order directed to Espejo and Zaldarriaga prohibiting them from receiving
and exhibiting the film during the week beginning the 26th of May, their motion of the 26th of May
referred exclusively to the injunction against them and touched in no way that portion of the order which
required the immediate performance by Cuddy of his contract with Gilchrist. Indeed, the defendants
Espejo and Zaldarriaga did not even except to the order requiring Cuddy to specifically perform his
agreement with the plaintiff nor did they in any way make an objection to or show their disapproval of
it. It was not excepted to or appealed from and is not before this court for review.
The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from receiving the film
was denied on the 26th of May. After the termination of the week beginning May 26, and after the
exhibition of the film by the plaintiff in accordance with the alleged contract with Cuddy, the plaintiff
came into court and moved that, in view of the f act that he had already obtained all that he desired to
obtain or could obtain by his action, namely, the exhibition of the film in question during the week
beginning May 26th, there was no reason for continuing it and moved for its dismissal. To this motion
Cuddy consented and the action was dismissed as to him. But the other defendants objected to the
dismissal of the action on the ground that they desired to present to the court evidence showing the
damages which they had suffered by reason of the issuance of the preliminary injunction prohibiting
them from receiving and exhibiting the film in question during the week beginning May 26. The court
sustained their objection and declined to dismiss the action as to them, and, on the 8th of August, heard
the evidence as to damages. He denied defendants the relief asked for and dismissed their claim for
damages. They thereupon took an appeal from that order, and that is the appeal which we have now
before us and which is the subject of the opinion of the court with which I am concurring.

We thus have this strange condition:

An action for specific performance of a contract to deliver a film for exhibition during a given time. A
preliminary mandatory injunction ordering the delivery of the film in accordance with the contract. The
delivery of the film in accordance with the preliminary mandatory injunction. The actual exhibition of the
film during the time specified in the contract. No objection to the issuance of the mandatory injunction,
to the delivery of the film, or to the exhibition thereof. The dismissal of the action against the party with
whom the plaintiff made the contract on the ground that the plaintiff had obtained full relief by means of
the so-called preliminary remedy by virtue of which the contract was actually specifically performed
before the action was tried. No objection or exception to the order requiring the specific performance of
the contract.

Under such conditions it is possible for the defendants Espejo and Zaldarriaga to secure damages for
the wrongful issuance of the preliminary injunction directed against them even though it be admitted
that it was erroneously issued and that there was no ground therefor whatever? It seems to me that it
is not. - At the time this action was begun the film, as we have seen, was in the possession of Cuddy
and, while in his possession, he complied with a command of the court to deliver it to the plaintiff. In
pursuance of that command he delivered it to plaintiff, who used it during the time specified in his
contract with Cuddy; or, in other words, he made such use of it as he desired and then returned it to
Cuddy. This order and the delivery of the film under it were made in an action in which the defendants
Espejo and Zaldarriaga were parties, without objection, on their part and without objection or exception
to the order. The film having been delivered to defendants' competitor, the plaintiff, under a decree of
the court to which they made no objection and took no exception and from which they have not
appealed, what injury can they show by reason of the injunction restraining them from making use of
the film? If they themselves, by their conduct, permitted the plaintiff to make it impossible for them to
gain possession of the film and to use it, then the preliminary injunction produced no injury for the
reason that no harm can result from restraining a party from doing a thing which, without such restraint,
it would be impossible for him to do. Moreover, the order for the delivery of the film to plaintiff was a
complete determination of the rights of the parties to the film which, while the court had no right to make,
nevertheless, was valid and binding on all the parties, none of them objecting or taking exception
thereto. Being a complete determination of the rights of the parties to the action, it should have been
the first point attacked by the defendants, as it foreclosed them completely and, if left in force, eliminated
every def ense. This order was made on May 22d and was not excepted to or appealed from. On the
8th of August following the defendants appealed from the order dismissing their claim to damages but
the order for the delivery of the film to plaintiff was final at that time and is now conclusive on this court.

Section 143 of the Code of Civil Procedure, providing for appeals by bill of exceptions, provides that
"upon the rendition of final judgment disposing of the action, either party shall have the right to perfect
a bill of exceptions for a review by the Supreme Court of all rulings, orders, and judgments made in the
action, to which the party has duly excepted at the time of making such ruling, order, or judgment."
While the order for the delivery of the film to plaintiff was in one sense a preliminary order, it was in
reality a final determination of the rights of the parties to the film, as it ordered the delivery thereof to
plaintiff for his use. If it had been duly excepted to, its validity could have been attacked in an appeal
from the final judgment thereafter entered in the action. Not having been excepted to as required by the
section just referred to, it became final and conclusive on all the parties to the action, and when, on the
8th day of August f ollowing, the defendants presented their claim for damages based on the alleged
wrongful issuance of a temporary restraining order, the whole foundation of their claim had disappeared
by virtue of the fact that the execution of the order of the 22d of May had left nothing for them to litigate.
The trial court, on the 8th of August, would have been fully justified in ref using to hear the def endants
on their claim f or damages. Their right thereto had been adjudicated on the 22d of May and that
adjudication had been duly put into execution without protest, objection or exception, and was,
therefore, final and conclusive on them on the 8th of August.

I have presented this concurring opinion in an attempt to prevent confusion, if any, which might arise
from the theory on which the court decides this case. It seems to me impossible that the action can be
one for a permanent injunction. The very nature of the case demonstrates that a permanent injunction
is out of the question. The only thing that plaintiff desired was to be permitted to use the film f or the
week beginning the 26th of May. With the termination of that week his rights expired. After that time
Cuddy was perfectly free to turn the film over to the defendants Espejo and Zaldarriaga for exhibition
at any time. An injunction' permanently prohibiting the defendants from exhibiting the film in Iloilo
would.have been unjustifiable, as it was something that plaintiff did not ask for and did not want; and
would have been an invasion of the rights of Cuddy as, after the termination of the week beginning May
26, he was at liberty, under his contract with plaintiff, to rent the film to the defendants Espejo and
Zaldarriaga and permit its exhibition in Iloilo at any time. The plaintiff never asked to have defendants
permanently enjoined from exhibiting the film in Iloilo and no party to the action has suggested such a
thing.

The action is one-for specific performance purely; and while the court granted plaintiff rights which
should have been granted only after a trial of the action, nevertheless, such rights having been granted
before trial and none of the defendants having made objection or taken exception thereto, and the order
granting them having become final, such order became a final determination of the action, by reason of
the nature of the action itself, the rights of the parties became thereby finally determined and the
defendants Espejo and Zaldarriaga, being parties to the action, were precluded from further litigation
relative to the subject matter of the controversy.

No damages are claimed by reason of the issuance of the mandatory injunction under which the film
was delivered to plaintiff and used by him during the week beginning the 26th of May. While the opinion
says in the first paragraph that the action is "for damages against the plaintiff for the alleged wrongful
issuance of a mandatory and preliminary injunction," the opinion also says in a later portion that "it will
be unnecessary for us to inquire whether the mandatory injunction against Cuddy was properly issued
or not. No question is raised with reference to the issuance of that injunction;" and still later it is also
stated that "as to whether or not the mandatory injunction should have been issued, we are not, as we
have said, called upon to determine." I repeat that no objection was made by the defendants to the
issuance of the mandatory injunction, no exception was taken to the order on which it was issued and
no appeal has been taken therefrom. That order is now final and conclusive and was at the time this
appeal was taken. That being so, the rights of the defendants were foreclosed thereby. The defendants
Espejo and Zaldarriaga cannot now be heard to say that they were damaged by the issuance of the
preliminary restraining injunction issued on the same day as the mandatory injunction.

From what has been said it is clear, it seems to me, that the question of a breach of contract by
inducement, which is substantially the only question discussed and decided, is not in the case in reality
and, in my judgment, should not be touched upon. Courts will not proceed with a litigation and discuss
and decide question which might possibly be involved in the case when it clearly appears that there
remains nothing about which to litigate, the whole subject matter of the original action having been
settled and the parties having no real controversy to present, At the time the defendants Espejo and
Zaldarriaga offered their claim for damages arising out of the wrongful issuance of the restraining order,
there was nothing between them and the plaintiff to litigate, the rightfulness of plaintiff's demand having
already been finally adjudicated and determined in the same action.

Judgment affirmed.

o0o
E. M. WRIGHT, plaintiff and appellant, vs. MANILA ELECTRIC R. R. & LIGHT Co., defendant and
appellant.

No. 7760. October 1, 1914

1. APPEAL; FINDINGS; IXJURY DUE TO INTOXICATION.Where the plaintiff drove home in the
nighttime in a calesa, a two-wheeled vehicle, and, in crossing the tracks of a street-car company, the
rails and a part of the ties of which were above the surface of the ground, the horse stumbled, leaped
forward and fell, causing the vehicle to strike one of the rails with such force as to stop it suddenly and
to break one of the wheels, thereby causing the plaintiff to pitch forward from the vehicle, striking upon
the tracks and to injure himself severely, the plaintiff being at the time somewhat intoxicated but able to
handle the horse and vehicle with ordinary care and prudence, it is error for the court to find that, if the
plaintiff had not been intoxicated, he would not have been injured, as the conclusion that a sober man
would not have fallen from the vehicle under the same circumstanees is founded on speculation and
guesswork. If any conclusion at all can be legitimately drawn from the facts, it is that the sudden falling
of the horse, resulting in the quick and decided lowering of the thills, thereby giving the body of the
vehicle a sharp forward inclination, together with the sudden stop, would ordinarily be sufficient to throw
a sober man from the vehicle and cause the injuries which resulted.

2. STREET RAILROADS; DEFECTS IN TRACKS; NEGLIGEXCE.A street-car company which

maintains its tracks in the public highway, at a point where they are crossed by travelers, in such
condition that the rails and a considerable portion of the ties are above the level of the street, is negligent
and is responsible to a person who, having to pass over said tracks at right angles with a vehicle in the
nighttime, is injured by reason of the condition of the tracks, he using ordinary care and prudence in
making the crossing.

3. INTOXICATION is NOT NEGLIGENCE.Mere intoxication is not negligence, nor does the mere fact
of intoxication establish a want of ordinary care. If a person's conduct is characterized by a propsr
degree of care and prudence, it is immaterial whether he is drunk or sober.

APPEAL from a judgment of the Court of First Instance of Manila. Del Rosario, J.

The facts are stated in the opinion of the court.

W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.

Bruce, Lawrence, Ross & Block for defendant.

MORELAND, J.:

This is an action brought to recover damages for injuries sustained in an accident which occurred in
Caloocan on the night of August 8, 1909.

The defendant is a corporation engaged in operating an electric street railway in the city of Manila and
its suburbs, including the municipality of Caloocan. The plaintiff 's residence in Caloocan fronts on the
street along which defendant's tracks run, so that to enter his premises from the street plaintiff is obliged
to cross defendant's tracks. On the night mentioned plaintiff drove home in a calesa and in crossing the
tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the vehicle to strike
one of the rails with great force. The fall of the horse and the collision of the vehicle with the rails,
resulting in a sudden stop, threw plaintiff from the vehicle and caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the
rails were above-ground, but that the ties upon which the rails rested projected from one-third to one-
half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or more above
the level of the street.
It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended
that the plaintiff was also negligent in that he was intoxicated to such an extent at the time of the accident
that he was unable to take care of himself properly and that such intoxication was the primary cause of
the accident.

The trial court held that both parties were negligent, but that the plaintiff's negligence was not as great
as defendant's and under the authority ot' the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359)
apportioned the damages and awarded plaintiff a judgment of 1*1,000.

The question before us is stated by the defendant thus: "Accepting the findings of the trial court that
both plaintiff and defendant were guilty of negligence, the only question to be considered is whether the
negligence of plaintiff contributed to the 'principal occurrence' 01- 'only to his own injury.' If the former,
he cannot recover; if the latter, the trial court was correct in apportioning the damages."

The questioii as atated by plaintiff is as follows: "The main question at issue is whether or not the plaintiff
was negligent, and, if so, to what extent. If the negligence of the plaintiff was the primary cause of the
accident then, of course, he cannot recover; if his negligence had nothing to do with the accident but
contributed to his injury, then the court was right in apportioning the damages, but if there was no
negligence on the part of the plaintiff, then he should be awarded damages adequate to the injury
sustained."

In support of the defendant's contention counsel says: "Defendant's negligence was its failure properly
to maintain the track; plaintiff's negligence was Ms intoxicittibn; the 'principal occurrerice' was plaintiff's
fall f rom his calesa. It seems clear that plaintiff's intoxication contributed to the fall; if he had been
sober, it can hardly be doubted that he would have crossed the track safely, as he had done a hundred
times befora."

While both parties appealed from the decision, the def endant on the ground that it was not liable and
the plaintiff on the ground that the damages were insufficient according to the evidence, and while the
plaintiff made a raotion for a new trial upon the statutory grounds and took proper exception to the denial
thereof, thus conferring upon this court jurisdiction to determine the questions of fact, nevertheless, not
all of the testimony taken on the trial, so far as can be gathered from the record, has been brought to
this court. There seem to have been two hearings, one on the 31st of August and the other on the 28th
of September. The evidence taken on the first hearing is here; that taken on the second is not. Not all
the evidence taken on the hearings being before the court, we must refuse, under our rules, to consider
even that evidence which is here; and, in the decision of this case, we are, therefore, relegated to the
facts stated in the opinion of the court and the pleadings filed.

A caref ul reading of the decision of the trial court leads us to the conclusion that there is nothing in the
opinion which sustains the conclusion of the court that the plaintiff was negligent with reference to the
accident which is the basis of this action. Mere intoxication is not negligence, nor does the mere faet of
intoxication establish a want of ordinary care. It is but a circumstance to be considered with. the other
evidence tending to prove negllgence, It is the general rule that It is immaterial whether a man is drunk
or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care
is required to be exerclsed by an intoxicated man for his own protection than'by a sober one. If one's
conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk
or sober. (Ward vs. Ghicago etc., R. R. Co., 85 Wis., 601; H. & T. C. R. Co. m. Reason, 61 Tex., 613;
Alger m Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex
R. R. 'Co., 115 Mas^., 239; Meyer vs. Pacific R. R. Co., 40 Mo., 151; Chicago & N. W. R. R. Co. vs.
Drake, 33 111. App., 114.)

If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its
oplnionupon which may be predicated the finding that the plaintiff did not use ordinary care and
prudence and that the intoxication contributed to the injury complained of? After showing clearly and
forcibly the negligence of the defendant in leaving its tracks in the condition in which they were on the
night of the injury, the court has the following to say, and it is all that can be found in its opinion, with
reference to the negligence of the plaintiff: "With respect to-the condition in which Mr. Wright was on
returning to his house on the night in question, the testimony of Doctor Kneedler, who was the physician
\vho attended him an hour after the accident, demonstrates that he was intoxicated. * * *
"If the defendant or its employees were negligent by reason of having left the rails and a part of the ties
uncovered in a street where there is a large amount of travel, the plaintiff was no less negligent, he not
having abstained from his custom of taking more vdne than he could carry without disturbing his
judgment and his self-control, he knowing that he had to drive a horse and wagon and to cross railroad
tracks which were to a certain extent dangerous by reason of the rails being elevated above the level
of the street.

"If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance
while in a drunken condition, he would certainly have avoided the damages which he received, although
the company, on its part, was negligent in maintaining its tracks in a bad condition for travel.

"Both parties, therefore, were negligent and both contributed to the damages resulting to the piaintiff,
although the plaintiff, in the judgment of the court, contributed in greater proportion to the damages than
did the defendant."

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion tfcat the
plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not
warranted by the facts as found. It is impossible to say that a sober man would not have fallen from the
vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails but a
portion of the ties themselves aboveground, stumbling by reason of the unsure footing and falling, the
vehicle crashing against the rails with such force as to break a wheel, this might be sufficient to throw
a person from the vehicle no matter what his condition; and to eonclude that, imder such circumstances,
a sober man would not have fallen while a drunken man did, is to draw a conclusion which enters the
realm of spectilation and guesswork.

It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question
presented by the appellant company with reference to the applicability of the case of Rakes vs. A. G. &
P. Co., above; and we do not find facts in the opinion of the court below which justify a larger verdiet
than the one found.

The judgment appealed from is affirmed, without special finding as to costs.

Arellano, C. J., Torres and Araullo, JJ., concur.

Johnson, J., dissents.

CARSON, J., dissenting:

I dissent. I thiuk, in the first place, that before pronouncing judgment the parties should have
an.opportimity, if they so desire, to eorrect the manifestly accidental omission from the record of a part
of the transcript of the record. It is very clear that when the case was submitted, and the briefs filed,
both parties were under the mistaken impression that all the evidence was in the record.

I think, furthermore, that if the case is to be decided on the findings of fact by the trial judge, these
findings sufficiently establish the negligence of the plaintiff.

The trial judge expressly found that

"If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance
while in a drunken condition, he would certainly have avoided the damages which he received, although
the company, on its part, was negligent in maintaining its tracks in a bad condition for travel."

This is a finding of factthe fact of negligenceand I know of no rule which requires the trial court to
set forth not only the ultimate facts found by it, but also all the evidentiary facts on which sueh
conclusions are based The finding is not in conflict with the other facts found by the trial judge, and
though it is not fully sustained thereby, we must assume, if we deeline to examine the record, that there
were evidentiary facts disclosed at the trial which were sufficient to sustain the finding of negligence.
"The statement of facts must contain only those facts which are essential to a clear understanding of
the issues presented and the faets involved." (Act No. 190, sec. 133.)

"The facts required to be found are the ultimate facts forming the issues presented by the pleadings,
and which constitute the foundation for a judgment, and not those that are merely evidentiary of them.
The court is not required to find merely evidentiary facts, or to set forth and explain the means or
processes by which he arrived at such findings. Neither evidence, argument, nor comment has any
legitimate place in findlngs of facts." (Conlan rs. Grace, 36 Minn., 276,282.)

Judgment affirmed.

o0o

MIGUEL SAMSON, plaintiff and appellee, vs. PAULINO DIONISIO and HONORATA FABIAN,
defendants and appellants.

No. 4543. October 29, 1908

1. LAW OF WATERS; PUBLIC DOMAIN.No private person has a right to usurp the possession of an
estero, a branch of a river, or a lake of public dominion and use, unless it is shown that the body of
water is entirely within his own property, otherwise he violates the law which expressly excepts such
waters from exclusive private use.

2. ID.; OBSTRUCTION OF FLOW OF PUBLIC WATERS.Any person who without due authority
constructs a bank or dike, stopping the flow or communication between a creek or a lake and a river,
thereby causing loss and damages to a third party who, like the rest of the residents, is entitled to the
use and enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and
damages to the injured party. (Art. 1902, Civil Code.)

APPEAL from a judgment of the Court of First Instance of Bulacan. (No. 411. June 28, 1906.)

The facts are stated in the opinion of the court.

S. Apacible, for appellants.

N. Crisostomo, for appellee.

TORRES, J.:

Miguel Samson, the owner and possessor, for more than twenty years, of a fish pond in Panasahan, a
barrio of Bambang, the location and area of which pond are described in his written complaint, states
that the spouses Paulino Dionisio and Honorata Fabian, less than a year ago, constructed a dam in
substitution of a former one, thereby closing the southern end of the Magos Creek which empties into
the Bocaue River. In consequence, during the rainy season, the water rose for lack of an outlet, and
the neighboring lands, including the plaintiffs fish pond, became flooded, and fish to the number of
about two thousand, valued at P100, escaped; that the new dike prevents the emptying of the estero
and effects considerable damage during the rainy season by raising the level of the water, for which
reason the value of his fish pond is reduced, its banks and supports weakened, and it is impossible to
keep it in good order. He further alleges that the said creek is a tributary of the Bocaue River and is of
public domain and for the common use of all the owners of the neighboring estates, among which latter
is the plaintiffs fish pond; therefore, he asked that judgment be entered in his favor, that the defendants
be ordered to reopen at their expense and for; public use the mouth of the Magos Creek emptying into
the Bocaue River, to pay P100 as indemnity for damages, and costs.

The defendants denied all the facts set out in the complaint, inasmuch as they had not closed any
branch of a river that was of public domain, but had closed a small creek owned by them and located
within land they had acquired by purchase; that the closing of the said creek caused no injury to the
other estates in the locality, it not being true that the neighbors were in the habit of traveling in banquillas
over the creek; that said creek had never been in public use; and that the fish pond of the plaintiff was
not injured by the dam constructed upon their own land. As a special defense, it was alleged that, to
the south of the fish pond described in the first paragraph of the complaint, there exists no branch of
the river that might be utilized for the neighboring fields and fish ponds; that all the owners of land in
the locality have access to the Bocaue River; and that the workmen and laborers of the rice fields pass
over the said river and avail themselves of its waters without the necessity of using the creek; they
therefore asked that the complaint be dismissed with costs.

By a subsequent writing, they prayed to be allowed to amend their answer, alleging that they denied
the existence of the Magos Creek and that they had closed the mouth of the branch of the Bocaue
River; that the defendants, in constructing mud banks for the purpose of retaining the waters within their
own lands, did not go beyond the boundary of their property in the sitio of Magos; that in the said sitio
no branch of the river exists, nor running water of any importance known by the name of the Magos
Creek or lake; therefore, they asked the dismissal of the complaint with the costs against the plaintiff.

Evidence was adduced by the plaintiff and his exhibits were made of record; the court below entered
judgment on the 28th of June, 1906, and ordered that the plaintiff recover from the defendants an
indemnity of P150, and costs; that the defendants, within sixty days of the receipt of a certified copy of
the decision, remove or cause to be removed the entire dam erected near the mouth of said creek at
the Bocaue River, prohibiting them forever from constructing any dam or barrier between the said creek
and the river, which should impede the free and natural course of the waters and the passage of fish
and bancas; and that, in case the defendants failed to comply with the order of removal or any injunction
contained therein, the plaintiff should immediately communicate such failure to the court below in order
that it might proceed in accordance with law and justice. The defendants excepted to this decision and
moved for a new trial, submitting an affidavit subscribed by Paulino Dionisio, regarding an accident that
happened to him on the day of the trial, but the judge below, in view of the proceedings, at the prayer
of the plaintiff, and for the reasons stated in his order, overruled the said motion with the costs against
the defendant.

As will be seen, the matter at issue is the question of the ownership of a creek or pond which receives
its waters from the Bocaue River. According to the defendants, the said creek is situated within their
own land, for which reason they believed they were entitled to construct dams at the entrance of the
creek; but the plaintiff states that it is public property, and in common use by the residents of that locality.

Article 339 of the Civil Code provides that:

Property of public ownership is:

1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges
constructed by the State, and banks, shores, roadsteads, and that of a similar character.

Article 344 of said code also prescribes that:

Property for public use in provinces and in towns comprises the provincial and town roads, the squares,
streets, fountains, and public waters, the promenades, and public works of general service supported
by the said towns or provinces.

Article 407 of said code provides:

The following are of public ownership:

1. Rivers and their natural beds.

* * * * * * *

4. Lakes and ponds formed by nature on public lands and their beds.
The provisions of the above articles are substantially in conformity with the Law of Waters of the 3d of
August, 1860, the only one extended to these Islands, which was published in the Gaceta de Manila of
the 24th of September, 1871. It should be noted that, in classifying such properties, the code only
mentions some of them by way of examples, as for instance, paragraph 1 of article 339 says and that
of a similar character. '

It is proven by the record, and furthermore admitted by the defendants, that twice in succession, at an
interval of a few months, they closed the southern end of the creek called Magos where it communicates
with the Bocaue River, and removed or destroyed the dam or mud bank which at one time was further
up the creek toward the east side of its mouth, substituting another dike of the same material further
out toward the river and in a line with its eastern bank; the fish pond of the defendants has been widened
in the direction of the river, as may be seen from the plans, Nos. 1 and 2, attached to the record.

This is not a question of the violation of the right of easement over the Magos Creek, nor does it appear
that any question in such sense has been raised in this litigation, notwithstanding the fact that in the
brief of the appellants an attempt is made to turn the matter into an action upon an easement of waters.

The claim formulated in the complaint is restricted to the usurpation by a private individual of a creek or
branch of a river of public ownership and utilized in common by the residents of the barrio of Bambang
and the town of Bocaue, and to the loss and damage caused to the plaintiff on account of the dike or
dam erected by the defendants, obstructing the flow of water between the Bocaue River and the said
creek.

In the present cause it has not been proved that the Magos Creek formed a part of the land and fish
pond of the defendants, and in spite of their denial that the said creek was located at the side of their
land and fish pond, the evidence furnished by the plaintiff clearly contradicts them and shows the
contrary, in an unquestionable manner, that is, that the Magos Creek existed in said locality and that it
was utilized by the public in general; that it was a passage for the public traveling in small craft to and
from the lands alongside the river; that fish passed in and out by it; and that through the said creek the
waters coming from the adjoining estates during the rainy season flowed into the river until it was closed
by the appellants.

Hence, upon the theory already proven, that the creek in question was of public ownership, and not the
property of the defendants, it is clear that the latter had no right whatever to construct the said dams,
closing its entrance into and communication with the Bocaue River; and, inasmuch as they did it without
any authority and to the loss and prejudice of the plaintiff, they are under obligation to indemnify the
latter for the reasons alleged by him in his complaint, in accordance with the provisions of article 1902
of the Civil Code.

In view of the foregoing, and for the reasons stated in the judgment appealed from, it is our opinion that
the said judgment should be and is hereby affirmed, with the costs against the appellants; provided,
however, that the indemnity to be paid to the plaintiff shall be but P100, as demanded by him in his
complaint. So ordered.

Arellano., C.J., Mapa,, Carson, Willard, and Tracey, JJ., concur.

Judgment affirmed; damages reduced.

o0o

Uy Piaoco, plaintiff and appellee, vs. Sergio OSMEA, defendant and appellant.

No. 3935. December 4, 1907

1.Attachment; Personal Property; Bill of Sale.When a bill of sale of merchandise and furniture has
not been impugned, and there being no proof showing that it was fictitious or simulated and made out
in order to defraud creditors, the legal representative of the owner of such goods, who lawfully
purchased them, had a perfect right to protest against an attachment levied upon the merchandise at
the request of a creditor, and to ask the sheriff to remove it.

2.Id.; Id.; Id.Sections 442 and 451 of the Code of Civil Procedure do not require the production of the
bill of sale or deed of conveyance to prove the acquisition of the said goods; it is sufficient to attach an
affidavit to the written claim filed with the sheriff, as provided in said sections of the Code of Civil
Procedure in order to relieve the sheriff of his obligation to retain the attached goods.

3.Id.; Sheriff's Powers and Responsibility.The powers of the sheriff involve both discretional power
and personal responsibility if he fails to give due attention to a proper claim made in accordance with
the law, 'thereby causing injury to a third party, whose property is not subject to the liability of a debtor,
nor bound in favor of the creditor who applied for the attachment.

4.Id.; Third Parties' Claims.A third party who protests against the seizure of his property and files his
claim in accordance with the law is entitled to protection and to be restored to possession thereof and
should not be deprived of his property except by due process of law; in such action the validity and
efficiency of the title of the third party claiming should be determined by a court of competent jurisdiction.

5.Id.; Id.; Sheriff's Responsibility.Where in spite of a claim made in accordance with the law the sheriff
maintains the attachment and refuses to dissolve the same, he incurs the responsibility prescribed by
law, because he thereby commits an act of dispossession, or an actual attempt against the right of
ownership.

APPEAL from a judgment of the Court of First Instance of Cebu.

The facts are stated in the opinion of the court.

D. Franco, for appellant.

Levering & Wood, for appellee.

Torres, J.:

On the 7th of September, 1906, Uy Piaoco, a Chinaman, filed a complaint against the sheriff of the
Court of First Instance of Cebu, Sergio Osmea, alleging that on or about the 24th of August of said
year the judge of First Instance of said province issued a writ of preliminary attachment upon request
of Martina Rodriguez, against the property of the Chinaman Dy-Siongco and Uy Chiam-Liong, by reason
of a certain amount, due by the latter; and on the same date the sheriff, the defendant herein, levied an
attachment on the property belonging to Uy Piaoco, the plaintiff, which existed in a store situated in
Calle del Comercio, close to that of Norte America, in the capital of Cebu; during the whole of the time
mentioned in the complaint, the above-named Dy-Siongco and Uy Chiam-Liong had no interest
whatever as owners in the said store or its contents. The defendant, without authority from any court
and without any just reason therefor, closed the aforesaid store owned by the plaintiff, and placed under
custody the goods therein contained, and notwithstanding the fact that on the same date the plaintiff
filed a proper claim before the sheriff, the defendant herein, and asked the discharge of the goods that
had been attached, the said defendant, without any right whatever, refused to deliver the goods of the
plaintiff, keeping them under custody, the store remaining closed up to this date.

The property that was attached consisted of the said store and a large assortment of goods valued at
P15,000; it was further stated that prior to the attachment, goods to the value of more than P10,000
were sold every month with a net profit of Pl,500; and that in consequence of the attachment the plaintiff,
besides the value of the goods, suffered damages to the extent of Pl,500 per month; thaton the 13th of
August the said defendant, without any right whatever under the attachment order, attached about three
hundred bales of tobacco, the property of the plaintiff, stored in the town of Naga in said province, said
tobacco being valued at P1,700, and was not returned by the defendant in spite of the fact that a claim
was filed with him by the plaintiff, and the said Dy-Siongco and Uy Chiam-Liong never had any interest
as owners in the same. In consequence of the-said attachments the plaintiff suffered damages and his
credit in Cebu and in Manila was ruined, and he lost the value of the attached goods which amounted
to P15,000; he therefore asked that judgment be entered in his favor, and that the defendant be
sentenced to replace him in the possession of the store, and of the tobacco and goods, as stated above,
or otherwise to pay the value thereof amounting to P16,700, to pay the sum of P15,000 together with
P1,500 monthly from the 24th of August, 1906, until such time as the store and the goods are returned
to him, and to pay the costs of the proceedings, and finally he asked for any other remedy which the
court might consider proper.

The defendant in his answer alleged that the contents of paragraphs 1 and 2 of the complaint were true,
as also the contents of paragraph 2, which should be the third, regarding the issue of the writ of
attachment against the property of Uy Chiam-Liong and Dy-Siongco on the 24th of August; 1906, in the
civil case instituted against them by Martina Rodriguez; but that it was not true that the defendant had
attached property belonging to the plaintiff since what had been seized by him in compliance with the
order of the court belonged to the said Uy Chiam-Liong and Dy-Siongco, it being also true that the
defendant did not receive orders from any competent authority to attach any property of the plaintiff, Uy
Piaoco, and that lie did not attach any property and goods belonging to the latter; that it was true that
he refused to deliver to him the attached property because he did not believe that it belonged to him
but to the said Uy Chiam-Liong- and Dy- Siongco, and further, because the defendant had not been
informed in a conclusive manner of the right upon which the plaintiff intended to base his title of
ownership; that the contents of paragraph 5 of the complaint were true as to what the attached property
consisted of, but not as to the value thereof, which should only be determined from the inventory made
by the defendant, the allegations contained in paragraphs 6 and 8 of the complaint being denied; that
it was true that the defendant on the 13th of August, aforesaid, did attach 300 quintals of tobacco, but
that it was not true that said article was the property of the plaintiff because it was owned exclusively
by Uy Chiam- Liong and Dy-Siongco, and for said reason he refused and still refuses to deliver the 300
quintals of tobacco to the plaintiff, because the latter is not the owner of the same; he therefore asked
that the complaint be dismissed with costs against the plaintiff.

The evidence adduced by both parties having been received at the trial and some of the documents
exhibited attached to the records, the books remaining in the possession of the clerk of the court
because it was impossible to attach them to said records, it appears that on the 17th of January, 1906,
the Chinamen Dy-Siongco and Uy Chiam-Liong and Serafin Uy Piaoco appeared before Martin M.
Levering, a notary public in Cebu, and produced a document said to be a contract of sale, entered into
between the two first named and the third party, of all the goods, merchandise, and furniture owned by
Dy-Siongco and Uy Cliiam-Liong, who were indebted to Uy Piaoco in the sum of P39,752.25, made out
in favor of the creditor Uy Piaoco; the said goods, merchandise, and furniture were deposited at the
house of -Joaquin Castro y Cia. in Calle del Comercio, Cebu, and were valued at P22,000; that the said
debtors sold to their creditor a building lot situated in Calle Magallanes, Cebu, valued at P5,000, and to
this purpose the vendors executed the corresponding bill of sale before the said notary, which
document, signed on the same date, is considered as a part of the above-named agreement? that they
also sold four hundred shares of the Yuen Sheng Company of Manila, at the rate of P100 per share,
their par value, said shares appearing in the name of Uy Chiam-Liong, who paid P50 on account of
each share to said company, but Uy Chiam-Liong obtained from said company a loan of P10,000,
mortgaging the said four hundred shares as security for the loan, it having been agreed that the present
value of the shares was P9,000; that the total value of all the property conveyed to the creditor was
P752.25, and that in consideration of said transfer, the creditor, Uy Piaoco, waived the balance of the
indebtedness, and the contracting parties signed the document drawn out in duplicate at Cebu, on the
date aforementioned. Counsel for the defendant took exception to the filing of said bill of sale.

Counsel for the plaintiff offered in evidence, as Exhibit B, the inventory book, to which the lawyer of the
defendant took exception, on the ground that the same had not been proven to be such inventory book
because it was not signed by Uy Chiam-Liong and Dy-Siongco.

Pages 38 and 39 of the book, Exhibit D, and page 25 of Exhibit F were also offered as evidence of the
accounts between Uy Chiam-Liong, Dy-Siongco, and Uy Piaoco, which were likewise opposed and
excepted to by the defendant on the ground that the books referred to were not kept in accordance with
the provisions of the Code of Commerce.
A document marked as Exhibit J was also offered in evidence, some of its pages having been signed
by the court, and to this the defendant also excepted because it was not a legal book and had not been
identified.

In view of the above facts, judgment was rendered on the 23d of November, 190 , in favor of the plaintiff,
holding therein that the property attached belonged to him by virtue of a valid sale made to him by the
Chinamen Uy Chiam-Liong and Dy-Siongco, the court ordering that the bond of the plaintiff for the
retention of the property held by him be set aside, and that the said plaintiff recover judgment against
the defendant for the absolute possession of said property and for the sum of P1,750 as damages, with
interest thereon at the rate of 6 per cent per annum from the 24thday of November, 1906, and the costs
of the proceedings.

The above judgment was excepted to by the defendant, who gave notice of his intention to appeal to
the Supreme Court and also moved for a new trial on the ground that the findings were openly and
manifestly contrary to the weight of the evidence; the motion having been overruled, defendant
excepted thereto and upon approval of the bill of exceptions the same was submitted to this court.

The sale of the goods, merchandise, and furniture contained in the store established on the ground
floor of the house of Joaquin Castro y Cia. situated in Calle del Comer- cio, Cebu, made on the 17th of
January, 1906, by the owners thereof, Uy Chiam-Liong and Dy-Siongco in favor of Uy Piaoco, was
ratified before Martin M. Levering, a notary public, and authenticated by him; said deed, which was
executed by both parties, was not argued as false nor was any motion for the nullity of this sale made
during the proceedings on the ground that it was fraudulent, and that it had been made to the prejudice
of the creditors of the vendors.

In said deed the reasons which the vendors had for transferring the goods and furniture to Uy Piaoco,
the creditor and purchaser, are stated, inasmuch as it is affirmed therein that the vendors were indebted
to the purchaser in the sum of P39,752.25; that the total value of the property conveyed or assigned to
said creditor was P36,352.25, and that the creditor waived the balance of his credit; it has not been
proven in any manner that the debt was simulated, in order to be able to assume that the sale or
assignment made to the creditor was both fictitious and fraudulent. Article 1111 of the Civil Code reads:

"Creditors, after having attached the property of which the debtor may be in possession, in order to
collect all that is due them, may exercise all the rights and actions of the latter for the same purpose,
excepting those inherent in his person; they may also impugn the acts which the debtor may have
performed in fraud of their right."

In connection with fraudulent contracts, article 1297 of said code provides:

"Contracts by virtue of which the debtor alienates property, for a good consideration, are presumed to
be executed in fraud of creditors.

"Alienations for valuable considerations, made by persons against whom a condemnatory judgment,
in any instance, has been previously rendered, or a writ of seizure of property has been issued, shall
also be presumed fraudulent."

The supreme court of Spain in its decision of June 15, 1897, when applying the above last-cited article
to an appeal in cassation, establishes the following doctrine:

"The presumption that alienations are fraudulent, established by said article (1297) may, as all others,
be destroyed by proof to the contrary in accordance with article 1251, and any judgment which may
so establish it is not in violation of article 1248 nor of article 1291 of the Civil Code."

No evidence has been adduced to show in a satisfactory manner that Uy Chiam-Liong and Dy-Siongco
were within any of the cases stated in the foregoing articles of the code; that they did not owe Uy Piaoco
any amount; that the contents of the document marked as "Exhibit A" were untrue; and that the sale of
the goods and furniture of the aforesaid store was fictitious and simulated.
The fact that a new license for the store was obtained on behalf of Uy Piaoco from the municipal
treasurer on the same day when the sale was made, and that a few days later Mr. Janssen, agent of
the firm of Behn, Meyer & Co., importers, was informed that Uy Piaoco was the owner of the store and
that he had taken over the goods sold to the former owners thereof, further confirms the truth of the
sale made to the plaintiff.

So that when the said goods and furniture were attached on the 24th of August, 1906, at the request of
another creditor, Martina Rodriguez, it was almost eight months since the articles attached had no
longer belonged to Uy Chiam-Liong and Dy-Siongco, but to the plaintiff, Uy Piaoco; therefore the latter's
attorney in fact performed his duty and exercised a perfect right when protesting against the attachment
placed thereon, and m asking the sheriff who carried out the proceeding to release the attached goods.

Was the affidavit filed by the attorney in fact of the plaintiff affirming that the latter was the owner of the
property levied upon, and not the debtors, Uy Chiam- Liong and Dy-Siongco, as presumed when the
proceeding was executed, sufficient to support the claim and petition for dissolution, or was it necessary
to prove the transfer of the dominion by producing the bill of sale marked as "Exhibit A"? This question
is decided by section 442 of the Code of Civil Procedure, which is of the following tenor:

"Right of third party against officer.If the property taken be claimed by any other person than the
defendant or his agent and such person make an affidavit of his title thereto or right to the possession
thereof, stating the grounds of such right or title, and serves the same upon the officer while he has
possession of the property the officer shall not be bound to keep the property under the attachment,
unless the plaintiff, on demand of him, or his agent, indemnify the officer against such claim by an
obligation with two sufficient sureties; and no claim to such property or damage for its seizure by any
other person than the defendant or his agent shall be valid against the officer unless so made, but
nothing herein contained shall prevent such third person from vindicating his claim to the property by
any proper action."

Section 451 of the Code of Civil Procedure accords with the above. Neither of the above sections
requires that the title of ownership .be produced or exhibited, an affidavit of his title thereto or of his
right to the possession thereof being all that is necessary to be presented with his written claim to the
sheriff who levied the attachment. Such requirements were undoubtedly complied with by the attorney
in fact of the plaintiff as acknowledged by the defendant himself, and since by none of the sections cited
above is the production of the title deed required, the plaintiff's attorney in fact was not bound to submit
to the sheriff the bill of sale marked as "Exhibit A," as claimed by the appellant in his brief.

The writ of attachment issued by judicial order was a legal procedure in execution of said order; but
from the time when the agent of the owner of the seized goods filed a written claim protesting against
the attachment and justified his claim for the removal of the obstacle by means of an affidavit stating
his title thereto or his right to the possession thereof and the grounds of his allegation, the defendant
sheriff should have considered the claim because in accordance with the said section 442 he was not
bound to maintain the attachment nor to keep the property attached in his possession.

