LIABILITY
that she is not the owner of the house or of the dog left
A. POSSSESSOR OF ANIMALS
 (Art. 2183 NCC)
G.R. No. 74431 November 6, 1989
PURITA MIRANDA VESTIL and AGUSTIN
VESTIL, petitioners, vs. INTERMEDIATE APPELLATE
COURT, DAVID UY and TERESITA UY, respondents.
Little Theness Tan Uy was dead at the age of three. Her
parents said she died because she was bitten by a dog
of the petitioners, but the latter denied this, claiming
they had nothing to do with the dog. The Uys sued the
Vestils, who were sustained by the trial court. On
appeal, the decision of the court a quo was reversed in
favor of the Uys. The Vestils are now before us. They
ask us to set aside the judgment of the respondent court
and to reinstate that of the trial court.
On July 29, 1915, Theness was bitten by a dog while
she was playing with a child of the petitioners in the
house of the late Vicente Miranda, the father of Purita
Vestil, at F. Ramos Street in Cebu City. She was rushed
to the Cebu General Hospital, where she was treated for
"multiple lacerated wounds on the forehead" 1 and
administered an anti-rabies vaccine by Dr. Antonio
Tautjo. She was discharged after nine days but was
readmitted one week later due to "vomiting of
saliva." 2 The following day, on August 15, 1975, the
child died. The cause of death was certified as broncho-
pneumonia. 3
Seven months later, the Uys sued for damages, alleging
that the Vestils were liable to them as the possessors of
"Andoy," the dog that bit and eventually killed their
daughter. The Vestils rejected the charge, insisting that
the dog belonged to the deceased Vicente Miranda, that
it was a tame animal, and that in any case no one had
witnessed it bite Theness. After trial, Judge Jose R.
Ramolete of the Court of First Instance of Cebu
sustained the defendants and dismissed the complaint. 4
The respondent court arrived at a different conclusion
when the case was appealed. 5 It found that the Vestils
were in possession of the house and the dog and so
should be responsible under Article 2183 of the Civil
Code for the injuries caused by the dog. It also held that
the child had died as a result of the dog bites and not
for causes independent thereof as submitted by the
appellees. Accordingly, the Vestils were ordered to pay
the Uys damages in the amount of P30,000.00 for the
death of Theness, P12,000.00 for medical and
hospitalization expenses, and P2,000.00 as attorney's
fees.
In the proceedings now before us, Purita Vestil insists
by her father as his estate has not yet been partitioned
and there are other heirs to the property. Pursuing the
logic of the Uys, she claims, even her sister living in
Canada would be held responsible for the acts of the
dog simply because she is one of Miranda's heirs.
However, that is hardly the point. What must be
determined is the possession of the dog that admittedly
was staying in the house in question, regardless of the
ownership of the dog or of the house.
Article 2183 reads as follows:
The possessor of an animal or whoever may
make use of the same is responsible for the
damage which it may cause, although it may
escape or be lost. 'This responsibility shall cease
only in case the damages should come
from force majeure from the fault of the person
who has suffered damage.
Thus, in Afialda v. Hisole, 6 a person hired as caretaker
of a carabao gored him to death and his heirs thereupon
sued the owner of the animal for damages. The
complaint was dismissed on the ground that it was the
caretaker's duty to prevent the carabao from causing
injury to any one, including himself.
Purita Vestil's testimony that she was not in possession
of Miranda's house is hardly credible. She said that the
occupants of the house left by her father were related to
him ("one way or the other") and maintained themselves
out of a common fund or by some kind of arrangement
(on which, however, she did not elaborate ). 7 She
mentioned as many as ten of such relatives who had
stayed in the house at one time or another although
they did not appear to be close kin.8 She at least implied
that they did not pay any rent, presumably because of
their relation with Vicente Miranda notwithstanding that
she herself did not seem to know them very well.
There is contrary evidence that the occupants of the
house, were boarders (or more of boarders than
relatives) who paid the petitioners for providing them
with meals and accommodations. It also appears that
Purita Vestil had hired a maid, Dolores Jumao-as, who
did the cooking and cleaning in the said house for its
occupants. 9 Her mother, Pacita, who was a nursemaid
of Purita herself, categorically declared that the
petitioners were maintaining boarders in the house
where Theness was bitten by a dog. 10 Another witness,
Marcial Lao, testified that he was indeed a boarder and
that the Vestils were maintaining the house for business
purposes. 11 And although Purita denied paying the
water bills for the house, the private respondents
submitted documentary evidence of her application for
water connection with the Cebu Water District, which
strongly suggested that she was administering the house
in question. 12
While it is true that she is not really the owner of the
house, which was still part of Vicente Miranda's estate,
there is no doubt that she and her husband were its
possessors at the time of the incident in question. She
was the only heir residing in Cebu City and the most
logical person to take care of the property, which was
only six kilometers from her own house. 13 Moreover,
there is evidence showing that she and her family
regularly went to the house, once or twice weekly,
according to at least one witness, 14 and used it virtually
as a second house. Interestingly, her own daughter was
playing in the house with Theness when the little girl
was bitten by the dog. 15 The dog itself remained in the
house even after the death of Vicente Miranda in 1973
and until 1975, when the incident in question occurred.
It is also noteworthy that the petitioners offered to assist
the Uys with their hospitalization expenses although
Purita said she knew them only casually. 16
The petitioners also argue that even assuming that they
were the possessors of the dog that bit Theness there
was no clear showing that she died as a result thereof.
On the contrary, the death certificate 17 declared that
she died of broncho-pneumonia, which had nothing to
do with the dog bites for which she had been previously
hospitalized. The Court need not involve itself in an
extended scientific discussion of the causal connection
between the dog bites and the certified cause of death
except to note that, first, Theness developed
hydrophobia, a symptom of rabies, as a result of the dog
bites, and second, that asphyxia broncho-pneumonia,
which ultimately caused her death, was a complication
of rabies. That Theness became afraid of water after she
was bitten by the dog is established by the following
testimony of Dr. Tautjo:
COURT: I think there was mention of rabies in
the report in the second admission?
A: Now, the child was continuously vomiting just
before I referred to Dr. Co earlier in the morning
and then the father, because the child was
asking for water, the father tried to give the
child water and this child went under the bed,
she did not like to drink the water and there was
fright in her eyeballs. For this reason, because I
was in danger there was rabies, I called Dr. Co.
Q: In other words, the child had hydrophobia?
A: Yes, sir. 18
As for the link between rabies and broncho-pneumonia,
the doctor had the following to say under oath:
A: Now, as 1 said before, broncho-pneumonia can result
from physical, chemical and bacterial means. ... It can be
the result of infection, now, so if you have any other disease
which can lower your resistance you can also get
pneumonia.
xxx xxx xxx
Q: Would you say that a person who has rabies may die of
complication which is broncho-pneumonia?
A: Yes.
Q: For the record, I am manifesting that this book shown
the witness is known as CURRENT DIANOSIS &
TREATMENT, 1968 by Henry Brainerd, Sheldon Margen and
Milton Chaton. Now, I invite your attention, doctor, to page
751 of this book under the title "Rabies." There is on this
page, "Prognosis" as a result of rabies and it says: Once the
symptoms, have appeared death inevitably occurs after 2-3
days as a result of cardiac or respiratory failure or
generalized paralysis. After a positive diagnosis of rabies or
after a bite by a suspected animal if the animal cannot be
observed or if the bite is on the head, give rabies vaccine
(duck embryo). Do you believe in this statement?
A: Yes.
Q: Would you say therefore that persons who have rabies
may die of respiratory failure which leave in the form of
bronco-pneumonia?
A: Broncho-pneumonia can be a complication of rabies.
On the strength of the foregoing testimony, the Court
finds that the link between the dog bites and the
certified cause of death has been satisfactorily
established. We also reiterate our ruling in Sison v. Sun
Life Assurance Company of Canada, 20 that the death
certificate is not conclusive proof of the cause of death
but only of the fact of death. Indeed, the evidence of
the child's hydrophobia is sufficient to convince us that
she died because she was bitten by the dog even if the
death certificate stated a different cause of death. The
petitioner's contention that they could not be expected
to exercise remote control of the dog is not acceptable.
In fact, Article 2183 of the Civil Code holds the
possessor liable even if the animal should "escape or be
lost" and so be removed from his control. And it does
not matter either that, as the petitioners also contend,
the dog was tame and was merely provoked by the child
into biting her. The law does not speak only of vicious
animals but covers even tame ones as long as they
cause injury. As for the alleged provocation, the
petitioners forget that Theness was only three years old
at the time she was attacked and can hardly be faulted
for whatever she might have done to the animal.
It is worth observing that the above defenses of the
petitioners are an implied rejection of their original
posture that there was no proof that it was the dog in
their father's house that bit Theness.
According to Manresa the obligation imposed by Article
2183 of the Civil Code is not based on the negligence or
on the presumed lack of vigilance of the possessor or
user of the animal causing the damage. It is based on
natural equity and on the principle of social interest that
he who possesses animals for his utility, pleasure or
service must answer for the damage which such animal
may cause. 21
We sustain the findings of the Court of Appeals and
approve the monetary awards except only as to the
medical and hospitalization expenses, which are reduced
to P2,026.69, as prayed for in the complaint. While there
is no recompense that can bring back to the private
respondents the child they have lost, their pain should at
least be assuaged by the civil damages to which they
are entitled.
WHEREFORE, the challenged decision is AFFIRMED as
above modified. The petition is DENIED, with costs
against the petitioners. It is so ordered.
B. TINGS THROWN OR FALLING FROM A
BUILDING
 (ART. 2193 NCC)
GR No. L-47033 April 25, 1941
JOSE DINGCONG, appellant-appellant, vs. HALIM
KANAAN, NASRI KANAAN, and MICHAEL KANAAN,
engaged in trading under the corporate name of
"American Bazaar," appealed-appealed.
According to the decision of the Court of Appeals Court,
the brothers Loreto Dingcong and Jose Dingcong are
coarrentadarios of the high of the house of Emilia Saenz
located in the Jose Ma Street. Basa of the City of Iloilo,
where they established the Central Hotel, being the first
the owner and the last her manager. The defendant
Francisco Echevarria occupies, by payment of P30 per
month, the fourth No. 10 of said hotel. The plaintiffs, in
turn, stole the lows of this hotel where they had
established their "American Bazaar" dedicated to the
purchase and sale of articles and mentions. Towards
eleven o'clock on the night of September 19, 1933,
Echevarria, when retiring to bed, carelessly left the tap
that he gave on an ordinary basin without draining. As
the pipes of the hotel at that time were in repair, when
at midnight the water drained through the pipes, spread
on the floor, traspasandolo and wet articles and
mencancias in the low in the establishment "American
Bazaar," causing a lost, which the Court of First Instance
estimated at P1,089.61.
This action was presented by Halim Kanaan, Nasri
Kanaan and Michael Kanaan on behalf of the name of
the "American Bazar" against Loreto Dingcong, Jose
Dingcong and Francisco Echevarria for damages caused
to the plaintiffs. The Defendant dismissed the case as to
Loreto Dingcong for having passed away, and
condemned Francisco Echevarria, absolving Jose
Dingcong. The plaintiffs appealed this decision as soon
as it acquits Jose dingcong. The Court of Appeals,
revoking the decision of the Court of First Instance,
declared Jose Dingcong responsible and ordered him to
pay the plaintiffs the amount of the damages and losses
caused to them as estimated by the Court. It is now
presented before this Court, through certiorari , appeal
of this decision of the Court of Appeals.
Being Jose Dingcong co- manager and manager of the
hotel, with full possession of the highs of the house,
must answer for the damages caused by the things that
were thrown or fell of the same (article 1910 of the Civil
Code).Francisco Echevarria was a guest of the hotel and
was the one who, by his carelessness, by leaving the tap
open, allowed the water from the pipe to flow down the
floor and seep down to the ground, wetting the
plaintiffs' articles and merchandise. Jose Dingcong, on
the other hand, did not practice the diligence of a good
father of a family to prevent these damages, even
though he knew that they could be caused by being
then in repair of the pipes, therefore, presuming that
Echavarria could use the tap not he provided some
container with drain, and if he only put under it a basin
that, when filled, caused the water to spread on the
ground. The decision appealed is confirmed, with the
costs to the appellant.
C. DEATH/ INJURIES IN THE COURSE OF
EMPLOYMENT
 ART. 1711- 1712 NCC
D. STRICT LIABILITY/ PRODUCT LIABILITY
 ART. 2187 NCC
 CONSUMER ACT:
REGULATION OF SALES ACTS AND PRACTICES
Article 50. Prohibition Against Deceptive Sales
Acts or Practices. – A deceptive act or practice by a
seller or supplier in connection with a consumer
transaction violates this Act whether it occurs before,
during or after the transaction. An act or practice shall
be deemed deceptive whenever the producer,
manufacturer, supplier or seller, through concealment,
false representation of fraudulent manipulation, induces
a consumer to enter into a sales or lease transaction of
any consumer product or service.
Without limiting the scope of the above paragraph, the
act or practice of a seller or supplier is deceptive when it
represents that:
a) a consumer product or service has the
sponsorship, approval, performance,
characteristics, ingredients, accessories, uses, or
benefits it does not have;
b) a consumer product or service is of a
particular standard, quality, grade, style, or
model when in fact it is not;
 c) a consumer product is new, original or
unused, when in fact, it is in a deteriorated,
altered, reconditioned, reclaimed or second-
hand state;
d) a consumer product or service is available to
the consumer for a reason that is different from
the fact;
e) a consumer product or service has been
supplied in accordance with the previous
representation when in fact it is not;
f) a consumer product or service can be
supplied in a quantity greater than the supplier
intends;
g) a service, or repair of a consumer product is
needed when in fact it is not;
h) a specific price advantage of a consumer
product exists when in fact it does not;
i) the sales act or practice involves or does not
involve a warranty, a disclaimer of warranties,
particular warranty terms or other rights,
remedies or obligations if the indication is false;
and
j) the seller or supplier has a sponsorship,
approval, or affiliation he does not have.
Article 51. Deceptive Sales Act or Practices By
Regulation. – The Department shall, after due notice
and hearing, promulgate regulations declaring as
deceptive any sales act, practice or technique which is a
misrepresentation of facts other than these enumerated
in Article 50.
Article 52. Unfair or Unconscionable Sales Act or
Practice. – An unfair or unconscionable sales act or
practice by a seller or supplier in connection with a
consumer transaction violates this Chapter whether it
occurs before, during or after the consumer transaction.
An act or practice shall be deemed unfair or
unconscionable whenever the producer, manufacturer,
distributor, supplier or seller, by taking advantage of the
consumer's physical or mental infirmity, ignorance,
illiteracy, lack of time or the general conditions of the
environment or surroundings, induces the consumer to
enter into a sales or lease transaction grossly inimical to
the interests of the consumer or grossly one-sided in
favor of the producer, manufacturer, distributor, supplier
or seller.
In determining whether an act or practice is unfair and
unconscionable, the following circumstances shall be
considered:
a) that the producer, manufacturer, distributor,
supplier or seller took advantage of the inability
of the consumer to reasonably protect his
interest because of his inability to understand
the language of an agreement, or similar
factors;
b) that when the consumer transaction was
entered into, the price grossly exceeded the
price at which similar products or services were
readily obtainable in similar transaction by like
consumers;
c) that when the consumer transaction was
entered into, the consumer was unable to
receive a substantial benefit from the subject of
the transaction;
d) that when the consumer was entered into,
the seller or supplier was aware that there was
no reasonable probability or payment of the
obligation in full by the consumer; and
e) that the transaction that the seller or supplier
induced the consumer to enter into was
excessively one-sided in favor of the seller or
supplier.
Article 97. Liability for the Defective Products. –
Any Filipino or foreign manufacturer, producer, and any
importer, shall be liable for redress, independently of
fault, for damages caused to consumers by defects
resulting from design, manufacture, construction,
assembly and erection, formulas and handling and
making up, presentation or packing of their products, as
well as for the insufficient or inadequate information on
the use and hazards thereof.
A product is defective when it does not offer the safety
rightfully expected of it, taking relevant circumstances
into consideration, including but not limited to:
a) presentation of product;
b) use and hazards reasonably expected of it;
c) the time it was put into circulation.
A product is not considered defective because another
better quality product has been placed in the market.
The manufacturer, builder, producer or importer shall
not be held liable when it evidences:
a) that it did not place the product on the
market;
b) that although it did place the product on the
market such product has no defect;
c) that the consumer or a third party is solely at
fault.

Article 99. Liability for Defective Services. – The
service supplier is liable for redress, independently of
fault, for damages caused to consumers by defects
relating to the rendering of the services, as well as for
insufficient or inadequate information on the fruition and
hazards thereof.
The service is defective when it does not provide the
safety the consumer may rightfully expect of it, taking
the relevant circumstances into consideration, including
but not limited to:
a) the manner in which it is provided;
b) the result of hazards which may reasonably
be expected of it;
c) the time when it was provided.
A service is not considered defective because of the use
or introduction of new techniques.
The supplier of the services shall not be held liable when
it is proven:
a) that there is no defect in the service
rendered;
b) that the consumer or third party is solely at
fault.
Article 106. Prohibition in Contractual
Stipulation. – The stipulation in a contract of a clause
preventing, exonerating or reducing the obligation to
indemnify for damages effected, as provided for in this
and in the preceding Articles, is hereby prohibited, if
there is more than one person responsible for the cause
of the damage, they shall be jointly liable for the redress
established in the pertinent provisions of this Act.
However, if the damage is caused by a component or
part incorporated in the product or service, its
manufacturer, builder or importer and the person who
incorporated the component or part are jointly liable.
Article 107. Penalties. – Any person who shall violate
any provision of this Chapter or its implementing rules
and regulations with respect to any consumer product
which is not food, cosmetic, or hazardous substance
shall upon conviction, be subject to a fine of not less
than Five thousand pesos (P5,000.00) and by
imprisonment of not more than one (1) year or both
upon the discretion of the court.
In case of juridical persons, the penalty shall be imposed
upon its president, manager or head. If the offender is
an alien, he shall, after payment of fine and service of
sentence, be deported without further deportation
proceedings.
 RA 3720:
CHAPTER VI
Prohibited Acts and Penalties
PROHIBITED ACTS
Section 11. The following acts and the causing thereof
are hereby prohibited: (a) The manufacture, sale,
offering for sale or transfer of any food, drug, device or
cosmetic that is adulterated or misbranded.
(b) The adulteration or misbranding of any food,
drug, device, or cosmetic.
(c) The refusal to permit entry or inspection as
authorized by Section twenty-seven hereof or to
allow samples to be collected.
(d) The giving of a guaranty or undertaking
referred to in Section twelve (b) hereof which
guaranty or undertaking is false, except by a
person who relied upon a guaranty or
undertaking to the same effect signed by, and
containing the name and address of, the person
residing in the Philippines from whom he
received in good faith the food, drug, device, or
cosmetic or the giving of a guaranty or
undertaking referred to in Section twelve (b)
which guaranty or undertaking is false.
(e) Forging, counterfeiting, simulating, or falsely
representing or without proper authority using
any mark, stamp, tag label, or other
identification device authorized or required by
regulations promulgated under the provisions of
this Act.
(f) The using by any person to his own
advantage, or revealing, other than to the
Secretary or officers or employees of the
Department or to the courts when relevant in
any judicial proceeding under this Act, any
information acquired under authority of Section
nine, or concerning any method or process
which as a trade secret is entitled to protection.
(g) The alteration, mutilation, destruction,
obliteration, or removal of the whole or any part
of the labeling of, or the doing of any other act
with respect to, a food, drug, device, or
cosmetic, if such act is done while such article is
held for sale (whether or not the first sale) and
results in such article being adulterated or
misbranded.
(h) The use, on the labeling of any drug or in
any advertising relating to such drug, of any
 representation or suggestion that an application
with respect to such drug is effective under
Section twenty-one hereof, or that such drug
complies with the provisions of such section.
(i) The use, in labeling, advertising or other
sales promotion of any reference to any report
or analysis furnished in compliance with Section
twenty-six hereof.
G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC., vs.
THE HONORABLE COURT OF APPEALS (Fifth
Division) and MS. LYDIA GERONIMO, respondents.
This case concerns the proprietress of a school canteen
which had to close down as a consequence of the big
drop in its sales of soft drinks triggered by the discovery
of foreign substances in certain beverages sold by it.
The interesting issue posed is whether the subsequent
action for damages by the proprietress against the soft
drinks manufacturer should be treated as one for breach
of implied warranty against hidden defects or
merchantability, as claimed by the manufacturer, the
petitioner herein which must therefore be filed within six
months from the delivery of the thing sold pursuant to
Article 1571 of the Civil Code, or one for quasi-delict, as
held by the public respondent, which can be filed within
four years pursuant to Article 1146 of the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private
respondent, filed a complaint for damages against
petitioner with the Regional Trial Court (RTC) of
Dagupan City. 1 The case was docketed as Civil Case No.
D-9629. She alleges in her complaint that she was the
proprietress of Kindergarten Wonderland Canteen
docketed as located in Dagupan City, an enterprise
engaged in the sale of soft drinks (including Coke and
Sprite) and other goods to the students of Kindergarten
Wonderland and to the public; on or about 12 August
1989, some parents of the students complained to her
that the Coke and Sprite soft drinks sold by her
contained fiber-like matter and other foreign substances
or particles; he then went over her stock of softdrinks
and discovered the presence of some fiber-like
substances in the contents of some unopened Coke
bottles and a plastic matter in the contents of an
unopened Sprite bottle; she brought the said bottles to
the Regional Health Office of the Department of Health
at San Fernando, La Union, for examination;
subsequently, she received a letter from the Department
of Health informing her that the samples she submitted
"are adulterated;" as a consequence of the discovery of
the foreign substances in the beverages, her sales of
soft drinks severely plummeted from the usual 10 cases
per day to as low as 2 to 3 cases per day resulting in
losses of from P200.00 to P300.00 per day, and not long
after that she had to lose shop on 12 December 1989;
she became jobless and destitute; she demanded from
the petitioner the payment of damages but was rebuffed
by it. She prayed for judgment ordering the petitioner to
pay her P5,000.00 as actual damages, P72,000.00 as
compensatory damages, P500,000.00 as moral
damages, P10,000.00 as exemplary damages, the
amount equal to 30% of the damages awarded as
attorney's fees, and the costs. 2
The petitioner moved to dismiss 3 the complaint on the
grounds of failure to exhaust administrative remedies
and prescription. Anent the latter ground, the petitioner
argued that since the complaint is for breach of warranty
under Article 1561 of the said Code. In her
Comment 4 thereto, private respondent alleged that the
complaint is one for damages which does not involve an
administrative action and that her cause of action is
based on an injury to plaintiff's right which can be
brought within four years pursuant to Article 1146 of the
Civil Code; hence, the complaint was seasonably filed.
Subsequent related pleadings were thereafter filed by
the parties. 5
In its Order of 23 January 1991, 6 the trial court granted
the motion to dismiss. It ruled that the doctrine of
exhaustion of administrative remedies does not apply as
the existing administrative remedy is not adequate. It
also stated that the complaint is based on a contract,
and not on quasi-delict, as there exists pre-existing
contractual relation between the parties; thus, on the
basis of Article 1571, in relation to Article 1562, the
complaint should have been filed within six months from
the delivery of the thing sold.
Her motion for the reconsideration of the order having
been denied by the trial court in its Order of 17 April
1991, 7the private respondent came to this Court via a
petition for review on certiorari which we referred to the
public respondent "for proper determination and
disposition. 8 The public respondent docketed the case
as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the
public respondent annulled the questioned orders of the
RTC and directed it to conduct further proceedings in
Civil Case No. D-9629. In holding for the private
respondent, it ruled that:
Petitioner's complaint being one for quasi-
delict, and not for breach of warranty as
respondent contends, the applicable prescriptive
period is four years.
 It should be stressed that the allegations in the
complaint plainly show that it is an action or
damages arising from respondent's act of
"recklessly and negligently manufacturing
adulterated food items intended to be sold or
public consumption" (p. 25, rollo). It is truism in
legal procedure that what determines the nature
of an action are the facts alleged in the
complaint and those averred as a defense in the
defendant's answer (I Moran 126; Calo v.
Roldan, 76 Phil. 445; Alger Electric, Inc. v. CA,
135 SCRA 340).
Secondly, despite the literal wording of Article
2176 of the Civil code, the existence of
contractual relations between the parties does
not absolutely preclude an action by one against
the other for quasi-delict arising from negligence
in the performance of a contract.
In Singson v. Court of Appeals (23 SCRA 1117), the
Supreme Court ruled:
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 of damages therefor
. . . . Thus in Air France vs. Carrascoso, . . . (it was
held that) although the relation between a passenger
and a carrier is "contractual both in origin and in
nature the act that breaks the contract may also be a
tort.
Significantly, in American jurisprudence, from
which Our law on Sales was taken, the authorities are
one in saying that he availability of an action or breach
of warranty does not bar an action for torts in a sale of
defective goods. 10
Its motion for the reconsideration of the decision having
been denied by the public respondent in its Resolution of
14 May 1993, 11 the petitioner took his recourse under
Rule 45 of the Revised Rules of Court. It alleges in its
petition that:
I. THE HONORABLE COURT OF APPEALS
COMMITTED A GRAVE AND REVERSIBLE ERROR
IN RULING THAT ARTICLE 2176, THE GENERAL
PROVISION ON QUASI DELICTS, IS APPLICABLE
IN THIS CASE WHEN THE ALLEGATIONS OF
THE COMPLAINT CLEARLY SHOW THAT
PRIVATE RESPONDENT'S CAUSE OF ACTION IS
BASEDON BREACH OF A SELLER'S IMPLIED
WARRANTIES UNDER OUR LAW ON SALES.
II. CORROLARILY, THE HONORABLE COURT OF
APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR IN OVERRULING
PETITIONER'S ARGUMENT THAT PRIVATE
RESPONDENT'S CAUSE OF ACTION HAD
PRESCRIBED UNDER ARTICLE 1571 OF THE
CIVIL CODE. 12
The petitioner insists that a cursory reading of the
complaint will reveal that the primary legal basis for
private respondent's cause of action is not Article 2176
of the Civil Code on quasi-delict — for the complaint
does not ascribe any tortious or wrongful conduct on its
part — but Articles 1561 and 1562 thereof on breach of
a seller's implied warranties under the law on sales. It
contends the existence of a contractual relation between
the parties (arising from the contract of sale) bars the
application of the law on quasi-delicts and that since
private respondent's cause of action arose from the
breach of implied warranties, the complaint should have
been filed within six months room delivery of the soft
drinks pursuant to Article 171 of the Civil Code.
In her Comment the private respondent argues that in
case of breach of the seller's implied warranties, the
vendee may, under Article 1567 of the Civil Code, elect
between withdrawing from the contract or demanding a
proportionate reduction of the price, with damages in
either case. She asserts that Civil Case No. D-9629 is
neither an action for rescission nor for proportionate
reduction of the price, but for damages arising from
a quasi-delict and that the public respondent was correct
in ruling that the existence of a contract did not preclude
the action for quasi-delict. As to the issue of
prescription, the private respondent insists that since her
cause of action is based on quasi-delict, the prescriptive
period therefore is four (4) years in accordance with
Article 1144 of the Civil Code and thus the filing of the
complaint was well within the said period.
We find no merit in the petition. The public respondent's
conclusion that the cause of action in Civil Case No. D-
9629 is found on quasi-delict and that, therefore,
pursuant to Article 1146 of the Civil Code, it prescribes
in four (4) years is supported by the allegations in the
complaint, more particularly paragraph 12 thereof, which
makes reference to the reckless and negligent
manufacture of "adulterated food items intended to be
sold for public consumption."
The vendee's remedies against a vendor with respect to
the warranties against hidden defects of or
encumbrances upon the thing sold are not limited to
those prescribed in Article 1567 of the Civil Code which
provides:
Art. 1567. In the case of Articles 1561, 1562,
1564, 1565 and 1566, the vendee may elect
between withdrawing from the contract and
demanding a proportionate reduction of the
price, with damages either
case. 13
The vendee may also ask for the annulment of the
contract upon proof of error or fraud, in which case the
ordinary rule on obligations shall be applicable. 14 Under
the law on obligations, responsibility arising from fraud
is demandable in all obligations and any waiver of an
action for future fraud is void. Responsibility arising from
negligence is also demandable in any obligation, but
such liability may be regulated by the courts, according
to the circumstances. 15 Those guilty of fraud,
negligence, or delay in the performance of their
obligations and those who in any manner contravene the
tenor thereof are liable for damages. 16
The vendor could likewise be liable for quasi-delict under
Article 2176 of the Civil Code, and an action based
thereon may be brought by the vendee. While it may be
true that the pre-existing contract between the parties
may, as a general rule, bar the applicability of the law
on quasi-delict, the liability may itself be deemed to
arise fromquasi-delict, i.e., the acts which breaks the
contract may also be a quasi-delict. Thus, in Singson
vs. Bank of the Philippine Islands, 17 this Court stated:
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 other and the consequent recovery
of damages therefor. 18 Indeed, this view has
been, in effect, reiterated in a comparatively
recent case. Thus, in Air France
vs. Carrascoso, involving
19
an airplane
passenger who, despite hi 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 latter's part, for, although
the relation between the passenger and a carrier
is "contractual both in origin and nature . . . the
act that breaks the contract may also be a tort.
Otherwise put, liability for quasi-delict may still
exist despite the presence of contractual
relations. 20
Under American law, the liabilities of a
manufacturer or seller of injury-causing products
may be based on negligence, 21 breach of
warranty, 22 tort, 23 or other grounds such as
fraud, deceit, or misrepresentation. 24Quasi-
delict, as defined in Article 2176 of the Civil
Code, (which is known in Spanish legal treaties
as culpa aquiliana, culpa extra-contractual or
cuasi-delitos) 25 is homologous but not identical
to tort under the common law, 26 which includes
not only negligence, but also intentional criminal
acts, such as assault and battery, false
imprisonment and deceit. 27
It must be made clear that our affirmance of the
decision of the public respondent should by no means be
understood as suggesting that the private respondent's
claims for moral damages have sufficient factual and
legal basis.
IN VIEW OF ALL THE FOREGOING, the instant petition is
hereby DENIED for lack of merit, with costs against the
petitioner. SO ORDERED.
E. NTERFERENCE WITH CONTRACTUAL
RELATIONS
 ART. 1314 NCC
SECOND DIVISION
[G.R. No. 120554. September 21, 1999]
SO PING BUN, petitioner, vs. COURT OF APPEALS,
TEK HUA ENTERPRISING CORP. and MANUEL C.
TIONG, respondents.
Tek Hua Enterprises is the lessee of Dee C. Chuan
& Sons, Inc. in the latters premises in Binondo but it was
So Ping Bun who was occupying the same for his
Trendsetter Marketing. Later, Mr. Manuel Tiong asked
So Ping Bun to vacate the premises but the batter
refused and entered into formal contracts of lease with
DCCSI. In a suit for injunction, private respondents
pressed for the nullification of the lease contracts
between DCCSI and petitioner, and for damages. The
trial court ruled in favor of private respondents and the
same was affirmed by the Court of Appeals.
There was tort interference in the case at bar as
petitioner deprived respondent corporation of the latters
property right. However, nothing on record imputed
malice on petitioner; thus, precluding damages. But
although the extent of damages was not quantifiable, it
does not relieve petitioner of the legal liability for
entering into contracts and causing breach of existing
ones. Hence, the Court confirmed the permanent
injunction and nullification of the lease contracts
between DCCSI and Trendsetter Marketing.
SYLLABUS
1. CIVIL LAW; DAMAGES; NONTRESPASSORY
INVASION OF ANOTHERS INTEREST IN THE
PRIVATE USE AND ENJOYMENT OF ASSET; WHEN
PRESENT.- Damage is the loss, hurt, or harm which
results from injury, and damages are the recompense or
compensation awarded for the damage suffered. One
becomes liable in an action for damages for a
nontrespassory invasion of anothers interest in the
private use and enjoyment of asset if (a) the other has
property rights and privileges with respect to the use or
enjoyment interfered with, (b) the invasion is substantial,
 (c) the defendants conduct is a legal cause of the
invasion, and (d) the invasion is either intentional and
unreasonable or unintentional and actionable under
general negligence rules.
2. ID.; OBLIGATIONS AND CONTRACTS; TORT
INTERFERENCE; ELEMENTS; PRESENT.- The
elements of tort interference are: (1) existence of a valid
contract; (2) knowledge on the part of the third person of
the existence of contract; and (3) interference of the
third person is without legal justification or excuse. A
duty which the law of torts is concerned with its respect
for the property of others, and a cause of action ex
delicto may be predicated upon an unlawful interference
by one person of the enjoyment by the other of his
private property. This may pertain to a situation where a
third person induces a party to renege on or violate his
undertaking under a contract. In the case before us,
petitioners Trendsetter Marketing asked DCCSI to
execute lease contracts in its favor, and as a result
petitioner deprived respondent corporation of the latters
property right. Clearly, and as correctly viewed by the
appellate court, the three elements of tort interference
above-mentioned are present in the instant case.
4. ID.; ID.; WHERE LIABILITY NOT QUANTIFIABLE.-
Section 1314 of the Civil Code categorically provides
that, Any third person who induces another to violate his
contract shall be liable for damages to the other
contracting party. Here however, the lower courts did not
award damages because the extent of damages was not
quantifiable. We had a similar situation in Gilchrist, where
it was difficult or impossible to determine the extent of
damage and there was nothing on record to serve as
basis thereof In that case we refrained from awarding
damages. We believe the same conclusion applies in this
case. While we do not encourage tort interferers seeking
their economic interest to intrude into existing contracts
at the expense of others, however, we find that the
conduct herein complained of did not transcend the limits
forbidding an obligatory award for damages in the
absence of any malice. The business desire is there to
make some gain to the detriment of the contracting
parties. Lack of malice, however, precludes damages. But
it does not relieve petitioner of the legal liability for
entering into contracts and causing breach of existing
ones. The respondent appellate court correctly confirmed
the permanent injunction and nullification of the lease
contracts between DCCSI and Trendsetter Marketing,
without awarding damages. The injunction saved the
respondents from further damage or injury caused by
petitioners interference.
DECISION
This petition for certiorari challenges the
Decision[1] of the Court of Appeals dated October 10,
1994, and the Resolution[2] dated June 5, 1995, in CA-
G.R. CV No. 38784. The appellate court affirmed the
decision of the Regional Trial Court of Manila, Branch 35,
except for the award of attorneys fees, as follows:
"WHEREFORE, foregoing considered, the appeal of
respondent-appellant So Ping Bun for lack of merit is
DISMISSED. The appealed decision dated April 20, 1992
of the court a quo is modified by reducing the attorney's
fees awarded to plaintiff Tek Hua Enterprising
Corporation from P500,000.00 to P200,000.00."[3]
The facts are as follows:
In 1963, Tek Hua Trading Co, through its managing
partner, So Pek Giok, entered into lease agreements
with lessor Dee C. Chuan & Sons Inc. (DCCSI). Subjects
of four (4) lease contracts were premises located at Nos.
930, 930-Int., 924-B and 924-C, Soler Street, Binondo,
Manila. Tek Hua used the areas to store its textiles. The
contracts each had a one-year term. They provided that
should the lessee continue to occupy the premises after
the term, the lease shall be on a month-to-month basis.
When the contracts expired, the parties did not
renew the contracts, but Tek Hua continued to occupy
the premises. In 1976, Tek Hua Trading Co. was
dissolved. Later, the original members of Tek Hua
Trading Co. including Manuel C. Tiong, formed Tek Hua
Enterprising Corp., herein respondent corporation.
So Pek Giok, managing partner of Tek Hua Trading,
died in 1986. So Pek Gioks grandson, petitioner So Ping
Bun, occupied the warehouse for his own textile
business, Trendsetter Marketing.
On August 1, 1989, lessor DCCSI sent letters
addressed to Tek Hua Enterprises, informing the latter
of the 25% increase in rent effective September 1,
1989. The rent increase was later on reduced to 20%
effective January 1, 1990, upon other lessees
demand. Again on December 1, 1990, the lessor
implemented a 30% rent increase. Enclosed in these
letters were new lease contracts for signing. DCCSI
warned that failure of the lessee to accomplish the
contracts shall be deemed as lack of interest on the
lessees part, and agreement to the termination of the
lease. Private respondents did not answer any of these
letters. Still, the lease contracts were not rescinded.
On March 1, 1991, private respondent Tiong sent a
letter to petitioner, which reads as follows:
March 1, 1991
Mr. So Ping Bun
930 Soler Street
Binondo, Manila
Dear Mr. So,
Due to my closed (sic) business associate (sic) for three decades with
your late grandfather Mr. So Pek Giok and late father, Mr. So Chong
Bon, I allowed you temporarily to use the warehouse of Tek Hua
Enterprising Corp. for several years to generate your personal
business.
Since I decided to go back into textile business, I need a warehouse
immediately for my stocks. Therefore, please be advised to vacate all
your stocks in Tek Hua Enterprising Corp. Warehouse. You are hereby
given 14 days to vacate the premises unless you have good reasons
that you have the right to stay.Otherwise, I will be constrained to take
measure to protect my interest.
Please give this urgent matter your preferential attention to avoid
inconvenience on your part.
Very truly yours,
(Sgd) Manuel C. Tiong
MANUEL C. TIONG
President
Petitioner refused to vacate. On March 4, 1992,
petitioner requested formal contracts of lease with
DCCSI in favor Trendsetter Marketing. So Ping Bun
claimed that after the death of his grandfather, So Pek
Giok, he had been occupying the premises for his textile
business and religiously paid rent.DCCSI acceded to
petitioners request. The lease contracts in favor of
Trendsetter were executed.
In the suit for injunction, private respondents
pressed for the nullification of the lease contracts
between DCCSI and petitioner. They also claimed
damages.
After trial, the trial court ruled:
WHEREFORE, judgment is rendered:
1. Annulling the four Contracts of Lease (Exhibits A,
A-1 to A-3, inclusive) all dated March 11, 1991,
between defendant So Ping Bun, doing business
under the name and style of Trendsetter
Marketing, and defendant Dee C. Chuan & Sons,
Inc. over the premises located at Nos. 924-B,
924-C, 930 and 930, Int., respectively, Soler
Street, Binondo Manila;
2. Making permanent the writ of preliminary
injunction issued by this Court on June 21,
1991;
3. Ordering defendant So Ping Bun to pay the
aggrieved party, plaintiff Tek Hua Enterprising
Corporation, the sum of P500,000.00, for
attorneys fees;
4. Dismissing the complaint, insofar as plaintiff
Manuel C. Tiong is concerned, and the
respective counterclaims of the defendant;
5. Ordering defendant So Ping Bun to pay the costs
of this lawsuit;
This judgment is without prejudice to the rights of
plaintiff Tek Hua Enterprising Corporation and defendant
Dee C. Chuan & Sons, Inc. to negotiate for the renewal
of their lease contracts over the premises located at
Nos. 930, 930-Int., 924-B and 924-C Soler Street,
Binondo, Manila, under such terms and conditions as
they agree upon, provided they are not contrary to law,
public policy, public order, and morals.
SO ORDERED.[5]
Petitioners motion for reconsideration of the above
decision was denied.
On appeal by So Ping Bun, the Court of Appeals
upheld the trial court. On motion for reconsideration, the
appellate court modified the decision by reducing the
award of attorneys fees from five hundred thousand
(P500,000.00) pesos to two hundred thousand
(P200,000.00) pesos.
Petitioner is now before the Court raising the
following issues:
I. WHETHER THE APPELLATE COURT ERRED
IN AFFIRMING THE TRIAL COURTS
DECISION FINDING SO PING BUN GUILTY
OF TORTUOUS INTERFERENCE OF
CONTRACT?
II. WHETHER THE APPELLATE COURT ERRED
IN AWARDING ATTORNEYS FEES OF
P200,000.00 IN FAVOR OF PRIVATE
RESPONDENTS.
The foregoing issues involve, essentially, the
correct interpretation of the applicable law on tortuous
conduct, particularly unlawful interference with
contract. We have to begin, obviously, with certain
fundamental principles on torts and damages.
Damage is the loss, hurt, or harm which results
from injury, and damages are the recompense or
compensation awarded for the damage suffered.[6]One
becomes liable in an action for damages for a
nontrespassory invasion of anothers interest in the
private use and enjoyment of asset if (a) the other has
property rights and privileges with respect to the use or
enjoyment interfered with, (b) the invasion is
substantial, (c) the defendants conduct is a legal cause
of the invasion, and (d) the invasion is either intentional
and unreasonable or unintentional and actionable under
general negligence rules.[7]
The elements of tort interference are: (1) existence
of a valid contract; (2) knowledge on the part of the
third person of the existence of contract; and (3)
interference of the third person is without legal
justification or excuse.[8]
A duty which the law of torts is concerned with is
respect for the property of others, and a cause of
action ex delicto may be predicated upon an unlawful
interference by one person of the enjoyment by the
other of his private property.[9] This may pertain to a
situation where a third person induces a party to renege
on or violate his undertaking under a contract. In the
case before us, petitioners Trendsetter Marketing asked
DCCSI to execute lease contracts in its favor, and as a
result petitioner deprived respondent corporation of the
latters property right. Clearly, and as correctly viewed by
the appellate court, the three elements of tort
interference above-mentioned are present in the instant
case.
Authorities debate on whether interference may be
justified where the defendant acts for the sole purpose
of furthering his own financial or economic
interest.[10] One view is that, as a general rule,
justification for interfering with the business relations of
another exists where the actors motive is to benefit
himself. Such justification does not exist where his sole
motive is to cause harm to the other. Added to this,
some authorities believe that it is not necessary that the
interferers interest outweigh that of the party whose
rights are invaded, and that an individual acts under an
economic interest that is substantial, not merely de
minimis, such that wrongful and malicious motives are
negatived, for he acts in self-protection.[11] Moreover,
justification for protecting ones financial position should
not be made to depend on a comparison of his economic
interest in the subject matter with that of others. [12] It is
sufficient if the impetus of his conduct lies in a proper
business interest rather than in wrongful motives.[13]
As early as Gilchrist vs. Cuddy,[14] we held that
where there was no malice in the interference of a
contract, and the impulse behind ones conduct lies in a
proper business interest rather than in wrongful motives,
a party cannot be a malicious interferer. Where the
alleged interferer is financially interested, and such
interest motivates his conduct, it cannot be said that he
is an officious or malicious intermeddler.[15]
In the instant case, it is clear that petitioner So Ping
Bun prevailed upon DCCSI to lease the warehouse to his
enterprise at the expense of respondent
corporation. Though petitioner took interest in the
property of respondent corporation and benefited from
it, nothing on record imputes deliberate wrongful
motives or malice on him.
Section 1314 of the Civil Code categorically
provides also that, Any third person who induces
another to violate his contract shall be liable for
damages to the other contracting party. Petitioner
argues that damage is an essential element of tort
interference, and since the trial court and the appellate
court ruled that private respondents were not entitled to
actual, moral or exemplary damages, it follows that he
ought to be absolved of any liability, including attorneys
fees.
It is true that the lower courts did not award
damages, but this was only because the extent of
damages was not quantifiable. We had a similar
situation in Gilchrist, where it was difficult or impossible
to determine the extent of damage and there was
nothing on record to serve as basis thereof. In that case
we refrained from awarding damages. We believe the
same conclusion applies in this case.
While we do not encourage tort interferers seeking
their economic interest to intrude into existing contracts
at the expense of others, however, we find that the
conduct herein complained of did not transcend the
limits forbidding an obligatory award for damages in the
absence of any malice. The business desire is there to
make some gain to the detriment of the contracting
parties. Lack of malice, however, precludes
damages. But it does not relieve petitioner of the legal
liability for entering into contracts and causing breach of
existing ones. The respondent appellate court correctly
confirmed the permanent injunction and nullification of
the lease contracts between DCCSI and Trendsetter
Marketing, without awarding damages. The injunction
saved the respondents from further damage or injury
caused by petitioners interference.
Lastly, the recovery of attorneys fees in the concept
of actual or compensatory damages, is allowed under
the circumstances provided for in Article 2208 of the
Civil Code.[16] One such occasion is when the defendants
act or omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect his
interest.[17] But we have consistently held that the award
of considerable damages should have clear factual and
legal bases.[18] In connection with attorneys fees, the
award should be commensurate to the benefits that
would have been derived from a favorable
judgment. Settled is the rule that fairness of the award
of damages by the trial court calls for appellate review
such that the award if far too excessive can be
reduced.[19] This ruling applies with equal force on the
award of attorneys fees. In a long line of cases we said,
It is not sound policy to place a penalty on the right to
litigate. To compel the defeated party to pay the fees of
counsel for his successful opponent would throw wide
open the door of temptation to the opposing party and
his counsel to swell the fees to undue proportions.[20]
Considering that the respondent corporations lease
contract, at the time when the cause of action accrued,
ran only on a month-to-month basis whence before it
was on a yearly basis, we find even the reduced amount
of attorneys fees ordered by the Court of Appeals still
exorbitant in the light of prevailing
jurisprudence.[21] Consequently, the amount of two
hundred thousand (P200,000.00) awarded by
respondent appellate court should be reduced to one
hundred thousand (P100,000.00) pesos as the
reasonable award for attorneys fees in favor of private
respondent corporation.
WHEREFORE, the petition is hereby DENIED. The
assailed Decision and Resolution of the Court of Appeals
in CA-G.R. CV No. 38784 are hereby AFFIRMED, with
MODIFICATION that the award of attorneys fees is
reduced from two hundred thousand (P200,000.00) to
one hundred thousand (P100,000.00) pesos. No
pronouncement as to costs. SO ORDERED.
G.R. No. 164703
ALLAN C. GO, doing business under the name and
style ACG Express Liner, Petitioner vs. MORTIMER
F. CORDERO, Respondent.
G.R. No. 164747
 MORTIMER F. CORDERO, Petitioner, ALLAN C. GO, However, Cordero later discovered that Go was dealing
doing business underthe name and style directly with Robinson when he was informed by Dennis
ACG Express Liner, FELIPE M. LANDICHO and VINCENT Padua of Wartsila Philippines that Go was canvassing for
D. TECSON, Respondents. a second catamaran engine from their company which
provided the ship engine for the first SEACAT
25. Padua told Cordero that Go instructed him to fax the
For review is the Decision[1] dated March 16, 2004 as
requested quotation of the second engine to the Park
modified by the Resolution[2] dated July 22, 2004 of the
Royal Hotel in Brisbane where Go was then
Court of Appeals (CA) in CA-G.R. CV No. 69113, which
staying. Cordero tried to contact Go and Landicho to
affirmed with modifications the Decision[3] dated May 31,
confirm the matter but they were nowhere to be found,
2000 of the Regional Trial Court (RTC) of Quezon City,
while Robinson refused to answer his calls. Cordero
Branch 85 in Civil Case No. 98-35332.
immediately flew to Brisbane to clarify matters with
Robinson, only to find out that Go and Landicho were
The factual antecedents: already there in Brisbane negotiating for the sale of the
second SEACAT 25. Despite repeated follow-up calls, no
explanation was given by Robinson, Go, Landicho and
Sometime in 1996, Mortimer F. Cordero, Vice-President
Tecson who even made Cordero believe there would be
of Pamana Marketing Corporation (Pamana), ventured
no further sale between AFFA and ACG Express Liner.
into the business of marketing inter-island passenger
vessels. After contacting various overseas fast ferry
manufacturers from all over the world, he came to meet In a handwritten letter dated June 24, 1998, Cordero
Tony Robinson, an Australian national based informed Go that such act of dealing directly with
in Brisbane, Australia, who is the Managing Director of Robinson violated his exclusive distributorship and
Aluminium Fast Ferries Australia (AFFA). demanded that they respect the same, without prejudice
to legal action against him and Robinson should they fail
to heed the same.[8] Corderos lawyer, Atty. Ernesto A.
Between June and August 1997, Robinson signed
Tabujara, Jr. of ACCRA law firm, also wrote ACG Express
documents appointing Cordero as the exclusive
Liner assailing the fraudulent actuations and
distributor of AFFA catamaran and other fast ferry
misrepresentations committed by Go in connivance with
vessels in the Philippines. As such exclusive distributor,
his lawyers (Landicho and Tecson) in breach of Corderos
Cordero offered for sale to prospective buyers the 25-
exclusive distributorship appointment.[9]
meter Aluminium Passenger catamaran known as the
SEACAT 25.[4]
Having been apprised of Corderos demand letter, Thyne
& Macartney, the lawyer of AFFA and Robinson, faxed a
After negotiations with Felipe Landicho and Vincent
letter to ACCRAlaw firm asserting that the appointment
Tecson, lawyers of Allan C. Go who is the
of Cordero as AFFAs distributor was for the purpose of
owner/operator of ACG Express Liner of Cebu City, a
one (1) transaction only, that is, the purchase of a high-
single proprietorship, Cordero was able to close a deal
speed catamaran vessel by ACG Express Liner in August
for the purchase of two (2) SEACAT 25 as evidenced by
1997. The letter further stated that Cordero was offered
the Memorandum of Agreement dated August 7,
the exclusive distributorship, the terms of which were
1997.[5] Accordingly, the parties executed Shipbuilding
contained in a draft agreement which Cordero allegedly
Contract No. 7825 for one (1) high-speed catamaran
failed to return to AFFA within a reasonable time, and
(SEACAT 25) for the price of US$1,465,512.00.[6] Per
which offer is already being revoked by AFFA.[10]
agreement between Robinson and Cordero, the latter
shall receive commissions totalling US$328,742.00, or
22.43% of the purchase price, from the sale of each As to the response of Go, Landicho and Tecson to his
vessel.[7] demand letter, Cordero testified before the trial court
that on the same day, Landicho, acting on behalf of Go,
talked to him over the telephone and offered to amicably
Cordero made two (2) trips to the AFFA Shipyard in
settle their dispute. Tecson and Landicho offered to
Brisbane, Australia, and on one (1) occasion even
convince Go to honor his exclusive distributorship with
accompanied Go and his family and Landicho, to monitor
AFFA and to purchase all vessels for ACG Express Liner
the progress of the building of the vessel. He shouldered
through him for the next three (3) years. In an effort to
all the expenses for airfare, food, hotel accommodations,
amicably settle the matter, Landicho, acting in behalf of
transportation and entertainment during these trips. He
Go, set up a meeting with Cordero on June 29, 1998
also spent for long distance telephone calls to
between 9:30 p.m. to 10:30 p.m. at the Mactan Island
communicate regularly with Robinson, Go, Tecson and
Resort Hotel lobby. On said date, however, only
Landicho.
Landicho and Tecson came and no reason was given for
Gos absence. Tecson and Landicho proposed that they
will convince Go to pay him US$1,500,000.00 on the
condition that they will get a cut of 20%. And so it was
agreed between him, Landicho and Tecson that the
latter would give him a weekly status report and that the
matter will be settled in three (3) to four (4) weeks and
neither party will file an action against each other until a
final report on the proposed settlement. No such report
was made by either Tecson or Landicho who, it turned
out, had no intention to do so and were just buying time
as the catamaran vessel was due to arrive from
Australia. Cordero then filed a complaint with the Bureau
of Customs (BOC) to prohibit the entry of SEACAT 25
from Australiabased on misdeclaration and
undervaluation. Consequently, an Alert Order was issued
by Acting BOC Commissioner Nelson Tan for the vessel
which in fact arrived on July 17, 1998. Cordero claimed
that Go and Robinson had conspired to undervalue the
vessel by around US$500,000.00.[11]
On August 21, 1998, Cordero instituted Civil Case No.
98-35332 seeking to hold Robinson, Go, Tecson and
Landicho liable jointly and solidarily for conniving and
conspiring together in violating his exclusive
distributorship in bad faith and wanton disregard of his
rights, thus depriving him of his due commissions
(balance of unpaid commission from the sale of the first
vessel in the amount of US$31,522.01 and unpaid
commission for the sale of the second vessel in the
amount of US$328,742.00) and causing him actual,
moral and exemplary damages, including P800,000.00
representing expenses for airplane travel to Australia,
telecommunications bills and entertainment, on account
of AFFAs untimely cancellation of the exclusive
distributorship agreement. Cordero also prayed for the
award of moral and exemplary damages, as well as
attorneys fees and litigation expenses.[12]
Robinson filed a motion to dismiss grounded on lack of
jurisdiction over his person and failure to state a cause
of action, asserting that there was no act committed in
violation of the distributorship agreement. Said motion
was denied by the trial court on December 20,
1999. Robinson was likewise declared in default for
failure to file his answer within the period granted by the
trial court.[13] As for Go and Tecson, their motion to
dismiss based on failure to state a cause of action was
likewise denied by the trial court on February 26,
1999.[14] Subsequently, they filed their Answer denying
that they have anything to do with the termination by
AFFA of Corderos authority as exclusive distributor in
the Philippines. On the contrary, they averred it was
Cordero who stopped communicating with Go in
connection with the purchase of the first vessel from
AFFA and was not doing his part in making progress
status reports and airing the clients grievances to his
principal, AFFA, such that Go engaged the services of
Landicho to fly to Australia and attend to the documents
needed for shipment of the vessel to the Philippines. As
to the inquiry for the Philippine price for a Wartsila ship
engine for AFFAs other on-going vessel construction, this
was merely requested by Robinson but which Cordero
misinterpreted as indication that Go was buying a
second vessel. Moreover, Landicho and Tecson had no
transaction whatsoever with Cordero who had no
document to show any such shipbuilding contract. As to
the supposed meeting to settle their dispute, this was
due to the malicious demand of Cordero to be given
US$3,000,000 as otherwise he will expose in the media
the alleged undervaluation of the vessel with the
BOC. In any case, Cordero no longer had cause of action
for his commission for the sale of the second vessel
under the memorandum of agreement dated August 7,
1997 considering the termination of his authority by
AFFAs lawyers on June 26, 1998.[15]
Pre-trial was reset twice to afford the parties opportunity
to reach a settlement. However, on motion filed by
Cordero through counsel, the trial court reconsidered the
resetting of the pre-trial to another date for the third
time as requested by Go, Tecson and Landicho, in view
of the latters failure to appear at the pre-trial conference
on January 7, 2000 despite due notice. The trial court
further confirmed that said defendants misled the trial
court in moving for continuance during the pre-trial
conference held on December 10, 1999, purportedly to
go abroad for the holiday season when in truth a Hold-
Departure Order had been issued against
them.[16] Accordingly, plaintiff Cordero was allowed to
present his evidence ex parte.
Corderos testimony regarding his transaction with
defendants Go, Landicho and Tecson, and the latters
offer of settlement, was corroborated by his counsel
who also took the witness stand. Further, documentary
evidence including photographs taken of the June 29,
1998 meeting with Landicho, Tecson and Atty. Tabujara
at Shangri-las Mactan Island Resort, photographs taken
in Brisbane showing Cordero, Go with his family,
Robinson and Landicho, and also various documents,
communications, vouchers and bank transmittals were
presented to prove that: (1) Cordero was properly
authorized and actually transacted in behalf of AFFA as
exclusive distributor in the Philippines; (2) Cordero spent
considerable sums of money in pursuance of the
contract with Go and ACG Express Liner; and (3) AFFA
through Robinson paid Cordero his commissions from
each scheduled payment made by Go for the first
SEACAT 25 purchased from AFFA pursuant to
Shipbuilding Contract No. 7825.[17]
On May 31, 2000, the trial court rendered its decision,
the dispositive portion of which reads as follows:
WHEREFORE, PREMISES CONSIDERED,
judgment is hereby rendered in favor of Plaintiff
and against defendants Allan C. Go, Tony
Robinson, Felipe Landicho, and Vincent
Tecson. As prayed for, defendants are hereby ordered to
pay Plaintiff jointly and solidarily, the following:
1. On the First Cause of Action, the sum total of
SIXTEEN MILLION TWO HUNDRED NINETY ONE
THOUSAND THREE HUNDRED FIFTY TWO AND
FORTY THREE CENTAVOS (P16,291,352.43) as
actual damages with legal interest from 25 June
1998 until fully paid;
2. On the Second Cause of Action, the sum of ONE
MILLION PESOS (P1,000,000.00) as moral
damages;
3. On the Third Cause of Action, the sum of ONE
MILLION PESOS (P1,000,000.00) as exemplary
damages; and
4. On the Fourth Cause of Action, the sum of ONE
MILLION PESOS (P1,000,000.00) as attorneys
fees;
Costs against the defendants.SO ORDERED.
Go, Robinson, Landicho and Tecson filed a motion for
new trial, claiming that they have been unduly
prejudiced by the negligence of their counsel who was
allegedly unaware that the pre-trial conference on
January 28, 2000 did not push through for the reason
that Cordero was then allowed to present his
evidence ex-parte, as he had assumed that the said ex-
parte hearing was being conducted only against
Robinson who was earlier declared in default.[19] In its
Order dated July 28, 2000, the trial court denied the
motion for new trial.[20] In the same order, Corderos
motion for execution pending appeal was
granted. Defendants moved to reconsider the said order
insofar as it granted the motion for execution pending
appeal.[21] On August 8, 2000, they filed a notice of
appeal.[22]
On August 18, 2000, the trial court denied the motion
for reconsideration and on August 21, 2000, the writ of
execution pending appeal was issued.[23] Meanwhile, the
notice of appeal was denied for failure to pay the
appellate court docket fee within the prescribed
period.[24] Defendants filed a motion for reconsideration
and to transmit the case records to the CA.[25]
On September 29, 2000, the CA issued a temporary
restraining order at the instance of defendants in the
certiorari case they filed with said court docketed as CA-
G.R. SP No. 60354 questioning the execution orders
issued by the trial court. Consequently, as requested by
the defendants, the trial court recalled and set aside its
November 6, 2000 Order granting the ex-parte motion
for release of garnished funds, cancelled the scheduled
public auction sale of levied real properties, and denied
the ex-parte Motion for Break-Open Order and Ex-
Parte Motion for Encashment of Check filed by
Cordero.[26] On November 29, 2000, the trial court
reconsidered its Order dated August 21, 2000 denying
due course to the notice of appeal and forthwith
directed the transmittal of the records to the CA.[27]
On January 29, 2001, the CA rendered judgment
granting the petition for certiorari in CA-G.R. SP No.
60354 and setting aside the trial courts orders of
execution pending appeal. Cordero appealed the said
judgment in a petition for review filed with this Court
which was eventually denied under our Decision
dated September 17, 2002.[28]
On March 16, 2004, the CA in CA-G.R. CV No.
69113 affirmed the trial court (1) in allowing Cordero to
present his evidence ex-parte after the unjustified failure
of appellants (Go, Tecson and Landicho) to appear at
the pre-trial conference despite due notice; (2) in finding
that it was Cordero and not Pamana who was appointed
by AFFA as the exclusive distributor in the Philippines of
its SEACAT 25 and other fast ferry vessels, which is not
limited to the sale of one (1) such catamaran to Go on
August 7, 1997; and (3) in finding that Cordero is
entitled to a commission per vessel sold for AFFA
through his efforts in the amount equivalent to 22.43%
of the price of each vessel or US$328,742.00, and with
payments of US$297,219.91 having been made to
Cordero, there remained a balance of US$31,522.09 still
due to him. The CA sustained the trial court in ruling
that Cordero is entitled to damages for the breach of his
exclusive distributorship agreement with AFFA. However,
it held that Cordero is entitled only to commission for
the sale of the first catamaran obtained through his
efforts with the remaining unpaid sum of US$31,522.09
or P1,355,449.90 (on the basis of US$1.00=P43.00 rate)
with interest at 6% per annum from the time of the
filing of the complaint until the same is fully paid. As to
the P800,000.00 representing expenses incurred by
Cordero for transportation, phone bills, entertainment,
food and lodging, the CA declared there was no basis for
such award, the same being the logical and necessary
consequences of the exclusive distributorship agreement
which are normal in the field of sales and distribution,
and the expenditures having redounded to the benefit of
the distributor (Cordero).
On the amounts awarded by the trial court as
moral and exemplary damages, as well as attorneys
fees, the CA reduced the same
to P500,000.00, P300,000.00 and P50,000.00,
respectively. Appellants were held solidarily liable
pursuant to the provisions of Article 1207 in relation to
Articles 19, 20, 21 and 22 of the New Civil Code. The CA
further ruled that no error was committed by the trial
court in denying their motion for new trial, which said
court found to be pro forma and did not raise any
substantial matter as to warrant the conduct of another
trial.
By Resolution dated July 22, 2004, the CA
denied the motions for reconsideration respectively filed
by the appellants and appellee, and affirmed the
Decision dated March 16, 2004 with the sole
modification that the legal interest of 6% per annum LOWER COURTS DENIAL OF
shall start to run from June 24, 1998 until the finality of PETITIONERS MOTION FOR NEW
the decision, and the rate of 12% interest per annum TRIAL.[29]
shall apply once the decision becomes final and
executory until the judgment has been satisfied.
G.R. No. 164747
(Petitioner Cordero)
The case before us is a consolidation of the
petitions for review under Rule 45 separately filed by Go
I. THE COURT OF APPEALS ERRED IN
(G.R. No. 164703) and Cordero (G.R. No. 164747) in
NOT SUSTAINING THE JUDGMENT OF
which petitioners raised the following arguments:
THE TRIAL COURT AWARDING
PETITIONER ACTUAL DAMAGES FOR
G.R. No. 164703
HIS COMMISSION FOR THE SALE OF
(Petitioner Go)
THE SECOND VESSEL, SINCE THERE IS
SUFFICIENT EVIDENCE ON RECORD
I. THE HONORABLE COURT OF
WHICH PROVES THAT THERE WAS A
APPEALS DISREGARDED THE
SECOND SALE OF A VESSEL.
RULES OF COURT AND PERTINENT
JURISPRUDENCE AND ACTED
A. THE MEMORANDUM OF
WITH GRAVE ABUSE OF
AGREEMENT DATED 7
DISCRETION IN NOT RULING
AUGUST 1997 PROVIDES
THAT THE RESPONDENT IS NOT
THAT RESPONDENT GO
THE REAL PARTY-IN-INTEREST
WAS CONTRACTUALLY
AND IN NOT DISMISSING THE
BOUND TO BUY TWO (2)
INSTANT CASE ON THE GROUND
VESSELS FROM AFFA.
OF LACK OF CAUSE OF ACTION;
II. THE HONORABLE COURT OF
B. RESPONDENT GOS
APPEALS IGNORED THE LAW AND
POSITION PAPER AND
JURISPRUDENCE AND ACTED
COUNTER-
WITH GRAVE ABUSE OF
AFFIDAVIT/POSITION
DISCRETION IN HOLDING HEREIN
PAPER THAT WERE FILED
PETITIONER RESPONSIBLE FOR
BEFORE THE BUREAU OF
THE BREACH IN THE ALLEGED
CUSTOMS, ADMITS UNDER
EXCLUSIVE DISTRIBUTORSHIP
OATH THAT HE HAD
AGREEMENT WITH ALUMINIUM
INDEED PURCHASED A
FAST FERRIES AUSTRALIA;
SECOND VESSEL FROM
III. THE HONORABLE APPELLATE
AFFA.
COURT MISAPPLIED THE LAW AND
ACTED WITH GRAVE ABUSE OF
C. RESPONDENTS
DISCRETION IN FINDING
ADMITTED IN THEIR PRE-
PETITIONER LIABLE IN
TRIAL BRIEF THAT THEY
SOLIDUM WITH THE CO-
HAD PURCHASED A
DEFENDANTS WITH RESPECT TO
SECOND VESSEL.
THE CLAIMS OF RESPONDENT;
IV. THE HONORABLE COURT OF
II. THE COURT OF APPEALS ERRED IN
APPEALS MISAPPLIED LAW AND
RULING THAT PETITIONER IS NOT
JURISPRUDENCE AND GRAVELY
ENTITLED TO HIS COMMISSIONS FOR
ABUSED ITS DISCRETION WHEN
THE PURCHASE OF A SECOND VESSEL,
IT FOUND PETITIONER LIABLE
SINCE IT WAS PETITIONERS EFFORTS
FOR UNPAID COMMISSIONS,
WHICH ACTUALLY FACILITATED AND
DAMAGES, ATTORNEYS FEES, AND
SET-UP THE TRANSACTION FOR
LITIGATION EXPENSES; and
RESPONDENTS.
V. THE HONORABLE APPELLATE
COURT ACTED CONTRARY TO LAW
III. THE COURT OF APPEALS ERRED IN
AND JURISPRUDENCE AND
NOT IMPOSING THE PROPER LEGAL
GRAVELY ABUSED ITS
INTEREST RATE ON RESPONDENTS
DISCRETION WHEN IT
UNPAID OBLIGATION WHICH SHOULD
EFFECTIVELY DEPRIVED HEREIN
BE TWELVE PERCENT (12%) FROM THE
PETITIONER OF HIS RIGHT TO
DUE PROCESS BY AFFIRMING THE
 TIME OF THE BREACH OF THE
OBLIGATION.
IV. THE COURT OF APPEALS ERRED IN
NOT SUSTAINING THE ORIGINAL
AMOUNT OF CONSEQUENTIAL
DAMAGES AWARDED TO PETITIONER
BY THE TRIAL COURT CONSIDERING
THE BAD FAITH AND FRAUDULENT
CONDUCT OF RESPONDENTS IN
MISAPPROPRIATING THE MONEY OF
PETITIONER.[30]
The controversy boils down to two (2) main issues: (1)
whether petitioner Cordero has the legal personality to
sue the respondents for breach of contract; and (2)
whether the respondents may be held liable for
damages to Cordero for his unpaid commissions and
termination of his exclusive distributorship appointment
by the principal, AFFA.
I. Real Party-in-Interest
First, on the issue of whether the case had been filed by
the real party-in-interest as required by Section 2, Rule 3
of the Rules of Court, which defines such party as the
one (1) to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the
suit. The purposes of this provision are: 1) to prevent
the prosecution of actions by persons without any right,
title or interest in the case; 2) to require that the actual
party entitled to legal relief be the one to prosecute the
action; 3) to avoid a multiplicity of suits; and 4) to
discourage litigation and keep it within certain bounds,
pursuant to sound public policy.[31] A case is dismissible
for lack of personality to sue upon proof that the plaintiff
is not the real party-in-interest, hence grounded on
failure to state a cause of action.[32]
On this issue, we agree with the CA in ruling that it was
Cordero and not Pamana who is the exclusive distributor
of AFFA in the Philippines as shown by the Certification
dated June 1, 1997 issued by Tony
Robinson.[33] Petitioner Go mentions the following
documents also signed by respondent Robinson which
state that Pamana Marketing Corporation represented by
Mr. Mortimer F. Cordero was actually the exclusive
distributor: (1) letter dated 1 June 1997[34]; (2)
certification dated 5 August 1997[35]; and (3) letter dated
5 August 1997 addressed to petitioner Cordero
concerning commissions to be paid to Pamana Marketing
Corporation.[36] Such apparent inconsistency in naming
AFFAs exclusive distributor in the Philippines is of no
moment. For all intents and purposes, Robinson and
AFFA dealt only with Cordero who alone made decisions
in the performance of the exclusive distributorship, as
with other clients to whom he had similarly offered
AFFAs fast ferry vessels. Moreover, the stipulated
commissions from each progress payments made by Go
were directly paid by Robinson to
Cordero.[37] Respondents Landicho and Tecson were only
too aware of Corderos authority as the person who was
appointed and acted as exclusive distributor of AFFA,
which can be gleaned from their act of immediately
furnishing him with copies of bank transmittals
everytime Go remits payment to Robinson, who in turn
transfers a portion of funds received to the bank account
of Cordero in the Philippines as his commission. Out of
these partial payments of his commission, Cordero
would still give Landicho and Tecson their respective
commission, or cuts from his own
commission. Respondents Landicho and Tecson failed to
refute the evidence submitted by Cordero consisting of
receipts signed by them. Said amounts were apart from
the earlier expenses shouldered by Cordero for
Landichos airline tickets, transportation, food and hotel
accommodations for the trip to Australia.[38]
Moreover, petitioner Go, Landicho and Tecson never
raised petitioner Corderos lack of personality to sue on
behalf of Pamana,[39]and did so only before the CA when
they contended that it is Pamana and not Cordero, who
was appointed and acted as exclusive distributor for
AFFA.[40] It was Robinson who argued in support of his
motion to dismiss that as far as said defendant is
concerned, the real party plaintiff appears to be
Pamana, against the real party defendant which is
AFFA.[41] As already mentioned, the trial court denied the
motion to dismiss filed by Robinson.
We find no error committed by the trial court in
overruling Robinsons objection over the improper resort
to summons by publication upon a foreign national like
him and in an action in personam, notwithstanding that
he raised it in a special appearance specifically raising
the issue of lack of jurisdiction over his person. Courts
acquire jurisdiction over the plaintiffs upon the filing of
the complaint, while jurisdiction over the defendants in a
civil case is acquired either through the service of
summons upon them in the manner required by
law or through their voluntary appearance in court and
their submission to its authority.[42] A party who makes a
special appearance in court challenging the jurisdiction
of said court based on the ground of invalid service of
summons is not deemed to have submitted himself to
the jurisdiction of the court.[43]
In this case, however, although the Motion to
Dismiss filed by Robinson specifically stated as one (1)
of the grounds the lack of personal jurisdiction, it must
be noted that he had earlier filed a Motion for Time to
file an appropriate responsive pleading even beyond the
time provided in the summons by publication.[44] Such in Australia even terminated his exclusive dealership
motion did not state that it was a conditional insisting that his services were engaged for only one (1)
appearance entered to question the regularity of the transaction, that is, the purchase of the first SEACAT 25
service of summons, but an appearance submitting to in August 1997.
the jurisdiction of the court by acknowledging the
summons by publication issued by the court and praying
Petitioner Go argues that unlike in Yu v. Court of
for additional time to file a responsive
Appeals[48] there is no conclusive proof adduced by
pleading. Consequently, Robinson having acknowledged
petitioner Cordero that they actually purchased a second
the summons by publication and also having invoked the
SEACAT 25 directly from AFFA and hence there was no
jurisdiction of the trial court to secure affirmative relief
violation of the exclusive distributorship
in his motion for additional time, he effectively
agreement. Further, he contends that the CA gravely
submitted voluntarily to the trial courts jurisdiction. He is
abused its discretion in holding them solidarily liable to
now estopped from asserting otherwise, even before this
Cordero, relying on Articles 1207, 19 and 21 of the Civil
Court.[45]
Code despite absence of evidence, documentary or
testimonial, showing that they conspired to defeat the
very purpose of the exclusive distributorship
II. Breach of Exclusive Distributorship,
agreement.[49]
Contractual Interference and Respondents
Liability for Damages
We find that contrary to the claims of petitioner
Cordero, there was indeed no sufficient evidence that
In Yu v. Court of Appeals,[46] this Court ruled
respondents actually purchased a second SEACAT 25
that the right to perform an exclusive distributorship
directly from AFFA. But this circumstance will not
agreement and to reap the profits resulting from such
absolve respondents from liability for invading Corderos
performance are proprietary rights which a party may
rights under the exclusive distributorship. Respondents
protect. Thus, injunction is the appropriate remedy to
clearly acted in bad faith in bypassing Cordero as they
prevent a wrongful interference with contracts
completed the remaining payments to AFFA without
by strangers to such contracts where the legal remedy is
advising him and furnishing him with copies of the bank
insufficient and the resulting injury is irreparable. In that
transmittals as they previously did, and directly dealt
case, the former dealer of the same goods purchased
with AFFA through Robinson regarding arrangements for
the merchandise from the manufacturer
the arrival of the first SEACAT 25 in Manila and
in England through a trading firm in West Germany and
negotiations for the purchase of the second vessel
sold these in the Philippines. We held that the rights
pursuant to the Memorandum of Agreement which
granted to the petitioner under the exclusive
Cordero signed in behalf of AFFA. As a result of
distributorship agreement may not be diminished nor
respondents actuations, Cordero incurred losses as he
rendered illusory by the expedient act of utilizing or
was not paid the balance of his commission from the
interposing a person or firm to obtain goods for which
sale of the first vessel and his exclusive distributorship
the exclusive distributorship was conceptualized, at the
revoked by AFFA.
expense of the sole authorized distributor.[47]

Petitioner Go contends that the trial and

In the case at bar, it was established that
appellate courts erred in holding them solidarily liable for
petitioner Cordero was not paid the balance of his
Corderos unpaid commission, which is the sole
commission by respondent Robinson. From the time
obligation of the principal AFFA. It was Robinson on
petitioner Go and respondent Landicho directly dealt
behalf of AFFA who, in the letter dated August 5,
with respondent Robinson in Brisbane, and ceased
1997 addressed to Cordero, undertook to pay
communicating through petitioner Cordero as the
commission payments to Pamana on a staggered
exclusive distributor of AFFA in the Philippines, Cordero
progress payment plan in the form of percentage of the
was no longer informed of payments remitted to AFFA in
commission per payment. AFFA explicitly committed that
Brisbane. In other words, Cordero had clearly been cut
it will, upon receipt of progress payments, pay to
off from the transaction until the arrival of the first
Pamana their full commission by telegraphic transfer to
SEACAT 25 which was sold through his efforts. When
an account nominated by Pamana within one to two
Cordero complained to Go, Robinson, Landicho and
days of [AFFA] receiving such payments.[50] Petitioner
Tecson about their acts prejudicial to his rights and
Go further maintains that he had not in any way violated
demanded that they respect his exclusive distributorship,
or caused the termination of the exclusive distributorship
Go simply let his lawyers led by Landicho and Tecson
agreement between Cordero and AFFA; he had also paid
handle the matter and tried to settle it by promising to
in full the first and only vessel he purchased from
pay a certain amount and to purchase high-speed
AFFA.[51]
catamarans through Cordero. However, Cordero was not
paid anything and worse, AFFA through its lawyer
 While it is true that a third person cannot
possibly be sued for breach of contract because only
parties can breach contractual provisions, a contracting
party may sue a third person not for breach but for
inducing another to commit such breach.
Article 1314 of the Civil Code provides:
Art. 1314. Any third person who
induces another to violate his contract
shall be liable for damages to the
other contracting party.
The elements of tort interference are: (1) existence of a
valid contract; (2) knowledge on the part of the third
person of the existence of a contract; and (3)
interference of the third person is without legal
justification.[52]
The presence of the first and second elements is not
disputed. Through the letters issued by Robinson
attesting that Cordero is the exclusive distributor of
AFFA in the Philippines, respondents were clearly aware
of the contract between Cordero and AFFA represented
by Robinson. In fact, evidence on record showed that
respondents initially dealt with and recognized Cordero
as such exclusive dealer of AFFA high-speed catamaran
vessels in the Philippines. In that capacity as exclusive
distributor, petitioner Go entered into the Memorandum
of Agreement and Shipbuilding Contract No. 7825 with
Cordero in behalf of AFFA.
As to the third element, our ruling in the case
of So Ping Bun v. Court of Appeals[53] is instructive, to
wit:
A duty which the law of torts is
concerned with is respect for the
property of others, and a cause of
action ex delicto may be predicated
upon an unlawful interference by one
person of the enjoyment by the other of
his private property. This may pertain to
a situation where a third person induces
a party to renege on or violate his
undertaking under a contract. In the
case before us, petitioners Trendsetter
Marketing asked DCCSI to execute lease
contracts in its favor, and as a result
petitioner deprived respondent
corporation of the latters property
right. Clearly, and as correctly viewed by
the appellate court, the three elements
of tort interference above-mentioned
are present in the instant case.
Authorities debate on whether
interference may be justified where the
defendant acts for the sole purpose of
furthering his own financial or economic
interest. One view is that, as a general
rule, justification for interfering with the
business relations of another exists
where the actors motive is to benefit
himself. Such justification does not exist
where his sole motive is to cause harm
to the other. Added to this, some
authorities believe that it is not
necessary that the interferers interest
outweigh that of the party whose rights
are invaded, and that an individual acts
under an economic interest that is
substantial, not merely de minimis, such
that wrongful and malicious motives are
negatived, for he acts in self-
protection. Moreover, justification for
protecting ones financial position should
not be made to depend on a comparison
of his economic interest in the subject
matter with that of others. It is
sufficient if the impetus of his conduct
lies in a proper business interest rather
than in wrongful motives.
As early as Gilchrist vs.
Cuddy, we held that where there
was no malice in the interference
of a contract, and the impulse
behind ones conduct lies in a
proper business interest rather
than in wrongful motives, a party
cannot be a malicious
interferer.Where the alleged interferer
is financially interested, and such
interest motivates his conduct, it cannot
be said that he is an officious or
malicious intermeddler.