According to the Code of Civil Procedure the powers of the sheriff involve both discretional power and
personal liability if he fails to consider a just claim based on the law, thereby causing injury to a third
person whose property is not subject to the responsibility of a debtor nor bound in favor of the creditor
who applied for the attachment. It is unnecessary to produce the title to the property claimed, which
must be done in action of intervention, and the qualification of the validity and efficiency of the title rests
with the judge. It suffices to attach to the written claim filed with the sheriff an affidavit of the title thereto
or of the right to the possession thereof with a statement of the grounds on which the claim is based.

A third party who protests against the attachment of his property and presents his claim in accordance
with the provisions of sections 442 and 451 of said Code of Civil Procedure is entitled to protection and
to be maintained in and restored to the possession of his said property, it not being permitted to deprive
him of the same unless by due process of law.

If, notwithstanding a claim made in accordance with the law, a sheriff maintains the attachment and
refuses to dissolve it, he incurs, as a matter of fact, the responsibility which the law determines because
he then commits an act of dispossession or depriving of possession or an actual attempt against the
right of ownership or possession, and violates the legal precepts in force which in this connection are
different from those of the former Ley de Enjuiciamiento Civil; and the person who applied for the
attachment must share the responsibility therefor in case he secured by a bond the responsibility
contracted by the officer who executed the attachment.

The defendant sheriff in disregarding the claim of the plaintiff's attorney in fact and maintaining the
attachment on the property of the said plaintiff, the same not being subject to the liability of the Chinese
debtors of Martina Rodriguez, has injured the said plaintiff by depriving him of the possession of his
personal property for about seventy-five days, and in consequence thereof is bound to repair the injury
caused, in accordance with the provisions of article 1902 of the Civil Code, which treats of obligations
arising from fault or negligence.

Considering that after the expiration of seventy-five days the attachment was removed and the seized
goods were returned to the plaintiff; taking into account that the value given to the goods was P15,000,
the average proceeds of the monthly sales that might have been obtained by said store had the same
been kept open, the condition of things in this country including the Island of Cebu even prior to 1906,
and the existence of other similar stores in said city, it is reasonably estimated that the total amount of
the loss suffered in consequence of the attachment together with the rental for the premises and salary
of clerks amounts only to P900, which sum in justice should be paid by the defendant, with interest
thereon at the rate of 6 per cent per annum from the 24th of November, 1906.

With regard to the 300 quintals of tobacco seized in the town of Naga in said island, the record does
not show the same to be the property of the plaintiff, since beyond the fact that nothing is stated in
Exhibit A in reference to said 300 quintals of tobacco, no satisfactory proof exists that they were
acquired for account of the plaintiff. On the contrary, it appears to have been conclusively proven that
the 300 quintals of tobacco seized were the property of the two Chinese debtors of Martina Rodriguez
Uy Chiam-Liong and Dy-Siongco, and that, therefore, the legal representative of Uy Piaoco, the plaintiff,
had no legal right to request, the sheriff to remove the attachment on the tobacco in question because
it did not belong to the plaintiff.

Section 297 of the Code of Civil Procedure, dealing on the affirmative allegations which each party must
prove provides that:

"Each party must prove his own affirmative allegations. Evidence need not be given in support of a
negative allegation except when such negative allegation is an essential part of the statement of the
right or title on which the cause of action or defense is founded, nor even in such case when the
allegation is a denial of the existence of a document, the custody of which belongs to the opposite
party."

If in accordance with the provision of the foregoing section the plaintiff complied with his duty to prove
that the goods and furniture of the store above referred to were his own property, he has not, however,
done so with regard to the 300 quintals of tobacco, which are shown to belong to LTy Chiam-Liong and
Dy-Siongco.

In view of the considerations above set forth, it is our opinion, and we so hold, that the responsibility-
contracted by the defendant, Sergio OSMEA, as sheriff of the Province of Cebu, is limited to the
damage caused by the attachment and retention of the goods and furniture of the store acquired by the
plaintiff on the 17th of January, 1906; therefore, the said defendant is hereby sentenced to pay the
plaintiff, Uy Piaoco, as an indemnity, the sum of P900 with interest thereon at the rate of 6 per cent per
annum from the 24th day of November, 1906, without any special ruling as to costs, and the judgment
appealed from, thus modified, is hereby affirmed. So ordered.

Arellano, C. J., Johnson, Willard, and Tracey, JJ., concur.

Judgment modified.

o0o
 Fausto Barredo, petitioner, vs. Severino Garcia and Timotea Almario, respondents.

No. 48006. July 8, 1942

1. Damages; Quasi-delict or "Culpa Aquiliana"; Primary and Direct Responsibility of Employers under
Articles 1902-1910 of the Civil Code.A head-on collision between a taxi and a carretela resulted in
the death of a 16-year-old boy, one of the passengers of the carretela. A criminal action was filed against
the taxi driver and he was convicted and sentenced accordingly. The court in the criminal case granted
the petition that the right to bring a separate civil action be reserved. Thereafter the parents of the
deceased brought suit for damages against the proprietor of the taxi, the employer of the taxi driver,
under article 1903 of the Civil Code. Defendant contended that his liability was governed by the Revised
Penal Code, according to which his responsibility was only secondary, but no civil action had been
brought against the taxi driver. Held: That this separate civil action lies, the employer being primarily
and directly responsible in damages under articles 1902 and 1903 of the Civil Code.

2. Id.; Id.; Id.A quasi-delict or "culpa aquiliana" is a separate legal institution under the Civil Code,
with a substantivity all its own, and individuality that is entirely apart and independent from a delict or
crime. Upon this principle, and on the wording and spirit of article 1903 of the Civil Code, the primary
and direct responsibility of employers may be safely anchored.

3. Id.; Id.; Id.The individuality of cuati-delito or culpa extra-contractual looms clear and unmistakable.
This legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman
Law. In fact, in Spanish legal trminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code: for
instance, Law 6, Title 16, of Partida 7, says: "Tenudo es de fazer emienda, porque, cmo quier que el
non fizo a sabiendas el dao al otro, pero acaesci por su culpa."

4. Id.; Id.; Id.The distinctive nature of cuasi-delitos survives in the Civil Code. According to article
1089, one of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-
contractual: "los actos * * * en que intervenga cualquier genero de culpa o negligencia." Then
article 1093 provides that this kind of obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-1910. This portion of the Civil Code is exclusively devoted to the legal institution
of culpa aquiliana.

5. Id.; Id.; Id.; Distinction between Crimes under the Penal Code and the "Culpa Aquiliana" or "Cuasi-
Delito" under the Civil Code.A distinction exists between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an
action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the Civil Code. Plaintiffs
were free to choose which remedy to enforce. Some of the differences between crimes under the Penal
Code and the culpa aquiliana or cuasi-delito under the Civil Code are enumerated in the decision.

6. Id.; Id.; Id.; Opinions of Jurists.The decision sets out extracts from opinions of jurists on the
separate existence of cuasi-delicts and the employer's primary and direct liability under article 1903 of
the Civil Code.

7. Id.; Id.; Id.; Sentences of the Supreme Tribunal of Spain.The decision cites sentences of the
Supreme Tribunal of Spain upholding the principles above set forth: that a cuasi-delict or culpa extra-
contractual is a separate and distinct legal institution, independent from the civil responsibility arising
from criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily and directly
responsible for the negligent acts of his employee.

8. Id.; Id.; Id.; Decisions of this Court.Decisions of this Court are also cited holding that, in this
jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana under the Civil Code has been
fully and clearly recognized, even with regard to a negligent act for. which the wrongdoer could have
been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have
been sued for his civil liability arising from his crime.
9. Id.; Id.; Id.; Foundations of Doctrines Above Set Forth; Literal Meaning of the Law. The Revised
Penal Code punishes not only reckless but also simple negligence; if it should be held that articles
1902-1910, Civil Code, apply only to negligence not punishable by law, culpa aquiliana would have very
little application in actual life. The literal meaning of the law will not be used to smother a principle of
such ancient origin and such full-grown development as culpa aquiliana.

10. Id.; Id.; Id.; Id.; Degree of Proof.There are numerous cases of criminal negligence which can not
be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases,
defendant can and should be made responsible in a civil action under articles 1902 to 1910, Civil Code.
Ubi jus ibi remedium.

11. Id.; Id.; Id.; Id.; Expeditious Remedy.The primary and direct responsibility of employer under
article 1903, Civil Code, is more likely to facilitate remedy for civil wrongs. Such primary and direct
responsibility of employers is calculated to protect society.

12. Id.; Id.; Id.; Id.; Practice of Relying Solely on Civil Responsibility for a Crime.The harm done by
such practice is pointed out, and the principle of responsibility for fault or negligence under articles 1902
et seq., of the Civil Code is restored to its full vigor.

PETITION for review on certiorari.

The facts are stated in the opinion of the court.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

Bocobo, J.:

This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable
in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver
employed by said Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a headon collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapilis. The carretela was overturned, and one of its
passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted
and sentenced to an indeterminate sentence of one year and one day to two years of prisin
correccional. The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal case.
Severino Garcia and Timotea Almario, parents of the deceased, on March 7, 1939, brought an action
in the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate
Taxicab and employer of Pedro Fontanilla. On July 8,1939, the Court of First Instance of Manila
awarded damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint.
This decision was modified by the Court of Appeals by reducing the damages to P1.000 with legal
interest from the time the action was instituted. It is undisputed that Fontanilla's negligence was the
cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:

"* * * It is admitted that defendant is Fontanilla's employer. There is no proof that he exercised the
diligence of a good father of a family to prevent the damage. (See p. 22, appellant's brief.) In fact it is
shown he was careless in employing Fontanilla who had been caught several times for violation of the
Automobile Law and speeding (Exhibit A)violations which appeared in the records of the Bureau of
Public Works available to the public and to himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code."
The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal
Code; hence, his liability is only subsidary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held responsible in this case The petitioner's
brief states on page 10:

* * * The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the
diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, the Court of Appeals insists on applying in this
case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in Chapter II, Title 16, Book
IV of the Civil Code. This fact makes said article inapplicable to a civil liability arising from a crime as in
the case at bar simply because Chapter II of Title 16 of Book IV of the Civil Code, in the precise words
of article 1903 of the Civil Code itself, is applicable only to "those (obligations) arising from wrongful or
negligent acts or omissions not punishable by law.'"

The gist of the decision of the Court of Appeals is expressed thus:

"* * * We cannot agsee to the defendant's contention. The liability sought to be imposed upon him
in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of Pedro
Fontanilla), but an obligation imposed in article 1903 of the Civil Code by reason of his negligence in
the selection or supervision of his servant or employee."

The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly .responsible under article 1903 of the Civil Code
as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is only subsidary, according
to said Penal Code, but Fontanilla has not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the tangle that has, in the minds of many,
confused and jumbled together delitos and cuasi-delitos, or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be
lost in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in
our inquiry by the luminous presentacin of this perplexing subject by renown jurists and we' are like-
wise guided by the decisions of this Court in previous cases as well as by the solemn clarity of the
considerations in several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana" is a separate legal institution
under the Civil Code, with a substantivity all its own, and individuality that is entirely apart and
independent from a delict or crime. Upon this principle, and on the wording and spirit of article 1903 of
the Civil Code, the primary and direct responsibility of employers may be safely anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as follows :

Civil Code

"Art. 1089. Obligations arise from law, from contracts and quasi-contracts, and from acts and omis-
sions which are unlawful or in which any kind of fault or negligence intervenes."

* * * * * *

"Art. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the provisions
of the Penal Code.

"Art. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this book."

* * * * * *
"Art. 1902. Any person who by an act or omission causes damage to another by his fault or negligence
shall be liable for the damage so done.

"Art. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal
acts and omissions, but also for those of persons for whom another is responsible.

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

"Guardians are liable for damages done by minors or incapacitated persons subject to their authority
and living with them.

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

"The State is subject to the same liability when it acts through a special agent, but not if the damage
shall have been caused by the official upon whom properly devolved the duty of doing the act performed,
in which case the provisions of the next preceding article shall be applicable.

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

"The liability imposed by this article shall cease in case the persons mentioned therein prove that they
exercised all the diligence of a good father of a family to prevent the damage."

"Art. 1904. Any person who pays for damage caused by his employees may recover from the latter
what he may have paid."

Revised Penal Code

"Art. 100. Civil liability of a person guilty of felony.Every person criminally liable for a felony is also
civilly liable.

"Art. 101. Rules regarding civil liability in certain cases.The exemption from criminal liability
established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability, which shall be enforced subject to the following rules:

"First. In cases of subdivisions 1, 2 and 3 of article 12 the civil liability for acts committed by any
imbecile or insane person, and by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no fault or negligence on their
part.

"Should there be no person having such insane, imbecile or minor under his authority, legal
guardanship, or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with the civil law.

"Second. In cases falling within subdivision 4 of article 11, the persons for whose benefit the harm has
been prevented shall be civilly liable in proportion to the benefit which they may have received.

"The courts shall determine, in their sound discretion, the proportionate amount for which each one
shall be liable.

"When the respective shares can not be equitably determined, even approximately, or when the liability
also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events,
whenever the damage has been caused with the consent of the authorities or their agents, in-
demnification shall be made in the manner prescribed by special laws or regulations.

"Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing
the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.

"Art. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment. In
default of persons criminally liable, innkeepers, tavern keepers, and any other persons or corporations
shall be civilly liable for crimes committed in their establishments, in all cases where a violation of
municipal ordinances or some general or special police regulation shall have been committed by them
or their employees.

"Innkeepers are also subsidarily liable for the restitution of goods taken by robbery or theft within their
houses from guests lodging therein, or for the payment of the value thereof, provided that such guests
shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of
such goods within the inn; and shall furthermore have followed the directions which such innkeeper or
his representative may have given them with respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against or intimidation of persons unless committed
by the innkeeper's employees.

"Art. 103. Subsidiary civil liability of other persons.The subsidary liability established in the next
preceding article shall also apply 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."

* * * * * *

"Art. 365. Imprudence and Negligence.Any person who, by reckless imprudence, shall commit any
act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto
mayor in its maximum period to prisin correccional in its minimum period; if it would have constituted
a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed.

"Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods;
if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period
shall be imposed."

It will thus be seen that while the terms of article 1902 of the Civil Code seem to be broad enough to
cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or
omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code punishes
not only reckless but even simple imprudence or negligence, the fault or negligence under article 1902
of the Civil Code has apparently been crowded out. It is this overlapping that makes the "confusion
worse confounded." However, a closer study shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an
action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In
fact, in Spanish legal trminology, this responsibility is often referred to as culpa aquiliana. The Partidas
also contributed to the genealogy of the present fault or negligence under the Civil Code; for instance,
Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, cmo quier que el non fizo
sabiendas el dano al otro, pero acaesci por su culpa."

The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the
five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos *
* * en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this
kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-1910.
This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito
under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the damage.

3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a
penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any kind of fault
or negligence intervenes." However, it should be noted that not all violations of the penal law produce
civil responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction
of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil,"
Vol. 3, p. 728.)

Let us now ascertain what some jurjsts say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsabilidad" in the "Enciclopedia Juridica Espaola" (Vol. XXVII,
p. 414) says:

"El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes
personas. Asl, existe una responsabilidad civil propiamentc dicha, que en ningn caso lleva aparejada
responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la penal que nace de todo
delito o falta."

"The juridical concept of civil responsibility has various aspects and comprises different persons. Thus,
there is a civil responsibility, properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necesary consequence of the penal liability as a result of every
felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte.
An employee of the latter had been prosecuted in a criminal case, in which the company had been
made a party as subsidarily responsible in civil damages. The employee had been acquitted in the
criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question
asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictmenes, Vol. 6,
pp. 511-513):

"Quedando las cosas as, a proposito de la realdad pura y neta de los hechos, todavia menos parece
sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantoa y
menoscabos inferidos por el choque de los trenee. El ttulo en que se funda la accin para demandar
el resarcimiento, no puede confundirse con las responsabilidades civiles nacidas de delito, siquiera
exista en este, sea 61 cual sea, una culpa rodeada de notas agravatorias que motivan sanciones
penales, ms o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena misma atanen al orden publico; por
tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantoa y menoscabos, el agraviado excusa procurar el ya conseguido desagravio;
pero esta eventual coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles
para pedir indemnizacion.

"Estas, para el caso actual (prescindiendo de culpas contractules, que no vendrian a cuento y que
tienen otro regimen), dimanan, segn el articulo 1902 del Cdigo Civil, de toda accin u omision,
causante de daflos o perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones
semejantes son ejercitadas ante los Tribunales de lo civil cotidanamente, sin que la Justicia punitiva
tenga que mezclarse en los asuntos. Los artculos 18 al 21 y 121 al 128 del Cdigo Penal, atentos al
espiritu y a los fines sociales y polticos del mismo, desenvuelven y ordenan la materia de
responsabilidades civiles nacidas de delito, en termmos separados del regimen por ley comun de la
culpa que se denomina aquiliana, por alusion a precedentes legislatives del Corpus Juris. Seria
intempestivo un paralelo entre aquellas ordenaciones, y la de la obligation de indemnizar a ttulo de
culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal parallo se
notarian.

"Los artculos 20 y 21 del Cdigo Penal, despus de distribuir a su modo las responsabilidades civiles,
entre los que sean por diversos conceptos culpables del delito o falta, las hacen extensivas a las
empresas y los establecimientos al servicio de los cuales estn los delincuentes; pero ton carcter
subsidiario, o sea, Begun el texto literal, en defecto de los que sean responsables criminalmente. No
coincide en ello el Cdigo Civil, cuyo artculo 1903, dice; La obligacin que impone el artculo anterior
es exigible, no slo por los actos y omisiones propios, lino por los de aquellas personas de quienes se
debe responder; personas en la enumeracin de las cuales figuran los dependientes y empleados de
los establecimientos o empresas, sea por actos del servicio, sea con ocasin de sua funciones. Por
esto acontece, y se observa en la jurisprudencia, que las empresas, despulo de intervenir en las causas
criminales con el carcter subsidiario de su responsabilidad civil por razn del delito, son demandadas
y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales civiles.

"Siendo cmo se ve, diverso el ttulo de esta obligacion, y formando verdadero postulado de nuestro
regimen judicial la separation entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y
otros normaa de fondo en distintos cuerpos legates, y diferentes modos de proceder, habiendose, por
afiadidura, abstenido de asistir al juicio criminal la Compania del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de indemnizacin por los danos y perjuicios que le
irrogd el choque, no estuvo sub judice ante el Tribunal del Jurado, ni fu sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido
de inculpabilidad, mostrose ms arriba, que tal accin quedaba legitimamente reservada para despuea
del proceso; pero al declararse que no existid delito, ni responsabilidad dimanada de delito, materia
nica sobre que tenian jurisdiction aquellos juzgadores, se redobla el motivo para la obligacion civil ex
lege, y se patentiza ms y ms que la action para pedir su cumplimiento permanece incolume, extrafia
a la cosa juzgada."

"As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there
should be res judicata with regard to the civil obligation for damages on account of the losses caused
by the collision of the trains. The title upon which the action for reparation is based cannot be confused
with the civil responsibilities born of a crime, because there exists in the latter, whatever each nature, a
culpa surrounded with aggravating aspects which give rise to penal measures that are more or less
severe. The injury caused by a felony or misdemeanor upon civil rights requires restitutions, reparations,
or indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily
entrusted to the office of the prosecuting attorney; and it is clear that if by this means the losses and
damages are repaired, the injured party no longer desires to seek another relief; but this coincidence
of effects does not eliminate the peculiar nature of civil actions to ask for indemnity.

"Such civil actions in the present case (without referring to contractual, faults which are not pertinent
and belong to another scope) are derived, according to article 1902 of the Civil Code, from every act or
omission causing losses and damages in which culpa or negligence intervenes. It is unimportant that
such actions are every day filed before the civil courts without the criminal courts interfering therewith.
Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit and the social and political
purposes of that Code, develop and regulate the matter of civil responsibilities arising from a crime,
separately from the regime under common law, of culpa which is known as aquiliana, in accordance
with legislative precedent of the Corpus Juris. It would be unwarranted to make a detailed comparison
between the former provisions and that regarding the obligation to indemnify on account of civil culpa;
but it is pertinent and necessary to point out to one of such differences.

"Articles 20 and 21 of the Penal Code, after distributing in their own way the civil responsibilities among
those who, for different reasons, are guilty of felony or misdemeanor, make such civil responsibilities
applicable to enterprises and establishments for which the guilty parties render service, but with
subsidary character, that is to say, according to the wording of the Penal Code, in default of those who
are criminally responsible. In this regard, the Civil Code does not coincide because article 1903 says:
'The obligation imposed by the next preceding article is demandable, not only for personal acts and
omissions, but also for those of persons for whom another is responsible.' Among the persons
enumerated are the subordinates and employees of establishments or enterprises, either for acts during
their service or on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in the criminal cases
because of their subsidiary civil responsibility by reason of the crime, are sued and sentenced directly
and separately with regard to the obligation, before the civil courts.

"Seeing that the title of this obligation is different, and the separation between punitive justice and the
civil, courts being a true postulate of our judicial system, so that they have different fundamental norms
in different codes, as well as different modes of procedure, and inasmuch as the Compania del
Ferrocarril Cantabrico has abstained from taking part in the criminal case and has reserved the right to
exercise its actions, it seems undeniable that the action for indemnification for the losses and damages
caused to it by the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of
a sentence, but it remained intact when the decision of March 21 was rendered. Even if the verdict had
not been that of acquittal, it has already been shown that such action had been legitimately reserved till
after the criminal prosecution; but because of the declaration of the non-existence of the felony and the
non-existence of the responsibility arising from the crime, which was the sole subject matter upon which
the Tribunal del Jurado had jurisdiction, there is greater reason for the civil obligation ex lege, and it
becomes clearer that the action for its enforcement remain intact and is not res judicata."

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish
Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar
to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which cor-
responds to article 1903, Spanish Civil Code:

"The action can be brought directly against the person responsible (for another), without including the
author of the act. The action against the principal is accessory in the sense that it implies the existence
of a prejudicial act committed by the employee, but it is not subsidary in the sense that it can not be
instituted till after the judgment against the author of the act or at least, that it is subsidary to the
principal action; the action for responsibility (of the employer) is in itself a principal action." (Laurent,
Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidary. He writes:

"Cuestin 1. La responsabilidad declarada en el artculo 1903 por las acciones u omisiones de

aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en que' se funda el precepto legal. Es que realmente se
impone una responsabilidad por una falta ajena? As parece a primera vista; pero semejante afirmacin
seria contraria a la justicia y a la mxima universal, segn la que las faltas son personales, y cada uno
responde de aquellas que le son imputables. La responsabilidad de que tratamos se impone con
ocasin de un delito o culpa, pero no por causa de ellos, sino por causa del cuasi delito, esto es, de la
imprudencia o de la negligencia del padre, del tutor, del dueo o director del establecimiento, del maes-
tro, etc. Cuando cualquiera de las personas que enumera el artculo citado (menores de edad, in-
capacitados, dependientes, aprendices) causan un dao, la ley presume que el padre, el tutor, el maes-
tro, etc., han cometido una falta de negligencia para prevenir o evitar el dao. Esta falta es la que la
ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad sea subsidaria es,
por lo tanto, completamente inadmisible."

"Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons
for whom one is responsible, subsidary or principal? In order to answer this question it is necessary to
know, in the first place, on what the legal provision is based. Is it true that there is a responsibility for
the fault of another person? It seems so at first sight; but such assertion would be contrary to justice
and to the universal maxim that all faults are personal, and that everyone is liable for those faults that
can be imputed to him. The responsibility in question is imposed on the occasion of a crime or fault, but
not because of the same, but because of the cuasi-delito, that is to say, the imprudence or negligence
of the father, guardan, proprietor or manager of the establishment, of the teacher, etc. Whenever
anyone of the persons enumerated in the article referred to (minors, incapacitated persons, employees,
apprentices) causes any damage, the law presumes that the father, guardan, teacher, etc. have
committed an act of negligence in not preventing or avoiding the damage. It is this fault that is
condemned by the law. It is, therefore, only apparent that there is a responsibility for the act of another;
in reality the responsibility exacted is for one's own act. The idea that such responsibility is subsidary
is, therefore, completely inadmissible."

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Cdigo Civil Espaol,"
says in Vol. VII, p. 743:

"Es decir, no se responde de hechos ajenos, porque se responde slo de su propia culpa, doctrina del
artculo 1902; ms por excepcin, se responde de la ajena respecto de aquellas personas con las que
meda algn nexo o vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es directa
o es subsidiaria? En el orden penal, el Cdigo de esta clase distingue entre menores e incapacitados
y los dems, declarando directa la primera (artculo 19) y subsidiaria la segunda (articulos 20 y 21);
pero en el orden civil, en el caso del artculo 1903, ha de entenderse directa, pot/el tenor del artculo
que impone la responsabilidad precisamente 'por los actos de aquellas personas de quienes se deba
responder.'"

"That is to say, one is not responsible for the acts of others, because one is liable only for his own faults,
this being the doctrine of article 1902; but, by exception, one is liable for the acts of those persons with
whom there is a bond or tie which gives rise to the responsibility. Is this responsibility direct or
subsidiary? In the order of the penal law, the Penal Code distinguishes between minors and
incapacitated persons on the one hand, and other persons on the other, declaring that the responsibility
for the former is direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme
of the civil law, in the case of article 1903, the responsibility should be understood as direct, according
to the tenor of that article, for precisely it imposes responsibility for the acts of those persons for whom
one should be responsible.'"

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles
above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution,
independent from the civil responsibility arising from criminal liability, and that an employer is, under
article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon
Lafuente died as the result of having been run over by a street car owned by the "Compania Electrica
Madrilena de Traccin." The conductor was prosecuted in a criminal case but he was acquitted.
Thereupon, the widow filed a civil action against the street car company, praying for damages in the
amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the
Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final
judgment the non-existence of fault or negligence had been declared. The Supreme Court of Spain
dismissed the appeal, saying:

"Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal
a quo, al condonar a la Compaa Elctrica Hadrilea al pago del dao causado con la muerte de
Ramn Lafuente Izquierdo, desconoce el valor y efectos jurdicos de la sentencia absolutoria dictada
en la causa criminal que se sigui por el mismo hecho, cuando es lo cierto que de este han conocido
las dos jurisdicciones bajo diferentes aspectos, y cmo la de lo criminal declar6 dentro de los limiten
de su competencia que el hecho de que se trata no era constitutivo de delito por no haber mediado
descuido o negligencia graves, lo que no excluye, siendo este el nico fundamento del fallo absolutorio,
el concurso de la culpa o negligencia no calificadas, fuente de obligaciones civiles Segn el artculo
1902 del Cdigo Civil, y que alcanzan, segn el 1903, entre otras personas, a los Directores de
establecimientos o empresas por los daos causados por sus dependientes en determinadas
condiciones, es manifiesto que la de lo civil, al conocer del mismo hecho bajo este ultimo aspecto y al
condenar a la Compaa recurrente a la indemnizacin del dao causado por uno de sus empleados,
lejos de infringir los mencionados textos, en relacin con el artculo 116 de la Ley de Enjuiciamiento
Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccin propia, m
contrariar en lo mas mnimo el fallo recado en la causa."

"Considering that the first ground of the appeal is based on the mistaken supposition that the trial court,
in sentencing the Compania Madrilena to the payment of the damage caused by the death of Ramon
Lafuente Izquierdo, disregards the value and juridical effects of the sentence of acquittal rendered in
the criminal case instituted on account of the same act, when it is a fact that the two jurisdictions had
taken cognizance of the same act in its different aspects, and as the criminal jurisdiction declared within
the limits of its authority that the act in question did not constitute a felony because there was no grave
carelessness or negligence, and this being the only basis of acquittal, it does not exclude the co-
existence of fault or negligence which is not qualified, and is a source of civil obligations according to
article 1902 of the Civil Code, affecting, in accordance with article 1903, among other persons, the
managers of establishments or enterprises by reason of the damages caused by employees under
certain conditions, it is manifest that the civil jurisdiction in taking cognizance of the same act in this
latter aspect and in ordering the company, appellant herein, to pay an indemnity .for the damage caused
by one of its employees, far from violating said legal provisions, in relation with article 116 of the Law
of Criminal Procedure, strictly followed the same, without invading attributes which are beyond its own
jurisdiction, and without in any way contradicting the decision in that cause." (Italics supplied.)

It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or with the street car company.
This is precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil
action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme
Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is not
qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present case, the taxi
driver was found guilty of criminal negligence, so that if he had even sued for his civil responsibility
arising from the crime, he would have been held primarily liable for civil damages, and Barredo would
have been held subsidarily liable for the same. But the plaintiffs are directly suing Barredo, "on his
primary responsibility because of his own presumed negligencewhich he did not overcomeunder
article 1903. Thus, there were two liabilities of Barredo: first, the subsidary one because of the civil
liability of the taxi driver arising from the latter's criminal negligence; and, second, Barredo's primary
liability as an employer under article 1903. The plaintiffs were free to choose which course to take, and
they preferred the second remedy. In so doing, they were acting within their rights. It might be observed
in passing, that the plaintiffs chose the more expeditious and effective method of relief, because
Fontanilla was either in prison, or had just been released, and besides, he was probably without
property which might be seized in enforcing any judgment against him for damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable
civilly, notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with
greater reason should Barredo, the employer in the case at bar, be held liable for damages in a civil
suit filed against him because his taxi driver had been convicted. The degree of negligence of the
conductor in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the former
was acquitted in the previous criminal case while the latter was found guilty of criminal negligence and
was sentenced to an indeterminate sentence of one year and one day to two years of prisin
correctional.

(See also Sentence of February 19, 1902, which is similar to the one above quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against
a railroad company for damages because the station agent, employed by the company, had unjustly
and fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme Court of
Spain held that this action was properly under article 1902 of the Civil Code, the court saying:

"Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacin
a las pruebas del pleito: l., que las expediciones facturadas por la compaa ferroviaria a la
consignacin del actor de las vasijas vacas que en su demanda relacionan tenan cmo fin el que este
las devolviera a sus remitentes con vinos y alcoholes; 2., que llegadas a su destino tales mercancas
no se quisieron entregar a dicho consignatario por el jefe de la estacin sin motivo justificado y con
intencin dolosa, y 3.a, que la falta de entrega de estas expediciones al tiempo de reclamarlas el de-
mandante le originaron danos y perjuicios en cantidad de bastante importancia cmo expendedor al
por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener al verse privado de
servir los pedidos que se le haban hecho por los remitentes en loa envases:

"Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este
recurso, porque la demanda inicial del pleito a que se contrae no contiene accin que nazca del
incumplimiento del contrato de transporte, toda vez que no se funda en el retraso de la llegada de las
mercancas ni de ningn otro vinculo contractual entre las partes contendientes, careciendo, por tanto,
de aplicacin el artculo 371 del Cdigo de Comercio, en que principalmente descansa el fallo recurrido,
sino que se limita a pedir la reparacin de los danos y perjuicios producidos en el patrimonio del actor
por la injustincada y dolosa negativa del porteador a la entrega de las mercancas a su nombre
consignadas, segn lo reconoce la sentencia, y cuya responsabilidad esta claramente sancionada en
el artculo 1902 del Cdigo Civil, que obliga por el siguiente a la Compaa demandada cmo ligada
con el causante de aquellos por relaciones de carcter econmico y de jerarqua administrativa."

"Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in relation
to the evidence in the case: (1) that the invoice issued by the railroad company in favor of the plaintiff
contemplated that the empty receptacles referred to in the complaint should be returned to the
consignors with wines and liquors; (2) that when the said merchandise reached their destination, their
delivery to the consignee was refused by the station agent without justification and with fraudulent intent,
and (3) that the lack of delivery of these goods when they were demanded by the plaintiff caused him
losses and damages of considerable importance, as he was a wholesale vendor of wines and liquors
and he failed to realize the profits when he was unable to fill the orders sent to him by the consignors
of the receptacles:

"Considering that upon this basis there is need of upholding the four assignments of error, as the original
complaint did not contain any cause of action arising from non-fulfilment of a contract of transportation,
because the action was not based on the delay of the goods nor on any contractual relation between
the parties litigant and, therefore, article 371 of the Code of Commerce, on which the decision appealed
from is based, is not applicable; but it limits itself to asking for reparation for losses and damages
produced on the patrimony of the plaintiff tm account of the unjustified and fraudulent refusal of the
carrier to deliver the goods consigned to the plaintiff as stated by the sentence, and the carrier's
responsibility is clearly laid down in article 1902 of the Civil Code which binds, in virtue of the next
article, the defendant company, because the latter is connected with the person who caused the
damage by relations of economic character and by administrative hierarchy." (Italics supplied.)

The above case is pertinent because it shows that the same act may come under both the Penal Code
and the Civil Code. In that case, the action of the agent.was unjustified and fraudulent and therefore
could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a
civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not
the employee who was being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the
trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway, in consequence of which the rails slid off while iron was being
transported, and caught the plaintiff whose leg was broken. This Court held: "It is contended by the
defendant, as its first defense to the action that the necessary conclusion from these collated laws is
that the remedy for injuries through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only subsidarily to him. According to
this theory the plaintiff should have procured the arrest of the representative of the company
accountable for not repairing the track, and on his prosecution a suitable fine should have been
imposed, payable primarily by him and secondarily by his employer.
"This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil
Code makes obligations arising from faults or negligence not punished by the law, subject to the
provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:

" 'A person who by an act or omission causes damage to another when there is fault or negligence shall
be obliged to repair the damage so done.

" 'Sec. 1903. The obligation imposed by the preceding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.

"'The father, and on his death or incapacity, the mother, is. liable for the damages caused by the minors
who live with them.

"'Owners or directors of an establishment or enterprise are equally liable for the damages caused by
their employees in the service of the branches in which the latter may be employed or in the
performance of their duties.

* * * * * * * *

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

"As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one 'not punished by the laws' and falls under
civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant,
under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by
the defendant, that would rob some of these articles of effect, would shut out litigants against their will
from the civil courts, would make the assertion of their rights dependent upon the selection for
prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict rules
of proof prevailing in criminal actions. Even if these articles had always stood alone, such a construction
would be unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of
Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual force in
these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both
classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action
was pending the civil was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out
of a crime that could be enforced only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on
the same subject.

"An examination of this topic might be carried much further, but the citation of these articles suffices to
show that.the civil liability was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law. Where an individual is civilly liable for a negligent act
or omission, it is not required that the injured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.

"Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidary in
respect of criminal actions against his employees only while they are in process of prosecution, or in so
far as they determine the existence of the criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not barred thereby unless by the election of
the injured person. Inasmuch as no criminal proceeding had been instituted, growing out of the accident
in question, the provisions of the Penal Code can not affect this action. This construction renders it
unnecessary to finally determine here whether this subsidary civil liability in penal actions has survived
the laws that fully regulated it or has been abrogated by the American civil and criminal procedure now
in force in the Philippines.
"The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, 'fault or negligence not
punished by law, as applied to the comprehensive definition of offenses in articles 568 and 590 of the
Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee
who is the offender is not to be regarded as derived from negligence punished by the law, within the
meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within the class of
acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are applicable are understood to be those not growing out
of pre-existing duties of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may be found
in the consequences of a railway accident due to defective machinery supplied by the employer. His
liability to his employee would arise out of the contract of employment, that to the passengers out of the
contract for passage, while that to the injured bystander would originate in the negligent act itself."

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 or 9-year-old child Salvador
Bona brought a civil action against Moreta to recover damages resulting from the death of the child,
who had been run.over by an automobile driven and managed by the defendant. The trial court rendered
judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity. This Court in
affirming the judgment, said in part:

"If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his
auto before crossing Real Street, because he had met vehicles which were going along the latter street
or were coming from the opposite direction along Solana Street, it is to be believed that, when he again
started to run his auto across said Real Street and to continue its way along Solana Street northward,
he should have adjusted the speed of the auto which he was operating until he had fully crossed Real
Street and had completely reached a clear way on Solana Street. But, as the child was run over by the
auto precisely at the entrance of Solana Street, this accident could not have occurred if the auto had
been running at a slow speed, aside from the fact that the defendant, at the moment of crossing Real
Street and entering Solana Street, in a northward direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right to that on the left, and if the accident had
occurred in such a way that after the automobile had run over the body of the child, and the child's body
had already been stretched out on the ground, the automobile still moved along a distance of about 2
meters, this circumstance shows the fact that the automobile entered Solana Street from Real Street,
at a high speed without the defendant having blown the horn. If these precautions had been taken by
the defendant, the deplorable accident which caused the death of the child would not have occurred."

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

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso
vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child,
Purificacion Bernal, brought a civil action to recover damages for the child's death as a result of burns
caused by the fault and negligence of the defendants. On the evening of April 10, 1925, the Good Friday
procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had
come from another municipality to attend the same. After the procession the mother and the daughter
with two others were passing along Gran Capitan Street in front of the offices of the Tacloban Electric
& Ice Plant, Ltd., owned by defendant J. V. House, when an automobile appeared from the opposite
direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile that she
turned to run, but unfortunately she fell into the street gutter where hot water from the electric plant was
flowing. The child died that same night from the burns. The trial court dismissed the action because of
the contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no contributory
negligence, and allowed the parents P1,000 in damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric plant. This Court said in part:

"Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand taken by the trial judge. The mother and her child
had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the religious
procession was held. There was nothing abnormal in allowing the child to run along a few paces in
advance of the mother. No one could foresee the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with hot water. The doctrine announced in the much
debated case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule. Article 1902 of
the Civil Code must again be enforced. The contributory negligence of the child and her mother, if any,
does not operate as a bar to recovery, but in its strictest sense could only result in reduction of the
damages."

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code.

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915]), the action was for damages for the death
of the plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an
automobile over the child. It appeared that the cause of the mishap was a defect in the steering gear.
The defendant Leynes had rented the automobile from the International Garage of Manila, to be used
by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower
court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment as to
Leynes on the ground that he had shown that he exercised the care of a good father of a family, thus
overcoming the presumption of negligence under article 1903. This Court said:

"As to selection, the defendant has clearly shown that he exercised the care and diligence of a good
father of a family. He obtained the machine from a reputable garage and it was, so far as appeared, in
good condition. The workmen were likewise selected from a standard garage, were duly licensed by
the Government in their particular calling, and apparently thoroughly competent. The machine had been
used but a few hours when the accident occurred and it is clear from the evidence that the defendant
had no notice, either actual or constructive, of the defective condition of the steering gear."

The legal aspect of the case was discussed by this Court thus:

"Article 1903 of the Civil Code not only establishes liability in eases of negligence, but also provides
when the liability shall cease. It says:

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

"From this article two things are apparent: (1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was negligence on the part
of the master or employer either in the selection of the servant or employee, or in supervision over him
after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of
the court that in selection and supervision he has exercised the care and diligence of a good father of
a family, the presumption is overcome and he is relieved from liability.

"This theory bases the responsibility of the master ultimately on his own negligence and not on that of
his servant."

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]).
In the latter case, the complaint alleged that the defendant's servant had so negligently driven an
automobile, which was operated by defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule in Bahia vs.
Litonjua and Leynes, said in part (p. 41) that:

"The master is liable for the negligent acts of his servant where he is the owner or director of a business
or enterprise and the negligent acts are committed while the servant is engaged in his master's
employment as such owner."

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton &
Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison
for the death of his seven-year-old son Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly killing
him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an employee of
defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless negligence
and were sentenced accordingly. This Court, applying articles 1902 and 1903, held:

"The basis of civil law liability is not respondent superior but the relationship of pater familial. This theory
bases the liability of the master ultimately on his own negligence and not on that of his servant." (Bahia
vs. Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff
brought an action for damages for the demolition of its wharf, which had been struck by the steamer
Helen. C belonging to the defendant. This Court held (p. 526):

"The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed
captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee contracted his
services because of his reputation as a captain, according to F. C. Cadwallader. This being so, we are
of the opinion that the presumption of liability against the defendant has been overcome by the exercise
of the care and diligence of a good father of a family in selecting Captain Lasa, in accordance with the
doctrines laid down by this court in the eases cited above, and the defendant is therefore absolved from
all liability."

It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six
cases above set forth. He is, on the authority of these cases, primarily and directly responsible in
damages under article 1903, in relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila
vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of Manila and
a street car of the Manila Electric Co. took place on June 8, 1925. The truck was damaged in the amount
of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to property and
slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900,
to indemnify the City of Manila for P1,788.27, with subsidary imprisonment in case of insolvency.
Unable to collect the indemnity from Eustaquio, the City of Manila filed an action against the Manila
Electric Company to obtain payment, claiming that the defendant was subsidarily liable.' The main
defense was that the defendant had exercised the diligence of a good father of a family to prevent the
damage. The lower court rendered judgment in favor of the plaintiff. This Court held, in part, that this
case was governed by the Penal Code, saying:

"With this preliminary point out of the way, there is no escaping the conclusion that the provisions of the
Penal Code govern. The Penal Code in easily understandable language authorizes the determination
of subsidary liability. The Civil Code negatives its application by providing that civil obligations arising
from crimes or misdemeanors shall be governed by the provisions of the Penal Code. The conviction
of the motorman was a misdemeanor falling under article 604 of the Penal Code. The act of the
motorman was not a wrongful or negligent act or omission not punishable by law. Accordingly, the civil
obligation connected up with the Penal Code and not with article 1903 of the Civil Code. In other words,
the Penal Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of
criminal negligence out of which civil liability arises and net a case of civil negligence."
 * * * * * * *

"Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed,
as pointed out by the trial judge, any different ruling would permit the master to escape scot-free by
simply alleging and proving that the master had exercised all diligence in the selection and training of
its servants to prevent the damage. That would be a good defense to a strictly civil action, but might or
might not be to a civil action either as a part of or predicated on conviction for a crime or misdemeanor.
(By way of parenthesis, it may be said further that the statements here made are offered to meet the
argument advanced during our deliberations to the effect that article 1902 of the Civil Code should be
disregarded and codal articles 1093 and 1903 applied.)"

It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidary liability arising from Fontanilla's criminal negligence.
In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman
in the employ of the Manila Electric Company had been convicted of homicide by simple negligence
and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000. An action was
then brought to enforce the subsidary liability of the defendant as employer under the Penal Code. The
defendant attempted to show that it had exercised the diligence of a good father of a family in selecting
the motorman, and therefore claimed exemption from civil liability. But this Court held:

"In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil
liability established in article 1903 of the Civil Code for all who have acted with the diligence of a good
father of a family, is not applicable to the subsidary civil liability provided in article 20 of the Penal
Code."

The above case is also extraneous to the theory of the defendant in the instant case, because the action
there had for its purpose the enforcement of the defendant's subsidary liability under the Penal Code,
while in the case at bar, the plaintiff's cause of action is based on the defendant's primary and direct
responsibility under article 1903 of the Civil Code. In fact, the above case destroys the defendant's
contention because that decision illustrates the principle that the employer's primary responsibility under
article 1903 of the Civil Code is different in character from his subsidary liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give due
importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set
forth. Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it is
as inapplicable as the two cases above discussed.

The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability
arising from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce either a
civil liability arising from a crime under the Penal Code, or a separate responsibility for fault or negli-
gence under articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited
render it inescapable to conclude that the employerin this case the defendant-petitioneris primarily
and directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of
this case. But inasmuch as we are announcing doctrines that have been little understood in the past, it
might not be inappropriate to indicate their foundations.

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

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can not be shewn beyond
reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.

Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to
follow a devious and cumbersome method of obtaining relief. True, there is 'such a remedy under our
laws, but there is also a more expeditious way, which is based on the primary and direct responsibility
of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate
remedy for civil wrongs, because the procedure indicated by the defendant is wasteful and productive
of delay, it being a matter of common knowledge that professional drivers of taxis and similar public
conveyances usually do not have sufficient means with which to pay damages. Why, then, should the
plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless
procedure? In construing the laws, courts have endeavored to shorten and facilitate the pathways of
right and justice.

At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated" to protect society. Workmen and employees should be
carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who
principally reap the profits resulting from the services of these servants and employees. It is but right
that they should guarantee the latter's careful conduct for the personnel and patrimonial safety
of''others. As Theilhard has said, "they should reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence." And according to Manresa, "It is much more
equitable and just that such responsibility should fall upon the principal or director who could have
chosen a careful and prudent employee, and not upon the injured person who could not exercise such
selection and who used such employee because of his confidence in the principal or director." (Vol. 12,
p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on the principle of
representacin of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p.
747) that before third persons the employer and employee "vienen a ser cmo una sola personalidad,
por refundicin de la del dependiente en la de quien le emplea y utiliza." ("become as one personality
by the merging of the person of the employee in that of him who employs and utilizes him.") All these
observations acquire a peculiar force and significance when it comes to motor accidents, and there is
need of stressing and accentuating the responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on
this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and
for lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown
up a common practice to seek damages only by virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless
and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa
extracontractual. In the present case, we are asked to help perpetuate this usual course. But we believe
it is high time we pointed out to the harm done by such practice and to restore the principle of
responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high
time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so tha.t
its waters may no longer be diverted into that 'of a crime under the Penal Code. This will, it is believed,
make for the better safeguarding of private rights because it re-establishes an ancient and additional
remedy, and for the further reason that an independent civil action, not depending on the issues,
limitations and results of a criminal prosecution, and entirely directed by the party wronged or his
counsel, is more likely to secure adequate and efficacious redress.

In view of the foregoing, the judgment of, the Court of Appeals should be and is hereby affirmed, with
costs against the defendant-petitoner.

Yulo, C. J., Moran, Ozaeta, and Paras, J J., concur.

Judgment affirmed.

o0o

SOFIA M. GUILLANG, represented by SUSAN GUILLANG-CABATBAT, REYNALDO, GERARDO,

BIENVENIDO, DAWNA, and NELLIE, all surnamed GUILLANG, GENARO GUILLANG, JOSE
DIGNADICE, and ALVIN LLANILLO, petitioners, vs. RODOLFO BEDANIA and RODOLFO DE
SILVA, respondents.

May 21, 2009. G.R. No. 162987.

Appeals; In an appeal by certiorari under Rule 45 of the Rules of Court, only questions of law may be
raised; Exceptions.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 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. However, this rule is subject to certain
exceptions. One of these is when the findings of the appellate court are contrary to those of the trial
court. Findings of fact of the trial court and the Court of Appeals may also be set aside when such
findings are not supported by the evidence or where the lower courts conclusions are based on a
misapprehension of facts. Such is the situation in this case and we shall re-examine the facts and
evidence presented before the lower courts.

Torts; Quasi-Delicts; Requisites; Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done, and such fault or negligence, if there is no
pre-existing contractual relations between the parties, is called a quasi-delict.Article 2176 of the Civil
Code provides that whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relations between the parties, is called a quasi-delict. To sustain a claim based on quasi-
delict, the following requisites must concur: (a) damage suffered by the plaintiff; (b) fault or negligence
of defendant; and (c) connection of cause and effect between the fault or negligence of defendant and
the damage incurred by the plaintiff.

Same; Same; Negligence; The test of negligence is whether the defendant in doing the alleged
negligent act used that reasonable care and caution which an ordinary person would have used in the
same situation.Negligence is defined as the failure to observe for the protection of the interest of
another person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury. In Picart v. Smith, 37 Phil. 809 (1918), we held that the test
of negligence is whether the defendant in doing the alleged negligent act used that reasonable care
and caution which an ordinary person would have used in the same situation.
Same; Same; Same; Motor Vehicles; Unless there is proof to the contrary, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was violating any traffic regulation.Under Article
2185 of the Civil Code, unless there is proof to the contrary, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation. In this case, the report
showed that the truck, while making the U-turn, failed to signal, a violation of traffic rules. The police
records also stated that, after the collision, Bedania escaped and abandoned the petitioners and his
truck. This is another violation of a traffic regulation. Therefore, the presumption arises that Bedania
was negligent at the time of the mishap.

Same; Same; Same; Same; Traffic Rules; U-turns are generally not advisable particularly on major
streets.The Court of Appeals also concluded that Bedania made the U-turn at an intersection. Again,
this is not supported by the evidence on record. The police sketch does not indicate an intersection and
only shows that there was a road leading to the Orchard Golf Course near the place of the collision.
Furthermore, U-turns are generally not advisable particularly on major streets. Contrary to Videnas
testimony, it is not normal for a truck to make a U-turn on a highway. We agree with the trial court that
if Bedania wanted to change direction, he should seek an intersection where it is safer to maneuver the
truck. Bedania should have also turned on his signal lights and made sure that the highway was clear
of vehicles from the opposite direction before executing the U-turn.

Same; Same; Same; Same; Words and Phrases; Proximate cause is that which, in the natural and
continuous sequence, unbroken by any efficient, intervening cause, produces the injury, and without
which the result would not have occurred.Bedanias negligence was the proximate cause of the
collision which claimed the life of Antero and injured the petitioners. Proximate cause is that which, in
the natural and continuous sequence, unbroken by any efficient, intervening cause, produces the injury,
and without which the result would not have occurred. The cause of the collision is traceable to the
negligent act of Bedania for if the U-turn was executed with the proper precaution, the mishap in all
probability would not have happened. The sudden U-turn of the truck without signal lights posed a
serious risk to oncoming motorists. Bedania failed to prevent or minimize that risk. The trucks sudden
U-turn triggered a series of events that led to the collision and, ultimately, to the death of Antero and
the injuries of petitioners.

Same; Same; Damages; Civil indemnity for death caused by a quasi-delict is pegged at P50,000.
According to prevailing jurisprudence, civil indemnity for death caused by a quasi-delict is pegged at
P50,000. Moral damages in the amount of P50,000 is also awarded to the heirs of the deceased taking
into consideration the pain and anguish they suffered. Bienvenido Guillang (Bienvenido), Anteros son,
testified that Sofia, Anteros wife and his mother, became depressed after Anteros death and that Sofia
died a year after. Bienvenido also testified on the pain and anguish their family suffered as a
consequence of their fathers death. We sustain the trial courts award of P50,000 as indemnity for
death and P50,000 as moral damages to the heirs of Antero.

Same; Same; Same; Moral Damages; Moral damages may be recovered in quasi-delicts causing
physical injuries, and exemplary damages may be granted if the defendant acted with gross
negligence.Moral damages may be recovered in quasi-delicts causing physical injuries. However, in
accordance with prevailing jurisprudence, we reduce the award of moral damages from P50,000 to
P30,000 each to Llanillo, Dignadice, and Genaro since they only suffered physical injuries brought about
by the collision. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross
negligence. While the amount of exemplary damages need not be proved, the plaintiff must show that
he is entitled to moral, temperate or compensatory damages before the court may consider the question
of whether or not exemplary damages should be awarded. In this case, Bedania was grossly negligent
in suddenly making a U-turn in the highway without signal lights. To serve as an example for the public
good, we affirm the trial courts award of exemplary damages in the amount of P50,000.

Same; Same; Same; Attorneys Fees; Under Article 2208 of the Civil Code, attorneys fees may be
recovered when, as in this case, exemplary damages are awarded.We affirm the trial courts award
of attorneys fees in the amount of P100,000. Under Article 2208 of the Civil Code, attorneys fees may
be recovered when, as in this case, exemplary damages are awarded.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
 The facts are stated in the opinion of the Court.

Nelson A. Loyola for petitioner.

Abrogar, Valerio, Maderazo Law Offices for respondents.

CARPIO,J.:

The Case

This is a petition for review of the 3 June 2003 Decision and the 23 March 2004 Resolution of the Court
of Appeals in CA-G.R. CV No. 69289. The 3 June 2003 Decision set aside the 5 December 2000
Decision of the Regional Trial Court, Branch 30, Manila (trial court). The 23 March 2004 Resolution
denied the motion for reconsideration.

The Facts

On 25 October 1994, at about 5:45 in the afternoon, petitioner Genaro M. Guillang (Genaro) was driving
his brand new Toyota Corolla GLI sedan with conduction sticker No. 54-DFT (car) along Emilio
Aguinaldo Highway (highway) in Cavite. Genaro, Antero Guillang (Antero), Felipe Jurilla, Jose
Dignadice (Dignadice), and Alvin Llanillo (Llanillo) had all just left from Golden City, Dasmarias, Cavite,
and were on their way to Manila. At the other side of the highway, respondent Rodolfo A. Bedania
(Bedania) was driving a ten-wheeler Isuzu cargo truck with plate No. CAC-923 (truck) towards Tagaytay
City. The truck was owned by respondent Rodolfo de Silva (de Silva).

Along the highway and the road leading to the Orchard Golf Course, Bedania negotiated a U-turn. When
the truck entered the opposite lane of the highway, Genaros car hit the right portion of the truck. The
truck dragged Genaros car some five meters to the right of the road.

As a consequence, all the passengers of the car were rushed to the De La Salle University Medical
Center in Dasmarias, Cavite for treatment. Because of severe injuries, Antero was later transferred to
the Philippine General Hospital. However, on 3 November 1994, Antero died due to the injuries he
sustained from the collision. The car was a total wreck while the truck sustained minor damage.

On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the heirs of Antero5 instituted a complaint
for damages based on quasi-delict against respondents Bedania and de Silva.

On 5 December 2000, the trial court rendered a decision in favor of petitioners. The trial court found
Bedania grossly negligent for recklessly maneuvering the truck by making a sudden U-turn in the
highway without due regard to traffic rules and the safety of other motorists. The trial court also declared
de Silva grossly negligent in the selection and supervision of his driver, Bedania. The dispositive portion
of the decision provides:

WHEREFORE, judgment is hereby rendered ordering defendants Rodolfo A. Bedania and Rodolfo de
Silva, jointly and severally, to pay plaintiffs, as follows:

1. The sum of P508,566.03 representing the damage/repair costs of the Toyota to plaintiff
Genaro M. Guillang.
2. The sum of P50,000.00 for the death of Antero Guillang plus P185,000.00 for his burial
expenses, to the heirs of Antero Guillang.
3. For hospital and medical expenses as reflected in Exhibits E, E-1 to E-30 to plaintiffs
Genaro M. Guillang, Jose Dignadice and Alvin Llanillo.
4. The sum of P50,000.00 as moral damages for the heirs of the deceased Antero Guillang.
5. The sum of P50,000.00 as moral damages each to plaintiffs Jose Dignadice, Alvin Llanillo
and Genaro Guillang.
6. The sum of P50,000.00 as exemplary damages.
7. The sum of P100,000.00 as and for attorneys fess.
 8. The costs of the suit.

SO ORDERED.

Respondents appealed to the Court of Appeals.

On 3 June 2003, the Court of Appeals rendered its decision in favor of respondents. The dispositive
portion of the decision provides:

IN VIEW OF ALL THE FOREGOING, the appealed decision is REVERSED and SET ASIDE. The
complaint of the herein appellees in Civil Case No. 95-73666 is DISMISSED, for lack of merit. The
appellants counterclaims in the instant case are likewise DISMISSED. No pronouncement as to cost.

SO ORDERED.

Petitioners filed a motion for reconsideration. On 23 March 2004, the Court of Appeals denied the
motion.

Hence, this petition.

The Ruling of the Regional Trial Court

According to the trial court, there is a presumption that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any traffic regulation. In this case, the trial court
found that the Traffic Accident Investigation Report (report), corroborated by the testimonies of the
witnesses, showed that the truck committed a traffic violation by executing a U-turn without signal lights.
The trial court also declared that Bedania violated Sections 45(b), 48, and 54 of Republic Act No. 4136
when he executed the sudden U-turn. The trial court added that Bedania violated another traffic rule
when he abandoned the victims after the collision. The trial court concluded that Bedania was grossly
negligent in his driving and held him liable for damages.

Moreover, the trial court found that Bedania did not make the U-turn at an intersection. According to the
trial court, vehicles trying to maneuver to change directions must seek an intersection where it is safer
to maneuver and not recklessly make a U-turn in a highway. The trial court said Bedania should have
observed extreme caution in making a U-turn because it was unexpected that a long cargo truck would
execute a U-turn along the highway.

The trial court also said that Bedanias gross negligence raised the legal presumption that de Silva, as
Bedanias employer, was negligent in the selection and supervision of his employees. The trial court
said that, under Articles 2176 and 2180 of the Civil Code, de Silvas liability was based on culpa
aquiliana which holds the employer primarily liable for tortious acts of his employees, subject to the
defense that he exercised all the diligence of a good father of a family in the selection and supervision
of his employees. The trial court ruled that de Silva failed to prove this defense and, consequently, held
him liable for damages.

The Ruling of the Court of Appeals

The Court of Appeals reversed the trial courts decision and said that the trial court overlooked
substantial facts and circumstances which, if properly considered, would justify a different conclusion
and alter the results of the case.

The Court of Appeals dismissed the testimonies of the witnesses and declared that they were contrary
to human observation, knowledge and experience. The Court of Appeals also said that the following
were the physical evidences in the case:

1. It was not yet dark when the incident transpired;

 2. The four-lane highway the appellees were cruising on was wide, straight, dry, relatively plain
and with no obstructions to the drivers vision;
3. The point of impact of the collision is on the lane where the car was cruising and the car hit the
gas tank of the truck located at its right middle portion, which indicates that the truck had already
properly positioned itself and had already executed the U-turn before the impact occurred;
4. Genaro Guillang was not able to stop the car in time and the cars front portion was totally
wrecked. This negates appellees contention that they were traveling at a moderate speed; and
5. The sheer size of the truck makes it improbable for the said vehicle to negotiate a U-turn at a
sudden and fast speedas appellees vigorously suggestwithout toppling over on its side.
(Citations omitted)

The Court of Appeals concluded that the collision was caused by Genaros negligence. The Court of
Appeals declared that the truck arrived at the intersection way ahead of the car and had already
executed the U-turn when the car, traveling at a fast speed, hit the trucks side. The Court of Appeals
added that considering the time and the favorable visibility of the road and the road conditions, Genaro,
if he was alert, had ample time to react to the changing conditions of the road. The Court of Appeals
found no reason for Genaro not to be prudent because he was approaching an intersection and there
was a great possibility that vehicles would be traversing the intersection either going to or from Orchard
Golf Course. The Court of Appeals said Genaro should have slowed down upon reaching the
intersection. The Court of Appeals concluded that Genaros failure to observe the necessary
precautions was the proximate cause of Anteros death and the injuries of the petitioners.

The Court of Appeals also relied on the testimony of Police Traffic Investigator Efren Videna (Videna)
that the car was running at a fast speed and overtook another vehicle just before the collision occurred.
The Court of Appeals concluded that Genaro did not see the truck as the other vehicle temporarily
blocked his view of the intersection. The Court of Appeals also gave weight to Videnas testimony that
it was normal for a ten-wheeler truck to make a U-turn on that part of the highway because the entrance
to Orchard Golf Course was spacious.

The Issues

Petitioners raise the following issues:

1. Did the Court of Appeals decide a question of substance in this case in a way probably not in
accord with law or with the applicable decisions of the Honorable Supreme Court?
2. Did the Court of Appeals depart from the accepted and usual course of judicial proceedings
particularly when it revised, and recast the findings of facts of the trial court pertaining to
credibility of witnesses of which the trial court was at the vantage point to evaluate?
3. Did the Court of Appeals act with grave abuse of discretion amounting to lack of jurisdiction
when it rendered the palpably questionable Court of Appeals Decision that tampered with the
findings of fact of the trial court for no justifiable reason?
4. Is the Court of Appeals judgment and resolution reversing the decision of the trial court
supported by the evidence and the law and jurisprudence applicable?

The issue in this case is who is liable for the damages suffered by petitioners. The trial court held
Bedania and de Silva, as Bedanias employer, liable because the proximate cause of the collision was
the sudden U-turn executed by Bedania without any signal lights. On the other hand, the Court of
Appeals reversed the trial courts decision and held Genaro liable because the proximate cause of the
collision was Genaros failure to stop the car despite seeing that Bedania was making a U-turn.

The Ruling of the Court

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 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.
However, this rule is subject to certain exceptions. One of these is when the findings of the appellate
court are contrary to those of the trial court. Findings of fact of the trial court and the Court of Appeals
may also be set aside when such findings are not supported by the evidence or where the lower courts
conclusions are based on a misapprehension of facts. Such is the situation in this case and we shall
re-examine the facts and evidence presented before the lower courts.

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relations between the parties, is called a quasi-delict. To sustain a claim
based on quasi-delict, the following requisites must concur: (a) damage suffered by the plaintiff; (b) fault
or negligence of defendant; and (c) connection of cause and effect between the fault or negligence of
defendant and the damage incurred by the plaintiff.

There is no dispute that petitioners suffered damages because of the collision. However, the issues on
negligence and proximate cause are disputed.

On the Presumption of Negligence

and Proximate Cause

Negligence is defined as the failure to observe for the protection of the interest of another person that
degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury. In Picart v. Smith, we held that the test of negligence is whether the defendant in
doing the alleged negligent act used that reasonable care and caution which an ordinary person would
have used in the same situation.

The conclusion of the Court of Appeals that Genaro was negligent is not supported by the evidence on
record. In ruling that Genaro was negligent, the Court of Appeals gave weight and credence to Videnas
testimony. However, we find that Videnas testimony was inconsistent with the police records and report
that he made on the day of the collision. First, Videna testified that the car was running fast and overtook
another vehicle that already gave way to the truck. But this was not indicated in either the report or the
police records. Moreover, if the car was speeding, there should have been skid marks on the road when
Genaro stepped on the brakes to avoid the collision. But the sketch of the accident showed no skid
marks made by the car. Second, Videna testified that the petitioners came from a drinking spree
because he was able to smell liquor. But in the report, Videna indicated that the condition of Genaro
was normal. Videna did not indicate in the report that Genaro had been drinking liquor or that Genaro
was obviously drunk. Third, Videna testified that when he arrived at the scene, Bedania was inside
his truck. This contradicts the police records where Videna stated that after the collision Bedania
escaped and abandoned the victims. The police records also showed that Bedania was arrested by the
police at his barracks in Anabu, Imus, Cavite and was turned over to the police only on 26 October
1994.

Under Article 2185 of the Civil Code, unless there is proof to the contrary, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was violating any traffic regulation.

In this case, the report showed that the truck, while making the U-turn, failed to signal, a violation of
traffic rules. The police records also stated that, after the collision, Bedania escaped and abandoned
the petitioners and his truck. This is another violation of a traffic regulation. Therefore, the presumption
arises that Bedania was negligent at the time of the mishap.

The evidence presented in this case also does not support the conclusion of the Court of Appeals that
the truck had already executed the U-turn before the impact occurred. If the truck had fully made the U-
turn, it should have been hit on its rear. If the truck had already negotiated even half of the turn and is
almost on the other side of the highway, then the truck should have been hit in the middle portion of the
trailer or cargo compartment. But the evidence clearly shows, and the Court of Appeals even declared,
that the car hit the trucks gas tank, located at the trucks right middle portion, which disproves the
conclusion of the Court of Appeals that the truck had already executed the U-turn when it was hit by the
car.
Moreover, the Court of Appeals said that the point of impact was on the lane where the car was cruising.
Therefore, the car had every right to be on that road and the car had the right of way over the truck that
was making a U-turn. Clearly, the truck encroached upon the cars lane when it suddenly made the U-
turn.

The Court of Appeals also concluded that Bedania made the U-turn at an intersection. Again, this is not
supported by the evidence on record. The police sketch does not indicate an intersection and only
shows that there was a road leading to the Orchard Golf Course near the place of the collision.
Furthermore, U-turns are generally not advisable particularly on major streets. Contrary to Videnas
testimony, it is not normal for a truck to make a U-turn on a highway. We agree with the trial court that
if Bedania wanted to change direction, he should seek an intersection where it is safer to maneuver the
truck. Bedania should have also turned on his signal lights and made sure that the highway was clear
of vehicles from the opposite direction before executing the U-turn.

The finding of the Court of Appeals that it was not yet dark when the collision occurred is also not
supported by the evidence on record. The report stated that the daylight condition at the time of the
collision was darkness.

Contrary to the conclusion of the Court of Appeals, the sheer size of the truck does not make it
improbable for the truck to execute a sudden U-turn. The trial courts decision did not state that the truck
was traveling at a fast speed when it made the U-turn. The trial court said the truck made a sudden
U-turn, meaning the U-turn was made unexpectedly and with no warning, as shown by the fact that the
trucks signal lights were not turned on.

Clearly, Bedanias negligence was the proximate cause of the collision which claimed the life of Antero
and injured the petitioners. Proximate cause is that which, in the natural and continuous sequence,
unbroken by any efficient, intervening cause, produces the injury, and without which the result would
not have occurred. The cause of the collision is traceable to the negligent act of Bedania for if the U-
turn was executed with the proper precaution, the mishap in all probability would not have happened.
The sudden U-turn of the truck without signal lights posed a serious risk to oncoming motorists. Bedania
failed to prevent or minimize that risk. The trucks sudden U-turn triggered a series of events that led to
the collision and, ultimately, to the death of Antero and the injuries of petitioners.

We agree with the trial court that de Silva, as Bedanias employer, is also liable for the damages suffered
by petitioners. De Silva failed to prove that he exercised all the diligence of a good father of a family in
the selection and supervision of his employees.

On the Award of Damages and Attorneys Fees

According to prevailing jurisprudence, civil indemnity for death caused by a quasi-delict is pegged at
P50,000. Moral damages in the amount of P50,000 is also awarded to the heirs of the deceased taking
into consideration the pain and anguish they suffered. Bienvenido Guillang (Bienvenido), Anteros son,
testified that Sofia, Anteros wife and his mother, became depressed after Anteros death and that Sofia
died a year after. Bienvenido also testified on the pain and anguish their family suffered as a
consequence of their fathers death. We sustain the trial courts award of P50,000 as indemnity for
death and P50,000 as moral damages to the heirs of Antero.

As to funeral and burial expenses, the court can only award such amount as are supported by proper
receipts. In this case, petitioners proved funeral and burial expenses of P55,000 as evidenced by
Receipt No. 1082, P65,000 as evidenced by Receipt No. 1146 and P15,000 as evidenced by Receipt
No. 1064, all issued by the Manila South Cemetery Association, Inc., aggregating P135,000. We reduce
the trial courts award of funeral and burial expenses from P185,000 to P135,000.

As to hospitalization expenses, only substantiated and proven expenses, or those that appear to have
been genuinely incurred in connection with the hospitalization of the victims will be recognized in court.
In this case, the trial court did not specify the amount of hospitalization expenses to be awarded to the
petitioners. Since petitioners presented receipts for hospitalization expenses during the trial, we will
determine the proper amounts to be awarded to each of them. We award hospitalization expenses of
P27,000.98 to the heirs of Antero, P10,881.60 to Llanillo, P5,436.77 to Dignadice, and P300 to Genaro
because these are the amounts duly substantiated by receipts.

We affirm the trial courts award of P508,566.03 for the repair of the car. The Court notes that there is
no dispute that Genaro was driving a brand new Toyota Corolla GLI sedan and that, after the collision,
the car was a total wreck. In this case, the repair order presented by Genaro is sufficient proof of the
damages sustained by the car.

Moral damages may be recovered in quasi-delicts causing physical injuries. However, in accordance
with prevailing jurisprudence, we reduce the award of moral damages from P50,000 to P30,000 each
to Llanillo, Dignadice, and Genaro since they only suffered physical injuries brought about by the
collision.

In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.
While the amount of exemplary damages need not be proved, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the court may consider the question of whether
or not exemplary damages should be awarded. In this case, Bedania was grossly negligent in suddenly
making a U-turn in the highway without signal lights. To serve as an example for the public good, we
affirm the trial courts award of exemplary damages in the amount of P50,000.

Finally, we affirm the trial courts award of attorneys fees in the amount of P100,000. Under Article
2208 of the Civil Code, attorneys fees may be recovered when, as in this case, exemplary damages
are awarded.

WHEREFORE, we REVERSE the 3 June 2003 Decision and 23 March 2004 Resolution of the Court of
Appeals in CA-G.R. CV No. 69289. We REINSTATE with MODIFICATIONS the 5 December 2000
Decision of the Regional Trial Court, Branch 30, Manila. We ORDER Rodolfo Bedania and Rodolfo de
Silva, jointly and severally, to pay the following amounts:

1. Funeral and Burial Expenses of P135,000 to the heirs of Antero Guillang;

2. Hospitalization Expenses of P27,000.98 to the heirs of Antero Guillang, P10,881.60 to Alvin
Llanillo, P5,436.77 to Jose Dignadice, and P300 to Genaro Guillang; and
3. Moral damages of P30,000 each to Alvin Llanillo, Jose Dignadice, and Genaro Guillang.

o0o

AMADO PICART, plaintiff and appellant, vs. FRANK SMITH, jr., defendant and appellee.

No. 12219. March 15, 1918

1. NEGLIGENCE; CRITERION FOR DETERMINING EXISTENCE OF NEGLIGENCE.The test for

determining whether a person is negligent in doing an act whereby injury or damage results to the
person or property of another is this: Would a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course
about to be pursued. If so, the law imposes a duty on the actor to refrain from that course or to take
precaution against its mischievous results, and the failure to do so constitutes negligence. Reasonable
foresight of harm, followed by the ignoring of the admonition born of this prevision, is the constitutive f
act in negligence.

2. ID.; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE NEGLIGENT ACTS.Where both parties are

guilty of negligence, but the negligent act of one succeeds that of the other by an appreciable interval
of time, the one who has the last reasonable opportunity to avoid the impending harm and fails to do so
is chargeable with the consequences, without reference to the prior negligence of the other party.

3. ID.; ID.; ID.; CASE AT BAR.The plaintiff was riding a pony on a bridge, Seeing an automobile
ahead he improperly pulled his horse over to the railing on the right. The driver of the automobile,
however, guided his car toward the plaintiff without diminution of speed until he was only a few feet
away. He then turned to the right but passed so closely to the horse that the latter being frightened,
jumped around and was killed by the passing car. Held: That although the plaintiff was guilty of
negligence in being on the wrong side of the bridge, the defendant was nevertheless civilly liable for the
legal damages resulting from the collision, as he had a fair opportunity to avoid the accident af ter he
realized the situation created by the negligence of the plaintiff and failed to avail himself of that
opportunity; while the plaintiff could by no means then place himself in a position of greater safety.

APPEAL from a judgment of the Court of First Instance of La Union. Camus, J.

The facts are stated in the opinion of the court.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr. , the sum of
P31,100, as damages alleged to have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability
the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles
per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning
of his approach. He continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before him was not observing the
rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached,
the defendant guided it toward his left, that being the proper side of the road for the machine. In so
doing the defendant assumed that the horseman would move to the other side. The pony had not as
yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony
was apparently quiet, the defendant, instead of veering to the right while yet some distance away or
slowing down, continued to approach directly toward the horse without diminution of speed. When he
had gotten quite near, there being then no possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the
railing where it was then standing; but in so doing the automobile passed in such close proximity to the
animal that it became frightened and turned its body across the bridge with its head toward the railing.
In so doing, it was struck on the hock of the left hind leg by the flange of the car and the limb was
broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in
the case we believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one-half meters. As a result of
its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge,
he had the right to assume that the horse and rider would pass over to the proper side; but as he moved
toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he
must in a moment have perceived that it was too late for the horse to cross with safety in front of the
moving vehicle. In the nature of things this change of situation occurred while the automobile was yet
some distance away; and from this moment it was not longer within the power of the plaintiff to escape
being run down by going to a place of greater safety. The control of the situation had then passed
entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that
there were no other persons on the bridge, to take the other side and pass sufficiently far away from
the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he
was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had
not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if
the animal in question was unacquainted with automobiles, he might get excited and jump under the
conditions which here confronted him. When the defendant exposed the horse and rider to this danger
he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined
by reference to the personal judgment of the actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the f facts involved in the
particular case. Abstract speculation cannot here be of much value but this much can be profitably said:
Reasonable men govern their conduct by the circumstances which are before them or known to them.
They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take
care only when there is something bef fore them to suggest or warn of danger. Could a prudent man,
in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was
the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm,
followed by the ignoring of the suggestion born of this prevision, is always necessary before negligence
can be held to exist. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position
of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to
warrant his foregoing the conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established.

A prudent man, placed in the position of the defendant, would, in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the
horse and rider as a reasonable consequence of that course. Under these circumstances the law
imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by
an appreciable interval. Under these circumstances the law is that the person who has the last fair
chance to avoid the impending harm and f ails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.

The decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part of
the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, a laborer, to assist in transporting iron rails from a barge in
Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At a certain spot near the water's edge the track gave way by reason
of the combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of a typhoon which had dislodged one of the supports
of the track. The court found that the defendant company was negligent in having failed to repair the
bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead 'of being in front or behind. It was held that while the
defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in
proper repair, nevertheless the amount of the damages should be reduced on account of the
contributory negligence of the plaintiff. As will be seen the defendant's negligence in that case consisted
in an omission only. The liability of the company arose from its responsibility for the dangerous condition
of its track. In a case like the one now before us, where the defendant was actually present and
operating the automobile which caused the damage, we do not f feel constrained to attempt to weigh
the negligence of the respective parties in order to apportion the damage according to the degree of
their relative fault. It is enough to say that the negligence of the def fendant was in this case the
immediate and determining cause of the accident and that the antecedent negligence of the plaintiff
was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the court
of a justice of the peace. In this connection it appears that soon after the accident in question occurred,
the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the
defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the
defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the
acquittal of the def fendant at a trial upon the merits in a criminal prosecution for the offense mentioned
would be res adjudicata upon the question of his civil liability arising from negligencea point upon
which it is unnecessary to express an opinionthe action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no such effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment
is here rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with
costs of both instances. The sum here awarded is estimated to include the value of the horse, medical
expenses of the plaintiff, the loss or damage occasioned to articles of -his apparel, and lawful interest
on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.

Arellano, C. J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.

Johnson, J., reserves his vote.

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because
of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is concurrent
with that of the defendant. Again, if a traveller when he reaches the point of collision is in a situation to
extricate himself and avoid injury, his negligence at that point will prevent a recovery. But Justice Street
finds as a fact that the negligent act of the defendant succeeded that of the plaintiff by an appreciable
interval of time, and that at that moment the plaintiff had no opportunity to avoid the accident.
Consequently, the "last clear chance" rule is applicable. In other words, when a traveller has reached a
point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence
in reaching that position becomes the condition and not the proximate cause of the injury and will not
preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

Judgment reversed.

o0o
EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors: ROSSEL,
GLORIA, YOLANDA, ERICSON and EDERIC, all surnamed BUSTAMANTE, Spouses
SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and ENRIQUETA
CEBU-RAMOS, Spouses NARCISO HIMAYA and ADORACION MARQUEZ-HIMAYA, and
Spouses JOSE BERSAMINA AND MA. COMMEMORACION PEREA-BUSTAMANTE, petitioners,
vs. THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND EDILBERTO
MONTESIANO, respondents.

G.R. No. 89880. February 6, 1991

Remedial Law; Civil Procedure; Appeals; Findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal, exceptions.As a rule, findings of fact of the Court of
Appeals are final and conclusive and cannot be reviewed on appeal, provided, they are borne out by
the record or are based on substantial evidence. However, this rule admits of certain exceptions, as
when the findings of facts are conclusions without citation of specific evidence on which they are based;
or the appellate courts findings are contrary to those of the trial court.

Same; Same; Same; Certiorari; Only questions of law may be raised in a petition for review on certiorari
under Rule 45 of the Revised Rules of Court.Furthermore, only questions of law may be raised in a
petition for review on certiorari under Rule 45 of the Revised Rules of Court. The jurisdiction of the
Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being conclusive.

Civil Law; Torts and Damages; Doctrine of last clear chance; The doctrine broadly states 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 plaintiffs negligence.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 plaintiffs negligence. In other words, the doctrine of last clear chance means that
even though a persons own acts may have placed him in a position of peril, and an injury results, the
injured person is entitled to recovery. 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.

Same; Same; Same; The doctrine does not arise where a passenger demands responsibility from the
carrier to enforce its contractual obligations.In the recent case of Philippine Rabbit Bus Lines, Inc. v.
Intermediate Appellate Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the Court citing the
landmark decision held in the case of Anuran, et al. v. Buno, et al. (123 Phil. 1073) ruled that the
principle of last clear chance in a suit between the owners and drivers of colliding vehicles. It does
not arise where a passenger demands responsibility from the carrier to enforce its contractual
obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on
the ground that the other driver was likewise guilty of negligence.

Same; Same; Same; It cannot be extended into the field of joint tortfeasors as a test of whether only
one of them should be held liable to the injured person by reason of his discovery of the latters peril
and it cannot be involved as between defendants concurrently negligent.Fur-thermore, as between
defendants: The doctrine cannot be extended into the field of joint tortfeasors as a test of whether only
one of them should be held liable to the injured person by reason of his discovery of the latters peril,
and it cannot be invoked as between defendants concurrently negligent. As against third persons, a
negligently actor cannot defend by pleading that another had negligentl failed to take action which could
have avoided the injury.

Same; Same; Same; Respondent Court committed an error of law in applying the doctrine of last clear
chance as between the defendants, case at bar.All premises considered, the Court is convinced that
the respondent Court committed an error of law in applying the doctrine of last clear chance as between
the defendants, since the case at bar is not a suit between the owners and drivers of the colliding
vehicles but a suit brought by the heirs of the deceased passengers against both owners and drivers of
the colliding vehicles. Therefore, the respondent court erred in absolving the owner and driver of the
cargo truck from liability.

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Dolorfino and Dominguez Law Offices for petitioners.

J.C. Baldoz & Associates for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari seeking the reversal of the decision of the respondent Court of
Appeals dated February 15, 1989 which reversed and set aside the decision of the Regional Trial Court
of Cavite, Branch XV ordering the defendants to pay jointly and severally the plaintiffs indemnity for
death and damages; and in further dismissing the complaint insofar as defendants-appellants Federico
del Pilar and Edilberto Montesiano are concerned; and its resolution dated August 17, 1989 denying
the motion for reconsideration for lack of merit.

The facts giving rise to the controversy at bar are recounted by the trial court as follows:

At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck,
with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No. DVT 259
along the national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of
the truck sideswiped the left side wall of the passenger bus, ripping off the said wall from the drivers
seat to the last rear seat.

Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries
they sustained, Among those killed were the following:

1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of
plaintiffs Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;

2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;

3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;

4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and

5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion Bersamina.
(Rollo, p. 48)

During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant Del
Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was registered in the name
of defendant Novelo but was owned and/ or operated as a passenger bus jointly by defendants
Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran, Paraaque, Metro
Manila, and vice versa, which Novelo sold to Magtibay on November 8, 1981, and which the latter
transferred to Serrado (Cerrado) on January 18, 1983.

Immediately before the collision, the cargo truck and the passenger bus were approaching each other,
coming from the opposite directions of the highway. While the truck was still about 30 meters away,
Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also observed that the truck
was heading towards his lane. Not minding this circumstance due to his belief that the driver of the truck
was merely joking, Susulin shifted from fourth to third gear in order to give more power and speed to
the bus, which was ascending the inclined part of the road, in order to overtake or pass a Kubota hand
tractor being pushed by a person along the shoulder of the highway. While the bus was in the process
of overtaking or passing the hand tractor and the truck was approaching the bus, the two vehicles
sideswiped each other at each others left side. After the impact, the truck skidded towards the other
side of the road and landed on a nearby residential lot, hitting a coconut tree and felling it. (Rollo, pp.
48-50)

After a careful perusal of the circumstances of the case, the trial court reached the conclusion that the
negligent acts of both drivers contributed to or combined with each other in directly causing the accident
which led to the death of the aforementioned persons. It could not be determined from the evidence
that it was only the negligent act of one of them which was the proximate cause of the collision. In view
of this, the liability of the two drivers for their negligence must be solidary. (Rollo, pp. 50-51) Accordingly,
the trial court rendered a decision on March 7, 1986, the dispositive portion is hereunder quoted as
follows:

WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren Novelo,
Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and severally to the
plaintiffs, as follows:

1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00 as
indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the loss of
the earning capacity of the said deceased, at its prevailing rate in pesos at the time this decision
shall have become final and executory; P10,000.00 as moral damages; and P5,000.00 as
exemplary damages;

2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the death
of their daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and P5,000.00 as
exemplary damages;

3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the death
of their daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as exemplary
damages; and

4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for the
death of their son, Enrico Himaya; P10,000.00 as moral damages; and P5,000.00 as exemplary
damages; and

5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as indemnity
for the death of their son, Noel Bersamina, P10,000.00 as moral damages; and P5,000.00 as
exemplary damages.