In the instant case, it is clear that
petitioner So Ping Bun prevailed upon
DCCSI to lease the warehouse to his
enterprise at the expense of respondent
corporation. Though petitioner took
interest in the property of
respondent corporation and
benefited from it, nothing on
record imputes deliberate wrongful
motives or malice in him.
xxx
While we do not encourage tort
interferers seeking their economic
interest to intrude into existing contracts
at the expense of others, however, we
find that the conduct herein complained
of did not transcend the limits forbidding
 an obligatory award for damages in the
absence of any malice. The business
desire is there to make some gain to the
detriment of the contracting
parties. Lack of malice, however,
precludes damages. But it does not
relieve petitioner of the legal
liability for entering into contracts
and causing breach of existing
ones. The respondent appellate court
correctly confirmed the permanent
injunction and nullification of the lease
contracts between DCCSI and
Trendsetter Marketing, without
awarding damages. The injunction
saved the respondents from further
damage or injury caused by petitioners
interference.[54] [EMPHASIS SUPPLIED.]
Malice connotes ill will or spite, and speaks not
in response to duty. It implies an intention to do ulterior
and unjustifiable harm. Malice is bad faith or bad
motive.[55] In the case of Lagon v.
of Appeals,[56] we held that to sustain a case for tortuous
interference, the defendant must have acted with malice
or must have been driven by purely impure reasons to
injure the plaintiff; in other words, his act of interference
cannot be justified. We further explained that the word
induce refers to situations where a person causes
another to choose one course of conduct by persuasion
or intimidation. As to the allegation of private
respondent in said case that petitioner induced the heirs
of the late Bai Tonina Sepi to sell the property to
petitioner despite an alleged renewal of the original
lease contract with the deceased landowner, we ruled as
follows:
Assuming ex gratia argumenti that
petitioner knew of the contract, such
knowledge alone was not sufficient to
make him liable for tortuous
interference. x x x
Furthermore, the records do not
support the allegation of private
respondent that petitioner induced the
heirs of Bai Tonina Sepi to sell the
property to him. The word induce refers
to situations where a person causes
another to choose one course of
conduct by persuasion or
intimidation. The records show that the
decision of the heirs of the late Bai
Tonina Sepi to sell the property was
completely of their own volition and that
petitioner did absolutely nothing to
influence their judgment. Private
respondent himself did not proffer any
evidence to support his claim. In short,
even assuming that private respondent
was able to prove the renewal of his
lease contract with Bai Tonina Sepi, the
fact was that he was unable to prove
malice or bad faith on the part of
petitioner in purchasing the
property. Therefore, the claim of
tortuous interference was never
established.[57]
In their Answer, respondents denied having anything to
do with the unpaid balance of the commission due to
Cordero and the eventual termination of his exclusive
distributorship by AFFA. They gave a different version
of the events that transpired following the signing of
Shipbuilding Contract No. 7825. According to them,
several builder-competitors still entered the picture
after the said contract for the purchase of one (1)
SEACAT 25 was sent to Brisbane in July 1997 for
authentication, adding that the contract was to be
effective on August 7, 1997, the time when their funds
was to become available. Go admitted he called the
attention of AFFA if it can compete with the prices of
other builders, and upon mutual agreement, AFFA
Court
agreed to give them a discounted price under the
following terms and conditions: (1) that the contract
price be lowered; (2) that Go will obtain another vessel;
(3) that to secure compliance of such conditions, Go
must make an advance payment for the building of the
second vessel; and (4) that the payment scheme
formerly agreed upon as stipulated in the first contract
shall still be the basis and used as the guiding factor in
remitting money for the building of the first vessel. This
led to the signing of another contract superseding the
first one (1), still to be dated 07 August 1997. Attached
to the answer were photocopies of the second contract
stating a lower purchase price (US$1,150,000.00) and
facsimile transmission of AFFA to Go confirming the
transaction.[58]
As to the cessation of communication with Cordero, Go
averred it was Cordero who was nowhere to be
contacted at the time the shipbuilding progress did not
turn good as promised, and it was always Landicho and
Tecson who, after several attempts, were able to locate
him only to obtain unsatisfactory reports such that it
was Go who would still call up Robinson regarding any
progress status report, lacking documents for MARINA,
etc., and go to Australia for ocular inspection. Hence, in
May 1998 on the scheduled launching of the ship in
Australia, Go engaged the services of Landicho who
went to Australia to see to it that all documents needed
for the shipment of the vessel to the Philippines would
be in order. It was also during this time that Robinsons
request for inquiry on the Philippine price of a Wartsila
engine for AFFAs then on-going vessel construction,
was misinterpreted by Cordero as indicating that Go
was buying a second vessel.[59]
We find these allegations unconvincing and a mere vessel sold, attended to their concerns and spent no
afterthought as these were the very same averments measly sum for the trip to Australia with Go, Landicho
contained in the Position Paper for the Importer dated and Gos family members. But what is appalling is the
October 9, 1998, which was submitted by Go on behalf fact that even as Go, Landicho and Tecson secretly
of ACG Express Liner in connection with the complaint- negotiated with Robinson for the purchase of a second
affidavit filed by Cordero before the BOC-SGS Appeals vessel, Landicho and Tecson continued to demand and
Committee relative to the shipment valuation of the receive from Cordero their commission or cut
first SEACAT 25 purchased from AFFA.[60] It appears from Corderos earned commission from the sale of the
that the purported second contract superseding the first SEACAT 25.
original Shipbuilding Contract No. 7825 and stating a
lower price of US$1,150,000.00 (not US$1,465,512.00)
Cordero was practically excluded from the
was only presented before the BOC to show that the
transaction when Go, Robinson, Tecson and Landicho
vessel imported into the Philippines was not
suddenly ceased communicating with him, without
undervalued by almost US$500,000.00. Cordero
giving him any explanation. While there was nothing
vehemently denied there was such modification of the
objectionable in negotiating for a lower price in the
contract and accused respondents of resorting to
second purchase of SEACAT 25, which is not prohibited
falsified documents, including the facsimile transmission
by the Memorandum of Agreement, Go, Robinson,
of AFFA supposedly confirming the said sale for only
Tecson and Landicho clearly connived not only in
US$1,150,000.00. Incidentally, another document filed
ensuring that Cordero would have no participation in
in said BOC case, the Counter-Affidavit/Position Paper
the contract for sale of the second SEACAT 25, but also
for the Importer dated November 16, 1998,[61] states in
that Cordero would not be paid the balance of his
paragraph 8 under the Antecedent facts thereof, that --
commission from the sale of the first SEACAT 25. This,
despite their knowledge that it was commission already
8. As elsewhere stated, the total
earned by and due to Cordero. Thus, the trial and
remittances made by herein Importer
appellate courts correctly ruled that the actuations of
to AFFA does not alone represent the
Go, Robinson, Tecson and Landicho were without legal
purchase price for Seacat 25. It
justification and intended solely to prejudice Cordero.
includes advance payment for
the acquisition of another vessel
as part of the deal due to the The existence of malice, ill will or bad faith is a
discounted price.[62] factual matter. As a rule, findings of fact of the trial
court, when affirmed by the appellate court, are
conclusive on this Court.[63] We see no compelling
which even gives credence to the claim of Cordero that
reason to reverse the findings of the RTC and the CA
respondents negotiated for the sale of the second
that respondents acted in bad faith and in utter
vessel and that the nonpayment of the remaining two
disregard of the rights of Cordero under the exclusive
(2) instalments of his commission for the sale of the
distributorship agreement.
first SEACAT 25 was a result of Go and Landichos
directly dealing with Robinson, obviously to obtain a
lower price for the second vessel at the expense of The failure of Robinson, Go, Tecson and
Cordero. Landico to act with fairness, honesty and good faith in
securing better terms for the purchase of high-speed
catamarans from AFFA, to the prejudice of Cordero as
The act of Go, Landicho and Tecson in inducing
the duly appointed exclusive distributor, is further
Robinson and AFFA to enter into another contract
proscribed by Article 19 of the Civil Code:
directly with ACG Express Liner to obtain a lower price
for the second vessel resulted in AFFAs breach of its
Art. 19. Every person must, in
contractual obligation to pay in full the commission due
the exercise of his rights and in the
to Cordero and unceremonious termination of Corderos
performance of his duties, act with
appointment as exclusive distributor. Following our
justice, give everyone his due, and
pronouncement in Gilchrist v. Cuddy (supra), such act
observe honesty and good faith.
may not be deemed malicious if impelled by a proper
business interest rather than in wrongful motives. The
attendant circumstances, however, demonstrated that As we have expounded in another case:
respondents transgressed the bounds of permissible
financial interest to benefit themselves at the expense Elsewhere, we explained that when a
of Cordero. Respondents furtively went directly to right is exercised in a manner which
Robinson after Cordero had worked hard to close the does not conform with the norms
deal for them to purchase from AFFA two (2) SEACAT enshrined in Article 19 and results in
25, closely monitored the progress of building the first damage to another, a legal wrong is
 thereby committed for which the
wrongdoer must be responsible. The
object of this article, therefore, is to set
certain standards which must be
observed not only in the exercise of
ones rights but also in the performance
of ones duties. These standards are the
following: act with justice, give
everyone his due and observe honesty
and good faith. Its antithesis,
necessarily, is any act evincing bad faith
or intent to injure. Its elements are the
following: (1) There is a legal right or
duty; (2) which is exercised in bad faith;
(3) for the sole intent of prejudicing or
injuring another. When Article 19 is
violated, an action for damages is
proper under Articles 20 or 21 of the
Civil Code. Article 20 pertains to
damages arising from a violation of
law x x x. Article 21, on the other hand,
states:
Art. 21. Any person
who willfully 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.
Article 21 refers to acts contra bonus
mores and has the following elements:
(1) There is an act which is legal; (2)
but which is contrary to morals, good
custom, public order, or public policy;
and (3) it is done with intent to injure.
A common theme runs through
Articles 19 and 21, and that is, the act
complained of must be intentional.[64]
Petitioner Gos argument that he, Landicho and
Tecson cannot be held liable solidarily with Robinson for
actual, moral and exemplary damages, as well as
attorneys fees awarded to Cordero since no law or
contract provided for solidary obligation in these
cases, is equally bereft of merit. Conformably with
Article 2194 of the Civil Code, the responsibility of two or
more persons who are liable for the quasi-delict is
solidary.[65] In Lafarge Cement Philippines, Inc. v.
Continental Cement Corporation,[66] we held:
[O]bligations arising from tort are, by
their nature, always solidary. We have
assiduously maintained this legal
principle as early as 1912
in Worcester v. Ocampo, in which we
held:
x x x The difficulty in the
contention of the appellants is
that they fail to recognize that
the basis of the present action
is tort. They fail to recognize the
universal doctrine that each
joint tort feasor is not only
individually liable for the tort in
which he participates, but is
also jointly liable with his tort
feasors. x x x
It may be stated as a general
rule that joint tort feasors are all
the persons who command,
instigate, promote, encourage,
advise, countenance, cooperate
in, aid or abet the commission
of a tort, or who approve of it
after it is done, if done for their
benefit. They are each liable
as principals, to the same
extent and in the same
manner as if they had
performed the wrongful act
themselves. x x x
Joint tort feasors are jointly and
severally liable for the tort
which they commit. The persons
injured may sue all of them or
any number less than all. Each
is liable for the whole damages
caused by all, and all together
are jointly liable for the whole
damage. It is no defense for
one sued alone, that the others
who participated in the wrongful
act are not joined with him as
defendants; nor is it any excuse
for him that his participation in
the tort was insignificant as
compared to that of the others.x
xx
Joint tort feasors are not
liable pro rata. The damages
can not be apportioned among
them, except among
themselves.They cannot insist
upon an apportionment, for the
purpose of each paying an
aliquot part. They are jointly
and severally liable for the
whole amount. x x x

A payment in full for the
damage done, by one of the
joint tort feasors, of course
satisfies any claim which might
exist against the others. There
can be but satisfaction. The
release of one of the joint tort
feasors by agreement generally
operates to discharge all. x x x
Of course, the court during trial
may find that some of the
alleged tort feasors are liable
and that others are not
liable.The courts may release
some for lack of evidence while
condemning others of the
alleged tort feasors. And this is
true even though they are
charged jointly and
severally.[67] [EMPHASIS
SUPPLIED.]
The rule is that the defendant found guilty of
interference with contractual relations cannot be held
liable for more than the amount for which the party
who was inducted to break the contract can be held
liable.[68] Respondents Go, Landicho and Tecson were
therefore correctly held liable for the balance of
petitioner Corderos commission from the sale of the
first SEACAT 25, in the amount of US$31,522.09 or its
peso equivalent, which AFFA/Robinson did not pay in
violation of the exclusive distributorship agreement,
with interest at the rate of 6% per annum from June
24, 1998 until the same is fully paid.
Respondents having acted in bad faith, moral
damages may be recovered under Article 2219 of
the Civil Code.[69] On the other hand, the requirements
of an award of exemplary damages are: (1) they may
be imposed by way of example in addition to
compensatory damages, and only after the claimants
right to them has been established; (2) that they
cannot be recovered as a matter of right, their
determination depending upon the amount of
compensatory damages that may be awarded to the
claimant; and (3) the act must be accompanied by bad
faith or done in a wanton, fraudulent, oppressive or
malevolent manner.[70] The award of exemplary
damages is thus in order. However, we find the sums
awarded by the trial court as moral and exemplary
damages as reduced by the CA, still excessive under
the circumstances.
Moral damages are meant to compensate and
alleviate the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar
injuries unjustly caused. Although incapable of pecuniary
estimation, the amount must somehow be proportional
to and in approximation of the suffering inflicted. Moral
damages are not punitive in nature and were never
intended to enrich the claimant at the expense of the
defendant. There is no hard-and-fast rule in determining
what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own
peculiar facts. Trial courts are given discretion in
determining the amount, with the limitation that it
should not be palpably and scandalously excessive.
Indeed, it must be commensurate to the loss or injury
suffered.[71]
We believe that the amounts of P300,000.00
and P200,000.00 as moral and exemplary damages,
respectively, would be sufficient and
reasonable. Because exemplary damages are awarded,
attorneys fees may also be awarded in consonance with
Article 2208 (1).[72] We affirm the appellate courts
award of attorneys fees in the amount of P50,000.00.
WHEREFORE, the petitions are DENIED. The
Decision dated March 16, 2004 as modified by the
Resolution dated July 22, 2004 of the Court of Appeals
in CA-G.R. CV No. 69113 are
hereby AFFIRMED with MODIFICATION in that the
awards of moral and exemplary damages are hereby
reduced to P300,000.00 and P200,000.00, respectively.
With costs against the petitioner in G.R. No. 164703.
SO ORDERED.
F. PRESUMPTION OF NEGLIGENCE
 ART. 2185, 2188, 2190-2193 NCC
PERSONS LIABLE
A. TORTFEASOR
 Art. 2176, 2181, 2194 NCC :
G.R. No. L-5932 February 27, 1912
DEAN C. WORCESTER, plaintiff-appellee, vs.
MARTIN OCAMPO, TEODORO M. KALAW, LOPE K.
SANTOS, FIDEL A. REYES, FAUSTINO AGUILAR,
ET AL.,defendants-appellants.
On the 23rd day of January, 1909, the plaintiff
commenced an action against the defendants in the
Court of First Instance of the city of Manila, for the
purpose of recovering damages resulting from an
alleged libelous publication. The complaint was in the
following language:
COMPLAINT.
I. That the plaintiff as well as the defendants
are residents of the city of Manila, Philippine
Islands.
II. That for a long time before the 30th of
October, 1908, the defendants, Martin
Ocampo, Teodoro M. Kalaw, Lope K. Santos,
Fidel A. Reyes, Faustino Aguilar, Leoncio G.
Liquete , Manuel Palma, Arcadio Arellano,
Angel Jose, Galo Lichauco, Felipe Barretto,
and Gregorio M. Cansipit, were the owners,
directors, writers (redactores), editors
(editores) and administrators of a certain
daily newspaper known as "El Renacimiento"
and "Muling Pagsilang," which newspaper
during all the time mentioned in this
complaint was published and circulated daily
in the Spanish and Tagalog languages in the
city of Manila, having a large circulation
throughout the Philippine Islands.
III. That for a long time the defendants have
been maliciously persecuting and attacking
the plaintiff in said newspaper, until at last
on the 30th of October, 1908, with the
malicious intention of injuring the plaintiff,
who on said date was, and still is a member
of the Civil Commission of the Philippines
and Secretary of the Interior in the
Government of the Philippines, they
attacked the honesty and reviled the fame
of the plaintiff, not only as a private person
but also as an official of the Government of
the Philippine Islands, and with the object of
exposing him to the odium, contempt, and
ridicule of the public, printed, wrote
(redactaron), and published in said
newspaper in its ordinary number of the
30th of October, 1908, a malicious
defamation and false libel which was
injurious (injurioso) to the plaintiff, said libel
reading as follows:
"EDITORIAL.
"BIRDS OF PREY.
"On the surface of the globe some were born to eat and
devour, others to be eaten and devoured.
"Now and then the latter have bestirred themselves,
endeavoring to rebel against an order of things which
makes them the prey and food of the insatiable voracity
of the former. At times they have been fortunate,
putting to flight the eaters and devourers, but in the
majority of cases they did not obtain but a change of
name or plumage.
"The situation is the same in all the spheres of creation:
the relation between the ones and the others is that
dictated by the appetite and the power to satisfy it at
the fellow-creatures' expense.
"Among men it is very easy to observe the development
of this daily phenomenon. And for some psychological
reason the nations who believe themselves powerful
have taken the fiercest and most harmful creatures as
emblems; it is either the lion, or the eagle, or the
serpent. Some have done so by a secret impulse of
affinity and others in the nature of simulation, of
infatuated vanity, making themselves appear that which
they are not nor ever can be.
"The eagle, symbolizing liberty and strength, is the bird
that has found the most adepts. And men, collectively
and individually, have desired to copy and imitate the
most rapacious bird in order to triumph in the plundering
of their fellow-men.
"There are men who, besides being eagles, have the
characteristics of the vulture, the owl and the vampire.
"Ascending the mountains of Benguet to classify and
measure the skulls of the Igorots and study and civilize
them and to espy in his flight, with the eye of the bird of
prey, where are the large deposits of gold, the prey
concealed amidst the lonely mountains, to appropriate
them to himself afterwards, thanks to legal facilities
made and unmade at will, but always for his own
benefit.
"Authorizing, despite laws and ordinances, an
illegal slaughtering of diseased cattle in order to
derive benefit from the infected and putrid meat
which he himself was obliged to condemn by
virtue of his official position.
"Presenting himself on all occasions with the
wrinkled brow of the scientist who consumes his
life in the mysteries of the laboratory of science,
when his whole scientific labor is confined o
dissecting insects and importing fish eggs, as if
the fish eggs of this country were less
nourishing and less savory, so as to make it
worth the while replacing them with species
coming from other climes.
 "Giving an admirable impulse to the discovery of
wealthy lodes in Mindoro, in Mindanao, and in
other virgin regions of the Archipelago, with the
money of the people, and under the pretext of
the public good, when, as a strict matter of
truth, the object is to possess all the data and
the key to the national wealth for his essentially
personal benefit, as is shown by the acquisition
of immense properties registered under he
names of others.
"Promoting, through secret agents and partners,
the sale to the city of worthless land at fabulous
prices which the city fathers dare not refuse,
from fear of displeasing the one who is behind
the motion, and which they do not refuse for
their own good.
"Patronizing concessions for hotels on filled-in-
land, with the prospects of enormous profits, at
the expense of the blood of the people.
"Such are the characteristics of the man who is
at the same time an eagle who surprises and
devours, a vulture who gorges himself on the
dead and putrid meats, an owl who affects a
petulent omniscience and a vampire who silently
sucks the blood of the victim until he leaves it
bloodless.
"It is these birds of prey who triumph. Their
flight and their aim are never thwarted.
"Who will detain them?
"Some share in the booty and the plunder.
Others are too weak to raise a voice of protest.
And others die in the disconsolating destruction
of their own energies and interests.
"And then there appears, terrifying, the
immortal legend:
"MANE, TECEL, PHARES."
IV. That the plaintiff was, on the date of said
publication, and still is, well known to the
officials of the Government of the Philippine
Islands, and to the inhabitants of the
Philippine Islands, and to public in general,
personally as well as a member of the Civil
Commission of the Philippines and as
Secretary of the Interior, and the
defamation and libel, and the words, terms
and language used in said defamation and
libel were employed by the said defendants
with the intention of indicating the said
plaintiff, and that should be understood, as
in effect they were understood, by the
public officials of the Government and the
inhabitants of the Philippine Islands in
general, as referring to the plaintiff, by
reason of the publicly known fact that said
plaintiff in compliance with his duties in his
position as such member of the Civil
Commission of the Philippines and as such
Secretary of the Interior of the Philippine
Islands, ascended on a previous occasion
the mountains of the Province of Benguet to
study the native tribe known as Igorot,
residing in said region; by reason of the
publicly known fact that in the said
mountains of Benguet there exist large
deposits of gold, and for the reason that, as
member of the Civil Commission of the
Philippines, which is the legislative body of
the Philippine Islands, the plaintiff takes part
in the enactment and repealing of laws in
said Islands; by reason furthermore of the
fact, publicly known, that the plaintiff, as
such Secretary of the Interior of the
Philippine Islands, has had under his
direction and control the enforcement of the
laws of the Philippine Islands and the
ordinances of the city of Manila relating to
the slaughtering of cattle; by reason
furthermore of the fact, publicly known that
said plaintiff, as such Secretary of the
Interior of the Philippine Islands, had under
his direction and control the Bureau of
Science of the Government of the Philippine
Islands, and he is generally known as a man
devoted to the study of science; by reason
furthermore of the publicly known fact that
the said plaintiff, as such Secretary of the
Interior of the Philippine Islands, at a
previous time, caused the importation into
the Philippine Islands of fish eggs for the
purpose of supplying the mountain streams
of the Philippine Islands with fish-
hatcheries; by reason furthermore of the
publicly known fact that said plaintiff, as
such Secretary of the Interior of the
Philippine Islands, has journeyed to and
explored the Islands of Mindoro, Mindanao,
and other regions of the Philippine
Archipelago; by reason furthermore of the
publicly known fact that said plaintiff, as
such Secretary of the Interior of the
Philippine Islands, at one time investigated
and prepared a report for the Civil
Commission of the Philippines in regard to a
certain proposition for the purchase of a
parcel of land for the city of Manila; by
reason furthermore of the publicly known
fact that said plaintiff, as member of said
Civil Commission of the Philippines together
 with the other members of said legislative
body, once opened negotiations with a
certain firm engaged in the hotel business in
regard to the location of a prospective hotel
on one of the filled-in lands of the city of
Manila.
That said defendants charged said plaintiff with
the prostitution of his office as member of the
Civil Commission of the Philippines and as
Secretary of the Interior of said Islands, for
personal ends; with wasting public funds for the
purpose of promoting his personal welfare; with
the violation of the laws of the Philippine Islands
and the ordinances of the city of Manila; with
taking part in illegal combinations for the
purpose of robbing the people; with the object
of gain for himself and for others; and lastly
with being "a bird of prey;" and that said
defamation should be understood, as in effect it
was understood, by the public officials of the
Government and the people of the Philippine
Islands in general, as charging the said plaintiff
with the conduct, actions and things above
specified; all of which allegations relating to the
character and conduct of the said plaintiff, as
above stated, were and are false and without
any foundation whatsoever.
That said defamation and libel were published
by the defendants under a heading in large and
showy type, and every effort made by said
defendants to see that said defamation and libel
should attract the attention of the public and be
read by all the subscribers to said newspaper
and the readers of the same.
V. Besides assailing the integrity and reviling
the reputation of the plaintiff, said
defendants, in publishing the said libel, did
so with the malicious intention of inciting
the Filipino people to believe that the
plaintiff was a vile despot and a corrupt
person, unworthy of the position which he
held, and for this reason to oppose his
administration of the office in his charge as
Secretary of the Interior, and in this way
they endeavored to create enormous
difficulties for him in the performance of his
official duties, and to make him so
unpopular that he would have to resign his
office as member of the Civil Commission of
the Philippines and Secretary of the Interior.
In fact said defendants, by means of said libel
and other false statements in said mentioned
newspaper, have been deliberately trying to
destroy the confidence of the public in the
plaintiff and to incite the people to place
obstacles in his way in the performance of his
official duties, in consequence of which the
plaintiff has met with a great many difficulties
which have increased to a great extent his
labors as a public official in every one of the
Departments.
VI. And for all these reasons the plaintiff
alleges: That he has been damaged and is
entitled to an indemnity for the additional
work to which he has been put, by the said
defendants, in the compliance of his duties,
both in the past and the future, as well as
for the injuries to his reputation and
feelings, in the sum of fifty thousand pesos
(P50,000) Philippine currency, and besides
this said amount he is entitled to collect
from the defendants the additional sum of
fifty thousand pesos (P50,000) Philippine
currency, in the way of punitive damages,
as a warning to the defendants.
Wherefore the plaintiff files this complaint,
praying the court:
(1) That the defendants be summoned
according to law.
(2) That judgment be rendered ordering the
defendants to pay the damages as above stated,
and the costs of the action.
On the 23d of February, 1909, the defendants presented
the following demurrer to the said complaint:
DEMURRER.
Now come the defendants, through their
undersigned attorney, and demur to the
complaint filed herein, upon the following
grounds:
First, That the complaint is vague and
unintelligible.
Second. That the facts alleged in the complaint
do not constitute a cause or right of action.
Third. That there is another action pending
between the plaintiff and several of the
defendants for the same cause; and
Fourth. That some of the defendants have been
erroneously included therein.
Therefore, they respectfully ask the court to
dismiss the complaint, with costs against the
plaintiff.
On the 27th of February, 1909, the Honorable Charles S.
Lobingier, judge, overruled said demurrer in the
following decision, to which the defendants duly
excepted:
ORDER.
The defendant demur upon several grounds:
(1) The first ground is that the complaint is
vague and unintelligible and this is directed
principally to paragraph 2, in which it is alleged
that the defendants were "dueños, directores,
redactores", etc., but it is not alleged that they
were such simultaneously. If this were the sole
averment of the defendants' connection with the
alleged libel, the objection might be well taken,
but paragraph 3 of the complaint alleges that
the defendants "imprimieron, redactaron y
publicaron", etc., the article complained of.
Under section 2 of Act 277 "every person" who
"publishes or procures to be published any belief
is made responsible. (Cf. U.S. vs. Ortiz, 8 Phil.
Rep., 752.) We think, therefore, that the
connection of the defendants with the
publication complained of is sufficiently charged.
(2) It is also claimed that the facts alleged are
not sufficient to state a cause of action and it is
urged in support of this that the article
complained of and which is copied in the
complaint, fails to mention the plaintiff or to
show on its face that it refers to him. It is,
however, specifically alleged in paragraph 4 that
the article was intended to refer to the plaintiff
and was so understood by the public, and this
allegation is admitted by the demurrer. Under
the rule announced in Causin vs. Jakosalem (5
Phil. Rep., 155), where the words complained of
do refer to the plaintiff "an action for libel may
be maintained even though the defamatory
publication does not refer to the plaintiff by
name."
(3) It is further argued that there is another
action pending between the parties for the same
cause. This, it is true, is made a ground for
demurrer by the Code of Civil Procedure, sec. 91
(3), but like all grounds therein mentioned, it
must "appear upon the face" of the pleading
objected to, and where it does not so appear
"the objection can only be taken by answer."
(Code C. P., sec. 92.) There is no averment in
the complaint which indicates that there is no
another action pending.
The fourth ground of the demurrer is not one
recognized by law (Code C. P., sec. 91) nor do
we find anything in Sanidad vs. Cabotaje (5 Phil.
Rep., 204) which would necessitate any change
in the views already expressed.
The demurrer is, therefore, overruled and
defendants are given the usual five days to
answer.
On the 15th day of November, 1909, the defendants
presented their amended answer, which was as follows:
ANSWER.
The defendants in the above-entitled cause,
through their undersigned attorney, by their
answer to the complaint, state:
That the defendants deny generally the
allegation of the complaint.
As a special defense, the defendants allege:
First. That the plaintiff has no legal capacity to
institute this action, as it clearly appears from
the allegations of the complaint and which the
defendants hereby deny.
Second. That the facts are set out as
constituting cause of action in the complaint, are
insufficient to constitute such cause of action in
favor of the plaintiff and against the defendants.
Third. That the said complaint is manifestly
improper, for the reason that there is now
pending in the Court of First Instance of this city
a criminal cause, No. 4295, for the crime of libel
against the defendants herein, Martin Ocampo,
Teodoro M. Kalaw, and Fidel A. Reyes, both
actions, criminal and civil, being based upon the
same facts which the plaintiffs herein, who is
also a party to the said criminal action, now
alleges as the basis of his action.
Fourth. That the civil action in the above-entitled
cause has been extinguished for the reason that
plaintiff did not expressly reserve the right to
enforce the same in the aforesaid cause 4295,
for the crime of libel, after the said criminal
cause had been finally disposed of.
Fifth. That the defendants, Lope K. Santos,
Faustino Aguilar, Leoncio G. Liquete, Manuel
Palma, Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio M.
Cansipit, were erroneously included in the
complaint for the simple reason that the first
two were acquitted in said criminal cause No.
 4295, for libel, the third was used as a witness
for the prosecution in the said criminal cause,
and the others have no interest, either directly
or indirectly, in the newspaper "El Renacimiento"
in which it is alleged by the plaintiff the editorial,
which is the basis of the complaint, and which it
is claimed to be libelous, was published.
Wherefore the defendants pray that they be
acquitted of the complaint, with the costs
against the plaintiff.
After hearing the evidence adduced during the trial of
the cause, the arguments if the respective attorneys, the
Honorable James C. Jenkins, judge, on the 14th of
January, 1910, rendered the following decision:
DECISION.
This is a civil action sounding in damages to the
amount of P100,000 for an alleged libel of the
plaintiff by the defendants.
The plaintiff is the Honorable Dean C.
Worcester, a member of the Civil Commission of
the Philippine Islands, and Secretary of the
Interior of Insular Government. The defendants
are twelve persons designated by name in the
complaint and alleged therein to be the owners,
directors, writers (redactores), editors
(editores), and administrators of a certain daily
newspaper known as "El Renacimiento" and
"Muling Pagsilang," which defendants, as well as
the plaintiff, are residents of the city of Manila,
Philippine Islands.
It is further alleged in the complaint that for a
long time prior to the 30th of October, 1908, the
defendants were the owners, directors, writers,
editors, and administrators of said daily
newspaper, and that said newspaper, during all
the time mentioned in the complaint, was
published and circulated daily in the Spanish and
Tagalog languages in the city of Manila, having
a large circulation throughout the Philippine
Islands.
It is also alleged that for a long time the
defendants had been maliciously persecuting
and attacking the plaintiff in said newspaper,
until at last, on said date, with the malicious
intention of injuring the plaintiff who then was
still is a member of the Civil Commission of the
Philippines and Secretary of the Interior in the
Government of the Philippines, they attacked
the integrity and reviled the reputation of the
plaintiff, not only as a private citizen, but also as
an official of the Government of the Philippine
Islands; and with the object of exposing him to
the odium, contempt, and ridicule of the public,
they wrote, printed, and published in said
newspaper in its ordinary number of the said
30th of October, 1908, a malicious defamation
and false libel, which was injurious to the
plaintiff, said libel, as translated from the
Spanish, reading as follows:
"EDITORIAL.
"BIRDS OF PREY.
"On the surface of the globe some were born to
eat and devour, others to be eaten and
devoured.
"Now and then the latter have bestirred
themselves, endeavoring to rebel against an
order of things which makes them the prey and
food of the insatiable voracity of the former. At
times they have been fortunate, putting to flight
the eaters and devourers, but in a majority of
cases they do not obtain anything but a change
of name or plumage.
"The situation is the same in all spheres
of creation; the relation between the
ones and the others is that dictated by
the appetite and the power to satisfy it
at the fellow-creature's expense.
"Among men it is easy to observe the
development of this daily phenomenon.
And for some psychological reason the
nations who believe themselves
powerful have taken the fiercest and
most harmful creatures as emblems; it
is either the lion, or the eagle, or the
serpent. Some have done so by a secret
impulse of affinity and others in the
nature of simulation, of infatuated
vanity, making themselves appear that
which they are not nor ever will be.
"The eagle, symbolizing liberty and
strength, is the bird that has found the
most adepts. And men, collectively and
individually, have desired to copy and
imitate the most rapacious bird in order
to triumph in the plundering if their
fellow-men.
"There are men who, besides being
eagles, have the characteristics of the
vulture, the owl and the vampire.
"Ascending the mountains of Benguet to
classify and measure the skulls of the
Igorots and study and civilize them, and
to espy in his flight with the eye of the
bird of prey, where are the large
deposits of gold, the prey concealed
amongst the lonely mountains, to
appropriate them to himself afterwards,
thanks to legal facilities made and
unmade at will, but always for his own
benefit.
"Authorizing, despite laws and
ordinances an illegal slaughtering of
diseased cattle in order to derive benefit
from the infected and putrid meat which
he himself was obliged to condemn by
virtue of his official position.
"Presenting himself on all occasions with
the wrinkled brow of the scientist who
consumes his life in the mysteries of the
"MANE, TECEL, PHARES."
laboratory of science, when his whole
scientific labor is confined to dissecting
insects and importing fish eggs, as if the
fish eggs of this country were less
nourishing and savory, so as to make it
worth the while replacing them with
species coming from other climes.
"Giving an admirable impulse to the
discovery of wealthy lodes in Mindanao,
in Mindoro, and in other virgin regions
of the archipelago, with the money of
the people, and under the pretext of the
public good, when, as a strict matter of
truth, the object is to possess all the
data and the key to the national wealth
for his essentially personal benefit, as is
shown by the acquisition of immense
properties registered under the names
of others.
"Promoting through secret agents and
partners, the sale of the city worthless
land at fabulous prices which the city
fathers dare not refuse from fear of
displeasing the one who is behind the
motion, and which they do not refuse to
their own good.
"Patronizing concessions for hotels on
filled-in lands, with the prospects of
enormous profits, at the expense of the
blood of the people.
"Such are the characteristics of the man
who is at the same time an eagle who
surprises and devours, a vulture who
gorges himself on the dead and putrid
meats, an owl who affects a petulant
omniscience and a vampire who silently
sucks the blood of the victim until he
leaves it bloodless.
"It is these birds of prey who triumph.
Their flight and aim are never thwarted.
"Who will detain them?
"Some share in the body and plunder,
Others are too weak to raise a voice to
protest. And others die in the
disconsolating destruction of their own
energies and interests.
"And then there appears, terrifying, the
immortal legend:
It is alleged, among other things, in paragraph
four of the complaint, that the plaintiff was on
the date of said publication, and still is, well
known to the officials of the Government of the
Philippine Islands, and to the inhabitants of the
Philippine Islands, and to the public generally,
personally as well as a member of the Civil
Commission of the Philippines and as a
Secretary of the Interior; and the defamation
and libel, and the words, terms, and language
used in said defamation and libel were employed
by the said defendants with the intention of
indicating the said plaintiff, and that they should
be understood, as in fact they were understood,
by the public officials of the Government and the
inhabitants of the Philippine Islands in general,
as referring to the plaintiff. (Here follow the
reasons for saying the editorial referred to
plaintiff and why the public understood it as
referring to him.)
The said defendants charged plaintiff with the
prostitution of his office as a member of the Civil
Commission of the Philippines and as Secretary
of the Interior of said Islands, for personal ends;
with wasting public funds for the purpose of
promoting his personal welfare; and with the
violation of the laws of the Philippine Islands
and the ordinances of the city of Manila; with
taking part in illegal combination of the purpose
of robbing the people, with the object of gain
for himself and for others; and lastly, with being
a bird of prey, and that said defamation should
be understood, as in effect it was understood by
the public officials of the Government and the
people of the Philippine Islands in general, as
charging the said plaintiff with the conduct,
actions and things above specified; all of which
allegations relating to the character and conduct
of the said plaintiff, as above stated, were and
are false and without any foundation whatever.
That said defamation and libel were published
by the defendants under a heading in large and
showy type, and every effort was made by said
defendant to see that said defamation and libel
should attract the attention of the public and be
read by all the subscribers to said newspaper
and the readers of the same.
In paragraph five of the complaint it is further
alleged that, besides assailing the integrity and
reviling the reputation of the plaintiff, said
defendants, in publishing said libel, did so with
the malicious intention of inciting the Filipino to
believe that the plaintiff was a vile despot and a
corrupt person, unworthy of the position which
he held, and for this reason to oppose of his
administration of the office in his charge as
Secretary of the Interior, and in this way they
endeavored to create enormous difficulties for
him in the performance of his official duties, and
to make him so unpopular that he would have to
resign his office as a member of the Civil
Commission of the Philippines and Secretary of
the Interior. In fact, said defendants, by means
of said libel and other false statements in said
mentioned newspaper, have been deliberately
trying to destroy the confidence of the public in
the plaintiff, and to in incite the people to place
obstacles in his way in the performance of his
official duties, in consequence of which said
plaintiff has met with a great many difficulties
which have increased to a great extent his
labors as a public official in every one of the
Departments.
And the allegations end with paragraph six, in
which the plaintiff states that for all these
reasons has been damaged and is entitled to an
indemnity for the additional work to which he
has been put by said defendants in compliance
with his duties, both in the past and in the
future, as well as for the injuries to his
reputation and feelings, in the sum, of P50,000,
and that besides this said amount he is entitled
to collect from the defendants the additional
sum of fifty thousand pesos in the way of
punitive damages, as a warning to the
defendants.
The complaint concludes with a prayer, among
other things, that judgment be rendered
ordering the defendants to pay the damages as
above stated and the costs of the action; and is
dated and signed, Manila, P.I., January 23,
1909, Hartigan and Rohde, Kincaid and Hurd,
attorneys for plaintiff.
A demurrer to this complaint was filed by the
defendants, through their attorney, Sr. Felipe
Agoncillo, which demurrer was heretofore heard
and overruled by the Court, and the defendants
required to answer. Accordingly, the defendants
within the prescribed time, filed their answer;
and on November 16, 1909, through their
attorney, filed and amended answer, which is as
follows (after stating the case):
The defendants in the above-entitled
action, through their undersigned
attorney, answering the complaint,
state: That they make a general denial
of the allegations in the complaint, and
as a special defense allege:
"(1) That the plaintiff lacks the necessary
personality to institute the complaint in
question, as evidently appears from the
allegations in the same, and which the
defendants deny;
"(2) That the facts set forth as a cause of action
in the complaint are insufficient to constitute a
cause of action in favor of the plaintiff and
against the defendants;
"(3) That the said complaint is in every sense
contrary to law, criminal case No. 4295, for libel,
against the defendants Martin Ocampo, Teodoro
M. Kalaw, and Fidel A. Reyes, in the Court of
First Instance of this city, being still pending,
inasmuch as both causes, criminal and civil, are
based upon the same facts which the plaintiff,
who is also interested in said criminal cause,
considers a cause of action;
"(4) That the civil action in the above-entitled
cause has been destroyed as a consequence of
the fact that the plaintiff did not expressly
reserve his right to the same in the said
mentioned cause No. 4295 for libel, in order to
exercise it after the termination of said criminal
cause:
"(5) That the defendants Lope K. Santos,
Faustino Aguilar, Leoncio G. Liquete, Manuel
Palma, Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio M.
Cansipit have been erroneously included in the
complaint, for the simple reason that the first
two were acquitted in said cause No. 4295 for
libel, the third was used as a witness by the
prosecution in the same cause, and the latter
ones have no interest, directly or indirectly, in
the newspaper "El Renacimiento," in which the
plaintiff presumes, was published the editorial
which forms the basis of the complaint, and
which is said to be libelous; and concluding with
a prayer to the court to dismiss the case, with
cost against the plaintiff."
The second paragraph of this "special defense"
is nothing other than a general demurrer to the
complaint, which has been overruled, as already
stated.
The first paragraph is not clearly stated, but the
court construes it as meaning a simple denial
that the plaintiff is the person referred to in the
alleged libelous article "Birds of Prey," which
issue is sufficiently raised by the general denial
of the allegations in the complaint.
The third paragraph is not a valid defense in
law, for the simple reason that section 11 of Act
277 of the Philippine Commission, under which
this suit is brought, especially provides for a
separate civil action for damages, as well as for
a criminal prosecution. (See Mr. Justice
Johnson's recent decision.) This third paragraph
is therefore without merit; and the same may be
said of the fourth paragraph thereof. As to
paragraph five, it contains no material averment
which could not have been set up and insisted
upon under the general issue.
One part if this so-called special defense is
therefore a demurrer already and adjudicated,
another part is covered by the general issue,
and the residue is without merit as a legal
defense, and might have been stricken out. The
defense is therefore tantamount to the general
issue only, there being no special plea that
these charges are true, nor any plea of
justification.
The trial of this case on its merits began
November 16, and ended December 10, 1909,
and the proceedings and evidence introduced
are to be found in the exhibits and stenographic
notes taken by the court's official reporter. At
the trial Judge Kincaid said Major Hartigan
appeared for the plaintiff and Señores Agoncillo,
Cruz Herrera, and Ferrer for the defendants.
After hearing the testimony and arguments of
counsel and a due consideration of the case, the
court finds the following facts established by the
admissions and a decided preponderance of the
evidence:
That the defendants Martin Ocampo, Manuel
Palma, Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio M.
Cansipit, seven in number, are the proprietors
and owners of the said daily newspaper known
as "El Renacimiento" and "Muling Pagsilang,"
and that "El Renacimiento" and "Muling
Pagsilang," are one and the same newspaper,
owned, managed, printed and published by the
same persons; that Teodoro M. Kalaw and Lope
K. Santos were the editors in chief of directors
of this paper on the 30th of October, 1908, and
that said nine defendants named were the
owners, editors, proprietors, managers and
publishers of said newspaper on said 30th of
October, 1908, for a long time prior thereto, and
during all the time mentioned in the complaint.
As to the defendants, Reyes, Aguilar, and
Liquete, they appear from the evidence to have
been editors of said paper, but in subordinate
position to the chief editors or directors, Kalaw
and Santos, and to have acted under the
direction of their latter two defendants.
The court further finds that every essential or
material allegation of the complaint is true
substantially as therein stated, with the
exception noted to Fidel A. Reyes, Faustino
Aguilar, and Leoncio G. Liquete, and as may be
hereinafter indicated. The case is therefore
dismissed as to these three defendants.
The only serious contention of the defense is (1)
that the editorial "Birds of Prey" does not refer
to a determinate person; and (2) that,
conceding that it does refer to the plaintiff, none
of the defendants, except Teodoro M. Kalaw, is
responsible for the writing, printing, or
publication of the alleged libelous article of the
damages to the plaintiff resulting therefrom.
In the opinion of the court this article so
indubitably refers to the plaintiff, and was so
easily and well understood by the readers of
said paper as indicating the plaintiff, that it
would be an act of superrogation to elaborately
discuss the evidence adduced in support of or
against the proposition. It is as clear to the
court from the evidence adduced as the
noonday sun, that the plaintiff is the identical
and only person meant and referred to in said
article "Birds and Prey;" and it requires no
argument to prove that it does mean and refer
to him and was so intended by the writer, and
therefore by said nine defendants, and could not
have been otherwise understood by any
intelligent reader or subscriber of said paper, in
view of the reasons assigned in the complaint,
which reasons are clearly disclosed and fully
established by the evidence. And it may be
added that much valuable time was needlessly
consumed by the defense at trial in an effort to
establish the contrary.
It seems to the court a reflection upon the
intelligence of the subscribers and readers of "El
Renacimiento" to contend that this editorial was
not well understood by them as referring to the
plaintiff, and as fully as if his name had been
mentioned in every paragraph thereof. And
assuredly the omission of his name from the
editorial has made the libel less hurtful and
disastrous in its results to the reputation and
feelings of the plaintiff.
Much time was consumed also in adducing
evidence to show that none of the twelve
defendants were the owners of "El
Renacimiento" and "Muling Pagsilang," but that
six of them had originally contributed their
money as a partriotic donation to the Filipino
people, and that Martin Ocampo simply held the
money and property of the paper as trustees for
this people, and that the paper was being
devoted exclusively to philanthropic and patriotic
ends, and that Galo and Lichauco had agreed to
contribute to the same ends, but had not done
so.
This proposition in the light of evidence is so
preposterous as to entitle it to little, if any,
serious consideration. To ask the court to
believe it is tantamount to asking the court to
stultify reason and common sense. That those
seven defendants named contributed their
respective sums of money, as shown by the
evidence, to the foundation of said newspaper in
1901 for their own personal benefit and profit is
fully and unmistakably established. It is equally
well established that Martin Ocampo is and was,
not only a part owner, but that he has been and
is still the administrator or business manager of
said newspaper, and that the other six persons
named are shareholders, part owners and
proprietors thereof, and were such on said 30th
of October, 1908.
Arcadio Arellano testified positively that Galo
Lichauco was one of the seven founders, and
that Lichauco contributed P1,000. Martin
Ocampo testified that Galo Lichauco promised to
contribute an amount which he (the witness) did
not remember but that Lichauco did not keep
his promise. (See pp. 107, 108, and 231 of the
evidence.)
The other evidence and circumstances strongly
corroborate Arcadio Arellano, and the court is
constrained to believe that Arellano told the
truth and Ocampo did not. See Exhibit B-J, a
copy of "El Renacimiento" containing the article
"Infamy Among Comrades," page 87 of the
evidence, in which there was published that
these seven persons named are the
shareholders of the paper.
Furthermore, Galo Lichauco failed to appear and
testify, so as to enlighten the court as to which
witness, Arellano or Ocampo, told the truth, or
whether chief editor Kalaw had his authority to
publish in said paper, as he did in November 22,
1907, that he, Galo Lichauco, was one of the
shareholders. The presumptions are therefore
against Galo Lichauco. See S.S.
Co. vs. Brancroft-Whitney Co. (36 C. C. A., 136
and 153).
It also appears from the evidence that Teodoro
M. Kalaw was the chief editor or director of the
Spanish section of said paper, and that Lope K.
Santos was the chief editor or director of the
Tagalog section on said 30th of October, 1908,
and that the Spanish and Tagalog sections are,
and then were, one and the same newspaper,
but printed and published in different languages.
It is alleged that said newspaper has a large
circulation throughout the Philippine Islands,
and was published and circulated daily in the
Spanish and Tagalog languages in the city of
Manila. Not only are these allegations true, but it
is also true that said newspaper has a daily
circulation and subscribers in other parts of the
world, notably in the United States and Spain;
and it has subscribers numbering in toto not less
than 5,200, and a daily issue of 6,000 copies.
It is also true as alleged, and the court so finds
that since the year 1906 to said 30th of October,
1908, these nine defendants had been
maliciously persecuting and attacking the
plaintiff in their said newspapers, until at last, on
said 30th of October, 1908 with the malicious
intention of injuring the plaintiff, who on said
date was and still is a member of the Civil
Commission and Secretary of the Interior in the
Government of the Philippine Islands; and with
the object of exposing him to the odium,
contempt, and ridicule of the public, they wrote,
printed, and published in their said newspaper,
in its ordinary number of said 30th of October,
1908, the malicious defamation and false libel of
and concerning the plaintiff, entitled and herein
alluded to as the editorial "Birds of Prey," which
libel was and is highly injurious to the plaintiff
and from which the plaintiff has sustained
serious damage.
This editorial, when properly interpreted and
read between the lines, means, besides other
things, and was intended by the writer to mean
and be understood by the readers thereof as
meaning substantially the following:
That the plaintiff, Dean C. Worcester, was born
on the surface of the globe to eat and devour,
like a bird of prey, and that others, born to be
eaten and devoured, are the prey and the food
of the insatiable voracity of the plaintiff; that the
plaintiff had a desire to copy and imitate the
most rapacious bird, the eagle, in order to
triumph in plundering his fellowman; that the
plaintiff besides being an eagle, has the
characteristics of the vulture, the owl, and
the vampire.
That the plaintiff ascended the mountains of
Benguet to classify and measure the skulls of
the Igorots, and study and civilize them and to
espy in his flight with the eye of the bird of prey
the large deposits of gold-the prey concealed
amidst the mountains-and to appropriate them
to himself afterwards, and that to this end the
plaintiff had the legal facilities, made and
unmade at his own will, and that this is always
done for his own benefit.
That the plaintiff authorized, inspite of laws and
ordinances, the illegal slaughtering is diseased
cattle in order to derive benefit from the
infected and putrid meant which he himself was
obliged to condemn by virtue of his official
position; that while the plaintiff presents himself
on all occasions with the wrinkled brow of the
scientist who consumes his life in the mysteries
of the laboratory of science, his whole scientific
labor is confined to dissecting insects and
importing fish eggs.
That although the plaintiff gave an admirable
impulse to the discovery of wealthy lodes in
Mindanao and Mindoro, and in other virgin
regions of the Archipelago, with the money of
the people, under the pretext of the public
good, as a strict matter of truth his object was
to possess all the data and the key to the
national wealth for his essentially personal
benefit, and that this is shown by his acquisition
of immense properties registered under the
names of others.
That the plaintiff promoted, through secret
agents and partners, the sale to the city of
Manila of worthless land at fabulous prices,
which the city fathers dared not refuse from fear
of displeasing the plaintiff, who was behind the
project, and which they did not refuse for their
own good; that the plaintiff favored concessions
for hotels in Manila on filled-in land; with the
prospect of enormous profits, at the expense of
the blood of the people.
That such are the characteristics of the plaintiff,
who is at the same time an eagle that surprises
and devours, a vulture that gorges his self on
deed and rotten meats, an owl that affects a
petulant omniscience, and a vampire that sucks
the blood of the victim until he leaves it
bloodless. And this libelous article concludes
with the asseveration in substance that the
plaintiff has been "weighed in the balance and
found wanting" — "Mane, Tecel, Phares."
That this editorial is malicious and injurious goes
without saying. Almost every line thereof teems
with malevolence, ill will, and wanton and
reckless disregard of the rights and feelings of
the plaintiff; and from the very nature and the
number of the charges therein contained the
editorial is necessarily very damaging to the
plaintiff.
That this editorial, published as it was by the
nine defendants, tends to impeach the honesty
and reputation of the plaintiff and publishes his
alleged defects, and thereby exposes him to
public hatred, contempt, and ridicule is clearly
seen by a bare reading of the editorial.
It suffices to say that not a line is to be found in
all the evidence in support of these malicious,
defamatory and injurious charges against the
plaintiff; and there was at the trial no pretense
whatever by the defendants that any of them
are true, nor the slightest evidence introduced
to show the truth of a solitary charge; nor is
there any plea of justification or that the
charges are true, much less evidence to sustain
a plea.
In the opinion of the court "Birds of Prey," when
read and considered in its relation to and
connection with the other articles libelous and
defamatory in nature, published of and
concerning the plaintiff by these nine
defendants anterior and subsequent to the
publication of this article, and having reference
to the same subject matter as shown by the
evidence, is one of the worst libels of record. It
is safe to say that in all the court reports to the
Philippine Islands, or of Spain, or the United
States, there is not to be found a libel case in
which there is a more striking exemplification of
the spirit of hatred, bad faith, evil motive,
mischievous intent, actual malice, nefarious
purpose, base malignity, or gross malevolence.
It is proper to observe also that since the
beginning of this attack on the plaintiff in the
year 1906 down almost to the present time, so
far from there being any apology, retraction, or
effort to repair the injury already done as far as
lay in the power of the defendants, the
persecution, wrong, and tortious injury to the
plaintiff had been steadily kept up and persisted
in, without the slightest abatement of the
malevolent spirit.
There has been neither retraction, apology, nor
reparation; per contra, the libel has been
repeated, reiterated, and accentuated, and
widely and extensively propagated by these nine
defendants through the columns of their said
paper and otherwise; and it appears from the
evidence that especial effort has been made by
these same defendants to give as much publicity
as possible to the libelous and defamatory words
used of and concerning the plaintiff in said
editorial.
Through their instrumentality and persistency in
asserting and reasserting its truth, this diabolical
libel has been spread broadcast over the
Philippine Islands and to other parts of the
world. In said criminal case No. 4295 some of
these nine defendants pleaded the truth of the
charges; and in Exhibit A-Q is to be found this
language: "The defense will adduce its evidence
demonstrating the truth of every one of the
facts published."
In their said paper of the 11th of January, 1909,
there is published statement:
"The brief period of time allowed us by
the court, at the request of the counsel,
to gather evidence which we are to
adduce in our effort to demonstrate the
truth of the accusation that we have
formulated in the article which is the
subject of the agitation against us,
having expired, the trial of the case
against our director had been resumed."
(See pp. 63 and 67 of the evidence.)
And about the same time they also declared in
their said paper that "there is more graft than
fish in the rivers of Benguet." And this in the
year of our Lord 1909! the persecution having
begun in 1905; thus indicating that there is to
be no "let-up" or cessation of the hostile attitude
toward the plaintiff or the vilification of his name
and assaults upon his character, much less a
retraction or an apology, unless drastic means
and measures are made use of to the end that
there may be no further propagation of the libel,
or asseveration, or reiteration of its truth.
This article "Birds of Prey" charges the plaintiff
with malfeasance in office and criminal acts, and
is therefore libelous per se. It in substance
charges the plaintiff with the prostitution of his
office as a member of the Civil Commission of
the Philippine Islands and Secretary of the
Interior of said Islands for personal ends. It is
charged also substantially that plaintiff in his
official capacity wasted the public funds for the
purpose of promoting his own personal welfare,
and that he violated the laws of the Philippine
Islands and the ordinances of the city of Manila.
In its essence he is charged with taking part in
illegal combinations for the purpose of robbing
the people with the object of gain for himself
and for others; with being a bird of prey, a
vulture (buzzard), an owl, and a vampire that
sucks the blood of the victim (meaning the
people) until he leaves it bloodless, that is to
say, robs the people, until he leaves them
wretched and poverty-stricken, deprived of all
worldly possessions; and lastly, that he, the
plaintiff, like Belshazzar, has been weighed in
the balance and found wanting as a high
Government functionary; all of which charges
are false and malicious and without and
foundation whatever in fact, as the evidence
fully demonstrates.
It is also a matter of fact, and the court so finds,
that said defamation was written and published
that it might be understood, and it was
understood, by the public officials of the
Government and the people of the Philippine
Islands in general, and wherever else said
newspaper may have circulated and been read,
as charging the plaintiff with the tortious and
criminal acts and conduct charged in said
editorial as hereinbefore specified and
interpreted.
The court finds it also true that, besides
assailing the integrity and reviling the reputation
of the plaintiff, said nine defendants, in
publishing said libel, did so with the malicious
intention of inciting the Filipino people to believe
that the plaintiff was despotic and corrupt and
unworthy of the position which he held, and for
this reason to oppose his administration of the
office in his charge as Secretary of the Interior,
and in this way they endeavored to create
enormous difficulties for him in the performance
of his official duties, and to make him so
unpopular that he would have to resign his
office as a member of the Civil Commission of
the Philippines and Secretary of the Interior.
It is also true that the said nine defendants, by
means of said libel, and other like false
statements in their said newspaper, have been
deliberately trying to destroy the confidence of
the public in the plaintiff and to incite the people
to place obstacles in his way in the performance
of his official duties, in consequence of which
the plaintiff has met with many difficulties which
have greatly increased his labors as a public
official.
It further appears from the evidence that not
only has an effort been made by these nine
defendants to give as much publicity as possible
to the charges, but in order that said defamation
should attract the attention of the public, they
published the same under a heading in large,
bold and showy type, so that it might be easily
seen and read by all the subscribers and readers
of said paper.
In full view of all the evidence, therefore, it is
clearly seen that every essential allegation of the
complaint is true substantially as therein
claimed, and that the whole of the said editorial
relating to the misconduct and bad character of
the plaintiff is false and without the slightest
foundation in fact. Not a scintilla of evidence
was introduced in support of any injurious
charge made therein against the plaintiff, to say
nothing of the plaintiff's evidence that each and
every charge of malfeasance therein contained
is false, and without reference to whether a
failure to plead the truth admits the falsity of the
charge.
The evidence shows no "special" or "actual
pecuniary damage," and none is alleged in the
complaint. Two other kinds of damages,
however are claimed, to wit, general damages
for injuries to the feelings and reputation of the
plaintiff and additional work to which he has
been put by the conduct of the defendants,
which are laid in the sum of P50,000, and
"punitive," exemplary, or vindictive damages,
"as a warning to the defendants," or as
expressed in Act 277 of the Philippine
Commission, as a just punishment to the libelers
and an example to others," which are laid in the
same sum of P50,000.
The nine defendants being liable to the plaintiff
for damages, the next question to be decided is
what amount of damages should be awarded
the plaintiff for the injury to his reputation and
feelings and his being a proper case for punitive
damages, the further question is, what sum
shall be awarded as a just punishment to these
nine libelers and as an example to others. In
neither of these cases is there any precise
measure of damages.
In determining the amount to be awarded in the
first instance it is proper to consider the
previous character, influence, reputation,
standing, official position, hope of advancement,
prospect of promotion, and social status of the
plaintiff and his family, and all the circumstances
connected with the case.
The plaintiff is a man in the prime of life,
holding, as he has held for the last ten years an
important, responsible, lucrative, high and
exalted position of trust and honor in the service
of the Government of the United States, in the
Philippine Islands, without a blotch on his family
escutcheon, so far as the evidence shows, and
with an untarnished reputation as a man, as a
citizen, and as a Government official.
He is a man of honesty, integrity, and high
social position; a man of learning, famous as a
scientist, and scientific achievements and
scholarly attainments, a man of industrious
habits, genuine worth, and intellectual force. He
has read, studied, traveled and learned much,
and is an author of merit and distinction. He was
for a long while a professor in one of the largest
and most renowned institutions of learning in
the world; he is a man of vast experience, broad
and liberal views, and an extensive
acquaintanceship, not only in the Philippine
Islands, but in the United States and other
countries of the world. He was well and
favorably received by the people wherever he
journeyed previous to this atrocious libel upon
his integrity and reputation.
He has discharged the duties of his lofty official
position in a manner that reflects credit upon
himself as well as the Government which he
represents, and apparently with entire
satisfaction to all of his superiors in office and
the people generally; and but for this pernicious,
outrageous, and highly reprehensible assault
upon his good name, fame and reputation, there
were prospects of promotion to higher honors.
And so far as his personal and private record is
concerned it was without a blemish anterior to
the time when these unfounded and dastardly
 aspersions were cast upon it by these nine
defendants.
Indeed, it is only necessary to advert to the
testimony of the defense itself to ascertain that
the plaintiff is an honorable man, and without a
stain upon his character, officially or otherwise.
It would be interesting to note here in parallel
columns and compare the charges made in
"Birds of Prey" and the testimony of one of the
witnesses for the defendants.
Felipe Buencamino, an intelligent witness for the
defense, in his testimony (p. 240) when asked
the question, Do you know Mr. Worcester?" he
answers, "Yes, sir: I know him as an honorable
man. I also know him as an honest, honorable
public official." In answer to another question he
says, "As I have said, I know Mr. Worcester as a
private citizen and as a public official, and my
opinion of him is that of honorable man and an
upright official." And no other witness testified
anything to the contrary.
"A good name is rather to be chosen
than great riches and loving favor rather
than silver of gold."
"Who steals my purse steals trash;
xxx xxx xxx
But he that filches from me my good
name,
Robs me of that which not enriches him
And makes me poor indeed."
The enjoyment of a private reputation is as
much a constitutional right as the possession of
life, liberty or property. It is one of those rights
necessary to human society that underlie the
whole scheme of human civilization.
"The respect and esteem of his fellows
are among the highest rewards of a
well-spent life vouchsafed to man in this
existence. The hope of it is the
inspiration of youth, and their
possession the solace of later years. A
man of affairs, a business man, who has
been seen and known of his fellowmen
in the active pursuits of life for many
years, and who has developed a great
character and an unblemished
reputation, has secured a possession
more useful, and more valuable than
lands, or houses, or silver, or gold . . .
"The law recognizes the value of such a
reputation, and constantly strives to
give redress for its injury. It imposes
upon him who attacks it by slanderous
words, or libelous publication, a liability
to make full compensation for the
damage to the reputation, for the
shame and obloquy, and for the injury
to the feelings of the owner, which are
caused by the publication of the slander
or the libel.
"It goes further. If the words are
spoken, or the publication is made, with
the intent to injure the victim, or with
the criminal indifference to civil
obligation, it imposes such damages as
a jury (in this case the judge), in view of
all the circumstances of the particular
case adjudge that the wrongdoer ought
to pay as an example to the public, to
deter others from committing like
offenses, and as a punishment for the
infliction of the injury.
"In the ordinary acceptance of the term,
malice signifies ill will, evil intent, or
hatred, while it is legal signification is
defined to be "a wrongful act done
intentionally, without legal justification."
(36 C. C. A., 475.)
Surely in the case at bar there was a wrongful
or tortious act done intentionally and without
the semblance of justification or excuse, or
proof that the libelous charges against the
plaintiff were "published and good motives and
justifiable ends."
But the Legislature and the highest judicial
authority of these Islands have spoken in no
uncertain words with regard to the rights of the
plaintiff in this case; and we need not
necessarily turn to the law of libel elsewhere, or
the decision of the courts in other jurisdictions
to ascertain or determine his rights.
In sections 1, 2, 3, 4, 6, and 11 of the Libel Law
(Act 277, Philippine Commission) is to be found
the law of these Islands especially applicable to
this case. Section 1 thereof defines libel. Section
2 provides that every person who willfully and
with a malicious intent to injure another
publishes, or procures to be published, any libel
shall be punished as therein provided. Section 3
provides that an injurious publication is
presumed to have been malicious if no
justifiable motive for making it is shown. Section
4 provides, among other things, that in all
criminal prosecutions the truth may be given in
evidence; but to establish this defense, not only
must the truth of the matter charged as libelous
be proven, but also that it was published with
good motives and for justifiable ends; and the
presumptions, rules of evidence, and special
defenses are equally applicable in civil and
criminal actions, according to section 11 of said
Act.
Section 6 is as follows:
"Every author, editor, or proprietor of
any book, newspaper, or serial
publication is chargeable with the
publication of any words contained in
any part of such book or number of
each newspaper or serial as fully as if he
were the author of the same."
And section 11 provides as follows:
"In addition to such criminal action, any
person libeled as hereinbefore set forth
shall have a right to a civil action
against the person libeling him for
damages sustained by reason of such
libel, and the person so libeled shall be
entitled to recover in such civil action
not only the actual pecuniary damages
sustained by him, but also damages for
injury to his feelings and reputation, and
in addition such punitive damages as
the court may think will be a just
punishment to the libeler and an
example to others. Suit may be brought
in any Court of First Instance having
jurisdiction of the parties. The
presumptions, rules or evidence and
special defenses provided for in this
chapter for criminal prosecutions shall
be equally applicable in civil actions
under this section."
"The proprietor of a printing plant is
responsible for publishing a libel.
According to the legal doctrines and
jurisprudence of the United States, the
printer of a publication containing
libelous matter is liable for the same."
(Mr. Justice Torres, in U.S. vs. Ortiz, 8
Phil. Rep., 757.) But said section 6
plainly fixes the liability of editors and
proprietors of newspapers, and is clear
enough for all the purposes of this case.
Mr. Justice Carson (5 Phil. Rep. 1551), speaking
for our Supreme Court, says:
"When there is an averment in the
complaint that the defamatory words
used refer to the plaintiff, and it is
proven that the words do in fact refer to
him and are capable of bearing such
special application, an action for libel
may be maintained even though the
defamatory publication does not refer to
the plaintiff by name."
And Mr. Justice Willard (12 Phil. Rep., 428 2), for
the same high authority, says:
"In an action for libel damages for injury
to feelings and reputation may be
recovered though no actual pecuniary
damages are proven.
"Punitive damages cannot be recovered
unless the tort is aggravated by evil
motive, actual malice, deliberate
violence or oppression."
That is to say, if there is evil motive, or actual
malice or deliberate violence, or oppression then
punitive damages, or "smart money," may be
recovered.
And Justice Carson (U.S. vs. Sedano, 14 Phil.,
Rep., 338), also says:
"Actual or express malice of an alleged
libelous publication may be inferred
from the style and tone of the
publication.
"The publication of falsehood and
calumny against public officers and
candidates for public office is specially
reprehensible and is an offense most
dangerous to the people and to the
public welfare.
"The interest of society require that
immunity should be granted to the
discussion of public affairs, and that all
acts and matters of a public nature may
be freely published with fitting
comments and strictures; but they do
not require that the right to criticise
public officers shall embrace the right to
base such criticism under false
statements of fact, or attack the private
character of the officer, or to falsely
impute to
 him malfeasance or misconduct in
office."
And there are almost numberless English and
American authorities in perfect harmony with
these decisions of our Supreme Court too
numerous indeed to be cited here; and it is not
necessary.
Among the leading cases, however, in the
United States, is that of Scott vs. Donald (165
U.S., 58) and cases therein cited. In this case
the court says: "Damages have been defined to
be the compensation which law will allow for an
injury done, and are said to be exemplary and
allowable in excess of the actual loss when the
tort is aggravated by evil motive, actual malice,
deliberate violence or oppression," which is in
entire harmony with Justice Willard's decision
hereinbefore cited.
And quoting from the decision in Day vs.
Woodworth (13 Howard, 371) the same high
court says:
"In actions of trespass, where the injury
has been wanton and malicious, or
gross or outrageous, courts permit
juries (here the court) to add to the
measured compensation of the plaintiff
which he would have been entitled to
recover, had the injury been inflicted
without design or intention, something
further by way of punishment or
example, which has sometimes been
called "smart money." "
It thus clearly appears that the facts established
in the case at bar are more than sufficient to
bring it within the rule of law here laid down by
the highest judicial authority.
Section 11 of the Libel Law expressly allows
general damages; and Mr. Justice Willard,
in Macleod vs. Philippine Publishing
Company,3 says:
"The general damages which are
allowed in actions of libel are not for
mental suffering alone, but they are
allowed for injury to
the standing and reputation of the
person libeled, and the common law of
England and America presumed that
such damages existed without proof
thereof from the mere fact of
publication of the libel."
In Day vs. Woodworth, the Supreme Court of
the United States recognized the power of a jury
in certain actions in tort to assess against the
tort feasor punitive damages. Where the injury
has been inflicted maliciously or wantonly, and
with circumstances of contumely, or indignity,
the judge or jury, as the case may be, is not
limited to the ascertainment of a simple
compensation for the wrong committed against
the aggrieved person.
"The public position of the plaintiff, as
an officer of the Government, and the
evil example of libels, are considerations
with the jury (here the judge) for
increasing damages."
(Tillotson vs. Cheetham, 3 Johns, 56.)
"The character, condition and influence
of the plaintiff are relevant on the
matter of the extent of damages."
(Littlejohn vs. Greely, 22 How. Prac.,
345; 13 Abb. Prac., 41, 311.)
"Where the publication is libelous, the
law presumes that it was made with
malice — technical, legal malice, but not
malice in fact — and the amount of
damages depends in a large degree
upon the motives which actuated the
defendants in its publication; and in
such cases the law leaves it to the jury
(here the judge) to find a return such
damages as they think right and just, by
a sound, temperate, deliberate, and
reasonable exercise of their functions as
jurymen." (Erber vs. Dun. (C. C.) 12
Fed., 526.)
"Actions of libel, so far as they involve
questions of exemplary damages, and
the law of principal and agent, are
controlled by the same rules as are
other actions of tort. The right of a
plaintiff to recover exemplary damages
exists wherever a tortious injury has
been inflicted recklessly or wantonly,
and it is not limited to cases where the
injury resulted from personal malice or
recklessness of the defendant. It follows
that the owner of a newspaper is as
responsible for all the acts of omission
and commission of those he employs to
edit it and manage its affairs, as he
would be if personally managing the
same.' (Malloy vs. Bennett, (C. C.) 15
Fed., 371.)
 "The fact that a publication, libelous per
se, was made without any attempt to
ascertain its correctness is sufficient to
justify a finding that defendant
committed libel client with a wanton
indifference, and with actual malice
sufficient to sustain exemplary
damages." (Van Ingen vs. Star Co., 1
App. Div., 429, 37 N.Y., 114.)
"The court is not authorized to set aside
a verdict for $45,000 in an action for
libel, where it appears that plaintiff was
persistently persecuted in the columns
of defendant's newspaper, and that he
and his family were held up to public
contempt and ridicule, and defendants
withdraw from the case after failing to
establish a plea of justification."
(Smith vs. Times Co., (Com. p. 1) 4 Pa.
Dist. Rep., 399.)
"In considering the amount with the
defendant shall pay, on this account
(exemplary damages) the turpitude of
his conduct and his financial ability are
only considered; and such consideration
is not in view of the injury or distress of
the plaintiff, but in behalf of the public;
the wrongful act is regarded as an
indication of the actor's vicious mind —
an overt deed of vindictive or wanton
wrong, offensive and dangerous to the
public good. This is the view of those
damages which generally prevails."
(Sutherland on Damages, vol. 2, p.
1092. title Exemplary Damages.)
"Punitive damages are recoverable not
to compensate the plaintiff, but solely to
punish the defendant. This legal motive
would suffer defeat if punitive damages
could not be given for a malicious attack
on a reputation too well established to
receive substantial injury at the hands
of a libeler." (Judge Bond in
Ferguson vs. Pub. Co., 72 Mo. App.,
462.)
It may be suggested that the reputation of the
plaintiff in this case is too well established to be
seriously affected by the defamatory words used
of and concerning him in "Birds of Prey," but it
would not be proper to gravely consider this
suggestion.
The conditions in these Islands are peculiar. The
minds, thoughts, and opinions of the people are
easily molded, and the public is credulous and
perhaps frequently too ready to believe anything
that may be said in derogation of an American
official, especially when it is published and
vouched for by the editorial and business
management and proprietors if a newspaper of
the prominence, pretensions, circulation and
influence if "El Renacimiento," which paper is
everlastingly proclaiming in its columns that it is
being conducted and published solely in the
interests of the Filipino people — pro bono
publico. There is stronger disposition to give
credence to what is said in a newspaper here in
the Islands the elsewhere, and when abuse,
vilification, and defamation are persistently
practiced for a period of several years, without
modification or retraction, but with renewed
emphasis, the people naturally come to believe
in its verity and authenticity.
It is apparent from the evidence that as an
effect of the persecution of the plaintiff by "El
Renacimiento" and the libel published in its
columns, the minds of the major part of the
Filipino people have been poisoned and
prejudiced against the plaintiff to such an extent
that he is regarded by these people as odious,
dishonest, unscrupulous and tyrannical.
It may be that his reputation has not suffered so
severely with those of his own race, but when it
is considered that his vocation has tenfold more
to do with the Filipinos than with his own
people, that his official duties place him in
constant contact with them, and that his success
in his chosen career is largely dependent upon
their good will and support, it is manifest that
the damage to his reputation has been very
great and that a large sum of money should be
awarded to indemnify him, as far as money can
indemnify, for the loss of his good name with
the Filipino people.
The plaintiff came to the Philippine Islands when
a young man, full of hope and ambition. Since
his arrival he has devoted himself incessantly
and indefatigably to the uplifting of the
inhabitants of the Archipelago and to the faithful
performance, as far as he was able, of the
pledges and promises of the Government to the
Filipino people. The duties of his particular office
were such as brought him in more immediate
and constant contract with the people than any
other official of the same category in these
Islands.
It is clearly shown that the plaintiff faithfully
endeavored to perform, and did efficiently
perform, all of these duties, doing everything
that he could in an unselfish and disinterested
manner of the welfare and development of the
country and its people, knowing full well that his
career, as well as his advancement, depended
largely upon the good will of these people, and
that by incurring their censure or displeasure he
would have little hope of success in his chosen
work.
Imagine, therefore, the chagrin, disappointment,
mortification, mental suffering, and distress, and
perturbation of spirit that would necessarily be
occasioned him when he discovered that
through the nefarious, studied, and practiced
persecution of the paper in question, these high
hopes were blasted, and that, instead of having
gained the respect and gratitude of the people
for the assiduous labors devoted to their
uplifting, they had been made to believe that,
instead of being a benefactor, he was a vampire
that was sucking their life blood, a corrupt
politician who was squandering the money
wrung from the people by means of taxation, in
schemes for his own personal aggrandizement
and enrichment.
That instead of developing the mineral wealth of
the Islands he was taking up all the rich veins
and appropriating them in the names of
subservient tools, to his own personal use,
benefit and profit. That instead of protecting the
people from disease, he was, by means of
infected meat and for his own personal gain,
spreading contagion among them.
That he united in his person all the bad qualities
of the vulture, the eagle, and the vampire; that,
in short, he was a "bird of prey," with all that is
implied in that term in its worst acceptation;
that he was a corrupt tyrant, who never lost an
opportunity to do the people hurt; that instead
of wishing them well and seeking their
advancement, he was their enemy, who never
lost an opportunity to degrade and humiliate
them; that instead of preferring them for office
and positions of official trust, he treated them
with all sorts of contempt and indifference.
It is difficult to appreciate the feelings of a
refined soul in its contemplation of a result so
disastrous, so unjust, and so unmerited.
It is furthermore shown that when the plaintiff
came to these Islands a young scientist he had
already won fame in his own country; that he is
a fellow of the important scientific associations
in the world. His election as a fellow or member
of these scientific bodies shows that his labors in
the Philippines were the object of solicitude by
the prominent scientific and learned men not
only of his own race, but in many other civilized
countries of the world. Important results were
evidently expected of him by them, and it can
not be doubted that they expected of him of life
honestly devoted to the conscientious discharge
of his duties as a trusted public functionary of
the American Government in the Philippine
Islands.
And yet he is falsely denounced in the columns
of said newspaper to his fellows of these
societies as a man who is so absolutely corrupt,
so inordinately selfish and avaricious that he has
not considered for a moment the duties
incumbent upon him; that he has been oblivious
to every obligation of trust and confidence, and
that he is unworthy of the respect of honest
men.
One witness testified that he read this libel in
the public library of the city of Boston. It is
furthermore shown that copies of this paper
went to Spain, England, and to different parts of
the United States; and inasmuch as the plaintiff
is a man of prominence in the scientific world, it
is to be inferred that his fellows became more or
less aware of these heinous charges.
Thus we find that the plaintiff is here confronted
with disappointed ambition and frustrated
hopes, and placed in the humiliating attitude of
having to explain to his fellows that the charges
are untrue, of adducing evidence to clear
himself, perhaps never with complete success,
of the stain that has been cast upon his
reputation by the libelous and defamatory
declarations contained in "Birds of Prey."
In view of the foregoing findings of fact and
circumstances of the case and the law applicable
thereto,
It is the opinion of the court, and the court so
finds, that the plaintiff has sustained damages
on account of wounded feelings and mental
suffering and injuries to his standing and
reputation in the sum of thirty-five thousand
(P35,000) pesos, and that he is entitled to
recover this sum of the nine defendants named,
as being responsible for having written, printed,
and published said libel; and that the plaintiff is
entitled to recover of them the further sum of
twenty-five thousand (P25,000) pesos, as
punitive damages, which the court thinks will be
a just punishment to these nine libelers and an
example to others.
 Wherefore, it is so ordered and adjudged that
the plaintiff, Dean C. Worcester, have and
recover of the defendants, Martin Ocampo,
Teodoro M. Kalaw, Lope K. Santos, Manuel
Palma, Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio M.
Cansipit, jointly and severally, the sum of sixty
thousand (P60,000) pesos, and the costs of suit,
for which execution may issue.
It is ordered. At Manila, P.I., this 14th day of
January , 1910.
From said decision the defendants appealed and made
the following assignments of error in this court:
I. The court erred in overruling our motions
for suspension of this case, in its present
state, until final judgment should be
rendered in criminal case No. 4295 of the
Court of First Instance of Manila, pending
appeal in the Honorable Supreme Court, for
libel based also on the editorial, "Birds of
Prey."
II. The court erred in admitting as evidence
mere opinion adduced by counsel for the
plaintiff with the intention of demonstrating
to whom the editorial, alleged to the
libelous, refers.
III. The court erred in giving greater
preponderance to the opinions of the
witnesses for the plaintiff than to the expert
testimony of the defense.
IV. The court erred in declaring the editorial on
which the complaint is based to be libelous
per se and to refer necessarily to the
plaintiff, Dean C. Worcester.
IV. The court erred in declaring the defendants
Martin Ocampo, Manuel Palma, Arcadio
Arellano, Angel Jose, Felipe Barretto,
Gregorio M. Cansipit, and Galo Lichauco to
be owners of "El Renacimiento."
V. The court erred in not admitting Exhibits 1
and 3 presented by counsel for the
defendants.
VI. The court erred in rendering judgment
against the defendants.
VII. The court erred in sentencing the
defendants jointly "and severally" to pay to
the plaintiff, Dean C. Worcester, the sum of
P60,000.