The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorneys fees and to
pay the costs of the suit.

The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and Serrado, the
actual owners and/or operators of the passenger bus concerned, are hereby ordered to indemnify
Novelo in such amount as he may be required to pay as damages to the plaintiffs.

The cross-claims and counter-claims of the other defendants are hereby dismissed for lack of merit.

SO ORDERED. (pp. 55-57, Rollo)

From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and driver,
respectively, of the sand and gravel truck have interposed an appeal before the respondent Court of
Appeals. The Court of Appeals decided the appeal on a different light. It rendered judgment on February
15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the complaint
dismissed insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned.
No costs in this instance.

SO ORDERED. (p. 96, Rollo)

On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the aforementioned Court
of Appeals decision. However, respondent Court of Appeals in a resolution dated August 17, 1989
denied the motion for lack of merit. Hence, this petition.

Petitioners raised the following questions of law, namely:

First. Whether the respondent Court can legally and validly absolve defendants-appellants from liability
despite its own finding, as well as that of the trial court that defendant-appellant Edilberto Montesiano,
the cargo truck driver, was driving an old vehicle very fast, with its wheels already wiggling, such that
he had no more control of his truck.

Second. Whether the respondent court can validly and legally disregard the findings of fact made by
the trial court which was in a better position to observe the conduct and demeanor of the witnesses,
particularly appellant Edilberto Montesiano, cargo truck driver, and which conclusively found appellant
Montesiano as jointly and severally negligent in driving his truck very fast and had lost control of his
truck.

Third. Whether the respondent court has properly and legally applied the doctrine of last clear chance
in the present case despite its own finding that appellant cargo truck driver Edilberto Montesiano was
admittedly negligent in driving his cargo truck very fast on a descending road and in the presence of
the bus driver coming from the opposite direction.

Fourth. Whether the respondent court has applied the correct law and the correct doctrine so as to
reverse and set aside the judgment with respect to defendants-appellants. (Rollo, pp. 133-134)

As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on
appeal, provided, they are borne out by the record or are based on substantial evidence. However, this
rule admits of certain exceptions, as when the findings of facts are conclusions without citation of
specific evidence on which they are based; or the appellate courts findings are contrary to those of the
trial court. (Sese v. Intermediate Appellate Court, G.R. 66168, 31 July 1987, 152 SCRA 585).

Furthermore, only questions of law may be raised in a petition for review on certiorari under Rule 45 of
the Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought to it from the Court
of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. It is not the function of the Supreme Court to analyze or weigh such evidence all over again,
its jurisdiction being limited to reviewing errors of law that might have been committed. Barring,
therefore, a showing that the findings complained of are totally devoid of support in the records, or that
they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand
for the Supreme Court is not expected or required to examine or contrast the oral and documentary
evidence submitted by the parties. (Andres v. Manufacturers Hanover and Trust Corp., G.R. 82670, 15
September 1989, 177 SCRA 618).

Bearing in mind these basic principles, We have opted to reexamine the findings of fact mainly because
the appellate courts findings are contrary to those of the trial court.

The trial court, in declaring that the negligent acts of both drivers directly caused the accident which led
to the death of the aforementioned persons, considered the following:

It was negligent on the part of driver Montesiano to have driven his truck fast, considering that it was
an old vehicle, being a 1947 model as admitted by its owner, defendant Del Pilar; that its front wheels
were wiggling; that the road was descending; and that there was a passenger bus approaching it.
Likewise, driver Susulin was also guilty of negligence in not taking the necessary precaution to avoid
the collision, in the light of his admission that, at a distance of 30 meters, he already saw the front
wheels of the truck wiggling and that the vehicle was usurping his lane coming towards his direction.
Had he exercised ordinary prudence, he could have stopped his bus or swerved it to the side of the
road even down to its shoulder. And yet, Susulin shifted to third gear so as to, as claimed by him, give
more power and speed to his bus in overtaking or passing a hand tractor which was being pushed along
the shoulder of the road. (Rollo, p. 50)

The respondent Court of Appeals ruling on the contrary, opined that the bus driver had the last clear
chance to avoid the collision and his reckless negligence in proceeding to overtake the hand tractor
was the proximate cause of the collision. (Rollo, p. 95). Said court also noted that the record also
discloses that the bus driver was not a competent and responsible driver. His drivers license was
confiscated for a traffic violation on April 17, 1983 and he was using a ticket for said traffic violation on
the day of the accident in question (pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a
regular driver of the bus that figured in the mishap and was not given any practical examination. (pp.
11, 96, TSN, supra). (Rollo, p. 96)

The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held that
We are not prepared to uphold the trial courts finding that the truck was running fast before the impact.
The national road, from its direction, was descending. Courts can take judicial notice of the fact that a
motor vehicle going down or descending is more liable to get out of control than one that is going up or
ascending for the simple reason that the one which is going down gains added momentum while that
which is going up loses its initial speeding in so doing.

On the other hand, the trial court found and We are convinced that the cargo truck was running fast. It
did not overlook the fact that the road was descending as in fact it mentioned this circumstance as one
of the factors disregarded by the cargo truck driver along with the fact that he was driving an old 1947
cargo truck whose front wheels are already wiggling and the fact that there is a passenger bus
approaching it. In holding that the driver of the cargo truck was negligent, the trial court certainly took
into account all these factors so it was incorrect for the respondent court to disturb the factual findings
of the trial court, which is in a better position to decide the question, having heard the witnesses
themselves and observed their deportment.

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 plaintiffs negligence. In other words, the
doctrine of last clear chance means that even though a persons own acts may have placed him in a
position of peril, and an injury results, the injured person is entitled to recovery. 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 plaintiffs
peril, or according to some authorities, should have been aware of it in the reasonable exercise of due
case, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp.
798-799).

In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al. (G.R. Nos.
66102-04, August 30, 1990), the Court citing the landmark decision held in the case of Anuran, et al. v.
Buno, et al. (123 Phil. 1073) ruled that the principle of last clear chance applies in a suit between the
owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility
from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent
driver of the jeepney and its owners on the ground that the other driver was likewise guilty of
negligence.

Furthermore, as between defendants: The doctrine cannot be extended into the field of joint tortfeasors
as a test of whether only one of them should be held liable to the injured person by reason of his
discovery of the latters peril, and it cannot be invoked as between defendants concurrently negligent.
As against third persons, a negligent actor cannot defend by pleading that another had negligently failed
to take action which could have avoided the injury. (57 Am. Jur. 2d, pp. 806-807).

All premises considered, the Court is convinced that the respondent Court committed an error of law in
applying the doctrine of last clear chance as between the defendants, since the case at bar is not a suit
between the owners and drivers of the colliding vehicles but a suit brought by the heirs of the deceased
passengers against both owners and drivers of the colliding vehicles. Therefore, the respondent court
erred in absolving the owner and driver of the cargo truck from liability.

Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the
deceased, their respective awards of P30,000.00 are hereby increased to P50,000.00.

ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of
Appeals are hereby REVERSED and SET ASIDE and the judgment of the lower court is REINSTATED
with the modification on the indemnity for death of each of the victims which is hereby increased to
P50,000.00 each. No pronouncement as to costs.

SO ORDERED.

Narvasa (Chairman), Cruz, Gancayco and Grio-Aquino, JJ., concur.

Petition granted. Judgment and resolution reversed and set aside.

Note.Doctrine is not applicable where the party charged is required to act instantaneously.
(Pantranco North Express Inc. vs. Baesa, 179 SCRA 384.)

o0o

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.

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

Evidence; Hearsay Rule; Res Gestae; Requisites for Admissibility Of;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 CAs part in view of the satisfaction of said requisites in the case
at bar.

Same; Disputable Presumptions; The presumption that evidence willfully suppressed would be adverse
if produced does not operate if the evidence suppressed is equally available to both parties.Finally,
We do not agree that the taking of Ernesto de la Cruz testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the
application of said Rule as against a party to a case, it is necessary that the evidence alleged to be
suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The
presumption does not operate if the evidence in question is equally available to both parties (Staples-
Howe 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.

Torts and Damages; Negligence; When an act of God combines with defendants negligence to produce
an injury, defendant is liable if the injury would not have resulted but for his own negligent conduct.
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 victims death. It was through the
intervention of petitioners negligence that death took place. x x x 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 victims 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).

Same; Damages; Attorneys Fees; Award of damages and attorneys fees is unwarranted if the action
was filed in good faith; there should be no penalty on the right to litigate.The exclusion of moral
damages and attorneys 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 this case being a mere
product of wishful thinking and speculation. Award of damages and attorneys 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 persons exercising his legal rights, it is damnum absque
injuria (Auyong Hian vs. CTA, 59 SCRA 110).

PETITION for review from the decision of the Court of Appeals. San Diego, J.

The facts are stated in the opinion of the Court.

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; attorneys 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 parties 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 sonin-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. 102-103, 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 lines-
men 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 defendants 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 oclock 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 petitioners 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 deceaseds 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 attorneys 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 the res
gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in holding
that the strong typhoon Gening which struck Laoag City and Ilocos Norte on June 29, 1967
and the flood and deluge it brought in its wake were not fortuitous events and did not exonerate
petitioner-company from liability for the death of Isabel Lao Juan.

3. The respondent Court of Appeals 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 attorneys fees to defendant
corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable for 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 deceaseds death; and (3) whether or not the
respondent CAs substitution of the trial courts factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died of
electrocution, a conclusion which can be primarily derived from the photographed burnt wounds
(Exhibits C, C-1, C-2) on 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 Geurrero 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, petitioners 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 Cruzs 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 statament must be one of facts rather than opinion, We cannot agree to the
proposition that the one made by him was a mere opinion. On the contrary, his shout was a translation
of an actuality as perceived by him through his sense of touch.

Finally, We do not agree that the taking of Ernesto de la Cruz testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the
application of said Rule as against a party to a case, it is necessary that the evidence alleged to be
suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The
presumption does not operate if the evidence in question is equally available to both parties (Staples-
Howe 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 Estavillos
suggestion to petitioners 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
victims death. It was through the intervention of petitioners 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 defendants employees were supposed to do, not on what they actually did or failed
to do on the date in question, and not on the occasion of the emergency situation brought about by the
typhoon.

The lower court made a mistake in assuming that defendants 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, defendants electrical engineer, testified that he
conducted a general inspection of the franchise area of the INELCO only on June 30, 1967, the day
following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. (p.
337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. on June 30 and after
briefing his men on what to do they started out. (p. 338, Ibid) 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 in constant
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 victims 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 latters 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 deceaseds 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 petitioners 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 petitioners negligence (ibid., p. 1165, 1166).

But petitioner assails the CA for having abused its discretion in completely reversing the trial courts
findings of fact, pointing to the testimonies of three of its employeesits electrical engineer, collector-
inspector, lineman, and president-managerto 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 (petitioners Memorandum, p. 170, Rollo). However, as the CA properly held, (t)he
finding of the lower court . . . was based on what the defendants 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,
petitioners 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 petitioners 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 defendants switch be cut offbut 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 courts 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 respondents
favor: P30,229.45 in actual damages (i.e., P12,000 for the victims 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 attorneys fees; and costs of suit. Except for the
award of P12,000 as compensation for the victims death, We affirm the respondent CAs award for
damages and attorneys 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 attorneys 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 this case
being a mere product of wishful thinking and speculation. Award of damages and attorneys 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 persons 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.

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

Decision affirmed with slight modification.

Note.An admission of having killed the victim made about an hour after the stabbing incident is not
admissible as part of the res gestae but as an oral confession binding only against the declarant.
(People vs. Tulagan, 143 SCRA 107).

o0o
 AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.

No. L-21438. September 28, 1966.

Common carriers; Contracts; First class tickets.A written document speaks a uniform language; the
spoken word could be notoriously unreliable. If only to achieve stability in the relations between
passenger and air carrier, adherence to the terms of a ticket is desirable.

Same; Damages; Moral damages; Trial; Bad faith in breach of contract of carriage.Where at the start
of the trial, respondent's counsel placed petitioner on guard that he intended to prove that, while sitting
in the plane in Bangkok, the respondent was ousted .by petitioner's manager, who gave his seat to a
white man, and evidence of bad faith in the fulfillment of the contract was presented without objection
on the part of the petitioner, it is therefore unnecessary to inquire as to whether or not there is sufficient
averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any,
was cured by the evidence.

Same; Exemplary damages.The New Civil Code gives the court ample power to grant exemplary
damages in contracts and quasi-contracts. The only condition is that defendant should have acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner. The manner of ejectment of
respondent Carrascoso from his first-class seat fits into this legal precept.

Same; Attorney's fees.The right to attorney's fees is fully established. The grant of exemplary
damages justifies a similar judgment for attorney's fees. The least that can be said is that the courts
below felt that it is but just and equitable that attorneys fees be given. We do not intend to break tradition
that discretion well exercisedas it was hereshould not be disturbed.

PETITION for review by certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Lichauco, Picazo & Agcaoili for petitioner.

Bengzon, Villegas & Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila sentenced petitioner to' pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the
difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus
P3,000.00 for attorneys' fees; and the costs of suit.

On appeal, the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket
from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects'', with costs
against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as "fully supported by the evidence of record", are:

"Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes
on March 30, 1958:

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a 'first class' round trip airplane ticket from Manila to Rome. From Manila to Bangkok,
plaintiff travelled in 'first class', but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the 'first class' seat that he was occupying because, in the words of the witness Ernesto G.
Cuento, there was a 'white man', who, the Manager alleged, had a 'better right' to the seat. When asked
to vacate his 'first class' seat, the plaintiff, as was to be expected, refused, and told defendant's Manager
that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto
G, Cuento, 'many of the Filipino passengers got nervous in the tourist class; when they found out that
Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr.
Carrascoso and pacified Mr. Carrascoso to give his seat to the white man' (Transcript, p. 12, Hearing
of May 26, 1959); and plaintiff reluctantly gave his 'first class' seat. in the plane."

1. The trust of the relief petitioner now seeks is that we review "all the findings" of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the
issues properly laid before it. We are asked to consider- facts favorable to petitioner, and then, to
overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of
record without expressing therein clearly and distinctly the facts and the law on which it is based". This
is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly
and distinctly the facts and the law on which it is based"; and that "Every decision of the Court of Appeals
shall contain complete findings of fact on all issues properly raised before it".

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. The law, however,
solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is
drawn, A court of justice is not hidebound to write in its decision every bit and piece of evidence
presented by one party and the other upon the issues raised. Neither is it to be burdened with the
obligation "to specify in the sentence the facts" which a party "considered as proved". This is but a part
of the mental process from which the Court draws the essential ultimate facts. A decision is not to be
so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the
Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to
withhold therefrom "any specific - finding of facts with respect to the evidence for the defense". Because,
as this Court well observed, "There is no law that so requires". Indeed, "the mere failure to specify (in
the decision) the contentions of the appellant and the reasons for refusing to believe them is not
sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution".
It is in this setting. that in Manigque, it was held that the mere fact that the findings "were based entirely
on the evidence for the prosecution without taking into consideration or even mentioning the appellant's
side in the controversy as shown by his own testimony", would not vitiate the judgment. If the court did
not recite in the decision the testimony of each witness for, or each item of evidence presented by, the
defeated party, it does not mean that the court has overlooked such testimony or such item of evidence.
At any rate, the legal presumptions are that official duty has been regularly performed, and that all the
matters within an issue in a case were laid before the court and passed upon by it.

Findings of fact, which the Court of Appeals is required to make, maybe* defined as "the written
statement of the ultimate facts as found by the court 'x 'x 'x and essential to support the decision and
judgment rendered thereon". They consist of the court's "conclusions" with respect to the determinative
facts in issue". A question of law, upon the other hand. has been declared as "one which does not call
for an examination of the probative value of the evidence presented by the parties."

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the
Court of Appeals. That judgment is conclusive as to the facts. It is not appropriately the business of this
Court to alter the facts or to review the questions of fact.

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals
support its judgment.

3. Was Carrascoso entitled to the first-class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first-class
ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance
of a first-class ticket was no guarantee that he would have a first class ride, but that such would depend
upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court
of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff
had confirmed reservations for, and a right to, first class seats on the 'definite' segments of his journey,
particularly that from Saigon to Beirut".

And, the Court of Appeals disposed of this contention thus:

"Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the first-
class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could have the indiscretion to give
out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with
the ordinary course of business that the company should know whether or not the tickets it issues are
to be honored or not."

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

"On the fact that plaintiff paid for, and was issued a 'First class' ticket, there can be no question. Apart
from his testimony, see plaintiff's Exhibits 'A, 'A-1', 'B', 'B-1', 'B-2', 'C' and 'C-1', and defendant's own
witness. Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks 'O.K.' From what you know, what does this O.K. mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A, Yes, 'first class'. (Transcript, p. 169)

x x x x

"Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a 'first class' airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence. and plaintiffs Exhibits 'A', 'A-1', 'B', 'B-1' 'C' and 'C-1'
belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first
class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a 'first class' accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the 'first class' ticket
issued to him by defendant wouild be subject to confirmation in Hongkong."

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court
of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the
judgment of the lower court. Implicit in that affirmance is a determination by the Court of Appeals that
the proceeding in the Court of Firts Instance was free from prejudicial error and "all questions raised by
the assignments of error and all questions that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all
error". We reached this policy construction because nothing in the decision of the Court of Appeals on
this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor
was said affirmance by the Court of Appeals upon a ground or grounds different from those which were
made the basis of the conclusions of the trial court.
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class set, nothwithstanding
the fact that seat availability in apecific flights is therein confirmed, then an air passenger is placed in
the hollow of the hands of an airline. What security then can a passenger have? it will always be an
easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say
that there was a verbal agreement to the contrary. What if the passenger hada a schedule to fulfill? We
have long learned that, as a rule, a written document speaks a uniform language; that spoken word
could be notoriously unreliable. If only to achieve stability in the relations between passenger and air
carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused
to believe the oral evidence intended to defeat the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the
Court of Appeals predicated the finding that respondent Carrascoso had a first-class ticket and was
entitled to a first-class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. We
perceive no "welter of distortions by the Court of Appeals of petitioner's statement of Its position", as
charged by petitioner. Nor do we subscribe to petitioner's accusation that respondent Carrascoso
"surreptitiously took a first-class seat to provoke an issue". And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from
Saigon I) was told again to see the Manager".Why, then, was he allowed to take a first class seat in the
plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages
there must be an averment of fraud or bad faith; and that the decision of the Court of Appeals fails to
make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:

"3. That x x x plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First
Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with
Hongkong as starting point up to and until plaintiffs return trip to Manila, x x x.

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, x x x the
plaintiff has been compelled by defendant's employees to leave the First Class accommodation
berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and

embarrassments brought by defendant's breach of contract was forced to take a Pan American
World Airways plane on his return trip from Madrid to Manila.
x x x x x x x x x

7. That likewise, as a result of defendant's failure to furnish First Class accommodations

aforesaid. plaintiff suffered inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the
like injury, resulting in moral damages in the amount of P30,000.00."

x x x x

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a
first-class passage covering, amongst others, the BangkokTeheran leg; Second, That said contract was
breached when petitioner failed to furnish first class transportation at Bangkok; and Third, That there
was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation
berth "after he was already seated" and to take a seat in the tourist class, by reason of which he suffered
inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious
anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no
specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be
drawn from the facts and circumstances set forth therein. The contract was averred to establish the
relation between the parties. But the stress of the action is put on wrongf ul expulsion.

Quite apart from the foregoing is that (a) right at the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok,
Carrascoso was ousted by petitioner's manager who gave his seat to a white man; and (b) evidence of
bad faith' in the fulfillment of the contract was presented without objection on the part of the petitioner.
It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint
to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence.
An amendment thereof to conform to the evidence is not even required. On the question of bad faith,
the Court of Appeals declared:

"That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:

'First-class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene',

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of
the plane who was asked by the manager of defendant company at Bangkok to intervene even refused
to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence
for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but defendant did neither.

The Court of Appeals further stated

"Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence,
if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had
already been taken, surely the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence committed by defendant's
employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened
there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning
of the letters 'O.K.' appearing on the tickets of plaintiff, said 'that the space is confirmed' for first class.
Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office
of defendant, testified as follows:

'Q. How does the person in the ticket-issuing office know what reservation the passenger has arranged
with you?

A. They call us up by phone and ask for the confirmation.' (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

'Why did the, using the words of witness Ernesto G. Cuento, 'white man' have a 'better right' to the seat
occupied by Mr. Carrascoso ? The record is silent. The defendant airline did not prove 'any better', nay,
any right on the part of the 'white man' to the 'First class' seat that the plaintiff was occupying and for
which he paid and was issued a corresponding 'first class' ticket.

'lf there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court] ; and, under the circumstances, the Court is constrained to
find, as it does find. that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his 'first class seat because
the said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the
'white man'."

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the
term "bad faith". But can it be doubted that the recital of facts therein points to bad faith ? The manager
not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to
the tourist class compartmentjust to give way to another passenger whose right thereto has not been
established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating
with furtive design or with some motive of self-interest or ill will or for ulterior purpose, "

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:

"The evidence shows that defendant violated its contract of transportation with plaintiff in bad faith, with
the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening
the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the 'first
class' seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a 'white
man' whom he (defendant's Manager) wished to accommodate, and the defendant has not proven that
this 'white man' had any 'better right' to occupy the 'first class' seat that the plaintiff was occupying, duly
paid for, and for which the corresponding 'first class' ticket was issued by the defendant to him."

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well
settled in law. For the willful malevolent act of petitioner's manager, petitioner, his employer, must
answer. Article 21 of the Civil Code says:

"ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage."

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions
of Article 2219 (10), Civil Code, moral damages are recoverable.

6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. And this, because of the relation which an air-carrier sustains with the public. Its business is
mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carriers
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So it is,
that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an
action for damages against the carrier.

Thus, "Where a steamship company had accepted a passenger's check, it was a breach of contract
and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that
the check was worthless and demand payment under threat of ejection, though the language used was
not insulting and she was not ejected." And this, because, altho the relation of passenger and carrier is
"contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort".
And in another case, "Where a passenger on a railroad train, when the conductor came to collect his
fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that
as soon as the train reached such point he would pay the cash fare from that point to destination, there
was nothing in the conduct of the passenger which justified the conductor in using insulting language
to him, as by calling him a lunatic." and the Supreme Court of South Carolina there held the carrier
liable for the mental suffering of said passenger.

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action
as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner
air carriera case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

"Q. You mentioned about an attendant. Who is that attendant and purser?
A. When we left alreadythat was already in the tripI could not help it. So one of the flight
attendants approached me and requested 'f rom me my ticket and I said, What for? and she said,
"We will note that you transferred to the tourist class'. I said, 'Nothing of that kind. That is
tantamount to acc epting my transfer.' And I also said, 'You are not going to note anything there
because I am protesting to this transfer'.
Q. Was she able to note it?
A. No, because I) did not give my ticket.
Q. About that purser ?
A. Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room,
I stood up and I went to the pantry that was next to me and the purser was there. He told me, 'I
have recorded the incident in my notebook.' He read it and translated it to mebecause it was
recorded in French'First class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene.'

Mr. VALTE
'I move to strike out the last part of the testimony of the witness because the best evidence would
be the notes. Your Honor.
COURT
'I will allow that as part of his testimony."

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook
reading "First class passenger was forced to go to the tourist class against his will, and that the captain
ref used to intervene is predicated upon evidence [Carrascoso's testimony above] which is
incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident.
Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony
is admissible.

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down,
Statements then, in this environment, are admissible as part of the res gestae. For, they grow "out of
the nervous excitement and mental and physical condition of the declarant". The utterance of the purser
regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. It thus escapes the operation of the hearsay rule. It
forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would
have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really
true that no such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages. in contracts and quasi-contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner". The manner of
ejectment of respondent Carrascoso from his first-class seat fits into this legal precept. And this, in
addition to moral damages.

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and
equitable that attorneys' fees be given. We do not intend to break faith with the tradition that discretion
well exercisedas it was hereshould not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals,
thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as
attorneys' fees. The task of fixing these amounts is primarily with the trial court. The Court of Appeals
did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto.
Because, the facts and circumstances point to the reasonableness thereof.

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered,

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala. Makalintal, Zaldivar and Castro. JJ. concur.

Bengzon, J.P., J., did not take part.

Decision affirmed.

Note.See Northwest Airlines, Inc. vs. Cuenca, L-22424, Aug. 31, 1965 and the annotation under
Lopez vs. Pan American World Airways, L-22415, March 30, 1966, 16 Supreme Court Reports
Annotated 431, 445.

o0o

JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs, vs. BANK OF THE PHILIPPINE
ISLANDS and SANTIAGO FREIXAS, in his capacity as President of the said Bank, defendants.

No. L-24837. June 27, 1968.

Civil law; Tort; Damages; Existence of a contract between the parties is not a bar to the commission of
a, tort by the one against the other.It has been repeatedly held: that the existence of a contract
between the parties does not bar the commission of a tort by the one against the other and the
consequent recovery 01 damages therefor (Cangco v. Manila Railroad, 38 Phil. 768; Yamada v. Manila
Railroad, 33 Phil. 8; Vasquez v. Borja, 74 Phil. 560). Indeed, this view has been, in effect, reiterated in
a comparatively recent case. Thus, in Air France vs. Carrascoso, L-21438, Sept. 28, 1966, involving an
airplane passenger who, despite his first-class ticket, had been illegally ousted from his first-class
accomodation and compelled to take a seat in the tourist compartment, was held entitled to recover
damages from the air-carrier, upon the ground of tort on the latters part, for, although the relation
between a passenger and a carrier is contractual both in origin and nature the act that breaks the
contract may also be a tort.

APPEAL from a judgment of the Court of First Instance of Manila. Montesa, J.

The facts are stated in the opinion of the Court.

Gil B. Galang for plaintiffs.

Aviado & Aranda for defendants.

CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of the Court of
First Instance of Manila dismissing their complaint against defendants herein, the Bank of the Philippine
Islands and Santiago Freixas.

It appears that Singson, was one of the defendants in Civil Case No. 23906 of the Court of First
Instance, Manila, in which judgment had been rendered sentencing him and his co-defendants therein,
namely, Celso Lobregat and Villa-Abrille & Co., to pay the sum of P105,539.56 to the plaintiff therein,
Philippine Milling Co. Singson and Lobregat had seasonably appealed from said judgment, but not Villa-
Abrille & Co., as against which said judgment, accordingly, became final and executory. In due course,
a writ of garnishment was subsequently served upon the Bank of the Philippine Islandsin which the
Singsons had a current accountinsofar as Villa-Abrilles credits against the Bank were concerned.
What happened thereafter is set forth in the decision appealed from, from which we quote:

Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all matters of execution
and garnishment, upon reading the name of the plaintiff herein in the title of the Writ of Garnishment as
a party defendant, without further reading the body of the said garnishment and informing himself that
said garnishment was merely intended for the deposits of defendant Villa-Abrille & Co., Valentin Teus,
Fernando F. de Villa-Abrille and Joaquin Bona, prepared a letter for the signature of the President of
the Bank informing the plaintiff Julian C. Singson of the garnishment of his deposits by the plaintiff in
that case. Another letter was also prepared and signed by the said President of the Bank for the Special
Sheriff dated April 17, 1963.

Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the amount of P383 in favor
of B.M. Glass Service dated April 16, 1963 and bearing No. C-424852, and check No. C-394996 for the
amount of P100 in favor of the Lega Corporation, and drawn against the said Bank, were deposited by
the said drawees with the said bank. Believing that the plaintiff Singson, the drawer of the check, had
no more control over the balance of his deposits in the said bank, the checks were dishonored and were
refused payment by the said bank. After the first check was returned by the bank to the B.M. Glass
Service, the latter wrote plaintiff Julian C. Singson a letter, dated April 19, 1963, advising him that his
check for P383.00 bearing No. C-424852 was not honored by the bank for the reason that his account
therein had already been garnished. The said B.M. Glass Service further stated in the said letter that
they were constrained to close his credit account with them. In view thereof, plaintiff Julian C. Singson
wrote the defendant bank a letter on April 19, 1963, claiming that his name was not included in the Writ
of Execution and Notice of Garnishment, which was served upon the bank. The defendant President
Santiago Freixas of the said bank took steps to verify this information and after having confirmed the
same, apologized to the plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963,
requesting him to disregard their letter of April 17, 1963, and that the action of garnishment from his
account had already been removed. A similar letter was written by the said official of the bank on April
22, 1963 to the Special Sheriff informing him that his letter dated April 17, 1963 to the said Special
Sheriff was considered cancelled and that they had already removed the Notice of Garnishment from
plaintiff Singsons account. Thus, the defendants lost no time to rectify the mistake that had been
inadvertently committed, resulting in the temporary freezing of the account of the plaintiff with the said
bank for a short time.

x x x x

On May 8, 1963, the Singsons commenced the present action against the Bank and its president,
Santiago Freixas, for damages in consequence of said illegal freezing of plaintiffs account.

After appropriate proceedings, the Court of First Instance of Manila rendered judgment dismissing the
complaint upon the ground that plaintiffs cannot recover from the defendants upon the basis of a quasi-
delict, because the relation between the parties is contractual in nature; because this case does not fall
under Article 2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs have not
established the amount of damages allegedly sustained by them.

The lower court held that plaintiffs claim for damages cannot be based upon a tort or quasi-delict, their
relation with the defendants being contractual in nature. We have repeatedly held, however, that the
existence of a contract between the parties does not bar the commission of a tort by the one against
the order and the consequent recovery of damages therefor. Indeed, this view has been, in effect,
reiterated in a comparatively recent case. Thus, in Air France vs. Carrascoso, involving an airplane
passenger who, despite his first-class ticket, had been illegally ousted from his first-class
accommodation and compelled to take a seat in the tourist compartment, was held entitled to recover
damages from the air-carrier, upon the ground of tort on the latters part, for, although the relation
between a passenger and a carrier is contractual both in origin and nature x x x the act that breaks the
contract may also be a tort.

In view, however, of the facts obtaining in the case at bar, and considering, particularly, the
circumstance that the wrong done to the plaintiffs was remedied as soon as the President of the bank
realized the mistake he and his subordinate employee had committed, the Court finds that an award of
nominal damagesthe amount of which need not be provenin the sum of P1,000, in addition to
attorneys fees in the sum of P500, would suffice to vindicate plaintiffs rights.

WHEREFORE, the judgment appealed from is hereby reversed, and another one shall be entered
sentencing the defendant Bank of the Philippine Islands to pay to the plaintiffs said sums of P1,000, as
nominal damages, and P500, as attorneys fees, apart from the costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur.

Fernando, J., took no part.

Judgment reversed.

Notes.The principle in the Singson case, supra, that the existence of a contract between the parties
does not bar the commission of a tort by the one against the other and the consequent recovery of
damages therefor modifies in effect the rule that liability for quasi-delict arises if no pre-existing
contractual relation between the parties exists (Flores v. Miranda, L-12163, March 4, 1959; Art. 2176,
N.C.C.). Noteworthy to state here is the ruling that the definition of quasi-delict in Article 2176 of the
new Civil Code expressly excludes the cases where there is a pre-existing contractual relationship
between the parties (Verzosa v. Baytan, et al, L-14092, April 29, 1960). Cf. Annotation entitled
Recovery of Damages Based on Quasi-delict, 22 SCRA 567577.

o0o

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.

G.R. No. L-7664 August 29, 1958

Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that
his death was caused by his own negligence or by unavoidable accident. Defendant also avers that it
had exercised due diligence in the selection of, and supervision over, its employees and that it had
observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the
amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon
City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children
is charged. The main pool it between two small pools of oval shape known as the "Wading pool" and
the "Beginners Pool." There are diving boards in the big pools and the depths of the water at different
parts are indicated by appropriate marks on the wall. The care and supervision of the pools and the
users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando
Rule, a male nurse, and six lifeguards who had taken the life-saving course given by the Philippine Red
Cross at the YMCA in Manila. For the safety of its patrons, defendant has provided the pools with a ring
buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in
charge of a clinic established for the benefit of the patrons. Defendant has also on display in a
conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits
the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-
time physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready
to administer injections or operate the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This
was not the first time that the three brothers had gone to said natatorium for they had already been
there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying the
requisite admission fee, they immediately went to one of the small pools where the water was shallow.
At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in an adjoining
building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving
Dominador in the small pool and so they did not see the latter when he left the pool to get a bottle of
coke. In that afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel Abao
and Mario Villanueva. The tour of duty of Abao was from 8:00 to 12:00 in the morning and from 2:00
to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between
4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool area and Manuel Abao
was going around the pools to observe the bathers in compliance with the instructions of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of
Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abao of the same happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The body
was placed at the edge of the pool and Abao immediately applied manual artificial respiration. Soon
after, male nurse Armando Rule came to render assistance, followed by sanitary inspector Iluminado
Vicente who, after being called by phone from the clinic by one of the security guards, boarded a jeep
carrying with him the resuscitator and a medicine kit, and upon arriving he injected the boy with
camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University
of the Philippines. Meanwhile, Abao continued the artificial manual respiration, and when this failed to
revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long thereafter,
Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the
boy already dead. The doctor ordered that the body be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department
of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los
Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the
deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right forehead;
hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial subcortical
hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with fine froth in
the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and brownish fluid in
the stomach. The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The
first article provides that "whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict.
Under the second article, this obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or
by implication invited are legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of making them reasonably safe for
visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without the fault of the patron, he is not, however, in
any sense deemed to be the insurer of the safety of patrons. And the death of a patron within
his premises does not cast upon him the burden of excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co.,
161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could
be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium, where
it appeared merely that he was lastly seen alive in water at the shallow end of the pool, and
some ten or fifteen minutes later was discovered unconscious, and perhaps lifeless, at the
bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be
observed is that the person claiming damages has the burden of proving that the damage is caused by
the fault or negligence of the person from whom the damage is claimed, or of one of his employees
(Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that
arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the
part of appellee so as to render it liable for damages for the death of Dominador Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not placing at the swimming pools efficient and competent
employees who may render help at a moment's notice, and they ascribed such negligence to appellee
because the lifeguard it had on the occasion minor Ong was drowning was not available or was
attending to something else with the result that his help came late. Thus, appellants tried to prove
through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr.
detected that there was a drowning person in the bottom of the big swimming pool and shouted to the
lifeguard for help, lifeguard Manuel Abao did not immediately respond to the alarm and it was only
upon the third call that he threw away the magazine he was reading and allowed three or four minutes
to elapse before retrieving the body from the water. This negligence of Abao, they contend, is
attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is belied
by the written statements given by them in the investigation conducted by the Police Department of
Quezon City approximately three hours after the happening of the accident. Thus, these two boys
admitted in the investigation that they narrated in their statements everything they knew of the accident,
but, as found by the trial, nowhere in said statements do they state that the lifeguard was chatting with
the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm
was given for which reason he failed to immediately respond to the alarm. On the contrary, what Ruben
Ong particularly emphasized therein was that after the lifeguard heard the shouts for help, the latter
immediately dived into the pool to retrieve the person under water who turned out to be his brother. For
this reason, the trial court made this conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr.
as to the alleged failure of the lifeguard Abao to immediately respond to their call may therefore be
disregarded because they are belied by their written statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause their death.
Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy, toy roof,
towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with
black colors so as to insure clear visibility. There is on display in a conspicuous place within the area
certain rules and regulations governing the use of the pools. Appellee employs six lifeguards who are
all trained as they had taken a course for that purpose and were issued certificates of proficiency. These
lifeguards work on schedule prepared by their chief and arranged in such a way as to have two guards
at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary inspector
with a clinic provided with oxygen resuscitator. And there are security guards who are available always
in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to bring him back to life. Thus, after he was placed at
the edge of the pool, lifeguard Abao immediately gave him manual artificial respiration. Soon
thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought
with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the inspector
immediately injected him with camphorated oil. When the manual artificial respiration proved ineffective
they applied the oxygen resuscitator until its contents were exhausted. And while all these efforts were
being made, they sent for Dr. Ayuyao from the University of the Philippines who however came late
because upon examining the body he found him to be already dead. All of the foregoing shows that
appellee has done what is humanly possible under the circumstances to restore life to minor Ong and
for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help, appellants
now switch to the theory that even if it be assumed that the deceased is partly to be blamed for the
unfortunate incident, still appellee may be held liable under the doctrine of "last clear chance" for the
reason that, having the last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply considering that the record does not show how minor Ong
came into the big swimming pool. The only thing the record discloses is that minor Ong informed his
elder brothers that he was going to the locker room to drink a bottle of coke but that from that time on
nobody knew what happened to him until his lifeless body was retrieved. The doctrine of 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. Or, "As the doctrine usually
is stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding
the negligent acts of his opponent or the negligence of a third person which is imputed to his opponent,
is considered in law solely responsible for the consequences of the accident." (38 Am. Jur. pp. 900-
902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the negligence of the defendant succeeded
the negligence of the plaintiff by an appreciable interval. Under these circumstances, the law is
that a person who has the last clear chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.
(Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that he
went there without any companion in violation of one of the regulations of appellee as regards the use
of the pools, and it appearing that lifeguard Aba__o responded to the call for help as soon as his
attention was called to it and immediately after retrieving the body all efforts at the disposal of appellee
had been put into play in order to bring him back to life, it is clear that there is no room for the application
of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand
after the peril is or should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported by
the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both
parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing
he might have hit or bumped his forehead against the bottom of the pool, as a consequence of which
he was stunned, and which to his drowning. As a boyscout he must have received instructions in
swimming. He knew, or have known that it was dangerous for him to dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ., concur.

o0o

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, vs. THE

INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents

No. L-65295. March 10,1987.

Torts; Evidence; Private respondent had no curfew pass during the night the accident took place. The
certification by a major assigned in Pampanga that respondent has a curfew pass is not credible as it
lacks the necessary details.Private respondent Dionisio was not able to produce any curfew pass
during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass.
He also offered a certification (dated two years after the accident) issued by one Major Benjamin N.
Libarnes of the Zone Integrated Police Intelligence Unit of Campo Olivas, San Fernando, Pampanga,
which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This
certification was to the effect that private respondent Dionisio had a valid curfew pass. This certification
did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew
pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass
during the night of the accident and that the preponderance of evidence shows that he did not have
such a pass during that night. The relevance of possession or non-possession of a curfew pass that
night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home
and whether he had indeed purposely put out his headlights before the accident, in order to avoid
detection and possibly arrest by the police in the nearby police station for travelling after the onset of
curfew without a valid curfew pass.

Same; Same; Information gathered by a traffic investigator from persons who saw how the accident
took place is admissible as part of the res gestae.We think that an automobile speeding down a street
and suddenly smashing into a stationary object in the dead of night is a sufficiently startling event as to
evoke spontaneous, rather than reflective, reactions from observers who happened to be around at that
time. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should
have been considered by the trial court. Clearly, substantial weight should have been ascribed to such
testimony, even though it did not, as it could not, have purported to describe quantitatively the precise
velocity at which Dionisio was travelling just before impact with the Phoenix dump truck.

Same; Same; Petitioner's theory that respondent deliberately shut off his headlights as he turned the
intersection where his car later on bumped a parked dumptruck is more credible than respondent's
claim that his car's lights suddenly turned off.A third related issue is whether Dionisio purposely turned
off his headlights, or whether his headlights accidentally malfunctioned, just moments before the
accident. The Intermediate Appellate Court expressly found that the headlights of Dionisio's car went
off as he crossed the intersection but was non-committal as to why they did so. It is the petitioners'
contention that Dionisio purposely shut off his headlights even before he reached the intersection so as
not to be detected by the police in the police precinct which he (being a resident in the area) knew was
not far away from the intersection. We believe that the petitioners' theory is a more credible explanation
than that offered by private respondent Dionisioi.e., that he had his headlights on but that, at the
crucial moment, these had in some mysterious if convenient way malfunctioned and gone off, although
he succeeded in switching his lights on again at "bright" split seconds before contact with the dump
truck.
Same; Same; The fact that a driver smelled of liquor does not necessarily mean he is drunk.A fourth
and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence
here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio
smelled of liquor at the time he was taken from his smashed car and brought to the Makati Medical
Center in an unconscious condition. This testimony has to be taken in conjunction with the admission
of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not
believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor
as to constitute his driving a motor vehicle per se an act of reckless imprudence. There simply is not
enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical
faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard
liquor may affect different people differently.

Same; The theory of petitioners that the negligence of the truck driver in parking his truck on the street
without any early warning devices is merely a passive and static condition, while the negligence of the
car driver in ramming against the truck was the efficient, intervening cause, is a theory that has already
been almost entirely discredited.The petitioners, however, urge that the truck driver's negligence was
merely a "passive and static condition" and that private respondent Dionisio's negligence was an
"efficient intervening cause," and that consequently Dionisio's negligence must be regarded as the legal
and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the older cases in various jurisdictions in
the United States but we are unable to persuade ourselves that these arguments have any validity for
our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and
"condition" which the petitioners would have us adopt have already been "almost entirely discredited."
Professors Prosser and Keeton make this quite clear: x x x.

Same; The improper parking of truck created an unreasonable risk for anyone driving on that street for
which the truck driver should be held responsible as the negligence of a car driver bumping that truck
was no more than a forseeable consequence of the risk created by the truck driver.We believe,
secondly, that the truck driver's negligence far from being a "passive and static condition" was rather
an indispensable and efficient cause. The collision between the dump truck and the private respondent's
car would in all probability not have occurred had the dump truck not been parked askew without any
warning lights or reflector devices. The improper parking of the dump truck created an unreasonable
risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the
truck driver must be held responsible. In our view, Dionisio's negligence, although later in point of time
than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening
or independent cause. What the petitioners describe as an "intervening cause" was no more than a
foreseeable consequence of the risk created by the negligent manner in which the truck driver had
parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent
Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created.
Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the
chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever
the juris vinculum of liability.

Same; Negligence of car driver who bumps an improperly parked truck is merely contributory.We
hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).

Same; Doctrine of "last clear chance" is a common-law theory adopted to mitigate the harshness of the
"contributory negligence of the plaintiff rule under which in common-law countries plaintiff is barred from
any recovery, unlike in our system of law where the Civil Code expressly states that it will merely reduce
the amount to be recovered.Petitioners also ask us to apply what they refer to as the "last clear
chance" doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent,
private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries,
and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last
clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith but it is
a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines.
The historical function of that doctrine in the common law was to mitigate the harshness of another
common law doctrine or rulethat of contributory negligence. The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff s
negligence was relatively minor as compared with the wrongful act or omission of the defendant. The
common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also
been negligent provided that the defendant had the last clear chance to avoid the casualty and failed
to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine
has to play in a jurisdiction where the common law concept of contributory negligence as an absolute
bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code
of the Philippines.

Same; Doctrine of last clear chance in common law cannot be applied as a general rule in negligence
cases in our civil law system.Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law
jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms,
is to determine whose negligencethe plaintiffs or the defendant'swas the legal or proximate cause
of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the
petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative
location in the continuum of time of the plaintiff s and the defendant's negligent acts or omissions, is
only one of the relevant factors that may be taken into account. Of more fundamental importance are
the nature of the negligent act or omission of each party and the character and gravity of the risks
created by such act or omission for the rest of the community. The petitioners urge that the truck driver
(and therefore his employer) should be absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased diligence which had become necessary
to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law that a man must respond
for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks
to reduce the risks and burdens of living in society and to allocate them among the members of society.
To accept the petitioners' proposition must tend to weaken the very bonds of society.

Same; Employer's failure to exercise vigilance over its employee evident from the improper parking of
the truck on the street at night along employee's residence.Petitioner Carbonel's proven negligence
creates a presumption of negligence on the part of his employer Phoenix in supervising its employees
properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that
Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had
allowed its truck driver to bring the dump truck to his home whenever there was work to be done early
the following morning, when coupled with the failure to show any effort on the part of Phoenix to
supervise the manner in which the dump truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of Phoenix.

Same; Contributory negligence may result in 20% reduction of damages.Turning to the award of
damages and taking into account the comparative negligence of private respondent Dionisio on one
hand and petitioners Carbonel and Phoenix upon the other hand, we believe that the demands of
substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the
damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio;
only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarily
liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be
borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from Carbonel. We
see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate
court.

PETITION for review of the decision of the Intermediate Appellate Court.

The facts are stated in the opinion of the Court.

FELICIANO, J.:

In the early morning of 15 November 1975at about 1:30 a.m.private respondent Leonardo Dionisio
was on his way homehe lived in 1214-B Zamora Street, Bangkal, Makatifrom a cocktails-and-dinner
meeting with his boss, the general manager of a marketing corporation. During the cocktails phase of
the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and
had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati,
not far from his home, and was proceeding down General Lacuna Street, when his car headlights (in
his allegation) suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford
dump truck looming some 2- meters away from his car. The dump truck, owned by and registered in
the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which
Dionisio's car was proceeding), facing the oncoming traffic. The dump truck was parked askew (not
parallel to the street curb) in such a manner as to stick out onto the street, partly blocking the way of
oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere
near the dump truck, front or rear. The dump truck had earlier that evening been driven home by
petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view
of work scheduled to be carried out early the following morning, Dionisio claimed that he tried to avoid
a collision by swerving his car to the lef t but it was too late and his car smashed into the dump truck.
As a result of the collision, Dionisio suffered some physical injuries including some permanent facial
scars, a "nervous breakdown" and loss of two gold bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel
had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the
other hand, countered that the proximate cause of Dionisio's injuries was his own recklessness in driving
fast at the time of the accident, while under the influence of liquor, without his headlights on and without
a curfew pass. Phoenix also sought to establish that it had exercised due care in the selection and
supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered
the latter:

"(1) To pay plaintiff jointly and severally the sum of P15,000.00 for hospital bills and the
replacement of the lost dentures of plaintiff;

(2) To pay plaintiff jointly and severally the sum of P150,000.00 as loss of expected income for
plaintiff brought about the accident in controversy and which is the result of the negligence of
the defendants;

(3) To pay the plaintiff jointly and severally the sum of P100,000.00 as moral damages for the
unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man;
mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation,
feeling of economic insecurity, and the untold sorrows and frustration in life experienced by
plaintiff and his family since the accident in controversy up to the present time;

(4) To pay plaintiff jointly and severally the sum of P10,000.00 as exemplary damages for the
wanton disregard of defendants to settle amicably this case with the plaintiff before the filing of
this case in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P4,500.00 due as and for attorney 's
fees; and

(6) The cost of suit." (Italics supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the award of damages to the f ollowing extent:

1. The award of P1 5,000.00 as compensatory damages was reduced to P6,460.71, the latter
being the only amount that the appellate court found the plaintiff to have proved as actually
sustained by him;
 2. The award of P1 50,000.00 as loss of expected income was reduced to P100,000.00,
basically because Dionisio had voluntarily resigned his job such that, in the opinion of the
appellate court, his loss of income "was not solely attributable to the accident in question;" and

3. The award of P100,000.00 as moral damages was held by the appellate court as excessive
and unconscionable and hence reduced to P50,000.00.

The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs remained
untouched.

This decision of the Intermediate Appellate Court is now bef ore us on a petition for review.

Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner
in which the dump truck was parked along General Lacuna Street on the basis of which both courts
drew the inference that there was negligence on the part of Carbonel, the dump truck driver, and that
this negligence was the proximate cause of the accident and Dionisio's injuries. We note, however, that
both courts failed to pass upon the defense raised by Carbonel and Phoenix that the true legal and
proximate cause of the accident was not the way in which the dump truck had been parked but rather
the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck.
The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in
some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made no
further mention of it. We have examined the record both bef ore the trial court and the Intermediate
Appellate Court and we find that both parties had placed into the record sufficient evidence on the basis
of which the trial court and the appellate court could have and should have made findings of fact relating
to the alleged reckless manner in which Dionisio drove his car that night. The petitioners Phoenix and
Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that
negligence was merely a "passive and static condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient cause determinative of the accident and the injuries
he sustained. The need to administer substantial justice as between the parties in this case, without
having to remand it back to the trial court after eleven years, compels us to address directly the
contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's
alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.

There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio
had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or
speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his
car's headlights before contact with the dump truck or whether those headlights accidentally
malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the
accident.

As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person
of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here
consisted of the testimony "of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati
Medical Center for emergency treatment immediately after the accident. At the Makati Medical Center,
a nurse took off Dionisio's clothes and examined them along with the contents of pockets together with
Patrolman Cuyno. Private respondent Dionisio was not able to produce any curfew pass during the trial.
Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered
a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes of the
Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to
have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the
effect that private respondent Dionisio had a valid curfew pass. This certification did not, however,
specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that
private respondent Dionisio was unable to prove possession of a valid curfew pass during the night of
the accident and that the preponderance of evidence shows that he did not have such a pass during
that night. The relevance of possession or non-possession of a curfew pass that night lies in the light it
tends to shed on the other related issues: whether Dionisio was speeding home and whether he had
indeed purposely put out his headlights before the accident, in order to avoid detection and possibly
arrest by the police in the nearby police station for travelling after the onset of curfew without a valid
curfew pass.
On the second issuewhether or not Dionisio was speeding home that nightboth the trial court and
the appellate court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of
the accident almost immediately after it occurred, the police station where he was based being barely
200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of the accident
told him that Dionisio's car was "moving fast" and did not have its headlights on. Dionisio, on the other
hand, claimed that he was travelling at a moderate speed at 30 kilometers per hour and had just crossed
the intersection of General Santos and General Lacuna Streets and had started to accelerate when his
headlights failed just before the collision took place.

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fall
within any of the recognized exceptions to the hearsay rule since the facts he testified to were not
acquired by him through official information and had not been given by the informants pursuant to any
duty to do so. Private respondent's objection fails to take account of the fact that the testimony of
Patrolman Cuyno is admissible not under the official records exception to the hearsay rule but rather
as part of the res gestae. Testimonial evidence under this exception to the hearsay rule consists of
excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as
to render inoperative the normal reflective thought processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not the result of reflective thought.

We think that an automobile speeding down a street and suddenly smashing into a stationary object in
the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective,
reactions from observers who happened to be around at that time. The testimony of Patrolman Cuyno
was therefore admissible as part of the res gestae and should have been considered by the trial court.
Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it
could not, have purported to describe quantitatively the precise velocity at which Dionisio was travelling
just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court
expressly found that the headlights of Dionisio's car went off as he crossed the intersection but was
non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off his
headlights even bef ore he reached the intersection so as not to be detected by the police in the police
precinct which he (being a resident in the area) knew was not far away from the intersection. We believe
that the petitioners' theory is a more credible explanation than that offered by private respondent
Dionisioi.e., that he had his headlights on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights
on again at "bright" split seconds before contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati
Medical Center in an unconscious condition. This testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night.
We do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence
of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. There simply
is not enough evidence to show how much liquor he had in fact taken and the effects of that upon his
physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two"
of hard liquor may aff ect dif f erent people dif f erently.

The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster
than he should have been. Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew and
sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the
legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent
manner in which the dump truck was parkedin other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand
and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence
of the truck driver' s negligence.

The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause," and
that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the
accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various jurisdictions in the United States but we are
unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly,
that even in the United States, the distinctions between "cause" and "condition" which the petitioners
would have us adopt have already been "almost entirely discredited." Professors Prosser and Keeton
make this quite clear:

"Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm
and the existing "conditions" upon which that cause operated. If the defendant has created only a
passive static condition which made the damage possible, the defendant is said not to be liable. But so
far as the fact of causation is concerned, in the sense of necessary antecedents which have played an
important part in producing the result, it is quite impossible to distinguish between active forces and
passive situations, particularly since, as is invariably the case, the latter are the result of other active
forces which have gone before. The defendant who spills gasoline about the premises creates a
"condition," but the act may be culpable because of the danger of fire. When a spark ignites the gasoline,
the condition has done quite as much to bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape responsibility. Even the lapse of a
considerable time during which the "condition" remains static will not necessarily affect liability; one who
digs a trench in the highway may still be liable to another who falls into it a month afterward. "Cause"
and "condition" still find occasional mention in the decisions; but the distinction is now almost entirely
discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in
operation by the defendant have come to rest in a position of apparent safety, and some new force
intervenes. But even in such cases, it is not the distinction between "cause" and "condition" which is
important, but the nature of the risk and the character of the intervening cause. "

We believe, secondly, that the truck driver's negligence far from being a "passive and static condition"
was rather an indispensable and efficient cause. The collision between the dump truck and the private
respondent's car would in all probability not have occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created
this risk, the truck driver must be held responsible. In our view, Dionisio's negligence, although later in
point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient
intervening or independent cause. What the petitioners describe as an "intervening cause" was no more
than a foreseeable consequence of the risk created by the negligent manner in which the truck driver
had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent
Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created.
Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the
chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever
the juris vinculum of liability. It is helpful to quote once more from Prosser and Keeton:

"Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience
is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular
circumstances, the defendant may be negligent, among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising later will spread it beyond the
defendant's own property, and therefore to take precautions to prevent that event. The person who
leaves the combustible or explosive material exposed in a public place may foresee the risk of fire from
some independent source. x x x In all of these cases there is an intervening cause combining with the
defendant's conduct to produce the result, and in each case the defendant's negligence consists in
failure to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and
important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant's
negligence. The courts are quite generally agreed that intervening causes which fall fairly in this
category will not supersede the defendant's responsibility.

Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity,
including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even lightning;
that one who leaves an obstruction on the road or a railroad track should foresee that a vehicle or a
train will run into it; x x x.

The risk created by the defendant may include the intervention of the foreseeable negligence of others.
x x x [T]he standard of reasonable conduct may require the defendant to protect the plaintiff against
'that occasional negligence which is one of the ordinary incidents of human life, and therefore to be
anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by
a car, even though the car is negligently driven; and one who parks an automobile on the highway
without lights at night is not relieved of responsibility when another negligently drives into it. - - -"

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here
of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the
"last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to
take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the
common law was imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether,
or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of
that doctrine in the common law was to mitigate the harshness of another common law doctrine or
rulethat of contributory negligence. The common law rule of contributory negligence prevented any
recovery at all by a plaintiff who was also negligent, even if the plaintiff s negligence was relatively minor
as compared with the wrongful act or omission of the defendant. The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the
defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult
to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where
the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has
itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines.

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not
believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose
negligencethe plaintiff s or the defendant'swas the legal or proximate cause of the injury. That task
is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by
the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time
of the plaintiff s and the defendant's negligent acts or omissions, is only one of the relevant factors that
may be taken into account. Of more fundamental importance are the nature of the negligent act or
omission of each party and the character and gravity of the risks created by such act or omission for
the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should
be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to
act with that increased diligence which had become necessary to avoid the peril precisely created by
the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping
out the fundamental principle of law that a man must respond for the forseeable consequences of his
own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living
in society and to allocate them among the members of society. To accept the petitioners' proposition
must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix in supervising its employees properly and adequately. The respondent appellate
court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption
of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his
home whenever there was work to be done early the following morning, when coupled with the failure
to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked
when away from company premises, is an affirmative showing of culpa in vigilando on the part of
Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private
respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, we
believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-
80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of
P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and
Phoenix who shall be solidarily liable therefor to the former. The award of exemplary damages and
attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to
reimbursement from Carbonel. We see no sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected income and moral damages private respondent
Dionisio is entitled to by 20% of such amount. Costs against the petitioners.

SO ORDERED.

Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.

Melencio-Herrera, J., on official leave.

Decision modified.

Notes. In a serious physical injuries case resulting from a collision between two motor vehicles, the
conviction upon a plea of guilt of the driver of one of the vehicles cannot be used as an argument for
the acquittal of the driver of the other vehicle, if there is sufficient evidence that the latter drove his
vehicle in a careless, reckless and imprudent manner which resulted in serious injuries to the
complainant. (People vs. De la Merced, 7 SCRA 291.)

A motor vehicle owner is not an absolute owner against all damages raised by its driver. The owner's
responsibility ceases once it proves that it has observed the diligence of a good father of a family to
prevent the damage. (Ramos vs. Pepsi Cola Bottling Co. of the P.I., 19 SCRA 294.)

o0o

VICENTE VERGARA, petitioner, vs. THE COURT OF APPE ALS and AM ADEO AZARCON,
respondents.

No. L-77679. September 30,1987

Torts; Damages; Quasi-delict; Requisites of a quasi-delict These requisites of a quasi-delict are: (1)
damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some person for
whose acts he must respond, was guilty; and (3) the connection of cause and effect between such
negligence and the damages.

Same; Same; Negligence; Common Carriers; Defective brakes cannot be considered fortuitous in
character.A mishap caused by defective brakes cannot be considered as fortuitous in character.
Certainly, the defects were curable and the accident preventable.
Same; Same; Same; Presumption of negligence must be overcome by evidence. The petitioner
failed to adduce any evidence to overcome the disputable presumption of negligence on his part in the
selection and supervision of his driver.

RESOLUTION

PADILLA, J.:

An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private
respondent against petitioner. The action arose from a vehicular accident that occurred on 5 August
1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging to petitioner,
rammed "head-on" the store-residence of the private respondent, causing damages thereto which were
inventoried and assessed at P 53,024.22.

In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte
operated said cargo truck in a very diligent (and) careful manner; that the steering wheel refused to
respond to his effort and as a result of a blown-out tire and despite application of his brakes, the said
cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident was an act
of God for which he cannot be held liable.''

Petitioner also filed a third-party complaint against Travellers Insurance and Surety Corporation,
alleging that said cargo truck involved in the vehicular accident, belonging to the petitioner, was insured
by the third-party defendant insurance company. Petitioner asked that the latter be ordered to pay him
whatever amount he may be ordered by the court to pay to the private respondent.

The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals,
the latter court affirmed in toto the decision of the trial court, which ordered petitioner to pay, jointly and
severally with Travellers Insurance and Surety Corporation, to the private, respondent the following: (a)
P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary
damages; and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third-party complaint,
the insurance company was sentenced to pay to the petitioner the following: (a) P50,000.00 for third
party liability under its comprehensive accident insurance policy; and (b) P3,000.00 for and as attorney's
fees.

Hence, this petition for review on certiorari.

Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not
tenable. It was established by competent evidence that the requisites of a quasi-delict are present in
the case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act or omission,
of which defendant, or some person for whose acts he must respond, was guilty; and (3) the connection
of cause and effect between such negligence and the damages.

It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner.
The issue of whether or not this act or omission can be considered as a "negligent" act or omission was
passed upon by the trial court. The findings of said court, affirmed by the respondent court, which we
are not prepared to now disturb, show that the fact of occurrence of the "vehicular accident" was
sufficiently established by the policy report and the testimony of Patrolman Masiclat. And the fact of
negligence may be deduced from the surrounding circumstances thereof. According to the police report,
"the cargo truck was travelling on the right side of the road going to Manila and then it crossed to the
center line and went to the left side of the highway; it then bumped a tricycle; and then another bicycle;
and then said cargo truck rammed the storewarehouse of the plaintiff."

According to the driver of the cargo truck, he applied the brakes but the latter did not work due to
mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes can not
be considered as fortuitous in character. Certainly, the defects were curable and the accident
preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of
negligence on his part in the selection and supervision of his driver.

Based on the foregoing finding by the respondent Court that there was negligence on the part of the
petitioner, the petitioner's contention that the respondent court erred in awarding private respondent
actual, moral and exemplary damages as well as attorney's fees and costs, is untenable.

ACCORDINGLY, the petition is DENIED.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Petition denied.

oOo

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner, vs. HON. COURT OF
APPEALS, and SPOUSES MINERVA TIMAN and FLORES TIMAN, respondents.

G.R. No. 79578. March 13, 1991.

Commercial Law; RCPI, is engaged in a business affected with public interest, as such, it is bound to
exercise that degree of diligence expected of it in the performance of its obligations. We fully agree
with the appellate courts endorsement of the trial courts conclusion that RCPI, a corporation dealing
in telecommunications and offering its services to the public, is engaged in a business affected with
public interest. As such, it is bound to exercise that degree of diligence expected of it in the performance
of its obligation.

Damages; Petitioner RCPI is liable for moral and exemplary damages because of its gross negligence
or carelessness in transmitting a condolence message expressing sadness and sorrow in a Happy
Birthday card and placed inside a Christmasgram envelope. Anent the award of moral and
exemplary damages assigned as errors, the findings of the respondent court are persuasive. x x x When
plaintiffs placed an order for transmission of their social condolence telegram, defendant did not inform
the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant accepted through
its authorized agent or agency the order and received the corresponding compensation therefor.
Defendant did not comply with its contract as intended by the parties and instead of transmitting the
condolence message in an ordinary form, in accordance with its guidelines, placed the condolence
message expressing sadness and sorrow in forms conveying joy and happiness. Under the
circumstances, We cannot accept the defendants plea of good faith predicated on such exhaustion of
social condolence forms. Gross negligence or carelessness can be attributed to defendant-appellant in
not supplying its various stations with such sufficient and adequate social condolence forms when it
held out to the public sometime in January, 1983, the availability of such social condolence forms and
accepted for a fee the transmission of messages on said forms. Knowing that there are no such forms
as testified to by its Material Control Manager Mateo Atienza, and entering into a contract for the
transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud or
malice. x x x

Same; Exemplary Damages; RCPI gross carelessness or negligence constitute wanton misconduct,
hence, exemplary damages may be awarded to the aggrieved party.RCPIs argument that it can not
be held liable for exemplary damages, being penal or punitive in character, is without merit. We have
so held in many cases, and oddly, quite a number of them likewise involved the herein petitioner as the
transgressor. x x x In contracts and quasi-contracts, exemplary damages may be awarded if the
defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross
negligence on the part of RCPI personnel in transmitting the wrong telegram, of which RCPI must be
held liable. Gross carelessness or negligence constitutes wanton misconduct. x x x punitive damages
may be recovered for wilful or wantonly negligent acts in respect of messages, even though those acts
are neither authorized nor ratified (Arkansas & L.R. Co. v. Stroude, 91 SW 18; West v. Western U. Tel.
Co., 17 P 807; Peterson v. Western U. Tel. Co., 77 NW 985; Brown v. Western U. Tel. Co., 6 SE 146).
Thus, punitive damages have been recovered for mistakes in the transmission of telegrams (Pittman v.
Western Union Tel. Co., 66 SO 977; Painter v. Western Union Tel. Co., 84 SE 293) (italics supplied).

PETITION for certiorari to review the decision of the Court of Appeals. Magsino, J.

The facts are stated in the opinion of the Court.

Salalima, Trenas, Pagaoa & Associates for petitioner.

Paul P. Lentejas for private respondents.

SARMIENTO, J.:

A social condolence telegram sent through the facilities of the petitioner gave rise to the present petition
for review on certiorari assailing the decision of the respondent Court of Appeals which affirmed in toto
the judgment of the trial court, dated February 14, 1985, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual
and compensatory damages; P10,000.00 as moral damages and P5,000.00 as exemplary
damages.

2. Awarding of attorneys fees in the sum of P5,000.00.

Costs against the defendant.

SO ORDERED.

The facts as gleaned from the records of the case are as follows:

On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a telegram
of condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City, through
petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at Cubao, Quezon City, to
convey their deepest sympathy for the recent death of the mother-in-law of Hilario Midoranda, to wit:

MR & MRS. HILARIO MIDORANDA

TRINIDAD, CALBAYOG CITY

MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST
SYMPATHY TO YOU AND MEMBERS OF THE FAMILY.

MINER & FLORY.

The condolence telegram was correctly transmitted as far as the written text was concerned. However,
the condolence message as communicated and delivered to the addressees was typewritten on a
Happy Birthday card and placed inside a Christmasgram envelope. Believing that the transmittal to
the addressees of the aforesaid telegram in that nonsuch manner was done intentionally and with gross
breach of contract resulting to ridicule, contempt, and humiliation of the private respondents and the
addressees, including their friends and relatives, the spouses Timan demanded an explanation.
Unsatisfied with RCPIs explanations in its letters, dated March 9 and April 20, 1983, the Timans filed a
complaint for damages.

The parties stipulated at the pre-trial that the issue to be resolved by the trial court was:
WHETHER or not the act of delivering the condolence message in a Happy Birthday card with a
Christmasgram envelope constitutes a breach of contract on the part of the defendant. If in the
affirmative, whether or not plaintiff is entitled to damages.

The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by the
Court of Appeals. RCPI now submits the following assignment of errors:

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL AND

COMPENSATORY DAMAGES IN THE AMOUNT OF P30,848.05.

II

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL DAMAGES

IN THE AMOUNT OF P10,000.00.

III

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY EXEMPLARY

DAMAGES IN THE AMOUNT OF P5,000.00.

IV

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ATTORNEYS FEES

IN THE AMOUNT OF P5,000.00 PLUS COSTS OF SUIT.

The four assigned errors are going to be discussed jointly because they are all based on the same
findings of fact.

We fully agree with the appellate courts endorsement of the trial courts conclusion that RCPI, a
corporation dealing in telecommunications and offering its services to the public, is engaged in a
business affected with public interest. As such, it is bound to exercise that degree of diligence expected
of it in the performance of its obligation.

One of RCPIs main arguments is that it still correctly transmitted the text of the telegram and was
received by the addressees on time despite the fact that there was error in the social form and
envelope used. RCPI asserts that there was no showing that it has any motive to cause harm or damage
on private respondents:

Petitioner humbly submits that the error in the social form used does not come within the ambit of
fraud, malice or bad faith as understood/defined under the law.

We do not agree.

In a distinctly similar case, and oddly also involving the herein petitioner as the same culprit, we held:

Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages.
Everytime a person transmits a message through the facilities of the petitioner, a contract is entered
into. Upon receipt of the rate or fee fixed, the petitioner undertakes to transmit the message accurately
x x x As a corporation, the petitioner can act only through its employees. Hence the acts of its employees
in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not
liable directly for the acts of its employees in the pursuit of petitioners business is to deprive the general
public availing of the services of the petitioner of an effective and adequate remedy.
Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to
convey a message of sorrow and sympathy. Precisely, it is denominated telegram of condolence
because it tenders sympathy and offers to share anothers grief. It seems out of this world, therefore,
to place that message of condolence in a birthday card and deliver the same in a Christmas envelope
for such acts of carelessness and incompetence not only render violence to good taste and common
sense, they depict a bizarre presentation of the senders feelings. They ridicule the deceaseds loved
ones and destroy the atmosphere of grief and respect for the departed.

Anyone who avails of the facilities of a telegram company like RCPI can choose to send his message
in the ordinary form or in a social form. In the ordinary form, the text of the message is typed on plain
newsprint paper. On the other hand, a social telegram is placed in a special form with the proper
decorations and embellishments to suit the occasion and the message and delivered in an envelope
matching the purpose of the occasion and the words and intent of the message. The sender pays a
higher amount for the social telegram than for one in the ordinary form. It is clear, therefore, that when
RCPI typed the private respondents message of condolence in a birthday card and delivered the same
in a colorful Christmasgram envelope, it committed a breach of contract as well as gross negligence.
Its excuse that it had ruun out of social condolonce cards and envelopes is flimsy and unacceptable. It
could not have been faulted had it delivered the message in the ordinary form and reimbursed the
difference in the cost to the private respondents. But by transmitting it unfittinglythrough other special
forms clearly, albeit outwardly, portraying the opposite feelings of joy and happiness and thanksgiving
RCPI only exacerbated the sorrowful situation of the addressees and the senders. It bears stress that
this botchery exposed not only the petitioners gross negligence but also its callousness and disregard
for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must be held
liable for damages.

It is not surprising that when the Timans telegraphic message reached their cousin, it became the joke
of the Midorandas friends, relatives, and associates who thought, and rightly so, that the unpardonable
mix-up was a mockery of the death of the mother-in-law of the senders cousin. Thus, it was not
unexpected that because of this unusual incident, which caused much embarrassment and distress to
respondent Minerva Timan, he suffered nervousness and hypertension resulting in his confinement for
three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City.

The petitioner argues that a court cannot rely on speculation, conjectures or guess work as to the fact
and amount of damages, but must depend on the actual proof that damages had been suffered and
evidence of the actual amount. In other words, RCPI insists that there is no causal relation of the illness
suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a question of fact. The
findings of fact of the trial court and the respondent court concur in favor of the private respondents.
We are bound by such findingsthat is the general rule well-established by a long line of cases. Nothing
has been shown to convince us to justify the relaxation of this rule in the petitioners favor. On the
contrary, these factual findings are supported by substantial evidence on record.

Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent
court are persuasive.

x x x When plaintiffs placed an order for transmission of their social condolence telegram, defendant
did not inform the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant
accepted through its authorized agent or agency the order and received the corresponding
compensation therefor. Defendant did not comply with its contract as intended by the parties and
instead of transmitting the condolence message in an ordinary form, in accordance with its guidelines,
placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness.
Under the circumstances, We cannot accept the defendants plea of good faith predicated on such
exhaustion of social condolence forms. Gross negligence or carelessness can be attributed to
defendant-appellant in not supplying its various stations with such sufficient and adequate social
condolence forms when it held out to the public sometime in January, 1983, the availability of such
social condolence forms and accepted for a fee the transmission of messages on said forms. Knowing
that there are no such forms as testified to by its Material Control Manager Mateo Atienza, and entering
into a contract for the transmission of messages in such forms, defendant-appellant committed acts of
bad faith, fraud or malice. x x x
RCPIs argument that it can not be held liable for exemplary damages, being penal or punitive in
character, is without merit. We have so held in many cases, and oddly, quite a number of them likewise
involved the herein petitioner as the transgressor.

xxx xxx xxx

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

xxx xxx xxx

x x x punitive damages may be recovered for wilful or wantonly negligent acts in respect of messages,
even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. v. Stroude, 91 SW 18;
West v. Western U. Tel. Co., 17 P 807; Peterson v. Western U. Tel. Co., 77 NW 985; Brown v. Western
U. Tel. Co., 6 SE 146). Thus, punitive damages have been recovered for mistakes in the transmission
of telegrams (Pittman v. Western Union Tel. Co., 66 SO 977; Painter v. Western Union Tel. Co., 84 SE
293) (italics supplied).

We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has
reached this Court in which the petitioner was time and again held liable for the same causes as in the
present casebreach of contract and gross negligencethe ineluctable conclusion is that it has not in
any way reformed nor improved its services to the public. It must do so now or else next time the Court
may be constrained to adjudge stricter sanctions.

WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto.

Costs against the petitioner.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur.

Decision affirmed.

Note.Inclusion of extraneous and libelous matter in telegraphic message constitutes breach of

contract. (Radio Communications of the Philippines vs. Court of Appeals, 143 SCRA 657.)

o0o

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FER-NANDO NANTES AND ROSARIO
LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND
PATRIA CADIZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION
and DR. ROMULO CASTILLO and LILIA CADIZ, respondents.

G.R. No. 82465. February 25, 1991

Civil Law; Negligence; 4th paragraph Article 2180 of the Civil Code; When employer held liable for the
negligence of its employees; Rule.Before an employer may be held liable for the negligence of his
employee, the act or omission which caused damage or prejudice must have occurred while an
employee was in the performance of his assigned tasks.

Same; Same; Same; Same; Employees were not in the actual performance of their assigned tasks;
Case at bar.The teachers/peti-tioners were not in the actual performance of their assigned tasks. The
incident happened not within the school premises, not on a school day and most importantly while the
teachers and students were holding a purely private affair, a picnic. It is clear from the beginning that
the incident happened while some members of the I-C class of St. Francis High School were having a
picnic at Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin
because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular
activity.

Same; Same; Same; Same; Negligence attributed to the employees not proven; Case at bar.
Petitioners Connie Arquio, the class adviser of I-C, the section where Ferdinand belonged, did her best
and exercised diligence of a good father of a family to prevent any untoward incident or damages to all
the students who joined the picnic. In fact, Connie invited co-petitioners Tirso de Chavez and Luisito
Vinas who are both P.E. instructors and scout masters who have knowledge in First Aid application and
swimming. Moreover, even respondents witness, Segundo Vinas, testified that the defendants
(petitioners herein) had life savers especially brought by the defendants in case of emergency. (p. 85,
Rollo) The records also show that both petitioners Chavez and Vinas did all what is humanly possible
to save the child.

Same; Same; Same; Same; Liability; Moral Damages; Where no negligence was established no moral
damages can be recovered.Moral damages may be recovered if they are the proximate result of the
defendants wrongful act or omission.

PADILLA, J., Dissenting:

Civil Law; Negligence; Test.Would a prudent man in the position of the person to whom negligence
is attributed foresee harm to the person injured as a reasonable consequence of the course about to
be pursued? If so, the law imposes the duty on the doer TO TAKE PRECAUTION against its mischivous
results and the failure to do so constitutes negligence.

Same; Same; Same; Under this test petitioners negligence established; Case at bar.Despite
awareness that the waters in the area were deep, petitioners-teachers did not take concrete steps to
make sure their wards did not stray too far and too deeply. Even if they were not actually informed of
the possible dangers which the area posed, petitioners-teachers should have first tested the waters,
so to speak, to ensure which parts thereof were safe for swimming purposes. However, this was not
the case for as testified to by petitioner de Chavez, they admitted that they did not even go to the water
to check its depth although they were aware that some parts of it were deep. At best, it appears that
only oral safety instructions were imparted to the young excursionists. But, what I find most disturbing
is the fact that at the time the trouble arose, Vinas and de Chavez, the male teachers who were
supposed to ensure the childrens safety, being physical education instructors, were nowhere within the
immediate vicinity but were, in fact, as admitted by the latter, at his house getting some foods (sic) and
drinks. The Court a quo even went as far as to say that they were somewhere and as testified to by
plaintiffs witness they were having a drinking spree!

Same; Same; Article 2176 of the Civil Code in relation to paragraphs (1) and (5) of Article 2180 of the
Civil Code; Construed.The negligence of the employee in causing injury or damage gives rise to a
presumption of negligence on the part of the owner and/or manager of the establishment. While this
presumption is not conclusive, it may be overcome only by clear and convincing evidence that the owner
and/or manager exercised the care and diligence of a good father of a family in the selection and/or
supervision of the employees causing the injury or damage.

Same; Same; Same; Same; Case at bar.The record indicates that petitioner Benjamin Illumin, school
principal, knew of the excursion and had, in fact, been invited to attend. As the majority see it, such
knowledge does not in any manner show acquiescence or consent to the holding of the excursion, a
view which I do not accept. It seems to me that having known of the forthcoming activity, petitioner
Illumin, as school principal, should have taken appropriate measures to ensure the safety of his
students. Having preferred to remain silent, and even indifferent, he now seeks excuse from such
omission by invoking his alleged lack of consent to the excursion. But it is precisely his silence and
negligence in performing his role as principal head of the school that must be construed as an implied
consent to such activity xxxIagree with the respondent court that no proof was presented to absolve the
owner and/or manager.
Same; Same; Liability; Moral Damages; Where negligence results to the death of the victim moral
damages recoverable; Basis2nd paragraph Article 2219 Civil Code.Moral damages may be
recovered in quasi-delicts causing physical injuries.

PETITION for review of the decision of the Court of Appeals. Lombos-De la Fuente, J.

The facts are stated in the opinion of the Court.

Jose C. Flores, Jr. for petitioners.

Jovito E. Talabong for private respondents.

PARAS, J.:

This is a petition for review of the decision of the Court of Appeals, the dispositive portion of which
reads:

WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1)
Exemplary damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the
actual damages of P30,000.00, moral damages of P20,000.00 and attorneys fees in the amount of
P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St. Francis High School, represented
by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held.jointly
and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for
the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages
and attorneys fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby
absolved from liability, and the case against them, together with their respective counterclaims, is
hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a fresh-man student of Section 1-C at the St. Francis
High School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach,
Sariaya, Quezon. Ferdinands parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz
Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to
the teachers for the picnic, with the directive that he should go back home after doing so. However,
because of persuasion of the teachers, Ferdi-nand went on with them to the beach.

During the picnic and while the students, including Ferdi-nand, were in the water, one of the female
teachers was apparently drowning. Some of the students, including Ferdinand, came to her rescue, but
in the process, it was Ferdinand himself who drowned. His body was recovered but efforts to resuscitate
him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Carmel
General Hospital where he was pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional
Trial Court, Branch LVIII of Lucena City, against the St. Francis High School, represented by the
spouses Fernando Nantes and Rosario Lacan-dula, Benjamin Illumin (its principal), and the teachers:
Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for
Damages which respondents allegedly incurred from the death of their 13-year old son, Ferdinand
Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the
proper diligence of a good father of the family in preventing their sons drowning, respondents prayed
of actual, moral and exemplary damages, attorneys fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves,
Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum
of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorneys fees, and
to pay the costs. The court a quo reasoned:
Taking into consideration the evidence presented, this Court believes that the defendant teachers
namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had
failed to exercise the diligence required of them by law under the circumstances to guard against the
harm they had foreseen. (pp. 29-30, Rollo)

xxx xxx xxx.

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the
drowning incident had already occurred, such fact does not and cannot excuse them from their liability.
In fact, it could be said that by coming late, they were remiss in their duty to safeguard the students.
(p. 30, Rollo)

The students, young as they were then (12 to 13 years old), were easily attracted to the sea without
aforethought of the dangers it offers. Yet, the precautions and reminders allegedly performed by the
defendants-teachers definitely fell short of the standard required by law under the circumstances. While
the defendants-teachers admitted that some parts of the sea where the picnic was held are deep, the
supposed lifeguards of the children did not even actually go to the water to test the depth of the particular
area where the children would swim. And indeed the fears of the plaintiffs that the picnic area was
dangerous was confirmed by the fact that three persons during the picnic got drowned at the same time.
Had the defendant teachers made an actual and physical observation of the water before they allowed
the students to swim, they could have found out that the area where the children were swimming was
indeed dangerous. And not only that, the male teachers who according to the female teachers were
there to supervise the children to ensure their safety-were not even at the area where the children were
swimming. They were somewhere and as testified to by plaintiffs witness they were having a drinking
spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin
Illumin and Aurora Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic
was a school sanctioned one. Similarly, no evidence has been shown to hold defendants Benjamin Illu-
min and Aurora Cadorna responsible for the death of Ferdinand Castillo together with the other
defendant teachers. It has been sufficiently shown that Benjamin Illumin had himself not consented to
the picnic and in fact he did not join it. On the other hand, defendant Aurora Cadorna had then her own
class to supervise and in fact she was not amongst those allegedly invited by defendant Connie Arquio
to supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned
the following errors committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School and its
administrator/principal Benjamin Illu-min as equally liable not only for its approved co-curricular
activities but also for those which they unreasonably failed to exercise control and supervision
like the holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin
Illumin as jointly and solidarity liable with their co-defendants-teachers Rosario Lacandula, et
als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sar-iaya, Quezon,
last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral damages for the
untimely and tragic death of Ferdi-nand Castillo in favor of plaintiffs-appellants against all the
defen-dants. (pp. 56-57, Rollo)

The Court of Appeals ruled:

We find plaintiffs-appellants submission well-taken.

Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it
cannot be gainsaid that the same was held under the supervision of the teachers employed by the said
school, particularly the teacher in charge of Class I-C to whom the victim belonged, and those whom
she invited to help her in supervising the class during the picnic. Considering that the court a quo found
negligence on the part of the six defendants-teachers who, as such, were charged with the supervision
of the children during the picnic, the St. Francis High School and the school principal, Benjamin Illu-
min, are liable under Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of
the Civil Code. They cannot escape liability on the mere excuse that the picnic was not an extra-curricu-
lar activity of the St. Francis High School. We find from the evidence that, as claimed by plaintiffs-
appellants, the school principal had knowledge of the picnic even from its planning stage and had even
been invited to attend the affair; and yet he did not express any prohibition against undertaking the
picnic, nor did he prescribe any precautionary measures to be adopted during the picnic. At the least,
We must find that the school and the responsible school officials, particularly the principal, Benjamin
Illumin, had acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal must be found jointly
and severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result
of the death of their son. It is the rule that in cases where the above-cited provisions find application,
the negligence of the employees in causing the injury or damage gives rise to a presumption of
negligence on the part of the owner and/or manager of the establishment (in the present case, St.
Francis High School and its principal); and while this presumption is not conclusive, it may be
overthrown only by clear and convincing proof that the owner and/or manager exercised the care and
diligence of a good father of a family in the selection and/or supervision of the employee or employees
causing the injury or damage (in this case, the defendants-teachers). The record does not disclose such
evidence as would serve to overcome the aforesaid presumption and absolve the St. Francis High
School and its principal from liability under the above-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate
with the plaintiffs for the tragedy that befell them in the untimely death of their son Ferdinand Castillo
and understand their suffering as parents, especially the victims mother who, according to appellants,
suffered a nervous breakdown as a result of the tragedy, We find that the amounts fixed by the court a
quo as actual damages and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable
and are those which are sustained by the evidence and the law.

However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and
should be, as it is hereby, imposed in the present case by way of example of correction for the public
good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)

On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. . . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones,
Yoly Jaro and Patria Cadiz guilty of negligence and jointly and severally liable for damages
such finding not being supported by facts and evidence.

2. ... in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand
Castillo, were not able to prove by their evidence that they did not give their son consent to join the
picnic in question. However, We agree with the trial court in its finding that whether or not the victims
parents had given such permission to their son was immaterial to the determination of the existence of
liability on the part of the defendants for the damage incurred by the plaintiffs-appellants as a result of
the death of their son. What is material to such a determination is whether or not there was negligence
on the part of defendants vis-a-vis the supervision of the victims group during the picnic; and, as
correctly found by the trial court, an affirmative reply to this question has been satisfactorily established
by the evidence, as already pointed out.
However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and
Nida Aragones, are concerned. As to them, the trial court found:

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the
drowning incident had already occurred, such fact does not and cannot excuse them from their liability.
In fact, it could be said that by coming late, they were remiss in their duty to safeguard the students.

The evidence shows that these two defendants had satisfactorily explained why they were late in going
to the picnic site, namely, that they had to attend to the entrance examination being conducted by the
school which is part of their duty as teachers thereof. Since they were not at the picnic site during the
occurrence in question, it cannot be said that they had any participation in the negligence attributable
to the other defendants-teachers who failed to exercise diligence in the supervision of the children
during the picnic and which failure resulted in the drowning of plaintiffs son. Thus, We may not attribute
any act or omission to the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the
injury caused to the plaintiffs because of the death of their son resulting from his drowning at the picnic.
Accordingly, they must be absolved from any liability.

As to the second assigned error raised by defendants-appellants, We agree with the court a quo that
the counterclaim must be dismissed for lack of merit. (pp. 59-60, Rollo)

Hence, this petition.

The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will warrant the
award of damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the
case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the
circumstances surrounding the case at bar. (pp. 81-82, Rollo)

In the resolution of January 16, 1989, We gave due course to the petition and required the parties to
submit their respective memoranda.

The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or the negligence
of people under them. In the instant case however, as will be shown hereunder, petitioners are neither
guilty of their own negligence or guilty of the negligence of those under them.

Hence, it cannot be said that they are guilty at all of any negligence. Consequently, they cannot be held
liable for damages of any kind.

At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their
son to join the excursion.

Testimony of Dr. Castillo on cross exam, by Atty. Flores:

Q Now, when your son asked you for money to buy food, did
you not ask him where he will bring this?
A I asked him where he was going, he answered, I am going
to the picnic, and when I asked him where, he did not answer, sir.
Q And after giving the money, you did not tell him anything more?
A No more, sir.
Q And after that you just learned that your son join the picnic?
A Yes, sir.
Q And you came to know of it after the news that your son was drowned in the picnic came to you, is
that correct?
A Yes, sir.
Q From 8:00 oclock in the morning up to 12:00 oclock noon of March 20, 1982, you did not know that
your son join the picnic?
A No, sir, I did not know.
Q Did you not look for your son during that time?
A I am too busy with my profession, that is why I was not able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son join the picnic?
A Later on after 12:00, sir.
Q And during that time you were too busy that you did not inquire whether your son have joined that
picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)

The fact that he gave money to his son to buy food for the picnic even without knowing where it will be
held, is a sign of consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examina
tion?
A I have interviewed several persons and the patient herself.
She even felt guilty about the death of her son because she
cooked adobo for him so he could join the excursion where
her son died of drowning.
Q Why were you able to say she was feeling guilty because
she was the one who personally cooked the adobo for her
son?
A It was during the interview that I had gathered it from the
patient herself. She was very sorry had she not allowed her son to join the excursion her son would
have not drowned. I dont know if she actually permitted her son although she said she cooked
adobo so he could join. (Italics Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro
witness).

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering
petitioner school liable for the death of respondents son. Article 2180, par. 4 states that:

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

xxx

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
Under this paragraph, it is clear that before an employer may be held liable for the negligence of his
employee, the act or omission which caused damage or prejudice must have occurred while an
employee was in the performance of his assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks.
The incident happened not within the school premises, not on a school day and most importantly while
the teachers and students were holding a purely private affair, a picnic. It is clear from the beginning
that the incident happened while some members of the I-C class of St. Francis High School were having
a picnic at Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin
Illumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricu-
lar activity.

As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning
of the picnic by the students and their teachers does not in any way or in any manner show
acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no
basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of
respondent Court on this score, employers will forever be exposed to the risk and danger of being hailed
to Court to answer for the misdeeds or omissions of the employees even if such act or omission he
committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages
to the respondents-spouses.

Petitioners Connie Arquio, the class adviser of I-C, the section where Ferdinand belonged, did her best
and exercised diligence of a good father of a family to prevent any untoward incident or damages to all
the students who joined the picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors
and scout masters who have knowledge in First Aid application and swimming. Moreover, even
respondents witness, Segundo Vinas, testified that the defendants (petitioners herein) had life savers
especially brought by the defendants in case of emergency. (p. 85, Rollo) The records also show that
both petitioners Chavez and Vinas did all what is humanly possible to save the child.

Testimony of Luisito Vinas on cross examination,

Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having
applied first aid on him?
A Yes, sir.
Q And while you were applying the so called first aid, the children were covering you up or were
surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not?
A No, sir.
Q You mean you were in calm and peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of first aid?
A Yes, sir.
Q You have never been disturbed, nababahala in the process of your application of the first aid on
the body of Ferdinand Castillo?
A No, sir, because we were attending to the application of first aid that we were doing, sir.
Q After you have applied back to back pressure and which you claimed the boy did not respond, were
you not disturb anyway?
A I was disturbed during that time, sir.
Q For how many minutes have you applied the back to back pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand
Castillo?
A Yes, sir.
Q Will you please describe how you applied a single act of back to back pressure?
A This has been done by placing the boy lay first downwards, then the face was a little bit facing right
and doing it by massaging the back of the child, sir.
(TSN, pp. 32-35, hearing of July 30, 1984)

Testimony of Tirso de Chavez on direct examination

ATTY. FLORES:
Q Who actually applied the first aid or artificial respiration to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and
took notice of the condition of the child. We placed the feet in a higher position, that of the head of
the child, sir.
Q After you have placed the boy in that particular position, where the feet were on a higher level than
that of the head, what did you do next?
A The first thing that we did, particularly myself, was that after putting the child in that position, I applied
the back to back pressure and started to massage from the waistline up, but I noticed that the boy
was not responding, sir.
Q For how long did you apply this back to back pressure on the boy?
A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you do?
A When we noticed that the boy was not responding, we changed the position of the boy by placing
the child facing upwards laying on the sand then we applied the mouth to mouth resuscitation, sir.
(pp. 92-93, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-
spouses. The case at bar does not fall under any of the grounds to grant moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate result
of the defendants wrongful act or omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence,
hence, no moral damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the picnic, this does
not mean that the petitioners were already relieved of their duty to observe the required diligence of a
good father of a family in ensuring the safety of the children. But in the case at bar, petitioners were
able to prove that they had exercised the required diligence. Hence, the claim for moral or exemplary
damages becomes baseless.
PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners
herein guilty of negligence and liable for the death of Ferdinand Castillo and awarding the respondents
damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the portion of the
said decision dismissing their counterclaim, there being no merit, is hereby AFFIRMED.

SO ORDERED.

Sarmiento and Regalado, JJ., concur.

Melencio-Herrera (Chairman), J., I concur in the dissent of Justice Padilla.

Padilla, J., See dissenting opinion.

PADILLA, J., Dissenting Opinion:

I regret that I can not concur with the majority. I believe that the reversal of respondent appellate courts
decision gives rise to a situation which was neither contemplated nor intended by the applicable laws.
I refer more particularly to the fact that the ponencia has left private respondents-spouses with no one
to hold liable for the untimely demise of their son. On the other hand, they have, to my mind, been
wronged and they should at least be recompensed for their sufferings. For this and other reasons stated
hereunder. I dissent.

The issues, as adopted by the ponencia from the record, are as follows:

A) Whether or not there was negligence attributable to the de-fendants which will warrant the
award of damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the
case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the
circumstances surrounding the case at bar.

In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the
exception of Aragones and Jaro. As to these two, respondent court absolved them from liability for their
having satisfactorily demonstrated lack of participation in the negligence of their colleagues. I am in
agreement with said conclusion. But I also agree with the respondent court in its finding that Tirso de
Chavez, Luisito Vias, Connie Arguio and Patria Cadiz failed to exercise DILIGENT SUPERVISION
over the children during the ill-fated excursion.

I may concede, albeit with reservation, that the afore-men-tioned petitioners may not have been
negligent in finding ways and means to revive the young Castillo AFTER the drowning incident. Their
application of first-aid measures may have failed to revive him but the petitioners had fully exhausted
their efforts to save the deceased. This concession, however, is given with hesitation, for there is
indication in the record that peti-

tioners may have tarried too long in securing immediate medical attention for the deceased. I refer to
the trial courts finding that it still took the jeep which brought Ferdinand Castillo to the poblacion six
(6) minutes before it finally moved to await the other teachers.

All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of
diligence on the part of the petitioners-teachers BEFORE the unfortunate incident took place. Despite
awareness that the waters in the area were deep, petitioners-teachers did not take concrete steps to
make sure their wards did not stray too far and too deeply. Even if they were not actually informed of
the possible dangers which the area posed, petitioners-teachers should have first tested the waters,
so to speak, to ensure which parts thereof were safe for swimming purposes. However, this was not
the case for as testified to by petitioner de Chavez, they admitted that they did not even go to the water
to check its depth although they were aware that some parts of it were deep. At best, it appears that
only oral safety instructions were imparted to the young excursionists.

But, what I find most disturbing is the fact that at the time the trouble arose, Vias and de Chavez, the
male teachers who were supposed to ensure the childrens safety, being physical education instructors,
were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, at his house
getting some foods (sic) and drinks. The Court a quo even went as far as to say that they were
somewhere and as testified to by plaintiffs witness they were having a drinking spree!

It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer
to as DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps taken to revive the deceased
may be considered adequate, despite my reservations, but the over-all lack of diligence on the part of
petitioners-teachers suffices to put them within the standards set by this Court in determining the
existence of negligence. As held in Hedy Gan y Yu vs. Court of Appeals, et al., the test in determining
whether or not a person is negligent in doing an act whereby injury or damage results to the person or
property of another is this: Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes the duty on the doer TO TAKE PRECAUTION against its mischivous
results and the failure to do so constitutes negligence.

The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as
represented by petitioners-spouses Fernando Nantes and Rosario Lacandula. The majority would like
to emphasize the fact that the unfortunate incident having occurred during a purely private affair, the
teachers involved therein were not in the actual performance of their assigned tasks. Consequently,
any act or omission caused by them cannot bind their employer, petitioner St. Francis High School.

I take exception to this proposition. Although the excursion may not have been attended by the
appropriate school authorities, the presence or stamp of authority of the school nevertheless pervaded
by reason of the participation not of one but of several teachers, the petitioners. As found by the court
a quo, the excursion was an activity organized by the teachers themselves, for the students and to
which the student, NATURALLY, acceded.

Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion
and had, in fact, been invited to attend. As the majority see it, such knowledge does not in any manner
show acquiescence or consent to the holding of the excursion, a view which I do not accept. It seems
to me that having known of the forthcoming activity, petitioner Illumin, as school principal, should have
taken appropriate measures to ensure the safety of his students. Having preferred to remain silent, and
even indifferent, he now seeks excuse from such omission by invoking his alleged lack of consent to
the excursion. But it is precisely his silence and negligence in performing his role as principal head of
the school that must be construed as an implied consent to such activity.

As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of his
principal (the school) or its representatives, the petitioners-spouses Nantes and Lacandula.
Consequently, and as found by the respondent court. Article 2176 in conjunction with Article 2180,
paragraphs (1) and (5) are applicable to the situation. In the application of these provisions, the
negligence of the employee in causing injury or damage gives rise to a presumption of negligence on
the part of the owner and/or manager of the establishment. While this presumption is not conclusive, it
may be overcome only by clear and convincing evidence that the owner and/or manager exercised the
care and diligence of a good father of a family in the selection and/or supervision of the employees
causing the injury or damage. I agree with the respondent court that no proof was presented to absolve
the owner and/or manager, herein petitioners-spouses Nantes and Lacandula, and Illumin. Thus, as
correctly held by the respondent court, they too must be accountable for the death of Ferdinand Castillo.

The majority view appears to be apprehensive that employers will be continuously held accountable for
misdeeds of their employees committed even when the same are done not in the actual exercise of
their duties. I fail to appreciate such apprehensions, which need not arise on the part of employers, so
long as the latter have no knowledge of, or give consent to, such act or omission on the part of their
employee.
Educational institutions have responsibilities which cannot be equated with those of the ordinary
employer or business establishment. Such institutions, particularly the primary and secondary schools,
hold the tremendous responsibility of exercising supervision over young children. Too often, such
schools avoid liabilities, as in the instant case,by invoking the absence of approval on their part for
activities that may be held outside school premises or held on a day not a school day. It is about time
that such schools realize that theirs is not a mere moneymaking entity or one impersonally established
for the sole task of teaching the rudimentary skills of reading, writing and rithmetic. They must
consider that their students are children of tender years who are in need of adequate care, continuing
attention and guidance.

Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only
wish to point out the basis for moral damages which is found in Article 2219 of the Civil Code, to wit:

Moral damages may be recovered in the following and analogous cases:

1. x x x

2. Quasi-delicts causing physical injuries;

x x x

It should be noted that the term physical injuries must not be construed in its penal sense alone but
rather in its generic sense, in the spirit of this Courts rulings in Carandang vs. Santiago (51 O.G. 2878)
and Madeja vs. Caro, et al., (G.R. No. 51183, 21 December 1983,126 SCRA 293). Thus, the death of
private respondents son as a result of petitioners negligence gives rise to an action for quasi-delict
which, as provided, entitles the claimant to an award of moral damages.

In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the
petitioners jointly and severally liable for the death of Ferdinand Castillo.

Decision set aside. Portion of the decision affirmed.

Note.Under Articles 2176 and 2180 of the Civil Code, liability is based on culpa aquiliana which holds
the employer primarily liable for tortious acts of its employees subject to the defense that the former
exercised all the diligence of a good father of a family in the selection and supervision of his employees.
(Franco vs. Intermediate Appellate Court, 178 SCRA 331.)

o0o

CHINA AIR LINES, LTD., petitioner, vs. COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE
AIR LINES, INC. and ROBERTO ESPIRITU, respondents.

G.R. No. 45985. May 18, 1990

PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners, vs. COURT OF APPEALS,
JOSE PAGSIBIGAN and CHINA AIR LINES, LTD., respondents.

G.R. No. 46036. May 18, 1990

Actions; Torts; Contracts; Common Carriers; An airline passenger cannot file an action for quasi-delict
and then change his theory to breach of contract.It, therefore, becomes evident that respondent
Pagsibigan, having sensed that he can not hold CAL liable on a quasidelict, decided on appeal to
instead make a sinistral detour, so to speak, by claiming that his action against CAL is based on a
breach of contract of carriage. We can not permit respondent Pagsibigan to change his theory at this
stage; it would be unfair to the adverse party who would have no more opportunity to present further
evidence, material to the new theory, which it could have done had it been aware earlier of the new
theory at the time of the hearing before the trial court.
Same; Same; Same; Same; Airline cannot be held liable for negligence of employee of its ticketing
agent (another airline).There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or
culpa aquiliana. As hereinbefore stated, the court a quo absolved CAL of any liability for fault or
negligence. This finding was shared by respondent court when it concluded that defendant CAL did not
contribute to the negligence committed by therein defendants-appellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in the
selection and supervision of its employees. This argument is obviously misplaced. CAL is not the
employer of PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al., we have stressed the need
of first establishing the existence of an employer-employee relationship before an employer may be
vicariously liable under Article 2180 of the Civil Code.

Same; Same; Same; Same; Agency; As employer, PAL is liable for negligence of its employee even if
PAL was acting as ticketing agent of CAL.With respect to PAL and Espiritu, they disclaim any liability
on the theory that the former is merely an agent of CAL and that the suit should have been directed
against CAL alone. There is no question that the contractual relation between both air lines is one of
agency. Suffice it to say, however, that in an action premised on the employees negligence, whereby
respondent Pagsibigan seeks recovery for the resulting damages from both PAL and Espiritu without
qualification, what is sought to be imposed is the direct and primary liability of PAL as an employer
under said Article 2180.

Same; Same; Same; Same; Same.PALs main defense is that it is only an agent. As a general
proposition, an agent who duly acts as such is not personally liable to third persons. However, there
are admitted exceptions, as in this case where the agent is being sued for damages arising from a tort
committed by his employee.

Same; Same; Employer must rebut presumption of negligence of its employee.Ergo, for his
negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of the Civil Code.
For the failure of PAL to rebut the legal presumption of negligence in the selection and supervision of
its employee, it is also primarily liable under Article 2180 of the same code which explicitly provides that
employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

Same; Amount of damages may be reduced to reasonable level.WHEREFORE, the decision of

respondent Court of Appeals is MODIFIED accordingly. China Air Lines, Ltd. is hereby absolved from
liability. Philippine Air Lines, Inc. and Roberto Espiritu are declared jointly and severally liable to pay
the sum of P10,000.00 by way of nominal damages, without prejudice to the right of Philippine Air Lines,
Inc. to recover from Roberto Espiritu reimbursement of the damages that it may pay respondent Jose
Pagsibigan.

PETITIONS to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.

Siguion Reyna, Montecillo & Ongsiako for petitioners in

G.R. No. 46036.

Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:

These consolidated petitions seek the review of the decision of respondent court in CA-G.R. No. 53023-
R entitled Jose E. Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and Roberto Espiritu,
Defendants-Appellants; China Air Lines, Ltd., Defendant-Appellee, the dispositive portion of which
declares:
WHEREFORE, except for a modification of the judgment in the sense that the award of P20,000.00 in
favor of the plaintiff shall be in the concept of nominal damages instead of exemplary damages, and
that defendant China Air Lines, Ltd. shall likewise be liable with its two co-defendants in a joint and
solidary capacity, the judgment appealed from is hereby affirmed in all other respects, without costs.

The challenged decision of respondent court contains a synthesis of the facts that spawned these cases
and the judgment of the court a quo which it affirmed with modifications, thus:

On June 4, 1968, plaintiff Jose E. Pagsibigan, then vice-president and general manager of Rentokil
(Phils.) Inc., a local firm dealing in insecticides, pesticides and related services appurtenant thereto,
purchased a plane ticket for a Manila-Taipei-Hongkong-Manila flight from the Transaire Travel Agency.
The said agency, through its Cecille Baron, contacted the Manila Hotel branch of defendant Philippine
Air Lines which at that time was a sales and ticketing agent of defendant China Air Lines. On June 6,
1968, PAL, through its ticketing clerk defendant Roberto Espiritu, cut and issued CAL Ticket No. 017991
for a Manila-Taipei-Hongkong-Manila flight. According to the plane ticket, the plaintiff was booked on
CAL CI Flight No. 812 to depart from Manila for Taipei on June 10, 1968 at 1720 hours (5:20 p.m.),
Exhibit A.

On June 10, 1968, one hour before the scheduled time of the flight as stated in his ticket, the plaintiff
arrived at the airport to check in for CI Flight No. 812. Upon arriving at the airport, the plaintiff was
informed that the plane he was supposed to take for Taipei had left at 10:20 in the morning of that day.
The PAL employees at the airport made appropriate arrangements for the plaintiff to take PALs flight
to Taipei the following day, June 11, 1968. The plaintiff took said flight and arrived in Taipei around
noontime of the said date.

On July 8, 1968, the plaintiff, through counsel, made formal demand on defendant PAL for moral
damages in not less than P125,000.00 for what the plaintiff allegedly suffered as a result of his failure
to take the flight as stated in his plane ticket. (Exhibit E) After a series of negotiations among the plaintiff,
PAL and CAL failed to reach an amicable settlement, the plaintiff instituted this action in the Court of
First Instance of Rizal on September 22, 1969. In his complaint, plaintiff prays for the recovery of
P125,000.00 as moral damages and P25,000.00 for and as attorneys fees. The moral damages
allegedly arose from the gross negligence of defendant Roberto Espiritu in stating on the plane ticket
that the time of departure was 1720 hours, instead of 1020 hours which was the correct time of
departure in the revised summer schedule of CAL. Plaintiff claims that by reason of his failure to take
the plane, he suffered besmirched reputation, embarrassment, mental anguish, wounded feelings and
sleepless nights, inasmuch as when he went to the airport, he was accompanied by his business
associates, close friends and relatives. He further averred that his trip to Taipei was for the purpose of
conferring with a certain Peng Siong Lim, president of the Union Taiwan Chemical Corporation,
scheduled at 9:00 a.m. on June 11, 1968.

Defendant Philippine Air Lines alleges in its answer that the departure time indicated by Espiritu in the
ticket was furnished and confirmed by the reservation office of defendant China Air Lines. It further
avers that CAL had not informed PALs Manila Hotel Branch of the revised schedule of its flight, nor
provided it with revised timetable; that when the travel agency sought to purchase the ticket for the
plaintiff on CAL CI Flight No. 812 for June 10, 1968, Espiritu who was then the ticketing clerk on duty,
checked with the reservation office of CAL on the availability of space, the date and the time of said
flight; that CALs Dory Chan informed Espiritu that the departure time of Flight No. 812 on June 10,
1968 was at 5:20 in the afternoon of said date. PAL asserted a cross-claim against CAL for attorneys
fees and for reimbursement of whatever amount the court may adjudge PAL to be liable to the plaintiff.
Defendant Espiritu adopted the defenses of his co-defendant PAL.

Defendant China Air Lines, for its part, disclaims liability for the negligence and incompetence of the
employees of PAL. It avers that it had revised its schedule since April 1, 1968, the same to be effective
on April 20, 1968, and the said revised schedule was adopted only after proper petition with and
approval of the Civil Aeronautics Board of which all airlines, including defendant PAL, were notified; that
both printed copies of the international timetable and of the mimeographed notices of the official
schedule and flight departure schedules were distributed to all its sales agents, including PAL; that after
the effectivity of the new time schedules, PALs Manila Hotel office had been issuing and selling tickets
based on the revised time schedule; and that, assuming that the plaintiff is entitled to recover damages,
the liability is on PAL and not on CAL. A cross-claim was likewise asserted by CAL against its co-
defendant PAL.

After due trial, the Court a quo rendered judgment laying the blame for the erroneous entry in the ticket
as to the time of departure to defendant Roberto Espiritu, ticketing agent of defendant PAL, and that no
employee of CAL contributed to such erroneous entry. It was further ruled that the plaintiff had no reason
to claim moral damages but may be entitled to recover exemplary damages. The dispositive portion of
the decision makes the following adjudication:

WHEREFORE, premises considered, judgment is hereby rendered sentencing the defendants

Philippine Air Lines, Inc. and Roberto Espiritu, to pay to plaintiff Jose Pagsibigan jointly and severally,
by way of exemplary damages, the sum of Twenty Thousand Pesos (P20,000.00) plus Two Thousand
Pesos (P2,000.00) as reimbursement for attorneys fees and the costs.

The complaint is dismissed with respect to the defendant China Air Lines, Ltd. The cross-claim filed by
defendant PAL and Espiritu against defendant CAL as well as the cross-claim filed by the defendant
CAL against defendant PAL and Espiritu are also hereby dismissed.

From said decision of the court below, all the parties, except China Air Lines, Ltd. appealed to
respondent court which, however, sustained the ruling of the trial court denying Pagsibigans claim for
moral damages. It concluded that Roberto Espiritu did not act with malice or in bad faith in making a
wrong entry of the time of departure on the ticket, and that the mistake committed by Espiritu appears
to be an honest one done in good faith.

Respondent court also ruled out the claim for exemplary damages for lack of legal basis. Nonetheless,
as earlier noted, it awarded Pagsibigan P20,000.00 as nominal damages, under Article 2221 of the Civil
Code, for the vindication of a legal wrong committed against him.

As regards the liability of the parties, respondent court held:

There can be little question as to the liability of PAL and Espiritu for the damage caused to the plaintiff
due to the erroneous entry in the plane ticket made by the latter. They seek to justify the erroneous
statement as to the time of departure on the ground that such was the time given by Dory Chan to
Espiritu when the latter called up for the reservation in favor of plaintiff. Aside from the fact that Dory
Chan had vigorously disclaimed having given such information to Espiritu, We are convinced that, as
the trial court had found, CAL had no share in the error committed by Espiritu in indicating the time of
departure of Flight No. 812. PAL had shown through the testimony of Carmen Ibazeta Gallaga, ticket
representative of PAL at the Manila Hotel Office, that they received circulars and timetables of airlines
in the PAL main office. It further appears that on two occasions, defendant PAL cut and issued tickets
for CAL based on the new schedule even before June 10, 1968. As a matter of fact, the other entries
of time departures in the ticket issued to the plaintiff are in accordance with the revised schedule, and
that the only error therein was with respect to the departure from Manila on June 10, 1968.

However, in proving that the fault lied with Espiritu, defendant CAL derives no solace nor gains an
advantage. It may not claim exemption from liability by reason thereof. Espiritu was an employee of
PAL and whatever negligence was committed by him is attributable to PAL. It is an admitted fact that
PAL is an authorized agent of CAL. In this relationship, the responsibility of defendant PAL for the
tortious act of its agent or representative is inescapable. x x x

xxx

A similar principle is recognized in our Civil Code in its Art. 2180 x x x. Unlike in the doctrine of
respondeat superior, however, the Civil Code permits the employer to escape this liability upon proof
of having observed all the diligence of a good father of a family to prevent the damage. We find the
evidence of defendant CAL to be insufficient to overcome the presumption of negligence on its part for
the act done by defendant Roberto Espiritu. (Italics supplied)
The liability for the damage sustained by the plaintiff should, therefore, be borne by all of the defendants
in a joint and solidary capacity (Art. 2194). The liability of an employer under Art. 2180 is primary and
direct. x x x

xxx

It appearing that defendant CAL, as employer or principal, did not contribute to the negligence
committed by defendants PAL and Roberto Espiritu, its liability to the plaintiff could be passed on to
said defendants. Defendant CAL, however, did not take an appeal and did not, therefore, take exception
to the dismissal of its cross-claim against defendants PAL and Espiritu. This serves as an obstacle for
a rendition of judgment favorable to CAL on its said counterclaim. 4

In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air Lines, Ltd. (CAL) relied
on the following grounds:

1. A principal can not be held liable, much less solidarily, for the negligence of the sub-agent,
where the former never participated in, ratified or authorized the latters act or omission.

2. Dismissal of the cross-claim of petitioner against the private respondents Philippine Air Lines,
Inc. and Roberto Espiritu will not prevent the release of the petitioner from liability to the private
respondent Pagsibigan.

3. The award of damages was unwarranted both legally and factually.

On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu made the following
submissions in G.R. No. L-46036, to wit:

1. The respondent Court of Appeals erred in not holding that respondent China Air Lines, Ltd.,
being the principal, is solely liable to respondent Pagsibigan.

2. The respondent Court of Appeals erred in awarding respondent Pagsibigan the sum of
P20,000.00 as nominal damages.

In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that CALs liability is based
on breach of contract of transportation which was the proximate result of the negligence and/or error
committed by PAL and Espiritu; that even assuming that CAL has no share in the negligence of PAL
and Espiritu, the liability of CAL does not cease upon proof that it exercised all the diligence of a good
father of a family in the selection and supervision of its employees. Traversing such contentions, CAL
argues that it can not be made liable under Article 2180 of the Civil Code because of the absence of
employer-employee relationship between it and PAL.

On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL is liable under Article
1909 of the said code which holds an agent responsible not only for fraud but also for negligence which
shall be judged with more or less rigor by the courts, according to whether the agency was or was not
for a compensation. PAL, however, maintains that for lack of privity with Pagsibigan, the suit for breach
of contract should have been directed against CAL.

What surfaces as a procedural maneuver taken by respondent Pagsibigan in the course of the
proceedings in these cases has confused the real issues in the controversy subject of both petitions
before us.

Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the same time, that is,
to enforce the civil liability of CAL for breach of contract and, likewise, to recover from PAL and Espiritu
for tort or culpa aquiliana. What he has overlooked is the proscription against double recovery under
Article 2177 of the Civil Code which, while not preventing recourse to any appropriate remedy, prevents
double relief for a single wrong.
To avoid inequitable effects under such confluence of remedies, the true nature of the action instituted
by respondent Pagsibigan must be determined. A careful perusal of the complaint of respondent
Pagsibigan will readily disclose that the allegations thereof clearly and unmistakably make out a case
for a quasi-delict in this wise:

4. That at all pertinent times particularly in June of 1968, defendant China Air Lines Ltd. has been
operating regular scheduled flights to and from Manila, and has offered accommodations thereon
through, among others, defendant PAL as its authorized sales agent and/or ticketing agent, such that
China Airlines Ltd. is here impleaded as being the principal of defendant PAL;

5. That at all pertinent times, particularly in June of 1968, defendant Roberto Espiritu has been in the
employ of defendant PAL at its sales counter at the PAL Manila Hotel branch office and is here
impleaded as defendant as being the proximate malfeasor in this cause of action;

xxx

12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10, 1968, as set forth in
his ticket (Annex A) solely and exclusively by reason of gross incompetence and inexcusable
negligence amounting to bad faith of defendant PALacting, through its sales representative, the
defendant Roberto Espiritu, of its Manila Hotel branch officein the discharge of its duties as sales
agent and/or ticketing agent for defendant China Airlines Ltd. as principal.

13. That as a direct result of culpable incompetence and negligence of defendant Roberto Espiritu as
sales representative of defendant PAL, plaintiff was unable to attend to previously scheduled business
commitments in Taipei x x x resulting in direct and indirect prejudice to plaintiff that has yet to be fully
assessed; (Italics supplied)

xxx

Had the intention of respondent Pagsibigan been to maintain an action based on breach of contract of
carriage, he could have sued CAL alone considering that PAL is not a real party to the contract.
Moreover, in cases of such nature, the aggrieved party does not have to prove that the common carrier
was at fault or was negligent. All he has to prove is the existence of the contract and the fact of its non-
performance by the carrier.

The records disclose that the trial court delved much into the issues of who was at fault, and its decision
is primarily anchored on its factual findings regarding the civil liability arising from culpa aquiliana of the
erring party, to this effect:

Plaintiff said that the erroneous entry in his ticket which made it appear that his CAL flight of June 10,
1968 was to be at 5:20 in the afternoon was due to the fault or negligence of PALs Roberto Espiritu, a
co-defendant herein, as well as the employees of the defendant CAL. In making CAL co-responsible,
plaintiff appears to rely on the doctrine that the principal is responsible for the act of an agent done
within the scope of the agency.

There is no proof extant that any of the employees of CAL had contributed to the erroneous entry in
plaintiffs CAL ticket for Taipei which placed his time of departure to 5:20 oclock in the afternoon of
June 10, 1968. Only defendant Roberto Espiritu appears to be solely and exclusively responsible for
such error and therefor the conclusion becomes inevitable that CAL must be absolved from any blame
because defendant Roberto Espiritu who committed the error is not an employee or agent of the
defendant CAL.

It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can not hold CAL
liable on a quasi-delict, decided on appeal to instead make a sinistral detour, so to speak, by claiming
that his action against CAL is based on a breach of contract of carriage.

We can not permit respondent Pagsibigan to change his theory at this stage; it would be unfair to the
adverse party who would have no more opportunity to present further evidence, material to the new
theory, which it could have done had it been aware earlier of the new theory at the time of the hearing
before the trial court.

There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa aquiliana. As
hereinbefore stated, the court a quo absolved CAL of any liability for fault or negligence. This finding
was shared by respondent court when it concluded that defendant CAL did not contribute to the
negligence committed by therein defendants-appellants PAL and Roberto Espiritu.

Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in the
selection and supervision of its employees. This argument is obviously misplaced. CAL is not the
employer of PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al., we have stressed the need
of first establishing the existence of an employer-employee relationship before an employer may be
vicariously liable under Article 2180 of the Civil Code.

With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely an
agent of CAL and that the suit should have been directed against CAL alone. There is no question that
the contractual relation between both air lines is one of agency. Suffice it to say, however, that in an
action premised on the employees negligence, whereby respondent Pagsibigan seeks recovery for the
resulting damages from both PAL and Espiritu without qualification, what is sought to be imposed is the
direct and primary liability of PAL as an employer under said Article 2180.

When an injury is caused by the negligence of an employee, there instantly arises a presumption of law
that there was negligence on the part of the employer either in the selection of the employee or in the
supervision over him after such selection. The presumption, however, may be rebutted by a clear
showing on the part of the employer that it has exercised the care and diligence of a good father of a
family in the selection and supervision of his employee.

Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is imperative that PAL
must adduce sufficient proof that it exercised such degree of care. PAL failed to overcome the
presumption. As found by respondent court, CAL had revised its schedule of flights since April 1, 1968;
that after the Civil Aeronautics Board had approved the revised schedule of flights, PAL was duly
informed thereof and, in fact, PALs Manila Hotel branch office had been issuing and selling tickets
based on the revised time schedule before June 10, 1968.

PALs main defense is that it is only an agent. As a general proposition, an agent who duly acts as such
is not personally liable to third persons. However, there are admitted exceptions, as in this case where
the agent is being sued for damages arising from a tort committed by his employee.

The respondent court found that the mistake committed by Espiritu was done in good faith. While there
is no evidence that he acted with malice, we can not entirely condone his actuations. As an employee
of PAL, the nature of his functions requires him to observe for the protection of the interests of another
person that degree of care, precaution and vigilance which the circumstances justly demand. He
committed a clear neglect of duty.

Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of the
Civil Code. For the failure of PAL to rebut the legal presumption of negligence in the selection and
supervision of its employee, it is also primarily liable under Article 2180 of the same code which explicitly
provides that employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry.

Under the aforesaid provision, all that is required is that the employee, by his negligence, committed a
quasi-delict which caused damage to another, and this suffices to hold the employer primarily and
solidarily responsible for the tortious act of the employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the offended partys claim.

On the issue of damages, we agree, except as to the amount, that nominal damages may be awarded
to respondent Pagsibigan to vindicate the legal wrong committed against him. It appearing that the
wrong committed was immediately rectified when PAL promptly booked him for the next mornings flight
to Taipei where he arrived before noon of June 11, 1968 and was able to attend his scheduled
conference, and considering the concept and purpose of nominal damages, the award of P20,000.00
must accordingly be reduced to an amount equal or at least commensurate to the injury sustained.

WHEREFORE, the decision of respondent Court of Appeals is MODIFIED accordingly. China Air Lines,
Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and Roberto

Espiritu are declared jointly and severally liable to pay the sum of P10,000.00 by way of nominal
damages, without prejudice to the right of Philippine Air Lines, Inc. to recover from Roberto Espiritu
reimbursement of the damages that it may pay respondent Jose Pagsibigan.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

Decision modified.

Notes. The actual owner of a passenger jeep is solidarily liable with the registered owner in a civil
action on quasi-delict. (Jereos vs. Court of Appeals, 117 SCRA 395.)

The liability of the employer under Art. 2180 of the new Civil Code is direct and immediate and not
conditioned on a prior showing of negligence of the employer. (Kapalaran Bus Line vs. Coronado, 176
SCRA 792.)

o0o

PANTRANCO NORTH EXPRESS, INC. petitioner, vs. MARICAR BASCOS BAESA, thru her
personal guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her minor
children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, respondents.

G.R. Nos. 79050-51. November 14, 1989

Torts and Damages; Last Clear Chance; The doctrine applies only in a situation where the plaintiff was
guilty of prior or antecedent negligence but the defendant, who had the last clear chance to avoid the
injury and failed to do so is made liable for all the consequences of the accident.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 Peoples Lumber and Hardware, et al. v. 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 for damages.

Same; Same; The doctrine does not apply where the person who allegedly had the last opportunity to
avoid the accident was not aware of the existence of the peril.Contrary to the petitioners contention,
the doctrine of last clear chance finds no application in this case. For the doctrine to be applicable, it
is necessary to show that the person who allegedly had the last opportunity to avert the accident was
aware of the existence of the peril or should, with exercise of due care, have been aware of it. One
cannot be expected to avoid an accident or injury if he does not know or could not have known the
existence of the peril. In this case, there is nothing to show that the jeepney driver David Ico knew of
the impending danger. When he saw at a distance that the approaching bus was encroaching on his
lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have
assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching
from the opposite direction.

Same; Same; Doctrine not applicable where the party charged is required to act instantaneously.The
speed at which the approaching bus was running prevented David Ico from swerving the jeepney to the
right shoulder of the road in time to avoid the collision. Thus, even assuming that the jeepney driver
perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it. This
Court has held that the last clear chance doctrine can never apply where the party charged is required
to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after
the peril is or should have been discovered [Ong v. Metropolitan Water District, supra].

Same; Same; Proximate Cause; Negligence of petitioners driver was the proximate cause of the injury
without which the accident would not have occurred.Considering the foregoing, the Court finds that
the negligence of petitioners driver in encroaching into the lane of the incoming jeepney and in failing
to return the bus to its own lane immediately upon seeing the jeepney coming from the opposite direction
was the sole and proximate cause of the accident without which the collision would not have occurred.
There was no supervening or intervening negligence on the part of the jeepney driver which would have
made the prior negligence of petitioners driver a mere remote cause of the accident.