IX. The court erred in not ordering that execution of the
judgment to be confined to the business known as "El
Renacimiento" and to the defendant Teodoro M. Kalaw,
without extending to property of the alleged owners of
said newspaper which was not invested therein by them
at its establishment.
VIII. The court erred in granting damages to the
plaintiff by virtue of the judgment rendered
against the defendants.
IX. The court, finally, erred in granting to the
plaintiff punitive damages against the
alleged owners of "El Renacimiento,"
admitting the hypothesis that said editorial
is libelous per se and refers to the
Honorable Dean C. Worcester.
The theory of the defendants, under the first assignment
of error, is that the civil action could not proceed until
the termination of the criminal action, relying upon the
provisions of the Penal Code in support of such theory.
This court, however, has decided in the case of Ocampo
et al. vs. Jenkins (14 Phil. Rep., 681) that a judgment in
a criminal prosecution for libel, under the provisions of
Act 277 of the Civil commission, constitutes no bar or
estoppel in a civil action based upon the same acts or
transactions. The reason most often given for this
doctrine is that the two proceedings are not between the
same parties. Different rule as to the competency of
witnesses and the weight of evidence necessary to the
findings in the two proceedings always exist. As between
civil and criminal actions under said Act (No. 277) a
judgment in one is no bar or estoppel to the prosecution
of the other. A judgment in a criminal cause, under said
Act, can not be pleaded as res adjudicata in a civil
action. (Stone vs. U.S., 167 U.S., 178; Boyd vs. U.S.,
616 U. S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480;
U.S. vs. Jaedicke, 73 Fed. Rep., 100; U.S. vs.Schneider,
35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed.
Rep., 420; Steel vs. Cazeaux, 8 Martin (La.), 318, 13
American Decisions, 288; Betts vs. New Hartford, 25
Conn., 185.)
In a criminal action for libel the State must prove its
case by evidence which shows the guilt of the
defendant, beyond a reasonable doubt, while in a civil
action it is sufficient for the plaintiff to sustain his cause
by a preponderance of evidence only.
(Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65 Iowa,
306; Sloane vs. Gilbert, 27 American decisions, 708;
Cooley on Torts, sec. 208; Greenleaf on Evidence, 426;
Wigmore on Evidence, secs. 2497, 2498.)
With reference to the second assignment of error above
noted, we find that this court has already decided the
question raised thereby, in the case of U. S. vs. Ocampo
et al. (18 Phil. Rep., 1).
During the trial of the cause the plaintiff called several
witnesses for the purpose of showing that the
statements made in said alleged libelous editorial were
intended to apply to the Honorable Dean C. Worcester,
Secretary of the Interior. The defendants duly objected
to these questions and excepted to the ruling of the
court admitting them.
In the case of Russell vs. Kelley (44 Cal., 641, 642) the
same question was raised and the court, in its decision,
said:
The rule laid down in 2 Stockey on Slander (p.
51) is that the application of the slanderous
words to the plaintiff and the extrinsic matters
alleged in the declaration may be shown by the
testimony of witnesses who knew the parties
and circumstances and who can state their
judgment and opinion upon the application and
meaning of the terms used by the defendant. It
is said that where the words are ambiguous on
the face of the libel, to whom it was intended to
be applied, the judgment and opinion of
witnesses, who from their knowledge of the
parties and circumstances are able to form a
conclusion as to the defendant's intention and
application of the libel is evidence for the
information of the jury.
Mr. Odgers, in his work on Libel and Slander (p. 567),
says:
The plaintiff may also call at the trial his friends
or others acquainted with the circumstances, to
state that, in reading the libel, they at once
concluded it was aimed at the plaintiff. It is not
necessary that all the world should understand
the libel. It is sufficient if those who know the
plaintiff can make out that he is the person
meant. (See also Falkard's Stockey on Libel and
Slander, 4th English edition, 589.)
The correctness of this rule is not only established by
the weight of authority but is supported by every
consideration of justice and sound policy. The lower
court committed no error in admitting the opinion of
witnesses offered during the trial of the cause. One's
reputation is the sum or composite of the impressions
spontaneously made by him from time to time, and in
one way or another, upon his neighbors and
acquaintances. The effect of a libelous publication upon
the understanding of such persons, involving necessarily
the identity of the person libeled is of the very essence
of the wrong. The issue in a libel case concerns not only
the sense of the publication, but, in a measure its effect
upon a reader acquainted with the person referred to.
The correctness of the opinion of the witnesses as to the
identity of the person meant in the libelous publication
may always be tested by cross-examination. (Enquirer
Co. vs. Johnston, 72 Fed. Rep., 443; 2nd Greenleaf on
Evidence, 417; Nelson vs. Barchenius, 52 Ill., 236;
Smith vs.Miles, 15 Vt., 245; Miller vs. Butler, 6 Cushing
(Mass.), 71.)
It is true that some of the courts have established a
different rule. We think, however, that a large
preponderance of the decisions of the supreme courts of
the different States is in favor of the doctrine which we
have announced here.
We are of the opinion that assignments of error Nos. 3,
4, and 7 may fairly be considered together, the question
being whether or not the evidence adduced during the
trial of the cause in the lower court shows, by a
preponderance of the evidence, that the said editorial
was libelous in its character. Here again we find that this
question has been passed upon by this court in the case
of U. S. vs. Ocampo et al. (18 Phil. Rep., 1), and we
deem it unnecessary to discuss this question again, for
the reason that the evidence adduced in the present
cause was practically the same, or at least to the same
effect, as the evidence adduced in the cause of
U.S. vs. Ocampo et al. It is sufficient here to say that
the evidence adduced during the trial of the present
cause shows, by a large preponderance of the evidence,
that said editorial was one of the most pernicious and
malicious libels upon a just, upright and honorable
official, which the courts have ever been called upon to
consider. There is not a scintilla of evidence in the entire
record, notwithstanding the fact that the defendants
from time to time attempted to make a show of proving
the truthfulness of the statements made in said editorial,
which in any way reflects upon the character and high
ideals of Mr. Dean C. Worcester, in the administration of
his department of the Government.
With reference to the fifth assignment of error, to wit:
That the court erred in holding that the defendants,
Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel
Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo
Lichauco, were the proprietors of "El Renacimiento," the
lower court said:
Much time was consumed also in adducing
evidence to show that none of the twelve
defendants were the owners of "El
Renacimiento" and "Muling Pagsilang," but that
six of them had originally contributed their
money as a patriotic donation to the Filipino
people, and that Martin Ocampo simply held the
money and property of the paper as trustee for
this people, and that the paper was being
devoted exclusively to philanthropic and patriotic
ends, and that Galo Lichauco had agreed to
contribute to the same ends but had not done
so.
"This proposition," said the lower court, "in the light of
the evidence, is so preposterous as to entitle it to little,
if any, serious consideration. To ask the court to believe
it is tantamount to asking the court to stultify reason
and common sense. That those seven defendants
named contributed their respective sums of money, as
shown by the evidence, to the foundation of said
newspaper in 1901, for their own personal benefit and
profit, is fully and unmistakably established. It is equally
well established that Martin Ocampo is and was, not
only a part owner, but that he has been and is still the
administrator or business manager of said newspaper,
and that the other six persons named are shareholders,
part owners and proprietors thereof and were such on
the said 30th of October, 1908."
Examining the evidence adduced during the cause in the
lower court, we find, sometime before the
commencement of the present action and before any
question was raised with reference to who were the
owners of the said newspaper, that the defendant,
Arcadio Arellano, in the case of United States vs. Jose
Sedano (14 Phil. Rep., 338), testified upon that question
as follows:
Q. Who are the proprietors of "El Renacimiento"?
A. I, Martin Ocampo, Gregorio Mariano (Cansipit), Mr.
Barretto, and Galo Lichauco.
Q. Who else?
A. No one else.
Q. And Rafael Palma — is not so?
A. No, sir; Manuel Palma, the brother of Rafael Palma.
During the trial of the present cause, Arcadio Arellano
testified that his declarations in other cause were true.
It also appears from the record (Exhibit B-J) that in the
month of November, 1907, long before the
commencement of the present action, " El
Renacimiento," in reply to an article which was published
in "El Comercio," published the following statement:
They (it) say (s) that this enterprise" (evidently
meaning the publication of "El Renacimiento")
"is sustained by Federal money; that we are
inspired by Federal personages. We declare that
this, besides being false, is calumnious. The
shareholders of this company are persons well
known by the public, and never at any moment
of their lives have they acted with masks on--
those masks for which "El Comercio" seems to
have so great an affection. They are, as the
public knows: Señores Martin Ocampo, Manuel
Palma, Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio Cansipit.
Arcadio Arellano also testified during the trial of the
present cause that he contributed P750 to the
establishment of "El Renacimiento;" that Martin Ocampo
contributed the sum of P500; that Mariano Cansipit,
Felipe Barretto and Angel Jose contributed the sum of
P250 or P500 each; that Galo Lichauco contributed the
sum of P1,000 and that Manuel Palma contributed
P3,000.
During the trial of the present cause Arcadio Arellano,
Martin Ocampo, and Angel Jose testified as witnesses,
relating to the ownership of the newspaper called "El
Renacimiento." They testified that whatever money they
gave for the purpose of establishing said newspaper,
was given as a donation, and that they were neither the
owners nor coowners of said periodical. The defendants,
Manuel Palma, Galo Lichauco, Felipe Barretto, and
Gregorio Cansipit, did not testify as witnesses during the
trial of the cause in the lower court. No reason is given
for their failure to appear and give testimony in their
own behalf. The record does not disclose whether or not
the declarations of Arcadio Arellano, in the case of U.
S. vs. Sedano (14 Phil. Rep., 338) at the time they were
made, were called to the attention of Manuel Palma,
Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, as
well as the reply to "El Comercio," above noted. Proof of
said declarations and publication was adduced during
the trial of the cause in the present case, and the
attorney of these particular defendants well knew the
purpose and effect of such evidence, if not disputed;
but, notwithstanding the fact that said declarations and
publication were presented in evidence, and
notwithstanding the fact that the attorney for the
defendants knew of the purpose of such proof, the
defendants, Palma, Lichauco, Barretto, and Cansipit,
were not called as witnesses for the purpose of rebutting
the same. It is a well settled rule of evidence, that when
the circumstances in proof tend to fix the liability on a
party who has it in his power to offer evidence of all the
facts as they existed and rebut the inferences which the
circumstances in proof tend to establish, and he fails to
offer such proof, the natural conclusion is that the proof,
if produced, instead of rebutting would support the
inferences against him, and the court is justified in
acting upon that conclusion. (Railway Company vs. Ellis,
C. C. A. Reports, vol. 4, p. 454;
Commonwealth vs. Webster, 5 Cush. (Mass.), 295;
People vs.McWhorter 4 Barb. (N. Y.), 438.)
Lord Mansfield, in the case of Blatch vs. Archer (Cowper,
63, 65) said:
It is certainly a maxim that all the evidence is to
be weighed according to the proof which it was
in the power of one side to have produced, and
in the power of the other side to have
contradicted.
Mr. Starkey, in his valuable work on evidence (vol. 1, p.
64), lays down the rule that:
 The conduct of a party in omitting to produce
evidence in elucidation of the subject matter in
dispute, which is within his power and which
rests peculiarly within his own knowledge,
frequently offers occasion for presumptions
against him, since it raises the strong suspicion
that such evidence, if adduced, would operate to
his prejudice. (Pacific Coast et al.
Co. vs. Bancroft-Whitney Co., 36 C. C. A.
Reports, 136, 153.)
At the time of the said declarations of Arcadio Arellano
in the case of Sedano and at the time of the said
publication in reply to "El Comercio," there was no
reason for stating anything except the truth: neither
does there seem to have been any reason for publishing
the fact that the defendants were the owners of "El
Renacimiento" unless it was true.
At the time there seemed to be no reason to have it
appear that they were donors and public benefactors
only. They seemed to be proud of the fact that they
were the owners. The editors, publishers, and managers
of "El Renacimiento," at the time the reply to "El
Comercio" was published, seemed to be anxious to
announce to the public who its owners were. It ("El
Renacimiento") had not then realized that it belonged to
no one; that it had been born into the community
without percentage; that it had been created a terrible
machine for the purpose of destroying the good
character and reputation of men without having any one
to respond for its malicious damage occasioned to
honorable men; that it was a cast-off, without a past or
the hope of a future; that it was liable to be kicked and
buffetted about the persecuted and destroyed without
any one to protect it; that its former friends and creators
had scattered hither and thither and had disappeared
like feathers before a cyclone, declaring, under oath,
that they did not know their offspring and were not
willing to recognize it in public. It seems to have been a
Moses found in the bulrushes, destined by its creators to
be a great good among the Filipino people, in teaching
them to respect the rights of persons and property; but,
unlike its Biblical prototype, it became, by reason of its
lack of parentage, an engine of destruction let loose in
the State, to enter the private abode of lawabiding
citizens and to take from them their honor and
reputation, which neither it nor the State could restore.
To rob a man of his wealth is to rob him of trash, but to
take from him his good name and reputation is to rob
him of that which does not make the robber richer and
leaves the person robbed poor indeed.
The appellants tried to make it appear that the money
which they gave for the establishment of "El
Renacimiento" was a pure donation. They claim that it
was a donation to the Filipino people. They do not state,
however, or attempt to show what particular persons
were to manage, control, and direct the enterprise for
which the donation was made. A donation must be
made to definite persons or associations. A donation to
an indefinite person or association is an anomaly in law,
and we do not believe, in view of all of the facts, that it
was in fact made. A donation must be made to some
definite person or association and the donee must be
some ascertained or ascertainable person or association.
A donation may be made for the benefit of the public,
but it must be made, in the very nature of things, to
some definite person or association. A donation made to
no person or association could not be regarded as a
donation in law. It could not be more than an
abandonment of property. Of course where a donation is
in fact made, without reservation to a particular person
or association, the donor is no longer the owner of the
thing donated nor responsible, in any way, for its use,
provided that the object, for which the donation was
made, was legal. A person does not become an owner
or part owner of a church, for example, to the
construction of which he has made a donation; neither is
he responsible for the use to which said edifice may be
applied. No one disputes the fact that donations may be
made for the public use, but they must be made to
definite persons or associations, to be administered in
accordance with the purpose of the gift.
We can not believe, in the light of the whole record, that
the defendants and appellants, at the time they
presented the defense that they were donors simply and
not owners, had a reasonable hope that their
declarations as to said donation, given in the manner
alleged, would be believed by the court.
After a careful examination of the evidence brought to
this court and taking into consideration the failure of the
other defendants to testify, we are of the opinion that a
preponderance of such evidence shows that the
defendants, Martin Ocampo, Manuel Palma, Arcadio
Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and
Gregorio M. Cansipit, were the coowners of the
newspaper known as "El Renacimiento," at the time of
the publication of the said alleged libel.
With reference to the sixth assignment of error above
noted, to wit: That the lower court committed an error
in not admitting in evidence the judgment of acquittal of
the defendant, Lope K. Santos, rendered in the criminal
cause, we are of the opinion that the refusal to admit
said evidence in the civil cause was not an error. The
fact that the evidence in the criminal cause was
insufficient to show that Lope K. Santos was guilty of the
crime charged, in no way barred the right of the person
injured by said alleged libel to maintain the present civil
action against him. (Ocampo vs. Jenkins, 14 Phil. Rep.,
681.) The criminal action had to be sustained by
evidence showing the culpability of the defendant
beyond a reasonable doubt, while in the civil action it is
sufficient to show that the defendants injured the
plaintiff by the alleged libelous publication, by a
preponderance of the evidence only. (Greenleaf on
Evidence, sec. 426; Cooley on Torts, 208;
Reilley vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23
Am. Dec., 708.)
In the case of Steel vs. Cazeaux (8 Martin, La., 318; 13
American Decisions, 288), the supreme court of
Louisiana said:
A judgment of conviction in a criminal
prosecution can not be given in evidence in a
civil action.
In the case of Betts et al. vs. New Hartford (25 Conn.,
180) Mr. Justice Ellsworth said (in a case where a
judgment in a criminal case was offered in evidence):
A conviction in a criminal case is not evidence of
facts upon which the judgment was rendered,
when those facts come up in a civil case, for this
evidence would not be material; and so the law
is perfectly well settled. (1 Greenleaf on
Evidence, secs. 536, 524; 1 Phillips on Evidence,
231; Hutchinson vs. Bank of Wheeling, 41 Pa.
St., 42; Beausoleil vs. Brown, 12 La. Ann., 543;
McDonald vs. Stark, 176 Ill., 456, 468.)
While we believe that the lower court committed no
error in refusing to admit the sentence acquitting Lope
K. Santos in the criminal case, we are of the opinion,
after a careful examination of the record brought to this
court, that it is insufficient to show that Lope K. Santos
was responsible, in any way, for the publication of the
alleged libel, and without discussing the question
whether or not the so-called Tagalog edition of "El
Renacimiento" and "El Renacimiento" constituted one
and the same newspaper, we find that the evidence is
insufficient to show that Lope K. Santos is responsible in
damages, in any way, for the publication of the said
alleged libel.
The appellants discussed the eight and ninth
assignments of error together, and claim that the lower
court committed an error in rendering a judgment jointly
and severally against the defendants and in allowing an
execution against the individual property of said owners,
and cite provisions of the Civil and Commercial Codes in
support of their contention. The difficulty in the
contention of the appellants is that they fail to recognize
that the basis of the present action is a tort. They fail to
recognize the universal doctrine that each joint tort
feasor is not only individually liable for the tort in which
he participates, but is also jointly liable with his tort
feasors. The defendants might have been sued
separately for the commission of the tort. They might
have been sued jointly and severally, as they were.
(Nicoll vs. Glennie, 1 M. & S. (English Common Law
Reports), 558.) If several persons jointly commit a tort,
the plaintiff or person injured, has his election to sue all
or some of the parties jointly, or one of them separately,
because the tort is in its nature a separate act of each
individual. (1 Chiddey, Common Law Pleadings, 86.) It is
not necessary that the cooperation should be a direct,
corporeal act, for, to give an example, in a case of
assault and battery committed by various persons, under
the common law all are principals. So also is the person
who counsels, aids or assists in any way he commission
of a wrong. Under the common law, he who aided or
assisted or counseled, in any way, the commission of a
crime, was as much a principal as he who inflicted or
committed the actual tort. (Page vs. Freeman, 19 Mo.,
421.)
It may be stated as a general rule, that the joint tort
feasors are all the persons who command, instigate,
promote, encourage, advise, countenance, cooperate in,
aid or abet the commission of a tort, or who approve of
it after it is done, if done for their benefit. They are each
liable as principals, to the same extent and in the same
manner as if they had performed the wrongful act
themselves. (Cooley on Torts, 133; Moir vs. Hopkins, 16
Ill., 313 (63 Am. Dec., 312 and note); Berry vs. Fletch,
1st Dill., 67; Smithwick vs. Ward, 7 Jones L. 64;
Smith vs. Felt, 50 Barb. (N. Y.), 612;
Shepard vs. McQuilkin, 2 W. Va., 90; Lewis vs. Johns, 34
Cal., 269.)
Joint tort feasors are jointly and severally liable for the
tort which they commit. The person injured may sue all
of them, or any number less than all. Each is liable for
the whole damage caused by all, and all together are
jointly liable for the whole damage. It is no defense for
one sued alone, that the others who participated in the
wrongful act are not joined with him as defendants; nor
is it any excuse for him that his participation in the tort
was insignificant as compared with that of the others.
(Forebrother vs. Ansley, 1 Campbell (English Reports),
343; Pitcher vs. Bailey, 8 East, 171; Booth vs. Hodgson,
6 Term Reports, 405; Vose vs. Grant, 15 Mass., 505;
Acheson vs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La.
Ann., 449; Murphy vs. Wilson, 44 Mo., 313;
Bishop vs. Ealey, 9 Johnson (N. Y.), 294.)
Joint tort feasors are not liable pro rata. The damages
can not be apportioned among them, except among
themselves. They can no insist upon an apportionment,
for the purpose of each paying an aliquot part. They are
jointly and severally liable for the full amount.
(Pardrige vs. Brady, 7 Ill. App., 639; Carney vs. Read, 11
Ind., 417; Lee vs. Black, 27 Ark., 337;
Bevins vs. McElroy, 52 Am. Dec., 258.)
A payment in full of the damage done, by one of the
joint tort feasors, of course satisfies any claim which
might exist against the others. There can be but one
satisfaction. The release of one of the joint tort feasors
by agreement, generally operates to discharge all.
(Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1
Johnson (N.Y.), 290; Brown vs. Marsh, 7 Vt., 327;
Ayer vs. Ashmead, 31 Conn., 447; Eastman vs. Grant,
34 Vt., 387; Turner vs.Hitchcock, 20 Iowa, 310;
Ellis vs. Esson, 50 Wis., 149.)
Of course the courts during the trial may find that some
of the alleged joint tort feasors are liable and that others
are not liable. The courts may release some for lack of
evidence while condemning others of the alleged tort
feasors. And this is true even though they are charged
jointly and severally. (Lansing vs. Montgomery, 2
Johnson (N. Y.), 382; Drake vs. Barrymore, 14 Johnson,
166; Owens vs. Derby, 3 Ill., 126.)
This same principle is recognized by Act 277 of the
Philippine Commission. Section 6 provides that:
Every author, editor or proprietor . . . is
chargeable with the publication of any words in
any part . . . or number of each newspaper, as
fully as if he were the author of the same.
In our opinion the lower court committed no error in
rendering a joint and several judgment against the
defendants and allowing an execution against their
individual property. The provisions of the Civil and
Commercial Codes cited by the defendants and
appellants have no application whatever to the question
presented in the present case.
The tenth assignment of error above noted relates solely
to the amount of damages suffered on account of
wounded feelings, mental suffering and injury to the
good name and reputation of Mr. Worcester, by reason
of the alleged libelous publication. The lower court found
that the damages thus suffered by Mr. Worcester
amounted to P35,000. This assignment of error presents
a most difficult question. The amount of damages
resulting from a libelous publication to a man's good
name and reputation is difficult of ascertainment. It is
nor difficult to realize that the damage thus done is
great and almost immeasurable. The specific amount the
damages to be awarded must depend upon the facts in
each case and the sound discretion of the court. No
fixed or precise rules can be laid down governing the
amount of damages in cases of libel. It is difficult to
include all of the facts and conditions which enter into
the measure of such damages. A man's good name and
reputation are worth more to him than all the wealth
which he can accumulate during a lifetime of industrious
labor. To have them destroyed may be eminently of
more damage to him personally than the destruction of
his physical wealth. The loss is immeasurable. No
amount of money can compensate him for his loss.
Notwithstanding the great loss which he, from his
standpoint, sustains, the courts must have some
tangible basis upon which to estimate such damages.
In discussing the elements of damages in a case of libel,
the Honorable James C. Jenkins, who tried the present
case in the court below, correctly said that, "The
enjoyment of a private reputation is as much a
constitutional right as the possession of life, liberty or
property. It is one of those rights necessary to human
society, that underlie the whole scheme of human
civilization. The respect and esteem of his fellows are
among the highest rewards of a wellspent life
vouchsafed to man in this existence. The hope of it is
the inspiration of youth and its possession is a solace in
later years. A man of affairs, a business man, who has
been seen known by his fellowmen in the active pursuits
of life for many years, and who has developed a great
character and an unblemished reputation, has secured a
possession more useful and more valuable than lands or
houses or silver or gold. The law recognizes the value of
such a reputation and constantly strives to give redress
for its injury. It imposes upon him who attacks it by
slanderous words or libelous publications, the liability to
make full compensation for the damage to the
reputation, for the shame, obloquy and for the injury to
the feelings of its owner, which are caused by the
publication of the slander or libel. The law goes further.
If the words are spoken or the publication is made with
the intent to injure the victim or with criminal
indifference to civil obligation, it imposes such damages
as the jury, in view of all the circumstances of the
particular case, adjudge that the wrongdoer ought to
pay as an example to the public and to deter others
from doing likewise, and for punishment for the infliction
of the injury."
As was said above, the damages suffered by Mr.
Worcester to his good name and reputation are most
difficult of ascertainment. The attorney for the
appellants, in his brief, lends the court but little
assistance in reaching a conclusion upon this question.
The appellants leaves the whole question to the
discretion of the court, without any argument whatever.
After a careful examination, we are of the opinion that
part of the judgment of the lower court relating to the
damages suffered by the Honorable Dean C. Worcester,
should be modified, and that a judgment should be
rendered in favor of Mr. Dean C. Worcester and against
the defendants, jointly and severally, for the sum of
P15,000, with interest at 6 per cent from the 23d of
January, 1909.
With reference to the eleventh assignment of error
above noted, to wit: That the court erred in imposing
punitive damages upon the defendants, we are of the
opinion, after a careful examination of the evidence, and
in view of all of the facts and circumstances and the
malice connected with the publication of said editorial
and the subsequent publications with relation to said
editorial, that the lower court, by virtue of the provisions
of Act No. 277 of the Philippine Commission, was
justified in imposing punitive damages upon the
defendants.
Section 11 of Act No. 277 allows the court, in an action
for libel, to render a judgment for punitive damages, in
an amount which the court may think will be a just
punishment to the libeler and an example to others.
Exemplary damages in civil actions for libel may always
be recovered if the defendant or defendants are
actuated by malice. In the present case there was not
the slightest effort on the part of the defendants to
show the existence of probable cause or foundation
whatever for the facts contained in said editorial. Malice,
hatred, and ill will against the plaintiff are seen
throughout the record. The said editorial not only
attempted to paint the plaintiff as a villain, but upon
every occasion, the defendants resorted to ridicule of
the severest kind.
Here again we find difficulty in arriving at a conclusion
relating to the damages which should be imposed upon
the defendants for the purpose of punishment. Upon this
question the courts must be governed in each case by
the evidence, the circumstances and their sound
discretion. Taking into consideration the fact that some
of the defendants have been prosecuted criminally and
have been sentenced, and considering that fact as a part
of the punitive damages, we have arrived at the
conclusion that the judgment of the lower court should
be modified, and that a judgment should be rendered
against the defendants, jointly and severally, and in
favor of the plaintiff, the Honorable Dean C. Worcester,
in the sum of P10,000, as punitive damages, with
interest at 6 per cent from the 23d day of January,
1909.
Therefore, after a full consideration of all the facts
contained in the record and the errors assigned by the
appellants in this court, we are of the opinion that the
judgment of the lower court should be modified and that
a judgment should be rendered in favor of Dean C.
Worcester and against the defendants Martin Ocampo,
Teodoro M. Kalaw, Manuel Palma, Arcadio Arellano,
Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio
M. Cansipit, jointly and severally, for the sum of P25,000
with interest at 6 per cent from the 23d of January,
1909, with costs, and that a judgment should be entered
absolving Lope K. Santos from any liability under said
complaint. So ordered.
 ART. 2184 NCC:
G.R. No. L-9010 March 28, 1914
J. H. CHAPMAN, plaintiff-appellant, vs. JAMES M.
UNDERWOOD, defendant-appellee.
At the time the accident occurred, which is the basis of
this action, there was a single-track street-car line
running along Calle Herran, with occasional switches to
allow cars to meet and pass each other. One of these
switches was located at the scene of the accident.
The plaintiff had been visiting his friend, a man by the
name of Creveling, in front of whose house the accident
happened. He desired to board a certain "San Marcelino"
car coming from Santa Ana and bound for Manila. Being
told by Creveling that the car was approaching, he
immediately, and somewhat hurriedly, passed from the
gate into the street for the purpose of signaling and
boarding the car. The car was a closed one, the
entrance being from the front or the rear flatform.
Plaintiff attempted to board the front platform but,
seeing that he could not reached it without extra
exertion, stopped beside the car, facing toward the rear
platform, and waited for it to come abreast of him in
order to board. While in this position he was struck from
behind and run over by the defendant's automobile.
The defendant entered Calle Herran at Calle Peñafrancia
in his automobile driven by his chauffeur, a competent
driver. A street car bound from Manila to Santa Ana
being immediately in front of him, he followed along
behind it. Just before reaching the scene of the accident
the street car which was following took the switch —
that is, went off the main line to the left upon the switch
lying alongside of the main track. Thereupon the
defendant no longer followed that the street car nor
went to the left, but either kept straight ahead on the
main street-car track or a bit to the right. The car which
the plaintiff intended to board was on the main line and
bound in an opposite direction to that in which the
defendant was going. When the front of the "San
Marcelino" car, the one the plaintiff attempted to board,
was almost in front of the defendant's automobile,
defendant's driver suddenly went to the right and struck
and ran over the plaintiff, as above described.
The judgment of the trial court was for defendant.
A careful examination of the record leads us to the
conclusion that the defendant's driver was guilty of
negligence in running upon and over the plaintiff. He
was passing an oncoming car upon the wrong side. The
plaintiff, in common out to board the car, was not
obliged, for his own protection, to observe whether a car
was coming upon him from his left hand. He had only to
guard against those coming from the right. He knew
that, according to the law of the road, no automobile or
other vehicle coming from his left should pass upon his
side of the car. He needed only to watch for cars coming
from his right, as they were the only ones under the law
permitted to pass upon that side of the street car.
The defendant, however, is not responsible for the
negligence of his driver, under the facts and
circumstances of this case. As we have said in the case
of Johnson vs. David (5 Phil. Rep., 663), the driver does
not fall within the list of persons in article 1903 of the
Civil Code for whose acts the defendant would be
responsible.
Although in the David case the owner of the vehicle was
not present at the time the alleged negligent acts were
committed by the driver, the same rule applies where
the owner is present, unless the negligent act of the
driver are continued for such a length of time as to give
the owner a reasonable opportunity to observe them
and to direct his driver to desist therefrom. An owner
who sits in his automobile, or other vehicle, and permits
his driver to continue in a violation of the law by the
performance of negligent acts, after he has had a
reasonable opportunity to observe them and to direct
that the driver cease therefrom, becomes himself
responsible for such acts. The owner of an automobile
who permits his chauffeur to drive up to Escolta, for
example, at a speed of 60 miles an hour, without any
effort to stop him, although he has had a reasonable
opportunity to do so, becomes himself responsible, both
criminally and civilly, for the results produced by the acts
of his chauffeur. On the other hand, if the driver, by a
sudden act of negligence, and without the owner having
a reasonable opportunity to prevent the acts or its
continuance, injures a person or violates the criminal
law, the owner of the automobile, although present
therein at the time the act was committed, is not
responsible, either civilly or criminally, therefor. The act
complained of must be continued in the presence of the
owner for such a length a time that the owner, by his
acquiescence, makes his driver's act his own.
In the case before us it does not appear from the record
that, from the time the automobile took the wrong side
of the road to the commission of the injury, sufficient
time intervened to give the defendant an opportunity to
correct the act of his driver. Instead, it appears with fair
clearness that the interval between the turning out to
meet and pass the street car and the happening of the
accident was so small as not to be sufficient to charge
defendant with the negligence of the driver.
Whether or not the owner of an automobile driven by a
competent driver, would be responsible, whether
present or not, for the negligent acts of his driver when
the automobile was a part of a business enterprise, and
was being driven at the time of the accident in
furtherance of the owner's business, we do not now
decide. The judgment appealed from is affirmed, with
costs against the appellant.
G.R. No. L-20392 December 18, 1968
MARCIAL T. CAEDO, JUANA SANGALANG CAEDO,
and the Minors, EPHRAIM CAEDO, EILEEN CAEDO,
ROSE ELAINE CAEDO, suing through their father,
MARCIAL T. CAEDO, as guardian ad
litem, plaintiffs-appellants, vs. YU KHE THAI and
RAFAEL BERNARDO, defendants-appellants
As a result of a vehicular accident in which plaintiff
Marcial Caedo and several members of his family were
injured they filed this suit for recovery of damages from
the defendants. The judgment, rendered by the Court of
First Instance of Rizal on February 26, 1960 (Q-2952),
contains the following disposition:
IN VIEW OF THE FOREGOING, the court renders
a judgment, one in favor of the plaintiffs and
against the defendants, Yu Khe Thai and Rafael
Bernardo, jointly and severally, to pay to
plaintiffs Marcial Caedo, et al., the sum of
P1,929.70 for actual damages; P48,000.00 for
moral damages; P10,000.00 for exemplary
damages; and P5,000.00 for attorney's fees,
with costs against the defendants. The
counterclaim of the defendants against the
plaintiffs is hereby ordered dismissed, for lack of
merits.
On March 12, 1960 the judgment was amended so as to
include an additional award of P3,705.11 in favor of the
plaintiffs for the damage sustained by their car in the
accident.
Both parties appealed to the Court of Appeals, which
certified the case to us in view of the total amount of
the plaintiffs' claim.
There are two principal questions posed for resolution:
(1) who was responsible for the accident? and (2) if it
was defendant Rafael Bernardo, was his employer,
defendant Yu Khe Thai, solidarily liable with him? On the
first question the trial court found Rafael Bernardo
negligent; and on the second, held his employer
solidarily liable with him.
The mishap occurred at about 5:30 in the morning of
March 24, 1958 on Highway 54 (now E. de los Santos
Avenue) in the vicinity of San Lorenzo Village. Marcial
was driving his Mercury car on his way from his home in
Quezon City to the airport, where his son Ephraim was
scheduled to take a plane for Mindoro. With them in the
car were Mrs. Caedo and three daughters. Coming from
the opposite direction was the Cadillac of Yu Khe Thai,
with his driver Rafael Bernardo at the wheel, taking the
owner from his Parañaque home to Wack Wack for his
regular round of golf. The two cars were traveling at
fairly moderate speeds, considering the condition of the
road and the absence of traffic — the Mercury at 40 to
50 kilometers per hour, and the Cadillac at
approximately 30 to 35 miles (48 to 56 kilometers).
Their headlights were mutually noticeable from a
distance. Ahead of the Cadillac, going in the same
direction, was a caretella owned by a certain Pedro
Bautista. The carretela was towing another horse by
means of a short rope coiled around the rig's vertical
post on the right side and held at the other end by
Pedro's son, Julian Bautista.
Rafael Bernardo testified that he was almost upon the
rig when he saw it in front of him, only eight meters
away. This is the first clear indication of his negligence.
The carretela was provided with two lights, one on each
side, and they should have given him sufficient warning
to take the necessary precautions. And even if he did
not notice the lights, as he claimed later on at the trial,
the carretela should anyway have been visible to him
from afar if he had been careful, as it must have been in
the beam of his headlights for a considerable while.
In the meantime the Mercury was coming on its own
lane from the opposite direction. Bernardo, instead of
slowing down or stopping altogether behind
the carretela until that lane was clear, veered to the left
in order to pass. As he did so the curved end of his car's
right rear bumper caught the forward rim of the rig's left
wheel, wrenching it off and carrying it along as the car
skidded obliquely to the other lane, where it collided
with the oncoming vehicle. On his part Caedo had seen
the Cadillac on its own lane; he slackened his speed,
judged the distances in relation to the carretela and
concluded that the Cadillac would wait behind. Bernardo,
however, decided to take a gamble — beat the Mercury
to the point where it would be in line with the carretela,
or else squeeze in between them in any case. It was a
risky maneuver either way, and the risk should have
been quite obvious. Or, since the car was moving at
from 30 to 35 miles per hour (or 25 miles according to
Yu Khe Thai) it was already too late to apply the brakes
when Bernardo saw the carretela only eight meters in
front of him, and so he had to swerve to the left in spite
of the presence of the oncoming car on the opposite
lane. As it was, the clearance Bernardo gave for his car's
right side was insufficient. Its rear bumper, as already
stated, caught the wheel of the carretela and wrenched
it loose. Caedo, confronted with the unexpected
situation, tried to avoid the collision at the last moment
by going farther to the right, but was unsuccessful. The
photographs taken at the scene show that the right
wheels of his car were on the unpaved shoulder of the
road at the moment of impact.
There is no doubt at all that the collision was directly
traceable to Rafael Bernardo's negligence and that he
must be held liable for the damages suffered by the
plaintiffs. The next question is whether or not Yu Khe
Thai, as owner of the Cadillac, is solidarily liable with the
driver. The applicable law is Article 2184 of the Civil
Code, which reads:
ART. 2184. In motor vehicle mishaps, the owner
is solidarily liable with his driver, if the former,
who was in the vehicle, could have, by the use
of due diligence, prevented the misfortune. It is
disputably presumed that a driver was negligent,
if he had been found guilty of reckless driving or
violating traffic regulations at least twice within
the next preceding two months.
Under the foregoing provision, if the causative factor
was the driver's negligence, the owner of the vehicle
who was present is likewise held liable if he could have
prevented the mishap by the exercise of due diligence.
The rule is not new, although formulated as law for the
first time in the new Civil Code. It was expressed in
Chapman vs. Underwood (1914), 27 Phil. 374, where
this Court held:
... The same rule applies where the owner is
present, unless the negligent acts of the driver
are continued for such a length of time as to
give the owner a reasonable opportunity to
observe them and to direct his driver to desist
therefrom. An owner who sits in his automobile,
or other vehicle, and permits his driver to
continue in a violation of the law by the
performance of negligent acts, after he has had
a reasonable opportunity to observe them and
to direct that the driver cease therefrom,
becomes himself responsible for such acts. The
owner of an automobile who permits his
chauffeur to drive up the Escolta, for example,
at a speed of 60 miles an hour, without any
effort to stop him, although he has had a
reasonable opportunity to do so, becomes
himself responsible, both criminally and civilly,
for the results produced by the acts of the
chauffeur. On the other hand, if the driver, by a
sudden act of negligence, and without the
owner having a reasonable opportunity to
prevent the act or its continuance, injures a
person or violates the criminal law, the owner of
the automobile, although present therein at the
time the act was committed, is not responsible,
either civilly or criminally, therefor. The act
complained of must be continued in the
presence of the owner for such a length of time
that the owner, by his acquiescence, makes his
driver act his own.
The basis of the master's liability in civil law is
not respondent superior but rather the relationship
of paterfamilias. The theory is that ultimately the
negligence of the servant, if known to the master and
susceptible of timely correction by him, reflects his own
negligence if he fails to correct it in order to prevent
injury or damage.
In the present case the defendants' evidence is that
Rafael Bernardo had been Yu Khe Thai's driver since
1937, and before that had been employed by Yutivo
Sons Hardware Co. in the same capacity for over ten
years. During that time he had no record of violation of
traffic laws and regulations. No negligence for having
employed him at all may be imputed to his master.
Negligence on the part of the latter, if any, must be
sought in the immediate setting and circumstances of
the accident, that is, in his failure to detain the driver
from pursuing a course which not only gave him clear
notice of the danger but also sufficient time to act upon
it. We do not see that such negligence may be imputed.
The car, as has been stated, was not running at an
unreasonable speed. The road was wide and open, and
devoid of traffic that early morning. There was no
reason for the car owner to be in any special state of
alert. He had reason to rely on the skill and experience
of his driver. He became aware of the presence of
the carretela when his car was only twelve meters
behind it, but then his failure to see it earlier did not
constitute negligence, for he was not himself at the
wheel. And even when he did see it at that distance, he
could not have anticipated his driver's sudden decision
to pass the carretela on its left side in spite of the fact
that another car was approaching from the opposite
direction. The time element was such that there was no
reasonable opportunity for Yu Khe Thai to assess the
risks involved and warn the driver accordingly. The
thought that entered his mind, he said, was that if he
sounded a sudden warning it might only make the other
man nervous and make the situation worse. It was a
thought that, wise or not, connotes no absence of that
due diligence required by law to prevent the misfortune.
The test of imputed negligence under Article 2184 of the
Civil Code is, to a great degree, necessarily subjective.
Car owners are not held to a uniform and inflexible
standard of diligence as are professional drivers. In
many cases they refrain from driving their own cars and
instead hire other persons to drive for them precisely
because they are not trained or endowed with sufficient
discernment to know the rules of traffic or to appreciate
the relative dangers posed by the different situations
that are continually encountered on the road. What
would be a negligent omission under aforesaid Article on
the part of a car owner who is in the prime of age and
knows how to handle a motor vehicle is not necessarily
so on the part, say, of an old and infirm person who is
not similarly equipped.
The law does not require that a person must possess a
certain measure of skill or proficiency either in the
mechanics of driving or in the observance of traffic rules
before he may own a motor vehicle. The test of his
intelligence, within the meaning of Article 2184, is his
omission to do that which the evidence of his own
senses tells him he should do in order to avoid the
accident. And as far as perception is concerned, absent
a minimum level imposed by law, a maneuver that
appears to be fraught with danger to one passenger
may appear to be entirely safe and commonplace to
another. Were the law to require a uniform standard of
perceptiveness, employment of professional drivers by
car owners who, by their very inadequacies, have real
need of drivers' services, would be effectively
proscribed.
We hold that the imputation of liability to Yu Khe Thai,
solidarily with Rafael Bernardo, is an error. The next
question refers to the sums adjudged by the trial court
as damages. The award of P48,000 by way of moral
damages is itemized as follows:
Marcial Caedo P 20,000.00
Juana S. Caedo 15,000.00
Ephraim Caedo 3,000.00
Eileen Caedo 4,000.00
Rose Elaine Caedo 3,000.00
Merilyn Caedo 3,000.00
Plaintiffs appealed from the award, claiming that the
Court should have granted them also actual or
compensatory damages, aggregating P225,000, for the
injuries they sustained. Defendants, on the other hand
maintain that the amounts awarded as moral damages
are excessive and should be reduced. We find no
justification for either side. The amount of actual
damages suffered by the individual plaintiffs by reason
of their injuries, other than expenses for medical
treatment, has not been shown by the evidence. Actual
damages, to be compensable, must be proven. Pain and
suffering are not capable of pecuniary estimation, and
constitute a proper ground for granting moral, not
actual, damages, as provided in Article 2217 of the Civil
Code.
The injuries sustained by plaintiffs are the following:
MARCIAL T. CAEDO:
A. Contusion, with hematoma, scalp, frontal left;
abrasions, chest wall, anterior;
B. Multiple fractures, ribs, right, lst to 5th
inclusive. Third rib has a double fracture;
Subparieto-plaural hematoma; Basal disc
atelectasis, lung, right lower lobe, secondary;
C. Pseudotosis, left, secondary to probable basal
fracture, skull.
JUANA SANGALANG CAEDO:
A. Abrasions, multiple:
(1)frontal region, left; (2) apex of nose; (3)
 upper eyelid, left; (4) knees.
B. Wound, lacerated, irregular, deep, frontal;
C. Fracture, simple, 2nd rib posterior, left with
displacement.
D. Fracture, simple, base, proximal phalanx right,
big toe.
E. Fracture, simple, base, metatarsals III and V
right.
F. Concussion, cerebral.
EPHRAIM CAEDO:
A. Abrasions, multiple:
(1) left temporal area; (2) left frontal; (3) left
supraorbital
EILEEN CAEDO:
A. Lacerated wound (V-shaped), base, 5th finger,
right, lateral aspect.
B. Abrasions, multiple:
(1) dorsum, proximal phalanx middle finger; (2)
Knee, anterior, bilateral; (3) shin, lower 1/3.
ROSE ELAINE CAEDO:
A. Abrasions, multiple: (1) upper and lower lids;
(2) left temporal; (3) nasolabial region; (4) leg,
lower third, anterior.
MARILYN CAEDO:
A. Abrasions, multiple: (1)shin, lower 1/3 right; (2)
arm, lower third
C. Contusion with hematoma, shin, lower 1/3,
anterior aspect, right. (See Exhibits D, D-1, D-2,
D-3, D-4, and D- 5)
It is our opinion that, considering the nature and extent
of the above-mentioned injuries, the amounts of moral
damages granted by the trial court are not excessive.
WHEREFORE, the judgment appealed from is modified in
the sense of declaring defendant-appellant Yu Khe Thai
free from liability, and is otherwise affirmed with respect
to defendant Rafael Bernardo, with costs against the
latter.
G.R. No. L-62988 February 28, 1985
FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and
ROBERTO R. LUNA, JR., petitioners,
vs. THE HON. INTERMEDIATE APPELLATE COURT,
JOSE E. DELA ROSA and LUIS DELA
ROSA, respondents.
This is a petition to review a decision of the defunct
Court of Appeals. The petitioners are the heirs of
Roberto R. Luna who was killed in a vehicular collision.
The collision took place on January 18, 1970, at the go-
kart practice area in Greenhills, San Juan, Metro Manila.
Those involved were the go-kart driven by the deceased,
a business executive, and a Toyota car driven by Luis
dela Rosa, a minor of 13 years who had no driver's
license.
In a suit for damages brought by the heirs of Roberto R.
Luna against Luis dela Rosa and his father Jose dela
Rosa, the Court of First Instance of Manila in Civil Case
No. 81078, rendered the following judgment:
WHEREFORE, judgment is hereby rendered
sentencing the defendants Luis dela Rosa and
Jose dela Rosa to pay, jointly and severally, to
the plaintiffs the sum of P1,650,000.00 as
unearned net earnings of Roberto Luna,
P12,000.00 as compensatory damages, and
P50,000.00 for the loss of his companionship,
with legal interest from the date of this decision;
plus attorney's fees in the sum of P50,000.00,
and the costs of suit. (Record on Appeal, p. 35.)
The defendants appealed to the defunct Court of
Appeals which in a decision dated May 22, 1979,
affirmed in totothat of the trial court. (Rollo, p. 48.)
However, upon a motion for reconsideration filed by the
defendants-appellants, the Court of Appeals, in a
resolution dated June 19, 1981, modified its judgment
thus:
WHEREFORE, the decision rendered in this case is hereby
modified insofar as the judgment ordering the defendants to
pay, jointly and severally, the sum of P 1,650,000.00 to
plaintiffs with legal interest from July 5, 1973, is concerned.
In lieu thereof, defendants are hereby ordered to pay
plaintiffs, jointly and severally, the sum of Four Hundred
Fifty Thousand Pesos (P450,000.00) as unearned net
earnings of Roberto R. Luna, with legal interest thereon from
the date of the filing of the complaint until the whole
amount shall have been totally paid.
The rest of the other dispositions in the judgment a quo
stand. (Rollo, pp. 33-34.)
Both parties filed separate petitions for review of the
appellate court's decision.
In G.R. No. 57362, the petition for review of Jose and
Luis dela Rosa was denied for lack of merit on October
5, 1981. Subsequently, they informed that the decision
sought to be reviewed was not yet final because the
Lunas had a pending motion for reconsideration. For
prematurity, this Court set aside all previous resolutions.
On February 16, 1983, acting upon the motion and
manifestation of the petitioners, they were required to
file an amended petition within thirty days from notice.
On June 20, 1983, this Court resolved: "For failure of the
petitioners to file an amended petition as required, this
case is hereby DISMISSED and the dismissal is final."
The instant case — G.R. No. 62988 — is the separate
appeal of the Lunas. Their petition contains the following
prayer:
1. That the petition be given due course;
2. That after notice and hearing, judgment be
rendered, setting aside or modifying the
RESOLUTION of respondent Court of Appeals
 dated June 19, 1981, attached as Annex "A" to the
petition, only insofar as it reduced the unearned
net earnings to P450,000.00, s• as to affirm the
trial court's finding as to the unearned net
earnings of the deceased in the amount of
P1,650,000.00;
3. Ordering that the award of attorney's fees shall
also be with interest, at the legal rate. (Rollo, p.
27.)
On June 27, 1983, the petition was given due course. (Rollo, pp. 122-
123.)
properties was thwarted by guards and this Court had to
direct the Chief of the Philippine Constabulary to assist
in enforcing the writ of execution. The execution yielded
only a nominal amount. In the meantime, Luis dela Rosa
is now of age, married with two children, and living in
Madrid, Spain with an uncle but only casually employed.
It is said: "His compensation is hardly enough to support
his family. He has no assets of his own as yet." (Rollo, p.
208.)
1. On the amount of the award.

In the light of the foregoing, the resolution stated:
It thus appears that the questions
in esse are with respect to the award for
unearned net earnings — should the
award be P450,000.00 only or should it
be P1,650,000.00 as originally
adjudged; and whether the award for
attorney's fees shall also be with
interest at the legal rate.
The Court takes notice that the wrongful
death occurred as early as January 18,
1970, and that until now the process of
litigation is not yet over. In the
meantime the value of the Philippine
peso has been seriously eroded so that
the heirs of the deceased may ultimately
have a greatly depreciated judgment. In
the interest of justice, the private
respondents are hereby ordered to PAY
to the petitioners within thirty (30) days
from notice the following amounts
adjudged against them: P450,000.00 for
unearned net earnings of the deceased;
(P12,000.00 as compensatory damages;
P50,000.00 for the loss of his
companionship with legal interest from
July 3, 1973; and P50,000.00 as
attorney's fees.
Still to be resolved shall be
following: whether the award
unearned net earnings shall
increased to P1,650,000.00;
whether the award for attorney's
shall also be with interest at the
rate. The costs will be adjudged
matter of course. (Rollo, p. 123.)
The private respondents failed to pay the amounts and
when required to explain they said that they had no
cash money. Accordingly, this Court directed the trial
court to issue a writ of execution but the attempt of the
special sheriff to enter the private respondent's premises
so that he could make an inventory of personal
The award of P1,650,000.00 was based on two factors,
namely: (a) that the deceased Roberto R. Luna could
have lived for 30 more years; and (b) that his annual net
income was P55,000.00, computed at P75,000.00 annual
gross income less P20,000.00 annual personal expenses.
This is what the trial court said on Luna's life
expectancy:
According to the American Experience
Table of Mortality, at age 33 the life
expectancy of Roberto Luna was 33.4
years, and under the Commissioner
Standard Ordinary, used by our
domestic insurance companies since
1968 for policies above P5,000.00 his
life expectancy was 38.51 years. Dr.
Vicente Campa, medical director of San
Miguel Corporation, testified that he was
the regular physician of Roberto Luna
since his marriage to Felina Rodriguez in
1957. He said that except for a slight
anemia which he had ten years earlier,
Roberto Luna was of good health.
Allowing for this condition, he could
reasonably expect to have a life
expectancy of 30 years. (Record on
Appeal, p. 33.)
The Court of Appeals in sustaining the trial court's
conclusion said:
the
for We have not been persuaded to disturb
be the conclusion that the deceased had a
and life expectancy of thirty years. At the
fees time of Luna's death, he was only thirty-
legal three years old and in the best of
as a health. With his almost perfect physical
condition and his sound mind, the
expectation that he could have lived for
another thirty years is reasonable,
considering that with his educational
attainment, his social and financial
standing, he had the means of staying
fit and preserving his health and well-
being. That he could have lived at least
 until the age of sixty-three years is an
assessment which is more on the
conservative side in view of the
testimony of Dr. Vicente Campa that the
general life expectancy nowadays had
gone up to seventy years. (Rollo, p. 45.)
The Court of Appeals likewise sustained the trial court in
respect of Luna's annual income and expense. This is
what the trial court said:
Roberto Luna was 33 years old when he
died, and was survived by his wife
Felina Rodriguez-Luna, and two
children, Roberto Jr., 13 years, and
Jose, 12 years. His wife was 35 years
old at the time. He declared a gross
income of P16,900.00 for 1967 (Exhibit
I), P29,700,000 for 1968 (Exhibit H) and
P45,117.69 for 1969 (Exhibit G). He had
investments in various corporations
amounting to P136,116.00 (Exhibits K,
M, M-1, N, N-1 to N-3, O, O-1, P, Q and
R) and was the president and general
manager of Rodlum Inc.; general
manager of Esso Greenhills Service
Center; Assistant manager of Jose
Rodriguez Lanuza Sons; director of
Steadfast Investment Corporation;
chairman and treasurer of Greenhills
Industrial Corporation; vice-president of
Oasis, Inc.; director of Nation Savings
Association; director of Arlun Taxi; and
treasurer of National Association of
Retired Civil Employees.
... . His income tax returns show an
increase in his income in the short
period of three years. It is reasonable to
expect that it would still go higher for
the next fifteen years and reach a
minimum of P75,000.00 a year. The
potential increase in the earning
capacity of a deceased person is
recognized by the Supreme Court. ...
the court believes that the expected
gross earnings of Roberto Luna should
be fixed in the sum of P75,000.00 a
year for the period of his life expectancy
of 30 years, but deducting his personal
expenses which, because of his business
and social standing the court in the
amount of P20,000.00 a year, in
accordance with the rulings of the
Supreme Court. (Record on Appeal, pp.
32-34.)
Acting on a motion for reconsideration filed by the dela
Rosas, the Court of Appeals took into account the fact
"that the deceased Roberto R. Luna had been engaged
in car racing as a sport, having participated in
tournaments both here and abroad;" it said that Luna's
habit and manner of life should be "one of the factors
affecting the value of mortality table in actions for
damages;" and, consequently, concluded that Luna
could not have lived beyond 43 years. The result was
that the 30-year life expectancy of Luna was reduced to
10 years only.
Further on the motion for reconsideration, the Court of
Appeals ruled in respect of Luna's annual personal
expenses:
... . Considering the escalating price of
automobile gas which is a key
expenditure in Roberto R. Luna's social
standing, We should increase that
amount to P30,000.00 as the would be
personal expenses of the deceased per
annum. (Rollo, p. 33.)
The Court of Appeals then determined the amount of
the award thus: P75,000.00 annual gross income less
P30,000.00 annual personal expenses leaves P45,000.00
multiplied by 10 years of life expectancy and the product
is P450,000.00.
The petitioners contend that the Court of Appeals erred
when by its resolution of June 19, 1981, it reduced
Luna's life expectancy from 30 to 10 Years and
increased his annual personal expenses from P20,000.00
to P30,000.00. We sustain the petitioners.
The Court of Appeals, in reducing Luna's life expectancy
from 30 to 10 years said that his habit and manner of
life should be taken into account, i.e. that he had been
engaged in car racing as a sport both here and abroad -
a dangerous and risky activity tending to shorten his life
expectancy. That Luna had engaged in car racing is not
based on any evidence on record. That Luna was
engaged in go-kart racing is the correct statement but
then go-kart racing cannot be categorized as a
dangerous sport for go-karts are extremely low slung,
low powered vehicles, only slightly larger than foot-
pedalled four wheeled conveyances. It was error on the
part of the Court of Appeals to have disturbed the
determination of the trial court which it had previously
affirmed.
Similarly, it was error for the Court of Appeals to reduce
the net annual income of the deceased by increasing his
annual personal expenses but without at the same time
increasing his annual gross income. It stands to reason
that if his annual personal expenses should increase
because of the "escalating price of gas which is a key
expenditure in Roberto R. Luna's social standing" [a
statement which lacks complete basis], it would not be
unreasonable to suppose that his income would also
increase considering the manifold sources thereof.
In short, the Court of Appeals erred in modifying its
original decision.
2. Attorney's fees — with or without interest at the legal
rate.
The trial court awarded attorney's fees to the petitioners
in the sum of P50,000.00. This award was affirmed by
the Court of Appeals in its decision of May 22, 1979. The
resolution of June 19, 1981, reaffirmed the award. The
two decisions as well as the resolution do not provide for
interest at the legal rate to be tacked to the award.
The petitioners now pray that the award of attorney's
fees be with interest at the legal rate from the date of
the filing of the complaint. There is merit in this prayer.
The attorney's fees were awarded in the concept of
damages in a quasi-delict case and under the
circumstances interest as part thereof may be
adjudicated at the discretion of the court. (See Art.
2211, Civil Code.) As with the other damages awarded,
the interest should accrue only from the date of the trial
court's decision.
The private respondents invoke Elcano vs. Hill, L-24803,
May 26,1977; 77 SCRA 98, where it was held that Article
2180 of the Civil Code applied to Atty. Marvin Hill
notwithstanding the emancipation by marriage of
Reginald Hill, his son but since Reginald had attained
age, as a matter of equity, the liability of Atty. Hill had
become merely subsidiary to that of his son. It is now
said that Luis dela Rosa, is now married and of legal age
and that as a matter of equity the liability of his father
should be subsidiary only.
We are unwilling to apply equity instead of strict law in
this case because to do so will not serve the ends of
justice. Luis dela Rosa is abroad and beyond the reach
of Philippine courts. Moreover, he does not have any
property either in the Philippines or elsewhere. In fact
his earnings are insufficient to support his family.
WHEREFORE, the resolution of the Court of Appeals
dated June 19, 1981, is hereby set aside; its decision
dated May 22, 1979, is reinstated with the sole
modification that the award for attorney's fees shall earn
interest at the legal rate from July 5, 1973, the date of
the trial court's decision. Costs against the private
respondents. SO ORDERED.
B. VICARIOUS LIABILITY
 QUASI-TORT- DEFINITION
 PD 603:
Article 58. Torts. - Parents and guardians are
responsible for the damage caused by the child under
their parental authority in accordance with the Civil
Code.
 ART. 216, 218-219, 221, 236 FC
 ART. 101-103 RPC
 RA NO. 9344 :
SEC. 6. Minimum Age of Criminal Responsibility. -
A child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from
criminal liability. However, the child shall be subjected to
an intervention program pursuant to Section 20 of this
Act.
A child above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal
liability and be subjected to an intervention program,
unless he/she has acted with discernment, in which
case, such child shall be subjected to the appropriate
proceedings in accordance with this Act.
The exemption from criminal liability herein established
does not include exemption from civil liability, which
shall be enforced in accordance with existing laws.
 ART. 2180-2182 NCC:
1. PARENTS.
G.R. No. 85044 June 3, 1992
MACARIO TAMARGO, CELSO TAMARGO and
AURELIA TAMARGO, petitioners, vs. HON. COURT
OF APPEALS, THE HON. ARISTON L. RUBIO, RTC
Judge, Branch 20, Vigan, Ilocos Sur; VICTOR
BUNDOC; and CLARA BUNDOC, respondents
On 20 October 1982, Adelberto Bundoc, then a minor of
10 years of age, shot Jennifer Tamargo with an air rifle
causing injuries which resulted in her death. Accordingly,
a civil complaint for damages was filed with the Regional
Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as
Civil Case No. 3457-V, by petitioner Macario Tamargo,
Jennifer's adopting parent, and petitioner spouses Celso
and Aurelia Tamargo, Jennifer's natural parents against
respondent spouses Victor and Clara Bundoc, Adelberto's
natural parents with whom he was living at the time of
the tragic incident. In addition to this case for damages,
a criminal information or Homicide through Reckless
Imprudence was filed [Criminal Case No. 1722-V]
against Adelberto Bundoc. Adelberto, however, was
acquitted and exempted from criminal liability on the
ground that he bad acted without discernment.
Prior to the incident, or on 10 December 1981, the
spouses Sabas and Felisa Rapisura had filed a petition to
adopt the minor Adelberto Bundoc in Special
Proceedings No. 0373-T before the then Court of First
Instance of Ilocos Sur. This petition for adoption was
grunted on, 18 November 1982, that is, after Adelberto
had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc,
Adelberto's natural parents, reciting the result of the
foregoing petition for adoption, claimed that not they,
but rather the adopting parents, namely the spouses
Sabas and Felisa Rapisura, were indispensable parties to
the action since parental authority had shifted to the
adopting parents from the moment the successful
petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto
Bundoc was then actually living with his natural parents,
parental authority had not ceased nor been relinquished
by the mere filing and granting of a petition for
adoption.
The trial court on 3 December 1987 dismissed
petitioners' complaint, ruling that respondent natural
parents of Adelberto indeed were not indispensable
parties to the action.
Petitioners received a copy of the trial court's Decision
on 7 December 1987. Within the 15-day reglementary
period, or on 14 December 1987, petitioners filed a
motion for reconsideration followed by a supplemental
motion for reconsideration on 15 January 1988. It
appearing, however, that the motions failed to comply
with Sections 4 and 5 of Rule 15 of the Revised Rules of
Court — that notice of the motion shall be given to all
parties concerned at least three (3) days before the
hearing of said motion; and that said notice shall state
the time and place of hearing — both motions were
denied by the trial court in an Order dated 18 April 1988.
On 28 April 1988, petitioners filed a notice of appeal. In
its Order dated 6 June 1988, the trial court dismissed
the notice at appeal, this time ruling that the notice had
been filed beyond the 15-day reglementary period
ending 22 December 1987.
Petitioners went to the Court of Appeals on a petition
for mandamus and certiorari questioning the trial court's
Decision dated 3 December 1987 and the Orders dated
18 April 1988 and 6 June 1988, The Court of Appeals
dismissed the petition, ruling that petitioners had lost
their right to appeal.
In the present Petition for Review, petitioners once
again contend that respondent spouses Bundoc are the
indispensable parties to the action for damages caused
by the acts of their minor child, Adelberto Bundoc.
Resolution of this Petition hinges on the following issues:
(1) whether or not petitioners, notwithstanding loss of
their right to appeal, may still file the instant Petition;
conversely, whether the Court may still take cognizance
of the case even through petitioners' appeal had been
filed out of time; and (2) whether or not the effects of
adoption, insofar as parental authority is concerned may
be given retroactive effect so as to make the adopting
parents the indispensable parties in a damage case filed
against their adopted child, for acts committed by the
latter, when actual custody was yet lodged with the
biological parents.
1. It will be recalled that, petitioners' motion (and
supplemental motion) for reconsideration filed before
the trial court, not having complied with the
requirements of Section 13, Rule 41, and Section 4, Rule
15, of the Revised Rules of Court, were considered pro
forma and hence did not interrupt and suspend the
reglementary period to appeal: the trial court held that
the motions, not having contained a notice of time and
place of hearing, had become useless pieces of paper
which did not interrupt the reglementary period. 1 As in
fact repeatedly held by this Court, what is mandatory is
the service of the motion on the opposing counsel
indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the
instant. Petition, and in order that substantial justice
may be served, the Court, invoking its right to suspend
the application of technical rules to prevent manifest
injustice, elects to treat the notice of appeal as having
been seasonably filed before the trial court, and the
motion (and supplemental motion) for reconsideration
filed by petitioner in the trial court as having interrupted
the reglementary period for appeal. As the Court held
in Gregorio v. Court of Appeals: 3
Dismissal of appeal; purely on technical
grounds is frowned upon where the
policy of the courts is to encourage
hearings of appeal on their merits. The
rules of procedure ought not be applied
in a very rigid technical sense, rules of
procedure are used only to help secure
not override, substantial justice. if d
technical and rigid enforcement of the
rules is made their aim would be
defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary
act of shooting Jennifer Tamargo with an air rifle gave
rise to a cause of action on quasi-delict against him. As
Article 2176 of the Civil Code provides:
 Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the
damage done. Such fault or negligence,
if there is no pre-existing contractual
relation between the parties, is called
a quasi-delict . . .
Upon the other hand, the law imposes civil liability upon
the father and, in case of his death or incapacity, the
mother, for any damages that may be caused by
a minor child who lives with them. Article 2180 of the
Civil Code reads:
The obligation imposed by article 2176
is demandable not only for one's own
acts or omissions, but also for those of
persons for whom one is responsible.
The father and, in case of his death or
incapacity, the mother, are responsible
for the damages caused by the minor
children who live in their company.
xxx xxx xxx
The responsibility treated of in this
Article shall cease when the person
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damage.
(Emphasis supplied)
This principle of parental liability is a species of what is
frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American
tort law, where a person is not only liable for torts
committed by himself, but also for torts committed by
others with whom he has a certain relationship and for
whom he is responsible. Thus, parental liability is made
a natural or logical consequence of the duties and
responsibilities of parents — their parental authority —
which includes the instructing, controlling and
disciplining of the child. 5 The basis for the doctrine of
vicarious liability was explained by the Court in Cangco
v. Manila Railroad Co. 6 in the following terms:
With respect to extra-contractual
obligation arising from negligence,
whether of act or omission, it is
competent for the legislature to elect —
and our Legislature has so elected — to
limit such liability to cases in which the
person upon whom such an obligation is
imposed is morally culpable or, on the
contrary, for reasons of public policy. to
extend that liability, without regard to
the lack of moral culpability, so as to
include responsibility for the negligence
of those persons whose acts or
omissions are imputable, by a legal
fiction, to others who are in a position to
exercise an absolute or limited control
over them. The legislature which
adopted our Civil Code has elected
to limit extra-contractual liability — with
certain well-defined exceptions — to
cases in which moral culpability can be
directly imputed to the persons to be
charged. This moral responsibility may
consist in having failed to exercise due
care in one's own acts, or in having
failed to exercise due care in the
selection and control of one's agent or
servants, or in the control of persons
who, by reasons of their status, occupy
a position of dependency with respect to
the person made liable for their
conduct. 7 (Emphasis Supplied)
The civil liability imposed upon parents for the
torts of their minor children living with them,
may be seen to be based upon the parental
authority vested by the Civil Code upon such
parents. The civil law assumes that when an
unemancipated child living with its parents
commits a tortious acts, the parents were
negligent in the performance of their legal and
natural duty closely to supervise the child who is
in their custody and control. Parental liability is,
in other words, anchored upon parental
authority coupled with presumed parental
dereliction in the discharge of the duties
accompanying such authority. The parental
dereliction is, of course, only presumed and the
presumption can be overtuned under Article
2180 of the Civil Code by proof that the parents
had exercised all the diligence of a good father
of a family to prevent the damage.
In the instant case, the shooting of Jennifer by
Adelberto with an air rifle occured when parental
authority was still lodged in respondent Bundoc spouses,
the natural parents of the minor Adelberto. It would thus
follow that the natural parents who had then actual
custody of the minor Adelberto, are the indispensable
parties to the suit for damages.
The natural parents of Adelberto, however, stoutly
maintain that because a decree of adoption was issued
by the adoption court in favor of the Rapisura spouses,
parental authority was vested in the latter as adopting
parents as of the time of the filing of the petition for
adoption that is, before Adelberto had shot Jennifer
which an air rifle. The Bundoc spouses contend that they
were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the
Child and Youth Welfare Code 8 which reads as follows:
Art. 36. Decree of Adoption. — If, after
considering the report of the
Department of Social Welfare or duly
licensed child placement agency and the
evidence submitted before it, the court
is satisfied that the petitioner is qualified
to maintain, care for, and educate the
child, that the trial custody period has
been completed, and that the best
interests of the child will be promoted
by the adoption, a decree of adoption
shall be entered, which shall be effective
he date the original petition was
filed. The decree shall state the name
by which the child is thenceforth to be
known. (Emphasis supplied)
The Bundoc spouses further argue that the
above Article 36 should be read in relation to
Article 39 of the same Code:
Art. 39. Effect of Adoption. — The
adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the
natural parents, except where the
adopter is the spouse of the surviving
natural parent;
xxx xxx xxx
(Emphasis supplied)
and urge that their Parental authority must be deemed
to have been dissolved as of the time the Petition for
adoption was filed.
The Court is not persuaded. As earlier noted, under the
Civil Code, the basis of parental liability for the torts of a
minor child is the relationship existing between the
parents and the minor child living with them and over
whom, the law presumes, the parents exercise
supervision and control. Article 58 of the Child and
Youth Welfare Code, re-enacted this rule:
Article 58 Torts — Parents and
guardians are responsible for the
damage caused by the child under their
parental authority in accordance with
the civil Code. (Emphasis supplied)
Article 221 of the Family Code of the Philippines 9 has
similarly insisted upon the requisite that the child, doer
of the tortious act, shall have beer in the actual custody
of the parents sought to be held liable for the ensuing
damage:
Art. 221. Parents and other persons
exercising parental authority shall be
civilly liable for the injuries and damages
caused by the acts or omissions of their
unemancipated children living in their
companyand under their parental
authority subject to the appropriate
defenses provided by law. (Emphasis
supplied)
We do not believe that parental authority is properly
regarded as having been retroactively transferred to and
vested in the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do not
consider that retroactive effect may be giver to the
decree of adoption so as to impose a liability upon the
adopting parents accruing at a time when adopting
parents had no actual or physically custody over the
adopted child. Retroactive affect may perhaps be given
to the granting of the petition for adoption where such is
essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant
case, however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as to
burden them with liability for a tortious act that they
could not have foreseen and which they could not have
prevented (since they were at the time in the United
States and had no physical custody over the child
Adelberto) would be unfair and unconscionable. Such a
result, moreover, would be inconsistent with the
philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no presumption
of parental dereliction on the part of the adopting
parents, the Rapisura spouses, could have arisen since
Adelberto was not in fact subject to their control at the
time the tort was committed.
Article 35 of the Child and Youth Welfare Code fortifies
the conclusion reached above. Article 35 provides as
follows:
Art. 35. Trial Custody. — No petition for
adoption shall be finally granted unless
and until the adopting parents are given
by the courts a supervised trial custody
period of at least six months to assess
their adjustment and emotional
readiness for the legal union. During the
period of trial custody, parental
authority shall be vested in the adopting
parents. (Emphasis supplied)
Under the above Article 35, parental authority is
provisionally vested in the adopting parents during the
period of trial custody, i.e., before the issuance of a
decree of adoption, precisely because the adopting
parents are given actual custody of the child during such
trial period. In the instant case, the trial custody period
either had not yet begun or bad already been completed
at the time of the air rifle shooting; in any case, actual
custody of Adelberto was then with his natural parents,
not the adopting parents.
Accordingly, we conclude that respondent Bundoc
spouses, Adelberto's natural parents, were indispensable
parties to the suit for damages brought by petitioners,
and that the dismissal by the trial court of petitioners'
complaint, the indispensable parties being already
before the court, constituted grave abuse of discretion
amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition for
Review is hereby GRANTED DUE COURSE and the
Decision of the Court of Appeals dated 6 September
1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED
and SET ASIDE. Petitioners' complaint filed before the
trial court is hereby REINSTATED and this case is
REMANDED to that court for further proceedings
consistent with this Decision. Costs against respondent
Bundoc spouses. This Decision is immediately executory.
SO ORDERED.
G.R. No. L-24101 September 30, 1970
MARIA TERESA Y. CUADRA, minor represented by
her father ULISES P. CUADRA, ET AL., plaintiffs-
appellees, vs. ALFONSO MONFORT, defendant-
appellant.
This is an action for damages based on quasi-delict,
decided by the Court of First Instance of Negros
Occidental favorably to the plaintiffs and appealed by
the defendant to the Court of Appeals, which certified
the same to us since the facts are not in issue.
Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13,
were classmates in Grade Six at the Mabini Elementary
School in Bacolod City. On July 9, 1962 their teacher
assigned them, together with three other classmates, to
weed the grass in the school premises. While thus
engaged Maria Teresa Monfort found a plastic
headband, an ornamental object commonly worn by
young girls over their hair. Jokingly she said aloud that
she had found an earthworm and, evidently to frighten
the Cuadra girl, tossed the object at her. At that precise
moment the latter turned around to face her friend, and
the object hit her right eye. Smarting from the pain, she
rubbed the injured part and treated it with some
powder. The next day, July 10, the eye became swollen
and it was then that the girl related the incident to her
parents, who thereupon took her to a doctor for
treatment. She underwent surgical operation twice, first
on July 20 and again on August 4, 1962, and stayed in
the hospital for a total of twenty-three days, for all of
which the parents spent the sum of P1,703.75. Despite
the medical efforts, however, Maria Teresa Cuadra
completely lost the sight of her right eye.
In the civil suit subsequently instituted by the parents in
behalf of their minor daughter against Alfonso Monfort,
Maria Teresa Monfort's father, the defendant was
ordered to pay P1,703.00 as actual damages;
P20,000.00 as moral damages; and P2,000.00 as
attorney's fees, plus the costs of the suit.
The legal issue posed in this appeal is the liability of a
parent for an act of his minor child which causes
damage to another under the specific facts related
above and the applicable provisions of the Civil Code,
particularly Articles 2176 and 2180 thereof, which read:
ART. 2176. 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 relation between the parties,
is called a quasi-delict and is governed
by provisions of this Chapter.
ART 2180. The obligation imposed by
Article 2176 is demandable not only for
one's own acts or omissions, but also for
those of persons for whom one is
responsible.
The father and, in case of his death or
incapacity are responsible for the
damages caused by the minor children
who live in their company.
xxx xxx xxx
The responsibility treated of in this
Article shall cease when the persons
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damage.
The underlying basis of the liability imposed by Article
2176 is the fault or negligence accompanying the act or
the omission, there being no willfulness or intent to
cause damage thereby. When the act or omission is that
of one person for whom another is responsible, the
latter then becomes himself liable under Article 2180, in
the different cases enumerated therein, such as that of
the father or the mother under the circumstances above
quoted. The basis of this vicarious, although primary,
liability is, as in Article 2176, fault or negligence, which
is presumed from that which accompanied the causative
act or omission. The presumption is merely prima
facie and may therefore be rebutted. This is the clear
and logical inference that may be drawn from the last
paragraph of Article 2180, which states "that the
responsibility treated of in this Article shall cease when
the persons herein mentioned prove that they observed
all the diligence of a good father of a family to prevent
damage."
Since the fact thus required to be proven is a matter of
defense, the burden of proof necessarily rests on the
defendant. But what is the exact degree of diligence
contemplated, and how does a parent prove it in
connection with a particular act or omission of a minor
child, especially when it takes place in his absence or
outside his immediate company? Obviously there can be
no meticulously calibrated measure applicable; and
when the law simply refers to "all the diligence of a good
father of the family to prevent damage," it implies a
consideration of the attendant circumstances in every
individual case, to determine whether or not by the
exercise of such diligence the damage could have been
prevented.
In the present case there is nothing from which it may
be inferred that the defendant could have prevented the
damage by the observance of due care, or that he was
in any way remiss in the exercise of his parental
authority in failing to foresee such damage, or the act
which caused it. On the contrary, his child was at school,
where it was his duty to send her and where she was, as
he had the right to expect her to be, under the care and
supervision of the teacher. And as far as the act which
caused the injury was concerned, it was an innocent
prank not unusual among children at play and which no
parent, however careful, would have any special reason
to anticipate much less guard against. Nor did it reveal
any mischievous propensity, or indeed any trait in the
child's character which would reflect unfavorably on her
upbringing and for which the blame could be attributed
to her parents.
The victim, no doubt, deserves no little commiseration
and sympathy for the tragedy that befell her. But if the
defendant is at all obligated to compensate her
suffering, the obligation has no legal sanction
enforceable in court, but only the moral compulsion of
good conscience.
The decision appealed from is reversed, and the
complaint is dismissed, without pronouncement as to
costs.
2. GUARDIANS:
 ART. 216 - 218 FC
 ART. 2180-2181 NCC
3. TEACHERS AND HEADS OF INSTITUTIONS:
 ART. 218-219 FC
 2180 NCC
SECOND DIVISION
G.R. No. 184202
AQUINAS SCHOOL, Petitioner, VS. SPS. JOSE
INTON and MA. VICTORIA S. INTON, on their
behalf and on behalf of their minor child, JOSE
LUIS S. INTON, and SR. MARGARITA YAMYAMIN,
OP,Respondents
This case is about the private schools liability for
the outside catechists act of shoving a student and
kicking him on the legs when he disobeyed her
instruction to remain in his seat and not move around
the classroom.
The Facts and the Case
In 1998 respondent Jose Luis Inton (Jose Luis)
was a grade three student at Aquinas School
(Aquinas). Respondent Sister Margarita Yamyamin
(Yamyamin), a religion teacher who began teaching at
that school only in June of that year, taught Jose Luis
grade three religion class.
On July 14, 1998, while Yamyamin was writing
on the blackboard, Jose Luis left his assigned seat and
went over to a classmate to play a joke of surprising
him. Yamyamin noticed this and sent Jose Luis back to
his seat. After a while, Jose Luis got up again and went
over to the same classmate. This time, unable to
tolerate the childs behavior, Yamyamin approached Jose
Luis and kicked him on the legs several times. She also
pulled and shoved his head on the classmates
seat. Finally, she told the child to stay where he was on
that spot of the room and finish copying the notes on
the blackboard while seated on the floor.
As a result of the incident, respondents Jose and
Victoria Inton (the Intons) filed an action for damages
on behalf of their son Jose Luis against Yamyamin and
Aquinas before the Regional Trial Court (RTC) of Pasig
City in Civil Case 67427. The Intons also filed a criminal
action against Yamyamin for violation of Republic Act
7610 to which she pleaded guilty and was sentenced
accordingly.
With regard to the action for damages, the
Intons sought to recover actual, moral, and exemplary
damages, as well as attorneys fees, for the hurt that
Jose Luis and his mother Victoria suffered. The RTC
dismissed Victorias personal claims but ruled in Jose Luis
favor, holding Yamyamin liable to him for moral
damages of P25,000.00, exemplary damages
of P25,000.00, and attorneys fees of P10,000.00 plus
the costs of suit.[1]
Not satisfied, the Intons elevated the case to the
Court of Appeals (CA).[2] They asked the CA to increase
the award of damages and hold Aquinas solidarily liable
with Yamyamin. Finding that an employer-employee
relation existed between Aquinas and Yamyamin, the CA
found them solidarily liable to Jose Luis. The CA,
however, declined to increase the award of
damages.[3]Jose Luis moved for partial reconsideration
but this was denied. Aquinas, for its part, appealed
directly to this Court from the CA decision through a
petition for review on certiorari.