Same; Quasi-Delict; After negligence of an employee has been established, burden of proof is on the
employer to show that he exercised due diligence in the selection and supervision of his employees.
The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption of
negligence on the part of petitioner and the burden of proving that it exercised due diligence not only in
the selection of its employees but also in adequately supervising their work rests with the petitioner
[Lilius v. Manila Railroad Company, 59 Phil. 758 (1934), Umali v. Bacani, G.R. No. L-40570, June 30,
1976, 69 SCRA 623]. Contrary to petitioners claim, there is no presumption that the usual recruitment
procedures and safety standards were observed. The mere issuance of rules and regulations and the
formulation of various company policies on safety, without showing that they are being complied with,
are not sufficient to exempt petitioner from liability arising from the negligence of its employee. It is
incumbent upon petitioner to show that in recruiting and employing the erring driver, the recruitment
procedures and company policies on efficiency and safety were followed.

Same; Absence of documentary evidence does not bar recovery of damages for loss of earning
capacity.The Court finds that the Court of Appeals committed no reversible error in fixing the amount
of damages for the loss of earning capacity of the deceased victims. While it is true that private
respondents should have presented documentary evidence to support their claim for damages for loss
of earning capacity of the deceased victims, the absence thereof does not necessarily bar the recovery
of the damages in question. The testimony of Fe Ico and Francisca Bascos as to the earning capacity
of David Ico and the spouses Baesa, respectively, are sufficient to establish a basis from which the
court can make a fair and reasonable estimate of the damages for the loss of earning capacity of the
three deceased victims.

PETITION for review from the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Efren N. Ambrosio & Associates for petitioner PNEI.

Emiliano S. Micu for respondents.

CORTS, J.:

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the decision of
the Court of Appeals in CA-G.R. CV No. 05494-95 which affirmed the decisions of the then Court of
First Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein
PANTRANCO was ordered to pay damages and attorneys fees to herein private respondents.

The pertinent facts are as follows:

At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their
children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their
son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at
Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who
was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to
deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the highway going to
Malalam River. Upon reaching the highway, the jeepney turned right and proceeded to Malalam River
at a speed of about 20 kph. While they were proceeding towards Malalam River, a speeding
PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the jeepneys lane while
negotiating a curve, and collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children,
Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney
was extensively damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez,
boarded a car and proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has
never been seen and has apparently remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case amicably
under the No Fault insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor
children, filed separate actions for damages arising from quasi-delict against PANTRANCO,
respectively docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Icos alleged negligence as the
proximate cause of the accident, invoked the defense of due diligence in the selection and supervision
of its driver, Ambrosio Ramirez.

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the total
amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven (P2,304,647.00) as
damages, plus 10% thereof as attorneys fees and costs to Maricar Baesa in Civil Case No. 561-R, and
the total amount of Six Hundred Fifty Two Thousand Six Hundred Seventy-Two Pesos (P652,672.00)
as damages, plus 10% thereof as attorneys fees and costs to Fe Ico and her children in Civil Case No.
589-R. On appeal, the cases were consolidated and the Court of Appeals modified the decision of the
trial court by ordering PANTRANCO to pay the total amount of One Million One Hundred Eighty-Nine
Thousand Nine Hundred Twenty-Seven Pesos (P1,189,927.00) as damages, plus Twenty Thousand
Pesos (P20,000.00) as attorneys fees to Maricar Baesa, and the total amount of Three Hundred Forty-
Four Thousand Pesos (P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorneys fees to Fe
Ico and her children, and to pay the costs in both cases. The dispositive portion of the assailed decision
reads as follows:

WHEREFORE, the decision appealed from is hereby modified by ordering the defendant PANTRANCO
North Express, Inc. to pay:

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following damages:

A) As compensatory damages for the death of Ceasar BaesaP30,000.00;

B) As compensatory damages for the death of Marilyn BaesaP30,000.00;

C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa
P30,000.00;

D) For the loss of earnings of Ceasar BaesaP630,000.00;

 E) For the loss of earnings of Marilyn Bascos BaesaP375,000.00;

F) For the burial expenses of the deceased Ceasar and Marilyn BaesaP41,200.00;

G) For hospitalization expenses of Maricar BaesaP3,727.00;

H) As moral damagesP50,000.00;

I) As attorneys feesP20,000.00;

II. The plaintiffs in Civil Case No. 589-R, the following damages:

A) As compensatory damages for the death of David IcoP30,000.00;

B) For loss of earning capacity of David IcoP252,000.00;

C) As moral damages for the death of David Ico and the injury of Fe IcoP30,000.00;

D) As payment for the jeepneyP20,000.00;

E) For the hospitalization of Fe IcoP12,000.00;

F) And for attorneys feesP10,000.00; and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the medical
expenses in the sum of P3,273.55, should be deducted from the award in her favor.

All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate from date
of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeals decision, but on June 26, 1987,
it denied the same for lack of merit. PANTRANCO then filed the instant petition for review.

Petitioner faults the Court of Appeals for not applying the doctrine of the last clear chance against the
jeepney driver. Petitioner claims that under the circumstances of the case, it was the driver of the
passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in
failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

The doctrine of the 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 Peoples Lumber and Hardware, et al. v. 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 for damages.

To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its driver
was not the proximate cause of the accident and that the sole proximate cause was the supervening
negligence of the jeepney driver David Ico in failing to avoid the accident. It is petitioners position that
even assuming arguendo, that the bus encroached into the lane of the jeepney, the driver of the latter
could have swerved the jeepney towards the spacious dirt shoulder on his right without danger to
himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioners contention, the doctrine of last clear chance finds no application in this
case. For the doctrine to be applicable, it is necessary to show that the person who allegedly had the
last opportunity to avert the accident was aware of the existence of the peril or should, with exercise of
due care, have been aware of it. One cannot be expected to avoid an accident or injury if he does not
know or could not have known the existence of the peril. In this case, there is nothing to show that the
jeepney driver David Ico knew of the impending danger. When he saw at a distance that the
approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt
shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane
upon seeing the jeepney approaching from the opposite direction. As held by this Court in the case of
Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618, a motorist who is
properly proceeding on his own side of the highway is generally entitled to assume that an approaching
vehicle coming towards him on the wrong side, will return to his proper lane of traffic. There was nothing
to indicate to David Ico that the bus could not return to its own lane or was prevented from returning to
the proper lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the
Pantranco bus who was seated beside the driver Ramirez at the time of the accident, testified that
Ramirez had no choice but to swerve the steering wheel to the left and encroach on the jeepneys lane
because there was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is
belied by the evidence on record which clearly shows that there was enough space to swerve the bus
back to its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].

Moreover, both the trial court and the Court of Appeals found that at the time of the accident the
Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David Ico
must have realized that the bus was not returning to its own lane, it was already too late to swerve the
jeepney to his right to prevent an accident. The speed at which the approaching bus was running
prevented David Ico from swerving the jeepney to the right shoulder of the road in time to avoid the
collision. Thus, even assuming that the jeepney driver perceived the danger a few seconds before the
actual collision, he had no opportunity to avoid it. This Court has held that the last clear chance doctrine
can never apply where the party charged is required to act instantaneously, and if the injury cannot be
avoided by the application of all means at hand after the peril is or should have been discovered [Ong
v. Metropolitan Water District, supra].

Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article III
Chapter IV of Republic Act No. 4136 which provides that the driver of a vehicle entering a through
highway or a stop intersection shall yield the right of way to all vehicles approaching in either direction
on such through highway.

Petitioners misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself
provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of
the accident, the jeepney had already crossed the intersection and was on its way to Malalam River.
Petitioner itself cited Fe Icos testimony that the accident occurred after the jeepney had travelled a
distance of about two (2) meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In fact, even
the witness for the petitioner, Leo Marantan, testified that both vehicles were coming from opposite
directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating that the jeepney had already crossed the
intersection.

Considering the foregoing, the Court finds that the negligence of petitioners driver in encroaching into
the lane of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing
the jeepney coming from the opposite direction was the sole and proximate cause of the accident
without which the collision would not have occurred. There was no supervening or intervening
negligence on the part of the jeepney driver which would have made the prior negligence of petitioners
driver a mere remote cause of the accident.

II

On the issue of its liability as an employer, petitioner claims that it had observed the diligence of a good
father of a family to prevent damage, conformably to the last paragraph of Article 2180 of the Civil Code.
Petitioner adduced evidence to show that in hiring its drivers, the latter are required to have professional
drivers license and police clearance. The drivers must also pass written examinations, interviews and
practical driving tests, and are required to undergo a six-month training period. Rodrigo San Pedro,
petitioners Training Coordinator, testified on petitioners policy of conducting regular and continuing
training programs and safety seminars for its drivers, conductors, inspectors and supervisors at a
frequency rate of at least two (2) seminars a month.

On this point, the Court quotes with approval the following findings of the trial court which was adopted
by the Court of Appeals in its challenged decision:

When an injury is caused by the negligence of an employee, there instantly arises a presumption that
the employer has been negligent either in the selection of his employees or in the supervision over their
acts. Although this presumption is only a disputable presumption which could be overcome by proof of
diligence of a good father of a family, this Court believes that the evidence submitted by the defendant
to show that it exercised the diligence of a good father of a family in the case of Ramirez, as a company
driver is far from sufficient. No support evidence has been adduced. The professional drivers license
of Ramirez has not been produced. There is no proof that he is between 25 to 38 years old. There is
also no proof as to his educational attainment, his age, his weight and the fact that he is married or not.
Neither are the result of the written test, psychological and physical test, among other tests, have been
submitted in evidence [sic]. His NBI or police clearances and clearances from previous employment
were not marked in evidence. No evidence was presented that Ramirez actually and really attended
the seminars. Vital evidence should have been the certificate of attendance or certificate of participation
or evidence of such participation like a logbook signed by the trainees when they attended the seminars.
If such records are not available, the testimony of the classmates that Ramirez was their classmate in
said seminar (should have been presented) [CA Decision, pp. 8-9; Rollo, pp. 51-52].

Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its driver only
means that he underwent the same rigid selection process and was subjected to the same strict
supervision imposed by petitioner on all applicants and employees. It is argued by the petitioner that
unless proven otherwise, it is presumed that petitioner observed its usual recruitment procedure and
company polices on safety and efficiency [Petition, p. 20; Rollo, p. 37].

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption of
negligence on the part of petitioner and the burden of proving that it exercised due diligence not only in
the selection of its employees but also in adequately supervising their work rests with the petitioner
[Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-40570, June 30,
1976, 69 SCRA 623]. Contrary to petitioners claim, there is no presumption that the usual recruitment
procedures and safety standards were observed. The mere issuance of rules and regulations and the
formulation of various company policies on safety, without showing that they are being complied with,
are not sufficient to exempt petitioner from liability arising from the negligence of its employee. It is
incumbent upon petitioner to show that in recruiting and employing the erring driver, the recruitment
procedures and company policies on efficiency and safety were followed. Petitioner failed to do this.
Hence, the Court finds no cogent reason to disturb the finding of both the trial court and the Court of
Appeals that the evidence presented by the petitioner, which consists mainly of the uncorroborated
testimony of its Training Coordinator, is insufficient to overcome the presumption of negligence against
petitioner.

III

On the question of damages, petitioner claims that the Court of Appeals erred in fixing the damages for
the loss of earning capacity of the deceased victims. Petitioner assails respondent courts findings
because no documentary evidence in support thereof, such as income tax returns, pay-rolls, pay slips
or invoices obtained in the usual course of business, were presented [Petition, p. 22; Rollo, p. 39].
Petitioner argues that the bare and self-serving testimonies of the wife of the deceased David Ico and
the mother of the deceased Marilyn Baesa . . . have no probative value to sustain in law the Court of
Appeals conclusion on the respective earnings of the deceased victims. [Petition, pp. 21-22; Rollo, pp.
38-39.] It is petitioners contention that the evidence presented by the private respondent does not meet
the requirements of clear and satisfactory evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of damages
for the loss of earning capacity of the deceased victims. While it is true that private respondents should
have presented documentary evidence to support their claim for damages for loss of earning capacity
of the deceased victims, the absence thereof does not necessarily bar the recovery of the damages in
question. The testimony of Fe Ico and Francisca Bascos as to the earning capacity of David Ico, and
the spouses Baesa, respectively, are sufficient to establish a basis from which the court can make a
fair and reasonable estimate of the damages for the loss of earning capacity of the three deceased
victims. Moreover, in fixing the damages for loss of earning capacity of a deceased victim, the court can
consider the nature of his occupation, his educational attainment and the state of his health at the time
of death.

In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981 and was
driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both thirty (30) years
old at the time of their death. Ceasar Baesa was a commerce degree holder and the proprietor of the
Cauayan Press, printer of the Cauayan Valley Newspaper and the Valley Times at Cauayan, Isabela.
Marilyn Baesa graduated as a nurse in 1976 and at the time of her death, was the company nurse,
personnel manager, treasurer and cashier of the Ilagan Press at Ilagan, Isabela. Respondent court duly
considered these factors, together with the uncontradicted testimonies of Fe Ico and Francisca Bascos,
in fixing the amount of damages for the loss of earning capacity of David Ico and the spouses Baesa.

However, it should be pointed out that the Court of Appeals committed error in fixing the compensatory
damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent court awarded to plaintiff
(private respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00) as compensatory damages
for the death of Harold Jim Baesa and Marcelino Baesa. [CA Decision, p. 14; Rollo, 57]. In other words,
the Court of Appeals awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity for the death of
Harold Jim Baesa and another Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa.
This is clearly erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29,
1983, 126 SCRA 518, the indemnity for the death of a person was fixed by this Court at Thirty Thousand
Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos
(P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino Baesa or
Thirty Thousand Pesos (P30,000.00) for the death of each brother.

The other items of damages awarded by respondent court which were not challenged by the petitioner
are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court of
Appeals is hereby AFFIRMED with the modification that the amount of compensatory damages for the
death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos (P30,000.00)
each.

SO ORDERED.
 Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Petition denied. Decision affirmed with modification.

Note. It is the duty of a common carrier to overcome the presumption of negligence that accrues
once its passenger dies of an accident. (Philippine National Railways vs. CA, 139 SCRA 87)

o0o

GAUDIOSO EREZO, ET AL., plaintiffs. GAUDIOSO EREZO, plaintiff and appellee, vs. AGUEDO
JEPTE, defendant and appellant.

No. L-9605. September 30, 1957

1. DAMAGES; MOTOR VEHICLES; PUBLIC SERVICE LAW; REGISTERED OWNER AS ACTUAL

OWNER.In dealing with vehicles registered under the Public Service Law, the public has the right to
assume or presume that the registered owner is the actual owner thereof, for it would be difficult for the
Public to enforce the actions that they may have for injuries caused to them by the vehicles being
negligently operated if the public should be required to prove who the actual owner is.

2. lD.; ID.; REGISTERED OWNER PRIMARILY RESPONSIBLE FOR INJURIES.The registered

owner of any vehicle, even if not used for a public service, should primarily be responsible to the public
or to third persons for injuries caused the latter while the vehicle is being driven on the highways or
streets.

3. ID.; MOTOR VEHICLES OFFICE; REGISTRATION REQUIRED AS PERMISSION TO USE PUBLIC

HIGHWAY.Registration is required not to make said registration the operative act by which ownership
in vehicles is transferred as in land registration cases, because the administrative proceeding of
registration does not bear any essential relation to the contract of sale between the parties (Chinchilla
vs. Rafael and Verdaguer 39 Phil. 886), but to permit the use and operation of the vehicle upon any
public highway (Section 5 (a) Act No. 3992, as amended).

4. ID. ; ID. ; ID. ; AIM OR PURPOSE OF MOTOR VEHICLE REGISTRATION.The main aim of motor
vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury
is caused, by the vehicle on the public highways, responsibility therefor can be fixed on a definite
individual, the registered owner.

5. ID.; ID.; EVIDENCE; REGISTERED OWNER NOT ALLOWED TO PROVE ACTUAL AND REAL
OWNER OF VEHICLE; POLICY OF THE LAW. The law does not allow the registered owner to prove
who the actual owner is; the law, with its aim and policy in mind, does not relieve him directly of the
responsibility that the law fixes and places upon him as an incident or consequence of registration.
Were the registered owner allowed to evade responsibility by proving who the supposed transferee or
owner is, it would be easy for him by collusion with others or otherwise, to escape said responsibility
and transfer the same to an indefinite person, or to one who possesses no property with which to
respond financially for the damage or injury done.

6. ID. ; ID. ; ID. ; ID. ; ID. ; REGISTRATION AS MEANS TO IDENTIFY PERSON CAUSING INJURY
OR DAMAGE.A victim of recklessness on the public highways is usually without means to discover
or identify the person actually causing the injury or damage. He has no means other than by a recourse
to the registration in the Motor Vehicles Office to determine who is the owner. The protection that the
law aims to extend to him would become illusory were the registered owner given the opportunity to
escape liability by disproving his ownership. If the policy of the law is to be enforced and carried out,
the registered owner should not be allowed to prove the contrary to the prejudice of the person injured,
that is to prove that a third person or another has become the owner, so that he may thereby be relieved
of the responsibility to the injured person.

7. lD.; MOTOR VEHICLE REGISTERED OWNER AS PRIMARILY RESPONSIBLE; RIGHT OF

REIMBURSEMENT.The registered owner of a motor vehicle is primarily responsible for the damage
caused to the vehicle of the plaintiff-appellee but the registered owner has a right to be indemnified by
the real or actual owner of the amount that he may be required to pay as damage for the injury caused
to the plaintiff-appellant.

APPEAL from a judgment of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.

Gesolgon, Matti & Custodio for appellees.

Aguedo Y. Jepte in his own behalf.

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Manila ordering defendant to pay plaintiff
Gaudioso Erezo P3,000 on the death of Ernesto Erezo, son of plaintiff Gaudioso Erezo.

Defendant-appellant is the registered owner of a six by six truck bearing plate No. TC-1253. On August
9, 1949, while the same was being driven by Rodolfo Espino y Garcia, it collided with a taxicab at the
intersection of San Andres and Dakota Streets, Manila. As the truck went off the street, it hit Ernesto
Erezo and another, and the former suffered injuries, as a result of which he died. The driver was
prosecuted for homicide through reckless negligence in criminal case No. 10663 of the Court of First
Instance of Manila. The accused pleaded guilty and was sentenced to suffer imprisonment and to pay
the heirs of Ernesto Erezo the sum of P3,000. As the amount of the judgment could not be enforced
against him, plaintiff brought this action against the registered owner of the truck, the defendant-
appellant. The circumstances material to the case are stated by the court in its decision:

"The defendant does not deny that at the time of the fatal accident the cargo truck driven by Rodolfo
Espino y Garcia was registered in his name. He, however, claims that the vehicle belonged to the Port
Brokerage, of which he was the broker at the time of the accident. He explained, and his explanation
was corroborated by Policarpio Franco, the manager of the corporation, that the trucks of the
corporation were registered in his name as a convenient arrangement so as to enable the corporation
to pay the registration fee with his backpay as a pre-war government employee. Franco, however,
admitted that the arrangement was not known to the Motor Vehicles Office."

The trial court held that as the defendant-appellant represented himself to be the owner of the truck and
the Motor Vehicles Office, relying on his representation, registered the vehicles in his name, the
Government and all persons affected by the representation had the right to rely on his declaration of
ownership and registration. It, therefore, held that defendant-appellant is liable because he cannot be
permitted to repudiate his own declaration. (Section 68' [a], Rule 123, and Art. 1431, New Civil Code.)

Against the judgment, the defendant has prosecuted this appeal claiming that at the time of the accident
the relation of employer and employee between the driver and defendant-appellant was not established,
it having been proved at the trial that the owner of the truck was the Port Brokerage, of which defendant-
appellant was merely a broker. We find no merit or justice in the above contention. In previous decisions,
We already have held that the registered owner of a certificate of public convenience is liable to the
public for the injuries or damages suffered by passengers or third persons caused by the operation of
said vehicle, even though the same had been transferred to a third person. (Montoya vs. Ignacio, 94
Phil., 182, 50 Off. Gaz., 108; Roque vs. Malibay Transit Inc., G. R. No. L-8561, November 18, 1955;
Vda. de Medina vs. Cresencia, 99 Phil., 506, 52 Off. Gaz., [10], 4606.) The principle upon which this
doctrine is based is that in dealing with vehicles registered under the Public Service Law, the public has
the right to assume or presume that the registered owner is the actual owner thereof, for it would be
difficult for the public to enforce the actions that they may have for injuries caused to them by the
vehicles being negligently operated if the public should be required to prove who the actual owner is.
How would the public or third persons know against whom to enforce their rights in case of subsequent
transfers of the vehicles? We do not imply by this doctrine, however, that the registered owner may not
recover whatever amount he had paid by virtue of his liability to third persons from the person to whom
he had actually sold, assigned or conveyed the vehicle.
Under the same principle the registered owner of any vehicle, even if not used for a public service,
should primarily be responsible to the public or to third persons for injuries caused the latter while the
vehicle is being driven on the highways or streets. The members of the Court are in agreement that the
defendant-appellant should be held liable to plaintiff-appellee for the injuries occasioned to the latter
because of the negligence of the driver, even if the defendant-appellant was no longer the owner of the
vehicle at the time of the damage because he had previously sold it to another. What is the legal basis
for his (defendant-appellant's) liability?

There is a presumption that the owner of the guilty vehicle is the defendant-appellant as he is the
registered owner in the Motor Vehicles Office. Should he not be allowed to prove the truth, that he had
sold it to another and thus shift the responsibility for the injury to the real and actual owner? The
defendant holds the affirmative of this proposition; the trial court held the negative.

The Revised Motor Vehicles Law (Act No. 3992, as amended) provides that no vehicle may be used or
operated upon any public highway unless the same is properly registered. It has been stated that the
system of licensing and the requirement that each machine must carry a registration number,
conspicuously displayed, is one of the precautions taken to reduce the danger of injury to pedestrians
and other travellers from the careless management of automobiles, and to furnish a means of
ascertaining the identity of persons violating the laws and ordinances, regulating the speed and
operation of machines upon the highways (2 R. C. L. 1176). Not only are vehicles to be registered and
that no motor vehicles are to be used or operated without being properly registered for the current year,
but that dealers in motor vehicles shall furnish the Motor Vehicles Office a report showing the name and
address of each purchaser of motor vehicle during the previous month and the manufacturer's serial
number and motor number. (Section 5 [c], Act No. 3992, as amended.)

Registration is required not to make said registration the operative act by which ownership in vehicles
is transferred, as in land registration cases, because the administrative proceeding of registration does
not bear any essential relation to the contract of sale between the parties (Chinchilla vs. Rafael and
Verdaguer, 39 Phil. 888), but to permit the use and operation of the vehicle upon any public highway
(section 5 [a], Act No. 3992, as amended). The main aim of motor vehicle registration is to identify the
owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the
public highways, responsibility therefor can be fixed on a definite individual, the registered owner.
Instances are numerous where vehicles running on public highways caused accidents or injuries to
pedestrians or other vehicles without positive identification of the owner or drivers, or with very scant
means of identification. It is to forestall these circumstances, so inconvenient or prejudicial to the public,
that the motor vehicle registration is primarily ordained, in the interest of the determination of persons
responsible for damages or injuries caused on public highways.

" 'One of the principal purposes of motor vehicles legislation is identification of the vehicle and of the
operator, in case of accident; and another is that the knowledge that means of detection are always
available may act as a deterrent from lax observance of the law and of the rules of conservative and
safe operation. Whatever purpose there may be in these statutes, it is subordinate at the last to the
primary purpose of rendering it certain that the violator of the law or of the rules of safety shall not
escape because of lack of means to discover him.' The purpose of the statute is thwarted, and the
displayed number becomes a 'snare and delusion,' if courts would entertain such defenses as that put
forward by appellee in this case. No responsible person or corporation could be held liable for the most
outrageous acts of negligence, if they should be allowed to place a "middleman' between them and the
public, and escape liability by the manner in which they recompense their servants." (King vs. Brenham
Automobile Co., 145 S. W. 278, 279.)

With the above policy in mind, the question that defendant-appellant poses is: should not the registered
owner be allowed at the trial to prove who the actual and real owner is, and in accordance with such
proof escape or evade responsibility and lay the same on the person actually owning the vehicle? We
hold with the trial court that the law does not allow him to do so; the law, with its aim and policy in mind,
does not relieve him directly of the responsibility that the law fixes and places upon him as an incident
or consequence of registration. Were a registered owner allowed to evade responsibility by proving who
the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to
escape said responsibility and transfer the same to an indefinite person, or to one who possesses no
property with which to respond financially for the damage or injury done. A victim of recklessness on
the public highways is usually without means to discover or identify the person actually causing the
injury or damage. He has no means other than by a recourse to the registration in the Motor Vehicles
Office to determine who is the owner. The protection that the law aims to extend to him would become
illusory were the registered owner given the opportunity to escape liability by disproving his ownership.
If the policy of the law is to be enforced and carried out, the registered owner should not be allowed to
prove the contrary to the prejudice of the person injured, that is, to prove that a third person or another
has become the owner, so that he may thereby be relieved of the responsibility to the injured person.

The above policy and application of the law may appear quite harsh and would seem to conflict with
truth and justice. We do not think it is so. A registered owner who has already sold or transferred a
vehicle has the recourse to a third-party complaint, in the same action brought against him to recover
for the damage or injury done, against the vendee or transferee of the vehicle. The inconvenience of
the suit is no justification for relieving him of liability; said inconvenience is the price he pays for failure
to comply with the registration that the law demands and requires.

In synthesis, we hold that the registered owner, the defendant-appellant herein, is primarily responsible
for the damage caused to the vehicle of the plaintiff-appellee, but he (defendant-appellant) has a right
to be indemnified by the real or actual owner of the amount that he may be required to pay as damage
for the injury caused to the plaintiff-appellant.

The judgment appealed from is hereby affirmed, with costs against defendant-appellant.

Pars, C. J., Bengzon, Bautista Angelo, Concepcin, Reyes, J. B. L., Endencia, and Felix, JJ.,
concur.

Montemayor, J., concurs in the result.

Judgment affirmed.

o0o

DIWATA VARGAS, petitioner, vs. SALVADOR LANGCAYCO-RAZON LANGCAY, HELEN

LANGCAY and JOSE AGUAS, respondents.

No. L-17459. September 29, 1962

Public Utilities; Registered Owner/Operator of Passenger Vehicles; Liability for damages incurred as
consequence of injuries. The registered owner/operator of a passenger vehicle is jointly and severally
liable with the driver for damages incurred by passengers or third persons as a consequence of injuries
(or death) sustained in the operation of said vehicles. (Montoya vs. Ignacio, L-5868, Dec. 29, 1953;
Timbol vs. Osias, L-7547, April 30, 1955; Vda. de Medina vs. Cresencia, L-8194, July 11, 1956;
Necesito vs. Paras, L-10605, June 30, 1955; Erezo vs. Jepte, L-9605, Sept. 30, 1957; Tamayo vs.
Aquino, L-12634, May 29, 1959; Rayos vs. Tamayo, L-12720, May 29, 1959.)

Same; Same; Direct and primary liability of operator of record; Actual owner and employer deemed
agent of operator of record.Regardless of who the actual owner of a vehicle is, the operator of record
continues to be the operator of the vehicles as regards the public and third persons, and as such is
directly and primarily responsible for the consequences incident to its operation, so that, in
contemplation of law, such owner/operator of record is the employer of the driver, the actual operator
and employer being considered merely as his agent.

PETITION for review of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Mary Concepcion for petitioner.

 Jose R. Abalos and A. M. Ronquillo for respondents.

LABRADOR, J.:

This is a petition for review of the decision of the Court of Appeals finding petitioner subsidiarily liable
for damages under article 103 of the Revised Penal Code.

At about 8:00 oclock in the morning of June 5, 1955, at Rizal Avenue, Manila, Corazon and Helen
Langcay, sisters, were hit and injured by a jeepney bearing plate No. AC-4859-Quezon City-1955, then
driven by Ramon B. Aguas. Criminally charged with physical injuries, the said Ramon B. Aguas was
finally sentenced by the Court of Appeals, in CA-G.R. No. 17900-R, to 3 months and 6 days of arresto
mayor for serious and slight physical injuries through reckless imprudence, caused to Corazon and
Helen Langcay, without pronouncement with respect to the indemnity due to the aggrieved parties,
because the action therefor had been reserved.

Since the records of the Public Service Commission and the Motor Vehicles Office showed that Diwata
Vargas was, at the time of the accident, the owner and operator of the jeepney in question, the parents
of Corazon and Helen sued Diwata Vargas and the driver for damages. In spite of the defense of
appellant Diwata Vargas that prior to the accident, precisely on August 17, 1953, she had sold the
vehicle to Jose B. Aguas (father of the driver), so that at the time of the accident she was no longer the
owner of the jeepney, and that, further, the Public Service Commission, on October 27, 1953, cancelled
the certificate of public convenience issued in her name, the defendants Diwata Vargas and Ramon B.
Aguas were jointly and severally sentenced to pay damages and attorneys fees by the Court of First
Instance of Manila. Diwata Vargas appealed to the Court of Appeals which affirmed, with modifications,
the lower courts decision.

Pertinent parts of the Appeals Court decision are hereby reproduced for a clearer understanding of the
issue involved in this appeal:

The order of cancellation and revocation of appellants certificate of public convenience, dated October
27, 1953 (Exh. 4-D) does not relieve her of the liability established by the above quoted legal provisions
as clearly and positively construed by the highest tribunal of the land. This order was issued motu
proprio by the Commission in view of appellants failure to pay the P15.00 supervision and regulation
fee and its 50% surcharge, and not for the purpose of transferring the same certificate to Jose B. Aguas.
A copy of the above-mentioned order was furnished appellant, so that she cannot profess ignorance of
what she termed the anomalous operation of the jeepney she sold to Jose B. Aguas without the
required authorization or approval of the Public Service Commission. Appellants failure to stop the
operation of the vehicle in question and to surrender to the Motor Vehicles Office the corresponding AC
plates, as ordered by exhibit 4-D, Vargas constitutes a violation of the Revised Motor Vehicle Law and
Commonwealth Act No. 146, which violation makes her liability and responsibility clearer and more
inescapable.

x x x x x x x

x x x Appellants liability stems from and is a form of punishment for her failure to comply with section
20(g) of Commonwealth Act 146 and with 5 of Act 3992. x x x

x x x x x x x

There is no question that appellees Corazon and Helen Langcay were not passengers of the jeepney,
the reckless operation of which resulted in their injuries. Therefore, the direct and immediate liability of
a common carrier as provided for by the Civil Code cannot be ascribed to appellant. Accordingly, her
liability should be based on article 103 of the Revised Penal Code. x x x Therefore, appellants
responsibility is merely subsidiary, pursuant to the above cited article of the Revised Penal Code.

x x x x x x x
x x x the judgment appealed from is hereby modified in the sense that should defendant Ramon B.
Aguas be found insolvent, appellant should pay appellees the sum of P953.00 as compensatory
damages, P4,000.00 and P500.00 as moral damages suffered by Corazon and Helen Langcay,
respectively, and P2,000.-00 for attorneys fees. It is also ordered that this case be returned to the court
of origin not only for the execution of this decision once it becomes final, but also for further proceedings
against Jose B. Aguas, after proper summons, in the third-party complaint above mentioned. Without
special pronouncement as to the payment of the costs.

Appellant-petitioner Diwata Vargas brought the case to this Court on a question of law, alleging that
she cannot be held liable under Art. 103 of the Revised Penal Code for whatever violation or offense
she may have committed under the Public Service Law and the Motor Vehicle Law and in the absence
of a showing that she employed the person (driver) who caused the damage, and that she was engaged
in an industry or a business, and where the evidence prove that the father (Jose B. Aguas) of the person
primarily liable (Ramon Aguas) is his actual employer.

We hold that the Court of Appeals erred in considering appellant-petitioner Diwata Vargas only
subsidiarily liable under Article 103 of the Revised Penal Code. This Court, in previous decisions, has
always considered the registered owner/operator of a passenger vehicle, jointly and severally liable
with the driver for damages incurred by passengers or third persons as a consequence of injuries (or
death) sustained in the operation of said vehicles. (Montoya vs. Ignacio, G.R. No. L-5868, Dec. 1953;
Timbol vs. Osias, G.R. No. L-7547, April 30, 1955; Vda. de Medina vs. Cresencia, G.R. No. L-8194,
July 11, 1956; Necesito vs. Paras, G.R. No. L-10605, June 1955; Erezo vs. Jepte, G.R. No. L-9605,
Sept. 30. 1957; Tamayo vs. Aquino, G.R. No. L-12634, May 29, 1959; Rayos vs. Tamayo, G.R. No. L-
12720. May 29, 1959.) In the case of Erezo vs. Jepte, supra We held:

x x x In synthesis, we hold that the registered owner, the defendant-appellant herein, is primarily
responsible for the damages caused x x x (Italics ours)

In the case of Tamayo vs. Aquino, supra We said:

x x x As Tamayo is the registered owner of the truck, his responsibility to the public or to any passenger
riding in the vehicle or truck must be direct x x x (Italics ours)

Petitioner argues that there was no showing that she employed the person (the driver) who caused the
injuries. On the contrary, she argues, the evidence show that Jose B. Aguas, the father of the driver, is
his actual employer. We believe that it is immaterial whether or not the driver was actually employed by
the operator of record. It is even not necessary to prove who the actual owner of the vehicle and the
employer of the driver is. Granting that, in this case, the father of the driver is the actual owner and that
he is the actual employer, following the well-settled principle that the operator of record continues to be
the operator of the vehicle in contemplation of law, as regards the public and third persons, and as such
is responsible for the consequences incident to its operation, we must hold and consider such owner-
operator of record as the employer, in contemplation of law, of the driver. And, to give effect to this
policy of law as enunciated in the above-cited decisions of this Court, we must now extend the same
and consider the actual operator and employer as the agent of the operator of record. In the case of
Tamayo vs. Aquino, supra, this Court said:

x x x In operating the truck without transfer thereof having been approved by the Public Service
Commission, the transferee acted merely as agent of the registered owner. x x x (Italics ours)

The purpose of the principles evolved by the decisions in these matters will be defeated and thwarted
if we entertain the argument of petitioner that she is not liable because the actual owner and employer
was established by the evidence. In the case of Erezo vs. Jepte, supra, the Court said:

x x x With the above policy in mind, the question that defendant-appellant poses is: Should not the
registered owner be allowed at the trial to prove who the actual and real owner is, and in accordance
with such proof escape or evade responsibility and lay the same on the person actually owning the
vehicle? We hold with the trial court that the law does not allow him to do so; the law, with its aim and
policy in mind, does not relieve him directly of the responsibility that the law fixes and places upon him
as an incident or consequence of registration. Were a registered owner allowed to evade responsibility
by proving who the supposed transferee or owner is, it would be easy for him by collusion with others
or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who
possesses no property with which to respond financially for the damage or injury done. A victim of
recklessness on the public highways is without means to discover or identify the person actually causing
the injury or damage. He has no means other than by a recourse to the registration in the Motor Vehicles
Office to determine who is the owner. The protection that the law aims to extend to him would become
illusory were the registered owner given the opportunity to escape liability by disproving his ownership.
If the policy of the law is to be enforced and carried out, the registered owner should not be allowed to
prove the contrary to the prejudice of the person injured; that is, to prove that a third person or another
has become the owner, so that he may thereby be relieved of the responsibility to the injured person.

For the foregoing considerations, we hold that Article 103 is not the law applicable in this case; the
petitioner stands liable, however, on the basis of the settled principle that as the registered owner, she
is directly and primarily responsible and liable for damages sustained by passengers or third persons
as a consequence of the negligent or careless operation of the vehicle registered in her name. Petitioner
does not question the amounts of damages granted to respondents by the Court of Appeals and the
same not appearing to be excessive or unconscionable, they should be maintained.

WHEREFORE, the decision of the Court of Appeals is hereby modified, as above indicated. With costs.

Bengzon, C.J., Padilla, Bautista Angelo, Reyes, J.B.L. and Paredes, JJ., concur.

Concepcion, Barrera, Dizon, Regala and Makalintal, JJ., did not take part.

Decision modified.

Note.Transfer of motor vehicles is governed by Section 20, paragraph (g), Commonwealth Act No.
146, otherwise known as the Public Service Act. As construed, any transfer or lease of motor vehicle
should be recorded with the Public Service Commission so that the latter may take proper safeguards
to protect the interest of the public. Without the registration of the transfer, the registered owner, not the
buyer, continues to be liable to the Commission and the public for the consequences incident to its
operation (See Montoya v. Ignacio, 50 O.G. No. 1, 108 and Tamayo v. Aquino, 56 O.G. No. 36, 5617
and cases cited therein). Registration of motor vehicles is required not because it is the operative act
that transfers ownership in vehicles (as it is in land registration cases), but because it is the means by
which to identify the owner, so that if any damage or injury is caused by the vehicle, responsibility for
the same can be fixed (See Erezo, et al. v. Jepte, L-9605, Sept. 30, 1957; De Peralta v. Mangusang,
L-18110, July 31, 1964).

o0o

GILBERTO M. DUAVIT, petitioner, vs. THE HON. COURT OF APPEALS, Acting through the
Third Division, as Public Respondent, and ANTONIO SARMIENTO, SR. & VIRGILIO CATUAR,
respondents.

G.R. No. 82318. May 18, 1989

Motor Vehicle Law; Damages; An owner of a vehicle cannot be held liable for an accident involving the
said vehicle if the same was driven without his consent or knowledge and by a person not employed by
him. ___ As early as in 1939, we have ruled that an owner of a vehicle cannot be held liable for an
accident involving the said vehicle if the same was driven without his consent or knowledge and by a
person not employed by him.

Same; Same; Same; Reliance on the cases of Erezo v. Jepte and Vargas v. Langcay cannot be
sustained. ___ The respondent courts misplaced reliance on the cases of Erezo v. Jepte (102 Phil. 103
[1957]) and Vargas v. Langcay (6 SCRA 174 [1962]) cannot be sustained. In the Erezo case, Jepte, the
registered owner of the truck which collided with a taxicab, and which resulted in the killing of Erezo,
claimed that at the time of the accident, the truck belonged to the Port Brokerage in an arrangement
with the corporation but the same was not known to the Motor Vehicles Office. This court sustained the
trial courts ruling that since Jepte represented himself to be the owner of the truck and the Motor
Vehicles Office, relying on his representation, registered the vehicle in his name, the Government and
all persons affected by the representation had the right to rely on his declaration of ownership and
registration. Thus, even if Jepte were not the owner of the truck at the time of the accident, he was still
held liable for the death of Erezo. Significantly, the driver of the truck was fully authorized to drive it.

Same; Same; Same; Same. ___ Likewise, in the Vargas case, just before the accident occurred, Vargas
had sold her jeepney to a third person, so that at the time of the accident she was no longer the owner
of the jeepney. This court, nevertheless, affirmed Vargas liability since she failed to surrender to the
Motor Vehicles Office the corresponding AC plates in violation of the Revised Motor Vehicle Law and

Commonwealth Act No. 146. We further ruled that the operator of record continues to be the operator
of the vehicle in contemplation of law, as regards the public and third persons, and as such is
responsible for the consequences incident to its operator. The vehicle involved was a public utility
jeepney for hire. In such cases, the law does not require the surrender of the AC plates but orders the
vendor operator to stop the operation of the jeepney as a form of public transportation until the matter
is reported to the authorities.

Same; Same; Same; Same; Circumstances of the above cases are entirely different from those in the
present case. ___ As can be seen, the circumstances of the above cases are entirely different from those
in the present case. Herein petitioner does not deny ownership of the vehicle involved in the mishap
but completely denies having employed the driver Sabiniano or even having authorized the latter to
drive his jeep. The jeep was virtually stolen from the petitioners garage. To hold, therefore, the
petitioner liable for the accident caused by the negligence of Sabiniano who was neither his driver nor
employee would be absurd as it would be like holding liable the owner of a stolen vehicle for an accident
caused by the person who stole such vehicle.