The Issue Presented
The sole issue presented in this case is whether
or not the CA was correct in holding Aquinas solidarily
liable with Yamyamin for the damages awarded to Jose
Luis.
The Courts Ruling
The CA found Aquinas liable to Jose Luis based
on Article 2180 of the Civil Code upon the CAs belief that
the school was Yamyamins employer. Aquinas contests
this.
The Court has consistently applied the four-fold
test to determine the existence of an employer-
employee relationship: the employer (a) selects and
engages the employee; (b) pays his wages; (c) has
power to dismiss him; and (d) has control over his
work.Of these, the most crucial is the element of
control. Control refers to the right of the employer,
whether actually exercised or reserved, to control the
work of the employee as well as the means and
methods by which he accomplishes the same.[4]
In this case, the school directress testified that
Aquinas had an agreement with a congregation of
sisters under which, in order to fulfill its ministry, the
congregation would send religion teachers to Aquinas to
provide catechesis to its students. Aquinas insists that it
was not the school but Yamyamins religious
congregation that chose her for the task of catechizing
the schools grade three students, much like the way
bishops designate the catechists who would teach
religion in public schools. Under the circumstances, it
was quite evident that Aquinas did not have control over
Yamyamins teaching methods. The Intons had not
refuted the school directress testimony in this
regard. Consequently, it was error for the CA to hold
Aquinas solidarily liable with Yamyamin.
Of course, Aquinas still had the responsibility of
taking steps to ensure that only qualified outside
catechists are allowed to teach its young students. In
this regard, it cannot be said that Aquinas took no steps
to avoid the occurrence of improper conduct towards the
students by their religion teacher.
First, Yamyamins transcript of records,
certificates, and diplomas showed that she was qualified
to teach religion.
Second, there is no question that Aquinas
ascertained that Yamyamin came from a legitimate
religious congregation of sisters and that, given her
Christian training, the school had reason to assume that
she would behave properly towards the students.
Third, the school gave Yamyamin a copy of the
schools Administrative Faculty Staff Manual that set the
standards for handling students. It also required her to
attend a teaching orientation before she was allowed to
teach beginning that June of 1998.[5]
Fourth, the school pre-approved the content of
the course she was to teach[6] to ensure that she was
really catechizing the students.
And fifth, the school had a program for
subjecting Yamyamin to classroom
evaluation.[7] Unfortunately, since she was new and it
was just the start of the school year, Aquinas did not
have sufficient opportunity to observe her methods. At
any rate, it acted promptly to relieve her of her
assignment as soon as the school learned of the
incident. [8] It cannot be said that Aquinas was guilty of
outright neglect.
Regarding the Intons plea for an award of
greater amounts of damages, the Court finds no
justification for this since they did not appeal from the
decision of the CA. The Intons prayed for the increase
only in their comment to the petition. They thus cannot
obtain from this Court any affirmative relief other than
those that the CA already granted them in its decision.[9]
WHEREFORE, the Court GRANTS the
petition, SETS ASIDE the decision of the Court of
Appeals in CA-G.R. CV 88106 dated August 4, 2008,
and HOLDS petitioner Aquinas School not liable in
damages to respondent Jose Luis Inton. SO ORDERED.

G.R. No. L-47745 April 15, 1988
JOSE S. AMADORA, LORETA A. AMADORA, JOSE A.
AMADORA JR., NORMA A. YLAYA PANTALEON A.
AMADORA, JOSE A. AMADORA III, LUCY A.
AMADORA, ROSALINDA A. AMADORA, PERFECTO
A. AMADORA, SERREC A. AMADORA, VICENTE A.
AMADORA and MARIA TISCALINA A.
AMADORA, petitioners vs. HONORABLE COURT OF
APPEALS, COLEGIO DE SAN JOSE-RECOLETOS,
VICTOR LLUCH SERGIO P. DLMASO JR.,
CELESTINO DICON, ANIANO ABELLANA, PABLITO
DAFFON thru his parents and natural guardians,
MR. and MRS. NICANOR GUMBAN, and ROLANDO
VALENCIA, thru his guardian, A. FRANCISCO
ALONSO, respondents.
Like any prospective graduate, Alfredo Amadora was
looking forward to the commencement exercises where
he would ascend the stage and in the presence of his
relatives and friends receive his high school diploma.
These ceremonies were scheduled on April 16, 1972. As
it turned out, though, fate would intervene and deny
him that awaited experience. On April 13, 1972, while
they were in the auditorium of their school, the Colegio
de San Jose-Recoletos, a classmate, Pablito Damon,
fired a gun that mortally hit Alfredo, ending all his
expectations and his life as well. The victim was only
seventeen years old.
Daffon was convicted of homicide thru reckless
imprudence . Additionally, the herein petitioners, as the
victim's parents, filed a civil action for damages under
Article 2180 of the Civil Code against the Colegio de San
Jose-Recoletos, its rector the high school principal, the
dean of boys, and the physics teacher, together with
Daffon and two other students, through their respective
parents. The complaint against the students was later
dropped. After trial, the Court of First Instance of Cebu
held the remaining defendants liable to the plaintiffs in
the sum of P294,984.00, representing death
compensation, loss of earning capacity, costs of
litigation, funeral expenses, moral damages, exemplary
damages, and attorney's fees .3 On appeal to the
respondent court, however, the decision was reversed
and all the defendants were completely absolved .
In its decision, which is now the subject of this petition
for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not
applicable as the Colegio de San Jose-Recoletos was not
a school of arts and trades but an academic institution of
learning. It also held that the students were not in the
custody of the school at the time of the incident as the
semester had already ended, that there was no clear
identification of the fatal gun and that in any event the
defendant, had exercised the necessary diligence in
preventing the injury. 5
The basic undisputed facts are that Alfredo Amadora
went to the San Jose-Recoletos on April 13, 1972, and
while in its auditorium was shot to death by Pablito
Daffon, a classmate. On the implications and
consequences of these facts, the parties sharply
disagree.
The petitioners contend that their son was in the school
to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of
the private respondents. The private respondents submit
that Alfredo Amadora had gone to the school only for
the purpose of submitting his physics report and that he
was no longer in their custody because the semester
had already ended.
There is also the question of the identity of the gun used
which the petitioners consider important because of an
earlier incident which they claim underscores the
negligence of the school and at least one of the private
respondents. It is not denied by the respondents that on
April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but
later returned it to him without making a report to the
principal or taking any further action .6 As Gumban was
one of the companions of Daffon when the latter fired
the gun that killed Alfredo, the petitioners contend that
this was the same pistol that had been confiscated from
Gumban and that their son would not have been killed if
it had not been returned by Damaso. The respondents
say, however, that there is no proof that the gun was
the same firearm that killed Alfredo.
Resolution of all these disagreements will depend on the
interpretation of Article 2180 which, as it happens, is
invoked by both parties in support of their conflicting
positions. The pertinent part of this article reads as
follows:
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils
and students or apprentices so long as they remain in
their custody.
Three cases have so far been decided by the Court in
connection with the above-quoted provision, to wit:
Exconde v. Capuno 7 Mercado v. Court of
Appeals, 8 and Palisoc v. Brillantes. 9 These will be
briefly reviewed in this opinion for a better resolution of
the case at bar.
In the Exconde Case, Dante Capuno, a student of the
Balintawak Elementary School and a Boy Scout,
attended a Rizal Day parade on instructions of the city
school supervisor. After the parade, the boy boarded a
jeep, took over its wheel and drove it so recklessly that
it turned turtle, resulting in the death of two of its
passengers. Dante was found guilty of double homicide
with reckless imprudence. In the separate civil action
flied against them, his father was held solidarily liable
with him in damages under Article 1903 (now Article
2180) of the Civil Code for the tort committed by the 15-
year old boy.
This decision, which was penned by Justice Bautista
Angelo on June 29,1957, exculpated the school in
an obiter dictum (as it was not a party to the case) on
the ground that it was riot a school of arts and trades.
Justice J.B.L. Reyes, with whom Justices Sabino Padilla
and Alex Reyes concurred, dissented, arguing that it was
the school authorities who should be held liable Liability
under this rule, he said, was imposed on (1) teachers in
general; and (2) heads of schools of arts and trades in
particular. The modifying clause "of establishments of
arts and trades" should apply only to "heads" and not
"teachers."
Exconde was reiterated in the Mercado Case, and with
an elaboration. A student cut a classmate with a razor
blade during recess time at the Lourdes Catholic School
in Quezon City, and the parents of the victim sued the
culprits parents for damages. Through Justice Labrador,
the Court declared in another obiter (as the school itself
had also not been sued that the school was not liable
because it was not an establishment of arts and trades.
Moreover, the custody requirement had not been proved
as this "contemplates a situation where the student lives
and boards with the teacher, such that the control,
direction and influences on the pupil supersede those of
the parents." Justice J.B.L. Reyes did not take part but
the other members of the court concurred in this
decision promulgated on May 30, 1960.
In Palisoc vs. Brillantes, decided on October 4, 1971, a
16-year old student was killed by a classmate with fist
blows in the laboratory of the Manila Technical Institute.
Although the wrongdoer — who was already of age —
was not boarding in the school, the head thereof and
the teacher in charge were held solidarily liable with
him. The Court declared through Justice Teehankee:
The phrase used in the cited article — "so long as (the
students) remain in their custody" — means the
protective and supervisory custody that the school and
its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the
school, including recess time. There is nothing in the law
that requires that for such liability to attach, the pupil or
student who commits the tortious act must live and
board in the school, as erroneously held by the lower
court, and the dicta in Mercado (as well as in Exconde)
on which it relied, must now be deemed to have been
set aside by the present decision.
This decision was concurred in by five other
members, 10 including Justice J.B.L. Reyes, who
stressed, in answer to the dissenting opinion, that even
students already of age were covered by the provision
since they were equally in the custody of the school and
subject to its discipline. Dissenting with three
others,11 Justice Makalintal was for retaining the
custody interpretation in Mercado and submitted that
the rule should apply only to torts committed by
students not yet of age as the school would be acting
only in loco parentis.
In a footnote, Justice Teehankee said he agreed with
Justice Reyes' dissent in the Exconde Case but added
that "since the school involved at bar is a non-academic
school, the question as to the applicability of the cited
codal provision to academic institutions will have to
await another case wherein it may properly be raised."
This is the case.
Unlike in Exconde and Mercado, the Colegio de San
Jose-Recoletos has been directly impleaded and is
sought to be held liable under Article 2180; and unlike in
Palisoc, it is not a school of arts and trades but an
academic institution of learning. The parties herein have
also directly raised the question of whether or not Article
2180 covers even establishments which are technically
not schools of arts and trades, and, if so, when the
offending student is supposed to be "in its custody."
After an exhaustive examination of the problem, the
Court has come to the conclusion that the provision in
question should apply to all schools, academic as well as
non-academic. Where the school is academic rather than
technical or vocational in nature, responsibility for the
tort committed by the student will attach to the teacher
in charge of such student, following the first part of the
provision. This is the general rule. In the case of
establishments of arts and trades, it is the head thereof,
and only he, who shall be held liable as an exception to
the general rule. In other words, teachers in general
shall be liable for the acts of their students except where
the school is technical in nature, in which case it is the
head thereof who shall be answerable. Following the
canon of reddendo singula singulis"teachers" should
apply to the words "pupils and students" and "heads of
establishments of arts and trades" to the word
"apprentices."
The Court thus conforms to the dissenting opinion
expressed by Justice J.B.L. Reyes in Exconde where he
said in part:
I can see no sound reason for limiting Art. 1903 of the
Old Civil Code to teachers of arts and trades and not to
academic ones. What substantial difference is there
between them insofar as concerns the proper
supervision and vice over their pupils? It cannot be
seriously contended that an academic teacher is exempt
from the duty of watching that his pupils do not commit
a tort to the detriment of third Persons, so long as they
are in a position to exercise authority and Supervision
over the pupil. In my opinion, in the phrase "teachers or
heads of establishments of arts and trades" used in Art.
1903 of the old Civil Code, the words "arts and trades"
does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version
of the equivalent terms "preceptores y artesanos" used
in the Italian and French Civil Codes.
If, as conceded by all commentators, the basis of the
presumption of negligence of Art. 1903 in some culpa in
vigilando that the parents, teachers, etc. are supposed
to have incurred in the exercise of their authority, it
would seem clear that where the parent places the child
under the effective authority of the teacher, the latter,
and not the parent, should be the one answerable for
the torts committed while under his custody, for the very
reason/that the parent is not supposed to interfere with
the discipline of the school nor with the authority and
supervision of the teacher while the child is under
instruction. And if there is no authority, there can be no
responsibility.
There is really no substantial distinction between the
academic and the non-academic schools insofar as torts
committed by their students are concerned. The same
vigilance is expected from the teacher over the students
under his control and supervision, whatever the nature
of the school where he is teaching. The suggestion in
the Exconde and Mercado Cases is that the provision
would make the teacher or even the head of the school
of arts and trades liable for an injury caused by any
student in its custody but if that same tort were
committed in an academic school, no liability would
attach to the teacher or the school head. All other
circumstances being the same, the teacher or the head
of the academic school would be absolved whereas the
teacher and the head of the non-academic school would
be held liable, and simply because the latter is a school
of arts and trades.
The Court cannot see why different degrees of vigilance
should be exercised by the school authorities on the
basis only of the nature of their respective schools.
There does not seem to be any plausible reason for
relaxing that vigilance simply because the school is
academic in nature and for increasing such vigilance
where the school is non-academic. Notably, the injury
subject of liability is caused by the student and not by
the school itself nor is it a result of the operations of the
school or its equipment. The injury contemplated may
be caused by any student regardless of the school where
he is registered. The teacher certainly should not be
able to excuse himself by simply showing that he is
teaching in an academic school where, on the other
hand, the head would be held liable if the school were
non-academic.
These questions, though, may be asked: If the teacher
of the academic school is to be held answerable for the
torts committed by his students, why is it the head of
the school only who is held liable where the injury is
caused in a school of arts and trades? And in the case of
the academic or non- technical school, why not apply
the rule also to the head thereof instead of imposing the
liability only on the teacher?
The reason for the disparity can be traced to the fact
that historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head
of the academic school. The old schools of arts and
trades were engaged in the training of
artisans apprenticed to their master who personally and
directly instructed them on the technique and secrets of
their craft. The head of the school of arts and trades
was such a master and so was personally involved in the
task of teaching his students, who usually even boarded
with him and so came under his constant control,
supervision and influence. By contrast, the head of the
academic school was not as involved with his students
and exercised only administrative duties over the
teachers who were the persons directly dealing with the
students. The head of the academic school had then (as
now) only a vicarious relationship with the students.
Consequently, while he could not be directly faulted for
the acts of the students, the head of the school of arts
and trades, because of his closer ties with them, could
be so blamed.
It is conceded that the distinction no longer obtains at
present in view of the expansion of the schools of arts
and trades, the consequent increase in their enrollment,
and the corresponding diminution of the direct and
personal contract of their heads with the students.
Article 2180, however, remains unchanged. In its
present state, the provision must be interpreted by the
Court according to its clear and original mandate until
the legislature, taking into account the charges in the
situation subject to be regulated, sees fit to enact the
necessary amendment.
The other matter to be resolved is the duration of the
responsibility of the teacher or the head of the school of
arts and trades over the students. Is such responsibility
co-extensive with the period when the student is actually
undergoing studies during the school term, as
contended by the respondents and impliedly admitted by
the petitioners themselves?
From a reading of the provision under examination, it is
clear that while the custody requirement, to
repeat Palisoc v. Brillantes, does not mean that the
student must be boarding with the school authorities, it
does signify that the student should be within the
control and under the influence of the school authorities
at the time of the occurrence of the injury. This does not
necessarily mean that such, custody be co-terminous
with the semester, beginning with the start of classes
and ending upon the close thereof, and excluding the
time before or after such period, such as the period of
registration, and in the case of graduating students, the
period before the commencement exercises. In the view
of the Court, the student is in the custody of the school
authorities as long as he is under the control and
influence of the school and within its premises, whether
the semester has not yet begun or has already ended.
It is too tenuous to argue that the student comes under
the discipline of the school only upon the start of classes
notwithstanding that before that day he has already
registered and thus placed himself under its rules.
Neither should such discipline be deemed ended upon
the last day of classes notwithstanding that there may
still be certain requisites to be satisfied for completion of
the course, such as submission of reports, term papers,
clearances and the like. During such periods, the student
is still subject to the disciplinary authority of the school
and cannot consider himself released altogether from
observance of its rules.
As long as it can be shown that the student is in the
school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right,
and even in the enjoyment of a legitimate student right,
and even in the enjoyment of a legitimate student
privilege, the responsibility of the school authorities over
the student continues. Indeed, even if the student
should be doing nothing more than relaxing in the
campus in the company of his classmates and friends
and enjoying the ambience and atmosphere of the
school, he is still within the custody and subject to the
discipline of the school authorities under the provisions
of Article 2180.
During all these occasions, it is obviously the teacher-in-
charge who must answer for his students' torts, in
practically the same way that the parents are
responsible for the child when he is in their custody. The
teacher-in-charge is the one designated by the dean,
principal, or other administrative superior to exercise
supervision over the pupils in the specific classes or
sections to which they are assigned. It is not necessary
that at the time of the injury, the teacher be physically
present and in a position to prevent it. Custody does not
connote immediate and actual physical control but refers
more to the influence exerted on the child and the
discipline instilled in him as a result of such influence.
Thus, for the injuries caused by the student, the teacher
and not the parent shag be held responsible if the tort
was committed within the premises of the school at any
time when its authority could be validly exercised over
him.
In any event, it should be noted that the liability
imposed by this article is supposed to fall directly on the
teacher or the head of the school of arts and trades and
not on the school itself. If at all, the school, whatever its
nature, may be held to answer for the acts of its
teachers or even of the head thereof under the general
principle of respondeat superior, but then it may
exculpate itself from liability by proof that it had
exercised the diligence of a bonus paterfamilias.
Such defense is, of course, also available to the teacher
or the head of the school of arts and trades directly held
to answer for the tort committed by the student. As long
as the defendant can show that he had taken the
necessary precautions to prevent the injury complained
of, he can exonerate himself from the liability imposed
by Article 2180, which also states that:
The responsibility treated of in this article shall cease
when the Persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damages.
In this connection, it should be observed that the
teacher will be held liable not only when he is acting
in loco parentis for the law does not require that the
offending student be of minority age. Unlike the parent,
who wig be liable only if his child is still a minor, the
teacher is held answerable by the law for the act of the
student under him regardless of the student's age. Thus,
in the Palisoc Case, liability attached to the teacher and
the head of the technical school although the wrongdoer
was already of age. In this sense, Article 2180 treats the
parent more favorably than the teacher.
The Court is not unmindful of the apprehensions
expressed by Justice Makalintal in his dissenting opinion
in Palisoc that the school may be unduly exposed to
liability under this article in view of the increasing
activism among the students that is likely to cause
violence and resulting injuries in the school premises.
That is a valid fear, to be sure. Nevertheless, it should
be repeated that, under the present ruling, it is not the
school that will be held directly liable. Moreover, the
defense of due diligence is available to it in case it is
sought to be held answerable as principal for the acts or
omission of its head or the teacher in its employ.
The school can show that it exercised proper measures
in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of
the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all
cases now, in fact, these measures are effected through
the assistance of an adequate security force to help the
teacher physically enforce those rules upon the
students. Ms should bolster the claim of the school that
it has taken adequate steps to prevent any injury that
may be committed by its students.
A fortiori, the teacher himself may invoke this defense as
it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as
long as they are in the school premises and presumably
under his influence. In this respect, the Court is
disposed not to expect from the teacher the same
measure of responsibility imposed on the parent for their
influence over the child is not equal in degree.
Obviously, the parent can expect more obedience from
the child because the latter's dependence on him is
greater than on the teacher. It need not be stressed that
such dependence includes the child's support and
sustenance whereas submission to the teacher's
influence, besides being coterminous with the period of
custody is usually enforced only because of the students'
desire to pass the course. The parent can instill more las
discipline on the child than the teacher and so should be
held to a greater accountability than the teacher for the
tort committed by the child.
And if it is also considered that under the article in
question, the teacher or the head of the school of arts
and trades is responsible for the damage caused by the
student or apprentice even if he is already of age — and
therefore less tractable than the minor — then there
should all the more be justification to require from the
school authorities less accountability as long as they can
prove reasonable diligence in preventing the injury. After
all, if the parent himself is no longer liable for the
student's acts because he has reached majority age and
so is no longer under the former's control, there is then
all the more reason for leniency in assessing the
teacher's responsibility for the acts of the student.
Applying the foregoing considerations, the Court has
arrived at the following conclusions:
1. At the time Alfredo Amadora was fatally shot, he was
still in the custody of the authorities of Colegio de San
Jose-Recoletos notwithstanding that the fourth year
classes had formally ended. It was immaterial if he was
in the school auditorium to finish his physics experiment
or merely to submit his physics report for what is
important is that he was there for a legitimate purpose.
As previously observed, even the mere savoring of the
company of his friends in the premises of the school is a
legitimate purpose that would have also brought him in
the custody of the school authorities.
2. The rector, the high school principal and the dean of
boys cannot be held liable because none of them was
the teacher-in-charge as previously defined. Each of
them was exercising only a general authority over the
student body and not the direct control and influence
exerted by the teacher placed in charge of particular
classes or sections and thus immediately involved in its
discipline. The evidence of the parties does not disclose
who the teacher-in-charge of the offending student was.
The mere fact that Alfredo Amadora had gone to school
that day in connection with his physics report did not
necessarily make the physics teacher, respondent
Celestino Dicon, the teacher-in-charge of Alfredo's killer.
3. At any rate, assuming that he was the teacher-in-
charge, there is no showing that Dicon was negligent in
enforcing discipline upon Daffon or that he had waived
observance of the rules and regulations of the school or
condoned their non-observance. His absence when the
tragedy happened cannot be considered against him
because he was not supposed or required to report to
school on that day. And while it is true that the
offending student was still in the custody of the teacher-
in-charge even if the latter was physically absent when
the tort was committed, it has not been established that
it was caused by his laxness in enforcing discipline upon
the student. On the contrary, the private respondents
have proved that they had exercised due diligence,
through the enforcement of the school regulations, in
maintaining that discipline.
4. In the absence of a teacher-in-charge, it is probably
the dean of boys who should be held liable especially in
view of the unrefuted evidence that he had earlier
confiscated an unlicensed gun from one of the students
and returned the same later to him without taking
disciplinary action or reporting the matter to higher
authorities. While this was clearly negligence on his part,
for which he deserves sanctions from the school, it does
not necessarily link him to the shooting of Amador as it
has not been shown that he confiscated and returned
pistol was the gun that killed the petitioners' son.
5. Finally, as previously observed, the Colegio de San
Jose-Recoletos cannot be held directly liable under the
article because only the teacher or the head of the
school of arts and trades is made responsible for the
damage caused by the student or apprentice. Neither
can it be held to answer for the tort committed by any
of the other private respondents for none of them has
been found to have been charged with the custody of
the offending student or has been remiss in the
discharge of his duties in connection with such custody.
In sum, the Court finds under the facts as disclosed by
the record and in the light of the principles herein
announced that none of the respondents is liable for the
injury inflicted by Pablito Damon on Alfredo Amadora
that resulted in the latter's death at the auditorium of
the Colegio de San Jose-Recoletos on April 13, 1972.
While we deeply sympathize with the petitioners over
the loss of their son under the tragic circumstances here
related, we nevertheless are unable to extend them the
material relief they seek, as a balm to their grief, under
the law they have invoked.
WHEREFORE, the petition is DENIED, without any
pronouncement as to costs. It is so ordered.
G.R. No. 82465 February 25, 1991
ST. FRANCIS HIGH SCHOOL, as represented by
SPS. FERNANDO NANTES AND ROSARIO
LACANDULA, BENJAMIN ILUMIN, TIRSO DE
CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND
PATRIA CADIZ, petitioners, vs. THE HONORABLE
COURT OF APPEALS, ELEVENTH DIVISION and
DR. ROMULO CASTILLO and LILIA
CADIZ, respondents.
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
attorney's 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 attorney's
fees, and for costs; and (3) Defendants Yoly
Jaro and Nida Aragones are hereby absolved
from liability, and the case against them,
together with their respective counterclaims, is
hereby ordered dismissed.
SO ORDERED. (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a
freshman student of Section 1-C at the St. Francis High
School, wanted to join a school picnic undertaken by
Class I-B and Class I-C at Talaan Beach, Sariaya,
Quezon. Ferdinand's parents, respondents spouses Dr.
Romulo Castillo and Lilia Cadiz Castillo, because of short
notice, did not allow their son to join but merely allowed
him to bring food to the teachers for the picnic, with the
directive that he should go back home after doing so.
However, because of persuasion of the teachers,
Ferdinand went on with them to the beach.
During the picnic and while the students, including
Ferdinand, were in the water, one of the female
teachers was apparently drowning. Some of the
students, including Ferdinand, came to her rescue, but
in the process, it was Ferdinand himself who drowned.
His body was recovered but efforts to resuscitate him
ashore failed. He was brought to a certain Dr. Luna in
Sariaya, Quezon and later to the Mt. Cannel General
Hospital where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint
docketed as 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 Lacandula, Benjamin
Illumin (its principal), and the teachers: Tirso de Chaves,
Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro,
and Patria Cadiz, for Damages which respondents
allegedly incurred from the death of their 13-year old
son, Ferdinand Castillo. Contending that the death of
their son was due to the failure of the petitioners to
exercise the proper diligence of a good father of the
family in preventing their son's drowning, respondents
prayed of actual, moral and exemplary damages,
attorney's fees and expenses for litigation.
The trial court found in favor of the respondents and
against petitioners-teachers Arquio, de Chaves, Vinas,
Aragones, Jaro 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 attorney's 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. 2930, 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 Illumin and Aurora Cadorna
responsible for the death of Ferdinand Castillo
together with the other defendant teachers. It
has been sufficiently shown that Benjamin
Illumin had himself not consented to the picnic
and in fact 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 Illumin as
equally liable not only for its approved co-
curricular activities but also for those which they
unreasonably failed to exercise control and
supervision like the holding of picnic in the
 dangerous water of Talaan Beach, Sariaya,
Quezon.
2. The lower court erred in not declaring the St.
Francis High School and principal Benjamin
Illumin as jointly and solidarily liable with their
co-defendants-teachers Rosario Lacandula, et
als., for the tragic death of Ferdinand Castillo in
a picnic at Talaan Beach, Sariaya, Quezon, last
March 20, 1982.
3. The lower court erred in not declaring higher
amount for actual and moral damages for the
untimely and tragic death of Ferdinand Castillo
in favor of plaintiffs-appellants against all the
defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants' submission well-
taken.
Even were We to find that the picnic in question
was not a school-sponsored activity, nonetheless
it 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 Illumin, 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-curricular
activity of the St. Francis High School." We find
from the evidence that, as claimed by plaintiffs-
appellants, the school principal had knowledge
of the picnic even from its planning stage and
had even been invited to attend the affair; and
yet he did not express any prohibition against
undertaking the picnic, nor did he prescribe any
precautionary measures to be adopted during
the picnic. At the least, We must find that 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 victim's
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 victim's parents had given
such permission to their son was immaterial to
the determination of the existence of liability on
the part of the defendants for the 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-
visthe supervision of the victim's group during
the picnic; and, as correctly found by the trial
court, an affirmative reply to this question has
been satisfactorily established by the evidence,
as already pointed out.
However, We sustain defendants-appellants
insofar as two of the defendants-teachers, Yoly
Jaro and Nida Aragones, are concerned. As to
them, the trial court found:
While it is alleged that when defendants
Yoly Jaro and Nida Aragones arrived at
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 o'clock in the morning up to 12:00
o'clock noon of March 20, 1982, you did not know
that your son join the picnic?
A No, sir, I did not know.
Q Did you not look for your son during that time?
 A I am too busy with my profession, that is why I
was not able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son
join the picnic?
A Later on after 12:00, sir.
Q And during that time you were too busy that
you did not inquire whether your son have joined
that picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness
Romulo Castillo)
The fact that he gave money to his son to buy food for
the 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
examination?
A I have interviewed several persons and the
patient herself She even felt guilty about the
death of her son because she cooked adobo for
him so he could join the excursion where her son
died of drowning.
Q Why were you able to say she was 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 don't know if she
actually permitted her son although she said she
cooked adobo so he could join. (Emphasis
Supplied) (TSN, p. 19, hearing of April 30, 1984,
Dr. Lazaro — witness).
Respondent Court of Appeals committed an error in
applying Article 2180 of the Civil Code in rendering
petitioner school liable for the death of respondent's
son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for
whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their assigned
tasks, even though the former are not engaged
in any business or industry.
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-curricular 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
wig forever be exposed to the risk and danger of being
hailed to Court to answer for the misdeeds or omissions
of the employees even if such act or omission he
committed while they are not in the performance of their
duties.
Finally, no negligence could be attributable to the
petitioners-teachers to warrant the award of damages to
the respondents-spouses.
Petitioners Connie Arquio the class adviser of I-C, the
section where Ferdinand belonged, did her best and
exercised diligence 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 feelings, moral shock, social humiliation, and
responding to your application of first aid?
similar injury. Though incapable of pecuniary
A Yes, sir.
Q You have never been disturbed, "nababahala" in computation, moral damages may be recovered
the process of your application of the first aid on if they are the proximate result of the
the body of Ferdinand Castillo? defendant's wrongful act or omission.
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 Moreover, as already pointed out hereinabove,
and which you claimed the boy did not respond, petitioners are not guilty of any fault or negligence,
were you not disturb anyway? hence, no moral damages can be assessed against
A I was disturbed during that time, sir.
Q For how many minutes have you applied the them.
back to back pressure?
A From 9 to 11 times, sir. While it is true that respondents-spouses did give their
Q You mean 9 to 11 times of having applied the
pressure of your body on the body of Ferdinand consent to their son to join the picnic, this does not
Castillo? mean that the petitioners were already relieved of their
A Yes, sir. duty to observe the required diligence of a good father
Q Will you please describe how you applied a of a family in ensuring the safety of the children. But in
single act of back to back pressure?
A This has been done by placing the boy lay first the case at bar, petitioners were able to prove that they
downwards, then the face was a little bit facing had exercised the required diligence. Hence, the claim
right and doing it by massaging the back of the for moral or exemplary damages becomes baseless.
child, sir." (TSN, pp. 32-35, hearing of July 30,
1984)
PREMISES CONSIDERED, the questioned decision dated
Testimony of Tirso de Chavez on direct examination November 19, 1987, finding petitioners herein guilty of
negligence and liable for the death of Ferdinand Castillo
ATTY. FLORES: and awarding the respondents damages, is hereby SET
Q Who actually applied the first aid or artificial ASIDE insofar as the petitioners herein are concerned,
respiration to the child?
A Myself, sir.
but the portion of the said decision dismissing their
Q How did you apply the first aid to the guy? counterclaim, there being no merit, is hereby AFFIRMED.
A The first step that I took, with the help of Mr. SO ORDERED.
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 FIRST DIVISION
position, where the feet were on a higher level
than that of the head, what did you do next? [G.R. No. 143363. February 6, 2002]
A The first thing that we did, particularly myself, ST. MARYS ACADEMY, petitioner, vs. WILLIAM
was that after putting the child in that position, I
applied the back to back pressure and started to
CARPITANOS and LUCIA S. CARPITANOS, GUADA
massage from the waistline up, but I noticed that DANIEL, JAMES DANIEL II, JAMES DANIEL,
the boy was not responding, sir. SR., and VIVENCIO VILLANUEVA, respondents.
Q For how long did you apply this back to back
pressure on the boy?
A About 10 seconds, sir. The Case
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
The case is an appeal via certiorari from the
responding, what did you do? decision[1] of the Court of Appeals as well as the
A When we noticed that the boy was not resolution denying reconsideration, holding petitioner
responding, we changed the position of the boy by liable for damages arising from an accident that resulted
placing the child facing upwards laying on the
sand then we applied the mouth to mouth
in the death of a student who had joined a campaign to
resuscitation, sir. (pp. 92-93, Rollo) visit the public schools in Dipolog City to solicit
enrollment.
The Facts
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 The facts, as found by the Court of Appeals, are as
grounds to grant moral damages. follows:
Claiming damages for the death of their only son,
Art. 2217. Moral Damages include physical
Sherwin Carpitanos, spouses William Carpitanos and
suffering, mental anguish, fright, serious
Lucia Carpitanos filed on June 9, 1995 a case against
anxiety, besmirched reputation, wounded
James Daniel II and his parents, James Daniel Sr. and
Guada Daniel, the vehicle owner, Vivencio Villanueva
and St. Marys Academy before
the Regional Trial Court of Dipolog City.
On 20 February 1997, Branch 6 of
the Regional Trial Court of Dipolog City rendered its
decision the dispositive portion of which reads as
follows:
WHEREFORE, PREMISES CONSIDERED, judgment is
hereby rendered in the following manner:
1. Defendant St. Marys Academy of Dipolog City, is
hereby ordered to pay plaintiffs William Carpitanos and
Luisa Carpitanos, the following sums of money:
a. FIFTY THOUSAND PESOS (P50,000.00)
indemnity for the loss of life of Sherwin
S. Carpitanos;
b. FORTY THOUSAND PESOS (P40,000.00)
actual damages incurred by plaintiffs for
burial and related expenses;
c. TEN THOUSAND PESOS (P10,000.00) for
attorneys fees;
d. FIVE HUNDRED THOUSAND PESOS
(P500,000.00) for moral damages; and
to pay costs.
2. Their liability being only subsidiary, defendants James
Daniel, Sr. and Guada Daniel are hereby ordered to pay
herein plaintiffs the amount of damages above-stated in
the event of insolvency of principal obligor St. Marys
Academy of Dipolog City;
3. Defendant James Daniel II, being a minor at the time
of the commission of the tort and who was under special
parental authority of defendant St. Marys Academy, is
ABSOLVED from paying the above-stated damages,
same being adjudged against defendants St. Marys
Academy, and subsidiarily, against his parents;
4. Defendant Vivencio Villanueva is hereby ABSOLVED of
any liability. His counterclaim not being in order as
earlier discussed in this decision, is hereby DISMISSED.
IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp.
205-206).
From the records it appears that from 13 to 20 February
1995, defendant-appellant St. Marys Academy of Dipolog
City conducted an enrollment drive for the school year
1995-1996. A facet of the enrollment campaign was the
visitation of schools from where prospective enrollees
were studying. As a student of St. Marys Academy,
Sherwin Carpitanos was part of the campaigning
group. Accordingly, on the fateful day, Sherwin, along
with other high school students were riding in a
Mitsubishi jeep owned by defendant Vivencio Villanueva
on their way to Larayan Elementary School,
Larayan, Dapitan City.The jeep was driven by James
Daniel II then 15 years old and a student of the same
school. Allegedly, the latter drove the jeep in a reckless
manner and as a result the jeep turned turtle.
Sherwin Carpitanos died as a result of the injuries he
sustained from the accident.[2]
In due time, petitioner St. Marys academy appealed
the decision to the Court of Appeals.[3]
On February 29, 2000, the Court of Appeals
promulgated a decision reducing the actual damages to
P25,000.00 but otherwise affirming the decision a quo,
in toto.[4]
On February 29, 2000, petitioner St. Marys
Academy filed a motion for reconsideration of the
decision. However, on May 22, 2000, the Court of
Appeals denied the motion.[5]
Hence, this appeal.[6]
The Issues
1) Whether the Court of Appeals erred in
holding the petitioner liable for damages for
the death of Sherwin Carpitanos.
2) Whether the Court of Appeals erred in
affirming the award of moral damages
against the petitioner.
The Courts Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Marys
Academy liable for the death of Sherwin Carpitanos
under Articles 218[7] and 219[8] of the Family Code,
pointing out that petitioner was negligent in allowing a
minor to drive and in not having a teacher accompany
the minor students in the jeep.
Under Article 218 of the Family Code, the following
shall have special parental authority over a minor child
while under their supervision, instruction or custody: (1)
the school, its administrators and teachers; or (2) the
individual, entity or institution engaged in child
care. This special parental authority and responsibility
applies to all authorized activities, whether inside or
outside the premises of the school, entity or
institution. Thus, such authority and responsibility
applies to field trips, excursions and other affairs of the
pupils and students outside the school premises
whenever authorized by the school or its teachers.[9]
Under Article 219 of the Family Code, if the person
under custody is a minor, those exercising special
parental authority are principally and solidarily liable for
damages caused by the acts or omissions of the
unemancipated minor while under their supervision,
instruction, or custody.[10]
 However, for petitioner to be liable, there must be a
finding that the act or omission considered as negligent
was the proximate cause of the injury caused because
the negligence must have a causal connection to the
accident.[11]
In order that there may be a recovery for an injury,
however, it must be shown that the injury for which
recovery is sought must be the legitimate consequence
of the wrong done; the connection between the
negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the
proximate cause of the injury. For, negligence, no
matter in what it consists, cannot create a right of action
unless it is the proximate cause of the injury complained
of. And the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and
without which the result would not have occurred.[12]
In this case, the respondents failed to show that
the negligence of petitioner was the proximate cause of
the death of the victim.
Respondents Daniel spouses and Villanueva
admitted that the immediate cause of the accident was
not the negligence of petitioner or the reckless driving of
James Daniel II, but the detachment of the steering
wheel guide of the jeep.
In their comment to the petition, respondents
Daniel spouses and Villanueva admitted the
documentary exhibits establishing that the cause of the
accident was the detachment of the steering wheel
guide of the jeep. Hence, the cause of the accident was
not the recklessness of James Daniel II but the
mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses
Carpitanos, parents of the deceased Sherwin Carpitanos,
did not dispute the report and testimony of the traffic
investigator who stated that the cause of the accident
was the detachment of the steering wheel guide that
caused the jeep to turn turtle.
Significantly, respondents did not present any
evidence to show that the proximate cause of the
accident was the negligence of the school authorities, or
the reckless driving of James Daniel II. Hence, the
respondents reliance on Article 219 of the Family Code
that those given the authority and responsibility under
the preceding Article shall be principally and solidarily
liable for damages caused by acts or omissions of the
unemancipated minor was unfounded.
Further, there was no evidence that petitioner
school allowed the minor James Daniel II to drive the
jeep of respondent Vivencio Villanueva. It was Ched
Villanueva, grandson of respondent Vivencio Villanueva,
who had possession and control of the jeep. He was
driving the vehicle and he allowed James Daniel II, a
minor, to drive the jeep at the time of the accident.
Hence, liability for the accident, whether caused by
the negligence of the minor driver or mechanical
detachment of the steering wheel guide of the jeep,
must be pinned on the minors parents primarily. The
negligence of petitioner St. Marys Academy was only a
remote cause of the accident. Between the remote
cause and the injury, there intervened the negligence of
the minors parents or the detachment of the steering
wheel guide of the jeep.
The proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred.[13]
Considering that the negligence of the minor driver
or the detachment of the steering wheel guide of the
jeep owned by respondent Villanueva was an event over
which petitioner St. Marys Academy had no control, and
which was the proximate cause of the accident,
petitioner may not be held liable for the death resulting
from such accident.
Consequently, we find that petitioner likewise
cannot be held liable for moral damages in the amount
of P500,000.00 awarded by the trial court and affirmed
by the Court of Appeals.
Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate
result of the defendants wrongful act or omission.[14] In
this case, the proximate cause of the accident was not
attributable to petitioner.
For the reason that petitioner was not directly liable
for the accident, the decision of the Court of Appeals
ordering petitioner to pay death indemnity to respondent
Carpitanos must be deleted. Moreover, the grant of
attorneys fees as part of damages is the exception
rather than the rule.[15] The power of the court to award
attorneys fees under Article 2208 of the Civil Code
demands factual, legal and equitable
justification.[16] Thus, the grant of attorneys fees against
the petitioner is likewise deleted.
Incidentally, there was no question that the
registered owner of the vehicle was respondent
Villanueva. He never denied and in fact admitted this
fact. We have held that the registered owner of any
vehicle, even if not used for public service, would
primarily be responsible to the public or to third persons
for injuries caused the latter while the vehicle was being
driven on the highways or streets.[17] Hence, with the
overwhelming evidence presented by petitioner and the
respondent Daniel spouses that the accident occurred
because of the detachment of the steering wheel guide
of the jeep, it is not the school, but the registered owner
of the vehicle who shall be held responsible for damages
for the death of Sherwin Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES and SETS
ASIDE the decision of the Court of Appeals[18] and that
of the trial court.[19] The Court remands the case to the
trial court for determination of the liability of defendants,
excluding petitioner St. Marys Academy, Dipolog City. No
costs. SO ORDERED.
4. OWNERS AND MANAGERS
ESTABLISHMENTS
[G.R. No. L-25142. March 25, 1975.]
PHILIPPINE RABBIT BUS LINES, INC. and FELIX
PANGALANGAN, Plaintiffs-Appellants, v. PHIL-
AMERICAN FORWARDERS, INC., ARCHIMEDES J.
BALINGIT and FERNANDO PINEDA, Defendants-
Appellees.
SYNOPSIS
As a result of a vehicular accident, complaint for
damages based on culpa-aquitiana was filed against the
Phil-American Forwarders, Inc., Fernando Pineda, and
Balingit as manager of the company. The trial court
dismissed the complaint against Balingit on the ground
that he is not the manager of an establishment
contemplated in Article 2180 of the Civil Code making
owners and managers of an establishment responsible
for damages caused by their employees, since Balingit
himself may be regarded as an employee of the Phil-
American Forwarders, Inc. On appeal, plaintiffs urged
that the veil of corporate fiction should be pierced, the
Phil-American Forwarders Inc. being merely a business
conduit of Balingit, since he and his wife are the
controlling stockholders. The Supreme Court held that
this issue cannot be entertained on appeal, because it
was not raised in the lower court. Order of dismissal
affirmed.
SYLLABUS
1. QUASI-DELICT; EMPLOYER AND EMPLOYEES; "EMPLOYER"
AND "OWNER AND MANAGER OF ESTABLISHMENT OF
ENTERPRISE" DO NOT INCLUDE MANAGER OF
CORPORATION. — The terms "employer" and "owner and
manager of establishment or enterprise" as used in Article
2180 of the Civil Code do not include the manager of a
corporation owning a truck the reckless operation of which
allegedly resulted in the vehicular accident from which the
damage arose.
2. WORDS AND PHRASES; "MANAGER" UNDER SEC. 2180 OF
CIVIL CODE USED IN THE SENSE OF "EMPLOYER." — Under
Article 2180 the term "manager" is used in the sense of
"employer" and does not embrace a "manager" who may
himself be regarded as an employee or dependiente of his
employer.
3. APPEAL; ISSUES NOT RAISED IN THE LOWER COURT
CANNOT BE ENTERTAINED ON APPEAL. — A new factual
issue injected in the brief which was not alleged in the
complaint or raised in the trial court cannot be entertained
on appeal. An appeal has to be decided on the basis of the
pleadings filed in the trial court, and appellants can ventilate
on appeal only those legal issues raised in the lower court
and those within the issues framed by the parties.
4. ID.; ID.; CHANGE OF THEORY; PARTY-LITIGANT CANNOT
BE ALLOWED TO CHANGE THEORY OF CASE ON APPEAL. —
When a party deliberately adopts a certain theory and the
case is decided upon that theory in the court below, he will
not be permitted to change his theory on appeal because
that would be unfair to the adverse party.
OF
D E C I S I O N (AQUINO, J.:)
Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan
appealed on pure questions of law from the order of the
Court of First Instance of Tarlac, dismissing their
complaint against Archimedes J. Balingit.
The dismissal was based on the ground that Balingit as
the manager of Phil-American Forwarders, Inc., which
together with Fernando Pineda and Balingit, was sued
for damages in an action based on quasi-delict or culpa
aquiliana is not the manager of an establishment
contemplated in article 2180 of the Civil Code (Civil Case
No. 3865)
In the complaint for damages filed by the bus company
and Pangalangan against Phil-American Forwarders,
Inc., Balingit and Pineda, it was alleged that on
November 24, 1962, Pineda drove recklessly a freight
truck, owned by Phil-American Forwarders, Inc., along
the national highway at Sto. Tomas, Pampanga. The
truck bumped the bus driven by Pangalangan, which
was owned by Philippine Rabbit Bus Lines, Inc. As a
result of the bumping, Pangalangan suffered injuries and
the bus was damaged and could not be used for
seventy-nine days, thus depriving the company of
earnings amounting to P8,665.51. Balingit was the
manager of Phil-American Forwarders, Inc.
Among the defenses interposed by the defendants in
their answer was that Balingit was not Pineda’s
employer.
Balingit moved that the complaint against him be
dismissed on the ground that the bus company and the
bus driver had no cause of action against him. As
already stated, the lower court dismissed the action as
to Balingit. The bus company and its driver appealed.
The Civil Code provides:
"ART. 2176. 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 relation between the
parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
"ART. 2180. The obligation imposed by article 2176 is
demandable not only for one’s own acts or omissions,
but also for those of persons for whom one is
responsible.
x x x because out of its capital stock with a par value of
"The owners and managers of an establishment or
enterprise are likewise responsible for damages caused
by their employees in the service of the branches in
which the latter are employed or on the occasion of their
functions.
"Employers shall be liable for the damages caused by
their employees and household helpers acting within the
scope of their assigned tasks, even though the former
are not engaged in any business or industry.
x x x We cannot countenance that argument in this appeal. It
"The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage. (1903a)"
The novel and unprecedented legal issue in this appeal
is whether the terms "employers" and "owners and
managers of an establishment or enterprise" (dueños o
directores de un establicimiento o empresa) used in
article 2180 of the Civil Code, formerly article 1903 of
the old Code, embrace the manager of a corporation
owning a truck, the reckless operation of which allegedly
resulted in the vehicular accident from which the
damage arose.
We are of the opinion that those terms do not include
the manager of a corporation. It may be gathered from
the context of article 2180 that the term "manager"
("director" in the Spanish version) is used in the sense of
"employer."
Hence, under the allegations of the complaint, no
tortious or quasi-delictual liability can be fastened on
Balingit as manager of Phil-American Forwarders, Inc.,
in connection with the vehicular accident already
mentioned because he himself may be regarded as an
employee or dependiente of his employer, Phil-American
Forwarders, Inc.
Thus, it was held "que es dependiente, a los efectos de
la responsabilidad subsidiaria establecida en el num. 3.x
del (art.) 1903, el director de un periodico explotado por
una sociedad, porque cualquiera que sea su jerarqu!a, y
aunque lleve la direccin de determinadas convicciones
politicas, no por eso deja de estar subordinado a la
superior autoridad de la Empresa" (Decision of Spanish
Supreme Court dated December 6, 1912 cited in 12
Manresa, Codigo Civil Español, 5th Ed. 662; 1913
Enciclopedia Juridica Española 992).
The bus company and its driver, in their appellants’
brief, injected a new factual issue which was not alleged
in their complaint. They argue that Phil-American
Forwarders, Inc. is merely a business conduit of Balingit
P41,200, Balingit and his wife had subscribed P40,000
and they paid P10,000 on their subscription, while the
other incorporators, namely, Rodolfo Limjuco, Ponciano
Caparas and Rafael Suntay paid P250.25 and P25,
respectively.
That argument implies that the veil of corporate fiction
should be pierced and that Phil-American Forwarders,
Inc. and Balingit and his wife should be treated as one
and the same civil personality.
was not raised in the lower court. The case has to be
decided on the basis of the pleadings filed in the trial
court where it was assumed that Phil-American
Forwarders, Inc. has a personality separate and distinct
from that of the Balingit spouses.
The legal issue, which the plaintiffs-appellants can
ventilate in this appeal, is one which was raised in the
lower court and which is within the issues framed by the
parties (Sec. 18, Rule 46, Rules of Court).
When a party deliberately adopts a certain theory and
the case is decided upon that theory in the court below,
he will not be permitted to change his theory on appeal
because, to permit him to do so, would be unfair to the
adverse party (2 Moran’s Comments on the Rules of
Court, 1970 Ed. p. 505).
WHEREFORE, the lower court’s order of dismissal is
affirmed. Costs against the plaintiffs-appellants. SO
ORDERED.
5. EMPLOYERS
G.R. No. 82248 January 30, 1992
ERNESTO MARTIN, petitioner, vs. HON. COURT OF
APPEALS and MANILA ELECTRIC
COMPANY, respondents
This case turns on the proper application of the familiar
rule that he who alleges must prove his allegation.
Ernesto Martin was the owner of a private car bearing
license plate No. NPA-930. At around 2 o'clock in the
morning of May 11, 1982, while being driven by Nestor
Martin, it crashed into a Meralco electric post on Valley
Golf Road, in Antipolo, Rizal. The car was wrecked and
the pole severely damaged. Meralco subsequently
demanded reparation from Ernesto Martin, but the
demand was rejected. It thereupon sued him for
damages in the Regional Trial Court of Pasig,
alleging inter alia that he was liable to it in the sum of
P17,352.00 plus attorney's fees and litigation costs as
the employer of Nestor Martin. The petitioner's main
defense was that Nestor Martin was not his employee.
After the plaintiff had rested, the defendant moved to
dismiss the complaint on the ground that no evidence
had been adduced to show that Nestor Martin was his
employee. The motion was denied. The case was
considered submitted for decision with the express
waiver by the defendant of his right to present his own
evidence. The defendant thus did not rebut the plaintiff's
allegation that he was Nestor Martin's employer.
In the decision dated August 27, 1985, Judge Eutropio
Migriño held in favor of the plaintiff, awarding him the
amount claimed, with 12% interest, and P4,000.00
attorney's fees, plus costs.1 The decision was seasonably
elevated to the Court of Appeals, which affirmed
it in toto on February 22, 1988, 2 prompting this petition
for review.
The petition has merit.
It is important to stress that the complaint for damages
was filed by the private respondent against only Ernesto
Martin as alleged employer of Nestor Martin, the driver
of the car at the time of the accident. Nestor Martin was
not impleaded. The action was based on tort under
Article 2180 of the Civil Code, providing in part 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.
The above rule is applicable only if there is an employer-
employee relationship although it is not necessary that
the employer be engaged in any business or industry. It
differs in this sense from Article 103 of the Revised
Penal Code, which requires that the employer be
engaged in an industry to be subsidiarily liable for the
felony committed by his employee in the course of his
employment.
Whether or not engaged in any business or industry, the
employer under Article 2180 is liable for the torts
committed by his employees within the scope of their
assigned task. But it is necessary first to establish the
employment relationship. Once this is done, the plaintiff
must show, to hold the employer liable, that the
employee was acting within the scope of his assigned
task when the tort complained of was committed. It is
only then that the defendant, as employer, may find it
necessary to interpose the defense of due diligence in
the selection and supervision of the employee as allowed
in that article. 3
In the case at bar, no evidence whatsoever was
adduced by the plaintiff to show that the defendant was
the employer of Nestor Martin at the time of the
accident. The trial court merely presumed the existence
of the employer-employee relationship and held that the
petitioner had not refuted that presumption. It noted
that although the defendant alleged that he was not
Nestor Martin's employer, "he did not present any proof
to substantiate his allegation."
As the trial court put it:
There is no need to stretch one's
imagination to realize that a car owner
entrusts his vehicle only to his driver or
to anyone whom he allows to drive it.
Since neither plaintiff nor defendant has
presented any evidence on the status of
Nestor Martin, the Court presumes that
he was at the time of the incident, an
employee of the defendant. It is
elementary that he who makes an
allegation is required to prove the same.
Defendant alleges that Nestor Martin
was not his employee but he did not
present any proof to substantiate his
allegation. While it is true plaintiff did
not present evidence on its allegation
that Nestor Martin was defendant's
employee, the Court believes and so
holds, that there was no need for such
evidence. As above adverted to, the
Court can proceed on the presumption
that one who drives the motor vehicle is
an employee of the owner thereof.
A presumption is defined as an inference as to the
existence of a fact not actually known, arising from its
usual connection with another which is known, 4 or a
conjecture based on past experience as to what course
human affairs ordinarily take. 5 It is either a
presumption juris, or of law, or a presumption hominis,
or of fact.
There is no law directing the deduction made by the
courts below from the particular facts presented to them
by the parties. Such deduction is not among the
conclusive presumptions under Section 2 or the
disputable presumptions under Section 3 of Rule 131 of
the Rules of Court. In other words, it is not a
presumption juris.
Neither is it a presumption hominis, which is a
reasonable deduction from the facts proved without an
express direction of law to that effect. The facts proved,
or not denied, viz., the ownership of the car and the
circumstances of the accident, are not enough bases for
the inference that the petitioner is the employer of
Nestor Martin.
In the modern urban society, most male persons know
how to drive and do not have to employ others to drive
for them unless this is needed for business reasons.
Many cannot afford this luxury, and even if they could,
may consider it an unnecessary expense and
inconvenience. In the present case, the more plausible
assumption is that Nestor Martin is a close relative of
Ernesto Martin and on the date in question borrowed the
car for some private purpose. Nestor would probably not
have been accommodated if he were a mere employee
for employees do not usually enjoy the use of their
employer's car at two o'clock in the morning.
As the employment relationship between Ernesto Martin
and Nestor Martin could not be presumed, it was
necessary for the plaintiff to establish it by evidence.
Meralco had the burden of proof, or the duty "to present
evidence on the fact in issue necessary to establish his
claim" as required by Rule 131, Section 1 of the Revised
Rules of Court. Failure to do this was fatal to its action.
It was enough for the defendant to deny the alleged
employment relationship, without more, for he was not
under obligation to prove this negative averment.
Ei incumbit probatio qui dicit, non qui negat. This Court
has consistently applied the ancient rule that "if the
plaintiff, upon whom rests the burden of proving his
cause of action, fails to show in a satisfactory manner
the facts upon which he bases his claim, the defendant
is under no obligation to prove his exception or
defense."
The case of Amor v. Soberano, 10 a Court of Appeals
decision not elevated to this Court, was misapplied by
the respondent court in support of the petitioner's
position. The vehicle involved in that case was a six-by-
six truck, which reasonably raised the factual
presumption that it was engaged in business and that its
driver was employed by the owner of the vehicle. The
case at bar involves a private vehicle as its license plate
indicates. No evidence was ever offered that it was
being used for business purposes or that, in any case, its
driver at the time of the accident was an employee of
the petitioner.
It is worth mentioning in this connection that
in Filamer Christian Institute v. Court of Appeals, 11 the
owner of the jeep involved in the accident was absolved
from liability when it was shown that the driver of the
vehicle was not employed as such by the latter but was
a "working scholar" as that term is defined by the
Omnibus Rules Implementing the Labor Code. 12 He was
assigned to janitorial duties. Evidence was introduced to
establish the employment relationship but it failed
nonetheless to hold the owner responsible. Significantly,
no similar evidence was even presented in the case at
bar, the private respondent merely relying on its mere
allegation that Nestor Martin was the petitioner's
employee. Allegation is not synonymous with proof.
The above observations make it unnecessary to examine
the question of the driver's alleged negligence or the
lack of diligence on the part of the petitioner in the
selection and supervision of his employee. These
questions have not arisen because the employment
relationship contemplated in Article 1860 of the Civil
Code has not been established.
WHEREFORE, the petition is GRANTED. The decision of
the respondent court is REVERSED, and Civil Case No.
48045 in the Regional Trial Court of Pasig, Branch 151,
is DISMISSED, with costs against the respondent. It is
so ordered.
G.R. No. 66207 May 18, 1992
MAXIMINO SOLIMAN, JR., represented by his
judicial guardian VIRGINIA C.
SOLIMAN, petitioner, vs. HON. JUDGE RAMON
TUAZON, Presiding Judge of Branch LXI, Regional
Trial Court of Region III, Angeles City, and the
REPUBLIC CENTRAL COLLEGES, represented by
its President, respondents.
On 22 March 1983, petitioner Soliman, Jr. filed a civil
complaint for damages against private respondent
Republic Central Colleges ("Colleges"), the R.L. Security
Agency Inc. and one Jimmy B. Solomon, a security
guard, as defendants. The complaint alleged that:
. . . on 13 August 1982, in the morning
thereof, while the plaintiff was in the
campus ground and premises of the
defendant, REPUBLIC CENTRAL
COLLEGES, as he was and is still a
regular enrolled student of said school
taking his morning classes, the
defendant, JIMMY B. SOLOMON, who
was on said date and hour in the
premises of said school performing his
duties and obligations as a duly
appointed security guard under the
employment, supervision and control of
his employer-defendant R.L. SECURITY
AGENCY, INC., headed by Mr. Benjamin
Serrano, without any provocation, in a
wanton, fraudulent, reckless, oppressive
or malevolent manner, with intent to
kill, attack, assault, strike and shoot the
plaintiff on the abdomen with a .38
 Caliber Revolver, a deadly weapon,
which ordinarily such wound sustained
would have caused plaintiff's death were
it not for the timely medical assistance
given to him. The plaintiff was treated
and confined at Angeles Medical Center,
Angeles City, and, as per doctor's
opinion, the plaintiff may not be able to
attend to his regular classes and will be
incapacitated in the performance of his
usual work for a duration of from three
to four months before his wounds would
be completely healed. 1
Private respondent Colleges filed a motion to dismiss,
contending that the complaint stated no cause of action
against it. Private respondent argued that it is free from
any liability for the injuries sustained by petitioner
student for the reason that private respondent school
was not the employer of the security guard charged,
Jimmy Solomon, and hence was not responsible for any
wrongful act of Solomon. Private respondent school
further argued that Article 2180, 7th paragraph, of the
Civil Code did not apply, since said paragraph holds
teachers and heads of establishment of arts and trades
liable for damages caused by their pupils and students
or apprentices, while security guard Jimmy Solomon was
not a pupil, student or apprentice of the school.
In an order dated 29 November 1983, respondent Judge
granted private respondent school's motion to dismiss,
holding that security guard Jimmy Solomon was not an
employee of the school which accordingly could not be
held liable for his acts or omissions. Petitioner moved for
reconsideration, without success.
In this Petition for Certiorari and Prohibition, it is
contended that respondent trial judge committed a
grave abuse of discretion when he refused to apply the
provisions of Article 2180, as well as those of Articles
349, 350 and 352, of the Civil Code and granted the
school's motion to dismiss.
Under Article 2180 of the Civil Code, the obligation to
respond for damage inflicted by one against another by
fault or negligence exists not only for one's own act or
omission, but also for acts or omissions of a person for
whom one is by law responsible. Among the persons
held vicariously responsible for acts or omissions of
another person are the following:
xxx xxx xxx
Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their assigned
tasks, even though the former are not engaged
in any business or industry.
xxx xxx xxx
Lastly, teachers or heads of establishments of
arts and trades shall be liable for damages
caused by their pupils, their students or
apprentices, so long as they remain in their
custody.
xxx xxx xxx
The first paragraph quoted above offers no basis for
holding the Colleges liable for the alleged wrongful acts
of security guard Jimmy B. Solomon inflicted upon
petitioner Soliman, Jr. Private respondent school was not
the employer of Jimmy Solomon. The employer of
Jimmy Solomon was the R.L. Security Agency Inc., while
the school was the client or customer of the R.L.
Security Agency Inc. It is settled that where the security
agency, as here, recruits, hires and assigns the work of
its watchmen or security guards, the agency is the
employer of such guards or watchmen. 2 Liability for
illegal or harmful acts committed by the security guards
attaches to the employer agency, and not to the clients
or customers of such agency. 3 As a general rule, a
client or customer of a security agency has no hand in
selecting who among the pool of security guards or
watchmen employed by the agency shall be assigned to
it; the duty to observe the diligence of a good father of
a family in the selection of the guards cannot, in the
ordinary course of events, be demanded from the client
whose premises or property are protected by the
security guards. The fact that a client company may give
instructions or directions to the security guards assigned
to it, does not, by itself, render the client responsible as
an employer of the security guards concerned and liable
for their wrongful acts or omissions. Those instructions
or directions are ordinarily no more than requests
commonly envisaged in the contract for services entered
into with the security agency. There being no employer-
employee relationship between the Colleges and Jimmy
Solomon, petitioner student cannot impose vicarious
liability upon the Colleges for the acts of security guard
Solomon.
Since there is no question that Jimmy Solomon was not
a pupil or student or an apprentice of the Colleges, he
being in fact an employee of the R.L. Security Agency
Inc., the other above-quoted paragraph of Article 2180
of the Civil Code is similarly not available for imposing
liability upon the Republic Central Colleges for the acts
or omissions of Jimmy Solomon.
The relevant portions of the other Articles of the Civil
Code invoked by petitioner are as follows:
Art. 349. The following persons shall exercise
substitute parental authority:
xxx xxx xxx
 (2) Teachers and professors;
xxx xxx xxx
(4) Directors of trade establishments with regard
to apprentices;
xxx xxx xxx
Art. 350. The persons named in the preceding
article shall exercise reasonable supervision over
the conduct of the child.
xxx xxx xxx
Art. 352. The relations between teacher and
pupil, professor and student are fixed by
government regulations and those of each
school or institution. In no case shall corporal
punishment be countenanced. The teacher or
professor shall cultivate the best potentialities of
the heart and mind of the pupil or student.
In Palisoc v. Brillantes, 4 invoked by petitioner, the Court
held the owner and president of a school of arts and
trades known as the "Manila Technical Institute,"
Quezon Blvd., Manila, responsible in damages for the
death of Dominador Palisoc, a student of Institute,
which resulted from fist blows delivered by Virgilio L.
Daffon, another student of the Institute. It will be seen
that the facts of Palisoc v. Brillantes brought it expressly
within the 7th paragraph of Article 2180, quoted above;
but those facts are entirely different from the facts
existing in the instant case.
Persons exercising substitute parental authority are
made responsible for damage inflicted upon a third
person by the child or person subject to such substitute
parental authority. In the instant case, as already noted,
Jimmy Solomon who committed allegedly tortious acts
resulting in injury to petitioner, was not a pupil, student
or apprentice of the Republic Central Colleges; the
school had no substitute parental authority over
Solomon.
Clearly, within the confines of its limited logic, i.e.,
treating the petitioner's claim as one based wholly and
exclusively on Article 2180 of the Civil Code, the order of
the respondent trial judge was correct. Does it follow,
however, that respondent Colleges could not be held
liable upon any other basis in law, for or in respect of
the injury sustained by petitioner, so as to entitle
respondent school to dismissal of petitioner's complaint
in respect of itself?
The very recent case of the Philippine School of Business
Administration (PSBA) v. Court of Appeals, 5 requires us
to give a negative answer to that question.
In PSBA, the Court held that Article 2180 of the Civil
Code was not applicable where a student had been
injured by one who was an outsider or by one over
whom the school did not exercise any custody or control
or supervision. At the same time, however, the Court
stressed that an implied contract may be held to be
established between a school which accepts students for
enrollment, on the one hand, and the students who are
enrolled, on the other hand, which contract results in
obligations for both parties:
When an academic institution accepts students
for enrollment, there is established
a contract between them, resulting in bilateral
obligations which parties are bound to comply
with. For its part, the school undertakes to
provide the student with an education that
would presumably suffice to equip him with the
necessary tools and skills to pursue higher
education or a profession. On the other hand,
the student covenants to abide by the school's
academic requirements and observe its rules
and regulations.
Institutions of learning must also meet the
implicit or "built-in" obligation of providing their
students with an atmosphere that promotes or
assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can
absorb the intricacies of physics or higher
mathematics or explore the realm of the arts
and other sciences when bullets are flying or
grenades exploding in the air or where there
looms around the school premises a constant
threat to life and limb. Necessarily, the school
must ensure that adequate steps are taken to
maintain peace and order within the campus
premises and to prevent the breakdown
thereof. 6
In that case, the Court was careful to point out that:
In the circumstances obtaining in the case at
bar, however, there is, as yet, no finding that
the contract between the school and Bautista
had been breached thru the former's negligence
in providing proper security measures. This
would be for the trial court to determine. And,
even if there be a finding of negligence, the
same could give rise generally to a breach of
contractual obligation only. Using the test
of Cangco, supra, the negligence of the school
would not be relevant absent a contract. In fact,
that negligence becomes material only because
of the contractual relation between PSBA and
Bautista. In other words, a contractual relation
is a condition sine qua non to the school's
liability. The negligence of the school cannot
exist independently of the contract, unless the
 negligence occurs under the circumstances set
out in Article 21 of the Civil Code.
The Court is not unmindful of the attendant
difficulties posed by the obligation of schools,
above-mentioned, for conceptually a school, like
a common carrier, cannot be an insurer of its
students against all risks. This is specially true in
the populous student communities of the so-
called "university belt" in Manila where there
have been reported several incidents ranging
from gang wars to other forms of hooliganism.
It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their
premises, for notwithstanding the security
measures installed, the same may still fail
against an individual or group determined to
carry out a nefarious deed inside school
premises and environs. Should this be the case,
the school may still avoid liability by proving that
the breach of its contractual obligation to the
students was not due to its negligence, here
statutorily defined to be the omission of that
degree of diligence which is required by the
nature of obligation and corresponding to the
circumstances of person, time and place. 7
In the PSBA case, the trial court had denied the school's
motion to dismiss the complaint against it, and both the
Court of Appeals and this Court affirmed the trial court's
order. In the case at bar, the court a quo granted the
motion to dismiss filed by respondent Colleges, upon the
assumption that petitioner's cause of action was based,
and could have been based, only on Article 2180 of the
Civil Code. As PSBA, however, states, acts which are
tortious or allegedly tortious in character may at the
same time constitute breach of a contractual, or other
legal, obligation. Respondent trial judge was in serious
error when he supposed that petitioner could have no
cause of action other than one based on Article 2180 of
the Civil Code. Respondent trial judge should not have
granted the motion to dismiss but rather should have, in
the interest of justice, allowed petitioner to prove acts
constituting breach of an obligation ex contractu or ex
lege on the part of respondent Colleges.
In line, therefore, with the most recent jurisprudence of
this Court, and in order to avoid a possible substantial
miscarriage of justice, and putting aside technical
considerations, we consider that respondent trial judge
committed serious error correctible by this Court in the
instant case.
ACCORDINGLY, the Court Resolved to GRANT DUE
COURSE to the Petition, to TREAT the comment of
respondent Colleges as its answer, and to REVERSE and
SET ASIDE the Order dated 29 November 1983. This
case is REMANDED to the court a quo for further
proceedings consistent with this Resolution.
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C.
AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants, vs. CALTEX (PHIL.),
INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
This case is before us on a petition for review of the
decision of the Court of Appeals, which affirmed that of
the Court of First Instance of Manila dismissing
petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and 1903
of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal Avenue,
Manila. It started while gasoline was being hosed from a
tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the
hose was inserted. The fire spread to and burned
several neighboring houses, including the personal
properties and effects inside them. Their owners, among
them petitioners here, sued respondents Caltex (Phil.),
Inc. and Mateo Boquiren, the first as alleged owner of
the station and the second as its agent in charge of
operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that
petitioners failed to prove negligence and that
respondents had exercised due care in the premises and
with respect to the supervision of their employees.
The first question before Us refers to the admissibility of
certain reports on the fire prepared by the Manila Police
and Fire Departments and by a certain Captain Tinio of
the Armed Forces of the Philippines. Portions of the first
two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about
4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline
from a tank truck, plate No. T-5292 into
the underground tank of the Caltex
Gasoline Station located at the corner of
Rizal Avenue and Antipolo Street, this
City, an unknown Filipino lighted a
cigarette and threw the burning match
stick near the main valve of the said
underground tank. Due to the gasoline
fumes, fire suddenly blazed. Quick
 action of Leandro Flores in pulling off
the gasoline hose connecting the truck
with the underground tank prevented a
terrific explosion. However, the flames
scattered due to the hose from which
the gasoline was spouting. It burned the
truck and the following accessorias and
residences.
2. The Fire Department report: —
In connection with their allegation that the
premises was (sic) subleased for the installation
of a coca-cola and cigarette stand, the
complainants furnished this Office a copy of a
photograph taken during the fire and which is
submitted herewith. it appears in this picture
that there are in the premises a coca-cola cooler
and a rack which according to information
gathered in the neighborhood contained
cigarettes and matches, installed between the
gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information
given by a certain Benito Morales regarding the history
of the gasoline station and what the chief of the fire
department had told him on the same subject.
The foregoing reports were ruled out as "double
hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is
contended: first, that said reports were admitted by the
trial court without objection on the part of respondents;
secondly, that with respect to the police report (Exhibit
V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was
presented as witness but respondents waived their right
to cross-examine him although they had the opportunity
to do so; and thirdly, that in any event the said reports
are admissible as an exception to the hearsay rule under
section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The
transcript of the hearing of September 17, 1953 (pp.
167-170) shows that the reports in question, when
offered as evidence, were objected to by counsel for
each of respondents on the ground that they were
hearsay and that they were "irrelevant, immaterial and
impertinent." Indeed, in the court's resolution only
Exhibits J, K, K-5 and X-6 were admitted without
objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did
take the witness stand, he was not examined and he did
not testify as to the facts mentioned in his alleged report
(signed by Detective Zapanta). All he said was that he
was one of those who investigated "the location of the
fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him.
There was nothing, therefore, on which he need be
cross-examined; and the contents of the report, as to
which he did not testify, did not thereby become
competent evidence. And even if he had testified, his
testimony would still have been objectionable as far as
information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in
themselves, that is, without further testimonial evidence
on their contents, fall within the scope of section 35,
Rule 123, which provides that "entries in official records
made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of
a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule
just mentioned: (a) that the entry was made by a public
officer, or by another person specially enjoined by law to
do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in
the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have
been acquired by him personally or through official
information (Moran, Comments on the Rules of Court,
Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be
considered here. Obviously the material facts recited in
the reports as to the cause and circumstances of the fire
were not within the personal knowledge of the officers
who conducted the investigation. Was knowledge of
such facts, however, acquired by them through official
information? As to some facts the sources thereof are
not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station
were the fire occurred; to Leandro Flores, driver of the
tank truck from which gasoline was being transferred at
the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to
Exhibit V-Africa, give any reason as to the origin of the
fire. To qualify their statements as "official information"
acquired by the officers who prepared the reports, the
persons who made the statements not only must have
personal knowledge of the facts stated but must have
the duty to give such statements for record. 1
The reports in question do not constitute an exception to
the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official
information, not having been given by the informants
pursuant to any duty to do so.
The next question is whether or not, without proof as to
the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on
the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability
... in the Philippines, there seems to he nothing
definite," and that while the rules do not prohibit its
adoption in appropriate cases, "in the case at bar,
however, we find no practical use for such doctrine."
The question deserves more than such summary
dismissal. The doctrine has actually been applied in this
jurisdiction, in the case of Espiritu vs. Philippine Power
and Development Co. (CA-G.R. No. 3240-R, September
20, 1949), wherein the decision of the Court of Appeals
was penned by Mr. Justice J.B.L. Reyes now a member
of the Supreme Court.
The facts of that case are stated in the decision as
follows:
In the afternoon of May 5, 1946, while the
plaintiff-appellee and other companions were
loading grass between the municipalities of Bay
and Calauan, in the province of Laguna, with
clear weather and without any wind blowing, an
electric transmission wire, installed and
maintained by the defendant Philippine Power
and Development Co., Inc. alongside the road,
suddenly parted, and one of the broken ends hit
the head of the plaintiff as he was about to
board the truck. As a result, plaintiff received
the full shock of 4,400 volts carried by the wire
and was knocked unconscious to the ground.
The electric charge coursed through his body
and caused extensive and serious multiple burns
from skull to legs, leaving the bone exposed in
some parts and causing intense pain and
wounds that were not completely healed when
the case was tried on June 18, 1947, over one
year after the mishap.
The defendant therein disclaimed liability on the ground
that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the
defense under the doctrine of res ipsa loquitur. The
court said:
The first point is directed against the sufficiency
of plaintiff's evidence to place appellant on its
defense. While it is the rule, as contended by
the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of
proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence
of the defendant, it is also a recognized principal
that "where the thing which caused injury,
without fault of the injured person, is under the
exclusive control of the defendant and the injury
is such as in the ordinary course of things does
not occur if he having such control use proper
care, it affords reasonable evidence, in the
absence of the explanation, that the injury arose
from defendant's want of care."
And the burden of evidence is shifted to him to
establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v.
Requena, 244, U.S. 89, 56 L. ed. 680.) This rule
is known by the name of res ipsa loquitur (the
transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to
be on the highway, and the electric wire was
under the sole control of defendant company. In
the ordinary course of events, electric wires do
not part suddenly in fair weather and injure
people, unless they are subjected to unusual
strain and stress or there are defects in their
installation, maintenance and supervision; just
as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless
some one was negligent. (Byrne v. Boadle, 2 H
& Co. 722; 159 Eng. Reprint 299, the leading
case that established that rule). Consequently,
in the absence of contributory negligence (which
is admittedly not present), the fact that the wire
snapped suffices to raise a reasonable
presumption of negligence in its installation,
care and maintenance. Thereafter, as observed
by Chief Baron Pollock, "if there are any facts
inconsistent with negligence, it is for the
defendant to prove."
It is true of course that decisions of the Court of Appeals
do not lay down doctrines binding on the Supreme
Court, but we do not consider this a reason for not
applying the particular doctrine of res ipsa loquitur in the
case at bar. Gasoline is a highly combustible material, in
the storage and sale of which extreme care must be
taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some
act of man. A case strikingly similar to the one before Us
is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:
Arthur O. Jones is the owner of a building in the
city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a
gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was
being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to
the underground tank of the station, a fire
started with resulting damages to the building
owned by Jones. Alleging that the damages to
his building amounted to $516.95, Jones sued
the Shell Petroleum Corporation for the recovery
 of that amount. The judge of the district court,
after hearing the testimony, concluded that
plaintiff was entitled to a recovery and rendered
judgment in his favor for $427.82. The Court of
Appeals for the First Circuit reversed this
judgment, on the ground the testimony failed to
show with reasonable certainty any negligence
on the part of the Shell Petroleum Corporation
or any of its agents or employees. Plaintiff
applied to this Court for a Writ of Review which
was granted, and the case is now before us for
decision.1äwphï1.ñët
In resolving the issue of negligence, the Supreme Court
of Louisiana held:
Plaintiff's petition contains two distinct charges
of negligence — one relating to the cause of the
fire and the other relating to the spreading of
the gasoline about the filling station.
Other than an expert to assess the damages
caused plaintiff's building by the fire, no
witnesses were placed on the stand by the
defendant.
Taking up plaintiff's charge of negligence
relating to the cause of the fire, we find it
established by the record that the filling station
and the tank truck were under the control of the
defendant and operated by its agents or
employees. We further find from the
uncontradicted testimony of plaintiff's witnesses
that fire started in the underground tank
attached to the filling station while it was being
filled from the tank truck and while both the
tank and the truck were in charge of and being
operated by the agents or employees of the
defendant, extended to the hose and tank truck,
and was communicated from the burning hose,
tank truck, and escaping gasoline to the building
owned by the plaintiff.
Predicated on these circumstances and the
further circumstance of defendant's failure to
explain the cause of the fire or to show its lack
of knowledge of the cause, plaintiff has evoked
the doctrine of res ipsa loquitur. There are many
cases in which the doctrine may be successfully
invoked and this, we think, is one of them.
Where the thing which caused the injury
complained of is shown to be under the
management of defendant or his servants and
the accident is such as in the ordinary course of
things does not happen if those who have its
management or control use proper care, it
affords reasonable evidence, in absence of
explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p.
1193).
This statement of the rule of res ipsa
loquitur has been widely approved and adopted
by the courts of last resort. Some of the cases in
this jurisdiction in which the doctrine has been
applied are the following, viz.: Maus v.
Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert
v. Lake Charles Ice, etc., Co., 111 La. 522, 35
So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505;
Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38
So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies
with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread
to and burned the neighboring houses. The persons who
knew or could have known how the fire started were
appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened
because of want of care.
In the report submitted by Captain Leoncio Mariano of
the Manila Police Department (Exh. X-1 Africa) the
following appears:
Investigation of the basic complaint disclosed
that the Caltex Gasoline Station complained of
occupies a lot approximately 10 m x 10 m at the
southwest corner of Rizal Avenue and Antipolo.
The location is within a very busy business
district near the Obrero Market, a railroad
crossing and very thickly populated
neighborhood where a great number of people
mill around t(it?).. until …gasoline..
(what?)…ever be the activities of these people
or lighting a cigarette cannot be excluded and
this constitute a secondary hazard to its
operation which in turn endangers the entire
neighborhood to conflagration.
Furthermore, aside from precautions already
taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-
1/2 meters high at most and cannot avoid the
flames from leaping over it in case of fire.
Records show that there have been two cases of
fire which caused not only material damages but
desperation and also panic in the neighborhood.
Although the soft drinks stand had been
eliminated, this gasoline service station is also
used by its operator as a garage and repair shop
 for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of
fire at this already small but crowded gasoline
station.
The foregoing report, having been submitted by a police
officer in the performance of his duties on the basis of
his own personal observation of the facts reported, may
properly be considered as an exception to the hearsay
rule. These facts, descriptive of the location and
objective circumstances surrounding the operation of the
gasoline station in question, strengthen the presumption
of negligence under the doctrine of res ipsa loquitur,
since on their face they called for more stringent
measures of caution than those which would satisfy the
standard of due diligence under ordinary circumstances.
There is no more eloquent demonstration of this than
the statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank
wagon who, alone and without assistance, was
transferring the contents thereof into the underground
storage when the fire broke out. He said: "Before
loading the underground tank there were no people, but
while the loading was going on, there were people who
went to drink coca-cola (at the coca-cola stand) which is
about a meter from the hole leading to the underground
tank." He added that when the tank was almost filled he
went to the tank truck to close the valve, and while he
had his back turned to the "manhole" he, heard
someone shout "fire."
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure
to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall
was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would
predictably crumple and melt when subjected to intense
heat. Defendants' negligence, therefore, was not only
with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his
amended answer to the second amended complaint that
"the fire was caused through the acts of a stranger who,
without authority, or permission of answering defendant,
passed through the gasoline station and negligently
threw a lighted match in the premises." No evidence on
this point was adduced, but assuming the allegation to
be true — certainly any unfavorable inference from the
admission may be taken against Boquiren — it does not
extenuate his negligence. A decision of the Supreme
Court of Texas, upon facts analogous to those of the
present case, states the rule which we find acceptable
here. "It is the rule that those who distribute a
dangerous article or agent, owe a degree of protection
to the public proportionate to and commensurate with a
danger involved ... we think it is the generally accepted
rule as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate to
bring about harm to another, the fact that the active and
substantially simultaneous operation of the effects of a
third person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm, does not
protect the actor from liability.' (Restatement of the Law
of Torts, vol. 2, p. 1184, #439). Stated in another way,
"The intention of an unforeseen and unexpected cause,
is not sufficient to relieve a wrongdoer from
consequences of negligence, if such negligence directly
and proximately cooperates with the independent cause
in the resulting injury." (MacAfee, et al. vs. Traver's Gas
Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable
for the damages caused to appellants. This issue
depends on whether Boquiren was an independent
contractor, as held by the Court of Appeals, or an agent
of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed
upon by this Court. These facts are: (1) Boquiren made
an admission that he was an agent of Caltex; (2) at the
time of the fire Caltex owned the gasoline station and all
the equipment therein; (3) Caltex exercised control over
Boquiren in the management of the state; (4) the
delivery truck used in delivering gasoline to the station
had the name of CALTEX painted on it; and (5) the
license to store gasoline at the station was in the name
of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended
complaint, he denied that he directed one of his drivers
to remove gasoline from the truck into the tank and
alleged that the "alleged driver, if one there was, was
not in his employ, the driver being an employee of the
Caltex (Phil.) Inc. and/or the owners of the gasoline
station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the
effect that he was not acting as agent of Caltex. But
then again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it
stated no cause of action since under the allegations
thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A
motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well
as the equipment therein, but claims that the business
conducted at the service station in question was owned
and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature
of their relationship at the time of the fire. There must
have been one in existence at that time. Instead, what
was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered
into shortly before the expiration of the one-year period
it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on
November 29, 1948, but made effective as of January 1,
1948 so as to cover the date of the fire, namely, March
18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed
precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property
while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is not
an employee, representative or agent of LICENSOR
(Caltex)."
But even if the license agreement were to govern,
Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay
Caltex the purely nominal sum of P1.00 for the use of
the premises and all the equipment therein. He could
sell only Caltex Products. Maintenance of the station and
its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of
Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter
until terminated by Caltex upon two days prior written
notice. Caltex could at any time cancel and terminate
the agreement in case Boquiren ceased to sell Caltex
products, or did not conduct the business with due
diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show
the extent of the control of Caltex over Boquiren. The
control was such that the latter was virtually an
employee of the former.
Taking into consideration the fact that the
operator owed his position to the company and
the latter could remove him or terminate his
services at will; that the service station belonged
to the company and bore its tradename and the
operator sold only the products of the company;
that the equipment used by the operator
belonged to the company and were just loaned
to the operator and the company took charge of
their repair and maintenance; that an employee
of the company supervised the operator and
conducted periodic inspection of the company's
gasoline and service station; that the price of
the products sold by the operator was fixed by
the company and not by the operator; and that
the receipts signed by the operator indicated
that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent
of the company and not an independent
contractor should not be disturbed.
To determine the nature of a contract courts do
not have or are not bound to rely upon the
name or title given it by the contracting parties,
should thereby a controversy as to what they
really had intended to enter into, but the way
the contracting parties do or perform their
respective obligations stipulated or agreed upon
may be shown and inquired into, and should
such performance conflict with the name or title
given the contract by the parties, the former
must prevail over the latter. (Shell Company of
the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil.
757).
The written contract was apparently drawn for
the purpose of creating the apparent
relationship of employer and independent
contractor, and of avoiding liability for the
negligence of the employees about the station;
but the company was not satisfied to allow such
relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to
direct the method by which the work contracted
for should be performed. By reserving the right
to terminate the contract at will, it retained the
means of compelling submission to its orders.
Having elected to assume control and to direct
the means and methods by which the work has
to be performed, it must be held liable for the
negligence of those performing service under its
direction. We think the evidence was sufficient
to sustain the verdict of the jury. (Gulf Refining
Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the
station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said
gasoline from Caltex. Neither was there a sales contract
to prove the same.
As found by the trial court the Africas sustained a loss of
P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the ground
that Article 2207 of the New Civil Code, which provides
for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place.
However, regardless of the silence of the law on this
point at that time, the amount that should be recovered
be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs
of Ong P7,500.00 was adjudged by the lower court on
the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property
was worth P4,000.00. We agree that the court erred,
since it is of common knowledge that the assessment for
taxation purposes is not an accurate gauge of fair
market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are
therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and
respondents-appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sum
of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.
[G.R. No. 115024. February 7, 1996]
MA. LOURDES VALENZUELA, petitioner, vs. COURT
OF APPEALS, RICHARD LI and ALEXANDER
COMMERCIAL, INC., respondents.
[G.R. No. 117944. February 7, 1996]
RICHARD LI, petitioner, vs. COURT OF APPEALS
and MA. LOURDES VALENZUELA, respondents.
These two petitions for review on certiorari under
Rule 45 of the Revised Rules of Court stem from an
action to recover damages by petitioner Lourdes
Valenzuela in the Regional Trial Court of Quezon City for
injuries sustained by her in a vehicular accident in the
early morning of June 24, 1990. The facts found by the
trial court are succinctly summarized by the Court of
Appeals below:
This is an action to recover damages based on quasi-
delict, for serious physical injuries sustained in a
vehicular accident.
Plaintiffs version of the accident is as follows: At
around 2:00 in the morning of June 24, 1990, plaintiff
Ma. Lourdes Valenzuela was driving a blue Mitsubishi
lancer with Plate No. FFU 542 from her restaurant at
Marcos highway to her home at Palanza Street, Araneta
Avenue. She was travelling along Aurora Blvd. with a
companion, Cecilia Ramon, heading towards the
direction of Manila. Before reaching A. Lake Street, she
noticed something wrong with her tires; she stopped at
a lighted place where there were people, to verify
whether she had a flat tire and to solicit help if needed.
Having been told by the people present that her rear
right tire was flat and that she cannot reach her home in
that cars condition, she parked along the sidewalk,
about 1 feet away, put on her emergency lights, alighted
from the car, and went to the rear to open the trunk.
She was standing at the left side of the rear of her car
pointing to the tools to a man who will help her fix the
tire when she was suddenly bumped by a 1987
Mitsubishi Lancer driven by defendant Richard Li and
registered in the name of defendant Alexander
Commercial, Inc. Because of the impact plaintiff was
thrown against the windshield of the car of the
defendant, which was destroyed, and then fell to the
ground. She was pulled out from under defendants car.
Plaintiffs left leg was severed up to the middle of her
thigh, with only some skin and sucle connected to the
rest of the body. She was brought to
the UERM Medical Memorial Center where she was
found to have a traumatic amputation, leg, left up to
distal thigh (above knee). She was confined in the
hospital for twenty (20) days and was eventually fitted
with an artificial leg. The expenses for the hospital
confinement (P 120,000.00) and the cost of the artificial
leg (P27,000.00) were paid by defendants from the car
insurance.
In her complaint, plaintiff prayed for moral damages in
the amount of P1 million, exemplary damages in the
amount of P100,000.00 and other medical and related
expenses amounting to a total of P180,000.00, including
loss of expected earnings.
Defendant Richard Li denied that he was negligent. He
was on his way home, travelling at 55 kph; considering
that it was raining, visibility was affected and the road
was wet. Traffic was light. He testified that he was
driving along the inner portion of the right lane of
Aurora Blvd. towards the direction of Araneta Avenue,
when he was suddenly confronted, in the vicinity of A.
Lake Street, San Juan, with a car coming from the
opposite direction, travelling at 80 kph, with full bright
lights. Temporarily blinded, he instinctively swerved to
the right to avoid colliding with the oncoming vehicle,
and bumped plaintiffs car, which he did not see because
it was midnight blue in color, with no parking lights or
early warning device, and the area was poorly lighted.
He alleged in his defense that the left rear portion of
plaintiffs car was protruding as it was then at a standstill
diagonally on the outer portion of the right lane
towards Araneta Avenue (par. 18, Answer). He
confirmed the testimony of plaintiffs witness that after
being bumped the car of the plaintiff swerved to the
right and hit another car parked on the sidewalk.
Defendants counterclaimed for damages, alleging that
plaintiff was reckless or negligent, as she was not a
licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared
the vehicular accident report and the sketch of the three
cars involved in the accident, testified that the plaintiffs
car was near the sidewalk; this witness did not
remember whether the hazard lights of plaintiffs car
were on, and did not notice if there was an early
warning device; there was a street light at the corner of
Aurora Blvd. and F. Roman, about 100 meters away. It
was not mostly dark, i.e. things can be seen (p. 16, tsn,
Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified
that after plaintiff alighted from her car and opened the
trunk compartment, defendants car came approaching
very fast ten meters from the scene; the car was
zigzagging. The rear left side of plaintiffs car was
bumped by the front right portion of defendants car; as
a consequence, the plaintiffs car swerved to the right
and hit the parked car on the sidewalk. Plaintiff was
thrown to the windshield of defendants car, which was
destroyed, and landed under the car. He stated that
defendant was under the influence of liquor as he could
smell it very well (pp. 43, 79, tsn., June 17, 1991).
After trial, the lower court sustained the plaintiffs
submissions and found defendant Richard Li guilty of
gross negligence and liable for damages under Article
2176 of the Civil Code. The trial court likewise held
Alexander Commercial, Inc., Lis employer, jointly and
severally liable for damages pursuant to Article 2180. It
ordered the defendants to jointly and severally pay the
following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous
expenses of the plaintiff as a result of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of
the stoppage of plaintiffs Bistro La Conga restaurant three (3) weeks
after the accident on June 24, 1990; (b) P20,000.00, a month, as
unrealized profits of the plaintiff in her Bistro La Conga restaurant,
from August, 1990 until the date of this judgment; and (c) P30,000.00,
a month, for unrealized profits in plaintiffs two (2) beauty salons from
July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages,
5. P60,000.00, as reasonable attorneys fees; and
6. Costs.
As a result of the trial courts decision, defendants
filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C.
No. 804367 (People vs. Richard Li), tending to show that
the point of impact, as depicted by the pieces of
glass/debris from the parties cars, appeared to be at the
center of the right lane of Aurora Blvd. The trial court
denied the motion. Defendants forthwith filed an appeal
with the respondent Court of Appeals. In a Decision
rendered March 30, 1994, the Court of Appeals found
that there was ample basis from the evidence of record
for the trial courts finding that the plaintiffs car was
properly parked at the right, beside the sidewalk when it
was bumped by defendants car.[1] Dismissing the
defendants argument that the plaintiffs car was
improperly parked, almost at the center of the road, the
respondent court noted that evidence which was
supposed to prove that the car was at or near center of
the right lane was never presented during the trial of
the case.[2] The respondent court furthermore observed
that:
Defendant Lis testimony that he was driving at a safe
speed of 55 km./hour is self serving; it was not
corroborated. It was in fact contradicted by eyewitness
Rodriguez who stated that he was outside his beerhouse
located at Aurora Boulevard after A. Lake Street, at or
about 2:00 a.m. of June 24, 1990 when his attention
was caught by a beautiful lady (referring to the plaintiff)
alighting from her car and opening the trunk
compartment; he noticed the car of Richard Li
approaching very fast ten (10) meters away from the
scene; defendants car was zigzagging, although there
were no holes and hazards on the street, and bumped
the leg of the plaintiff who was thrown against the
windshield of defendants car, causing its destruction. He
came to the rescue of the plaintiff, who was pulled out
from under defendants car and was able to say hurting
words to Richard Li because he noticed that the latter
was under the influence of liquor, because he could
smell it very well (p. 36, et. seq., tsn, June 17, 1991).
He knew that plaintiff owned a beerhouse in Sta. Mesa
in the 1970s, but did not know either plaintiff or
defendant Li before the accident.
In agreeing with the trial court that the defendant
Li was liable for the injuries sustained by the plaintiff,
the Court of Appeals, in its decision, however, absolved
the Lis employer, Alexander Commercial, Inc. from any
liability towards petitioner Lourdes Valenzuela and
reduced the amount of moral damages to P500,000.00.
Finding justification for exemplary damages, the
respondent court allowed an award of P50,000.00 for
the same, in addition to costs, attorneys fees and the
other damages. The Court of Appeals, likewise,
dismissed the defendants counterclaims.[3]
Consequently, both parties assail the respondent
courts decision by filing two separate petitions before
this Court. Richard Li, in G.R. No. 117944, contends that
he should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes
Valenzuelas own negligence. Alternatively, he argues
that in the event that this Court finds him negligent,
such negligence ought to be mitigated by the
contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma.
Lourdes Valenzuela assails the respondent courts
decision insofar as it absolves Alexander Commercial,
Inc. from liability as the owner of the car driven by
Richard Li and insofar as it reduces the amount of the
actual and moral damages awarded by the trial court.[4]
As the issues are intimately related, both petitions
are hereby consolidated. It is plainly evident that the
petition for review in G.R. No. 117944 raises no
substantial questions of law. What it, in effect, attempts
to have this Court review are factual findings of the trial
court, as sustained by the Court of Appeals finding
Richard Li grossly negligent in driving the Mitsubishi
Lancer provided by his company in the early morning
hours of June 24, 1990. This we will not do. As a
general rule, findings of fact of the Court of Appeals are
binding and conclusive upon us, and this Court will not
normally disturb such factual findings unless the findings
of fact of the said court are palpably unsupported by the
evidence on record or unless the judgment itself is
based on a misapprehension of facts.[5]
In the first place, Valenzuelas version of the
incident was fully corroborated by an uninterested
witness, Rogelio Rodriguez, the owner-operator of an
establishment located just across the scene of the
accident. On trial, he testified that he observed a car
being driven at a very fast speed, racing towards the
general direction of Araneta Avenue.[6] Rodriguez further
added that he was standing in front of his
establishment, just ten to twenty feet away from the
scene of the accident, when he saw the car hit
Valenzuela, hurtling her against the windshield of the
defendants Mitsubishi Lancer, from where she eventually
fell under the defendants car. Spontaneously reacting to
the incident, he crossed the street, noting that a man
reeking with the smell of liquor had alighted from the
offending vehicle in order to survey the
incident.[7] Equally important, Rodriguez declared that he
observed Valenzuelas car parked parallel and very near
the sidewalk,[8]contrary to Lis allegation that Valenzuelas
car was close to the center of the right lane. We agree
that as between Lis self-serving asseverations and the
observations of a witness who did not even know the
accident victim personally and who immediately gave a
statement of the incident similar to his testimony to the
investigator immediately after the incident, the latters
testimony deserves greater weight. As the court
emphasized:
The issue is one of credibility and from Our own
examination of the transcript, We are not prepared to
set aside the trial courts reliance on the testimony of
Rodriguez negating defendants assertion that he was
driving at a safe speed. While Rodriguez drives only a
motorcycle, his perception of speed is not necessarily
impaired. He was subjected to cross-examination and no
attempt was made to question his competence or the
accuracy of his statement that defendant was driving
very fast. This was the same statement he gave to the
police investigator after the incident, as told to a
newspaper report (Exh. P). We see no compelling basis
for disregarding his testimony.
The alleged inconsistencies in Rodriguez testimony are
not borne out by an examination of the testimony.
Rodriguez testified that the scene of the accident was
across the street where his beerhouse is located about
ten to twenty feet away (pp. 35-36, tsn, June 17, 1991).
He did not state that the accident transpired
immediately in front of his establishment. The ownership
of the Lambingan sa Kambingan is not material; the
business is registered in the name of his mother, but he
explained that he owns the establishment (p. 5, tsn.,
June 20, 1991).
Moreover, the testimony that the streetlights on his side
of Aurora Boulevard were on the night the accident
transpired (p. 8) is not necessarily contradictory to the
testimony of Pfc. Ramos that there was a streetlight at
the corner of Aurora Boulevard and F. Roman
Street(p. 45, tsn., Oct. 20, 1991).
With respect to the weather condition, Rodriguez
testified that there was only a drizzle, not a heavy rain
and the rain has stopped and he was outside his
establishment at the time the accident transpired (pp.
64-65, tsn., June 17, 1991). This was consistent with
plaintiffs testimony that it was no longer raining when
she left Bistro La Conga (pp. 10-11, tsn., April 29, 1991).
It was defendant Li who stated that it was raining all the
way in an attempt to explain why he was travelling at
only 50-55 kph. (p. 11, tsn., Oct. 14, 1991). As to the
testimony of Pfc. Ramos that it was raining, he arrived
at the scene only in response to a telephone call after
the accident had transpired (pp. 9-10, tsn, Oct. 28,
1991). We find no substantial inconsistencies in
Rodriguezs testimony that would impair the essential
integrity of his testimony or reflect on his honesty. We
are compelled to affirm the trial courts acceptance of the
testimony of said eyewitness.
Against the unassailable testimony of witness
Rodriguez we note that Lis testimony was peppered with
so many inconsistencies leading us to conclude that his
version of the accident was merely adroitly crafted to
provide a version, obviously self-serving, which would
exculpate him from any and all liability in the incident.
Against Valenzuelas corroborated claims, his allegations
were neither backed up by other witnesses nor by the
circumstances proven in the course of trial. He claimed
that he was driving merely at a speed of 55 kph. when
out of nowhere he saw a dark maroon lancer right in
front of him, which was (the) plaintiffs car. He alleged
that upon seeing this sudden apparition he put on his
brakes to no avail as the road was slippery.[9]
One will have to suspend disbelief in order to give
credence to Lis disingenuous and patently self-serving
asseverations. The average motorist alert to road
conditions will have no difficulty applying the brakes to a
car traveling at the speed claimed by Li. Given a light
rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare
like Aurora Boulevard, Li would have had ample time to
react to the changing conditions of the road if he were
alert - as every driver should be - to those conditions.
Driving exacts a more than usual toll on the senses.
Physiological fight or flight[10] mechanisms are at work,
provided such mechanisms were not dulled by drugs,
alcohol, exhaustion, drowsiness, etc.[11] Lis failure to
react in a manner which would have avoided the
accident could therefore have been only due to either or
both of the two factors: 1) that he was driving at a very
fast speed as testified by Rodriquez; and 2) that he was
under the influence of alcohol.[12] Either factor working
independently would have diminished his responsiveness
to road conditions, since normally he would have slowed
down prior to reaching Valenzuelas car, rather than be
in a situation forcing him to suddenly apply his brakes.
As the trial court noted (quoted with approval by
respondent court):
Secondly, as narrated by defendant Richard Li to the
San Juan Police immediately after the incident, he said
that while driving along Aurora Blvd., out of nowhere he
saw a dark maroon lancer right in front of him, which
was plaintiffs car, indicating, again, thereby that, indeed,
he was driving very fast, oblivious of his surroundings
and the road ahead of him, because if he was not, then
he could not have missed noticing at a still far distance
the parked car of the plaintiff at the right side near the
sidewalk which had its emergency lights on, thereby
avoiding forcefully bumping at the plaintiff who was then
standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan
Police, he put on his brakes when he saw the plaintiffs
car in front of him, but that it failed as the road was wet
and slippery, this goes to show again, that, contrary to
his claim, he was, indeed, running very fast. For, were it
otherwise, he could have easily completely stopped his
car, thereby avoiding the bumping of the plaintiff,
notwithstanding that the road was wet and slippery.
Verily, since, if, indeed, he was running slow, as he
claimed, at only about 55 kilometers per hour, then,
inspite of the wet and slippery road, he could have
avoided hitting the plaintiff by the mere expedient or
applying his brakes at the proper time and distance.
It could not be true, therefore, as he now claims during
his testimony, which is contrary to what he told the
police immediately after the accident and is, therefore,
more believable, that he did not actually step on his
brakes, but simply swerved a little to the right when he
saw the on-coming car with glaring headlights, from the
opposite direction, in order to avoid it.
For, had this been what he did, he would not have
bumped the car of the plaintiff which was properly
parked at the right beside the sidewalk. And, it was not
even necessary for him to swerve a little to the right in
order to safely avoid a collision with the on-coming car,
considering that Aurora Blvd. is a double lane avenue
separated at the center by a dotted white paint, and
there is plenty of space for both cars, since her car was
running at the right lane going towards Manila and the
on-coming car was also on its right lane going to
Cubao.[13]
Having come to the conclusion that Li was
negligent in driving his company-issued Mitsubishi
Lancer, the next question for us to determine is whether
or not Valenzuela was likewise guilty of contributory
negligence in parking her car alongside Aurora
Boulevard, which entire area Li points out, is a no
parking zone.
We agree with the respondent court that
Valenzuela was not guilty of contributory negligence.
Contributory negligence is conduct on the part of
the injured party, contributing as a legal cause to the
harm he has suffered, which falls below the standard to
which he is required to conform for his own
protection. [14] Based on the foregoing definition, the
standard or act to which, according to petitioner Li,
Valenzuela ought to have conformed for her own
protection was not to park at all at any point of Aurora
Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to
recognize that an actor who is confronted with an
emergency is not to be held up to the standard of
conduct normally applied to an individual who is in no
such situation. The law takes stock of impulses of
humanity when placed in threatening or dangerous
situations and does not require the same standard of
thoughtful and reflective care from persons confronted
by unusual and oftentimes threatening
conditions.[15] Under the emergency rule adopted by this
Court in Gan vs Court of Appeals,[16] an individual who
suddenly finds himself in a situation of danger and is
required to act without much time to consider the best
means that may be adopted to avoid the impending
danger, is not guilty of negligence if he fails to
undertake what subsequently and upon reflection may
appear to be a better solution, unless the emergency
was brought by his own negligence.[17]
Applying this principle to a case in which the victims
in a vehicular accident swerved to the wrong lane to
avoid hitting two children suddenly darting into the
street, we held, in Mc Kee vs. Intermediate Appellate
Court,[18] that the driver therein, Jose Koh, adopted the
best means possible in the given situation to avoid
hitting the children. Using the emergency rule the court
concluded that Koh, in spite of the fact that he was in
the wrong lane when the collision with an oncoming
truck occurred, was not guilty of negligence.[19]
While the emergency rule applies to those cases in
which reflective thought, or the opportunity to
adequately weigh a threatening situation is absent, the
conduct which is required of an individual in such cases
is dictated not exclusively by the suddenness of the
event which absolutely negates thoughtful care, but by
the over-all nature of the circumstances. A woman
driving a vehicle suddenly crippled by a flat tire on a
rainy night will not be faulted for stopping at a point
which is both convenient for her to do so and which is
not a hazard to other motorists. She is not expected to
run the entire boulevard in search for a parking zone or
turn on a dark Street or alley where she would likely find
no one to help her. It would be hazardous for her not to
stop and assess the emergency (simply because the
entire length of Aurora Boulevard is a no-parking zone)
because the hobbling vehicle would be both a threat to
her safety and to other motorists. In the instant case,
Valenzuela, upon reaching that portion of Aurora
Boulevard close to A. Lake St., noticed that she had a
flat tire. To avoid putting herself and other motorists in
danger, she did what was best under the situation. As
narrated by respondent court:
She stopped at a lighted place where there were people,
to verify whether she had a flat tire and to solicit help if
needed. Having been told by the people present that her
rear right tire was flat and that she cannot reach her
home she parked along the sidewalk, about 1 feet away,
behind a Toyota Corona Car.[20] In fact, respondent
court noted, Pfc. Felix Ramos, the investigator on the
scene of the accident confirmed that Valenzuelas car
was parked very close to the sidewalk.[21] The sketch
which he prepared after the incident showed
Valenzuelas car partly straddling the sidewalk, clear and
at a convenient distance from motorists passing the
right lane of Aurora Boulevard. This fact was itself
corroborated by the testimony of witness Rodriguez.[22]
Under the circumstances described, Valenzuela did
exercise the standard reasonably dictated by the
emergency and could not be considered to have
contributed to the unfortunate circumstances which
eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her
car on a sidewalk in Aurora Boulevard was not of her
own making, and it was evident that she had taken all
reasonable precautions.
Obviously in the case at bench, the only negligence
ascribable was the negligence of Li on the night of the
accident. Negligence, as it is commonly understood is
conduct which creates an undue risk of harm to
others.[23] It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers
injury.[24] We stressed, in Corliss vs. Manila Railroad
Company,[25] that negligence is the want of care
required by the circumstances.
The circumstances established by the evidence
adduced in the court below plainly demonstrate that Li
was grossly negligent in driving his Mitsubishi Lancer. It
bears emphasis that he was driving at a fast speed at
about 2:00 A.M. after a heavy downpour had settled into
a drizzle rendering the street slippery. There is ample
testimonial evidence on record to show that he was
under the influence of liquor. Under these conditions, his
chances of effectively dealing with changing conditions
on the road were significantly lessened. As Prosser and
Keaton emphasize:
[U]nder present day traffic conditions, any driver of an
automobile must be prepared for the sudden
appearance of obstacles and persons on the highway,
and of other vehicles at intersections, such as one who
sees a child on the curb may be required to anticipate its
sudden dash into the street, and his failure to act
properly when they appear may be found to amount to
negligence. [26]
Lis obvious unpreparedness to cope with the
situation confronting him on the night of the accident
was clearly of his own making.
We now come to the question of the liability of
Alexander Commercial, Inc. Lis employer. In denying
liability on the part of Alexander Commercial, the
respondent court held that:
There is no evidence, not even defendant Lis testimony,
that the visit was in connection with official matters. His
functions as assistant manager sometimes required him
to perform work outside the office as he has to visit
buyers and company clients, but he admitted that on the
night of the accident he came from BF Homes Paraaque
he did not have business from the company (pp. 25-26,
tsn, Sept. 23, 1991). The use ofthe company car was
partly required by the nature of his work, but the
privilege of using it for non-official business is a benefit,
apparently referring to the fringe benefits attaching to
his position.
Under the civil law, an employer is liable for the
negligence of his employees in the discharge of their
respective duties, the basis of which liability is
not respondeat superior, but the relationship of pater
familias, which theory bases the liability of the master
ultimately on his own negligence and not on that of his
servant (Cuison v. Norton and Harrison Co., 55 Phil. 18).
Before an employer may be held liable for the
negligence of his employee, the act or omission which
caused damage must have occurred while an employee
was in the actual performance of his assigned tasks or
duties (Francis High School vs. Court of Appeals, 194
SCRA 341). In defining an employers liability for the acts
done within the scope of the employees assigned tasks,
the Supreme Court has held that this includes any act
done by an employee, in furtherance of the interests of
the employer or for the account of the employer at the
time of the infliction of the injury or damage (Filamer
Christian Institute vs. Intermediate Appellate Court, 212
SCRA 637). An employer is expected to impose upon its
employees the necessary discipline called for in the
performance of any act indispensable to the business
and beneficial to their employer (at p. 645).
In light of the foregoing, We are unable to sustain the
trial courts finding that since defendant Li was
authorized by the company to use the company car
either officially or socially or even bring it home, he can
be considered as using the company car in the service of
his employer or on the occasion of his functions. Driving
the company car was not among his functions as
assistant manager; using it for non-official purposes
would appear to be a fringe benefit, one of the perks
attached to his position. But to impose liability upon the
employer under Article 2180 of the Civil Code, earlier
quoted, there must be a showing that the damage was
caused by their employees in the service of the
employer or on the occasion of their functions. There is
no evidence that Richard Li was at the time of the
accident performing any act in furtherance of the
companys business or its interests, or at least for its
benefit. The imposition of solidary liability against
defendant Alexander Commercial Corporation must
therefore fail.[27]
We agree with the respondent court that the
relationship in question is not based on the principle
of respondeat superior, which holds the master liable for
acts of the servant, but that of pater familias, in which
the liability ultimately falls upon the employer, for his
failure to exercise the diligence of a good father of the
family in the selection and supervision of his employees.
It is up to this point, however, that our agreement with
the respondent court ends. Utilizing the bonus pater
familias standard expressed in Article 2180 of the Civil
Code,[28] we are of the opinion that Lis employer,
Alexander Commercial, Inc. is jointly and solidarily liable
for the damage caused by the accident of June 24,
1990.
First, the case of St. Francis High School vs. Court
of Appeals[29] upon which respondent court has placed
undue reliance, dealt with the subject of a school and its
teachers supervision of students during an
extracurricular activity. These cases now fall under the
provision on special parental authority found in Art. 218
of the Family Code which generally encompasses all
authorized school activities, whether inside or outside
school premises.
Second, the employers primary liability under the
concept of pater familias embodied by Art. 2180 (in
relation to Art. 2176) of the Civil Code is quasi-delictual
or tortious in character. His liability is relieved on a
showing that he exercised the diligence of a good father
of the family in the selection and supervision of its
employees. Once evidence is introduced showing that
the employer exercised the required amount of care in
selecting its employees, half of the employers burden is
overcome. The question of
diligent supervision, however, depends on the
circumstances of employment.
Ordinarily, evidence demonstrating that the
employer has exercised diligent supervision of its
employee during the performance of the latters assigned
tasks would be enough to relieve him of the liability
imposed by Article 2180 in relation to Article 2176 of the
Civil Code. The employer is not expected to exercise
supervision over either the employees private activities
or during the performance of tasks either unsanctioned
by the former or unrelated to the employees tasks. The
case at bench presents a situation of a different
character, involving a practice utilized by large
companies with either their employees of managerial
rank or their representatives.
It is customary for large companies to provide
certain classes of their employees with courtesy vehicles.
These company cars are either wholly owned and
maintained by the company itself or are subject to
various plans through which employees eventually
acquire their vehicles after a given period of service, or
after paying a token amount. Many companies provide
liberal car plans to enable their managerial or other
employees of rank to purchase cars, which, given the
cost of vehicles these days, they would not otherwise be
able to purchase on their own.
Under the first example, the company actually owns
and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the
car is really owned and maintained by the employee
himself. In furnishing vehicles to such employees, are
companies totally absolved of responsibility when an
accident involving a company-issued car occurs during
private use after normal office hours?
Most pharmaceutical companies, for instance, which
provide cars under the first plan, require rigorous tests
of road worthiness from their agents prior to turning
over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a
family, they entrust the company vehicle only after they
are satisfied that the employee to whom the car has
been given full use of the said company car for company
or private purposes will not be a threat or menace to
himself, the company or to others. When a company
gives full use and enjoyment of a company car to its
employee, it in effect guarantees that it is, like every
good father, satisfied that its employee will use the
privilege reasonably and responsively.
In the ordinary course of business, not all company
employees are given the privilege of using a company-
issued car. For large companies other than those cited in
the example of the preceding paragraph, the privilege
serves important business purposes either related to the
image of success an entity intends to present to its
clients and to the public in general, or for practical and
utilitarian reasons - to enable its managerial and other
employees of rank or its sales agents to reach clients
conveniently. In most cases, providing a company car
serves both purposes. Since important business
transactions and decisions may occur at all hours in all
sorts of situations and under all kinds of guises, the
provision for the unlimited use of a company car
therefore principally serves the business and goodwill of
a company and only incidentally the private purposes of
the individual who actually uses the car, the managerial
employee or company sales agent. As such, in providing
for a company car for business use and/or for the
purpose of furthering the companys image, a company
owes a responsibility to the public to see to it that the
managerial or other employees to whom it entrusts
virtually unlimited use of a company issued car are able
to use the company issue capably and responsibly.
In the instant case, Li was an Assistant Manager of
Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant
Manager did not require him to scrupulously keep
normal office hours as he was required quite often to
perform work outside the office, visiting prospective
buyers and contacting and meeting with company
clients.[30] These meetings, clearly, were not strictly
confined to routine hours because, as a managerial
employee tasked with the job of representing his
company with its clients, meetings with clients were
both social as well as work-related functions. The service
car assigned to Li by Alexander Commercial, Inc.
therefore enabled both Li - as well as the corporation -
to put up the front of a highly successful entity,
increasing the latters goodwill before its clientele. It also
facilitated meeting between Li and its clients by
providing the former with a convenient mode of travel.
Moreover, Lis claim that he happened to be on the
road on the night of the accident because he was
coming from a social visit with an officemate in
Paraaque was a bare allegation which was never
corroborated in the court below. It was obviously self-
serving. Assuming he really came from his officemates
place, the same could give rise to speculation that he
and his officemate had just been from a work-related
function, or they were together to discuss sales and
other work related strategies.
In fine, Alexander Commercial, Inc. has not
demonstrated, to our satisfaction, that it exercised the
care and diligence of a good father of the family in
entrusting its company car to Li. No allegations were
made as to whether or not the company took the steps
necessary to determine or ascertain the driving
proficiency and history of Li, to whom it gave full and
unlimited use of a company car.[31] Not having been able
to overcome the burden of demonstrating that it should
be absolved of liability for entrusting its company car to
Li, said company, based on the principle of bonus pater
familias, ought to be jointly and severally liable with the
former for the injuries sustained by Ma. Lourdes
Valenzuela during the accident.
Finally, we find no reason to overturn the amount
of damages awarded by the respondent court, except as
to the amount of moral damages. In the case of moral
damages, while the said damages are not intended to
enrich the plaintiff at the expense of a defendant, the
award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the
opinion that the reduction in moral damages from an
amount of P 1,000,000.00 to P500,000.00 by the Court
of Appeals was not justified considering the nature of
the resulting damage and the predictable sequelae of
the injury.
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of
the full ambulatory functions of her left extremity, even
with the use of state of the art prosthetic technology.
Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the
prosthetic devise will have to be replaced and re-
adjusted to changes in the size of her lower limb
effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting
from a precipitate decrease in calcium levels observed in
the bones of all post-menopausal women. In other
words, the damage done to her would not only be
permanent and lasting, it would also be permanently
changing and adjusting to the physiologic changes which
her body would normally undergo through the years.
The replacements, changes, and adjustments will
require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has
been documented, are painful.
The foregoing discussion does not even scratch the
surface of the nature of the resulting damage because it
would be highly speculative to estimate the amount of
psychological pain, damage and injury which goes with
the sudden severing of a vital portion of the human
body. A prosthetic device, however technologically
advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The
resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.
As the amount of moral damages are subject to this
Courts discretion, we are of the opinion that the amount
of P1,000,000.00 granted by the trial court is in greater
accord with the extent and nature of the injury -.
physical and psychological - suffered by Valenzuela as a
result of Lis grossly negligent driving of his Mitsubishi
Lancer in the early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the
decision of the court of Appeals is modified with the
effect of REINSTATING the judgment of the Regional
Trial Court. SO ORDERED.

6. STATE
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant, vs. GOVERNMENT
OF THE PHILIPPINE ISLANDS, defendant-appellant.
This is an appeal by both parties from a judgment of the
Court of First Instance of the city of Manila in favor of
the plaintiff for the sum of P14,741, together with the
costs of the cause.
Counsel for the plaintiff insist that the trial court erred
(1) "in limiting the general damages which the plaintiff
suffered to P5,000, instead of P25,000 as claimed in the
complaint," and (2) "in limiting the time when plaintiff
was entirely disabled to two months and twenty-one
days and fixing the damage accordingly in the sum of
P2,666, instead of P6,000 as claimed by plaintiff in his
complaint."
The Attorney-General on behalf of the defendant urges
that the trial court erred: (a) in finding that the collision
between the plaintiff's motorcycle and the ambulance of
the General Hospital was due to the negligence of the
chauffeur; (b) in holding that the Government of the
Philippine Islands is liable for the damages sustained by
the plaintiff as a result of the collision, even if it be true
that the collision was due to the negligence of the
chauffeur; and (c) in rendering judgment against the
defendant for the sum of P14,741.
The trial court's findings of fact, which are fully
supported by the record, are as follows:
It is a fact not disputed by counsel for the
defendant that when the plaintiff, riding on a
motorcycle, was going toward the western part
of Calle Padre Faura, passing along the west
side thereof at a speed of ten to twelve miles an
hour, upon crossing Taft Avenue and when he
was ten feet from the southwestern intersection
of said streets, the General Hospital ambulance,
upon reaching said avenue, instead of turning
toward the south, after passing the center
thereof, so that it would be on the left side of
said avenue, as is prescribed by the ordinance
and the Motor Vehicle Act, turned suddenly and
unexpectedly and long before reaching the
center of the street, into the right side of Taft
Avenue, without having sounded any whistle or
horn, by which movement it struck the plaintiff,
who was already six feet from the southwestern
point or from the post place there.
By reason of the resulting collision, the plaintiff
was so severely injured that, according to Dr.
Saleeby, who examined him on the very same
day that he was taken to the General Hospital,
he was suffering from a depression in the left
parietal region, a would in the same place and in
the back part of his head, while blood issued
from his nose and he was entirely unconscious.
The marks revealed that he had one or more
fractures of the skull and that the grey matter
and brain was had suffered material injury. At
ten o'clock of the night in question, which was
the time set for performing the operation, his
pulse was so weak and so irregular that, in his
opinion, there was little hope that he would live.
His right leg was broken in such a way that the
fracture extended to the outer skin in such
manner that it might be regarded as double and
the would be exposed to infection, for which
reason it was of the most serious nature.
At another examination six days before the day
of the trial, Dr. Saleeby noticed that the
plaintiff's leg showed a contraction of an inch
and a half and a curvature that made his leg
very weak and painful at the point of the
fracture. Examination of his head revealed a
notable readjustment of the functions of the
brain and nerves. The patient apparently was
slightly deaf, had a light weakness in his eyes
and in his mental condition. This latter weakness
was always noticed when the plaintiff had to do
any difficult mental labor, especially when he
attempted to use his money for mathematical
calculations.
According to the various merchants who testified
as witnesses, the plaintiff's mental and physical
condition prior to the accident was excellent,
and that after having received the injuries that
have been discussed, his physical condition had
undergone a noticeable depreciation, for he had
lost the agility, energy, and ability that he had
constantly displayed before the accident as one
of the best constructors of wooden buildings
and he could not now earn even a half of the
income that he had secured for his work
because he had lost 50 per cent of his
efficiency. As a contractor, he could no longer,
as he had before done, climb up ladders and
scaffoldings to reach the highest parts of the
building.
As a consequence of the loss the plaintiff
suffered in the efficiency of his work as a
contractor, he had to dissolved the partnership
he had formed with the engineer. Wilson,
because he was incapacitated from making
 mathematical calculations on account of the
condition of his leg and of his mental faculties,
and he had to give up a contract he had for the
construction of the Uy Chaco building."
We may say at the outset that we are in full accord with
the trial court to the effect that the collision between the
plaintiff's motorcycle and the ambulance of the General
Hospital was due solely to the negligence of the
chauffeur.
The two items which constitute a part of the P14,741
and which are drawn in question by the plaintiff are (a)
P5,000, the award awarded for permanent injuries, and
(b) the P2,666, the amount allowed for the loss of
wages during the time the plaintiff was incapacitated
from pursuing his occupation. We find nothing in the
record which would justify us in increasing the amount
of the first. As to the second, the record shows, and the
trial court so found, that the plaintiff's services as a
contractor were worth P1,000 per month. The court,
however, limited the time to two months and twenty-
one days, which the plaintiff was actually confined in the
hospital. In this we think there was error, because it was
clearly established that the plaintiff was wholly
incapacitated for a period of six months. The mere fact
that he remained in the hospital only two months and
twenty-one days while the remainder of the six months
was spent in his home, would not prevent recovery for
the whole time. We, therefore, find that the amount of
damages sustained by the plaintiff, without any fault on
his part, is P18,075.
As the negligence which caused the collision is a tort
committed by an agent or employee of the Government,
the inquiry at once arises whether the Government is
legally-liable for the damages resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit against
the Government of the Philippine Islands and
authorizing the Attorney-General of said Islands
to appear in said suit.
Whereas a claim has been filed against the
Government of the Philippine Islands by Mr. E.
Merritt, of Manila, for damages resulting from a
collision between his motorcycle and the
ambulance of the General Hospital on March
twenty-fifth, nineteen hundred and thirteen;
Whereas it is not known who is responsible for
the accident nor is it possible to determine the
amount of damages, if any, to which the
claimant is entitled; and
Whereas the Director of Public Works and the
Attorney-General recommended that an Act be
passed by the Legislature authorizing Mr. E.
Merritt to bring suit in the courts against the
Government, in order that said questions may
be decided: Now, therefore,
By authority of the United States, be it enacted
by the Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized to
bring suit in the Court of First Instance of the
city of Manila against the Government of the
Philippine Islands in order to fix the
responsibility for the collision between his
motorcycle and the ambulance of the General
Hospital, and to determine the amount of the
damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the
Attorney-General of the Philippine Islands is
hereby authorized and directed to appear at the
trial on the behalf of the Government of said
Islands, to defendant said Government at the
same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act,
simply waive its immunity from suit or did it also
concede its liability to the plaintiff? If only the former,
then it cannot be held that the Act created any new
cause of action in favor of the plaintiff or extended the
defendant's liability to any case not previously
recognized.
All admit that the Insular Government (the defendant)
cannot be sued by an individual without its consent. It is
also admitted that the instant case is one against the
Government. As the consent of the Government to be
sued by the plaintiff was entirely voluntary on its part, it
is our duty to look carefully into the terms of the
consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against
the Government "in order to fix the responsibility for the
collision between his motorcycle and the ambulance of
the General Hospital and to determine the amount of the
damages, if any, to which Mr. E. Merritt is entitled on
account of said collision, . . . ." These were the two
questions submitted to the court for determination. The
Act was passed "in order that said questions may be
decided." We have "decided" that the accident was due
solely to the negligence of the chauffeur, who was at
the time an employee of the defendant, and we have
also fixed the amount of damages sustained by the
plaintiff as a result of the collision. Does the Act
authorize us to hold that the Government is legally liable
for that amount? If not, we must look elsewhere for
such authority, if it exists.
The Government of the Philippine Islands having been
"modeled after the Federal and State Governments in
the United States," we may look to the decisions of the
high courts of that country for aid in determining the
purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable
for the torts committed by its officers or agents whom it
employs, except when expressly made so by legislative
enactment, is well settled. "The Government," says
Justice Story, "does not undertake to guarantee to any
person the fidelity of the officers or agents whom it
employs, since that would involve it in all its operations
in endless embarrassments, difficulties and losses, which
would be subversive of the public interest." (Claussen
vs. City of Luverne, 103 Minn., 491, citing U. S. vs.
Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs.
States, 20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the
plaintiff sought to recover damages from the state for
personal injuries received on account of the negligence
of the state officers at the state fair, a state institution
created by the legislature for the purpose of improving
agricultural and kindred industries; to disseminate
information calculated to educate and benefit the
industrial classes; and to advance by such means the
material interests of the state, being objects similar to
those sought by the public school system. In passing
upon the question of the state's liability for the negligent
acts of its officers or agents, the court said:
No claim arises against any government is favor
of an individual, by reason of the misfeasance,
laches, or unauthorized exercise of powers by its
officers or agents. (Citing Gibbons vs. U. S., 8
Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53;
41 Am. Rep., 440; Chapman vs. State, 104 Cal.,
690; 43 Am. St. Rep., 158; Green vs. State, 73
Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am.
St. Rep., 203; Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting
individuals to sue the state where the cause of action
arises out of either fort or contract, the rule is stated in
36 Cyc., 915, thus:
By consenting to be sued a state simply waives
its immunity from suit. It does not thereby
concede its liability to plaintiff, or create any
cause of action in his favor, or extend its liability
to any cause not previously recognized. It
merely gives a remedy to enforce a preexisting
liability and submits itself to the jurisdiction of
the court, subject to its right to interpose any
lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced
sheets), decided April 16, 1915, the Act of 1913, which
authorized the bringing of this suit, read:
SECTION 1. Authority is hereby given to George
Apfelbacher, of the town of Summit, Waukesha
County, Wisconsin, to bring suit in such court or
courts and in such form or forms as he may be
advised for the purpose of settling and
determining all controversies which he may now
have with the State of Wisconsin, or its duly
authorized officers and agents, relative to the
mill property of said George Apfelbacher, the
fish hatchery of the State of Wisconsin on the
Bark River, and the mill property of Evan
Humphrey at the lower end of Nagawicka Lake,
and relative to the use of the waters of said
Bark River and Nagawicka Lake, all in the county
of Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law
the legislature admitted liability on the part of
the state for the acts of its officers, and that the
suit now stands just as it would stand between
private parties. It is difficult to see how the act
does, or was intended to do, more than remove
the state's immunity from suit. It simply gives
authority to commence suit for the purpose of
settling plaintiff's controversies with the estate.
Nowhere in the act is there a whisper or
suggestion that the court or courts in the
disposition of the suit shall depart from well
established principles of law, or that the amount
of damages is the only question to be settled.
The act opened the door of the court to the
plaintiff. It did not pass upon the question of
liability, but left the suit just where it would be
in the absence of the state's immunity from suit.
If the Legislature had intended to change the
rule that obtained in this state so long and to
declare liability on the part of the state, it would
not have left so important a matter to mere
inference, but would have done so in express
terms. (Murdock Grate Co. vs. Commonwealth,
152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the provisions of
the Act of 1893, relied upon and considered, are as
follows:
All persons who have, or shall hereafter have,
claims on contract or for negligence against the
state not allowed by the state board of
 examiners, are hereby authorized, on the terms
and conditions herein contained, to bring suit
thereon against the state in any of the courts of
this state of competent jurisdiction, and
prosecute the same to final judgment. The rules
of practice in civil cases shall apply to such suits,
except as herein otherwise provided.
And the court said:
This statute has been considered by this court in
at least two cases, arising under different facts,
and in both it was held that said statute did not
create any liability or cause of action against the
state where none existed before, but merely
gave an additional remedy to enforce such
liability as would have existed if the statute had
not been enacted. (Chapman vs. State, 104 Cal.,
690; 43 Am. St. Rep., 158; Melvin vs. State, 121
Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the
superior court "jurisdiction of all claims against the
commonwealth, whether at law or in equity," with an
exception not necessary to be here mentioned. In
construing this statute the court, in Murdock Grate Co.
vs. Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no
intention to create against the state a new and
heretofore unrecognized class of liabilities, but
only an intention to provide a judicial tribunal
where well recognized existing liabilities can be
adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of
the canal claims had, by the terms of the statute of New
York, jurisdiction of claims for damages for injuries in
the management of the canals such as the plaintiff had
sustained, Chief Justice Ruger remarks: "It must be
conceded that the state can be made liable for injuries
arising from the negligence of its agents or servants,
only by force of some positive statute assuming such
liability."
It being quite clear that Act No. 2457 does not operate
to extend the Government's liability to any cause not
previously recognized, we will now examine the
substantive law touching the defendant's liability for the
negligent acts of its officers, agents, and employees.
Paragraph 5 of article 1903 of the Civil Code reads:
The state is liable in this sense when it acts
through a special agent, but not when the
damage should have been caused by the official
to whom properly it pertained to do the act
performed, in which case the provisions of the
preceding article shall be applicable.
The supreme court of Spain in defining the scope of this
paragraph said:
That the obligation to indemnify for damages
which a third person causes to another by his
fault or negligence is based, as is evidenced by
the same Law 3, Title 15, Partida 7, on that the
person obligated, by his own fault or negligence,
takes part in the act or omission of the third
party who caused the damage. It follows
therefrom that the state, by virtue of such
provisions of law, is not responsible for the
damages suffered by private individuals in
consequence of acts performed by its employees
in the discharge of the functions pertaining to
their office, because neither fault nor even
negligence can be presumed on the part of the
state in the organization of branches of public
service and in the appointment of its agents; on
the contrary, we must presuppose all foresight
humanly possible on its part in order that each
branch of service serves the general weal an
that of private persons interested in its
operation. Between these latter and the state,
therefore, no relations of a private nature
governed by the civil law can arise except in a
case where the state acts as a judicial person
capable of acquiring rights and contracting
obligations. (Supreme Court of Spain, January 7,
1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4,
regulates the obligations which arise out of fault
or negligence; and whereas in the first article
thereof. No. 1902, where the general principle is
laid down that where a person who by an act or
omission causes damage to another through
fault or negligence, shall be obliged to repair the
damage so done, reference is made to acts or
omissions of the persons who directly or
indirectly cause the damage, the following
articles refers to this persons and imposes an
identical obligation upon those who maintain
fixed relations of authority and superiority over
the authors of the damage, because the law
presumes that in consequence of such relations
the evil caused by their own fault or negligence
is imputable to them. This legal presumption
gives way to proof, however, because, as held in
the last paragraph of article 1903, responsibility
for acts of third persons ceases when the
persons mentioned in said article prove that
they employed all the diligence of a good father
of a family to avoid the damage, and among
these persons, called upon to answer in a direct
and not a subsidiary manner, are found, in
addition to the mother or the father in a proper
case, guardians and owners or directors of an
establishment or enterprise, the state, but not
always, except when it acts through the agency
of a special agent, doubtless because and only
in this case, the fault or negligence, which is the
original basis of this kind of objections, must be
presumed to lie with the state.
That although in some cases the state might by
virtue of the general principle set forth in article
1902 respond for all the damage that is
occasioned to private parties by orders or
resolutions which by fault or negligence are
made by branches of the central administration
acting in the name and representation of the
state itself and as an external expression of its
sovereignty in the exercise of its executive
powers, yet said article is not applicable in the
case of damages said to have been occasioned
to the petitioners by an executive official, acting
in the exercise of his powers, in proceedings to
enforce the collections of certain property taxes
owing by the owner of the property which they
hold in sublease.
That the responsibility of the state is limited by
article 1903 to the case wherein it acts through
a special agent(and a special agent, in the sense
in which these words are employed, is one who
receives a definite and fixed order or
commission, foreign to the exercise of the duties
of his office if he is a special official) so that in
representation of the state and being bound to
act as an agent thereof, he executes the trust
confided to him. This concept does not apply to
any executive agent who is an employee of the
acting administration and who on his own
responsibility performs the functions which are
inherent in and naturally pertain to his office
and which are regulated by law and the
regulations." (Supreme Court of Spain, May 18,
1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of
the Civil Code and the principle laid down in a
decision, among others, of the 18th of May,
1904, in a damage case, the responsibility of the
state is limited to that which it contracts through
a special agent, duly empowered by a definite
order or commission to perform some act or
charged with some definite purpose which gives
rise to the claim, and not where the claim is
based on acts or omissions imputable to a public
official charged with some administrative or
technical office who can be held to the proper
responsibility in the manner laid down by the
law of civil responsibility. Consequently, the trial
court in not so deciding and in sentencing the
said entity to the payment of damages, caused
by an official of the second class referred to, has
by erroneous interpretation infringed the
provisions of articles 1902 and 1903 of the Civil
Code. (Supreme Court of Spain, July 30, 1911;
122 Jur. Civ., 146.)
It is, therefore, evidence that the State (the Government
of the Philippine Islands) is only liable, according to the
above quoted decisions of the Supreme Court of Spain,
for the acts of its agents, officers and employees when
they act as special agents within the meaning of
paragraph 5 of article 1903, supra, and that the
chauffeur of the ambulance of the General Hospital was
not such an agent.
For the foregoing reasons, the judgment appealed from
must be reversed, without costs in this instance.
Whether the Government intends to make itself legally
liable for the amount of damages above set forth, which
the plaintiff has sustained by reason of the negligent
acts of one of its employees, by legislative enactment
and by appropriating sufficient funds therefor, we are
not called upon to determine. This matter rests solely
with the Legislature and not with the courts.
G.R. No. 70547 January 22, 1993
PHILIPPINE NATIONAL RAILWAYS and HONORIO
CABARDO, petitioners, vs. INTERMEDIATE
APPELLATE COURT, and BALIWAG TRANSIT,
INC., respondents.
The imputation of culpa on the part of herein petitioners
as a result of the collision between its strain, bound for
Manila from La Union, with a Baliwag transit bus at the
railroad crossing on the road going to Hagonoy, Bulacan
on August l0, 1974, is the subject of the petition at bar
directed against the judgment of affirmance rendered by
respondent court, through the Fourth Civil Cases Division
(Sison, Bidin (P), Veloso, JJ.), vis-a-vis the decretal
portion handed down by the court of origin in:
1. Ordering the defendants, jointly and severally to pay the
plaintiff the amount of P179,511.52 as actual damages.
2. Ordering the defendants jointly and severally to pay the
plaintiff P436,642.03 as reimbursement for the damages
paid by the plaintiff to death, injury and damage claimants.
3. Ordering the defendants jointly and severally to pay
exemplary damages in the amount of P50, 000.00 to the
plaintiff.
4. Ordering the defendants jointly and severally to pay the
plaintiff attorney's fees in the amount of P5, 000.00.
5. Ordering the defendants, jointly and severally to pay the
plaintiff interest at the legal rate on the above amounts due
the plaintiff from August 10, 1974 until fully paid.
6. Ordering the defendants to pay the cost of this suit.
7. Ordering the dismissal of the defendants'
counterclaim for lack of factual and legal basis. (p. 101,
Record on Appeal; p. 103. Rollo.)
Culled from the text of the assailed disposition are the
facts of the case at bar which are hereunder
adopted verbatim:
The case arose from a collision of a passenger
express train of defendant Philippine National
Railways, (PNR) coming from San Fernando, La
Union and bound for Manila and a passenger
bus of Baliwag Transit, Inc. which was on its
way to Hagonoy, Bulacan, from Manila, but
upon reaching the railroad crossing at Barrio
Balungao, Calumpit, Bulacan at about 1:30 in
the afternoon of August 10, 1974, got stalled
and was hit by defendant's express train causing
damages to plaintiff's bus and its passengers,
eighteen (18) of whom died and fifty-three (53)
others suffered physical injuries. Plaintiff
alleging that the proximate cause of the collision
was the negligence and imprudence of
defendant PNR and its locomotive engineer,
Honorio Cirbado, in operating its passenger train
in a busy intersection without any bars,
semaphores, signal lights, flagman or switchman
to warn the public of approaching train that
would pass through the crossing, filed the
instant action for Damages against defendants.
The defendants, in their Answer traversed the
material allegation of the Complaint and as
affirmative defense alleged that the collision was
caused by the negligence, imprudence and lack
of foresight of plaintiff's bus driver, Romeo
Hughes.
At the pre-trial conference held on June 23,
1976, the parties agreed on a partial stipulation
of facts and issues which as amplified at the
continuation of the pre-trial conference, on July
12, 1976, are as follows:
1 That plaintiff is a duly constituted
corporation registered with the
Securities and Exchange Commission
engaged in the business of
transportation and operating public
utility buses for the public with lines
covering Manila, Caloocan City, Quezon
City, Malabon, Rizal, Bulacan, Pampanga
and Nueva Ecija, and particularly from
Manila to Hagonoy, Bulacan and return
in the month of August, l974 passing
thru the town of Calumpit Bulacan,
temporarily while the bridge at
Hagonoy, Bulacan was under
construction;
2 That defendant Philippine National
Railways is a purely government owned
and controlled corporation duly
registered and existing virtue of
Presidential Decree No. 741, with
capacity to sue and be sued, and is
likewise engaged in transporting
passengers and cargoes by trains and
buses and that, it operates a train line
between San Fernando, La Union and
Manila particularly Passenger Express
Train with Body No. 73, passing along
the intersection of Barrio Balungao,
Calumpit, Bulacan, in going to San
Fernando, La Union from Manila and
return;
3. That on August 10, 1974, at about
1:20 o'clock in the afternoon, a Baliuag
Transit Bus with Body No. 1066 and
Plate No. XS-929 PUB-Bulacan '74 was
driven by its authorized driver Romeo
Hughes and PNR Train No. 73 was
operated by Train Engineer Honorio
Cabardo alias Honorio Cirbado and at
the railroad intersection at Barrio
Balungao, Calumpit, Bulacan, said
passenger train No. 73 hit and bumped
the right mid portion of the plaintiff's
passenger bus No. 1066, while the rear
portion of said bus was at the railroad
track and its direction was towards
Hagonoy, Bulacan at about 1:30 o'clock
in the afternoon;
4. That at the time of the collision there
was a slight rainfall in the vicinity of the
scene of the accident and that there
was at said intersection no bars,
semaphores, and signal lights that
would warn the public of the
approaching train that was about to
pass through the intersection and
likewise there was no warning devices
to passing trains showing that they were
about to pass an intersection in going to
Manila from San Fernando, La Union
and back;
5. That on account of said collision, the
Baliuag Transit Bus with Body No. 1066
driven by Romeo Hughes was damaged
and eighteen (18) of its passengers died
and the rest who were more than fifty
three (53) passengers suffered physical
injuries;
6. That after the investigation the Chief
of Police of Calumpit, Bulacan, filed a
criminal case of Reckless Imprudence
Causing Multiple Homicide with Multiple
Physical Injuries and Damage to
Property against Romeo Hughes y
Parfan, driver of the Baliuag Transit bus
docketed under Crim. Case No. 2392;
while the train Engineer Honorio
Cabardo alias Honorio Cirbado was not
included as an accused in said case,
although his train No. 73 was the one
that hit and bumped the right rear
portion of the said bus;
7. That immediately after the said
accident Major Manuel A. Macam, Chief
of the Municipal Police of Calumpit,
Bulacan, together with some of his
policemen conducted an investigation of
the accident;
8. That at the railroad crossing in
Calumpit, Bulacan where the accident
took place there is no railroad crossing
bar, however, during the pre-war days
there was a railroad crossing bar at said
intersection; that, however, there was
only one sign of railroad crossing "Stop,
Look and Listen" placed on a concrete
slab and attached to a concrete post
existing at the approach of the railroad
track from the Highway going towards
Hagonoy, Bulacan and that after the
said railroad track there was a
designated jeep parking area at the
right side in the direction from the
Highway to Hagonoy Bulacan;
9. That the train No. 73 driven by Train
Engineer Honorio Cabardo alias Honorio
Cirbado stopped after passing the
railroad crossing at a distance of about
50 meters from the said intersection
after the collision on August, 1974;
10. That the expected time of arrival of
said Train No. 73 in Manila was 2:41
P.M. and its departure time from San
Fernando, La Union was 9:00 A.M. and
its expected arrival at Calumpit, Bulacan
was 1:41 P.M. with no stop at Calumpit,
Bulacan.
SIMPLIFICATION OF ISSUES
11. That the principal issue in the
instant case is who between the driver
Romeo Hughes of Baliuag Transit,
Incorporated and the train engineer
Honorio Cabardo alias Honorio Cirbado
of the Philippine National Railways was
negligent or whether or not both are
negligent; that likewise which of said
companies was negligent at said railroad
intersection;
12. That another additional issue is
whether the Baliuag Transit
Incorporated has exercised the diligence
of a good father of the family in the
selection and supervision of its
employees. (pp. 85-87, Record on
Appeal). ( Annex A, Petition; pp. 79-
82, Rollo)
In addition, respondent court deemed it necessary to
reflect the salient findings of the case for damages as
formulated by the trial court:
Posed for resolution are the following
issues: Who between the driver Romeo
Hughes of the Baliuag Transit
Incorporated and Honorio Cabardo, train
Engineer of the Philippine National
Railways was negligent in the operation
of their respective vehicles, or whether
or both were negligent? Could either of
the companies Baliuag Transit
Incorporated and the Philippine National
Railways be held accountable for the
collision because of negligence?
The defendants presented several
statements or affidavits of alleged
witnesses to the collision, specifically
Exhibits 2, 3, 4, 5, 6, 11, 13, 14, 15, 16,
17, 18 and 19; the Court is at a loss as
to why the persons who gave the said
statements were not presented as
witnesses during the trial of the
case, as aptly said, the statements are
hearsay evidence (Azcueta v.
Cabangbang, — 45 O.G. 144); at most
they be taken as proof only of the fact
that statements of said persons were
taken and that investigation was
conducted of the incident; the Court
cannot consider the averments in said
statements as testimonies or evidence
of truth.
Defendants endeavored to show that
the proximate and immediate cause of
the collision was the negligence of the
bus driver because the driver did not
make a stop before ascending the
railtrack; he did not heed the warning or
shoutings of bystanders and passengers
and proceeded in traversing the railtrack
at a fast speed; that the bus driver was
in fact violating Section 42(d) of R.A.
4136, otherwise known as the Land
Transportation and Traffic Code for
failure to "stop, look, and listen" at the
intersection, before crossing the
railtrack; that it is incumbent upon him
to take the necessary precautions at the
intersection because the railroad track is
in itself a warning; and the bus driver
ignored such a warning and must
assume the responsibility for the result
of the motion taken by him (U.S. v.
Mananquil, 42 Phil. 90)
Except the testimony of the train
engineer Cabardo, there is no
admissible evidence to show that
indeed, the bus driver did not take the
necessary precaution in traversing the
track. Note that he first noticed the bus
when it was only 15 meters away from
him; he could not have possibly noticed
the position of the bus before
negotiating the track.
On the other hand, it was shown by
plaintiff that the bus driver Romeo
Hughes took the necessary precautions
in traversing the track.
The bus driver had stopped before
traversing the track and in fact asked
the conductor to alight and made a
"Look and Listen" before proceeding;
the conductor had done just that and
made a signal to proceed when he did
not see any oncoming train. (TSN,
October 2l, 1976, p. 4); plaintiff's bus
drivers and conductors are enjoined to
observe such a precautionary measure
in seminars conducted by the company.
(TSN, September 23, 1976. pp. 26-27).
The evidence disclosed that the train
was running fast because by his own
testimony, the train engineer had
testified that before reaching the station
of Calumpit the terrain was downgrade
and levelled only after passing the
Calumpit bridge (TSN, July 28, 1976, p.
14 ); the tendency of the train, coming
from a high point is to accelerate as the
gravity will necessarily make it so,
especially when it is pulling seven
coaches loaded with goods and
passengers.
Moreover, upon impact, the bus loaded
with passengers was dragged and
thrown into a ditch several meters
away; the train had stopped only after
the engine portion was about 190
meters away from the fallen bus;
several passengers were injured and at
least 20 died; such facts conclusively
indicate that the train was speeding,
because if it were moving at moderate
speed, it would not run some 190
meters after impact and throw the bus
at quite a distance especially so when it
is claimed that the train's emergency
brakes were applied.
Further, the train was an express train;
its departure was 9:00 A.M. at San
Fernando, La Union and expected in
Manila at 2:41 P.M.; the collision
occurred at 1:30 P.M. or 4 1/2 hours
after it left La Union; surely, the train
could have not negotiated such a
distance in so short a time if it were not
running at fast speed.
It may be argued that a railroad is not
subject to the same restrictions to the
speed of its train as a motorists
(Mckelvey v. Delaware L. and W.R. Co.
253 App. D.V. 109, 300 NYS 1263 ); but
it does not follow that a train will be
permitted to run fast under all
conditions at any rate of speed it may
choose. It must regulate its speed with
proper regard for the safety of human
life and property (Johnson v. Southern
Pacific Company (Cal. App. 288 p. 81),
considering the surrounding
circumstances particularly the nature of
the locality (Atchinson, T. and SFR Co.
v. Nicks (Arts) 165 p. 2d 167).
Cabardo's route included the passage
over the said intersection; he could have
noticed that it is a very busy intersection
because the crossroad leads to the
Calumpit Poblacion as well as to the
neighboring town of Hagonoy; there
was a parking lot by the side of the
track whereat passengers board
jeepneys for the neighboring barrios and
towns; stalls abound in the vicinity and
bystanders congregate nearby. A
prudent train operator must, under the
circumstances, slacken his speed almost
for the protection of motorists and
pedestrians, not only when a collision is
inevitable but even if no hindrance is
apparent on the way;
Moreover, there was an intermittent rain
at the time of the collision (see
stipulation of facts and photographs);
the condition of the weather was such
that even if for this reason alone, the
train engineer should have foreseen that
danger of collision lurked because of
poor visibility of slippery road; he should
have taken extra precaution by
considerably slackening its speed. This
he failed to do even if the nature of his
job required him to observe care
exercised by a prudent man.
Contributory negligence may not be
ascribed to the bus driver; it was
evident that he had taken the necessary
precautions before passing over the
railway track; if the bus was hit, it was
for reasons beyond the control of the
bus driver because he had no place to
go; there were vehicles to his left which
prevented him in swerving towards that
direction; his bus stalled in view of the
obstructions in his front where a sand
and gravel truck stopped because of a
jeep maneuvering into a garage up
front. All the wheels at the bus have
already passed the rail portion of the
track and only the rear portion of the
bus' body occupied or covered the
railtrack. This was evident because the
part of the bus hit by the train was the
rear since the bus fell on a nearby ditch.
Otherwise, if the bus was really hit in
mid-body, the bus could have been
halved into two because of the force of
the impact.
The stipulation of facts between the
parties show that there was no crossing
bar at the railroad intersection at
Calumpit, Bulacan at the time of
collision (par. 8, Stipulation of Facts);
the plaintiff contended and the
defendants did not deny, that there
were no signal lights, semaphores,
flagman or switchman thereat; the
absence of such devices, the plaintiff
argues constitute negligence on the part
of the Philippine National Railways.
A railroad is not required to have a gate
(crossing bar) or a flagman, or to
maintain signals at every intersection;
only at such places reasonably
necessary; what is considered
reasonably necessary will depend on the
amount of travel upon the road, the
frequency with which trains pass over it
and the view which could be obtained of
trains as they approach the crossing,
and other conditions (Pari v. Los
Angeles, Ry. Corporation (Cal A2d) 128
p2d 563; Swdyk v. Indiana Harbor Belt
R. Co. 148 F. 2d 795, and others).
As has been amply discussed, the
crossroad at the intersection at Calumpit
is one which is a busy thoroughfare; it
leads to the Poblacion at Calumpit and
other barrios as well as the town of
Hagonoy; the vicinity is utilized as a
parking and waiting area for passengers
of jeepneys that ply between the
barrios, clearly, the flow of vehicular
traffic thereat is huge. It can be said
also that, since there is no other
railtrack going North except that one
passing at Calumpit, trains pass over it
frequently;
A portion of the intersection is being
used as a parking area with stalls and
other obstructions present making it
difficult, if not impossible, to see
approaching trains (see photographs).
The failure of the Philippine National
Railways to put a cross bar, or signal
light, flagman or switchman, or
semaphores is evidence of negligence
and disregard of the safety of the
public, even if there is no law or
ordinance requiring it, because public
safety demands that said devices or
equipments be installed, in the light of
aforesaid jurisprudence. In the opinion
of this Court the X sign or the presence
of "STOP, LOOK, LISTEN" warnings
would not be sufficient protection of the
motoring public as well as the
pedestrians, in the said intersection;
The parties likewise have stipulated that
during the pre-war days, there was a
railroad crossing bar at the said
intersection (Par-8, Stipulation of Facts).
It appears that it was a self imposed
requirement which has been
abandoned. In a case it was held that
where the use of a flagman was self
imposed, the abandonment thereof may
constitute negligence. (Fleming v.
Missouri and A. Ry. Co. 198 ARDC 290,
 128 S.W. 2d 286 and others; cited in
Sec. 1082 SCRWARTZ, Vol. 2). Similarly,
the abandonment by the PNR of the use
of the crossing bar at the intersection at
Calumpit constitutes negligence, as its
installation has become imperative,
because of the prevailing circumstances
in the place.
A railroad company has been adjudged
guilty of negligence and civilly liable for
damages when it failed to install
semaphores, or where it does not see to
it that its flagman or switchman comply
with their duties faithfully, to motorist
injured by a crossing train as long as he
had crossed without negligence on his
part (Lilius vs. MRR, 39 Phil. 758).
(Decision, pages 94-100, R A.; pp. 83-
89, Rollo).
On the aspect of whether the Philippine National
Railways enjoys immunity from suit, respondent court
initially noted that an exculpation of this nature that was
raised for the first time on appeal may no longer be
entertained in view of the proscription under Section 2,
Rule 9 of the Revised Rules of Court, apart from the fact
that the lawyer of petitioner agreed to stipulate inter
alia that the railroad company had capacity to sue and
be sued. This being so, respondent court continued, PNR
was perforce estopped from disavowing the prejudicial
repercussion of an admission in judicio. Even as the laws
governing the creation and rehabilitation of the PNR
were entirely mute on its power to sue and be sued,
respondent court nonetheless opined that such
prerogative was implied from the general power to
transact business pertinent or indispensable to the
attainment of the goals of the railroad company under
Section 4 of Republic Act No. 4156 as amended by
Republic Act No. 6366:
Sec. 4 General Powers — The Philippine
National Railways shall have the
following general powers:
(a) To do all such other things and to
transact all such business directly or
indirectly necessary, incidental or
conducive to the attainment of the
purpose of the corporation; and
(b) Generally, to exercise all powers of a
railroad corporation under the
Corporation law.
in conjunction with Section 2(b) of Presidential Decree
No. 741:
(b) To own or operate railroad
transways, bus lines, trucklines,
subways, and other kinds of land
transportation, vessels, and pipelines,
for the purpose of transporting for
consideration, passengers, mail and
property between any points in the
Philippines;
Thus, respondent court utilized the doctrine of implied
powers announced in National Airports Corporation vs.
Teodoro, Sr. and Philippine Airlines, Inc. (91 Phil. 203
[1952]), to the effect that the power to sue and be sued
is implicit from the faculty to transact private business.
At any rate, respondent court characterized the railroad
company as a private entity created not to discharge a
governmental function but, among other things, to
operate a transport service which is essentially a
business concern, and thus barred from invoking
immunity from suit.
In brushing aside petitioners' asseveration that the bus
driver outraced the train at the crossing, respondent
court observed that the bus was hit by the train at its
rear portion then protruding over the tracks as the bus
could not move because another truck at its front was
equally immobile due to a jeep maneuvering into a
nearby parking area. Under these tight conditions,
respondent court blamed the train engineer who
admitted to have seen the maneuvering jeep at a
distance (TSN, July 28, 1976, page 18) and had the last
clear chance to apply the brakes, knowing fully well that
the vehicles following the jeep could not move away
from the path of the train. Apart from these
considerations, it was perceived below that the train was
running fast during the entire trip since the train stopped
190 meters from the point of impact and arrived at
Calumpit, Bulacan earlier than its expected time of
arrival thereat.
Moreover, respondent court agreed with the conclusion
reached by the trial court that the absence of a crossing
bar, signal light, flagman or switchman to warn the
public of an approaching train constitutes negligence per
the pronouncement of this Court in Lilius vs. Manila
Railroad Company (59 Phil 758 [1934]).
Concerning the exercise of diligence normally expected
of an employer in the selection and supervision of its
employees, respondent court expressed the view that
PNR was remiss on this score since it allowed Honorio
Cabardo, who finished only primary education and
became an engineer only through sheer experience, to
operate the locomotive, not to mention the fact that
such plea in avoidance was not asserted in the answer
and was thus belatedly raised on appeal.
Petitioner moved to reconsider, but respondent court
was far from persuaded. Hence, the petition before Us
which, in essence, incorporates similar disputations
anent PNR's immunity from suit and the attempt to toss
the burden of negligence from the train engineer to the
bus driver of herein private respondent.
The bone of contention for exculpation is premised on
the familiar maxim in political law that the State, by
virtue of its sovereign nature and as reaffirmed by
constitutional precept, is insulated from suits without its
consent (Article 16, Section 3, 1987 Constitution).
However, equally conceded is the legal proposition that
the acquiescence of the State to be sued can be
manifested expressly through a general or special law,
or indicated implicitly, as when the State commences
litigation for the purpose of asserting an affirmative
relief or when it enters into a contract ( Cruz,Philippine
Political Law, 1991 edition, page 33; Sinco, Philippine
Political Law, Eleventh Edition, 1962, page 34). When
the State participates in a covenant, it is deemed to
have descended from its superior position to the level of
an ordinary citizen and thus virtually opens itself to
judicial process. Of course, We realize that this Court
qualified this form of consent only to those contracts
concluded in a proprietary capacity and therefore
immunity will attach for those contracts entered into in a
governmental capacity, following the ruling in the 1985
case of United States of America vs. Ruiz (136 SCRA 487
[1985]; cited by Cruz, supra at pages 36-37). But the
restrictive interpretation laid down therein is of no
practical worth nor can it give rise to herein petitioner
PNR's exoneration since the case of Malong vs.
Philippine National Railways (138 SCRA 63, [1985]);
3 Padilla, 1987 Constitution with Comments and Cases,
1991 edition, page 644), decided three months
after Ruiz was promulgated, was categorical enough to
specify that the Philippine National Railways "is not
performing any governmental function" (supra, at page
68).
In Malong, Justice Aquino, speaking for the Court en
banc, declared:
The Manila Railroad Company, the PNR's
predecessor, as a common carrier, was not
immune from suit under Act No. 1510, its
charter.
The PNR Charter, Republic Act No. 4156, as
amended by Republic Act No. 6366 and
Presidential Decree No. 741, provides that the
PNR is a government instrumentality under
government ownership during its 50-year term,
1964 to 2014. It is under the Office of the
President of the Philippines. Republic Act No.
6366 provides:
Sec. 1-a. Statement of policy. — The
Philippine National Railways, being a
factor for socio-economic development
and growth, shall be a part of the
infrastructure program of the
government and as such shall remain in
and under government ownership
during its corporate existence. The
Philippine National Railways must be
administered with the view of serving
the interests of the public by providing
them the maximum of service and,
while aiming at its greatest utility by the
public, the economy of operation must
be ensured so that service can be
rendered at the minimum passenger
and freight prices possible.
The charter also provides:
Sec. 4. General powers. — The
Philippine National Railways shall have
the following general powers:
(a) To do all such other things and to
transact all such business directly or
indirectly necessary, incidental or
conducive to the attainment of the
purpose of the corporation; and
(b) Generally, to exercise all powers of a
railroad corporation under the
Corporation Law. (This refers to
Sections 81 to 102 of the Corporation
Law on railroad corporations, not
reproduced in the Corporation Code.)
Section 36 of the Corporation Code provides that every
corporation has the power to sue and be sued in its
corporate name. Section 13(2) of the Corporation Law
provides that every corporation has the power to sue
and be sued in any court.
A sovereign is exempt from suit, not
because of any formal conception or
obsolete theory, but on the logical and
practical ground that there can be no
legal right as against the authority that
makes the law on which the right
depends (Justice Holmes in
Kawananakoa vs. Polyblank, 205 U.S.
353, 51 L. 3d 834).
The public service would be hindered,
and public safety endangered, if the
supreme authority could be subjected to
suit at the instance of every citizen and,
consequently, controlled in the use and
 disposition of the means required for
the proper administration of the
Government (The Siren vs. U.S., 7 Wall.
152, 19 L. ed. 129). (at pp.
65-66).
To the pivotal issue of whether the State acted in a
sovereign capacity when it organized the PNR for the
purpose of engaging in transportation, Malong continued
to hold that:
. . . in the instant case the State
divested itself of its sovereign capacity
when it organized the PNR which is no
different from its predecessor, the
Manila Railroad Company. The PNR did
not become immune from suit. It did
not remove itself from the operation of
Articles 1732 to 1766 of the Civil Code
on common carriers.
The correct rule is that "not all
government entities, whether corporate
or noncorporate, are immune from suits.
Immunity from suit is determined by the
character of the objects for which the
entity was organized." (Nat. Airports
Corp. vs. Teodoro and Phil. Airlines,
Inc., 91 Phil. 203, 206; Santos vs.
Santos, 92 Phil. 281, 285; Harry Lyons,
Inc. vs. USA, 104 Phil. 593).
Suits against State agencies with
respect to matters in which they have
assumed to act in a private or
nongovernmental capacity are not suits
against the State (81 C.J.S. 1319).