Same; Same; Same; Same; Same; Court cannot apply absolute rules based on precedents whose facts
do not jibe four square with pending cases. ___ We cannot blindly apply absolute rules based on
precedents whose facts do not jibe four square with pending cases. Every case must be determined on
its own peculiar factual circumstances. Where, as in this case, the records of the petition fail to indicate
the slightest indicia of an employer-employee relationship between the owner and the erring driver or
any consent given by the owner for the vehicles use, we cannot hold the owner liable.

PETITION to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Rodolfo d. Dela Cruz for petitioner.

Bito, Lozada, Ortega & Castillo for respondents.

GUTIERREZ, JR., J.:

This petition raises the sole issue of whether or not the owner of a private vehicle which figured in an
accident can be held liable under Article 2180 of the Civil Code when the said vehicle was neither driven
by an employee of the owner nor taken with the consent of the latter.

The facts are summarized in the contested decision, as follows:

From the evidence adduced by the plaintiffs, consisting of the testimonies of witnesses Virgilio Catuar,
Antonio Sarmiento, Jr., Ruperto Catuar, Jr. and Norberto Bernarte it appears that on July 28, 1971
plaintiffs Antonio Sarmiento, Sr. and Virgilio Catuar were aboard a jeep with plate number 77-99-F-1-
Manila, 1971, owned by plaintiff, Ruperto Catuar was driving the said jeep on Ortigas Avenue, San
Juan, Rizal; that plaintiffs jeep, at the time, was running moderately at 20 to 35 kilometers per hour ___
and while approaching Roosevelt Avenue, Virgilio Catuar slowed down; that suddenly, another jeep
with plate number 99-97-F-J, Manila 1971 driven by defendant Oscar Sabiniano hit and bumped
plaintiffs jeep on the portion near the left rear wheel, and as a result of the impact plaintiffs jeep fell on
its right and skidded by about 30 yards; that as a result plaintiffs jeep was damaged, particularly the
windshield, the differential, the part near the left rear wheel and the top cover of the jeep; that plaintiff
Virgilio Catuar was thrown to the middle of the road; his wrist was broken and he sustained contusions
on the head; that likewise plaintiff Antonio Sarmiento, Sr. was trapped inside the fallen jeep, and one of
his legs was fractured.

Evidence also shows that the plaintiff Virgilio Catuar spent a total of P2,464.00 for repairs of the jeep,
as shown by the receipts of payment of labor and spare parts (Exhs. H to H-7). Plaintiffs likewise tried
to prove that plaintiff Virgilio Catuar, immediately after the accident was taken to Immaculate
Concepcion Hospital, and then was transferred to the National Orthopedic Hospital; that while plaintiff
Catuar was not confined in the hospital, his wrist was in a plaster cast for a period of one month, and
the contusions on his head were under treatment for about two (2) weeks; that for hospitalization,
medicine and allied expenses, plaintiff Catuar spent P5,000.00.

Evidence also shows that as a result of the incident, plaintiff Antonio Sarmiento, Sr. sustained injuries
on his leg; that at first, he was taken to the National Orthopedic Hospital (Exh. K ), but later he was
confined at the Makati Medical Center from July 29, to August 29, 1971 and then from September 15
to 25, 1971; that his leg was in a plaster cast for a period of eight (8) months; and that for hospitalization
and medical attendance, plaintiff Antonio Sarmiento, Sr. spent no less than P13,785.25 as evidenced
by receipts in his possession. (Exhs.N to N-1).

Proofs were adduced also to show that plaintiff Antonio Sarmiento, Sr. is employed as Assistant
Accountant of the Canlubang Sugar Estate with a salary of P1,200.00 a month; that as sideline, he also
works as accountant of United Haulers, Inc. with a salary of P500.00 a month; and that as a result of
this incident, plaintiff Sarmiento was unable to perform his normal work for a period of at least 8 months.
On the other hand, evidence shows that the other plaintiff Virgilio Catuar is a Chief Clerk in Canlubang
Sugar Estate with a salary of P500.00 a month, and as a result of the incident, he was incapacitated to
work for a period of one (1) month.

The plaintiffs have filed this case both against Oscar Sabiniano as driver, and against Gualberto Duavit
as owner of the jeep.

Defendant Gualberto Duavit, while admitting ownership of the other jeep (Plate No. 99-07-F-J Manila,
1971), denied that the other defendant (Oscar Sabiniano) was his employee. Duavit claimed that he
has not been an employer of defendant Oscar Sabiniano at anytime up to the present.

On the other hand documentary and testimonial evidence show that defendant Oscar Sabiniano was
an employee of the Board of Liquidators from November 14, 1966 up to January 4, 1973 (Annex A of
Answer).

Defendant Sabiniano, in his testimony, categorically admitted that he took the jeep from the garage of
defendant Duavit without the consent or authority of the latter (TSN, September 7, 1978, p. 8). He
testified further, that Duavit even filed charges against him for theft of the jeep, but which Duavit did not
push through as his (Sabinianos) parents apologized to Duavit on his behalf.

Defendant Oscar Sabiniano, on the other hand in an attempt to exculpate himself from liability, makes
it appear that he was taking all necessary precaution while driving and the accident occurred due to the
negligence of Virgilio Catuar. Sabiniano claims that it was plaintiffs vehicle which hit and bumped their
jeep. (Rollo, pp. 21-23)

The trial court found Oscar Sabiniano negligent in driving the vehicle but found no employer-employee
relationship between him and the petitioner because the latter was then a government employee and
he took the vehicle without the authority and consent of the owner. The petitioner was, thus, absolved
from liability under Article 2180 of the Civil Code.

The private respondents appealed the case.

On January 7, 1988, the Court of Appeals rendered the questioned decision holding the petitioner jointly
and severally liable with Sabiniano. The appellate court in part ruled:

We cannot go along with appellees argument. It will be seen that in Vargas v. Langcay, supra, it was
held that it is immaterial whether or not the driver was actually employed by the operator of record or
registered owner, and it is even not necessary to prove who the actual owner of the vehicle and who
the employer of the driver is. When the Supreme Court ruled, thus: We must hold and consider such
owner-operator of record (registered owner) as the employer in contemplation of law, of the driver, it
cannot be construed other than that the registered owner is the employer of the driver in contemplation
of law. It is a conclusive presumption of fact and law, and is not subject to rebuttal of proof to the
contrary. Otherwise, as stated in the decision, we quote:

The purpose of the principles evolved by the decisions in these matters will be defeated and thwarted
if we entertain the argument of petitioner that she is not liable because the actual owner and employer
was established by the evidence. x x x.

Along the same vein, the defendant-appellee Gualberto Duavit cannot be allowed to prove that the
driver Sabiniano was not his employee at the time of the vehicular accident.

The ruling laid down in Amar V. Soberano (1966), 63 O.G. 6850, by this Court to the effect that the
burden of proving the non-existence of an employer-employee relationship is upon the defendant and
this he must do by a satisfactory preponderance of evidence, has to defer to the doctrines evolved by
the Supreme Court in cases of damages arising from vehicular mishaps involving registered motor
vehicle. (See Tugade v. Court of Appeals, 85 SCRA 226, 230). (Rollo, pp. 26-27)

The appellate court also denied the petitioners motion for reconsideration. Hence, this petition.

The petitioner contends that the respondent appellate court committed grave abuse of discretion in
holding him jointly and severally liable with Sabiniano in spite of the absence of an employer-employee
relationship between them and despite the fact that the petitioners jeep was taken out of his garage
and was driven by Sabiniano without his consent.

As early as in 1939, we have ruled that an owner of a vehicle cannot be held liable for an accident
involving the said vehicle if the same was driven without his consent or knowledge and by a person not
employed by him. Thus, in Duquillo v. Bayot (67 Phil. 131-133-134) [1939] we said:

Under the facts established, the defendant cannot be held liable for anything. At the time of the
accident, James McGurk was driving the truck, and he was not an employee of the defendant, nor did
he have anything to do with the latters business; neither the defendant nor Father Ayson, who was in
charge of her business, consented to have any of her trucks driven on the day of the accident, as it was
a holy day, and much less by a chauffeur who was not in charge of driving it; the use of the defendants
truck in the circumstances indicated was done without her consent or knowledge; it may, therefore, be
said, that there was not the remotest contractual relation between the deceased Pio Duquillo and the
defendant. It necessarily follows from all this that articles 1101 and following of the Civil Code, cited by
the appellant, have no application in this case, and, therefore, the errors attributed to the inferior court
are without basis.

The Court upholds the above ruling as still relevant and better applicable to present day circumstances.

The respondent courts misplaced reliance on the cases of Erezo v. Jepte (102 Phil. 103 [1957] and
Vargas v. Langcay (6 SCRA 174 [1962]) cannot be sustained. In the Erezo case, Jepte, the registered
owner of the truck which collided with a taxicab, and which resulted in the killing of Erezo, claimed that
at the time of the accident, the truck belonged to the Port Brokerage in an arrangement with the
corporation but the same was not known to the Motor Vehicles Office. This Court sustained the trial
courts ruling that since Jepte represented himself to be the owner of the truck and the Motor Vehicles
Office, relying on his representation, registered the vehicle in his name, the Government and all persons
affected by the representation had the right to rely on his declaration of ownership and registration.
Thus, even if Jepte were not the owner of the truck at the time of the accident, he was still held liable
for the death of Erezo. Significantly, the driver of the truck was fully authorized to drive it.

Likewise, in the Vargas case, just before the accident occurred, Vargas had sold her jeepney to a third
person, so that at the time of the accident she was no longer the owner of the jeepney. This court,
nevertheless, affirmed Vargas liability since she failed to surrender to the Motor Vehicles Office the
corresponding AC plates in violation of the Revised Motor Vehicle Law and Commonwealth Act No.
146. We further ruled that the operator of record continues to be the operator of the vehicle in
contemplation of law, as regards the public and third persons, and as such is responsible for the
consequences incident to its operator. The vehicle involved was a public utility jeepney for hire. In such
cases, the law does not only require the surrender of the AC plates but orders the vendor operator to
stop the operation of the jeepney as a form of public transportation until the matter is reported to the
authorities.

As can be seen, the circumstances of the above cases are entirely different from those in the present
case. Herein petitioner does not deny ownership of the vehicle involved in the mishap but completely
denies having employed the driver Sabiniano or even having authorized the latter to drive his jeep. The
jeep was virtually stolen from the petitioners garage. To hold, therefore, the petitioner liable for the
accident caused by the negligence of Sabiniano who was neither his driver nor employee would be
absurd as it would be like holding liable the owner of a stolen vehicle for an accident caused by the
person who stole such vehicle. In this regard, we cannot ignore the many cases of vehicles forcibly
taken from their owners at gunpoint or stolen from garages and parking areas and the instances of
service station attendants or mechanics of auto repair shops using, without the owners consent,
vehicles entrusted to them for servicing or repair.

We cannot blindly apply absolute rules based on precedents whose facts do not jibe four square with
pending cases. Every case must be determined on its own peculiar factual circumstances. Where, as
in this case, the records of the petition fail to indicate the slightest indicia of an employer-employee
relationship between the owner and the erring driver or any consent given by the owner for the vehicles
use, we cannot hold the owner liable.

We, therefore, find that the respondent appellate court committed reversible error in holding the
petitioner jointly and severally liable with Sabiniano to the private respondent.

WHEREFORE, the petition is GRANTED and the decision and resolution appealed from are hereby
ANNULLED and SET ASIDE. The decision of the then Court of First Instance (now Regional Trial Court)
of Laguna, 8th Judicial District, Branch 6, dated July 30, 1981 is REINSTATED.

SO ORDERED.

Fernan (C.J., Chairman), Feliciano, Bidin and Corts , JJ., concur.

Decision and resolution annulled and set aside.

Note. ___ No exemplary damages where there is no evidence of other party having acted in wanton,
fraudulent or reckless or oppressive manner. ( Dee Hua Liong Electrical Equipment Corp. vs. Reyes,
145 SCRA 713.)

o0o

LUCIA EUROPA (Mother of Deceased Lucrecia Europa), petitioner, vs. HUNTER GARMENTS
MFG. (PHIL.) INC. and INTERMEDIATE APPELLATE COURT, respondents.

G.R. No. 72827. July 18, 1989

Remedial Law; Jurisdiction; Private respondent certainly submitted to the jurisdiction of the Court when
it filed a motion for reconsideration of the judgment by default and a motion to admit answer.Assuming
arguendo that the court below originally did not acquire jurisdiction over the private respondent, the
latter certainly submitted to it when private respondent filed a motion for reconsideration of the judgment
by default and a motion to admit answer on the ground of excusable negligence. Therefore, the lower
courts denial of both motions is binding on private respondent.

Civil Law; Damages; Quasi-delict; In actions based on quasi-delict, all damages for the natural and
probable consequences of the act or omission complained of are recoverable.In actions based on
quasi-delict as in this case, all damages for the natural and probable consequences of the act or
omission complained of are recoverable.

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

PARAS, J.:

This is a petition for certiorari to annul the Court of Appeals decision which set aside the order of default
and judgment by default rendered by the Court of First Instance of Rizal Branch

XIII in Civil Case No. 37848 for Damages.

The facts of the case are briefly as follows:

In 1973, the petitioners daughter, Lucrecia Europa, was employed as sample maker by the private
respondent Hunter Garments Manufacturing (Philippines) Incorporated. Sometime during the course of
her employment, or on March 9, 1978,

Lucrecia got electrocuted by the high speed sewing machine which had been assigned to her by the
private respondent.

Thus, on July 18, 1980, the petitioner filed an action for damages against private respondent based on
quasi-delict.

Summons, together with a copy of the complaint, was served on its production manager, Mr. Simplicio
A. Garcia.

No answer to the complaint was ever filed. Thus, private respondent was declared in default and the
petitioner was allowed to present evidence ex parte.

On April 8, 1981, the trial court rendered judgment, the dispositive portion of which reads;

WHEREFORE, the plaintiff having established her cause of action, judgment is rendered against the
defendant corporation ordering the latter to pay the plaintiff the following:

a) for the death of Lucrecia, the sum of P12,000.00;

b) for actual expenses for the wake, the funeral and burial expenses, and other miscellaneous
expenses, the sum of P5,580.00;

c) for loss of income, the sum of P30,000.00;

d) for moral damages, the sum of P10,000.00;

e) for attorneys fees, the sum of P5,000.00; and pay the costs. (p. 39, Rollo)
Private respondent filed a motion for reconsideration of the aforesaid decision and a motion to admit
answer, alleging its failure to seasonably file an answer was due to the excusable negligence of Ms.
Lilia Jimenez, the production managers secretary, who failed to forward the summons and the copy of
the complaint to the company president, despite instructions to do so by her superior. The trial court
denied both motions.

Thus, private respondent appealed to the Court of Appeals, assigning the following errors:

The Honorable Court, a quo, erred in not ruling that defendant-appellants failure to seasonably file its
Answer was due to excusable negligence;

The Honorable Court, a quo, erred in declaring defendant-appellant in default and in allowing plaintiff-
appellee to present her evidence ex parte despite the fact that summons had not been properly served;
and

Assuming, arguendo, that the Honorable Court, a quo, had validly acquired jurisdiction over the person
of defendant-appellant, it erred in rendering a decision which is not supported by law and the facts of
the case. (p. 42, Rollo)

Finding that the trial court never acquired jurisdiction over the person of private respondent as summons
was improperly served (the production manager not being the same manager referred to in Section
13 Rule 14 of the Revised Rules of Court for purposes of service of summons upon a domestic private
corporation), the Court of Appeals set aside the default order and judgment by default and directed the
trial court to conduct further proceedings for the adjudication of the case. (p. 22, Rollo)

The petitioner filed a motion for reconsideration of the aforesaid decision but the same was denied.

Hence, the instant petition for certiorari.

There is merit in this petition. Assuming arguendo that the court below originally did not acquire
jurisdiction over the private respondent, the latter certainly submitted to it when private respondent filed
a motion for reconsideration of the judgment by default and a motion to admit answer on the ground of
excusable negligence. Therefore, the lower courts denial of both motions is binding on private
respondent. (Soriano vs. Palacio, 12 SCRA 449).

Private respondent likewise appealed from the judgment by default, thus, We shall proceed to review
the evidence presented and the propriety of damages awarded by the lower court.

The evidence on record discloses that on March 9, 1978, Lucrecia Europa was electrocuted by the
sewing machine owned by private respondent. The autopsy conducted by Dr. Nieto M. Salvador
confirmed that Lucrecia died from shock probably secondary to electrocution (Annex A of the
complaint).

The facts and circumstances of the case point to the reasonableness of the damages awarded. There
is an express finding of gross negligence on the part of private respondent in the judgment of the lower
court, thus:

x x x There are at least two incidents, according to De la Cruz, where high speed sewing machines of
the defendant corporation were grounded. These incidents were brought to the attention of the
management of the defendant corporation. Apparently, nothing was done by way of checking these
grounded machines.

At one time, Fornoza claimed that when her machine was grounded and she complained about it, she
was told by the management to get out of there. The defendant corporation does not employ a duly-
licensed electrical engineer but only has three (3) electricians whose services clearly proved inadequate
for maintaining the safety of the machines in the factory.
There is no indication that the management had ever shown any serious concern for the safety of those
operating said machines. As it was, the defendant corporation even tended to be apathetic to the plight
of its employees manning the factory sewing machines. x x x

If the machines were frequently and regularly checked or properly maintained, the death of Lucrecia
by electrocution would surely not have come to pass, x x x (p. 2, Decision).

In actions based on quasi-delict as in this case, all damages for the natural and probable consequences
of the act or omission complained of are recoverable. (Article 2202 of the New Civil Code).

WHEREFORE, the decision of the Court of Appeals is hereby set aside and the decision of the lower
court is hereby reinstated except that the indemnity for the death itself is increased to Thirty Thousand
(P30,000.00) Pesos.

SO ORDERED.

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

Decision set aside.

Notes. When a court of competent jurisdiction acquires jurisdiction over the subject matter of a case,
its authority continues, subject only to the appellate authority until the matter is finally and completely
disposed of. (Lee vs. MTC of Legaspi City, Br. I, 145 SCRA 408.)

Petitioners are estopped to raise the question of jurisdiction, having submitted their cause voluntarily to
the jurisdiction of the trial court. (Lee vs. MTC of Legaspi City, Br. I, 145 SCRA 408.)

o0o

THE UNITED STATES, plaintiff and appellee, vs. TAN PIACO, VENTURA ESTUYA, PEDRO
HOMERES, MAXIMINO GALSA and EMILIO LEOPANDO, defendants. TAN PIACO, appellant.

No. 15122. March 10, 1920

PUBLIC UTILITY, CONTROL BY PUBLIC UTILITY COMMISSION; CRIMINAL LlABILITY OF OWNER

OF AUTOMOBILE TRUCK OPERATED UNDER SPECIAL CONTRACT AND NOT FOR GENERAL
PUBLIC BUSINESS.The owner of an automobile truck who operates the same under a special
contract for carrying passengers and freight, in each case, and has not held himself out to carry all
passengers and freight for all persons who might offer, is not a public utility and is not criminally liable
for his failure to obtain a license from the Public Utility Commissioner. If the use is merely optional with
the owner, or .the public benefit is merely accidental, it is not a public use, authorizing the exercise of
the jurisdiction of the public utility commission. The true criterion by which to judge of the character of
the use is whether the public may enjoy it by right or only by permission.

APPEAL from a judgment of the Court of First Instance of Leyte. Lukban, J.

The facts are stated in the opinion of the court.

Recaredo Ma. Calvo for appellant.

Attorney-General Paredes for appellee.

JOHNSON, J.:
Said def endants were charged with a violation of the Public Utility Law (Act No. 2307 as amended by
Acts Nos. 2362 and 2694), in that they were operating a public utility without permission from the Public
Utility Commissioner.

Upon the complaint presented each of said defendants were arrested and brought to trial. After hearing
the evidence the Honorable Cayetano Lukban, judge, found that the evidence was insufficient to support
the charges against Ventura Estuya, Pedro Homeres, Maximino Galsa and Emilio Leopando, and
absolved them from all liability under the complaint and discharged them from the custody of the law.
The lower court found the defendant Tan Piaco guilty of the crime charged in the complaint and
sentence him to pay a fine of P100, and, in case of insolvency, to suffer subsidiary imprisonment, and
to pay onefifth part of the costs. From that sentence Tan Piaco appealed to this court.

The facts proved during the trial of the cause may be stated as follows:

The appellant rented two automobile trucks and was using them upon the highways of the Province of
Leyte for the purpose of carrying some passengers and freight; that he carried passengers and freight
under a special contract in each case; that he had not held himself out to carry all passengers and all
freight for all persons who might offer passengers and freight.

The Attorney-General, in a carefully prepared brief, says: "The question is whether the appellant, under
the above facts, was a public utility under the foregoing definitions," and was therefore subject to the
control and regulation of the Public Utility Commission. "We have not found anything in the evidence
showing that the appellant operated the trucks in question for public use. These trucks, so f ar as
indicated by the evidence and as far as the appellant is concerned, furnished service under special
agreements to carry particular persons and property. * * * For all that we can deduce from the evidence,
these passengers, or the owners of the freight, may have controlled the whole vehicles 'both as to
contents, direction, and time of use/ which facts, under all the circumstances of the case, would, in our
opinion, take away the defendant's business from the provisions of the Public Utility Act."

In support of the conclusion of the Attorney-General, he cites the case of Terminal Taxicab Co. vs. Kutz
(241 U. S., 252). In that case the Terminal Taxicab Co. furnished automobiles from its central garage
on special orders and did not hold itself out to accommodate any and all persons. The plaintiff reserved
to itself the right to refuse service. The Supreme Court of the United States, speaking through Mr.
Justice Holmes, said: "The bargains made by the plaintiff are individual, and however much they may
tend towards uniformity in price, probably have not the mechanical fixity of charges that attend the use
of taxicabs from the stations to the hotels. The court is of the opinion that that part of the business is
not to be regarded as a public utility. It is true that all business, and, for the matter of that, every life in
all its details, has a public aspect, some bearing upon the welfare of the country in which it is passed."
The court held that by virtue of the fact that said company did not hold itself out to serve any and all
persons, it was not a public utility and was not subject to the jurisdiction of the public utility commission.

Upon the facts adduced during the trial of the cause, and for the foregoing reasons, the Attorney-
General recommends that the sentence of the lower court be revoked and that the appellant be
absolved from all liability under the complaint.

Section 14 of Act No. 2307, as amended by section 9 of Act No. 2694, provides that: "The Public Utility
Commission or Commissioners shall have general supervision and regulation of, jurisdiction and control
over, all public utilities. * * * The term 'public utility' is hereby defined to include every individual, co-
partnership, association, corporation or joint stock company, etc., etc., that now or hereafter may own,
operate, manage, or control any common carrier, railroad, street railway, etc., etc., engaged in the
transportation of passengers, cargo, etc., etc., for public use."

Under the provisions of said section, two things are necessary: (a) The individual, co-partnership, etc.,
etc., must be a public utility; and (b) the business in which such individual, co-partnership, etc., etc., is
engaged must be for public use. So long as the individual or copartnership, etc., etc., is engaged in a
purely private enterprise, without attempting to render service to all who may apply, he can in no sense
be considered a public utility, for public use.
"Public use" means the same as "use by the public." The essential feature of the public use is that it is
not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or
unrestricted quality that gives it its public character. In determining whether a use is public, we must
look not only to the character of the business to be done, but also to the proposed mode of doing it. If
the use is merely optional with the owners, or the public benefit is merely incidental, it is not a public
use, authorizing the exercise of the jurisdiction of the public utility commission. There must be, in
general, a right which the law compels the owner to give to the general public. It is not enough that the
general prosperity of the public is promoted. Public use is not synonymous with public interest. The true
criterion by which to judge of the character of the use is whether the public may enjoy it by right or only
by permission.

For all of the foregoing reasons, we agree with the Attorney-General that the appellant was not
operating a public utility, for public use, and was not, therefore, subject to the jurisdiction of the Public
Utility Commission.

Therefore, the sentence of the lower court is hereby revoked, and it is hereby ordered and decreed that
the complaint be dismissed and that the defendant be absolved from all liability under the same, and
that he be discharged from the custody of the law, without any finding as to costs. So ordered.

Arellano, C. J., Torres, Araullo, Street, Malcolm, and Avancea, JJ., concur.

Judgment reversed, defendant acquitted.

o0o

ANTONIA MARANAN, plaintiff-appellant, vs. PASCUAL PEREZ, ET AL., defendants. PASCUAL

PEREZ, defendantappellant.

No. L-22272. June 26, 1967

Common Carriers; Liability for intentional assaults committed by its employees on passengers;
Difference between old and New Civil Code provisions.Unlike the old Civil Code, the New Civil Code
expressly makes the common carrier liable for intentional assaults committed by its employees upon its
passengers (Art. 1759). This rule was adopted from Anglo-American law, where the majority view, as
distinguished from the minority view based on respondeat superior, is that the carrier is liable as long
as the assault occurs within the course of the performance of the employee's duty. It is no defense for
the carrier that the act was done in excess of authority or in disobedience of the carrier's orders. The
carrier's liability is absolute in the sense that it practically secures the passengers from assaults
committed by its own employees.

Same; Reasons for carrier's liability for intentional assaults upon passengers.The special undertaking
of the carrier requires that it furnish its passengers that full measure of protection afforded by the
exercise of the high degree of care prescribed by law, inter alia, from violence and insults at the hands
of strangers and other passengers, but above all from the acts of the carrier's own servants charged
with the passenger's safety. The performance of that undertaking is confided by the carrier to its
employees. As between the carrier and the passenger, the former must bear the risk of wrongful acts
of the former's employees against passengers, since the carrier, not the passengers, has the power to
select and remove them,

Same; Carrier is liable to the heir of a passenger killed by its driver.Where a passenger in a taxicab
was killed by the driver, the cab owner is liable to the heir of the deceased passenger for damages on
the basis of breach of the contract of carriage. The driver is not liable to the heir because the driver was
not a party to the contract of carriage. His civil liability is covered by the judgment of conviction in the
criminal case. The case is different from Gillaco vs. Manila Railroad Company, 97 Phil, 884,

Same; Damages; Carrier's liability for passenger's death.The minimum amount of compensatory
damages, which a common carrier should pay for the intentional killing of a passenger committed by its
driver while transporting the passenger, is P6,000. Moral damages may also be awarded. Interest is
due on said damages.

APPEAL from a judgment of the Court of First Instance of Batangas. Relona, J.

The facts are stated in the opinion of the Court.

Pedro Panganiban for defendant-appellant.

Magno T. Bueser for plaintiff-appellant.

BENGZON, J.P., J.:

Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by Pascual
Perez when he was stabbed and killed by the driver, Simeon Valenzuela.

Valenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty, he
was sentenced to suffer imprisonment and to indemnify the heirs of the deceased in the sum of P6,000.
Appeal f rom said conviction was taken to the Court of Appeals.

On December 6, 1961, while appeal was pending in the Court of Appeals, Antonia Maranan, Rogelio's
mother, filed an action in the Court of First Instance of Batangas to recover damages from Perez and
Valenzuela for the death of her son. Defendants asserted that the deceased was killed in self-defense,
since he first assaulted the driver by stabbing him from behind. Defendant Perez further claimed that
the death was a caso fortuito for which the carrier was not liable.

The court a quo, after trial, found for the plaintiff and awarded her P3,000 as damages against defendant
Perez. The claim against defendant Valenzuela was dismissed. From this ruling, both plaintiff and
defendant Perez appealed to this Court, the former asking for more damages and the latter insisting on
non-liability. Subsequently, the Court of Appeals affirmed the judgment of conviction earlier mentioned,
during the pendency of the herein appeal, and on May 19, 1964, final judgment was entered therein.
(Rollo, p. 33).

Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co., 97 Phil.
884, that the carrier is under no absolute liability for assaults of its employees upon the passengers.
The attendant facts and controlling law of that case and the one at bar are very different however. In
the Gillaco case, the passenger was killed outside the scope and the course of duty of the guilty
employee. As this Court there found:

"x x x when the crime took place, the guard Devesa had no duties to discharge in connection with the
transportation of the deceased from Calamba to Manila. The stipulation of facts is clear that when
Devesa shot and killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union)
trains, and he was at Paco Station awaiting transportation to Tutuban, the starting point of the train that
he was engaged to guard. In fact, his tour of duty was to start at 9:00 a.m., two hours after the
commission of the crime. Devesa was therefore under no obligation to safeguard the passengers of the
Calamba-Manila, train, where the deceased was riding; and the killing of Gillaco was not done in line of
duty. The position of Devesa at the time was that of another would be passenger, a stranger also
awaiting transportation, and not that of an employee assigned to discharge any of the duties that the
Railroad had assumed by its contract with the deceased. As a result, Devesa's assault can not be
deemed in law a breach of Gillaco's contract of transportation by a servant or employee of the carrier.
x x x" (Italics supplied)

Now here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose
hands the carrier had entrusted the duty of executing the contract of carriage. In other words, unlike the
Gillaco case, the killing of the passenger here took place in the course of duty of the guilty employee
and when the employee was acting within the scope of his duties.
Moreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which, unlike
the present Civil Code, did not impose upon common carriers absolute liability for the safety of
passengers against wilful assaults or negligent acts committed by their employees. The death of the
passenger in the Gillaco case was truly a fortuitous event which exempted the carrier from liability. It is
true that Art. 1105 of the old Civil Code on fortuitous events has been substantially reproduced in Art.
1174 of the Civil Code of the Philippines but both articles clearly remove from their exempting effect the
case where the law expressly provides for liability in spite of the occurrence of force majeure. And herein
significantly lies the statutory difference between the old and present Civil Codes, in the backdrop of
the factual situation before Us, which further accounts for a different result in the Gillaco case. Unlike
the old Civil Code, the new Civil Code of the Philippines expressly makes the common carrier liable for
intentional assaults committed by its employees upon its passengers, by the wording of Art. 1759 which
categorically states that

"Common carriers are liable for the death of or injuries to passengers through the negligence or willful
acts of the former's employees, although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers."

The Civil Code provisions on the subject of Common Carriers are new and were taken from Anglo-
American Law. There, the basis of the carrier's liability for assaults on passengers committed by its
drivers rests either on (1) the doctrine of respondeat superior or (2) the principle that it is the carrier's
implied duty to transport the passenger safely.

Under the first, which is the minority view, the carrier is liable only when the act of the employee is within
the scope of his authority and duty. It is not sufficient that the act be within the course of employment
only.

Under the second view, upheld by the majority and also by the later cases, it is enough that the assault
happens within the course of the employee's duty. It is no defense for the carrier that the act was done
in excess of authority or in disobedience of the carrier's orders. The carrier's liability here is absolute in
the sense that it practically secures the passengers f rom assaults committed by its own employees.

As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule based on
the second view. At least three very cogent reasons underlie this rule. As explained in Texas Midland
R.R. v, Monroe, 110 Tex. 97, 216 S.W. 388, 389-390, and Haver v. Central Railroad Co,, 43 LRA 84,
85: (1) the special undertaking of the carrier' requires that it furnish its passenger that full measure of
protection afforded by the exercise of the high degree of care prescribed by the law, inter alia from
violence and insults at the hands of strangers and other passengers, but above all, from the acts of the
carrier's own servants charged with the passenger's safety; (2) said liability of the carrier for the
servant's violation of duty to passengers, is the result of the former's confiding in the servant's hands
the performance of his contract to safely transport the passenger, delegating therewith the duty of
protecting the passenger with the utmost care prescribed by law; and (3) as between the carrier and
the passenger, the former must bear the risk of wrongful acts or negligence of the carrier's employees
against passengers, since it, and not the passengers, has power to select and remove them.

Accordingly, it is the carrier's strict obligation to select its drivers and similar employees with due regard
not only to their technical competence and physical ability, but also, no less important, to their total
personality, including their patterns of behavior, moral fibers, and social attitude.

Applying this stringent norm to the facts in this case, therefore, the lower court rightly. adjudged the
defendant carrier liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim against the
defendant driver was also correct. Plaintiff's action was predicated on breach of contract of carriage7
and the cab driver was not a party thereto. His civil liability is covered in the criminal case wherein he
was convicted by final judgment.

In connection with the award of damages. the court a quo granted only P3,000 to plaintiff-appellant.
This is the minimum compensatory damages amount recoverable under Art. 1764 in connection with
Art. 2206 of the Civil Code when a breach of contract results in the passenger's death. As has been the
policy followed by this Court, this minimal award should be increased to P6,000. As to other alleged
actual damages, the lower court's f inding that plaintiff's evidence thereon was not convincing, should
not be disturbed. Still, Arts. 2206 and 1764 award moral damages in addition to compensatory
damages, to the parents of the passenger killed to compensate f or the mental anguish they suffered.
A claim therefor, having been properly made, it becomes the court's duty to award moral damages.
Plaintiff demands P5,000 as moral damages; however, in the circumstances, We consider P3,000 moral
damages, in addition to the P6,000 damages afore-stated, as sufficient. Interest upon such damages
are also due to plaintiff-appellant.

Wherefore, with the modification increasing the award of actual damages in plaintiff's favor to P6,000,
plus P3,000 moral damages, with legal interest on both from the filing of the complaint on December 6,
1961 until the whole amount is paid, the judgment appealed from is affirmed in all other respects. No
costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Judgment modified.

o0o

SALUD VILLANUEVA VDA. DE BATACLN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLN, plaintiffs and appellants vs. MARIANO MEDINA, defendant
and appellant.

No. L-10126. October 22, 1957

1. DAMAGES; CARRIER'S LIABILITY; WORDS AND PHRASES; PROXIMATE CAUSE DEFINED.

"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 ordinarily 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." (38 Am. Jur. pp. 695-696.)

2. ID.; ID.; OVERTURNING OF Bus; PROXIMATE CAUSE OF DEATH. When a vehicle turned not
only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural
or unexpected; that the coming of the men with lighted torch was in response to the call for help, made
not only by the passenger, but most probably by the driver and the conductor themselves, and that
because it was very dark (about 2:30 in the morning), the rescuers had to carry a light with them; and
coming as they did from a rural area where lanterns and flashlights were not available, they had to use
a torch the most handy and available; and what was more natural, than that said rescuers should
innocently approach the overturned vehicle to extend the aid and effect the rescue requested from
them, Held: That the proximate cause of the death of B was the overturning of the vehicle thru the
negligence of defendant and his agent.

3. ID.; ID.; CARRIER'S NEGLIGENCE; BURNING OF THE BUS.The burning of the bus wherein
some of the passengers were trapped can also be attributed to the negligence of the carrier, through
the driver and conductor who were on the road walking back and forth. They should and must have
known that in the position in which the overturned bus was, gasoline could and must have leaked from
the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline
when spilled, specially over a large area, can be smelt and detected even from a distance, Held: That
the failure of the driver and the conductor to have cautioned or taken steps to warn the rescuers not to
bring the lighted torch too near the bus, constitutes negligence on the part of the agents of the carrier
under the provisions of the Civil Code, particularly, Article 1733, 1759 and 1763 thereof.

APPEAL from a judgment of the Court of First Instance of Cavite. Gatmaitan, J.

The facts are stated in the opinion of the Court

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs and appellants.

Fortunato Jose for defendant and appellant,

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952, bus No. 30 of the Medina Transportation, operated by
its owner, defendant Mariano Medina, under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and conductor. Among the passengers were Juan
Batacln, seated beside and to the right of the driver, Felipe Lara, seated to the right of Batacln,
another passenger apparently from the Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated on the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while
the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle
began to zig-zag until it f ell into a canal or ditch on the right side of the road and turned turtle. Some of
the passengers managed to leave the bus the best way they could, others had to be helped or pulled
out, while the three passengers seated beside the driver, named Batacln, Lara and the Visayan and
the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of
the passengers, after they had clambered up to the road, heard groans and moans from inside the bus,
particularly, shouts for help from Batacln and Lara, who said that they could not get out of the bus.
There. is nothing in the evidence to show whether or not the passengers already free from the wreck,
including the driver and the conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of
bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approached
the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the
bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline
began to leak and escape f rom the gasoline tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and around it, and that the lighted torch brought
by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four doomed passengers inside the bus were removed and
duly identified, specially that of Juan Batacln. By reason of his death, his widow, Salud Villanueva, in
her name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs, plus P600 as
attorney's fee, plus P100, the value of the merchandise being carried by Batacln to Pasay City for sale
and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter court endorsed the appeal to us because of the value involved in the claim in the
complaint.

Our New Civil Code amply provides for the responsibility of a common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

"ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735,
and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further
set forth in articles 1755 and 1756."

"ART. 1755. 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 a due regard for all the
circumstances."
"ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been
at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as
prescribed in articles 1733 and 1755."

"ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or wilful acts of the former's employees, although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of
a good father of a family in the selection and supervision of their employees."

"ART. 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
wilful acts or negligence of other passengers or of strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a family could have prevented or stopped the act or
omission."

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Batacln safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his agent,
the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as
testified to by one of the passengers, and as shown by the fact that according to the testimony of the
witnesses, including that of the defense, from the point where one of the front tires burst up to the canal
where the bus overturned after zig-zagging, there was a distance of about 150 meters. The chauffeur,
after the blow-out, must have applied the, brakes in order to stop the bus, but because of the velocity
at which the bus must have been running, its momentum carried it over a distance of 150 meters before
it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is
to what degree. The trial court was of the opinion that the proximate cause of the death of Batacln was
not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-
passengers who were unable to leave it; that at the time the fire started, Batacln, though he must have
suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his
death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate
cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants
in heir brief. It is as follows:

* * * 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 ordinarily 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."

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing
him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the
passenger is burned to death, one might still contend that the proximate cause of his death was the fire
and not the overturning of the vehicle. But in the present case and under the circumstances obtaining
in the same, we do not hesitate to hold that the proximate cause of the death of Batacln was the
overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely
on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming
of the men with a lighted torch was in response to the call for help, made not only by the passengers,
but most probably, by the driver and the conductor themselves, and that because it was very dark (about
2:30 in the morning), the rescuers had to carry a light with them; and coming as they did from a rural
area where lanterns and flashlights were not available, they had to use a torch, the most handy and
available; and what was more natural than that said rescuers should innocently approach the overturned
vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the
men with the torch was to be expected and was a natural sequence of the overturning of the bus, the
trapping of some of its passengers and the call for outside help. What is more, the burning of the bus
can also in part be attributed to the negligence of the carrier, through its driver and its conductor.
According to the witnesses, the driver and the conductor were on the road walking back and forth, They,
or at least, the driver should and must have known that in the position in which the overturned bus was,
gasoline could and must have leaked f rom the gasoline tank and soaked the area in and around the
bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and
detected even from a distance, and yet neither the driver nor the conductor would appear to have
cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come under the codal provisions above-reproduced,
particularly, Articles 1733, 1759 and 1763.

As regards the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the amount
of Six THOUSAND (P6,000) ' PESOS would constitute satisf actory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees,
and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in
the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees
may well be fixed at EIGHT HUNDRED (P800) PESOS. The award made by the trial court of ONE
HUNDRED (P100) PESOS for the loss of the merchandise carried by the deceased in the bus, is
adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one
of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the
hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard
him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of fact, he had been telling the driver
to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove
that the driver had not been diligent and had not taken the necessary precautions to insure the safety
of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been
instructed to do, probably, despite his speeding, as we have already stated, the blow out would not
have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle
negligently, resulting in the death of f our of his passengers, physical injuries to others, and the complete
loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and
with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint, either failed to appear or were reluctant to testify.
But the record of the case before us shows that several witnesses, passengers in that bus, willingly and
unhesitatingly testified in court to the effect that the said driver was negligent. In the public interest, the
prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the
promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished
the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased
from ONE THOUSAND (P1,000) PESOS to Six THOUSAND (P6,000) PESOS, and from Six
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Batacln and for attorney's
fees, respectively, the decision appealed from is hereby affirmed, with costs.

Pars, C. J., Bengzon, Padilla, Reyes, A., Bautista, Angelo, Labrador, Concepcin, Reyes, J. B. L.,
Endencia, and Felix, JJ., concur.

Judgment affirmed with modification.

o0o