Suits against State agencies
with relation to matters in which
they have assumed to act in a
private or nongovernmental
capacity, and various suits
against certain corporations
created by the State for public
purposes, but to engage in
matters partaking more of the
nature of ordinary business
rather than functions of a
governmental or political
character, are not regarded as
suits against the State.
The latter is true, although the
State may own the stock or
property of such a corporation,
for by engaging in business
operations through a whenever the contract in any
corporation the State divests
itself so far of its sovereign
character, and by implicating
consents to suits against the
corporation. (81 C.J.S. 1319).
The foregoing rule was applied
to State Dock Commissions
carrying on business relating to
pilots, terminals and
transportation (Standard Oil Co.
of New Jersey vs. U.S., 27 Fed.
2nd 370) and to State Highways
Commissions created to build
public roads and given
appropriations in advance to
discharge obligations incurred in
their behalf (Arkansas State
Highway Commission vs. Dodge,
26 SW 2nd 879 and State
Highway Commission of
Missouri vs. Bates, 296 SW 418,
cited in National Airports case).
The point is that when the government
enters into a commercial business it
abandons its sovereign capacity and is
to be treated like any other private
corporation (Bank of the U.S. vs.
Planters' Bank, 9 Wheat. 904, 6 L ed.
244, cited in Manila Hotel Employees
Association vs. Manila Hotel Company,
et al., 73 Phil. 374, 388). The Manila
Hotel case also relied on the following
rulings:
By engaging in a particular
business through the
instrumentality of a corporation,
the government divests
itself pro hac vice of its
sovereign character, so as to
render the corporation subject
to the rules of law governing
private corporations.
When the State acts in its
proprietary capacity, it is
amenable to all the rules of law
which bind private individuals.
There is not one law for the
sovereign and another for the
subject, but when the sovereign
engages in business and the
conduct of business enterprises,
and contracts with individuals,
 form comes before the courts,
the rights and obligation of the
contracting parties must be
adjusted upon the same
principles as if both contracting
parties were private persons.
Both stand upon equality before
the law, and the sovereign is
merged in the dealer, contractor
and suitor (People vs. Stephens,
71 N.Y. 549).
It should be noted that in Philippine
National Railways vs. Union de
Maquinistas, etc., L-31948, July 25,
1978, 84 SCRA 223, it was held that the
PNR funds could be garnished at the
instance of a labor union.
It would be unjust if the heirs of the
victim of an alleged negligence of the
PNR employees could not sue the PNR
for damages. Like any private common
carrier, the PNR is subject to the
obligations of persons engaged in that
private enterprise. It is not performing
any governmental function.
Thus, the National Development
Company is not immune from suit. It
does not exercise sovereign functions. It
is an agency for the performance of
purely corporate, proprietary or business
functions (National Development
Company vs. Tobias, 117 Phil. 703, 705
and cases cited therein; National
Development Company vs. NDC
Employees and Workers' Union, L-
32387, August 19, 1975, 66 SCRA 18l,
184).
Other government agencies not
enjoying immunity from suit are the
Social Security System (Social Security
System vs. Court of Appeals,
L-41299, February 21, 1983, 120 SCRA
707) and the Philippine National Bank
(Republic vs. Philippine National Bank,
121 Phil. 26). (at pp. 66-68).
We come now to the question of whether respondent
court properly agreed with the trial court in imputing
negligence on the part of the train engineer and his
employer.
It was demonstrated beyond cavil in the course of the
pre-trial hearings held for the purpose of stipulating on
crucial facts that the bus was hit on the rear portion
thereof after it crossed the railroad tracks. Then, too the
train engineer was frank enough to say that he saw the
jeep maneuvering into a parking area near the crossing
which caused the obstruction in the flow of traffic such
that the gravel and sand truck including the bus of
herein private respondent were not able to move
forward or to take the opposite lane due to other
vehicles. The unmindful demeanor of the train engineer
in surging forward despite the obstruction before him is
definitely anathema to the conduct of a prudent person
placed under the same set of perceived danger. Indeed:
When it is apparent, or when in the
exercise of reasonable diligence
commensurate with the surroundings it
should be apparent, to the company
that a person on its track or to get on its
track is unaware of his danger or cannot
get out of the way, it becomes the duty
of the company to use such precautions,
by warnings, applying brakes, or
otherwise, as may be reasonably
necessary to avoid injury to him.
(65 Am. Jur., Second Edition. p. 649).
Likewise, it was established that the weather condition
was characterized with intermittent rain which should
have prompted the train engineer to exercise extra
precaution. Also, the train reached Calumpit, Bulacan
ahead of scheduled arrival thereat, indicating that the
train was travelling more than the normal speed of 30
kilometers per hour. If the train were really running at
30 kilometers per hour when it was approaching the
intersection, it would probably not have travelled 190
meters more from the place of the accident (page 10,
Brief for Petitioners). All of these factors, taken
collectively, engendered the concrete and yes, correct
conclusion that the train engineer was negligent who,
moreover, despite the last opportunity within his
hands vis-a-vis the weather condition including the
presence of people near the intersection, could have
obviated the impending collision had he slackened his
speed and applied the brakes (Picart vs. Smith, 37 Phil.
809 [1918]).Withal, these considerations were
addressed to the trial judge who, unlike appellate
magistrates, was in a better position to assign weight on
factual questions. Having resolved the question of
negligence between the train engineer and the bus
driver after collating the mass of evidence, the
conclusion reached thereafter thus commands great
respect especially so in this case where respondent court
gave its nod of approval to the findings of the court of
origin (Co vs. Court of Appeals, 193 SCRA 198; 206
[1991]); Amigo vs. Teves, 50 O.G. 5799; Regalado,
Remedial Law Compendium, Fifth edition, page 353).
What exacerbates against petitioners' contention is the
authority in this jurisdiction to the effect that the failure
of a railroad company to install a semaphore or at the
very least, to post a flagman or watchman to warn the
public of the passing train amounts to negligence (Lilius
vs. Manila Railroad Company, 59 Phil. 758 [1934]).
WHEREFORE, the petition is hereby DISMISSED and the
decision of respondent court AFFIRMED. SO ORDERED.
G.R. No. 61516 March 21, 1989
FLORENTINA A. GUILATCO, petitioner, vs. CITY OF
DAGUPAN, and the HONORABLE COURT OF
APPEALS, respondents.
In a civil action for recovery of damages filed by the
petitioner Florentina A. Guilatco, the following judgment
was rendered against the respondent City of Dagupan:
xxx
(1) Ordering defendant City of Dagupan to pay
plaintiff actual damages in the amount of P 15,924
(namely P8,054.00 as hospital, medical and other
expenses [Exhs. H to H-60], P 7,420.00 as lost
income for one (1) year [Exh. F] and P 450.00 as
bonus). P 150,000.00 as moral damages, P
50,000.00 as exemplary damages, and P 3,000.00
as attorney's fees, and litigation expenses, plus
costs and to appropriate through its Sangguniang
Panglunsod (City Council) said amounts for said
purpose;
(2) Dismissing plaintiffs complaint as against
defendant City Engr. Alfredo G. Tangco; and
(3) Dismissing the counterclaims of defendant City
of Dagupan and defendant City Engr. Alfredo G.
Tangco, for lack of merit.
The facts found by the trial court are as follows:
It would appear from the evidences that on July
25, 1978, herein plaintiff, a Court Interpreter of
Branch III, CFI--Dagupan City, while she was
about to board a motorized tricycle at a sidewalk
located at Perez Blvd. (a National Road, under
the control and supervision of the City of
Dagupan) accidentally fell into a manhole
located on said sidewalk, thereby causing her
right leg to be fractured. As a result thereof, she
had to be hospitalized, operated on, confined, at
first at the Pangasinan Provincial Hospital, from
July 25 to August 3, 1978 (or for a period of 16
days). She also incurred hospitalization,
medication and other expenses to the tune of P
8,053.65 (Exh. H to H-60) or a total of P
10,000.00 in all, as other receipts were either
lost or misplaced; during the period of her
confinement in said two hospitals, plaintiff
suffered severe or excruciating pain not only on
her right leg which was fractured but also on all
parts of her body; the pain has persisted even
after her discharge from the Medical City
General Hospital on October 9, 1978, to the
present. Despite her discharge from the Hospital
plaintiff is presently still wearing crutches and
the Court has actually observed that she has
difficulty in locomotion. From the time of the
mishap on July 25, 1978 up to the present,
plaintiff has not yet reported for duty as court
interpreter, as she has difficulty of locomotion in
going up the stairs of her office, located near
the city hall in Dagupan City. She earns at least
P 720.00 a month consisting of her monthly
salary and other means of income, but since
July 25, 1978 up to the present she has been
deprived of said income as she has already
consumed her accrued leaves in the government
service. She has lost several pounds as a result
of the accident and she is no longer her former
jovial self, she has been unable to perform her
religious, social, and other activities which she
used to do prior to the incident.
Dr. Norberto Felix and Dr. Dominado Manzano
of the Provincial Hospital, as well as Dr. Antonio
Sison of the Medical City General Hospital in
Mandaluyong Rizal (Exh. I; see also Exhs. F, G,
G-1 to G-19) have confirmed beyond shadow of
any doubt the extent of the fracture and injuries
sustained by the plaintiff as a result of the
mishap. On the other hand, Patrolman Claveria,
De Asis and Cerezo corroborated the testimony
of the plaintiff regarding the mishap and they
have confirmed the existence of the manhole
(Exhs. A, B, C and sub-exhibits) on the sidewalk
along Perez Blvd., at the time of the incident on
July 25, 1978 which was partially covered by a
concrete flower pot by leaving gaping hole
about 2 ft. long by 1 1/2 feet wide or 42 cms.
wide by 75 cms. long by 150 cms. deep (see
Exhs. D and D-1).
Defendant Alfredo Tangco, City Engineer of
Dagupan City and admittedly ex-officio Highway
Engineer, City Engineer of the Public Works and
Building Official for Dagupan City, admitted the
existence of said manhole along the sidewalk in
Perez Blvd., admittedly a National Road in front
of the Luzon Colleges. He also admitted that
said manhole (there are at least 11 in all in
Perez Blvd.) is owned by the National
Government and the sidewalk on which they are
found along Perez Blvd. are also owned by the
National Government. But as City Engineer of
Dagupan City, he supervises the maintenance of
said manholes or drainage system and sees to it
that they are properly covered, and the job is
specifically done by his subordinates, Mr.
Santiago de Vera (Maintenance Foreman) and
Engr. Ernesto Solermo also a maintenance
 Engineer. In his answer defendant Tangco
expressly admitted in par. 7-1 thereof, that in
his capacity as ex-officio Highway Engineer for
Dagupan City he exercises supervision and
control over National roads, including the Perez
Blvd. where the incident happened.
On appeal by the respondent City of Dagupan, the
appellate court reversed the lower court findings on the
ground that no evidence was presented by the plaintiff-
appellee to prove that the City of Dagupan had "control
or supervision" over Perez Boulevard.
The city contends that Perez Boulevard, where the fatal
drainage hole is located, is a national road that is not
under the control or supervision of the City of Dagupan.
Hence, no liability should attach to the city. It submits
that it is actually the Ministry of Public Highways that
has control or supervision through the Highway Engineer
which, by mere coincidence, is held concurrently by the
same person who is also the City Engineer of Dagupan.
After examination of the findings and conclusions of the
trial court and those of the appellate court, as well as
the arguments presented by the parties, we agree with
those of the trial court and of the petitioner. Hence, we
grant the petition.
In this review on certiorari, we have simplified the errors
assigned by the petitioner to a single issue: whether or
not control or supervision over a national road by the
City of Dagupan exists, in effect binding the city to
answer for damages in accordance with article 2189 of
the Civil Code.
The liability of public corporations for damages arising
from injuries suffered by pedestrians from the defective
condition of roads is expressed in the Civil Code as
follows:
Article 2189. Provinces, cities and municipalities
shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the
defective condition of roads, streets, bridges,
public buildings, and other public works under
their control or supervision.
It is not even necessary for the defective road or street
to belong to the province, city or municipality for liability
to attach. The article only requires that either control or
supervision is exercised over the defective road or
street.
In the case at bar, this control or supervision is provided
for in the charter of Dagupan and is exercised through
the City Engineer who has the following duties:
Sec. 22. The City Engineer--His powers, duties
and compensation-There shall be a city
engineer, who shall be in charge of the
department of Engineering and Public Works. He
shall receive a salary of not exceeding three
thousand pesos per annum. He shall have the
following duties:
xxx
(j) He shall have the care and custody of the
public system of waterworks and sewers, and all
sources of water supply, and shall control,
maintain and regulate the use of the same, in
accordance with the ordinance relating thereto;
shall inspect and regulate the use of all private
systems for supplying water to the city and its
inhabitants, and all private sewers, and their
connection with the public sewer system.
xxx
The same charter of Dagupan also provides that the
laying out, construction and improvement of streets,
avenues and alleys and sidewalks, and regulation of the
use thereof, may be legislated by the Municipal
Board. Thus the charter clearly indicates that the city
indeed has supervision and control over the sidewalk
where the open drainage hole is located.
The express provision in the charter holding the city not
liable for damages or injuries sustained by persons or
property due to the failure of any city officer to enforce
the provisions of the charter, can not be used to exempt
the city, as in the case at bar.
The charter only lays down general rules regulating the
liability of the city. On the other hand article 2189
applies in particular to the liability arising from "defective
streets, public buildings and other public works."
The City Engineer, Mr. Alfredo G. Tangco, admits that he
exercises control or supervision over the said road. But
the city can not be excused from liability by the
argument that the duty of the City Engineer to supervise
or control the said provincial road belongs more to his
functions as an ex-officio Highway Engineer of the
Ministry of Public Highway than as a city officer. This is
because while he is entitled to an honorarium from the
Ministry of Public Highways, his salary from the city
government substantially exceeds the honorarium.
We do not agree.
Alfredo G. Tangco "(i)n his official capacity as City
Engineer of Dagupan, as Ex- Officio Highway Engineer,
as Ex-Officio City Engineer of the Bureau of Public
Works, and, last but not the least, as Building Official for
Dagupan City, receives the following monthly
compensation: P 1,810.66 from Dagupan City; P 200.00
from the Ministry of Public Highways; P 100.00 from the
Bureau of Public Works and P 500.00 by virtue of P.D.
1096, respectively." This function of supervision over
streets, public buildings, and other public works
pertaining to the City Engineer is coursed through a
Maintenance Foreman and a Maintenance
Engineer. Although these last two officials are
employees of the National Government, they are
detailed with the City of Dagupan and hence receive
instruction and supervision from the city through the
City Engineer.
There is, therefore, no doubt that the City Engineer
exercises control or supervision over the public works in
question. Hence, the liability of the city to the petitioner
under article 2198 of the Civil Code is clear.
Be all that as it may, the actual damages awarded to the
petitioner in the amount of P 10,000.00 should be
reduced to the proven expenses of P 8,053.65 only. The
trial court should not have rounded off the amount. In
determining actual damages, the court can not rely on
"speculation, conjecture or guess work" as to the
amount. Without the actual proof of loss, the award of
actual damages becomes erroneous.
On the other hand, moral damages may be awarded
even without proof of pecuniary loss, inasmuch as the
determination of the amount is discretionary on the
court. Though incapable of pecuniary estimation, moral
damages are in the nature of an award to compensate
the claimant for actual injury suffered but which for
some reason can not be proven. However, in awarding
moral damages, the following should be taken into
consideration:
(1) First, the proximate cause of the
injury must be the claimee's acts.
(2) Second, there must be
compensatory or actual damages as
satisfactory proof of the factual basis for
damages.
(3) Third, the award of moral damages
must be predicated on any of the cases
enumerated in the Civil Code.
In the case at bar, the physical suffering and mental
anguish suffered by the petitioner were proven.
Witnesses from the petitioner's place of work testified to
the degeneration in her disposition-from being jovial to
depressed. She refrained from attending social and civic
activities.
Nevertheless the award of moral damages at P
150,000.00 is excessive. Her handicap was not
permanent and disabled her only during her treatment
which lasted for one year. Though evidence of moral
loss and anguish existed to warrant the award of
damages, the moderating hand of the law is called for.
The Court has time and again called attention to the
reprehensible propensity of trial judges to award
damages without basis, resulting in exhorbitant
amounts.
Although the assessment of the amount is better left to
the discretion of the trial court under preceding
jurisprudence, the amount of moral damages should be
reduced to P 20,000.00.
As for the award of exemplary damages, the trial court
correctly pointed out the basis:
To serve as an example for the public good, it is
high time that the Court, through this case,
should serve warning to the city or cities
concerned to be more conscious of their duty
and responsibility to their constituents,
especially when they are engaged in
construction work or when there are manholes
on their sidewalks or streets which are
uncovered, to immediately cover the same, in
order to minimize or prevent accidents to the
poor pedestrians.
Too often in the zeal to put up "public impact" projects
such as beautification drives, the end is more important
than the manner in which the work is carried out.
Because of this obsession for showing off, such trivial
details as misplaced flower pots betray the careless
execution of the projects, causing public inconvenience
and inviting accidents.
Pending appeal by the respondent City of Dagupan from
the trial court to the appellate court, the petitioner was
able to secure an order for garnishment of the funds of
the City deposited with the Philippine National Bank,
from the then presiding judge, Hon. Willelmo Fortun.
This order for garnishment was revoked subsequently by
the succeeding presiding judge, Hon. Romeo D. Magat,
and became the basis for the petitioner's motion for
reconsideration which was also denied.
We rule that the execution of the judgment of the trial
court pending appeal was premature. We do not find
any good reason to justify the issuance of an order of
execution even before the expiration of the time to
appeal .
WHEREFORE, the petition is GRANTED. The assailed
decision and resolution of the respondent Court of
Appeals are hereby REVERSED and SET ASIDE and the
decision of the trial court, dated March 12, 1979 and
amended on March 13, 1979, is hereby REINSTATED
with the indicated modifications as regards the amounts
awarded:
(1) Ordering the defendant City of Dagupan to
pay the plaintiff actual damages in the amount
of P 15,924 (namely P 8,054.00 as hospital,
medical and other expenses; P 7,420.00 as lost
income for one (1) year and P 450.00 as
bonus); P 20,000.00 as moral damages and P
10,000.00 as exemplary damages.
The attorney's fees of P 3,000.00 remain the same. SO
ORDERED.
G.R. No. 150304 June 15, 2005
QUEZON CITY GOVERNMENT and Engineer
RAMIR J. TIAMZON, Petitioners, vs. FULGENCIO
DACARA*, Respondent.
The review of cases under Rule 45 of the Rules of Court
is limited to errors of law. Unless there is a showing that
the findings of the lower court are totally devoid of
support or are glaringly erroneous, this Court will not
analyze or weigh evidence all over again. Under the
circumstance, the factual findings and conclusions of the
Court of Appeals affirming those of the trial courts will
be conclusive upon the Supreme Court. Furthermore,
well-entrenched is the rule that points of law, theories,
issues and arguments not brought to the attention of
the trial court cannot be raised for the first time on
appeal or certiorari. Finally, this Court reiterates the
principle that moral damages are designed to
compensate the claimant for actual injury suffered, not
to impose a penalty on the wrongdoer. Hence, absent
any definite finding as to what they consist of, the
alleged moral damages suffered would become a
penalty rather than a compensation for actual injury
suffered.
The Case
Before us is a Petition for Review1 under Rule 45 of the
Rules of Court, assailing the February 21, 2001
Decision2and the October 9, 2001 Resolution3 of the
Court of Appeals (CA) in CA-GR CV No. 29392. The
challenged Decision disposed as follows:
"WHEREFORE, premises considered, the Decision
dated June 29, 1990 in Civil Case No. Q-88-233 should
be AFFIRMED, with costs against the appellants."4
The assailed Resolution denied petitioners' Motion for
Reconsideration.
The Facts
The CA summarized the facts in this manner:
"Sometime on February 28, 1988 at about 1:00 A.M.,
Fulgencio Dacara, Jr., son of Fulgencio P. Dacara, Sr.
and owner of '87 Toyota Corolla 4-door Sedan with Plate
No. 877 (sic), while driving the said vehicle, rammed
into a pile of earth/street diggings found at Matahimik
St., Quezon City, which was then being repaired by the
Quezon City government. As a result, Dacarra (sic), Jr.
allegedly sustained bodily injuries and the vehicle
suffered extensive damage for it turned turtle when it hit
the pile of earth.
"Indemnification was sought from the city government
(Record, p. 22), which however, yielded negative
results. Consequently, Fulgencio P. Dacara (hereinafter
referred to as FULGENCIO), for and in behalf of his
minor son, Jr., filed a Complaint (Record, p. 1) for
damages against the Quezon City and Engr. Ramir
Tiamzon, as defendants, before the Regional Trial Court,
National Capital Judicial Region, Branch 101, Quezon
City, docketed as Civil Case No. Q-88-233. FULGENCIO
prayed that the amount of not less than ₱20,000.00
actual or compensatory damages, ₱150,000.00 moral
damages, ₱30,000.00 exemplary damages, and
₱20,000.00 attorney's fees and costs of the suit be
awarded to him.
"In an Answer with Affirmative and/or Special Defenses
(Record, p. 11), defendants admitted the occurrence of
the incident but alleged that the subject diggings was
provided with a moun[d] of soil and barricaded with
reflectorized traffic paint with sticks placed before or
after it which was visible during the incident on February
28, 1988 at 1:00 A.M. In short, defendants claimed that
they exercised due care by providing the area of the
diggings all necessary measures to avoid accident.
Hence, the reason why Fulgencio Dacara, Jr. fell into the
diggings was precisely because of the latter's negligence
and failure to exercise due care."5
After trial on the merits, the Regional Trial Court (RTC),
Branch 101, Quezon City, rendered its Decision6 dated
June 29, 1990. The evidence proffered by the
complainant (herein respondent) was found to be
sufficient proof of the negligence of herein petitioners.
Under Article 2189 of the Civil Code,7 the latter were
held liable as follows:
"WHEREFORE, premises above considered, based on the quantum of
evidence presented by the plaintiff which tilts in their favor elucidating
the negligent acts of the city government together with its employees
when considered in the light of Article 2189, judgment is hereby
rendered ordering the defendants to indemnify the plaintiff the sum of
twenty thousand pesos as actual/compensatory damages, ₱10,000.00
as moral damages, ₱5,000.00 as exemplary damages, ₱10,000.00 as
attorney's fees and other costs of suit."8
In their appeal to the CA, petitioners maintained that
they had observed due diligence and care in installing
preventive warning devices, and that it was in fact the
plaintiff who had failed to exercise prudence by driving
too fast to avoid the diggings. Moreover, the lower court
allegedly erred in using Article 2189 of the Civil Code,
which supposedly applied only to liability for the death
or injuries suffered by a person, not for damage to
property.
Ruling of the Court of Appeals
The CA agreed with the RTC's finding that petitioners'
negligence was the proximate cause of the damage
suffered by respondent.9 Noting the failure of petitioners
to present evidence to support their contention that
precautionary measures had indeed been observed, it
ruled thus:
"x x x. Sadly, the evidence indicates that [petitioners]
failed to show that they placed sufficient and adequate
precautionary signs at Matahimik Street to minimize or
prevent the dangers to life and limb under the
circumstances. Contrary to the testimony of the
witnesses for the [petitioners], namely Engr. Ramir
Tiamzon, Ernesto Landrito and Eduardo Castillo, that
there were signs, gasera which was buried so that its
light could not be blown off by the wind and barricade,
none was ever presented to stress and prove the
sufficiency and adequacy of said contention."10
Further upholding the trial court's finding of negligence
on the part of herein petitioners, the CA gave this
opinion:
"x x x. As observed by the trial court, the negligence of
[petitioners] was clear based on the investigation report
of Pfc. William P. Villafranca stating to the effect 'that
the subject vehicle rammed into a pile of earth from a
deep excavation thereat without any warning devi[c]e
whatsoever and as a consequence thereof, Dacara, Jr.
lost control of his driven car and finally turned-turtle
causing substantial damage to the same.' As a defense
against liability on the basis of quasi-delict, one must
have exercised the diligence of a good father of a family
which [petitioners] failed to establish in the instant
case."11
Whether Article 2189 is applicable to cases in which
there has been no death or physical injury, the CA ruled
in the affirmative:
"x x x. More importantly, we find it illogical to limit the
liability to death or personal injury only as argued by
appellants in the case at bar applying the foregoing
provisions. For, injury is an act that damages, harms or
hurts and mean in common as the act or result of
inflicting on a person or thing something that causes
loss, pain, distress, or impairment. Injury is the most
comprehensive, applying to an act or result involving an
impairment or destruction of right, health, freedom,
soundness, or loss of something of value."12
Hence, this Petition.13
Issues
Petitioners raise the following issues for our
consideration:
"1. The Honorable Court of Appeals decided a
question of law/substance contrary to applicable
law and jurisprudence when it affirmed the
award of moral damage suit (sic) the amount of
₱10,000.00.
2. The Honorable Court of Appeals decided a
question of law/substance contrary to applicable
law and jurisprudence when it affirmed the
award of exemplary damage sin (sic) the
amount of ₱5,000.00 and attorney's fee in the
[a]mount of ₱10,000.00.
3. The Honorable Court of Appeals gravely erred
and/;or (sic) had acted with grave abuse of
discretion amounting to lack and/or excess of
jurisdiction when it refused to hold that
respondent's son in the person of Fulgencio
Dacara, Jr. was negligent at the time of
incident."14
Because the issues regarding the liability of petitioners
for moral and exemplary damages presuppose that their
negligence caused the vehicular accident, we first
resolve the question of negligence or the proximate
cause of the incident.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Negligence
Maintaining that they were not negligent, petitioners
insist that they placed all the necessary precautionary
signs to alert the public of a roadside construction. They
argue that the driver (Fulgencio Dacara Jr.) of
respondent's car was overspeeding, and that his own
negligence was therefore the sole cause of the incident.
Proximate cause is defined as any cause that produces
injury in a natural and continuous sequence, unbroken
by any efficient intervening cause, such that the result
would not have occurred otherwise.15 Proximate cause is
determined from the facts of each case, upon a
combined consideration of logic, common sense, policy
and precedent.16
What really caused the subject vehicle to turn turtle is a
factual issue that this Court cannot pass upon, absent
any whimsical or capricious exercise of judgment by the
lower courts or an ample showing that they lacked any
basis for their conclusions.17 The unanimity of the CA
and the trial court in their factual ascertainment that
petitioners' negligence was the proximate cause of the
accident bars us from supplanting their findings and
substituting these with our own. The function of this
Court is limited to the review of the appellate court's
alleged errors of law. It is not required to weigh all over
again the factual evidence already considered in the
proceedings below.18 Petitioners have not shown that
they are entitled to an exception to this rule. 19 They
have not sufficiently demonstrated any special
circumstances to justify a factual review.
That the negligence of petitioners was the proximate
cause of the accident was aptly discussed in the lower
court's finding, which we quote:
"Facts obtaining in this case are crystal clear that the
accident of February 28, 1988 which caused almost the
life and limb of Fulgencio Dacara, Jr. when his car
turned turtle was the existence of a pile of earth from a
digging done relative to the base failure at Matahimik
Street nary a lighting device or a reflectorized barricade
or sign perhaps which could have served as an adequate
warning to motorist especially during the thick of the
night where darkness is pervasive.
"Contrary to the testimony of the witnesses for the
defense that there were signs, gasera which was buried
so that its light could not be blown off by the wind and
barricade, none was ever presented to stress the point
that sufficient and adequate precautionary signs were
placed at Matahimik Street. If indeed signs were placed
thereat, how then could it be explained that according to
the report even of the policeman which for clarity is
quoted again, none was found at the scene of the
accident.
xxxxxxxxx
"Negligence of a person whether natural or juridical over
a particular set of events is transfixed by the attending
circumstances so that the greater the danger known or
reasonably anticipated, the greater is the degree of care
required to be observed.
xxxxxxxxx
"The provisions of Article 2189 of the New Civil Code
capsulizes the responsibility of the city government
relative to the maintenance of roads and bridges since it
exercises the control and supervision over the same.
Failure of the defendant to comply with the statutory
provision found in the subject-article is tantamount to
negligence per se which renders the City government
liable. Harsh application of the law ensues as a result
thereof but the state assumed the responsibility for the
maintenance and repair of the roads and bridges and
neither exception nor exculpation from liability would
deem just and equitable."20 (Emphasis supplied)
Petitioners belatedly point out that Fulgencio Jr. was
driving at the speed of 60 kilometers per hour (kph)
when he met the accident. This speed was allegedly well
above the maximum limit of 30 kph allowed on "city
streets with light traffic, when not designated 'through
streets,'" as provided under the Land Transportation and
Traffic Code (Republic Act 4136). Thus, petitioners
assert that Fulgencio Jr., having violated a traffic
regulation, should be presumed negligent pursuant to
Article 218521 of the Civil Code.22
These matters were, however, not raised by petitioners
at any time during the trial. It is evident from the
records that they brought up for the first time the
matter of violation of RA 4136 in their Motion for
Reconsideration23 of the CA Decision dated February 21,
2001. It is too late in the day for them to raise this new
issue. It is well-settled that points of law, theories or
arguments not brought out in the original proceedings
cannot be considered on review or appeal.24 To consider
their belatedly raised arguments at this stage of the
proceedings would trample on the basic principles of fair
play, justice, and due process.25
Indeed, both the trial and the appellate courts' findings,
which are amply substantiated by the evidence on
record, clearly point to petitioners' negligence as the
proximate cause of the damages suffered by
respondent's car. No adequate reason has been given to
overturn this factual conclusion.
Second Issue:
Moral Damages
Petitioners argue that moral damages are recoverable
only in the instances specified in Article 221926 of the
Civil Code. Although the instant case is an action for
quasi-delict, petitioners contend that moral damages are
not recoverable, because no evidence of physical injury
were presented before the trial court.27
To award moral damages, a court must be satisfied with
proof of the following requisites: (1) an injury -- whether
physical, mental, or psychological -- clearly sustained by
the claimant; (2) a culpable act or omission factually
established; (3) a wrongful act or omission of the
defendant as the proximate cause of the injury
sustained by the claimant; and (4) the award of
damages predicated on any of the cases stated in Article
2219.28
Article 2219(2) specifically allows moral damages to be
recovered for quasi-delicts, provided that the act or
omission caused physical injuries. There can be no
recovery of moral damages unless the quasi-delict
resulted in physical injury.29 This rule was enunciated
in Malonzo v. Galang30 as follows:
"x x x. Besides, Article 2219 specifically mentions 'quasi-
delicts causing physical injuries,' as an instance when
moral damages may be allowed, thereby implying that
all other quasi-delicts not resulting in physical injuries
are excluded, excepting of course, the special torts
referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21,
26, 27, 28, 29, 30, 32, 34 and 35 on the chapter on
human relations (par. 10, Art. 2219)."
In the present case, the Complaint alleged that
respondent's son Fulgencio Jr. sustained physical
injuries. The son testified that he suffered a deep cut on
his left arm when the car overturned after hitting a pile
of earth that had been left in the open without any
warning device whatsoever.
It is apparent from the Decisions of the trial and the
appellate courts, however, that no other evidence (such
as a medical certificate or proof of medical expenses)
was presented to prove Fulgencio Jr.'s bare assertion of
physical injury. Thus, there was no credible proof that
would justify an award of moral damages based on
Article 2219(2) of the Civil Code.
Moreover, the Decisions are conspicuously silent with
respect to the claim of respondent that his moral
sufferings were due to the negligence of petitioners. The
Decision of the trial court, which summarizes the
testimony of respondent's four witnesses, makes no
mention of any statement regarding moral suffering,
such as mental anguish, besmirched reputation,
wounded feelings, social humiliation and the like.
Moral damages are not punitive in nature, but are
designed to compensate and alleviate in some way the
physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury unjustly
inflicted on a person.31 Intended for the restoration of
the psychological or emotional status quo ante, the
award of moral damages is designed to compensate
emotional injury suffered, not to impose a penalty on
the wrongdoer.
For the court to arrive upon a judicious approximation of
emotional or moral injury, competent and substantial
proof of the suffering experienced must be laid before it.
Essential to this approximation are definite findings as to
what the supposed moral damages suffered consisted
of; otherwise, such damages would become a penalty
rather than a compensation for actual injury suffered. 32
Furthermore, well-settled is the rule that moral damages
cannot be awarded -- whether in a civil33 or a criminal
case34 -- in the absence of proof of physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, or similar injury.35 The award of moral
damages must be solidly anchored on a definite showing
that respondent actually experienced emotional and
mental sufferings. Mere allegations do not suffice; they
must be substantiated by clear and convincing proof.36
Third Issue:
Exemplary Damages
Petitioners argue that exemplary damages and
attorney's fees are not recoverable. Allegedly, the RTC
and the CA "did not find that petitioners were guilty of
gross negligence in the performance of their duty and
responsibilities."37
Exemplary damages cannot be recovered as a matter of
right.38 While granting them is subject to the discretion
of the court, they can be awarded only after claimants
have shown their entitlement to moral, temperate or
compensatory damages.39 In the case before us,
respondent sufficiently proved before the courts a
quo that petitioners' negligence was the proximate
cause of the incident, thereby establishing his right to
actual or compensatory damages. He has adduced
adequate proof to justify his claim for the damages
caused his car. The question that remains, therefore, is
whether exemplary damages may be awarded in
addition to compensatory damages.
Article 2231 of the Civil Code mandates that in cases of
quasi-delicts, exemplary damages may be recovered if
the defendant acted with gross negligence. 40 Gross
negligence means such utter want of care as to raise a
presumption that the persons at fault must have been
conscious of the probable consequences of their
carelessness, and that they must have nevertheless
been indifferent (or worse) to the danger of injury to the
person or property of others.41 The negligence must
amount to a reckless disregard for the safety of persons
or property. Such a circumstance obtains in the instant
case.
A finding of gross negligence can be discerned from the
Decisions of both the CA and the trial court. We quote
from the RTC Decision:
"Sad to state that the City Government through its
instrumentalities have (sic) failed to show the modicum
of responsibility, much less, care expected of them (sic)
by the constituents of this City. It is even more
deplorable that it was a case of a street digging in a side
street which caused the accident in the so-called
'premier city.'"421avvphi1.zw+
The CA reiterated the finding of the trial court that
petitioners' negligence was clear, considering that there
was no warning device whatsoever43 at the excavation
site.
The facts of the case show a complete disregard by
petitioners of any adverse consequence of their failure
to install even a single warning device at the area under
renovation. Considering further that the street was dimly
lit,44 the need for adequate precautionary measures was
even greater. By carrying on the road diggings without
any warning or barricade, petitioners demonstrated a
wanton disregard for public safety. Indeed, the February
28, 1988 incident was bound to happen due to their
gross negligence. It is clear that under the
circumstances, there is sufficient factual basis for a
finding of gross negligence on their part.
Article 2229 of the Civil Code provides that exemplary
damages may be imposed by way of example or
correction for the public good. The award of these
damages is meant to be a deterrent to socially
deleterious actions.45 Public policy requires such
imposition to suppress wanton acts of an offender. 46 It
must be emphasized that local governments and their
employees should be responsible not only for the
maintenance of roads and streets, but also for the safety
of the public. Thus, they must secure construction areas
with adequate precautionary measures.
Not only is the work of petitioners impressed with public
interest; their very existence is justified only by public
service. Hence, local governments have the paramount
responsibility of keeping the interests of the public
foremost in their agenda. For these reasons, it is most
disturbing to note that the present petitioners are the
very parties responsible for endangering the public
through such a rash and reckless act.
WHEREFORE, the Petition is hereby PARTLY
GRANTED. The Decision of the Court of Appeals
is AFFIRMED, with the MODIFICATION that the
award of moral damages is DELETED. No costs. SO
ORDERED.
G.R. No. 121920
THE MUNICIPALITY OF SAN JUAN, METRO
MANILA, Petitioner, vs. THE HON. COURT OF
APPEALS, LAURA BIGLANG-AWA, METROPOLITAN
WATERWORKS AND SEWERAGE SYSTEM (MWSS),
and KWOK CHEUNG, Respondents.
In this appeal by way of a petition for review
on certiorari under Rule 45 of the Rules of Court,
petitioner Municipality of San Juan urges us to annul and
set aside the decision dated 08 September 1995[1] of
the Court of Appeals in CA-G.R. CV No. 38906, affirming
with modification an earlier decision of the Regional Trial
Court at Pasig City in an action for damages thereat
commenced by private respondent Laura Biglang-awa
against, among others, the herein petitioner.
The material facts are not at all disputed:
Under a Contract For Water Service
Connections[2] entered into by and between the
Metropolitan Waterworks and Sewerage System (MWSS)
and Kwok Cheung as sole proprietor of K.C. Waterworks
System Construction (KC, for short), the former engaged
the services of the latter to install water service
connections. Article 11 (Scope of Work), paragraph 2.01
of the agreement provides:
2.01 The CONTRACTOR agrees to install water service
connections, transfer location of tapping to the nearest
main, undertake separation of service connection,
change rusted connections, within the service area of
the MWSS specified in each job order covered by this
Contract, from the water main up to the installation of
the verticals. Tapping of the service pipe connection and
mounting of water meter shall be undertaken exclusively
or solely by the MWSS;
On 20 May 1988, KC was given a Job Order by the
South Sector Office of MWSS to conduct and effect
excavations at the corner of M. Paterno and Santolan
Road, San Juan, Metro Manila, a national road, for the
laying of water pipes and tapping of water to the
respective houses of water concessionaires.
That same day, KC dispatched five (5) of its workers
under Project Engineer Ernesto Battad, Jr. to conduct
the digging operations in the specified place. The
workers installed four (4) barricades made up of two-
inch thick GI pipes welded together, 1.3 meters wide
and 1.2 meters high, at the area where the digging is to
take place. The digging operations started at 9 oclock in
the morning and ended at about 3 oclock in the
afternoon. The workers dug a hole one (1) meter wide
and 1.5 meters deep, after which they refilled the
excavated portion of the road with the same gravel and
stone excavated from the area. At that time, only of the
job was finished in view of the fact that the workers
were still required to re-excavate that particular portion
for the tapping of pipes for the water connections to the
concessionaires.
Meanwhile, between 10 oclock and 11 oclock in the
evening of 31 May 1988, Priscilla Chan was driving her
Toyota Crown car with Plate No. PDK 991 at a speed of
thirty (30) kilometers per hour on the right side of
Santolan Road towards the direction of Pinaglabanan,
San Juan, Metro Manila. With her on board the car and
seated on the right front seat was Assistant City
Prosecutor Laura Biglang-awa. The road was flooded as
it was then raining hard. Suddenly, the left front wheel
of the car fell on a manhole where the workers of KC
had earlier made excavations. As a result, the humerus
on the right arm of Prosecutor Biglang-awa was
fractured. Thereupon, Priscilla Chan contacted Biglang-
awas husband who immediately arrived at the scene and
brought his wife to the Cardinal Santos Hospital.
Dispatched to the scene of the accident to conduct an
investigation thereof, Pfc. Felix Ramos of the Traffic
Division of the San Juan Police Station, upon arriving
thereat, saw Priscilla Chans car already extracted from
the manhole and placed beside the excavated portion of
the road. According to this police officer, he did not see
any barricades at the scene when he arrived less than
an hour later. A Traffic Accident Investigation
Report[3] was thereafter prepared and signed by Pfc.
Ramos.
At the hospital, the attending physician, after having
performed a close reduction and application of abduction
splint on Biglang-awa, placed a plastic cast on her right
arm. Barring complications, the injury she suffered was
expected to heal in four (4) to six (6) weeks, although
she must revisit her doctor from time to time for check-
up and rehabilitation. After some time, the plastic cast
was removed. Biglang-awa sustained no deformity and
no tenderness of the area of the injury but she could not
sleep on her right side because she still felt pain in that
portion of her body. A Medical Certificate[4] on her
injuries was issued by Dr. Antonio Rivera.
Consequent to the foregoing incident, Biglang-awa filed
before the Regional Trial Court at Pasig, Metro Manila a
complaint for damages against MWSS, the Municipality
of San Juan and a number of San Juan municipal
officials.
Later, Biglang-awa amended her complaint twice. In her
second amended complaint, she included KC as one of
the defendants.
After due proceedings, the trial court rendered judgment
in favor of Biglang-awa adjudging MWSS and the
Municipality of San Juan jointly and severally liable to
her. Dated 29 February 1992, the
decision[5] dispositively reads in full, thus:
WHEREFORE, foregoing considered, judgment is hereby
rendered declaring the Municipality of San Juan, Metro
Manila and the Metropolitan Waterworks and Sewerage
System jointly and severally liable to the plaintiff
[Biglang-awa]. Both defendants are ordered to pay
plaintiff the amounts of:
(a) P18,389.55, for actual damages suffered by the plaintiff;
(b) P15,000.00, for moral damages;
(c) P10,000.00, for exemplary damages;
(d) P5,000.00, for attorneys fees; and
(e) to pay the costs.
SO ORDERED.
Unable to accept the judgment, both Biglang-awa and
the Municipality of San Juan went to the Court of
Appeals via ordinary appeal under Rule 41 of the Rules
of Court, which appeal was thereat docketed as CA-G.R.
CV No. 38906.
As stated at the outset hereof, the appellate court, in a
decision dated 08 September 1995, affirmed with
modification that of the trial court, to wit:
IN THE LIGHT OF ALL THE FOREGOING, the Decision
appealed from is AFFIRMED but modified as follows:
1. The Appellees KC and MWSS and the Appellant San Juan are
hereby ordered to pay, jointly and severally, to [Biglang-awa] the
amounts of P50,000.00 by way of moral damages, P50,000.00 by
way of exemplary damages and P5,000.00 by way of attorneys
fees, without prejudice to the right of the Appellee MWSS for
reimbursement from the Appellee KC under the Contract, Exhibit 3-
MWSS:
2. The counterclaims of the Appellees and Appellant San Juan and
the cross-claim of the latter are DISMISSED. Without
pronouncement as to costs.
SO ORDERED. (Words in bracket supplied).
Therefrom, petitioner Municipality of San Juan came to
this Court thru the present recourse, on its submissions
that:
I. THE RESPONDENT APPELLATE COURT HAS
DECIDED A QUESTION OF SUBSTANCE NOT
HEREFORE DECIDED BY THE SUPREME
COURT.
II. THE RESPONDENT APPELLATE COURT HAS
DECIDED A QUESTION PROBABLY NOT IN
ACCORD WITH THE LAW AND
JURISPRUDENCE.
With no similar recourse having been taken by the other
parties, the Court shall limit itself to the liability or non-
liability of petitioner municipality for the injury sustained
by Biglang-awa.
In denying liability for the subject accident, petitioner
essentially anchored its defense on two provisions of
laws, namely: (1) Section 149, [1][z] of Batas Pambansa
Blg. 337, otherwise known as the Local Government
Code of 1983; and (2) Section 8, Ordinance 82-01, of
the Metropolitan Manila Commission.
Petitioner maintains that under Section 149, [1][z] of the
Local Government Code,[6] it is obliged to provide for
the construction, improvement, repair and maintenance
of only municipal streets, avenues, alleys, sidewalks,
bridges, parks and other public places. Ergo, since
Santolan Road is concededly a national and not a
municipal road, it cannot be held liable for the injuries
suffered by Biglang-awa on account of the accident that
occurred on said road.
Additionally, petitioner contends that under Section 8,
Ordinance No. 82-01, of the Metropolitan Manila
Commission, which reads:
In the event of death, injury and/or damages caused by
the non-completion of such works and/or failure of one
undertaking the work to adopt the required
precautionary measures for the protection of the general
public or violation of any of the terms or conditions of
the permit, the permittee/excavator shall assume fully all
liabilities for such death, injury or damage arising
therefrom. For this purpose, the excavator/permittee
shall purchase insurance coverage to answer for third
party liability, only the Project Engineer of KC and MWSS
can be held liable for the same accident.
The petition must have to be denied.
Jurisprudence teaches that for liability to arise under
Article 2189 of the Civil Code, ownership of the roads,
streets, bridges, public buildings and other public works,
is not a controlling factor, it being sufficient that a
province, city or municipality has control or supervision
thereof. This, we made clear in City of Manila vs.
Teotico, et al:
At any rate, under Article 2189 of the Civil Code, it is not
necessary for the liability therein established to attach
that the defective roads or streets belong to the
province, city or municipality from which responsibility is
exacted. What said article requires is that the province,
city or municipality have either "control or supervision"
over said street or road. x x x
It is argued, however, that under Section 149, [1][z] of
the Local Government Code, petitioner has control or
supervision only over municipal and not national roads,
like Santolan Road.
Sadly, petitioner failed to take note of the other
provisions of Section 149 of the same Code, more
particularly the following:
Section 149. Powers and Duties. (1) The sangguniang
bayan shall:
(bb) Regulate the drilling and excavation of the ground
for the laying of gas, water, sewer, and other pipes; the
building and repair of tunnels, sewers, drains and other
similar structures; erecting of poles and the use of
crosswalks, curbs and gutters therein, and adopt
measures to ensure public safety against open canals,
manholes, live wires and other similar hazards to life and
property, and provide just compensation or relief for
persons suffering from them; (Underscoring supplied)
Clear it is from the above that the Municipality of San
Juan can regulate the drilling and excavation of the
ground for the laying of gas, water, sewer, and other
pipes within its territorial jurisdiction.
Doubtless, the term regulate found in the aforequoted
provision of Section 149 can only mean that petitioner
municipality exercises the power of control, or, at the
very least, supervision over all excavations for the laying
of gas, water, sewer and other pipes within its territory.
We must emphasize that under paragraph [1][bb] of
Section 149, supra, of the Local Government Code, the
phrases regulate the drilling and excavation of the
ground for the laying of gas, water, sewer, and other
pipes, and adopt measures to ensure public safety
against open canals, manholes, live wires and other
similar hazards to life and property, are not modified by
the term municipal road. And neither can it be fairly
inferred from the same provision of Section 149 that
petitioners power of regulation vis--vis the activities
therein mentioned applies only in cases where such
activities are to be performed in municipal roads. To our
mind, the municipalitys liability for injuries caused by its
failure to regulate the drilling and excavation of the
ground for the laying of gas, water, sewer, and other
pipes, attaches regardless of whether the drilling or
excavation is made on a national or municipal road, for
as long as the same is within its territorial jurisdiction.
We are thus in full accord with the following
pronouncements of the appellate court in the decision
under review:
While it may be true that the Department of Public
Works and Highways may have issued the requisite
permit to the Appellee KC and/or concessionaires for the
excavation on said road, the Appellant San Juan is not
thereby relieved of its liability to [Biglang-awa] for its
own gross negligence. Indeed, Evangeline Alfonso, the
witness for the Appellant San Juan unabashedly [sic]
admitted, when she testified in the Court a quo, that
even if the Department of Public Works and Highways
failed to effect the requisite refilling, the Appellant San
Juan was mandated to undertake the necessary
precautionary measures to avert accidents and insure
the safety of pedestrians and commuters:
xxx
The [petitioner] cannot validly shirk from its obligation to
maintain and insure the safe condition of the road
merely because the permit for the excavation may have
been issued by a government entity or unit other than
the Appellant San Juan or that the excavation may have
been done by a contractor under contract with a public
entity like the Appellee MWSS.
Neither is the [petitioner] relieved of liability based on its
purported lack of knowledge of the excavation and the
condition of the road during the period from May 20,
1988 up to May 30, 1988 when the accident occurred. It
must be borne in mind that the obligation of the
[petitioner] to maintain the safe condition of the road
within its territory is a continuing one which is not
suspended while a street is being repaired
(Corpus Juris Secundum, Municipal Corporations, page 1
20). Knowledge of the condition of the road and the
defects and/or obstructions on the road may be actual
or constructive. It is enough that the authorities should
have known of the aforesaid circumstances in the
exercise of ordinary care
(City of Louiseville versus Harris, 180 Southwestern Rep
orter. page 65). In the present recourse, Santolan Road
and the Greenhills area coming from Ortigas Avenue
going to Pinaglabanan, San Juan, Metro Manila is a busy
thoroughfare. The gaping hole in the middle of the road
of Santolan Road could not have been missed by the
authorities concerned. After all, the [petitioner] San Juan
is mandated to effect a constant and unabated
monitoring of the conditions of the roads to insure the
safety of motorists. Persuasive authority has it that:
It is the duty of the municipal authorities to exercise an
active vigilance over the streets; to see that they are
kept in a reasonably safe condition for public travel.
They cannot fold their arms and shut their eyes and say
they have no notice.
(Todd versus City of Troy, 61 New York 506). (Words in
bracket supplied).
Nor can petitioner seek shelter on Section 8
of Ordinance 82-01 of the Metropolitan Manila
Commission.
Concededly, Section 8 of the Ordinance makes the
permittee/excavator liable for death, injury and/or
damages caused by the non-completion of works and/or
failure of the one undertaking the works to adopt the
required precautionary measures for the protection of
the general public. Significantly, however, nowhere can
it be found in said Ordinance any provision exempting
municipalities in Metro Manila from liabilities caused by
their own negligent acts. Afortiori, nothing prevents this
Court from applying other relevant laws concerning
petitioners liability for the injuries sustained by Biglang-
awa on that fateful rainy evening of 31 May 1988.
WHEREFORE, the instant petition is DENIED and the
assailed decision of the appellate court AFFIRMED. Costs
against petitioner. SO ORDERED.
G.R. No. 171705
EDUARDO VARELA, Petitioner, vs. MA. DAISY
REVALEZ, RAMON BORROMEO,
YOLANDA BARCENILLA, ERNA LOCSIN, GRACE
BARUC, VICENTE MIJARES, JR., LOIDA
TAJONERA, NIRMLA AGNES MARTINEZ, ANALYN
MAYPA, LEMUEL MAYPA, BERDITH GANCETA,
ROGER RAMOS, SUZETTE DE LOS SANTOS, JUDE
JAROPILLO, JOCELYN AZUCENA, VILMA
PABALAN, CHANNIBAL BERJA, JERNEY BARZO,
BRIGIDA MANGUINO, SOL GRACE GUSTILO,
MARILOU AREVALO, LUCILLE ARGONOSO,
MARCOS BACOMO, MELVIN BACOMO, JR.,
MERIAM BULLAG, ZOSIMA DESUYO, MARLENE
BACOMO, EUGENE BALASA, ROY DE ASIS, LOLITA
RUBEN, JOSE DIEZ, MILA DIEZ, JESUS DIEZ,
DONNABEL ALFON, FRANCISCO DERIADA,
ALEJANDRIA PORDIOS, LIGAYA MAGBANUA,
DAISY GORECHO, ANARIEL BACOMO, FRED
DELOTINA, STEPHEN DIPLOMA, MARITES
BACABAC, ARACELI MAHINAY, JULIO OLVIDO,
ANTONIO REBOTON, NENETTE JUMUAD,
ROSEMARIE ALICANTE, AGUSTIN JAVIER, JR.,
LEODY JAVA, NAZARITO PIDO, NENITA BERMEO,
DELILAH FERNANDEZ, WILDABETH LACSON,
CYNTHIA DAZA, ROMMEL DELGADO, FLORITA
GELACIO, ROSALLY LEAL, AILEEN VILLANUEVA,
NINFA BENIGAY, ROSIE PALMA, FERNANDO
DELGADO, ROMULO BARCENILLA, ROBERTO
APIADO, MARIO OLVIDO, BETTY DELA CRUZ,
MARTIN APILADAS, SOLEDAD MAGBANUA, NIDA
VISTAL, FRANCISCO DE LARA, ANTHONY ROCH
ACEVEDO, FELIX RAFOLS, YOLANDA FERNANDEZ,
ERNISTINA ALARCON, EMIE ABANID, LOURY
TOMPONG, MA. FE RAFOLS SIA, YOLANDA
OLVIDO, FIDEL ARROYO, VITALIANO
POBLACION, ZALDY TERENCIO, ROVIC ESCOBA,
JENNIFER CABAHUG, HELEN PAGAY, ARTURO
SALVE, AIDA GOMEZ, andCITY OF CADIZ,
Respondents.
The Case
This is a petition for review on certiorari under Rule 45
of the Rules of Court. The petition challenges the 17
August 2005 Decision[1] and 27 February 2006
Resolution of the Court of Appeals in CA-G.R. CV No.
[2]
73212. The Court of Appeals affirmed with modification
the 20 June 2001 Decision[3] of the Regional Trial Court
(RTC), Negros Occidental, Judicial Region 6, Branch 60,
Cadiz City in Civil Case No. 547-C.
The Facts
Petitioner Eduardo G. Varela (Varela) was the mayor of
Cadiz City. He created a reorganization committee. On
22 September 1998, he submitted to the Sangguniang
Panlungsod of Cadiz City the committees Proposed
Reorganizational Structure and Staffing Pattern of Cadiz
City. On the same day, 22 September 1998, the
Sangguniang Panlungsod approved without modification
and without hearing the proposal. The Sangguniang
Panlungsod passed Resolution No. 98-112 authorizing
and appropriating funds for the reorganization of the city
government. Resolution No. 98-112 declared all
positions in the city government vacant, except elective
positions and positions in the city and assistant city
treasurer. On 15 October 1998, Varela signed Resolution
No. 98-112.
On 10 November 1998, Varela gave notices of
termination to the city government employees,
informing them that their employment would end at the
close of business hours on 31 December 1998. The
employees opposed and questioned the legality of
Resolution No. 98-112. Varela ignored them.
Varela created a placement committee with City
Administrator Philip G. Zamora, Delina, Negosa, Jimmy
Navarro, Jerry Batislaon and Napud as members. The
committee allegedly met three times.
On 31 December 1998, Varela again gave notices of
termination to the city government employees,
informing them that their employment would end at the
close of business hours on 31 December 1998. On 4
January 1999, the employees tried to report for work
but were barred from entering their offices.
Among those laid off was Community Affairs Officer IV
Ramon Borromeo (Borromeo). His department, the
special services department, was replaced by the
community and barangay affairs division. The head of
the community and barangay affairs division performed
the same functions as the head of the special services
department. Three new positions were created in the
community and barangay affairs division. The three new
positions were given to Oscar Magbanua (Magbanua),
Moises Seoren (Seoren), and Santos Ortega
(Ortega). Magbanua, Seoren and Ortega were political
supporters of Varela and defeated barangay captain
candidates.
Around half of the 101 employees of the city health
department were laid off. Those laid off were the same
ones who filed a case, involving the magna carta for
health workers, against Varela. They were also
perceived not to have voted for Varela as mayor.
On 12 January 1999, Ma. Daisy G. Revalez and 40 other
city government employees filed with the RTC a
complaint[4] against Varela for the declaration of nullity
of Resolution No. 98-112 and for damages. In a
motion[5] dated 29 January 1999, 47 other city
government employees intervened. In the complaint, the
employees stated that, due to the illegal acts of the
Defendant, Plaintiffs suffered mental torture and
anguish, sleepless nights, wounded feelings, besmirched
reputation and social humiliation.[6]
The RTCs Ruling
In its 20 June 2001 Decision, the RTC declared
Resolution No. 98-112 void and ordered Varela to pay
the government employees P10,000 each for moral
damages, P200,000 attorneys fees, P20,000 litigation
expenses, and court appearance fees at P3,000 per
hearing. The RTC found that Varela acted in bad
faith. The Court held:
There is no question that the
Sangguniang Panlungsod of Cadiz City is
the legislative arm of the local
government unit and as such it
possesses the power to enact the
questioned resolution. Plaintiffs however
challenge the manner Res. 98-112 was
enacted, and the indecent haste that
accompanied its passage. The proposal
emanated from the office of defendant
mayor and in a short time after its
submission the measure was
passed. The requisite deliberations, if at
all there was one, could hardly be
considered adequate and could best be
described as perfunctory. The minutes
of the SP say it all. The deliberations
reflected a lackluster effort and a
wimpish attempt by the members of the
Sangguniang Panlungsod to justify the
grant to the mayor of legislative
authority to carry out the
reorganization. There absolutely was no
public hearing. The proposal coming
as it did from the mayor, was a fait
accompli, a done deal in a manner
of speaking. x x x
xxxx
Careful examination of the
evidence submitted by the
defendant, however, would reveal
a systematic effort to purge the
city government of personnel who
opposed the mayor politically, or
disagreed with him in his
policies. Furthermore, perusal of the
 minutes of the deliberations of the
Sangguniang Panlungsod reveals that
the City of Cadiz was not in dire
financial straits necessitating radical
measures like mass lay-off of
personnel. x x x
Community and Barangay Affairs Unit?
x x x The City of Cadiz as of 1998,
was not in financial extremis. It
had the money, the resources to
fund the salaries of personnel. x x
x [Varela] even ignored the concern
of a city councilor who said that at
that time (1998) the City already
lacked the required personnel, and
so why abolish certain
positions? The defendant mayor
simply gave the assurance that
they can create any position when
the need arises and the city has the
money. This statement betrayed
the real intentions of the defendant
insofar as the reorganization is
concerned.
Magbanua, Moises Seoren, and Santos Ortega.
x x x The Mayor did not even explain
what basic services would be
affected. As a matter of fact, the office
hardest hit and greatly affected by the
mass layoff was the health services
department where 50 or so of the 101
personnel complement were laid
off. Does it mean that the delivery of
health services is the least of the
priorities of Cadiz City? Or does it mean
that health service from the point of
view of the defendant city mayor is not
a basic service? The truth of the matter
is that the health workers of Cadiz
filed a case against the mayor for
his refusal to implement provisions
of the Magna Carta for Health
Workers. Talk of
vindictiveness. The poor health
workers laid off were on the
receiving end of the ire of the
defendant mayor. There seemed to
be no rhyme or reason to the
reorganization scheme.
xxxx
Was the reorganization of the Cadiz City
government under Res. 98-112, done in good
faith? The testimony of Ramon Borromeo, which is
uncontradicted, will show the true intent of the
reorganization, and whether or not it was done in
good faith:
Q: (Atty. Lobrido) What about your
position, Mr. Witness?
A: My position as Community Affairs
Officer was abolished but instead an
Executive Assistant IV was made under
theDivision Head of the Community and
Barangay Affairs Division.
Q What is the function of the
A It performs the same function as that
of the Community Affairs Unit of which I
am the Division Head as Community
Affairs Officer IV.
Q Considering that you were laid off
who took over your function?
A The Executive Assistant IV, but
considering that the position is
coterminous with that of the mayor,
the appointment of Executive Assistant
IV was disapproved by the Civil Service
Commission as head of the Community
Affairs Unit and the present situation as
of now is that the community
Affairs and Barangay Unit is without a
division head and that three new
positions were created.
Q Who were appointed to the three
new positions you mentioned
a while ago?
A Those appointed are Oscar
Q Why do you know these three
persons?
A Because they are supporters of the
defendant city mayor and also because
they are barangay captains who were
defeated in the last barangay
elections. (TSN-Cerbo, pp. 8-10, May 3,
2000).
From the afore-quoted testimony it is
clear that the abolition of the office
of Mr. Borromeo in the guise of
reorganization was not done in
good faith. The abolition was done
for political reasons, (Arao vs. Luspo,
L-23982, July 21, 1967, 20 SCRA
722). As stated in Urgello, if the
abolition merely resulted in placing
another person or appointee with a
different designation or name but
substantially the same duties, then it
will be considered a device to unseat
the incumbent. Clearly the
reorganization is not genuine and it is
nothing but a ruse to defeat the
constitutionally protected right of
security of tenure.
xxxx
Since all the offices of the personnel of
Cadiz City were declared vacant, and
notices of initial termination sent on
November 10, 1998, the placement
Committee barely had twenty (20) days
to submit a final report to defendant
mayor. With 741 personnel to be
reevaluated and screened, plus other
new applicants, the committee did not
have enough time to do their work as
envisioned. The Committee had to
screen and evaluate all applications to
about 649 positions included in the new
plantilla. Notwithstanding time
constraints, the Committee did not meet
until November 17, barely two (2)
weeks from their deadline. Subsequently
they met three (3) times. On their first
meeting, the report states, the
meeting on November 19, 1998?
placement Committee merely agreed to
ask the defendant mayor to turn over to
the Committee all the application
letters. Nothing by way of screening or
evaluation was done that day. On the
second meeting November 18, the
applications were lumped in bundles or
files, and segregated by
department. Then they suggested to
borrow the qualification standards from
the Human Resource Management
Office. Due to time constraints, it was
suggested that the screening should
start immediately, and they agreed to
meet November 19, 1998. As of the
second meeting the screening and
evaluation had barely began. On
November 19, 1998 the committee met
with Mr. Zamora suggesting that
qualification standards be used mainly
eligibility performance rating, education
and attainment, experience and awards
and training received. Mr. Napud
suggested that the department heads
be interviewed. As of November 19, the
committee had not started its
deliberations and screening, but lo and
behold Mr. Zamora came up with a
complete list in time for the last
meeting. On November 29, 1998, Mr.
Zamora presented to the members of
the committee the list of employees
selected by the Placement
Committee. Then the list was submitted
to the mayor. These were reflected in
Minutes of the meeting of the Placement
Committee.
On the other hand, what did Mr. Zamora
say about the deliberations of the
Placement Committee in his capacity as
chairman. His testimony is very
instructive.
Q (Atty. Lobrido) And when was the
first meeting?
A I think November 17, 1998.
Q What transpired during the first
meeting?
A I cannot remember.
xxx xxx
Q After November 18, 1998 meeting,
was there other meeting of the
placement committee?
A Yes, sir.
Q When was that?
A On November 19, 1998.
Q And what transpired during that
A I cannot remember.
It seems incredulous that Mr. Philip
Zamora, designated to represent
defendant mayor, would not be able to
recall what transpired during the
deliberations of the placement
committee. Unless it is shown that Mr.
Zamora suffered severe bouts of
amnesia, it would be the height of
tomfoolery to accept that he would not
be able to recall the significant
highlights of the meetings. Which can
only lead this Court to the inescapable
conclusion that the minutes (Exhibits 15
to 15-C) were fabricated and contrived,
and done after the fact. x x x
x x x Why would Philip Zamora present
a list of employees selected to members
of the Placement Committee and tell
them this is the result of their
evaluation? Were not the members of
the committee the ones who evaluated
and selected the employees? The logical
manner that should have taken place
would be that the committee members
themselves would submit the list to the
chairman telling him that this was the
result of their evaluation and screening
and they were ready to submit the list
to the mayor. As it appears the list was
a done deal, a fait accompli, and the
members were merely told to put their
imprimatur to it. The truth of matter
however, as can be gleaned from Mr.
Zamoras testimony, is that no meetings
were ever conducted by the placement
committee. Which explains Mr. Zamoras
memory lapses.Nothing of the sort
happened. What happened was that the
minutes were hastily produced as an
afterthought and later passed on as the
real thing. The entire proceedings
 was [sic] a sham, a rigmarole damages in the performance of their
intended to put a stamp of [sic] duties, to quote:
legitimacy to what otherwise was a
well calculated, well planned A public official is by law
scheme to rid Cadiz City of not immune from
employees who were the political damages in his personal
opponents of the defendant capacity for acts done in
mayor. The ploy was to use the law as bad faith which, being
a subterfuge to defeat the security of outside the scope of his
tenure clause of the constitution. On top authority, are no longer
of this masquerade, the defendant protected by the mantle
city mayor did not show any of immunity for official
compunction or any hesitation to actions.
ram the reorganization down the
throats of plaintiffs who resisted Settled is the principle
the move and they actually that a public official may
complained. He did not give them be liable in his personal
the benefit of the doubt, nor capacity for whatever
listened to their plea for justice. He damage he may have
simply ran roughshod over all of caused by his act done
them discarding any pretense to with malice and in bad
uphold due process of law. It was faith or beyond the
shocking no less to the 166 scope of his authority or
plaintiffs who jurisdiction.
become [sic] sacrificial lambs in the
altar of political convenience and In addition, Book I, Chapter 9 of the
expediency. This is anathema in a Administrative Code of 1987 provides, to
democratic system where the rule of law quote:
reigns supreme.[7] (Emphasis supplied)
Section 38. Liability of
Cadiz City Chief Executive Salvador G. Escalante, Jr., Superior Officers. (1) A
through the Office of the City Legal Officer, filed with the public officer shall not
RTC a motion[8]to clarify who between Varela, in his be civilly liable for acts
personal capacity, and Cadiz City was liable for the done in the
payment of moral damages, attorneys fees, litigation performance of his
expenses and court appearance fees. In its 26 July 2001 official duties, unless
Order,[9] the RTC held that, it is the municipal there is a clear showing
corporation which is liable for the acts of its officers of bad faith, malice or
committed while in the performance of official duties.[10] gross negligence. x x x

Cadiz City, through the Office of the City Legal Officer,
appealed to the Court of Appeals.
The Court of Appeals Ruling
In its 17 August 2005 Decision, the Court of Appeals
affirmed with modification the RTCs 20 June 2001
Decision. The Court of Appeals held that Varela was
personally liable for the payment of moral damages,
attorneys fees, litigation expenses and court appearance
fees. It reduced the amounts of attorneys fees and
litigation expenses from P200,000 to P100,000 and
from P20,000 to P10,000, respectively, and deleted the
award of court appearance fees. The Court of Appeals
held that:
OUR jurisprudence is replete with cases
involving the issue of whether or not a
public officer may be held liable for
In the case at bar, the court a quo
found that bad faith attended the
performance of the official acts of the
original defendant, Eduardo G. Varela. x
xx
WE find no reason to disturb the finding
of bad faith by the court a quo
considering that the same was amply
supported by evidence.[11]
Hence, the present petition.
The Issue
Varela raises as issue that, THE HONORABLE COURT OF
APPEALS ERRED IN HOLDING THE PETITIONER
PERSONALLY LIABLE FOR THE PAYMENT OF DAMAGES,
ATTORNEYS FEES AND LITIGATION EXPENSES AS THE
PETITIONER WAS SUED IN HIS OFFICIAL, AND NOT IN
HIS PERSONAL CAPACITY.[12] Varela states that:
All the proceedings in the lower court
show beyond question that the
petitioner was charged in his official
capacity as then mayor of the real party-
defendant, the respondent City of Capiz.
This is expressly shown by the very title,
caption and allegations of private
respondents complaint dated January
12, 1999. The fact that petitioner was
sued in his representative and official
capacity was not contested, and, in fact,
admitted by the parties.[13]
The Courts Ruling
The petition is unmeritorious.
Varela was sued in his personal capacity, not in his
official capacity. In the complaint, the employees stated
that, due to the illegal acts of the Defendant, Plaintiffs
suffered mental torture and anguish, sleepless nights,
wounded feelings, besmirched reputation and social
humiliation. The State can never be the author of illegal
acts.
The complaint merely identified Varela as the mayor of
Cadiz City. It did not categorically state that Varela was
being sued in his official capacity. The identification and
mention of Varela as the mayor of Cadiz City did not
automatically transform the action into one against
Varela in his official capacity. The allegations in the
complaint determine the nature of the cause of action.
In Pascual v. Beltran,[14] the Court held that:
[I]n the case at bar, petitioner is
actually sued in his personal
capacity inasmuch as his principal,
the State, can never be the author
of any wrongful act. The Complaint
filed by the private respondent
with the RTC merely identified
petitioner as Director of the
Telecommunications Office, but did
not categorically state that he was
being sued in his official
capacity. The mere mention in the
Complaint of the petitioners
position as Regional Director of the
Telecommunications Office does
not transform the action into one
against petitioner in his official
capacity. What is determinative of
the nature of the cause of action
are the allegations in the
complaint. It is settled that the nature
of a cause of action is determined by
the facts alleged in the complaint as
constituting the cause of action. The
purpose of an action or suit and the law
to govern it is to be determined not by
the claim of the party filling [sic] the
action, made in his argument or brief,
but rather by the complaint itself, its
allegations and prayer for
relief.[15] (Emphasis supplied)
WHEREFORE, the Court DENIES the petition. The
Court AFFIRMS the 17 August 2005 Decision and 27
February 2006 Resolution of the Court of Appeals in CA-
G.R. CV No. 73212.
G.R. No. 73928 August 31, 1987
JOSE E. GENSON, petitioner, vs. SPS. EDUARDO
ADARLE and SHERLITA MARI-ON, and
INTERMEDIATE APPELLATE COURT, respondents.
This is a Petition for review which seeks to set aside the
decision in CA-G.R. No. 00783 on the ground that the
findings of the respondent Court of Appeals are based
on misapprehension of facts and conflict with those of
the trial court and that the conclusions drawn therefrom
are based on speculations and conjectures.
Arturo Arbatin was the successful bidder in the sale at
public auction of junk and other unserviceable
government property located at the compound of the
Highway District Engineer's Office of Roxas City. Private
respondent Eduardo Adarle was hired as a laborer by
Arbatin to gather and take away scrap iron from the said
compound with a daily wage of P12.00 or about 312.00
a month.
On September 8, 1979, at 4:00 o'clock in the morning,
on a Saturday and a non-working day, while the private
respondent was tying a cable to a pile of scrap iron to
be loaded on a truck inside the premises of the
compound, and while the bucket of the payloader driven
by Ramon Buensalido was being raised, the bucket
suddenly fell and hit Adarle on the right back portion of
his head just below the nape of his neck. Adarle was
rushed to the St. Anthony Hospital, Roxas City.
According to the medical certificate issued by the
attending physician, the private respondent suffered the
following injuries:
1) Comminuted fracture of the vertebral body of
13 with extreme Kyphosis of the segment by x-ray.
 2) Cord compression 2nd to the injury with
paralysis of the lower extremity, inability to
defecate and urinate. (E Exh. A, Exhibits for the
plaintiff-appellant, Original Records.)
The medical certificate also reported that:
The patient recovered the use of his urinary
bladder and was able to defecate 2 months after
surgery. He is paralyzed from the knee down to
his toes. He can only sit on a wheel chair. The
above residual damage is permanent 2nd to the
injury incurred by Mr. Adarle, he is still confined
in the Hospital. (idem)
While still in the hospital, the private respondent
instituted the action below for damages against Arbatin,
his employer; Buensalido, the payloader operator;
Candelario Marcelino, the civil engineer; and petitioner,
the Highway District Engineer.
During the trial on the merits, the petitioner put up the
defense that he had no knowledge of or participation in
the accident and that, when it happened, he was not
present in the government compound. Apart from the
fact that it was a Saturday and a non-working day, he
was in Iloilo. As part of his evidence, the petitioner
presented a memorandum directed to a certain Mr.
Orlando Panaguiton ordering the latter to take charge of
the district until his return (Exh. 1).
The trial court found that, with the exception of the
petitioner, all of the defendants were present at the
Highway's compound when the accident occurred.
However, it still adjudged the petitioner liable for
damages because the petitioner was supposed to know
what his men do with their government equipment
within an area under his supervision.
Thus, on January 19, 1982, the trial court rendered a
decision finding all the defendants liable for damages
under Articles 1172 and 2176 of the New Civil Code. The
dispositive portion of the decision reads:
WHEREFORE, this court orders the defendants
to pay to plaintiff the amounts stated in the
complainant's prayer as follows:
Ordering the defendants jointly and severally to
pay the plaintiff the sum of 312.00 monthly from
September 8, 1979 until his release from the
hospital.
Ordering the defendants jointly and severally to
pay the plaintiff the sum of P7,410.63 for
hospital expenses up to January 14, 1980 and
an additional amount for further hospitalization
until the release of plaintiff from the hospital;
Ordering the defendants jointly and severally to
pay the plaintiff the sum of at least P100,000.00
as actual and compensatory damages,
considering that plaintiff Eduardo Adarle is
totally incapacitated for any employment for life;
Ordering the defendants jointly and severally to
pay the plaintiff the sum of P20,000.00 as moral
damages and another sum for exemplary
damages which we leave to the sound discretion
of the Honorable Court;
Ordering the defendants jointly and severally to
pay the plaintiff the sum of P5,000.00 as
attorney's fees. (pp. 129- 130, Original
Records).
The petitioner appealed to the Intermediate Appellate
Court which affirmed the decision of the trial court and
further ordered the defendants to pay P5,000.00
exemplary damages. Defendant Candelario Marcelino
was, however, absolved from liability.
In its decision, the appellate court ruled:
That payloader owned by the Government, as
found by the lower court, should not have been
operated that Saturday, September 8, 1979, a
Saturday, a non-working holiday. There is no
official order from the proper authorities
authorizing Arbatin and plaintiff to work and
Buensalido to operate the payloader on that day
inside the Highway compound. Thereabouts, we
can logically deduce that Arbatin and plaintiff
went to the compound to work with the previous
knowledge and consent of Highway District
Engineer Jose E. Genson. And allowed him,
probably upon the request of Arbatin. We have
noted that Genson testified that his office does
not authorize work on Saturdays.
Genson testified that he was in Iloilo from
September 9 and 10, 1979. The accident
occurred on September 8, in the morning. In his
answer, Genson did not allege his presence in
Iloilo on September 9 and 10 ... .
We fully concur with the lower court's
conclusions regarding the physical presence of
appellants inside the compound on that fateful
day, pursuant to a previous understanding with
Arbatin for plaintiff to work on the scrap iron
and for Buensalido to operate the payloader
inside the compound. Arbatin and plaintiff would
not go to the compound on that Saturday, if
there was no previous understanding with
Genson and Buensalido.
 The liability of Genson is based on fault,
intentional and voluntary or negligent (Eleano v.
Hill, 77 SCRA 106; Jimena v. Lincallo, 63 O.G.
11,15, 8 C. A.R. 2567). He gave permission to
Arbatin, plaintiff and Buensalido to work on
Saturday, a non-working day, in contravention
of his office' rules and regulations outlawing
work on Saturdays.. (pp. 29-30, Rollo)
In this present petition, the petitioner contends that the
appellate court committed a palpable error when it ruled
that the petitioner was present when the accident
happened and that he had given permission to the other
defendants to work on a Saturday, a non-working day.
The petitioner argues that considering these were the
facts relied upon by the said court in holding that he was
negligent and thus liable for damages, such a
conclusion, is without basis.
The petitioner further contends that the appellate court
erred in not holding that the suit against the petitioner
was, in effect, a suit against the government and,
therefore, should be dismissed under the principle of
non-suability of the state.
As regards the petitioner's second contention, we hold
that the petitioner's Identification as the Highway
District Engineer in the complaint filed by the private
respondent did not result in the said complaint's
becoming a suit against the government or state.
In Belizar v. Brazas, (2 SCRA 526), we ruled that "the
fact that the duties and positions of the defendants are
indicated does not mean that they are being sued in
their official capacities, especially as the present action is
not one against the Government." Furthermore, the
accident in the case at bar happened on a non-working
day and there was no showing that the work performed
on that day was authorized by the government. While
the equipment used belongs to the Government, the
work was private in nature, for the benefit of a
purchaser of junk. As we have held in the case
of Republic v. Palacio (23 SCRA 899,906).
xxx xxx xxx
the ISU liability thus arose from tort and not
from contract, and it is a well-entrenched rule in
this jurisdiction, embodied in Article 2180 of the
Civil Code of the Philippines, that the State is
liable only for torts caused by its special agents,
specially commissioned to carry out the acts
complained of outside of such agent's regular
duties (Merritt v. Insular Government, supra;
Rosete v. Auditor General, 81 Phil. 453) There
being no proof that the making of the tortious
inducement was authorized, neither the State
nor its funds can be made liable therefor.
Therefore, the defense of the petitioner that he cannot
be made liable under the principle of non-suability of the
state cannot be sustained.
With regard to the main contention of the petitioner that
the appellate court based its conclusions on an
erroneous finding of fact, we agree with him that the
appellate court's finding that he was present within the
premises when the accident happened is not supported
by evidence indisputably showing that he was indeed
there.
Since the evidence fails to establish petitioner Genson's
presence when the payloader's bucket fell on the head
of Mr. Adarle, any liability on his part would be based
only on his alleged failure to exercise proper supervision
over his subordinates (See Umali v. Bacani, 69 SCRA
263, 267-268).
According to the trial court, Mr. Genson authorized work
on a Saturday when no work was supposed to be done.
It stated that the petitioner should know what his men
do with their government equipment and he should
neither be lax nor lenient in his supervision over them.
The petitioner contends that:
1. No evidence on record exists that Genson
gave authority to Adarle and Arbatin, either
verbally or in writing, to enter the work inside
the Highways Compound on September 8, 1979;
2. Genson never knew or met Arbatin until the
trial of the case. This fact was never denied by
Arbatin nor rebutted by Adarle. How then could
Genson have ordered or allowed Arbatin to
enter the Highways Compound with Adarle?
3. Adarle himself repeatedly admitted that
Arbatin, his employer, gave him the instructions
to enter the compound, thus:
Q. Now particularly on September 8, 1979,
did Arbatin ask you to go to the compound in the
Highway?
A. Yes sr.
Q. Are you sure of that?
A. Yes, sir.
Q. Where did he say that to you?
A. We went to the Highway compound for many
times already and that was the time when I met
the incident.
Q. The particular day in question September 8.
1979, did you see Arturo Arbatin and he asked
you to go the compound on that day?
A. That date was included on the first day when
"he instructed us to gather scrap iron until that
work could be finished." (pp. 25-26, tsn., October
10, 1980) (Emphasis supplied)
Q. Who told you to work there?
 A. "Through the instruction of Arturo Arbatin" (pp.
32, tsn., Oct. 10, 1980) (Emphasis supplied) (pp.
12-13, Rollo).
Insofar as work on a Saturday is concerned, and
assuming Mr. Genson verbally allowed it, we see nothing
wrong in the petitioner's authorizing work on that day.
As a matter of fact, it could even be required that the
hauling of junk and unserviceable equipment sold at
public auction must be done on non-working days. The
regular work of the District Engineer's office would not
be disturbed or prejudiced by a private bidder bringing
in his trucks and obstructing the smooth flow of traffic
and the daily routine within the compound. Obviously, it
would also be safer for all concerned to effect the
clearing of the junk pile when everything is peaceful and
quiet.
There is no showing from the records that it is against
regulations to use government cranes and payloaders to
load items sold at public auction on the trucks of the
winning bidder. The items were formerly government
property. Unless the contract specifies otherwise, it may
be presumed that all the parties were in agreement
regarding the use of equipment already there for that
purpose. Of course, it would be different if the junk pile
is in a compound where there is no equipment for
loading or unloading and the cranes or payloaders have
to be brought there.
There is likewise no sufficient basis for the "master-
servant" doctrine in tort law to apply. Buensalido was
not working overtime as a government employee. It is
doubtful if the district engineer can be considered an
"employer" for purposes of tort liability who may be
liable even if he was not there. No evidence was
presented to show that an application for overtime work
or a claim for overtime pay from the district engineer's
office was ever filed. It is more logical to presume that
Buensalido, the operator of the payloader, was trying to
earn a little money on the side from the junk buyer and
that his presence in the compound on that Saturday was
a purely private arrangement. From the records of this
case, we are not disposed to rule that a supervisor who
tolerates his subordinates to moonlight on a non-
working day in their office premises can be held liable
for everything that happens on that day. It would have
been preferable if Mr. Arbatin brought his own payloader
operator and perhaps, his own equipment but we are
not dealing with sound office practice in this case. The
issue before us is subsidiary liability for tort comitted by
a government employee who is moonlighting on a non-
working day.
This Court ruled in Dumlao v. Court of Appeals (114
SCRA 247, 251):
Nevertheless, it is a well-settled principle of law
that a public official may be liable in his personal
private capacity for whatever damage he may
have caused by his act done with malice and in
bad faith, (Mindanao realty Corp. v. Kintanar, 6
SCRA 814) or beyond the scope of his authority
or jurisdiction. (the Philippine Racing Club v.
Bonifacio, G.R. No. L-11844, August 31, 1960)
The question, therefore, is whether petitioner
did act in any of the manner aforesaid.
Petitioner contends that, contrary to the holding
of the respondent Court of Appeals, he was not
sued in his personal capacity, but in his official
capacity. Neither was malice or bad faith alleged
against him in the complaint, much less proven
by the evidence, as the respondent court made
no such finding of malice or bad faith.
Examining the allegations of the complaint and
reviewing the evidence it would indeed be
correct to say that petitioner was sued in his
official capacity, and that the most that was
imputed to him is act of culpable neglect,
inefficiency and gross indifference in the
performance of his official duties. Verily, this is
not imputation of bad faith or malice, and what
is more was not convincingly proven.
According to the respondent court, "Genson and
Buensalido divested themselves of their public positions
and privileges to accomodate an acquaintance or
probably for inordinate gain." (p. 31, Rollo).
There is no showing from the records that Genson
received anything which could be called "inordinate
gain." It is possible that he permitted work on a
Saturday to accomodate an acquaintance but it is more
plausible that he simply wanted to clear his compound
of junk and the best time for the winning bidder to do it
was on a non-working day.
At any rate, we see no malice, bad faith, or gross
negligence on the part of Genson to hold him liable for
the acts of Buensalido and Arbatin.
WHEREFORE, the decision of the Intermediate Appellate
Court is hereby REVERSED and SET ASIDE. The
complaint against Jesus Genson is DISMISSED. SO
ORDERED.
**NATURE OF LIABILITY: JOINT OR SOLIDARY?
G.R. No. L-53064 September 25, 1980
FELIX LANUZO, plaintiff-appellee, vs. SY BON PING
and SALVADOR MENDOZA, defendants-appellants
Appeal certified to Us by the Court of Appeals 1
as it
involves pure legal questions.
On November 25, 1969, a Complaint for damages was
instituted in the Court of First Instance of Camarines Sur
(Civil Case No. 6847) by plaintiff Felix Lanuzo against Sy
Bon Ping, the owner and operator of a freight truck
bearing Plate No. T-57266, and his driver, Salvador
Mendoza. As alleged therein, at about five o'clock in the
afternoon of July 24, 1969, while Salvador Mendoza was
driving the truck along the national highway in the
Barrio of San Ramon, Nabua, Camarines Sur, and
because of his reckless negligence, we rammed into the
residential house and store of plaintiff. As a result, the
house and store were completely razed to the ground
causing damage to plaintiff in the total amount of
P13,000.00. Plaintiff averred that by reason thereof he
became destitute as he lost his means of livelihood from
the store which used to give him a monthly income of
P300.00.
The defendants moved to dismiss on the ground that
another action, Criminal Case No. 4250 for Damage to
Property through Reckless Imprudence, was pending in
the Municipal Court of Nabua, Camarines Sur, between
the same parties for the same cause. Plaintiff opposed
the dismissal stressing that he had made an express
reservation in the criminal case to institute a civil action
for damages separate and distinct from the criminal suit.
The lower Court denied the Motion to Dismiss for lack of
merit.
On August 13, 1970, the trial Court rendered a default
judgment in plaintiff's favor, the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered (a)
ordering the defendants to pay jointly and
severally the amount of P13,000.00 as damages,
resulting to the loss of the store including the
merchandise for sale therein, the residential
house of mixed materials, furnitures, clothing
and households fixtures; (b) ordering the said
defendants to pay jointly and severally P300.00
monthly from July 24, 1969 which represents
plaintiff's monthly income from his store until
the whole amount of P13,000.00 is fully paid;
and (c) for attorney's fees an amount equivalent
to 20% of the total amount claimed by the
plaintiff, plus the costs of this suit.
Defendants' "Motion for Reconsideration and/or New
Trial and To Set Aside Order of Default" was denied.
Upon elevation by the defendants of the case to the
Court of Appeals (CA-G.R. No. 48399-R) they urged that
the civil action was prematurely instituted in view of
Rule 111, section 3, providing in part that "after the
criminal action has been commenced the civil action
cannot be instituted until final judgment has been
rendered in the criminal action." Additionally, they
contended that even assuming their liability, the lower
Court nevertheless committed an error in holding them
jointly and severally liable.
On February 20, 1980, the Court of Appeals certified the
case to this instance on pure questions of law.
We start from the fundamental premise, clearly
enunciated as early as the case of Barredo vs. Garcia, et
al., 2 that:
A distinction exists between the civil liability
arising from a crime and the responsibility
for cuasi-delitos or culpa-extracontractual. 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
extracontractual under articles 1902-1910 of the
Civil Code. Plaintiffs were free to choose which
remedy to enforce.
Plaintiff's reservation before the Municipal Court in the
criminal case of his right to institute a civil action
separately is quoted hereunder in full:
UNDERSIGNED offended party in the above-
entitled case before this Honorable Court
respectfully alleges:
1. That this action which was commenced by
the Chief of Police included in the complaint the
claim of the undersigned for civil liability;
2. That the undersigned is reserving his right to
institute the civil action for damages, docketed
as Civil Case No. 6847 of the Court of First
Instance of Camarines Sur, against accused
herein and his employer;
WHEREFORE, it is respectfully prayed that
reservation be made of record therein and that
the civil aspect of the above-entitled case be not
included herein.
xxx xxx xxx 3
The terms of plaintiff's reservation clearly and
unmistakably make out a case for quasi-delict. This is
also evident from the recitals in plaintiff's Complaint
averring the employer-employee relationship between
the appellants, alleging that damages to the house and
store were caused by the fact that Salvador Mendoza
had driven the truck "recklessly, with gross negligence
and imprudence, without observance of traffic rules and
regulations and without regard to the safety of persons
and property", and praying that appellants be held
jointly and solidarity liable for damages. These are,
basically, what should be alleged in actions based on
quasi-delict. 4
As it is quite apparent that plaintiff had predicated his
present claim for damages on quasi-delict, he is not
barred from proceeding with this independent civil suit.
The institution of a criminal action cannot have the
effect of interrupting the civil action based on quasi-
delict. 5 And the separate civil action for quasi-delict may
proceed independently and regardless of the result of
the criminal case, 6 except that a plaintiff cannot recover
damages twice for the same act or commission of the
defendant. 7
The civil action referred to in Sections 3(a) and (b) of
Rule 111 of the Rules of Court, which should be
suspended after the institution of the criminal action, is
that arising from delict, and not the civil action based
on quasi-delict or culpa aquiliana.
We come now to the subject of liability of the appellants
herein. For his own negligence in recklessly driving the
truck owned and operated by his employer, the driver,
Salvador Mendoza, is primarily liable under Article 2176
of the Civil Code. On the other hand, the liability of his
employer, Sy Bon Ping, is also primary and direct under
Article 2180 of the same Code, which explicitly provides:
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.
For failure of the appellant Sy Bon Ping to rebut the
legal presumption of his negligence in the selection and
supervision of this employee, 8 he is likewise responsible
for the damages caused by the negligent act of his
employee (driver) Salvador Mendoza, and his liability is
primary and solidary.
... What needs only to be alleged under the
aforequoted provision (Article 2180, Civil Code)
is that the employee (driver) has, by his
negligence (quasi-delict) caused damage to
make the employer, likewise, responsible for the
tortious act of the employee, and his liability is,
as earlier observed, primary and solidary 9
But although the employer is solidarity liable with the
employee for damages, the employer may demand
reimbursement from his employee (driver) for whatever
amount the employer will have to pay the offended
party to satisfy the latter's claim. 10
WHEREFORE, the appealed decision is hereby affirmed.
Costs against defendants-appellants. SO ORDERED.
G.R. No. L-27730 January 21, 1974
PRIMA MALIPOL, in her own behalf and as
guardian ad litem of her minor children, LYDIA
MALIJAN, JOSEFINA MALIJAN, TEODORA
MALIJAN, and SEBASTIAN MALIJAN, plaintiffs-
appellees, vs. LILY LIM TAN and ERNESTO
LABSAN, defendants-appellants.
Appeal on questions of law from the decision dated July
1, 1966, a judgment by default, and from the order
dated October 10, 1966, of the Court of First Instance of
Batangas in its Civil Case No. 1732 which denied
defendants-appellants' motion to lift the order of default
and for a new trial and which considered the judgment
by default as standing with full force and effect.
In the evening of February 6, 1965, at about 8:35
o'clock, Pantaleon Malijan, who was walking with his
companion Leonardo Amante on the shoulder of the
road in Barrio San Felix, Sto. Tomas, Batangas, was hit
by a gasoline tanker and was thrown to the ground.
While he was sprawling on the ground Malijan was run
over by the tanker's right wheel that got detached from
its axle. Malijan's companion, with the aid of the barrio
captain, brought Malijan to the San Pablo City Hospital
where he died that same night, the cause of death being
"possible traumatic cerebral hemorrhage due to
vehicular accident."
The gasoline tanker with Plate No. T-52573, series of
1964, driven at the time of the accident by herein
appellant Ernesto Labsan, was being used in connection
with the gasoline business of the owner, the herein
appellant Lily Lim Tan.
Representations and demands for payment of damage
having been ignored by appellants, appellees filed on
May 18, 1966 a complaint in the Court of First Instance
of Batangas praying that appellants be condemned to
pay, jointly and severally, the damages as specified in
said complaint. The appellees are the mother and the
minor brothers and sisters of the deceased Pantaleon
Malijan.
Appellants were duly served with summons on May 19,
1966, but they failed to file their answer within the
reglementary period. Upon appellees' motion of June 8,
1966 the trial court, in an order dated June 10, 1966,
declare the appellants in default, and appellees were
permitted to present their evidence in the absence of
the appellants. The trial court rendered a decision, dated
July 1, 1966, the dispositive portion of which reads as
follows:
WHEREFORE, finding the averments in
the complaint as supported by the
evidence to be reasonable and justified,
judgment is hereby rendered in favor of
the plaintiffs and against the
defendants. The defendant driver,
Ernesto Labsan, is ordered (1) to pay
the sum of P2,100.00 to the plaintiffs for
expenses for hospitalization, medical
treatment, vigil and burial of Pantaleon
Malijan; (2) to pay to the plaintiffs the
sum of P6,000.00 for the death of said
victim; (3) to pay to the plaintiffs the
sum of P20,000.00 for the loss of
earnings of said deceased for a period
of five years; (4) to pay to the plaintiffs
the sum of P5,000.00 for moral
damages; (5) to pay to the plaintiffs the
sum of P2,000.00 for attorney's fees
and P500.00 for incidental and litigation
expenses; and (6) to pay the costs of
the suit. Should Ernesto Labsan not be
able to pay the foregoing damages, they
shall be paid for by defendant Lily Lim
Tan, who by law, being the owner and
operator of the gasoline tanker that
featured in the accident, is subsidiarily
liable.
Copy of the decision was received by the appellees
August on 23, 1966.
A motion for execution was filed on August 26, 1966 by
appellees but the trial court held its resolution in
abeyance until September 22, 1966 when the judgment
would become final.
On September 21, 1966 appellants filed a verified
motion to lift the order of default and for a new trial,
alleging that they were deprived of their day in court
when the order of default was issued and a decision
rendered after; that they had good and valid defenses,
namely: (a) that the accident which gave rise to the
case was due to force majeure; (b) that appellant
Ernesto Labsan was without fault in the accident that
gave rise to the case; and (c) that appellant Lily Lim Tan
had exercised the due diligence required of a good
father of a family to prevent damage. Finding said
motion to be without merit, the trial court denied the
same on October 10, 1966. Hence, this appeal wherein
appellants made assignment of errors, as follows:
(a) The trial court erred in finding that
appellants took the complaint for
granted by reason of the fact that
appellants referred to their lawyer the
complaint for answer only after the
lapse of eleven (11) days from receipt
thereof ;
(b) The trial court erred in not holding
that the mistake committed by the late
Atty. Daniel Chavez in giving the wrong
date of receipt by appellants of the
summons and the complaint to Atty.
Romulo R. de Castro on June 10, 1966
due to the abnormal mental condition of
the late Atty. Daniel Chavez on June 10,
1966 which thereafter resulted in the
commission of suicide by the latter on
June 17, 1966, constitutes the mistake
and accident in law which warrant the
relief from default and the granting of
the new trial;
(c) The trial court erred in not holding
that the fact that appellants, through
Atty. Romulo R. de Castro, filed on June
10, 1966 a motion for extension of time
to file answer, and thereafter actually
did file their answer to the complaint on
June 20, 1966 wherein they alleged
good, valid and meritorious defenses
against the claim of plaintiffs in the
complaint, should warrant favorable
consideration of appellants' motion to
lift order of default and for new trial;
and
(d) The trial court erred in not holding
that the fact that appellants' motion to
lift order of default and for new trial.
1. In support of their first assignment of error, counsel
for appellants contends that the finding of the trial court,
that the appellants took the complaint for granted when
they referred the complaint to their lawyer only on the
eleventh day after receipt thereof, was unwarranted,
because appellants had 15 days from receipt of the
summons and complaint to answer and their lawyer, the
late Atty. Daniel Chavez, after the complaint was
referred to him on the eleventh day, had still four days
to file the answer, which he could very well do inasmuch
as he was well acquainted with the facts because he
was the lawyer of appellant Ernesto Labsan in Criminal
Case No. 2200 of Court of First Instance of Batangas for
homicide thru reckless imprudence — which case arose
from the very accident subject of appellees' complaint;
that appellant Lily Lim Tan, furthermore, had instructed
her employee, Eleuterio Dizon, to handcarry the
summons and to deliver it to nobody except to Atty.
Chavez; that Atty. Chavez, in a distance telephone
conversation with appellant Lily Lim Tan, assured the
latter that he would attend to the complaint.
We do not find merit in the contention of counsel for
appellants. It is within the sound discretion of the court
to set aside an order of default and to permit a
defendant to file his answer and to be heard on the
merits even after the reglementary period for the filing
of the answer has expired, but it is not error, or an
abuse of discretion, on the part of the court to refuse to
set aside its order of default and to refuse to accept the
answer where it finds no justifiable reason for the delay
in the filing of the answer. In the motions for
reconsideration of an order of default, the moving party
has the burden of showing such diligence as would
justify his being excused from not filing the answer with
the reglementary period as provided by the Rules of
Court, otherwise these guidelines for an orderly and
expeditious procedure would be rendered
meaningless.1 Unless it is shown clearly that a party has
justifiable reason for the delay the court will not
ordinarily exercise its discretion in his favor.2
In the instant case, We agree with the trial court that
appellants have not shown that they exercised such
diligence as an ordinary prudent person would exercise,
to have the answer filed within the reglementary period.
Appellant Lily Lim Tan admitted in her affidavit 3 that she
received the summons and copy of the complaint on
May 19, 1966, and that having read the complaint she
found out that she was being sued, together with her
driver, for damages in connection with the accident of
February 6, 1965 at Sto. Tomas, Batangas. The
damages asked in the complaint amounts to P36,600.00.
The summons required them to answer the complaint
within 15 days from receipt thereof, and warned them
that should they fail to answer within said period the
plaintiffs would take judgment against them for the
relief demanded in the complaint. The damages
demanded was not a negligible sum, and appellant Lily
Lim Tan, who is a business woman, should have
considered the matter a serious one. Ordinary prudence
would dictate that she should concern herself about the
matter, that she should refer said complaint with the
least possible delay to her lawyer. But, for reasons she
did not explain, she referred the complaint to her lawyer
only after the lapse of ten (10) days from receipt
thereof, i.e., on May 30, 1966. She should have
considered that four days might not be sufficient time
for her lawyer to prepare and file the answer.
Appellants, however, contend that their lawyer, Atty.
Chavez, could very well prepare the answer within the
remaining four days of the reglementary period, for he
was conversant with the facts of the case. Be that as it
may, the fact was that Atty. Chavez failed to file the
answer. Because Atty. Chavez assured her, in their long
distance telephone conversation that he would take care
the complaint, appellant Lily Lim Tan took for granted
that the answer would be filed on time. Said appellant
should have checked before the expiration of the period
for filing the answer whether the complaint was really
taken care of, or not. But this, appellant Lily Lim Tan
failed to do, and this is another instance showing her
lack of concern over the complaint. There was,
therefore, no showing of due diligence on the part of
appellants which would excuse their failure to file their
answer on time. There is no showing either that the
other appellant, Ernesto Labsan, had taken any step to
have an answer filed in his behalf — evidently he was
relying on his employer.
2. In support of the second assignment of error,
appellants contend that the facts show that on June 10,
1966, Atty. Chavez, who was then acting strangely,
endorsed the summons and complaint to Atty. Romulo
R. de Castro; that upon inquiry by Atty. de Castro from
Atty. Chavez the latter informed him that the summons
was served on appellants on May 30, 1966; that
appellant Lily Lim Tan, who was assured by Atty. Chavez
in their long distance telephone conversation that the
complaint would be attended to, could not, by the
exercise of ordinary diligence, have foreseen, and
avoided, the circumstance that at the time she referred
the summons to Atty. Chavez, the latter was already in
an abnormal condition which later resulted in his
committing suicide on June 17, 1966; that it was Atty.
Chavez's abnormal condition and his having given to
Atty. de Castro the wrong date of the receipt of the
summons by the appellees that caused the delay in the
filing of the answer; that said circumstances constituted
mistake and accident which entitled appellants to relief
from default and a grant of new trial.
Appellants' contention that the delay in filing the answer
was due to mistake and accident is untenable.
The mistake, according to appellants, consisted in Atty.
Chavez's having told Atty. de Castro on June 10, 1966
that appellants received the summons and complaint on
May 30, 1966. Even if Atty. Chavez had told Atty. de
Castro the correct date, that is, that appellants received
the summons on May 19, 1966, the answer could not
have been filed on time by Atty. de Castro, because the
reglementary period for filing the answer expired on
June 3, 1966, and it was already June 10, 1966, when
the complaint was endorsed by Atty. Chavez to Atty. de
Castro.
The accident, according to appellants' counsel, consisted
in Atty. Chavez's being in an abnormal condition at the
time the complaint was given to him on May 30, 1966.
This claim of appellants is not supported by the record.
The record does not show that Atty. Chavez was
suffering from an abnormal mind on May 30, 1966. His
actuations on May 30 were those that could be expected
of a normal person. Atty. Chavez asked the employee of
appellant Lily Lim Tan about the date when his employer
received the summons and complaint, and because the
employee could not give him the desired information
Atty. Chavez placed a long distance telephone call to
appellant Lily Lim Tan to ask about said date. This action
of Atty. Chavez showed that he was very much aware
that the reglementary period within which the answer
should be filed was to be computed from the date of the
receipt of the summons and the complaint. It also
showed that Atty. Chavez knew the easiest and the most
practical means to get the information that he needed —
that was by a long distance telephone call to his client,
Lily Lim Tan. These actuations of Atty. Chavez showed
that he knew the importance of the matter at hand, and
he was exercising the ordinary and reasonable care over
the interests of his client. These specific actions of Atty.
Chavez indicated that as of May 30, 1966 he had a
sound mind.
It is claimed by appellants that on June 10, 1966 Atty.
Chavez endorsed the complaint to Atty. de Castro, and
told the latter that the summons and complaint were
received by the appellants on May 30, 1966. It is further
claimed by appellants that this information given by
Atty. Chavez — that the summons and complaint were
received by the appellants on May 30, 1966 — was the
mistake that caused the delay of the filing of the
answer. But it should be noted that on June 10, 1966
when Atty. Chavez endorsed the complaint to Atty. de
Castro and informed the latter that the summons and
complaint were received by the appellants on May 30,
1966, the period within which the answer should be filed
had already expired — the expiry date being June 3,
1966.<äre||anº•1àw> There is no showing that
between May 30, when Atty. Chavez received the
summons and complaint from the employee of Lily Lim
Tan, and June 3, 1973 Atty. Chavez was incapacitated to
file the answer. And so it is clear that before the case
was endorsed to Atty. de Castro, the appellants were
already in default. The failure to file the answer on time
may well be attributed to the mistake or "negligence of
Atty. Chavez. The appellants are bound by the mistakes,
and may suffer by the negligence, of their lawyer. In
fact, on June 8, 1966, or two days before Atty. Chavez
endorsed the case to Atty. de Castro, the appellees had
filed a motion in court to declare the defendants (now
the appellants) in default. The moves taken by Atty. de
Castro — in filing a motion for extension of time to file
an answer on June 10, 1966, and in finally filing an
answer on June 20, 1966 — were already late.
The fact that Atty. Chavez committed suicide on June
17, 1966 does not necessarily prove that he was
abnormal, incompetent or insane on May 30, 1966.
Although there is a judicial declaration that a sane man
would not commit suicide, cognizance is nevertheless
taken of the fact that circumstances at some given time
may impel a person to commit suicide.4 The probative
value of suicide in determining the sanity of a person is
dependent on the factual situation in each case. Such
matters as the reasons for the act of self-destruction,
the circumstances indicating the person's state of mind
at the time, and other pertinent facts must be
considered. The appellants had not indicated to the trial
court any circumstance from which the trial court could
form an opinion of the mental condition of Atty. Chavez
before he committed suicide. The trial court, therefore,
did not err when it did not favorably consider the claim
of the appellant that their failure to file their answer to
the complaint was due to accident or mistake, as
contemplated in Section 3 of Rule 18 of the Rules of
Court.
3. In support of the third assignment of error, appellants
argue that acting on the wrong information given by
Atty. Chavez, Atty. Romulo de Castro filed on June 10,
1966 a motion for an extension of 20 days within which
to file an answer and that he did file the answer with
good, valid and meritorious defenses on June 20, 1966;
that on June 27, 1966 when appellees were allowed to
present their evidence ex-parte, the motion for
extension of time and the answer already formed part of
the records of the case; that inasmuch as the late filing
of the answer was due to accident and mistake, and
appellants had good, valid, and meritorious defenses,
the motion to lift the order of default and for new trial
should have been favorably considered by the court.5
Let it be noted that the lower court rendered its decision
on July 1, 1966, and the appellees received notice of
said decision on August 23, 1966. The decision would
have become final on September 22, 1966. On
September 21, 1966 the appellants filed their motion to
lift the order of default and for new trial. The motion of
the appellants therefore, was in the nature of a motion
for a new trial based on fraud, accident, mistake or
excusable negligence under paragraph (a) of Section 1
of Rule 37 of the Rules of Court. Under Section 2 of said
Rule 37 the moving party must show that he has a
meritorious defense. The facts constituting the movant's
good and substantial defense, which he may prove if the
petition were granted, must be shown in the affidavit
which should accompany the motion for a new trial.6 In
the instant case, the motion to lift the order of default
and for new trial as well as the affidavit of merits
accompanying the motion did not contain clear
statements of the facts constituting a good and valid
defense which the appellants might prove if they were
given a chance to introduce
evidence.<äre||anº•1àw> The allegations in the motion
that defendants have good and valid defenses, namely:
that the accident which gave rise to the case was force
majeure; that defendant Ernesto Labsan is absolutely
without fault in the accident that gave rise to the case;
and that defendant Lily Lim Tan has exercised due
diligence required of a good father of a family to prevent
damage7, are mere conclusions which did not provide
the court with any basis for determining the nature and
merit of the probable defense. An affidavit of merit
should state facts, and not mere opinion or conclusions
of law.
Hence the trial court correctly denied the motion to set
aside order of default and for new trial.
We must, however, point out a flaw in the decision of
the lower court. It is stated in the decision appealed
from that the driver, Ernesto Labsan, was primarily liable
for the payment of damages adjudged therein, and the
appellant Lily Lim Tan, being the owner and operator of
the gasoline tanker that figured in the accident, is
subsidiarily liable, that is, liable only in case Ernesto
Labsan was not able to pay. This is not correct. The
action in the instant case was brought not to demand
civil liability arising from a crime. The complaint makes
no mention of a crime having been committed, much
less of the driver Ernesto Labsan having been convicted
of a crime. But there is an allegation in the complaint
that Ernesto Labsan was the authorized driver of the
truck that figured in the accident, which truck was
operated by appellant Lily Lim Tan in connection with
her gasoline business. The prayer in the complaint,
furthermore, sought to hold appellants jointly and
solidarily liable for damages. The instant action,
therefore, was based, as the complaint shows, on quasi
delict.8 Under Article 218 of the Civil Code, which treats
of quasi delicts, the liability of the owners and managers
of an establishment or enterprise for damages caused by
their employees is primary and direct, not
subsidiary.9 The employer, however, can demand from
his employee reimbursement of the amount which he
paid under his liability. 10 The employer, appellant Lily
Lim Tan, must be held primarily and directly, not
subsidiarily, liable for damages awarded in the decision
of the lower court. This is, of course, without prejudice
to the right of appellant Lily Lim Tan to demand from
her co-appellant Ernesto Labsan reimbursement of the
damages that she would have to pay to appellees.
WHEREFORE, the decision of the Court of First Instance
of Batangas, dated July 1, 1966, as modified in
accordance with the observations We made in the
preceding paragraph, and the order, dated October 10,
1966, denying appellants' motion for the lifting of the
order of default and for new trial, in Civil Case No. 1732,
are affirmed. Costs against defendants-appellees. It is so
ordered.
TORTS WITH INDEPENDENT CIVIL ACTIONS
A. VIOLATION OF CIVIL AND POLITICAL RIGHTS
 ART. 32 NCC
G.R. No. L-69866 April 15, 1988
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR
BODINO NOEL ETABAG DANILO DE LA FUENTE,
BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,
ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO
MANSOS, ALEX MARCELINO, ELIZABETH
PROTACIO-MARCELINO, JOSEPH OLAYER,
CARLOS PALMA, MARCO PALO, ROLANDO
SALUTIN, BENJAMIN SESGUNDO, ARTURO
TABARA, EDWIN TULALIAN and REBECCA
TULALIAN petitioners, vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON,
COL. ROLANDO ABADILLA, COL. GERARDO B.
LANTORIA, COL. GALILEO KINTANAR, 1ST LT.
COL. PANFILO M. LACSON, MAJ. RODOLFO
AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT.
PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT.
RAUL BACALSO, MSGT BIENVENIDO BALABA and
REGIONAL TRIAL COURT, National Capital
Judicial Region, Branch XCV (95), Quezon
City, respondents.
This petition for certiorari presents vital issues not
heretofore passed upon by this Court. It poses the
question whether the suspension of the privilege of the
writ of habeas corpus bars a civil action for damages for
illegal searches conducted by military personnel and
other violations of rights and liberties guaranteed under
the Constitution. If such action for damages may be
maintained, who can be held liable for such violations:
only the military personnel directly involved and/or their
superiors as well.
This case stems from alleged illegal searches and
seizures and other violations of the rights and liberties of
plaintiffs by various intelligence units of the Armed
Forces of the Philippines, known as Task Force
Makabansa (TFM) ordered by General Fabian Ver "to
conduct pre-emptive strikes against known communist-
terrorist (CT) underground houses in view of increasing
reports about CT plans to sow disturbances in Metro
Manila," Plaintiffs allege, among others, that complying
with said order, elements of the TFM raided several
places, employing in most cases defectively issued
judicial search warrants; that during these raids, certain
members of the raiding party confiscated a number of
purely personal items belonging to plaintiffs; that
plaintiffs were arrested without proper warrants issued
by the courts; that for some period after their arrest,
they were denied visits of relatives and lawyers; that
plaintiffs were interrogated in violation of their rights to
silence and counsel; that military men who interrogated
them employed threats, tortures and other forms of
violence on them in order to obtain incriminatory
information or confessions and in order to punish them;
that all violations of plaintiffs constitutional rights were
part of a concerted and deliberate plan to forcibly
extract information and incriminatory statements from
plaintiffs and to terrorize, harass and punish them, said
plans being previously known to and sanctioned by
defendants.
Plaintiffs sought actual/compensatory damages
amounting to P39,030.00; moral damages in the amount
of at least P150,000.00 each or a total of P3,000,000.00;
exemplary damages in the amount of at least
P150,000.00 each or a total of P3,000,000.00; and
attorney's fees amounting to not less than P200,000.00.
A motion to dismiss was filed by defendants, through
their counsel, then Solicitor-General Estelito Mendoza,
alleging that (1) plaintiffs may not cause a judicial
inquiry into the circumstances of their detention in the
guise of a damage suit because, as to them, the
privilege of the writ of habeas corpus is suspended; (2)
assuming that the courts can entertain the present
action, defendants are immune from liability for acts
done in the performance of their official duties; and (3)
the complaint states no cause of action against the
defendants. Opposition to said motion to dismiss was
filed by plaintiffs Marco Palo, Danilo de la Fuente,
Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and
Rolando Salutin on July 8, 1983, and by plaintiffs Edwin
Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor
Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer,
Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex
Marcelino and Elizabeth Marcelino on July 21, 1983. On
November 7, 1983, a Consolidated Reply was filed by
defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court,
National Capital Region, Branch 95, Judge Willelmo C.
Fortun, Presiding, 1 issued a resolution granting the
motion to dismiss. I sustained, lock, stock and barrel,
the defendants' contention (1) the plaintiffs may not
cause a judicial inquiry into the circumstances of their
detention in the guise of a damage suit because, as to
them, the privilege of the writ of habeas corpus is
suspended; (2) that assuming that the court can
entertain the present action, defendants are immune
from liability for acts done in the performance of their
official duties; and (3) that the complaint states no
cause of action against defendants, since there is no
allegation that the defendants named in the complaint
confiscated plaintiffs' purely personal properties in
violation of their constitutional rights, and with the
possible exception of Major Rodolfo Aguinaldo and
Sergeant Bienvenido Balabo committed acts of torture
and maltreatment, or that the defendants had the duty
to exercise direct supervision and control of their
subordinates or that they had vicarious liability as
employers under Article 2180 of the Civil Code. The
lower court stated, "After a careful study of defendants'
arguments, the court finds the same to
be meritorious and must, therefore, be granted. On the
other hand, plaintiffs' arguments in their opposition are
lacking in merit."
A motion to set aside the order dismissing the complaint
and a supplemental motion for reconsideration was filed
by the plaintiffs on November 18, 1983, and November
24, 1983, respectively. On December 9, 1983, the
defendants filed a comment on the aforesaid motion of
plaintiffs, furnishing a copy thereof to the attorneys of
all the plaintiffs, namely, Attys. Jose W. Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado,
Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr.,
Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene
Saguisag, Ramon Esguerra and Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order
voluntarily inhibiting himself from further proceeding in
the case and leaving the resolution of the motion to set
aside the order of dismissal to Judge Lising, "to preclude
any suspicion that he (Judge Fortun) cannot resolve
[the] aforesaid pending motion with the cold neutrality
of an impartial judge and to put an end to plaintiffs
assertion that the undersigned has no authority or
jurisdiction to resolve said pending motion." This order
prompted plaintiffs to reesolve an amplificatory motion
for reconsideration signed in the name of the Free Legal
Assistance Group (FLAG) of Mabini Legal Aid Committee,
by Attys. Joker P. Arroyo, Felicitas Aquino and Arno
Sanidad on April 12, 1984. On May 2,1984, the
defendants filed a comment on said amplificatory motion
for reconsideration.
In an order dated May 11, 1984, the trial court, Judge
Esteban Lising, Presiding, without acting on the motion
to set aside order of November 8, 1983, issued an order,
as follows:
It appearing from the records that, indeed, the following
plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco
Palo, represented by counsel, Atty. Jose W. Diokno, Alan
Jasminez represented by counsel, Atty. Augusta
Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-
Marcelino, represented by counsel, Atty. Procopio
Beltran, Alfredo Mansos represented by counsel, Atty.
Rene Sarmiento, and Rolando Salutin, represented by
counsel, Atty. Efren Mercado, failed to file a motion to
reconsider the Order of November 8, 1983, dismissing
the complaint, nor interposed an appeal therefrom
within the reglementary period, as prayed for by the
defendants, said Order is now final against said
plaintiffs.
Assailing the said order of May 11, 1984, the plaintiffs
filed a motion for reconsideration on May 28,1984,
alleging that it was not true that plaintiffs Rogelio
Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez,
Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo
Mansos and Rolando Salutin failed to file a motion to
reconsider the order of November 8, 1983 dismissing the
complaint, within the reglementary period. Plaintiffs
claimed that the motion to set aside the order of
November 8, 1983 and the amplificatory motion for
reconsideration was filed for all the plaintiffs, although
signed by only some of the lawyers.
In its resolution of September 21, 1984, the respondent
court dealt with both motions (1) to reconsider its order
of May 11, 1984 declaring that with respect to certain
plaintiffs, the resolution of November 8, 1983 had
already become final, and (2) to set aside its resolution
of November 8, 1983 granting the defendants' motion to
dismiss. In the dispositive portion of the order of
September 21, 1984, the respondent court resolved:
(1) That the motion to set aside the order of finality,
dated May 11, 1984, of the Resolution of dismissal of
the complaint of plaintiffs Rogelio Aberca, Danilo de la
Fuente, Marco Palo, Alan Jasminez Alex Marcelino,
Elizabeth Protacio-Marcelino, Alfredo Mansos and
Rolando Salutin is deed for lack of merit;
(2) For lack of cause of action as against the following
defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.
5. Col. Galileo Montanar
6. Col. Panfilo Lacson
7. Capt. Danilo Pizaro
8. 1 Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the Resolution of
dismissal of the present action or complaint, dated
November 8, 1983, is also denied but in so far as it
affects and refers to defendants, to wit:
1. Major Rodolfo Aguinaldo, and
2. Master Sgt. Bienvenido Balaba
the motion to reconsider and set aside the Resolution of
dismissal dated November 3, 1983 is granted and the
Resolution of dismissal is, in this respect, reconsidered
and modified.
Hence, petitioners filed the instant petition for certiorari
on March 15, 1985 seeking to annul and set aside the
respondent court's resolution of November 8, 1983, its
order of May 11, 1984, and its resolution dated
September 21, 1984. Respondents were required to
comment on the petition, which it did on November 9,
1985. A reply was filed by petitioners on August 26,
1986.
We find the petition meritorious and decide to give it
due course.
At the heart of petitioners' complaint is Article 32 of the
Civil Code which provides:
ART. 32. Any public officer or employee, or any private
individual who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be
liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due
process
(7) of law;
(8) The right to a just compensation when private
property is taken for public use;
(9) The right to the equal protection of the laws;
(10) The right to be secure in one's person, house,
papers, and effects against unreasonable searches and
seizures;
(11) The liberty of abode and of changing the same;
(12) The privacy of cmmunication and correspondence;
(13) The right to become a member of associations or
societies for purposes not contrary to law;
(14) The right to take part in a peaceable assembly to
petition the Government for redress of grievances;
(15) The right to be free from involuntary servitude in
any form;
(16) The rigth of the accused against excessive bail;
(17) The rigth of the aaccused to be heard by himself
and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness
in behalf;
(18) Freedom from being compelled to be a witness
against ones self, or from being forced to confess guilt,
or from being induced by a promise of immunity or
reward to make such confession, except when the
person confessing becomes a State witness;
(19) Freedom from excessive fines or cruel and unusual
punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article, whether or
not the defendant's act or omission constitutes a
criminal offense, the against grieved party has a right to
commence an entirely separate and distinct civil action
for damages, and for other relief. Such civil action shall
proceed independently of any criminal prosecution (if
the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes a
violation of the Penal Code or other penal statute.
It is obvious that the purpose of the above codal
provision is to provide a sanction to the deeply cherished
rights and freedoms enshrined in the Constitution. Its
message is clear; no man may seek to violate those
sacred rights with impunity. In times of great upheaval
or of social and political stress, when the temptation is
strongest to yield — borrowing the words of Chief
Justice Claudio Teehankee — to the law of force rather
than the force of law, it is necessary to remind ourselves
that certain basic rights and liberties are immutable and
cannot be sacrificed to the transient needs or imperious
demands of the ruling power. The rule of law must
prevail, or else liberty will perish. Our commitment to
democratic principles and to the rule of law compels us
to reject the view which reduces law to nothing but the
expression of the will of the predominant power in the
community. "Democracy cannot be a reign of progress,
of liberty, of justice, unless the law is respected by him
who makes it and by him for whom it is made. Now this
respect implies a maximum of faith, a minimum of
Idealism. On going to the bottom of the matter, we
discover that life demands of us a certain residuum of
sentiment which is not derived from reason, but which
reason nevertheless controls. 2
Seeking to justify the dismissal of plaintiffs' complaint,
the respondents postulate the view that as public
officers they are covered by the mantle of state
immunity from suit for acts done in the performance of
official duties or function In support of said contention,
respondents maintain that —
Respondents are members of the Armed Forces of the
Philippines. Their primary duty is to safeguard public
safety and order. The Constitution no less provides that
the President may call them "to prevent or supress
lawless violence, invasion, insurrection or rebellion, or
imminent danger thereof." (Constitution, Article VII,
Section 9).
On January 17, 1981, the President issued Proclamation
No. 2045 lifting martial law but providing for the
continued suspension of the privilege of the writ of
habeas corpus in view of the remaining dangers to the
security of the nation. The proclamation also provided
"that the call to the Armed Forces of the Philippines to
prevent or suppress lawless violence, insuitection
rebellion and subversion shall continue to be in force
and effect."
Petitioners allege in their complaint that their causes of
action proceed from respondent General Ver's order to
Task Force Makabansa to launch pre-emptive strikes
against communist terrorist underground houses in
Metro Manila. Petitioners claim that this order and its
subsequent implementation by elements of the task
force resulted in the violation of their constitutional
rights against unlawful searches, seizures and arrest,
rights to counsel and to silence, and the right to
property and that, therefore, respondents Ver and the
named members of the task force should be held liable
for damages.
But, by launching a pre-emptive strike against
communist terrorists, respondent members of the armed
forces merely performed their official and constitutional
duties. To allow petitioners to recover from respondents
by way of damages for acts performed in the exercise of
such duties run contrary to the policy considerations to
shield respondents as public officers from undue
interference with their duties and from potentially
disabling threats of hability (Aarlon v. Fitzgerald 102 S.
Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and
upon the necessity of protecting the performance of
governmental and public functions from being harassed
unduly or constantly interrupted by private suits
(McCallan v. State, 35 Cal. App. 605; Metran v. Paredes,
79 Phil. 819).
xxx xxx xxx
The immunity of public officers from liability arising from
the performance of their duties is now a settled
jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v.
Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40
L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v.
Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct.
2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco
Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v.
US, 617 F. 2d 755).
Respondents-defendants who merely obeyed the lawful
orders of the President and his call for the suppression
of the rebellion involving petitioners enjoy such
immunity from Suit.3
We find respondents' invocation of the doctrine of state
immunity from suit totally misplaced. The cases invoked
by respondents actually involved acts done by officers in
the performance of official duties written the ambit of
their powers. As held in Forbes, etc. vs. Chuoco Tiaco
and Crossfield: 4
No one can be held legally responsible in damages or
otherwise for doing in a legal manner what he had
authority, under the law, to do. Therefore, if the
Governor-General had authority, under the law to deport
or expel the defendants, and circumstances justifying
the deportation and the method of carrying it out are
left to him, then he cannot be held liable in damages for
the exercise of this power. Moreover, if the courts are
without authority to interfere in any manner, for the
purpose of controlling or interferring with the exercise of
the political powers vested in the chief executive
authority of the Government, then it must follow that
the courts cannot intervene for the purpose of declaring
that he is liable in damages for the exeercise of this
authority.
It may be that the respondents, as members of the
Armed Forces of the Philippines, were merely responding
to their duty, as they claim, "to prevent or suppress
lawless violence, insurrection, rebellion and subversion"
in accordance with Proclamation No. 2054 of President
Marcos, despite the lifting of martial law on January 27,
1981, and in pursuance of such objective, to launch pre-
emptive strikes against alleged communist terrorist
underground houses. But this cannot be construed as a
blanket license or a roving commission untramelled by
any constitutional restraint, to disregard or transgress
upon the rights and liberties of the individual citizen
enshrined in and protected by the Constitution. The
Constitution remains the supreme law of the land to
which all officials, high or low, civilian or military, owe
obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public
officer or employee or any private individual liable in
damages for violating the Constitutional rights and
liberties of another, as enumerated therein, does not
exempt the respondents from responsibility. Only judges
are excluded from liability under the said article,
provided their acts or omissions do not constitute a
violation of the Penal Code or other penal statute.
This is not to say that military authorities are restrained
from pursuing their assigned task or carrying out their
mission with vigor. We have no quarrel with their duty
to protect the Republic from its enemies, whether of the
left or of the right, or from within or without, seeking to
destroy or subvert our democratic institutions and
imperil their very existence. What we are merely trying
to say is that in carrying out this task and mission,
constitutional and legal safeguards must be observed,
otherwise, the very fabric of our faith will start to
unravel. In the battle of competing Ideologies, the
struggle for the mind is just as vital as the struggle of
arms. The linchpin in that psychological struggle is faith
in the rule of law. Once that faith is lost or
compromised, the struggle may well be abandoned.
We do not find merit in respondents' suggestion that
plaintiffs' cause of action is barred by the suspension of
the privilege of the writ of habeas corpus. Respondents
contend that "Petitioners cannot circumvent the
suspension of the privilege of the writ by resorting to a
damage suit aimed at the same purpose-judicial inquiry
into the alleged illegality of their detention. While the
main relief they ask by the present action is
indemnification for alleged damages they suffered, their
causes of action are inextricably based on the same
claim of violations of their constitutional rights that they
invoked in the habeas corpus case as grounds for
release from detention. Were the petitioners allowed the
present suit, the judicial inquiry barred by the
suspension of the privilege of the writ will take place.
The net result is that what the courts cannot do, i.e.
override the suspension ordered by the President,
petitioners will be able to do by the mere expedient of
altering the title of their action."
We do not agree. We find merit in petitioners'
contention that the suspension of the privilege of the
writ of habeas corpus does not destroy petitioners' right
and cause of action for damages for illegal arrest and
detention and other violations of their constitutional
rights. The suspension does not render valid an
otherwise illegal arrest or detention. What is suspended
is merely the right of the individual to seek release from
detention through the writ of habeas corpus as a speedy
means of obtaining his liberty.
Moreover, as pointed out by petitioners, their right and
cause of action for damages are explicitly recognized in
P.D. No. 1755 which amended Article 1146 of the Civil
Code by adding the following to its text:
However, when the action (for injury to the rights of the
plaintiff or for a quasi-delict) arises from or out of any
act, activity or conduct of any public officer involving the
exercise of powers or authority arising from Martial Law
including the arrest, detention and/or trial of the
plaintiff, the same must be brought within one (1) year.
Petitioners have a point in contending that even
assuming that the suspension of the privilege of the writ
of habeas corpus suspends petitioners' right of action for
damages for illegal arrest and detention, it does not and
cannot suspend their rights and causes of action for
injuries suffered because of respondents' confiscation of
their private belongings, the violation of their right to
remain silent and to counsel and their right to protection
against unreasonable searches and seizures and against
torture and other cruel and inhuman treatment.
However, we find it unnecessary to address the
constitutional issue pressed upon us. On March 25,
1986, President Corazon C. Aquino issued Proclamation
No. 2, revoking Proclamation Nos. 2045 and 2045-A and
lifting the suspension of the privilege of the writ of
habeas corpus. The question therefore has become
moot and academic.
This brings us to the crucial issue raised in this petition.
May a superior officer under the notion of respondent
superior be answerable for damages, jointly and
severally with his subordinates, to the person whose
constitutional rights and liberties have been violated?
Respondents contend that the doctrine of respondent
superior is applicable to the case. We agree. The
doctrine of respondent superior has been generally
limited in its application to principal and agent or to
master and servant (i.e. employer and employee)
relationship. No such relationship exists between
superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this
case, in our view, is the language of Article 32. The law
speaks of an officer or employee or person 'directly' or
"indirectly" responsible for the violation of the
constitutional rights and liberties of another. Thus, it is
not the actor alone (i.e. the one directly responsible)
who must answer for damages under Article 32; the
person indirectly responsible has also to answer for the
damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of public
officials under the Constitution 5 acquires added
meaning and asgilrnes a larger dimension. No longer
may a superior official relax his vigilance or abdicate his
duty to supervise his subordinates, secure in the thought
that he does not have to answer for the transgressions
committed by the latter against the constitutionally
protected rights and liberties of the citizen. Part of the
factors that propelled people power in February 1986
was the widely held perception that the government was
callous or indifferent to, if not actually responsible for,
the rampant violations of human rights. While it would
certainly be go naive to expect that violators of human
rights would easily be deterred by the prospect of facing
damage suits, it should nonetheless be made clear in no
ones terms that Article 32 of the Civil Code makes the
persons who are directly, as well as indirectly,
responsible for the transgression joint tortfeasors.
In the case at bar, the trial court dropped defendants
General Fabian Ver, Col. Fidel Singson, Col. Rolando
Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar,
Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro
Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from
the acts of their subordinates. Only Major Rodolfo
Aguinaldo and Master Sgt. Bienvenido Balaba were kept
as defendants on the ground that they alone 'have been
specifically mentioned and Identified to have allegedly
caused injuries on the persons of some of the plaintiff
which acts of alleged physical violence constitute a delict
or wrong that gave rise to a cause of action. But such
finding is not supported by the record, nor is it in accord
with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages
5 Section 1, Article 19. to 'acts of alleged physical
violence" which constituted delict or wrong. Article 32
clearly specifies as actionable the act of violating or in
any manner impeding or impairing any of the
constitutional rights and liberties enumerated therein,
among others —
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due
process of law;
3. The right to be secure in one's person, house, papers
and effects against unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness
against one's self, or from being forced to confess guilt,
or from being induced by a promise of immunity or
reward to make a confession, except when the person
confessing becomes a state witness.
The complaint in this litigation alleges facts showing with
abundant clarity and details, how plaintiffs' constitutional
rights and liberties mentioned in Article 32 of the Civil
Code were violated and impaired by defendants. The
complaint speaks of, among others, searches made
without search warrants or based on irregularly issued
or substantially defective warrants; seizures and
confiscation, without proper receipts, of cash and
personal effects belonging to plaintiffs and other items
of property which were not subversive and illegal nor
covered by the search warrants; arrest and detention of
plaintiffs without warrant or under irregular, improper
and illegal circumstances; detention of plaintiffs at
several undisclosed places of 'safehouses" where they
were kept incommunicado and subjected to physical and
psychological torture and other inhuman, degrading and
brutal treatment for the purpose of extracting
incriminatory statements. The complaint contains a
detailed recital of abuses perpetrated upon the plaintiffs
violative of their constitutional rights.
Secondly, neither can it be said that only those shown to
have participated "directly" should be held liable. Article
32 of the Civil Code encompasses within the ambit of its
provisions those directly, as well as indirectly,
responsible for its violation.
The responsibility of the defendants, whether direct or
indirect, is amply set forth in the complaint. It is well
established in our law and jurisprudence that a motion
to dismiss on the ground that the complaint states no
cause of action must be based on what appears on the
face of the complaint. 6 To determine the sufficiency of
the cause of action, only the facts alleged in the
complaint, and no others, should be considered. 7 For
this purpose, the motion to dismiss must hypothetically
admit the truth of the facts alleged in the complaint. 8
Applying this test, it is difficult to justify the trial court's
ruling, dismissing for lack of cause of action the
complaint against all the defendants, except Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba.
The complaint contained allegations against all the
defendants which, if admitted hypothetically, would be
sufficient to establish a cause or causes of action against
all of them under Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court
correct in dismissing the complaint with respect to
plaintiffs Rogelio Aberca, Danilo de la Puente, Marco
Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-
Marcelino, Alfredo Mansos and Rolando Salutin, on the
basis of the alleged failure of said plaintiffs to file a
motion for reconsideration of the court's resolution of
November 8, 1983, granting the respondent's motion to
dismiss?
It is undisputed that a timely motion to set aside said
order of November 8, 1983 was filed by 'plaintiffs,
through counsel. True, the motion was signed only by
Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido;
Atty. Antonio Rosales, counsel for Edwin Lopez and
Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel
for Nestor Bodino and Carlos Palma; Atty. Arno V.
Sanidad, counsel for Arturo Tabara; Atty. Felicitas S.
Aquino, counsel for Joseph Olayer; and Atty. Alexander
Padilla, counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that
the motion was filed on behalf of all the plaintiffs. And
this must have been also the understanding of
defendants' counsel himself for when he filed his
comment on the motion, he furnished copies thereof,
not just to the lawyers who signed the motion, but to all
the lawyers of plaintiffs, to wit: Attys. Jose Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado,
Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno
Sanidad, Alexander Padilla, Joker Arroyo, Rene
Saguisag, Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of
November 8, 1983, the signing attorneys did so on
behalf of all the plaintiff. They needed no specific
authority to do that. The authority of an attorney to
appear for and in behalf of a party can be assumed,
unless questioned or challenged by the adverse party or
the party concerned, which was never done in this case.
Thus, it was grave abuse on the part of respondent
judge to take it upon himself to rule that the motion to
set aside the order of November 8, 1953 dismissing the
complaint was filed only by some of the plaintiffs, when
by its very language it was clearly intended to be filed
by and for the benefit of all of them. It is obvious that
the respondent judge took umbrage under a contrived
technicality to declare that the dismissal of the complaint
had already become final with respect to some of the
plaintiffs whose lawyers did not sign the motion for
reconsideration. Such action tainted with legal infirmity
cannot be sanctioned.
Accordingly, we grant the petition and annul and set
aside the resolution of the respondent court, dated
November 8, 1983, its order dated May 11, 1984 and its
resolution dated September 21, 1984. Let the case be
remanded to the respondent court for further
proceedings. With costs against private respondents. SO
ORDERED.
G.R. No. 86720 September 2, 1994
MHP GARMENTS, INC., and LARRY C. DE
GUZMAN, petitioners, vs. THE HONORABLE COURT
OF APPEALS, AGNES VILLA CRUZ, MIRASOL
LUGATIMAN, and GERTRUDES
GONZALES, respondents.
The constitutional protection of our people against
unreasonable search and seizure is not merely a
pleasing platitude. It vouchsafes our right to privacy and
dignity against undesirable intrusions committed by any
public officer or private individual. An infringement of
this right justifies an award for damages.
On February 22, 1983, petitioner MHP Garments, Inc.,
was awarded by the Boy Scouts of the Philippines, the
exclusive franchise to sell and distribute official Boy
Scouts uniforms, supplies, badges, and insignias. In their
Memorandum Agreement, petitioner corporation was
given the authority to "undertake or cause to be
undertaken the prosecution in court of all illegal sources
of scout uniforms and other scouting supplies." 1
Sometime in October 1983, petitioner corporation
received information that private respondents Agnes
Villa Cruz, Mirasol Lugatiman, and Gertrudes Gonzales
were selling Boy Scouts items and paraphernalia without
any authority. Petitioner de Guzman, an employee of
petitioner corporation, was tasked to undertake the
necessary surveillance and to make a report to the
Philippine Constabulary (PC).
On October 25, 1983, at about 10:30 A.M., petitioner de
Guzman, Captain Renato M. Peñafiel, and two (2) other
constabulary men of the Reaction Force Battalion,
Sikatuna Village, Diliman, Quezon City went to the stores
of respondents at the Marikina Public Market. Without
any warrant, they seized the boy and girl scouts pants,
dresses, and suits on display at respondents' stalls. The
seizure caused a commotion and embarrassed private
respondents. Receipts were issued for the seized items.
The items were then turned over by Captain Peñafiel to
petitioner corporation for safekeeping.
A criminal complaint for unfair competition was then
filed against private respondents. 2 During its pendency,
petitioner de Guzman exacted from private respondent
Lugatiman the sum of THREE THOUSAND ONE
HUNDRED PESOS (P3,100.00) in order to be dropped
from the complaint. On December 6, 1983, after a
preliminary investigation, the Provincial Fiscal of Rizal
dismissed the complaint against all the private
respondents. On February 6, 1984, he also ordered the
return of the seized items. The seized items were not
immediately returned despite demands. 3 Private
respondents had to go personally to petitioners' place of
business to recover their goods. Even then, not all the
seized items were returned. The other items returned
were of inferior quality.
Private respondents then filed Civil Case No. 51144
against the petitioners for sums of money and
damages. 4 In its Decision dated January 9, 1987, the
trial court ruled for the private respondents, thus:
WHEREFORE, judgment is hereby rendered in favor of
plaintiffs and against defendants, ordering the latter jointly
and severally:
1. To return the amount of P3,100.00 to plaintiff Mirasol
Lugatiman with interest at 12% per annum from January 12,
1984, the date of the last receipt issued, until fully paid;
2. To pay plaintiff Agnes Villa Cruz the sum of P2,000.00 for
the 26 pieces of girl scout items not returned;
3. To pay plaintiffs the amount of P50,000.00 for and as
moral damages and P15,000.00 for and as exemplary
damages; and
4. P5,000.00 for and as attorney's fees and litigation
expenses.
Costs against the defendants.
SO ORDERED.
The decision was appealed to the respondent court. On
January 18, 1989, its Fifth Division, 5 affirmed the
Decision with modification, thus:
WHEREFORE, the decision appealed from is
AFFIRMED with MODIFICATION; and, as
modified, the dispositive portion thereof now
reads as follows:
Judgment is hereby rendered in favor of
plaintiffs (private respondents) and against
defendants (petitioners), ordering the latter
jointly and severally;
1. To return the amount of P3,100.00 to plaintiff
(respondent) Mirasol Lugatiman and cancel her application
for distributor's license;
2. To pay plaintiff (respondent) Agnes Villa Cruz the sum of
P2,000.00 for the unreturned 26 pieces of girl scouts items
with interest at 12% per annum from June 4, 1984 (date the
complaint was filed) until it is fully paid;
3. To pay plaintiffs (respondents) the amount of P10,000.00
each, or a total of P30,000.00, for and as moral damages;
and P5,000.00 each, or a total of P15,000.00, for and as
exemplary damages; and
4. To pay plaintiffs (respondents) P5,000.00 for and as
attorney's fees and litigation expenses.
Costs of the case a quo and the instant appeal are assessed
jointly and severally against defendants-appellants
(petitioners) MHP Garments, Inc. and Larry de Guzman.
SO ORDERED.
In this petition for certiorari, petitioners contend:
FIRST ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN IMPUTING
LIABILITY FOR DAMAGES TO THE PETITIONERS
WHO DID NOT EFFECT THE SEIZURE OF THE
SUBJECT MERCHANDISE.
SECOND ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED WHEN IT
MADE A FINDING THAT THE MANNER WITH
WHICH THE CONFISCATION OF PRIVATE
RESPONDENTS WAS TORTIOUS BUT
PENALIZED INSTEAD THE PETITIONERS WHO
DID NOT COMMIT THE ACT OF CONFISCATION.
THIRD ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED WHEN IT
FOUND FOR THE PRIVATE RESPONDENTS AND
AGAINST THE PETITIONERS.
We affirm.
Article III, section 2, of the Constitution protects our
people from unreasonable search and seizure. It
provides:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
This provision protects not only those who appear to be
innocent but also those who appear to be guilty but are
nevertheless to be presumed innocent until the contrary
is proved. 6 In the case at bench, the seizure was made
without any warrant. Under the Rules of Court, 7 a
warrantless search can only be undertaken under the
following circumstance:
Sec. 12. Search incident to a lawful arrest. - A
person lawfully arrested may be searched for
dangerous weapons or anything which may be
used as proof of the commission of an offense,
without a search warrant.
We hold that the evidence did not justify the warrantless
search and seizure of private respondents' goods.
Petitioner corporation received information that private
respondents were illegally selling Boy Scouts items and
paraphernalia in October 1983. The specific date and
time are not established in the evidence adduced by the
parties. Petitioner de Guzman then made a surveillance
of the stores of private respondents. They reported to
the Philippine Constabulary and on October 25, 1983,
the raid was made on the stores of private respondents
and the supposed illicit goods were seized. The
progression of time between the receipt of the
information and the raid of the stores of private
respondents shows there was sufficient time for
petitioners and the PC raiding party to apply for a
judicial warrant. Despite the sufficiency of time, they did
not apply for a warrant and seized the goods of private
respondents. In doing so, they took the risk of a suit for
damages in case the seizure would be proved to violate
the right of private respondents against unreasonable
search and seizure. In the case at bench, the search and
seizure were clearly illegal. There was no probable cause
for the seizure. Probable cause for a search has been
defined as "such facts and circumstances which would
lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the objects
sought in connection with the offense are in the place
sought to be searched." 8 These facts and circumstances
were not in any way shown by the petitioners to justify
their warrantless search and seizure. Indeed, after a
preliminary investigation, the Provincial Fiscal of Rizal
dismissed their complaint for unfair competition and
later ordered the return of the seized goods.
Petitioners would deflect their liability with the argument
that it was the Philippine Constabulary that conducted
the raid and their participation was only to report the
alleged illegal activity of private respondents.
While undoubtedly, the members of the PC raiding team
should have been included in the complaint for violation
of the private respondents' constitutional rights, still, the
omission will not exculpate petitioners.
In the case of Lim vs. Ponce de Leon, 9 we ruled for the
recovery of damages for violation of constitutional rights
and liberties from public officer or private individual,
thus:
Art. 32. Any public officer or employee, or any
private individual, who directly or
indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following
rights and liberties of another person shall be
liable to the latter for damages.
xxx xxx xxx
(9) The rights to be secure in one's person,
house, papers, and effects against unreasonable
searches and seizures.
xxx xxx xxx
The indemnity shall include moral damages.
Exemplary damages may also be adjudged.
Art. 2219. Moral damages may be recovered in
the following and analogous cases:
xxx xxx xxx
(6) Illegal search;
(1) Acts and actions referred to in Articles 21,
26, 27, 28, 29, 30, 32, 34, and 35.
Pursuant to the foregoing provisions, a person
whose constitutional rights have been violated
or impaired is entitled to actual and moral
damages from the public officer or employee
responsible therefor. In addition, exemplary
damages may also be awarded.
xxx xxx xxx
The very nature of Article 32 is that the wrong
may be civil or criminal. It is not necessary
therefore that there should be malice or bad
faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective
protection of individual rights. Public officials in
the past have abused their powers on the
pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object
of the Article is to put an end to official abuse by
plea of the good faith. In the United States this
remedy is in the nature of a tort. (emphasis
supplied)
In the subsequent case of Aberca vs. Ver, 10 the
Court En Banc explained the liability of persons indirectly
responsible, viz:
[T]he decisive factor in this case, in our view, is
the language of Article 32. The law speaks of an
officer or employee or person "directly or
indirectly" responsible for the violation of the
constitutional rights and liberties of another.
Thus, it is not the actor alone (i.e., the one
directly responsible) who must answer for
damages under Article 32; the person indirectly
responsible has also to answer for the damages
or injury caused to the aggrieved party.
xxx xxx xxx
While it would certainly be too naive to expect
that violators of human rights would easily be
deterred by the prospect of facing damages
suits, it should nonetheless be made clear in no
uncertain terms that Article 32 of the Civil Code
makes the persons who are directly, as well as
indirectly, responsible for the transgression joint
tortfeasors.
xxx xxx xxx
[N]either can it be said that only those shown to
have participated "directly" should be held liable.
Article 32 of the Civil Code encompasses within
the ambit of its provisions those directly, as well
as indirectly, responsible for its violations.
(emphasis supplied)
Applying the aforecited provisions and leading cases, the
respondent court correctly granted damages to private
respondents. Petitioners were indirectly involved in
transgressing the right of private respondents against
unreasonable search and seizure. Firstly, they instigated
the raid pursuant to their covenant in the Memorandum
Agreement to undertake the prosecution in court of all
illegal sources of scouting supplies. 11
As correctly
observed by respondent court:
Indeed, the acts committed by the PC soldiers of
unlawfully seizing appellees' (respondents')
merchandise and of filing the criminal complaint
for unfair competition against appellees
(respondents) were for the protection and
benefit of appellant (petitioner) corporation.
Such being the case, it is, thus, reasonably fair
to infer from those acts that it was upon
appellant (petitioner) corporation's instance that
the PC soldiers conducted the raid and effected
the illegal seizure. These circumstances should
answer the trial court's query — posed in its
decision now under consideration — as to why
the PC soldiers immediately turned over the
seized merchandise to appellant (petitioner)
corporation. 12
The raid was conducted with the active participation of
their employee. Larry de Guzman did not lift a finger to
stop the seizure of the boy and girl scouts items. By
standing by and apparently assenting thereto, he was
liable to the same extent as the officers
themselves. 13 So with the petitioner corporation which
even received for safekeeping the goods unreasonably
seized by the PC raiding team and de Guzman, and
refused to surrender them for quite a time despite the
dismissal of its complaint for unfair competition.
Secondly, Letter of Instruction No. 1299 was precisely
crafted on March 9, 1983 to safeguard not only the
privilege of franchise holder of scouting items but also
the citizen's constitutional rights, to wit:
TITLE: APPREHENSION OF UNAUTHORIZED
MANUFACTURERS AND DISTRIBUTORS OF
SCOUT PARAPHERNALIA AND IMPOUNDING OF
SAID PARAPHERNALIA.
ABSTRACT:
Directs all law enforcement agencies of
the Republic of the Philippines, to
apprehend immediately unauthorized
manufacturers and distributors of Scout
paraphernalia, upon proper application
by the Boy Scouts of the Philippines
and/or Girl Scouts of the Philippines for
warrant of arrest and/or search warrant
with a judge, or such other responsible
officer as may be authorized by law;
and to impound the said paraphernalia
to be used as evidence in court or other
appropriate administrative body. Orders
the immediate and strict compliance
with the Instructions. 14
Under the above provision and as aforediscussed,
petitioners miserably failed to report the unlawful
peddling of scouting goods to the Boy Scouts of the
Philippines for the proper application of a warrant.
Private respondents' rights are immutable and cannot be
sacrificed to transient needs. 15 Petitioners did not have
the unbridled license to cause the seizure of
respondents' goods without any warrant.
And thirdly, if petitioners did not have a hand in the raid,
they should have filed a third-party complaint against
the raiding team for contribution or any other relief, 16 in
respect of respondents' claim for Recovery of Sum of
Money with Damages. Again, they did not.
We have consistently ruled that moral damages are not
awarded to penalize the defendant but to compensate
the plaintiff for the injuries he may have
suffered. 17 Conformably with our ruling in Lim vs. Ponce
de Leon, op. cit., moral damages can be awarded in the
case at bench. There can be no doubt that petitioners
must have suffered sleepless nights, serious anxiety, and
wounded feelings due the tortious raid caused by
petitioners. Private respondents' avowals of
embarrassment and humiliation during the seizure of
their merchandise were supported by their testimonies.
Respondent Cruz declared:
I felt very nervous. I was crying to loss (sic) my goods and
capital because I am doing business with borrowed money
only, there was commotion created by the raiding team and
they even stepped on some of the pants and dresses on
display for sale. All passersby stopped to watch and stared
at me with accusing expressions. I was trembling and
terribly ashamed, sir. 18
Respondent Lugatiman testified:
I felt very nervous. I was crying and I was very much
ashamed because many people have been watching the PC
soldiers hauling my items, and many/I (sic) heard say
"nakaw pala ang mga iyan" for which I am claiming
P25,000.00 for damages.19
While respondent Gonzalez stated thus:
I do not like the way the raid was conducted by the team sir
because it looked like that what I have been selling were
stolen items that they should be confiscated by uniformed
soldiers. Many people were around and the more the
confiscation was made in a scandalous manner; every
clothes, T-shirts, pants and dresses even those not wrapped
dropped to the ground. I was terribly shamed in the
presence of market goers that morning.
Needles to state, the wantonness of the wrongful
seizure justifies the award of exemplary damages. 21 It
will also serve as a stern reminder to all and sundry that
the constitutional protection against unreasonable
search and seizure is a virile reality and not a mere burst
of rhetoric. The all encompassing protection extends
against intrusions directly done both by government and
indirectly by private entities.
IN VIEW WHEREOF, the appealed decision is AFFIRMED
WITH MODIFICATION. We impose a SIX PERCENT (6%)
interest from January 9, 1987 on the TWO THOUSAND
PESOS (P2,000.00) for the unreturned twenty-six (26)
pieces of girl scouts items and a TWELVE PERCENT
(12%) interest, in lieu of SIX PERCENT (6%), on the
said amount upon finality of this Decision until the
payment thereof. 22 Costs against petitioners. SO
ORDERED.
B. DEFAMATION, FRAUD, PHYSICAL INJURIES
 ART 33 NCC
 ART. 353-359, RPC
G.R. No. L-34529 January 27, 1983
MAXIMO MARCIA, AMALIA MOJICA, TIRSO YAP,
DAMIANA MARCIA, EDGAR MARCIA, and RENATO
YAP, petitioners, vs. COURT OF APPEALS, FELARDO
PAJE, and VICTORY LINER, INC., respondents.
Appeal by certiorari from the decision of the Court of
Appeals affirming the judgment of the Court of First
Instance of Rizal, which dismissed the complaint filed by
tile petitioners against private respondents in the
concept of an independent civil action for damages for
physical injuries resulting from reckless imprudence.
On December 23, 1956, in the municipality of Lubao,
Pampanga, a passenger bus operated by private
respondent Victory Liner, Inc. and driven by its
employee. private respondent Felardo Paje, collided with
a jeep driven by Clemente Marcia, resulting in the
latter's death and in physical injuries to herein
petitioners, Edgar Marcia and Renato Yap. Thereupon,
an information for homicide and serious physical injuries
thru reckless imprudence was filed against Felardo Paje
in the Court of First Instance of Pampanga (Criminal
Case No. 2745).
On January 23, 1957, an action for damages (Civil Case
No. 4425) was filed in the Court of First Instance of Rizal
by Edgar Marcia and Renato Yap, together with their
respective parents. against the Victory Liner, Inc. and
Felardo Paje, alleging that, the mishap was due to the
reckless imprudence and negligence of the latter in
driving the passenger bus.
While said Civil Case No. 4425 was in progress in the
Court of First Instance of Rizal, the criminal action
proceeded in the Court of First Instance of Pampanga
(Criminal Case No. 2745). The accused Felardo Paje was
convicted of the offense charged. However, on appeal to
the Court of Appeals, he was acquitted in a decision
promulgated on November 3, 1982, based on the
findings, to wit:
1 That the Victory Liner bus left its post,
kilometer post no. 156, in San Marcelino,
Zambales, at about 2:00 AM
2 That on the highway at Lubao, Pampanga,
between Posts Nos. 83 and 84, the appellant
driver thereof, saw a cargo truck parked in the
middle of the right lane of the road to Manila,
without
3 That appellant slackened the speed of his
truck from 60 km. p.h. to 35 or 40 km. p. h. in
order to pass said truck;
4 That the appellant did not see the oncoming
jeep until it swerved to the left.
5 That the jeep was still far so appellant
attempted to pass the truck but before he could
do so, the jeep came very fast at the center of
the road and out of its lane.
6 That the passengers of the bus shouted at the
appellant to bring the bus to the side so as to
avoid a frontal collision with he jeep, and
appellant brought his bus to the right shoulder
of the road going to Bataan;
7 That the jeep driven by the deceased
Clemente Marcia was running at a fast pace for
which reason the driver lost control and veered
sharply to the right shoulder of the road and
crashed into the bus, parked thereat a few
seconds before.
8 That appellant was not speeding, was diligent,
and hence, not liable for the collision which at
the least, was a fortuitous event for which no
one was responsible.
and the conclusion that "CRIMINAL
NEGLIGENCE is WANTING in this case, and that
appellant was NOT even guilty of CIVIL NEGLIGENCE,
Insofar as appellant was concerned, it was a case of
PURE ACCIDENT."
As a consequence, herein private respondents,
defendants in Civil Case No. 4425 of the Court of First
Instance of Rizal, moved for the dismissal of the
complaint invoking the decision of the Court of Appeals
acquitting Felardo Paje and citing Section I (d), Rule 107
of the Rules of Court now Section 3 (c), Rule I I I of the
New Rules of Court), which reads:
SECTION 1. Rules governing civil actions
arising from offenses. — Except as
otherwise provided by law, the following
rules shall be observed:
xxx xxx xxx
 (d) Extinction of the penal action does
not carry with it extinction of the civil,
unless the extinction proceeds from a
declaration in a final judgment that the
fact from which the civil might arise did
not exist. In the other cases, the
persons entitled to the civil action may
institute it in the jurisdiction and in the
manner provided by law against the
person who may be liable for restitution
of the thing and reparation or indemnity
for the damages suffered.
The trial court denied the motion to dismiss and,
thereafter, continued to hear defendants' (herein private
respondents) evidence. The following were presented as
defendants' evidence in chief:
(a) the whole record of Criminal Case No. 2745
of the Court of First Instance of Pampanga in
which defendant Felardo Paje was by reason of
the occurrence prosecuted criminally and
convicted of homicide with serious physical
injuries thru reckless imprudence;
(b) the decision of the Court of Appeals in CA-
G.R. No. 01691 Cr, acquitting the accused; and
(c) copy of the brief of the said defendant as
accused-appellant in the said Court of Appeals
case.
On August 10, 1966, the Court of First Instance of Rizal
rendered a decision dismissing plaintiffs' complaint
against the defendants Victory Liner, Inc. and Felardo
Paje, without pronouncement as to costs.
Petitioners appealed the case to the (Court of Appeals
CA-G.R. No. 38964-R) alleging that the acquittal of Paje
in the criminal action for homicide and serious physical
injuries thru reckless imprudence "is not a ground for
dismissing the complaint in the instant civil action; that
the instant civil action is entirely separate and distinct
from the criminal action and shall proceed independently
of the criminal prosecution, so that whatever may have
been the result of the criminal action is irrelevant to this
civil action; that Section 2 of Rule 111 of the Rules of
Court and not Section 3, paragraph (c) of the said rule
applies; that the statement in the decision of the Court
of Appeals in the criminal action that defendant Paje as
accused therein was not guilty of civil negligence is
without the jurisdiction of the said Court to make and is
to be completely disregarded as an extraneous, officious
and void statement which cannot affect in any way the
instant civil action; that the records of the criminal
action against defendant Paje are inadmissible evidence;
that it has been established in the case at bar, not only
by preponderance of evidence but by uncontradicted,
conclusive evidence that petitioners suffered damages as
a proximate result of the negligence of respondent Paje
and that it has been established, not only by
preponderance of evidence but by uncontradicted,
conclusive evidence, that the damages suffered by
petitioners as a result of the negligence of private
respondents is in the amount of P250,817.96, and that
the latter should be sentenced, jointly and severally, to
pay the same to petitioner.
In the meantime, the heirs of Clemente Marcia who, as
aforesaid, died as a result of the collision, instituted a
separate civil action in the Court of First Instance of
Rizal (Civil Case No. 6880) for damages based on the
alleged reckless imprudence of bus driver Felardo Paje,
praying that the driver and the Victory Liner, Inc. be
ordered to pay jointly and severally the amount of
damages claimed. The complaint of the heirs of
Clemente Marcia was dismissed by the trial court. Appeal
on questions of law was taken to this Court (Laura
Corpus et al vs. Felardo Paje at al, 28 SCRA 1062)
which, however, affirmed the order for the reason,
among others, that "(1) The acquittal of the defendant
Felardo Paje by the Court of Appeals in the criminal
action on the ground that the reckless imprudence or
criminal negligence charged against him did not exist
and that the collision was a case of pure accident, was a
bar to the civil action for damages for the death of
Clemente Marcia, which action was based upon the
same criminal negligence of which the defendant
Felardo Paje was acquitted in the criminal action."
Following the ruling of this Court in the Corpus vs.
Paje decision, respondent Court of Appeals held that the
private respondents Cannot be held civilly liable after it
had ruled in the criminal action that negligence was
wanting and that the collision was a case of pure
accident.
Dissatisfied with the decision, petitioners have come to
US alleging that the Court of Appeals erred:
I. IN NOT HOLDING THAT PETITIONERS
INSTANT CIVIL ACTION FOR DAMAGES
AGAINST PRIVATE RESPONDENTS FOR
PHYSICAL INJURIES RESULTING FROM
NEGLIGENCE IS AN INDEPENDENT ONE,
ENTIRELY SEPARATE AND DISTINCT FROM
THE CRIMINAL ACTION, UNDER THE
PROVISIONS OF ARTICLES 33, 2176 AND
2177 OF THE NEW (CIVIL CODE AND
SECTION 2 OF RULE 111 OF THE RULES OF
COURT. AND IN INSTEAD HOLDING THAT
THE INSTANT ACTION IS NOT AMONG THE
INDEPENDENT CIVIL ACTIONS
AUTHORIZED BY THE SAID PROVISIONS.
II. IN NOT HOLDING THAT THE ACQUITTAL
OF RESPONDENT FELARDO PAJE, DRIVER
OF RESPONDENT VICTORY LINER, INC., IN
THE CRIMINAL ACTION BASED ON THE
SAID PHYSICAL INJURIES AND
 NEGLIGENCE IS ENTIRELY IRRELEVANT TO
THE INSTANT CIVIL ACTION FOR DAMAGES
BY VIRTUE OF THE AFORECITED
PROVISIONS OF THE NEW CIVIL CODE AND
THE RULES OF COURT, AND IN INSTEAD
HOLDING THAT THE SAID ACQUITTAL IS A
BAR TO THE INSTANT CIVIL ACTION
UNDER SECTION 3 (c) OF RULE I I I AND
SECTION 49 (c) OF RULE 39 OF THE RULES
OF COURT.
III. IN NOT HOLDING THAT THE EVIDENCE
ADDUCED BY PRIVATE RESPONDENTS IN
THE INSTANT CIVIL ACTION FOR
DAMAGES, CONSISTING OF THE RECORDS
OF THE CRIMINAL ACTION IN THE TRIAL
COURT, THE DECISION OF THE COURT OF
APPEALS ACQUITTING RESPONDENT PAJE
AND THE COPY OF THE BRIEF OF THE SAID
RESPONDENT AS ACCUSED-APPELLANT,
ARE INADMISSIBLE IN THE INSTANT CIVIL
ACTION FOR DAMAGES.
IV. IN NOT HOLDING THAT IT HAS BEEN
ESTABLISHED IN THE CASE AT BAR, NOT
ONLY BY PREPONDERANCE OF EVIDENCE
BUT BY UNCONTRADICTED, CONCLUSIVE
EVIDENCE, THAT PETITIONERS SUFFERED
DAMAGES AS A PROXIMATE RESULT OF
THE NEGLIGENCE OF RESPONDENT PAJE.
V. IN NOT HOLDING THAT IT HAS BEEN
ESTABLISHED, NOT ONLY BY
PREPONDERANCE OF EVIDENCE BUT BY
UNCONTRADICTED, CONCLUSIVE
EVIDENCE, THAT THE DAMAGES SUFFERED
BY PETITIONERS AS A RESULT OF THE
NEGLIGENCE OF DEFENDANTS IS IN THE
AMOUNT OF P250,817.96, AND IN NOT
SENTENCING PRIVATE RESPONDENTS
JOINTLY AND SEVERALLY TO PAY THE
SAME TO PETITIONERS.
It is the stand of herein petitioners that Section 2, Rule
111 of the Rules of Court, not Section 3 (c) thereof,
should apply in the case at bar.
Sec. 2. Independent civil action. — In the cases
provided for in Articles 31, 32, 33, 34 and 2177
of the Civil Code of the Philippines, an
independent civil action entirely separate and
distinct from the criminal action, may be brought
by the injured party during the pendency of the
criminal case, provided the right is reserved as
required in the preceding section. Such civil
action shall proceed independently of the
criminal prosecution, and shall require only a
preponderance of evidence.
We do not agree, Section 2 of Rule 111 merely refers to
the institution of an independent civil action without
waiting for the filing or termination of the criminal action
and requires only preponderance of evidence to prosper
and not proof beyond reasonable doubt as required for
conviction in criminal cases. However, an acquittal based
on the finding that the facts upon which civil liability did
not exist, bars the filing of an independent civil action if
it is based on the crime. As early as 1952, We have held
in the case of Tan vs. Standard Vacuum Oil Company 91
Phil. 672, that "the acquittal of the accused from the
criminal charge will not necessarily extinguish the civil
liability unless the court declares in the judgment that
the fact from which the civil liability might arise did not
exist. Where the court states 'that the evidence throws
no light on the cause of fire and that it was an
unfortunate accident for which the accused cannot be
held responsible,' this declaration fits well into the
exception of the rule which exempts the accused, from
civil liability. " Likewise, in Albornoz vs. Albornoz, 98 Phil.
785, it was the ruling that "where the judgment in a
criminal action contains an express declaration that the
basis of claimant's action did not exist, the latter's action
for civil liability is barred under section 1 (d) Rule 107 of
the Rules of Court." And, in De Mesa vs. Priela 24 SCRA
582, this Court, speaking through then Chief Justice
Roberto Concepcion, ruled that extinction of the penal
action does not carry with it extinction of the civil, unless
the extinction proceeds from a declaration in a final
judgment that the fact from which the civil might arise
did not exist. In other cases, the person entitled to the
civil action may institute it in the jurisdiction and in the
manner provided by law against the person who may be
liable for restitution of the thing and reparation or
indemnity for the damage suffered (Sec. 3 [c], Rule 111,
Rules of Court.)"
As held in Corpus vs. Paje, supra, reckless imprudence
or criminal negligence is not one of the three crimes
mentioned in Article 33 of the Civil Code, which
provides:
ART. 33. In cases of defamation, fraud, and
physical injuries, a civil action for damages,
entirely separate and distinct from the criminal
action may be brought by the injured party.
Such civil action shall proceed independently of
the criminal prosecution, and shall require only a
preponderance of evidence.
The above article speaks only of defamation, fraud and
physical injuries. The injuries suffered by herein
petitioners were alleged to be the result of criminal
negligence; they were not inflicted with malice. Hence,
no independent civil action for damages may be
instituted in connection therewith. Further, Section 3 (c),
Rule 111 of the Rules of Court states that "(c) Extinction
of the penal action does not carry with it extinction of
the civil, unless the extinction proceeds from a
declaration in a final judgment that the fact from which
the civil might arise did not exist." Otherwise stated,
unless the act from which the civil liability arises is
declared to be nonexistent in the final judgment, the
extinction of the criminal liability will not carry with it the
extinction of the civil liability. Thus, if a person is
charged with homicide and successfully pleaded self-
defense, his acquittal by reason thereof will extinguish
his civil liability. He has not incurred any criminal liability.
On the other hand, if his acquittal is, for instance, due to
the fact that he was not sufficiently Identified to be the
assailant, a civil action for damages may be maintained.
His acquittal is not due to non-existence of the crime
from which civil liability might arise, but because he was
not, in the eyes of the court, sufficiently Identified as the
perpetrator of the crime.
In People vs. Buan, 22 SCRA 1383, this Court, speaking
through Mr. Justice J.B.L. Reyes, said that "the essence
of the quasi offense of criminal negligence under Article
365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes the
negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into account to
determine the penalty; it does not qualify the substance
of the offense.
The charge against Felardo Paje was not for homicide
and physical injuries but for reckless imprudence or
criminal negligence resulting in homicide (death of
Clemente Marcia) and physical injuries suffered by Edgar
Marcia and Renato Yap. They are not one of the three
(3) crimes mentioned in Article 33 of the Civil Code and,
therefore, no civil action shall proceed independently of
the criminal prosecution.
The case of Laura Corpus vs. Felardo Paje (supra) is the
same as the case at bar, the only difference being the
party-plaintiffs or petitioners. Clemente Marcia died,
while Edgar Marcia and Renato Yap suffered physical
injuries in the same accident. The heirs of Clemente
Marcia filed Civil Case No. 6880 in the Court of First
Instance of Rizal against herein respondents. The case
was dismissed and appealed directly to this
Court.1äwphï1.ñët The order appealed from was
affirmed, as recorded in Laura Corpus vs. Felardo Paje,
28 SCRA 1062.
The case at bar (Civil Case No. 4425) was filed by Edgar
Marcia and Renato Yap against the same defendants in
the Court of First Instance of Rizal. After trial, the case
was dismissed and affirmed by the Court of Appeals. It
is now before Us on appeal by certiorari from the said
decision.
Relative to the admissibility of the documents, to wit; (a)
the records of the criminal case against Paje, (b) the
decision of the Court of Appeals acquitting the latter;
and (c) copy of the brief of the respondent Paje as
accused-appellant, suffice it to say that since petitioners'
cause of action is based on the alleged recklessness and
imprudence of respondent Paje it necessarily follows
that his acquittal by the Court of Appeals and its
declaration that the mishap was "pure accident" are
relevant and material evidence. In fact, the lower court
may even take judicial notice of the decision of the Court
of Appeals in said criminal case.
Finally, with respect to the findings of fact of the Court
of Appeals, well settled is the rule that the same are
final and cannot be disturbed by Us, particularly where
they are based, as they are in the case at bar, upon
substantial evidence.
WHEREFORE, the decision appealed from is hereby
AFFIRMED in toto. With costs against the petitioners. SO
ORDERED.
G.R. No. L-51183 December 21, 1983
CARMEN L. MADEJA, petitioner, vs. HON. FELIX T.
CARO and EVA ARELLANO-JAPZON, respondents.
In Criminal Case No. 75-88 of the defunct Court of First
Instance of Eastern Samar, DR. EVA A. JAPZON is
accused of homicide through reckless imprudence for
the death of Cleto Madeja after an appendectomy. The
complaining witness is the widow of the deceased,
Carmen L. Madeja. The information states that: "The
offended party Carmen L. Madeja reserving her right to
file a separate civil action for damages." (Rollo, p. 36.)
The criminal case still pending, Carmen L. Madeja sued
Dr. Eva A. Japzon for damages in Civil Case No. 141 of
the same court. She alleged that her husband died
because of the gross negligence of Dr. Japzon. The
respondent judge granted the defendant's motion to
dismiss which motion invoked Section 3(a) of Rule 111
of the Rules of Court which reads:
Sec. 3. Other civil actions arising from offenses .
— In all cases not included in the preceding
section the following rules shall be observed:
(a) Criminal and civil actions arising from the
same offense may be instituted separately, but
after the criminal action has been commenced
the civil action can not be instituted until final
judgment has been rendered in the criminal
action. ...
According to the respondent judge, "under the foregoing
Sec. 3 (a), Rule 111, New Rules of Court, the instant
civil action may be instituted only after final judgment
has been rendered in the criminal action." (Rollo, p. 33.)
The instant petition which seeks to set aside the order of
the respondent judge granting the defendant's motion to
dismiss Civil Case No. 141 is highly impressed with
merit.
Section 2, Rule 111 of the Rules of Court in relation to
Article 33 of the Civil Code is the applicable provision.
The two enactments are quoted
hereinbelow:têñ.£îhqwâ£
Sec. 2. Independent civil action. — In the cases
provided for in Articles 31,32, 33, 34 and 2177
of the Civil Code of the Philippines, an
independent civil action entirely separate and
distinct from the criminal action, may be brought
by the injured party during the pendency of the
criminal case, provided the right is reserved as
required in the preceding section. Such civil
action shall proceed independently of the
criminal prosecution, and shall require only a
preponderance of evidence." (Rule 111, Rules of
Court.)
Art. 33. In cases of defamation, fraud, and
physical injuries, a civil action for damages,
entirely separate and distinct from the criminal
action, may be brought by the injured party.
Such civil action shall proceed independently of
the criminal prosecution, and shall require only a
preponderance of evidence. (Civil Code,)
There are at least two things about Art. 33 of the Civil
Code which are worth noting, namely:
1. The civil action for damages which it allows to be
instituted is ex-delicto. This is manifest from the
provision which uses the expressions "criminal action"
and "criminal prosecution." This conclusion is supported
by the comment of the Code Commission, thus:
The underlying purpose of the principle
under consideration is to allow the
citizen to enforce his rights in a private
action brought by him, regardless of the
action of the State attorney. It is not
conducive to civic spirit and to individual
self-reliance and initiative to habituate
the citizens to depend upon the
government for the vindication of their
own private rights. It is true that in
many of the cases referred to in the
provision cited, a criminal prosecution is
proper, but it should be remembered
that while the State is the complainant
in the criminal case, the injured
individual is the one most concerned
because it is he who has suffered
directly. He should be permitted to
demand reparation for the wrong which
peculiarly affects him. (Report, p. 46.)
And Tolentino says:
The general rule is that when a criminal
action is instituted, the civil action for
recovery of civil liability arising from the
offense charged is impliedly instituted
with the criminal action, unless the
offended party reserves his right to
institute it separately; and after a
criminal action has been commenced,
no civil action arising from the same
offense can be prosecuted. The present
articles creates an exception to this rule
when the offense is defamation, fraud,
or physical injuries, In these cases, a
civil action may be filed independently
of the criminal action, even if there has
been no reservation made by the
injured party; the law itself in this article
makes such reservation; but the
claimant is not given the right to
determine whether the civil action
should be scheduled or suspended until
the criminal action has been terminated.
The result of the civil action is thus
independent of the result of the civil
action." (I Civil Code, p. 144 [1974.])
2. The term "physical injuries" is used in a generic
sense. It is not the crime of physical injuries defined in
the Revised Penal Code. It includes not only physical
injuries but consummated, frustrated and attempted
homicide.
The Article in question uses the words
'defamation', 'fraud' and 'physical
injuries.' Defamation and fraud are used
in their ordinary sense because there
are no specific provisions in the Revised
Penal Code using these terms as means
of offenses defined therein, so that
these two terms defamation and fraud
must have been used not to impart to
them any technical meaning in the laws
of the Philippines, but in their generic
sense. With this apparent circumstance
in mind, it is evident that the terms
'physical injuries' could not have been
used in its specific sense as a crime
defined in the Revised Penal Code, for it
is difficult to believe that the Code
Commission would have used terms in
the same article-some in their general
 and another in its technical sense. In
other words, the term 'physical injuries'
should be understood to mean bodily
injury, not the crime of physical injuries,
bacause the terms used with the latter
are general terms. In any case the Code
Commission recommended that the civil
action for physical injuries be similar to
the civil action for assault and battery in
American Law, and this
recommendation must hove been
accepted by the Legislature when it
approved the article intact as
recommended. If the intent has been to
establish a civil action for the bodily
harm received by the complainant
similar to the civil action for assault and
battery, as the Code Commission states,
the civil action should lie whether the
offense committed is that of physical
injuries, or frustrated homicide, or
attempted homicide, or even death,"
(Carandang vs. Santiago, 97 Phil. 94,
96-97 [1955].)
Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062,
which states that reckless imprudence or criminal
negligence is not included in Article 33 of the Civil Code
is not authoritative. Of eleven justices only nine took
part in the decision and four of them merely concurred
in the result.
In the light of the foregoing, it is apparent that the civil
action against Dr. Japzon may proceed independently of
the criminal action against her.
WHEREFORE, the petition is hereby granted; the order
dismissing Civil Case No. 141 is hereby set aside; no
special pronouncement as to costs. SO ORDERED.
1. DEFAMATION
[G.R. No. 135306. January 28, 2003]
MVRS PUBLICATIONS, INC., MARS C. LACONSAY,
MYLA C. AGUJA and AGUSTINO G. BINEGAS,
JR., petitioners, vs. ISLAMIC DA'WAH COUNCIL OF
THE PHILIPPINES, INC., ABDUL-RAHMAN R.T.
LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID
DE GUZMAN, AL-FARED DA SILVA and IBRAHIM
B.A. JUNIO, respondents.
I may utterly detest what you
write, but I shall fight
to the death to make it possible for you to
continue writing it. - Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once again
the basic liberties to free speech and free press -
liberties that belong as well, if not more, to those who
question, who do not conform, who differ. For the
ultimate good which we all strive to achieve for
ourselves and our posterity can better be reached by a
free exchange of ideas, where the best test of truth is
the power of the thought to get itself accepted in the
competition of the free market - not just the ideas we
desire, but including those thoughts we despise.[1]
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES,
INC., a local federation of more than seventy (70)
Muslim religious organizations, and individual Muslims
ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and
IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of
Manila a complaint for damages in their own behalf and
as a class suit in behalf of the Muslim members
nationwide against MVRS PUBLICATIONS, INC., MARS C.
LACONSAY, MYLA C. AGUJA and AGUSTINO G.
BINEGAS, JR., arising from an article published in the 1
August 1992 issue of Bulgar, a daily tabloid. The article
reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay.
Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila ay kakain.
Ginagawa nila itong Diyos at sinasamba pa nila ito sa
tuwing araw ng kanilang pangingilin lalung-lalo na sa
araw na tinatawag nilang Ramadan."
The complaint alleged that the libelous statement
was insulting and damaging to the Muslims; that these
words alluding to the pig as the God of the Muslims was
not only published out of sheer ignorance but with intent
to hurt the feelings, cast insult and disparage the
Muslims and Islam, as a religion in this country, in
violation of law, public policy, good morals and human
relations; that on account of these libelous
words Bulgar insulted not only the Muslims in the
Philippines but the entire Muslim world, especially every
Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G.
BINEGAS, JR., in their defense, contended that the
article did not mention respondents as the object of the
article and therefore were not entitled to damages; and,
that the article was merely an expression of belief or
opinion and was published without malice nor intention
to cause damage, prejudice or injury to Muslims.[2]
 On 30 June 1995 the trial court dismissed the
complaint holding that the plaintiffs failed to establish
their cause of action since the persons allegedly
defamed by the article were not specifically identified -
It must be noted that the persons allegedly defamed,
the herein plaintiffs, were not identified with specificity.
The subject article was directed at the Muslims without
mentioning or identifying the herein plaintiffs x x x x It is
thus apparent that the alleged libelous article refers to
the larger collectivity of Muslims for which the readers of
the libel could not readily identify the personalities of the
persons defamed. Hence, it is difficult for an individual
Muslim member to prove that the defamatory remarks
apply to him. The evidence presented in this case failed
to convince this court that, indeed, the defamatory
remarks really applied to the herein plaintiffs.
On 27 August 1998 the Court of Appeals reversed
the decision of the trial court. It opined that it was "clear
from the disputed article that the defamation was
directed to all adherents of the Islamic faith. It stated
that pigs were sacred and idolized as god by members
of the Muslim religion. This libelous imputation
undeniably applied to the plaintiff-appellants who are
Muslims sharing the same religious beliefs." It added
that the suit for damages was a "class suit" and that
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s
religious status as a Muslim umbrella organization gave
it the requisite personality to sue and protect the
interests of all Muslims.[4]
Hence, the instant petition for review assailing the
findings of the appellate court (a) on the existence of
the elements of libel, (b) the right of respondents to
institute the class suit, and, (c) the liability of petitioners
for moral damages, exemplary damages, attorney's fees
and costs of suit.
Defamation, which includes libel and slander,
means the offense of injuring a person's character, fame
or reputation through false and malicious
statements.[5] It is that which tends to injure reputation
or to diminish the esteem, respect, good will or
confidence in the plaintiff or to excite derogatory
feelings or opinions about the plaintiff.[6] It is the
publication of anything which is injurious to the good
name or reputation of another or tends to bring him into
disrepute.[7] Defamation is an invasion of a relational
interest since it involves the opinion which others in the
community may have, or tend to have, of the plaintiff.[8]
It must be stressed that words which are merely
insulting are not actionable as libel or slander per se,
and mere words of general abuse however opprobrious,
ill-natured, or vexatious, whether written or spoken, do
not constitute a basis for an action for defamation in the
absence of an allegation for special damages. [9] The fact
that the language is offensive to the plaintiff does not
make it actionable by itself.[10]
Declarations made about a large class of people
cannot be interpreted to advert to an identified or
identifiable individual. Absent circumstances specifically
pointing or alluding to a particular member of a class, no
member of such class has a right of action[11] without at
all impairing the equally demanding right of free speech
and expression, as well as of the press, under the Bill of
Rights.[12] Thus, in Newsweek, Inc. v. Intermediate
Appellate Court,[13] we dismissed a complaint for libel
against Newsweek, Inc., on the ground that private
respondents failed to state a cause of action since they
made no allegation in the complaint that anything
contained in the article complained of specifically
referred to any of them. Private respondents,
incorporated associations of sugarcane planters in
Negros Occidental claiming to have 8,500 members and
several individual members, filed a class action suit for
damages in behalf of all sugarcane planters in Negros
Occidental. The complaint filed in the Court of First
Instance of Bacolod City alleged that Newsweek, Inc.,
committed libel against them by the publication of the
article "Island of Fear" in its weekly newsmagazine
allegedly depicting Negros Province as a place
dominated by wealthy landowners and sugar planters
who not only exploited the impoverished and underpaid
sugarcane workers but also brutalized and killed them
with impunity. Private respondents alleged that the
article showed a deliberate and malicious use of
falsehood, slanted presentation and/or
misrepresentation of facts intended to put the sugarcane
planters in a bad light, expose them to public ridicule,
discredit and humiliation in the Philippines and abroad,
and make them the objects of hatred, contempt and
hostility of their agricultural workers and of the public in
general. We ratiocinated -
x x x where the defamation is alleged to have been
directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to
apply to every individual in that group or class, or
sufficiently specific so that each individual in the class or
group can prove that the defamatory statement
specifically pointed to him, so that he can bring the
action separately, if need be x x x x The case at bar is
not a class suit. It is not a case where one or more may
sue for the benefit of all, or where the representation of
class interest affected by the judgment or decree is
indispensable to make each member of the class an
actual party. We have here a case where each of the
plaintiffs has a separate and distinct reputation in the
community. They do not have a common or general
interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable
person who was allegedly injured by
the Bulgar article. Since the persons allegedly defamed
could not be identifiable, private respondents have no
individual causes of action; hence, they cannot sue for a
class allegedly disparaged. Private respondents must
have a cause of action in common with the class to
which they belong to in order for the case to prosper.
An individual Muslim has a reputation that is
personal, separate and distinct in the community. Each
Muslim, as part of the larger Muslim community in the
Philippines of over five (5) million people, belongs to a
different trade and profession; each has a varying
interest and a divergent political and religious view -
some may be conservative, others liberal. A Muslim may
find the article dishonorable, even blasphemous; others
may find it as an opportunity to strengthen their faith
and educate the non-believers and the "infidels." There
is no injury to the reputation of the individual Muslims
who constitute this community that can give rise to an
action for group libel. Each reputation is personal in
character to every person. Together, the Muslims do not
have a single common reputation that will give them a
common or general interest in the subject matter of the
controversy.
In Arcand v. The Evening Call Publishing
Company,[14] the United States Court of Appeals held
that one guiding principle of group libel is
that defamation of a large group does not give rise to a
cause of action on the part of an individual unless it can
be shown that he is the target of the defamatory matter .
The rule on libel has been restrictive. In an
American case,[15] a person had allegedly committed libel
against all persons of the Jewish religion. The Court held
that there could be no libel against an extensive
community in common law. In an English case, where
libel consisted of allegations of immorality in a Catholic
nunnery, the Court considered that if the libel were on
the whole Roman Catholic Church generally, then the
defendant must be absolved.[16] With regard to the
largest sectors in society, including religious groups, it
may be generally concluded that no criminal action at
the behest of the state, or civil action on behalf of the
individual, will lie.
In another case, the plaintiffs claimed that all
Muslims, numbering more than 600 million, were
defamed by the airing of a national television broadcast
of a film depicting the public execution of a Saudi
Arabian princess accused of adultery, and alleging that
such film was "insulting and defamatory" to the Islamic
religion.[17] The United States District Court of the
Northern District of California concluded that the
plaintiffs' prayer for $20 Billion in damages arising from
"an international conspiracy to insult, ridicule, discredit
and abuse followers of Islam throughout the world,
Arabs and the Kingdom of Saudi Arabia" bordered on
the "frivolous," ruling that the plaintiffs had failed to
demonstrate an actionable claim for defamation. The
California Court stressed that the aim of the law on
defamation was to protect individuals; a group may be
sufficiently large that a statement concerning it could
not defame individual group members.[18]
Philip Wittenberg, in his book "Dangerous Words: A
Guide to the Law of Libel,"[19] discusses the
inappropriateness of any action for tortious libel
involving large groups, and provides a succinct
illustration:
There are groupings which may be finite enough so that
a description of the body is a description of the
members. Here the problem is merely one of
evaluation. Is the description of the member implicit in
the description of the body, or is there a possibility that
a description of the body may consist of a variety of
persons, those included within the charge, and those
excluded from it?
A general charge that the lawyers in the city are
shysters would obviously not be a charge that all of the
lawyers were shysters. A charge that the lawyers in a
local point in a great city, such as Times Square in New
York City, were shysters would obviously not include all
of the lawyers who practiced in that district; but a
statement that all of the lawyers who practiced in a
particular building in that district were shysters would be
a specific charge, so that any lawyer having an office
within that building could sue.
If the group is a very large one, then the alleged
libelous statement is considered to have no application
to anyone in particular, since one might as well defame
all mankind. Not only does the group as such have no
action; the plaintiff does not establish any personal
reference to himself.[20] At present, modern societal
groups are both numerous and complex. The same
principle follows with these groups: as the size of these
groups increases, the chances for members of such
groups to recover damages on tortious libel become
elusive. This principle is said to embrace two (2)
important public policies: first, where the group referred
to is large, the courts presume that no reasonable
reader would take the statements as so literally applying
to each individual member; and second, the limitation on
liability would satisfactorily safeguard freedom of speech
and expression, as well as of the press, effecting a
sound compromise between the conflicting fundamental
interests involved in libel cases.[21]
In the instant case, the Muslim community is too
vast as to readily ascertain who among the Muslims
were particularly defamed. The size of the group renders
the reference as indeterminate and generic as a similar
attack on Catholics, Protestants, Buddhists or Mormons
would do. The word "Muslim" is descriptive of those who
are believers of Islam, a religion divided into varying
sects, such as the Sunnites, the Shiites, the Kharijites,
the Sufis and others based upon political and theological
distinctions. "Muslim" is a name which describes only a
general segment of the Philippine population, comprising
a heterogeneous body whose construction is not so well
defined as to render it impossible for any representative
identification.
The Christian religion in the Philippines is likewise
divided into different sects: Catholic, Baptist,
Episcopalian, Presbyterian, Lutheran, and other groups
the essence of which may lie in an inspired charlatan,
whose temple may be a corner house in the fringes of
the countryside. As with the Christian religion, so it is
with other religions that represent the nation's culturally
diverse people and minister to each one's spiritual
needs. The Muslim population may be divided into
smaller groups with varying agenda, from the prayerful
conservative to the passionately radical. These divisions
in the Muslim population may still be too large and
ambiguous to provide a reasonable inference to any
personality who can bring a case in an action for libel.
The foregoing are in essence the same view
scholarly expressed by Mr. Justice Reynato S. Puno in
the course of the deliberations in this case. We
extensively reproduce hereunder his comprehensive and
penetrating discussion on group libel -
Defamation is made up of the twin torts of libel and
slander the one being, in general, written, while the
other in general is oral. In either form, defamation is an
invasion of the interest in reputation and good name.
This is a relational interest since it involves the opinion
others in the community may have, or tend to have of
the plaintiff.
The law of defamation protects the interest in reputation
the interest in acquiring, retaining and enjoying ones
reputation as good as ones character and conduct
warrant. The mere fact that the plaintiffs feelings and
sensibilities have been offended is not enough to create
a cause of action for defamation. Defamation requires
that something be communicated to a third person that
may affect the opinion others may have of the plaintiff.
The unprivileged communication must be shown of a
statement that would tend to hurt plaintiffs reputation,
to impair plaintiffs standing in the community.
Although the gist of an action for defamation is an injury
to reputation, the focus of a defamation action is upon
the allegedly defamatory statement itself and its
predictable effect upon third persons. A statement is
ordinarily considered defamatory if it tend[s] to expose
one to public hatred, shame, obloquy, contumely,
odium, contempt, ridicule, aversion, ostracism,
degradation or disgrace The Restatement of Torts
defines a defamatory statement as one that tends to so
harm the reputation of another as to lower him in the
estimation of the community or to deter third persons
from associating or dealing with him.
Consequently as a prerequisite to recovery, it is
necessary for the plaintiff to prove as part of his prima
facie case that the defendant (1) published a statement
that was (2) defamatory (3) of and concerning the
plaintiff.
The rule in libel is that the action must be brought by
the person against whom the defamatory charge has
been made. In the American jurisdiction, no action lies
by a third person for damages suffered by reason of
defamation of another person, even though the plaintiff
suffers some injury therefrom. For recovery in
defamation cases, it is necessary that the publication be
of and concerning the plaintiff. Even when a publication
may be clearly defamatory as to somebody, if the words
have no personal application to the plaintiff, they are not
actionable by him. If no one is identified, there can be
no libel because no ones reputation has been injured x x
xx
In fine, in order for one to maintain an action for an
alleged defamatory statement, it must appear that the
plaintiff is the person with reference to whom the
statement was made. This principle is of vital importance
in cases where a group or class is defamed since,
usually, the larger the collective, the more difficult it is
for an individual member to show that he was the
person at whom the defamation was directed.
If the defamatory statements were directed at a small,
restricted group of persons, they applied to any member
of the group, and an individual member could maintain
an action for defamation. When the defamatory
language was used toward a small group or class,
including every member, it has been held that the
defamatory language referred to each member so that
each could maintain an action. This small group or class
may be a jury, persons engaged in certain businesses,
professions or employments, a restricted subdivision of a
particular class, a society, a football team, a family,
small groups of union officials, a board of public officers,
or engineers of a particular company.
In contrast, if defamatory words are used broadly in
respect to a large class or group of persons, and there is
nothing that points, or by proper colloquium or innuendo
can be made to apply, to a particular member of the
class or group, no member has a right of action for libel
or slander. Where the defamatory matter had no special,
personal application and was so general that no
individual damages could be presumed, and where the
class referred to was so numerous that great vexation
and oppression might grow out of the multiplicity of
suits, no private action could be maintained. This rule
has been applied to defamatory publications concerning
groups or classes of persons engaged in a particular
business, profession or employment, directed at
associations or groups of association officials, and to
those directed at miscellaneous groups or classes of
persons.
Distinguishing a small group-which if defamed entitles all
its members to sue from a large group which if defamed
entitles no one to sue is not always so simple. Some
authorities have noted that in cases permitting recovery,
the group generally has twenty five (25) or fewer
members. However, there is usually no articulated limit
on size. Suits have been permitted by members of fairly
large groups when some distinguishing characteristic of
the individual or group increases the likelihood that the
statement could be interpreted to apply individually. For
example, a single player on the 60 to 70 man Oklahoma
University football team was permitted to sue when a
writer accused the entire team of taking amphetamines
to hop up its performance; the individual was a fullback,
i.e., a significant position on the team and had played in
all but two of the teams games.
A prime consideration, therefore, is the public perception
of the size of the group and whether a statement will be
interpreted to refer to every member. The more
organized and cohesive a group, the easier it is to tar all
its members with the same brush and the more likely a
court will permit a suit from an individual even if the
group includes more than twenty five (25) members. At
some point, however, increasing size may be seen
to dilute the harm to individuals and any resulting injury
will fall beneath the threshold for a viable lawsuit.
x x x x There are many other groupings of men than
those that are contained within the foregoing group
classifications. There are all the religions of the world,
there are all the political and ideological beliefs; there
are the many colors of the human race. Group
defamation has been a fertile and dangerous weapon of
attack on various racial, religious and political minorities.
Some states, therefore, have passed statutes to prevent
concerted efforts to harass minority groups in the United
States by making it a crime to circulate insidious rumors
against racial and religious groups. Thus far, any civil
remedy for such broadside defamation has been lacking.
There have been numerous attempts by individual
members to seek redress in the courts for libel on these
groups, but very few have succeeded because it felt that
the groups are too large and poorly defined to support a
finding that the plaintiff was singled out for personal
attack x x x x (citations omitted).
Our conclusion therefore is that the statements
published by petitioners in the instant case did not
specifically identify nor refer to any particular individuals
who were purportedly the subject of the alleged libelous
publication. Respondents can scarcely claim to having
been singled out for social censure pointedly resulting in
damages.
A contrary view is expressed that what is involved
in the present case is an intentional tortious act
causing mental distress and not an action for libel. That
opinion invokes Chaplinsky v. New Hampshire[22] where
the U.S. Supreme Court held that words heaping
extreme profanity, intended merely to incite hostility,
hatred or violence, have no social value and do not
enjoy constitutional protection; and Beauharnais v.
Illinois[23] where it was also ruled that hate speech which
denigrates a group of persons identified by their religion,
race or ethnic origin defames that group and the law
may validly prohibit such speech on the same ground as
defamation of an individual.
We do not agree to the contrary view articulated in
the immediately preceeding paragraph. Primarily, an
"emotional distress" tort action is personal in nature,
i.e., it is a civil action filed by an individual[24] to assuage
the injuries to his emotional tranquility due to personal
attacks on his character. It has no application in the
instant case since no particular individual was identified
in the disputed article of Bulgar. Also, the purported
damage caused by the article, assuming there was any,
falls under the principle of relational harm - which
includes harm to social relationships in the community in
the form of defamation; as distinguished from the
principle of reactive harm - which includes injuries to
individual emotional tranquility in the form of
an infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to the
standing of Muslims in the community, especially to their
activities in propagating their faith in Metro Manila and
in other non-Muslim communities in the country.[25] It is
thus beyond cavil that the present case falls within the
application of the relational harm principle of tort actions
for defamation, rather than the reactive harm
principle on which the concept of emotional
distress properly belongs.
Moreover, under the Second Restatement of the
Law, to recover for the intentional infliction of emotional
distress the plaintiff must show that: (a) The conduct of
the defendant was intentional or in reckless disregard of
the plaintiff; (b) The conduct was extreme and
outrageous; (c) There was a causal connection between
the defendant's conduct and the plaintiff's mental
distress; and, (d) The plaintiff's mental distress was
extreme and severe.[26]
"Extreme and outrageous conduct" means conduct
that is so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable
in civilized society. The defendant's actions must have
been so terrifying as naturally to humiliate, embarrass or
frighten the plaintiff.[27] Generally, conduct will be found
to be actionable where the recitation of the facts to an
average member of the community would arouse his
resentment against the actor, and lead him or her to
exclaim, "Outrageous!" as his or her reaction.[28]
"Emotional distress" means any highly unpleasant
mental reaction such as extreme grief, shame,
humiliation, embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish, shock,
fright, horror, and chagrin.[29] "Severe emotional
distress," in some jurisdictions, refers to any type of
severe and disabling emotional or mental condition
which may be generally recognized and diagnosed by
professionals trained to do so, including posttraumatic
stress disorder, neurosis, psychosis, chronic depression,
or phobia.[30] The plaintiff is required to show, among
other things, that he or she has suffered emotional
distress so severe that no reasonable person could be
expected to endure it; severity of the distress is an
element of the cause of action, not simply a matter of
damages.[31]
Any party seeking recovery for mental anguish
must prove more than mere worry, anxiety, vexation,
embarrassment, or anger. Liability does not arise from
mere insults, indignities, threats, annoyances, petty
expressions, or other trivialities. In determining whether
the tort of outrage had been committed, a plaintiff is
necessarily expected and required to be hardened to a
certain amount of criticism, rough language, and to
occasional acts and words that are definitely
inconsiderate and unkind; the mere fact that the actor
knows that the other will regard the conduct as
insulting, or will have his feelings hurt, is not enough.[32]
Hustler Magazine v. Falwell[33] illustrates the test
case of a civil action for damages on intentional infliction
of emotional distress. A parody appeared in Hustler
magazine featuring the American fundamentalist
preacher and evangelist Reverend Jerry Falwell depicting
him in an inebriated state having an incestuous sexual
liaison with his mother in an outhouse. Falwell sued
Hustler and its publisher Larry Flynt for damages. The
United States District Court for the Western District of
Virginia ruled that the parody was not libelous, because
no reasonable reader would have understood it as a
factual assertion that Falwell engaged in the act
described. The jury, however, awarded $200,000 in
damages on a separate count of "intentional infliction of
emotional distress," a cause of action that did not
require a false statement of fact to be made. The United
States Supreme Court in a unanimous decision
overturned the jury verdict of the Virginia Court and held
that Reverend Falwell may not recover for intentional
infliction of emotional distress. It was argued that the
material might be deemed outrageous and may have
been intended to cause severe emotional distress, but
these circumstances were not sufficient to overcome the
free speech rights guaranteed under the First
Amendment of the United States Constitution. Simply
stated, an intentional tort causing emotional distress
must necessarily give way to the fundamental right to
free speech.
It must be observed that although Falwell was
regarded by the U.S. High Court as a "public figure," he
was an individual particularly singled out or identified in
the parody appearing on Hustler magazine. Also, the
emotional distress allegedly suffered by Reverend
Falwell involved a reactive interest - an emotional
response to the parody which supposedly injured his
psychological well-being.
Verily, our position is clear that the conduct of
petitioners was not extreme or outrageous. Neither was
the emotional distress allegedly suffered by respondents
so severe that no reasonable person could be expected
to endure it. There is no evidence on record that points
to that result.
Professor William Prosser, views tort actions on
intentional infliction of emotional distress in this
manner[34] -
There is virtually unanimous agreement that such
ordinary defendants are not liable for mere insult,
indignity, annoyance, or even threats, where the case is
lacking in other circumstances of aggravation. The
reasons are not far to seek. Our manners, and with
them our law, have not yet progressed to the point
where we are able to afford a remedy in the form of tort
damages for all intended mental disturbance. Liability of
course cannot be extended to every trivial indignity x x x
x The plaintiff must necessarily be expected and
required to be hardened to a certain amount of rough
language, and to acts that are definitely inconsiderate
and unkind x x x The plaintiff cannot recover
merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with
this succinct observation, viz:[35]
There is no occasion for the law to intervene in every
case where someones feelings are hurt. There must still
be freedom to express an unflattering opinion, and some
safety valve must be left through which irascible
tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are
reluctant to adopt a rule of recovery for emotional harm
that would "open up a wide vista of litigation in the field
of bad manners," an area in which a "toughening of the
mental hide" was thought to be a more appropriate
remedy.[36] Perhaps of greater concern were the
questions of causation, proof, and the ability to
accurately assess damages for emotional harm, each of
which continues to concern courts today.[37]
In this connection, the doctrines
in Chaplinsky and Beauharnais had largely been
superseded by subsequent First Amendment
doctrines. Back in simpler times in the history of free
expression the Supreme Court appeared to espouse a
theory, known as the Two-Class Theory, that treated
certain types of expression as taboo forms of speech,
beneath the dignity of the First Amendment. The most
celebrated statement of this view was expressed
in Chaplinsky:
There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any
Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or
fighting words those which by their very utterance inflict
injury or tend to incite an immediate breach of the
peace. It has been well observed that such utterances
are no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any
benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
Today, however, the theory is no longer viable;
modern First Amendment principles have passed it
by. American courts no longer accept the view
that speech may be proscribed merely because it
is "lewd," "profane," "insulting" or otherwise
vulgar or offensive.[38] Cohen v. California[39] is
illustrative: Paul Robert Cohen wore a jacket bearing the
words "Fuck the Draft" in a Los Angeles courthouse in
April 1968, which caused his eventual arrest. Cohen was
convicted for violating a California statute prohibiting
any person from "disturb[ing] the peace x x x by
offensive conduct." The U.S. Supreme Court conceded
that Cohen's expletive contained in his jacket was
"vulgar," but it concluded that his speech was
nonetheless protected by the right to free speech. It was
neither considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or "fighting"
words for it had not been directed at a person who was
likely to retaliate or at someone who could not avoid the
message. In other words, no one was present in the Los
Angeles courthouse who would have regarded Cohen's
speech as a direct personal insult, nor was there any
danger of reactive violence against him.
No specific individual was targeted in the allegedly
defamatory words printed on Cohen's jacket. The
conviction could only be justified by Californias desire to
exercise the broad power in preserving the cleanliness of
discourse in the public sphere, which the U.S. Supreme
Court refused to grant to the State, holding that no
objective distinctions can be made between vulgar and
nonvulgar speech, and that the emotive elements of
speech are just as essential in the exercise of this right
as the purely cognitive. As Mr. Justice Harlan so
eloquently wrote: "[O]ne mans vulgarity is another mans
lyric x x x words are often chosen as much for their
emotive as their cognitive force."[40] With Cohen, the
U.S. Supreme Court finally laid the constitutional
foundation for judicial protection of provocative and
potentially offensive speech.
Similarly, libelous speech is no longer outside
the First Amendment protection. Only one small
piece of the Two-Class
Theoryin Chaplinsky survives - U.S. courts
continue to treat "obscene" speech as not within
the protection of the First Amendment at all.With
respect to the "fighting words" doctrine, while it
remains alive it was modified by the current
rigorous clear and present danger test.[41] Thus,
in Cohen the U.S. Supreme Court in applying the test
held that there was no showing that Cohen's jacket
bearing the words "Fuck the Draft" had threatened to
provoke imminent violence; and that protecting the
sensibilities of onlookers was not sufficiently compelling
interest to restrain Cohen's speech.
Beauharnais, which closely followed
the Chaplinsky doctrine, suffered the same fate
as Chaplinsky. Indeed, when Beauharnais was decided
in 1952, the Two-Class Theory was still
flourishing. While concededly the U.S. High Tribunal did
not formally abandon Beauharnais, the seminal shifts in
U.S. constitutional jurisprudence substantially
undercut Beauharnais and seriously undermined what is
left of its vitality as a precedent. Among the cases that
dealt a crushing impact on Beauharnais and rendered it
almost certainly a dead letter case law are Brandenburg
v. Ohio,[42] and, again, Cohen v. California.[43] These
decisions recognize a much narrower set of permissible
grounds for restricting speech than did Beauharnais.[44]
In Brandenburg, appellant who was a leader of the
Ku Klux Klan was convicted under the Ohio Criminal
Syndicalism Statute for advocating the necessity, duty
and propriety of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing
industrial or political reforms; and for voluntarily
assembling with a group formed to teach or advocate
the doctrines of criminal syndicalism.Appellant
challenged the statute and was sustained by the U.S.
Supreme Court, holding that the advocacy of illegal
action becomes punishable only if such advocacy is
directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.[45]Except in
unusual instances, Brandenburg protects the advocacy
of lawlessness as long as such speech is not translated
into action.
The importance of the Brandenburg ruling cannot
be overemphasized. Prof. Smolla affirmed
that "Brandenburg must be understood as
overruling Beauharnais and eliminating the
possibility of treating group libel under the same
First Amendment standards as individual
libel."[46] It may well be considered as one of the
lynchpins of the modern doctrine of free speech, which
seeks to give special protection to politically relevant
speech.
In any case, respondents' lack of cause of action
cannot be cured by the filing of a class suit. As correctly
pointed out by Mr. Justice Jose C. Vitug during the
deliberations, "an element of a class suit is the adequacy
of representation. In determining the question of fair
and adequate representation of members of a class, the
court must consider (a) whether the interest of the
named party is coextensive with the interest of the other
members of the class; (b) the proportion of those made
parties as it so bears to the total membership of the
class; and, (c) any other factor bearing on the ability of
the named party to speak for the rest of the class.[47]
The rules require that courts must make sure that
the persons intervening should be sufficiently numerous
to fully protect the interests of all concerned. In the
present controversy, Islamic Dawah Council of the
Philippines, Inc., seeks in effect to assert the interests
not only of the Muslims in the Philippines but of the
whole Muslim world as well. Private respondents
obviously lack the sufficiency of numbers to represent
such a global group; neither have they been able to
demonstrate the identity of their interests with those
they seek to represent.Unless it can be shown that there
can be a safe guaranty that those absent will be
adequately represented by those present, a class suit,
given its magnitude in this instance, would be
unavailing."[48]
Likewise on the matter of damages, we agree that
"moral damages may be recovered only if the plaintiff is
able to satisfactorily prove the existence of the factual
basis for the damages and its causal connection with the
acts complained of,[49] and so it must be, as moral
damages although incapable of pecuniary estimation are
designed not to impose a penalty but to compensate for
injury sustained and actual damages
suffered.[50] Exemplary damages, on the other hand,
may only be awarded if claimant is able to establish his
right to moral, temperate, liquidated or compensatory
damages.[51] Unfortunately, neither of the requirements
to sustain an award for either of these damages would
appear to have been adequately established by
respondents."
In a pluralistic society like the Philippines where
misinformation about another individual's religion is as
commonplace as self-appointed critics of government, it
would be more appropriate to respect the fair criticism
of religious principles, including those which may be
outrageously appalling, immensely erroneous, or those
couched as fairly informative comments. The greater
danger in our society is the possibility that it may
encourage the frequency of suits among religious
fundamentalists, whether Christian, Muslim, Hindu,
Buddhist, Jewish, or others. This would unnecessarily
make the civil courts a battleground to assert their
spiritual ideas, and advance their respective religious
agenda.
It need not be stressed that this Court has no
power to determine which is proper religious conduct or
belief; neither does it have the authority to rule on the
merits of one religion over another, nor declare which
belief to uphold or cast asunder, for the validity of
religious beliefs or values are outside the sphere of the
judiciary. Such matters are better left for the religious
authorities to address what is rightfully within their
doctrine and realm of influence. Courts must be
viewpoint-neutral when it comes to religious matters if
only to affirm the neutrality principle of free speech
rights under modern jurisprudence where "[a]ll ideas are
treated equal in the eyes of the First Amendment - even
those ideas that are universally condemned and run
counter to constitutional principles."[52] Under the right
to free speech, "there is no such thing as a false
idea. However pernicious an opinion may seem, we
depend for its correction not on the conscience of judges
and juries but on the competition of other
ideas."[53] Denying certiorari and affirming the appellate
court decision would surely create a chilling effect on the
constitutional guarantees of freedom of speech, of
expression, and of the press.
WHEREFORE, the petition is GRANTED. The
assailed Decision of the Court of Appeals dated 27
August 1998 is REVERSED and SET ASIDE, and the
Decision of the RTC-Br. 4, Manila, dismissing the
complaint for lack of merit, is REINSTATED and
AFFIRMED. No pronouncement as to costs. SO
ORDERED.
2. FRAUD
G.R. No. L-37733 September 30, 1982
ALMARIO T. SALTA, petitioner, vs. HON. JUDGE
JESUS DE VEYRA, in his capacity as Presiding
Judge of the CFI of Manila, Branch XIV and
PHILIPPINE NATIONAL BANK, respondents.
G.R. No. L-38035 September 30, 1982
PHILIPPINE NATIONAL BANK, petitioner, vs.HON.
AMANTE P. PURISIMA, as Judge of the Court of
First Instance of Manila, Branch VII and
ALMARIO SALTA, respondents.
In these two cases, the only issue to be resolved is
whether a decision of acquittal in a criminal case
operates to dismiss a separate civil action filed on the
basis of the same facts as alleged in the criminal case,
which is for violation of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.
The petitioner, Almario T. Salta, in G.R. No. L-37733,
takes the affirmative stand on the issue as above
indicated, as he made manifest in his motion to dismiss
Civil Case No. 79583, of the CFI of Manila, Branch XIV,
which was, however, denied by Hon. Jesus de Veyra,
presiding. In a similar motion, aforementioned petitioner
sought to dismiss another civil case (Civil Case No.
88343), pending before Branch VII of the same CFI of
Manila, presided over by Hon. Amante Purisima who
granted the motion to dismiss.
We have, therefore, the unedifying spectacle of two
cases involving the same issue disposed of by two
judges in a manner directly in opposition of each other.
For a uniform ruling that would authoritatively settle this
regrettable conflict of opinion, the two cases have been
consolidated for a single decision. For purposes of
convenience, however, although the petitioner in G.R.
No. L-37733, Almario T. Salta, is the private respondent
in the other case, G.R. No. L-38035, in which the
petitioner is the Philippine National Bank, We shall refer
in this decision to Salta as "petitioner," and the PNB, as
respondent bank."
Petitioner was an employee of the PNB assigned as
Manager of the Malolos' branch. As such, his duty was,
among others, to himself grant loans, or only to
recommend the granting of loans, depending on the
amount of the loan applied for. In the performance of
this particular duty, he is supposed to exercise care and
prudence, and with utmost diligence, observe the
policies, rules and regulations of the bank.
In disregard of the pertinent rules, regulations and
policies of the respondent bank, petitioner
indiscriminately granted certain loans mentioned in the
complaints filed by PNB, in a manner characterized by
negligence, fraud and manifest partiality, and upon
securities not commensurate with the amount of the
loans. This is how the respondent bank found petitioner
to have discharged his duties as branch manager of the
bank, and so it filed a civil action in the CFI of Manila
(Civil Case No. 79583, Branch XIV) on April 22, 1970,
and another case (Civil Case No. 88343, Branch VII) on
September 23, 1972, to recover losses the bank
suffered. At the same time the bank caused to be filed,
based on the same acts, a criminal case with the Circuit
Criminal Court of the Fifth Judicial District at San
Fernando, Pampanga, Criminal Case No. CCCV-668, for
violation of the Anti-Graft and Corrupt Practices Act.
In the criminal case, the Court, on motion to dismiss
filed by the defense, after the prosecution has rested,
granted the motion in a 64-page Resolution, the
dispositive portion of which reads:
CONFORMABLY WITH ALL THE FOREGOING,
therefore, the Motion to Dismiss (Demurrer) to
Evidence) should be as it is hereby granted and
accused ALMARIO T. SALTA ACQUITTED of the
offense charged in the Information the
prosecution having failed to prove the essential
ingredience and/or elements of the crime
charged,. with costs de oficio. 1
With his acquittal in the criminal case, petitioner filed
Motions to Dismiss in each of the two civil cases, based
on Section 3(c), Rule I I I of the Revised Rules of Court
which provides:
(c) extinction of the penal action does not carry
with it extinction of the civil, unless the
extinction proceeds from a declaration in a final
judgment that the fact from which the civil
might arise did not exist. ... 2
It is in the resolution of the motions to dismiss that
Judges de Veyra and Purisima of the CFI of Manila took
diametrically opposing views, the former denying the
motion, the latter granting it.
We sustain the order denying the motion to dismiss as
issued by Judge de Veyra, which, for its brevity, but
clear and convincing, We quote as follows:
Having been acquitted by the Circuit Court of
the charges of violation of the Anti-Graft Law,
Defendant now seeks the dismissal of the civil
case which arose from the same set of facts.
The motion to dismiss must be denied for the
reason that acquittal in the criminal case will not
be an obstacle for the civil case to prosper
unless in the criminal case the Court makes a
finding that even civilly the accused would not
be liable-there is no such a finding. Apart from
this, Plaintiff in this present civil case bases its
case either on fraud or negligence-evidence that
only requires a preponderance, unlike beyond
reasonable doubt which is the requisite in
criminal cases.
The motion to dismiss is, therefore, denied for
lack of merit. 3
To begin with, the filing in this case of a civil action
separate from the criminal action is fully warranted
under the provision of Article 33 of the New Civil
Code. 4 The criminal case is for the prosecution of an
offense the main element of which is fraud, one of the
kinds of crime mentioned in the aforecited provision.
Based on the same acts for which the criminal action
was filed, the civil actions very clearly alleged fraud and
negligence as having given rise to the cause of action
averred in the complaints. It needs hardly any showing
to demonstrate this fact, which petitioner disputes,
particularly as to the sufficiency of the allegation of
fraud in the civil complaints. Definitely, We hold that the
following allegation in the complaints unmistakably
shows that the complaints do contain sufficient
averment of fraud:
13. That there was fraud committed by the
defendant in granting the aforesaid loans which
 rendered him liable for his acts, which fraud is
positively and easily Identifiable in the manner
and scheme aforementioned. 5
That there is allegation of negligence is also
unmistakably shown when the complaint states that "the
defendant as manager of Malolos Branch, in gross
violation of the bank rules and regulations, and without
exercising necessary prudence, ... extended a number of
credit accommodations . . ." 6 On this allegation of
negligence alone, the civil case may be maintained as an
entirely independent action from the criminal case.
Consequently, Section 3(c), Rule III of the Revised Rules
of Court has no application thereto.
The ruling in the case of PNB vs.
Bagamaspad, 7 involving the same respondent herein,
and also against its branch manager, unherringly charts
the course to be followed in the final resolution of these
cases. Thus -
The trial court based in the civil liability the
appellants herein on the provisions of Article
1718 and 1719 of the Civil Code, defining and
enumerating the duties and obligations of an
agent and his liability for failure to comply with
such duty.. . . A careful study and consideration
of the record, however, convinces us and we
agree with the trial court that the defendants-
appellants have not only violated instructions of
the plaintiff Bank, including things which the
bank wanted done or not done, all of which
were fully understood by them but they
(appellants) also violated standing regulations
regarding the granting of loans; and what is
more, thru their carelessness, laxity and
negligence, they allowed bans to be granted to
persons who were not entitled to secure loans. 8
If petitioner's civil liability is, as alleged in the complaint,
based on negligence, apart from the averment of fraud,
then on the strength of the aforesaid ruling, the civil
action can be maintained regardless of the outcome of
the criminal action.
The opinion of former Justice J.B.L. Reyes in Dionisio vs.
Alvendia 9 is not only enlightening, but authoritative.
Thus —
. . . in the case of an independent civil actions
under the Civil Code, the result of the criminal
case, whether acquittal or conviction, would be
entirety irrelevant to the civil action. This seems
to be the spirit of the law when it decided to
make these actions 'entirely separate and
distinct' from the criminal action (Articles 22, 33,
34 and 2177). Hence in these cases, I think Rule
107 Sec. l(d) does not apply. 10
It is significant to note that under Article 31 11 of the
New Civil Code, it is made clear that the civil action
permitted therein to be filed separately from the criminal
action may proceed independently of the criminal
proceedings "regardless of the result of the latter." It
seems perfectly reasonable to conclude that the civil
actions mentioned in Article 33, permitted in the same
manner to be filed separately from the criminal case,
may proceed similarly regardless of the result of the
criminal case.
Indeed, when the law has allowed a civil case related to
a criminal case, to be filed separately and to proceed
independently even during the pendency of the latter
case, the intention is patent to make the court's
disposition of the criminal case of no effect whatsoever
on the separate civil case. This must be so because the
offenses specified in Article 33 are of such a nature,
unlike other offenses not mentioned, that they may be
made the subject of a separate civil action because of
the distinct separability of their respective juridical cause
or basis of action. This is clearly illustrated in the case of
swindling, a specie of an offense committed by means of
fraud, where the civil case may be filed separately and
proceed independently of the criminal case, regardless
of the result of the latter.
The wisdom of the provision of Article 33 of the New
Civil Code is to be found in the fact that when the civil
action is reserved to be filed separately, the criminal
case is prosecuted by the prosecuting officer alone
without intervention from a private counsel representing
the interest of the offended party. It is but just that
when, as in the present instance, the prosecution of the
criminal case is left to the government prosecutor to
undertake, any mistake or mishanding of the case
committed by the latter should not work to the prejudice
of the offended party whose interest would thus be
protected by the measure contemplated by Article 33
and Article 2177 12 of the New Civil Code.
Prescinding from the foregoing, it should be stated with
emphasis, for its decisive effect on how the issue raised
in this case should be disposed of, that in no manner
may the resolution of the Circuit Criminal Court be read
as positively stating that the fact from which the civil
action might arise did not exist, as required in the
provision relied upon by petitioner, Section 3(c), Rule III
of the Revised Rules of Court. As Judge de Veyra put it,
"acquittal in the criminal case will not be an obstacle for
the civil case to prosper unless in the criminal case the
Court makes a finding that even civilly, the accused
would not be liable-there is no such finding." There,
indeed, could not be such finding because the criminal
court, aware that the civil case is not before it, would be
acting in excess of jurisdiction if it were to make any
pronouncement in effect disposing of a case pending
before another court, over which it had not acquired
jurisdiction. Even if this were authorized by the Rules of
Court, the validity of such rule would be open to serious
doubt as it would be affecting a matter of jurisdiction,
which is substantive in character, considering the
constitutional limitation of the rule-making power of the
Supreme Court, that said rules should not increase or
diminish substantive rights.
WHEREFORE, the order denying the motion to dismiss
issued in Civil Case No. 79583 of the Court of First
Instance of Manila (G. R. No. L-37733) is affirmed, while
the order granting a similar motion in Civil Case No.
88343 of the same court (G. R. No. L-38035) is
reversed. Let the records of these two (2) cases be
remanded to their respective courts of origin for proper
further proceedings. No costs. SO ORDERED.
3. PHYSICAL INJURIES
(MADEJA V. CARO, supra.***previous case)
G.R. No. 108017 April 3, 1995
MARIA BENITA A. DULAY, in her own behalf and
in behalf of the minor children KRIZTEEN
ELIZABETH, BEVERLY MARIE and NAPOLEON II,
all surnamed DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division,
HON. TEODORO P. REGINO, in his capacity as
Presiding Judge of the Regional Trial Court
National Capital Region, Quezon City, Br. 84,
SAFEGUARD INVESTIGATION AND SECURITY CO.,
INC., and SUPERGUARD SECURITY
CORPORATION, respondents.
This petition for certiorari prays for the reversal of the
decision of the Court of Appeals dated October 29, 1991
in CA-G.R. CV No. 24646 which affirmed the order of the
Regional Trial Court dismissing Civil Case No. Q-89-
1751, and its resolution dated November 17, 1991
denying herein, petitioner's motion for reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno
Torzuela and Atty. Napoleon Dulay occurred at the "Big
Bang Sa Alabang," Alabang Village, Muntinlupa as a
result of which Benigno Torzuela, the security guard on
duty at the said carnival, shot and killed Atty. Napoleon
Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the
deceased Napoleon Dulay, in her own behalf and in
behalf of her minor children, filed on February 8, 1989
an action for damages against Benigno Torzuela and
herein private respondents Safeguard Investigation and
Security Co., Inc., ("SAFEGUARD") and/or Superguard
Security Corp. ("SUPERGUARD"), alleged employers of
defendant Torzuela. The complaint, docketed as Civil
Case No. Q-89-1751 among others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION AND
SECURITY CO., INC., (Defendant Safeguard)
and SUPERGUARD SECURITY CORPORATION
(Defendant Superguard) are corporations duly
organized and existing in accordance with
Philippine laws, with offices at 10th Floor,
Manufacturers Building, Inc., Plaza Santa Cruz,
Manila. They are impleaded as alternative
defendants for, while the former appears to be
the employer of defendant BENIGNO TORZUELA
(defendant TORZUELA), the latter impliedly
acknowledged responsibility for the acts of
defendant TORZUELA by extending its
sympathies to plaintiffs.
Defendant BENIGNO TORZUELA is of legal age,
an employee of defendant SAFEGUARD and/or
defendant SUPERGUARD and, at the time of the
incident complained of, was under their control
and supervision. . . .
3. On December 7, 1988 at around 8:00 a.m.,
defendant TORZUELA, while he was on duty as
security guard at the "Big Bang sa Alabang,"
Alabang Village, Muntinlupa, Metro Manila shot
and killed NAPOLEON V. DULAY with a .38
caliber revolver belonging to defendant
SAFEGUARD, and/or SUPERGUARD (per Police
Report dated January 7, 1989, copy attached as
Annex A);
4. The incident resulting in the death of
NAPOLEON V. DULAY was due to the concurring
negligence of the defendants. Defendant
TORZUELA'S wanton and reckless discharge of
the firearm issued to him by defendant
SAFEGUARD and/or SUPERGUARD was the
immediate and proximate cause of the injury,
while the negligence of defendant SAFEGUARD
and/or SUPERGUARD consists in its having failed
to exercise the diligence of a good father of a
family in the supervision and control of its
employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and
exemplary damages, and attorney's fees. The said Civil
Case No. Q-89-1751 was raffled to Branch 84 of the
Regional Trial Court of Quezon City, presided by
respondent Judge Teodoro Regino.
On March 2, 1989, private respondent SUPERGUARD
filed a Motion to Dismiss on the ground that the
complaint does not state a valid cause of action.
SUPERGUARD claimed that Torzuela's act of shooting
Dulay was beyond the scope of his duties, and that since
the alleged act of shooting was committed with
deliberate intent (dolo), the civil liability therefor is
governed by Article 100 of the Revised Penal Code,
which states:
Art. 100. Civil liability of a person guilty of a
felony. — Every person criminally liable for a
felony is also civilly liable.
Respondent SUPERGUARD further alleged that a
complaint for damages based on negligence under
Article 2176 of the New Civil Code, such as the one filed
by petitioners, cannot lie, since the civil liability under
Article 2176 applies only to quasi-offenses under Article
365 of the Revised Penal Code. In addition, the private
respondent argued that petitioners' filing of the
complaint is premature considering that the conviction of
Torzuela in a criminal case is a condition sine qua
non for the employer's subsidiary liability (Rollo, p. 55-
59).
Respondent SAFEGUARD also filed a motion praying that
it be excluded as defendant on the ground that
defendant Torzuela is not one of its employees ( Rollo, p.
96).
Petitioners opposed both motions, stating that their
cause of action against the private respondents is based
on their liability under Article 2180 of the New Civil
Code, which provides:
Art. 2180. The obligation imposed by Article
2176 is demandable not only for one's own acts
or omissions, but also for those of persons for
whom one is responsible.
xxx xxx xxx
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 an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative
defendants is allowed under Rule 3, Section 13 of the
Rules of Court. Therefore, the inclusion of private
respondents as alternative defendants in the complaint
is justified by the following: the Initial Investigation
Report prepared by Pat. Mario Tubon showing that
Torzuela is an employee of SAFEGUARD; and through
overt acts, SUPERGUARD extended its sympathies to
petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989
charging Benigno Torzuela with homicide was filed
before the Regional Trial Court of Makati and was
docketed as Criminal Case No. 89-1896.
On April 13, 1989, respondent Judge Regino issued an
order granting SUPERGUARD'S motion to dismiss and
SAFEGUARD'S motion for exclusion as defendant. The
respondent judge held that the complaint did not state
facts necessary or sufficient to constitute a quasi-delict
since it does not mention any negligence on the part of
Torzuela in shooting Napoleon Dulay or that the same
was done in the performance of his duties. Respondent
judge ruled that mere allegations of the concurring
negligence of the defendants (private respondents
herein) without stating the facts showing such
negligence are mere conclusions of law (Rollo, p. 106).
Respondent judge also declared that the complaint was
one for damages founded on crimes punishable under
Articles 100 and 103 of the Revised Penal Code as
distinguished from those arising from, quasi-delict. The
dispositive portion of the order dated April 13, 1989
states:
WHEREFORE, this Court holds that in view of
the material and ultimate facts alleged in the
verified complaint and in accordance with the
applicable law on the matter as well as
precedents laid down by the Supreme Court, the
complaint against the alternative defendants
Superguard Security Corporation and Safeguard
Investigation and Security Co., Inc., must be
and (sic) it is hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court
and petitioners' motion for reconsideration thereof was
denied.
Petitioners take exception to the assailed decision and
insist that quasi-delicts are not limited to acts of
negligence but also cover acts that are intentional and
voluntary, citing Andamo v. IAC (191 SCRA 195 [1990]).
Thus, petitioners insist that Torzuela' s act of shooting
Napoleon Dulay constitutes a quasi-delict actionable
under Article 2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the
New Civil Code, private respondents are primarily liable
for their negligence either in the selection or supervision
of their employees. This liability is independent of the
employee's own liability for fault or negligence and is
distinct from the subsidiary civil liability under Article 103
of the Revised Penal Code. The civil action against the
employer may therefore proceed independently of the
criminal action pursuant to Rule 111 Section 3 of the
Rules of Court. Petitioners submit that the question of
whether Torzuela is an employee of respondent
SUPERGUARD or SAFEGUARD would be better resolved
after trial.
Moreover, petitioners argue that Torzuela's act of
shooting Dulay is also actionable under Article 33 of the
New Civil Code, to wit:
Art. 33. In cases of defamation, fraud, and
physical injuries, a civil action for damages,
entirely separate and distinct from the criminal
action, may be brought by the injured party.
Such civil action shall proceed independently of
the criminal prosecution, and shall require only a
preponderance of evidence. (Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of
the Rules of Court which provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed
independently — In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action
which has been reserved may be brought by the
offended party, shall proceed independently of
the criminal action, and shall require only a
preponderance of evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been
held to include consummated, frustrated and attempted
homicide. Thus, petitioners maintain that Torzuela's
prior conviction is unnecessary since the civil action can
proceed independently of the criminal action. On the
other hand, it is the private respondents' argument that
since the act was not committed with negligence, the
petitioners have no cause of action under Articles 2116
and 2177 of the New Civil Code. The civil action
contemplated in Article 2177 is not applicable to acts
committed with deliberate intent, but only applies to
quasi-offenses under Article 365 of the Revised Penal
Code. Torzuela's act of shooting Atty. Dulay to death,
aside from being purely personal, was done with
deliberate intent and could not have been part of his
duties as security guard. And since Article 2180 of the
New Civil Code covers only: acts done within the scope
of the employee's assigned tasks, the private
respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being
prosecuted for homicide for the fatal shooting of
Napoleon Dulay. Rule 111 of the Rules on Criminal
Procedure provides:
Sec. 1. Institution of criminal and civil actions.
When a criminal action is instituted, the civil
action for the recovery of civil liability is
impliedly instituted with the criminal
action, unless the offended party waives the civil
action , reserves his right to institute it
separately or institutes the civil action prior to
the criminal action.
Such civil action includes recovery of indemnity
under the Revised Penal Code, and damages
under Articles 32, 33, 34, and 2176 of the Civil
Code of the Philippines arising from the same
act or omission of the accused. (Emphasis
supplied)
It is well-settled that the filing of an independent civil
action before the prosecution in the criminal action
presents evidence is even far better than a compliance
with the requirement of express reservation (Yakult
Philippines v. Court of Appeals, 190 SCRA 357 [1990]).
This is precisely what the petitioners opted to do in this
case. However, the private respondents opposed the
civil action on the ground that the same is founded on a
delict and not on a quasi-delict as the shooting was not
attended by negligence. What is in dispute therefore is
the nature of the petitioner's cause of action.
The nature of a cause of action is determined by the
facts alleged in the complaint as constituting the cause
of action (Republic v. Estenzo, 158 SCRA 282 [1988]).
The purpose of an action or suit and the law to govern it
is to be determined not by the claim of the party filing
the action, made in his argument or brief, but rather by
the complaint itself, its allegations and prayer for relief.
(De Tavera v. Philippine Tuberculosis Society, 112 SCRA
243 [1982]). An examination of the complaint in the
present case would show that the plaintiffs, petitioners
herein, are invoking their right to recover damages
against the private respondents for their vicarious
responsibility for the injury caused by Benigno Torzuela's
act of shooting and killing Napoleon Dulay, as stated in
paragraphs 1 and 2 of the complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. 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 relation between the
 parties is called a quasi-delict and is governed
by the provisions of this Chapter.
Contrary to the theory of private respondents, there is
no justification for limiting the scope of Article 2176 of
the Civil Code to acts or omissions resulting from
negligence. Well-entrenched is the doctrine that article
2176 covers not only acts committed with negligence,
but also acts which are voluntary and intentional. As far
back as the definitive case of Elcano v. Hill (77 SCRA 98
[1977]), this Court already held that:
. . . Article 2176, where it refers to "fault or
negligence," covers not only acts "not
punishable by law" but also acts criminal in
character; whether intentional and voluntary or
negligent. Consequently, a separate civil action
against the offender in a criminal act, whether
or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended
party is not allowed, if he is actually charged
also criminally, to recover damages on both
scores, and would be entitled in such eventuality
only to the bigger award of the two, assuming
the awards made in the two cases vary. In other
words, the extinction of civil liability referred to
in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil
liability for the same act considered as quasi-
delict only and not as a crime is not
extinguished even by a declaration in the
criminal case that the criminal act charged has
not happened or has not been committed by the
accused. Briefly stated, We here hold, in
reiteration of Garcia, that culpa aquiliana
includes voluntary and negligent acts which may
be punishable by law. (Emphasis supplied)
The same doctrine was echoed in the case of Andamo v.
Intermediate Appellate Court (191 SCRA 195 [1990]),
wherein the Court held:
Article 2176, whenever it refers to "fault or
negligence," covers not only acts criminal in
character, whether intentional and voluntary or
negligent. Consequently, a civil action lies
against the offender in a criminal act, whether
or not he is prosecuted or found guilty or
acquitted, provided that the offended party is
not allowed, (if the tortfeasor is actually also
charged criminally), to recover damages on both
scores, and would be entitled in such eventuality
only to the bigger award of the two, assuming
the awards made in the two cases vary. [citing
Virata v. Ochoa, 81 SCRA 472] (Emphasis
supplied)
Private respondents submit that the word "intentional" in
the Andamo case is inaccurate obiter, and should be
read as "voluntary" since intent cannot be coupled with
negligence as defined by Article 365 of the Revised
Penal Code. In the absence of more substantial reasons,
this Court will not disturb the above doctrine on the
coverage of Article 2176.
Private respondents further aver that Article 33 of the
New Civil Code applies only to injuries intentionally
committed pursuant to the ruling in Marcia v. CA (120
SCRA 193 [1983]), and that the actions for damages
allowed thereunder are ex-delicto. However, the term
"physical injuries" in Article 33 has already been
construed to include bodily injuries causing death
(Capuno v. Pepsi-Cola Bottling Co. of the Philippines,
121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil. 94
[1955]). It is not the crime of physical injuries defined in
the Revised Penal Code. It includes not only physical
injuries but also consummated, frustrated, and
attempted homicide (Madeja v. Caro, 126 SCRA 293
[1983]). Although in the Marcia case (supra), it was held
that no independent civil action may be filed under
Article 33 where the crime is the result of criminal
negligence, it must be noted however, that Torzuela, the
accused in the case at bar, is charged with homicide, not
with reckless imprudence, whereas the defendant
in Marcia was charged with reckless imprudence.
Therefore, in this case, a civil action based on Article 33
lies.
Private respondents also contend that their liability is
subsidiary under the Revised Penal Code; and that they
are not liable for Torzuela's act which is beyond the
scope of his duties as a security guard. It having been
established that the instant action is not ex-delicto,
petitioners may proceed directly against Torzuela and
the private respondents. Under Article 2180 of the New
Civil Code as aforequoted, when an injury is caused by
the negligence of the 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
selection or both (Layugan v. Intermediate Appellate
Court, 167 SCRA 363 [1988]). The liability of the
employer under Article 2180 is direct and immediate; it
is not conditioned upon prior recourse against the
negligent employee and a prior showing of the
insolvency of such employee (Kapalaran Bus Lines v.
Coronado, 176 SCRA 792 [1989]). Therefore, it is
incumbent upon the private respondents to prove that
they exercised the diligence of a good father of a family
in the selection and supervision of their employee.
Since Article 2176 covers not only acts of negligence but
also acts which are intentional and voluntary, it was
therefore erroneous on the part of the trial court to
dismiss petitioner's complaint simply because it failed to
make allegations of attendant negligence attributable to petitioners clearly sustained an injury to their rights
private respondents. under the law, it would be more just to allow them to
present evidence of such injury.
With respect to the issue of whether the complaint at
hand states a sufficient cause of action, the general rule WHEREFORE, premises considered, the petition for
is that the allegations in a complaint are sufficient to review is hereby GRANTED. The decision of the Court of
constitute a cause of action against the defendants if, Appeals as well as the Order of the Regional Trial Court
admitting the facts alleged, the court can render a valid dated April 13, 1989 are hereby REVERSED and SET
judgment upon the same in accordance with the prayer ASIDE. Civil Case No. Q-89-1751 is remanded to the
therein. A cause of action exist if the following elements Regional Trial Court for trial on the merits. This decision
are present, namely: (1) a right in favor of the plaintiff is immediately executory. SO ORDERED.
by whatever means and under whatever law it arises or
is created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3)
an act or omission on the part of such defendant
violative of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff C. NEGLECT OF DUTY
for which the latter may maintain an action for recovery  ART. 34 NCC
of damages (Del Bros Hotel Corporation v. CA, 210 SCRA
33 [1992]); Development Bank of the Philippines v.
Pundogar, 218 SCRA 118 [1993]) D. ACTION FOR DAMAGES WHERE NO
INDEPENDENT CIVIL ACTION IS PROVIDED
This Court finds, under the foregoing premises, that the
complaint sufficiently alleged an actionable breach on  ART 35 NCC
the part of the defendant Torzuela and respondents
SUPERGUARD and/or SAFEGUARD. It is enough that the
complaint alleged that Benigno Torzuela shot Napoleon
Dulay resulting in the latter's death; that the shooting
INTENTIONAL TORTS
occurred while Torzuela was on duty; and that either
SUPERGUARD and/or SAFEGUARD was Torzuela's
A. ABUSE OF RIGHTS
employer and responsible for his acts. This does not
 ART. 19 NCC
operate however, to establish that the defendants below
are liable. Whether or not the shooting was actually
G.R. No. 81262 August 25, 1989
reckless and wanton or attended by negligence and
GLOBE MACKAY CABLE AND RADIO CORP., and
whether it was actually done within the scope of
HERBERT C. HENDRY, petitioners, vs. THE
Torzuela's duties; whether the private respondents
HONORABLE COURT OF APPEALS and RESTITUTO
SUPERGUARD and/or SAFEGUARD failed to exercise the
M. TOBIAS, respondents.
diligence of a good father of a family; and whether the
defendants are actually liable, are questions which can
be better resolved after trial on the merits where each
party can present evidence to prove their respective Private respondent Restituto M. Tobias was employed by
allegations and defenses. In determining whether the petitioner Globe Mackay Cable and Radio Corporation
allegations of a complaint are sufficient to support a (GLOBE MACKAY) in a dual capacity as a purchasing
cause of action, it must be borne in mind that the agent and administrative assistant to the engineering
complaint does not have to establish or allege the facts operations manager. In 1972, GLOBE MACKAY
proving the existence of a cause of action at the outset; discovered fictitious purchases and other fraudulent
this will have to be done at the trial on the merits of the transactions for which it lost several thousands of pesos.
case (Del Bros Hotel Corporation v. CA, supra). If the
allegations in a complaint can furnish a sufficient basis According to private respondent it was he who actually
by which the complaint can be maintained, the same discovered the anomalies and reported them on
should not be dismissed regardless of the defenses that November 10, 1972 to his immediate superior Eduardo
may be assessed by the defendants (Rava Dev't. Corp. T. Ferraren and to petitioner Herbert C. Hendry who was
v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & then the Executive Vice-President and General Manager
Trust Corporation v. Court of Appeals, 197 SCRA 663 of GLOBE MACKAY.
[1991]). To sustain a motion to dismiss for lack of cause
of action, the complaint must show that the claim for On November 11, 1972, one day after private
relief does not exist rather than that a claim has been respondent Tobias made the report, petitioner Hendry
defectively stated, is ambiguous, indefinite or uncertain confronted him by stating that he was the number one
(Azur v. Provincial Board, 27 SCRA 50 [1969]). Since the suspect, and ordered him to take a one week forced
leave, not to communicate with the office, to leave his
table drawers open, and to leave the office keys.
On November 20, 1972, when private respondent Tobias
returned to work after the forced leave, petitioner
Hendry went up to him and called him a "crook" and a
"swindler." Tobias was then ordered to take a lie
detector test. He was also instructed to submit specimen
of his handwriting, signature, and initials for examination
by the police investigators to determine his complicity in
the anomalies.
On December 6,1972, the Manila police investigators
submitted a laboratory crime report (Exh. "A") clearing
private respondent of participation in the anomalies.
In the meantime, on January 17, 1973, Tobias received
a notice (Exh. "F") from petitioners that his employment
has been terminated effective December 13, 1972.
Whereupon, Tobias filed a complaint for illegal dismissal.
The labor arbiter dismissed the complaint. On appeal,
the National Labor Relations Commission (NLRC)
reversed the labor arbiter's decision. However, the
Secretary of Labor, acting on petitioners' appeal from
the NLRC ruling, reinstated the labor arbiter's decision.
Tobias appealed the Secretary of Labor's order with the
Office of the President. During the pendency of the
appeal with said office, petitioners and private
respondent Tobias entered into a compromise
agreement regarding the latter's complaint for illegal
dismissal.

Not satisfied with the police report, petitioners hired a
private investigator, retired Col. Jose G. Fernandez, who
on December 10, 1972, submitted a report (Exh. "2")
finding Tobias guilty. This report however expressly
stated that further investigation was still to be
conducted.
Nevertheless, on December 12, 1972, petitioner Hendry
issued a memorandum suspending Tobias from work
preparatory to the filing of criminal charges against him.
On December 19,1972, Lt. Dioscoro V. Tagle, Metro
Manila Police Chief Document Examiner, after
investigating other documents pertaining to the alleged
anomalous transactions, submitted a second laboratory
crime report (Exh. "B") reiterating his previous finding
that the handwritings, signatures, and initials appearing
in the checks and other documents involved in the
fraudulent transactions were not those of Tobias. The lie
detector tests conducted on Tobias also yielded negative
results.
Notwithstanding the two police reports exculpating
Tobias from the anomalies and the fact that the report
of the private investigator, was, by its own terms, not
yet complete, petitioners filed with the City Fiscal of
Manila a complaint for estafa through falsification of
commercial documents, later amended to just estafa.
Subsequently five other criminal complaints were filed
against Tobias, four of which were for estafa through
Falsification of commercial document while the fifth was
for of Article 290 of' the Revised Penal Code
(Discovering Secrets Through Seizure
Correspondence).lâwphî1.ñèt Two of these complaints
were refiled with the Judge Advocate General's Office,
which however, remanded them to the fiscal's office. All
of the six criminal complaints were dismissed by the
fiscal. Petitioners appealed four of the fiscal's resolutions
dismissing the criminal complaints with the Secretary of
Justice, who, however, affirmed their dismissal.
Unemployed, Tobias sought employment with the
Republic Telephone Company (RETELCO). However,
petitioner Hendry, without being asked by RETELCO,
wrote a letter to the latter stating that Tobias was
dismissed by GLOBE MACKAY due to dishonesty.
Private respondent Tobias filed a civil case for damages
anchored on alleged unlawful, malicious, oppressive, and
abusive acts of petitioners. Petitioner Hendry, claiming
illness, did not testify during the hearings. The Regional
Trial Court (RTC) of Manila, Branch IX, through Judge
Manuel T. Reyes rendered judgment in favor of private
respondent by ordering petitioners to pay him eighty
thousand pesos (P80,000.00) as actual damages, two
hundred thousand pesos (P200,000.00) as moral
damages, twenty thousand pesos (P20,000.00) as
exemplary damages, thirty thousand pesos (P30,000.00)
as attorney's fees, and costs. Petitioners appealed the
RTC decision to the Court of Appeals. On the other
hand, Tobias appealed as to the amount of damages.
However, the Court of Appeals, an a decision dated
August 31, 1987 affirmed the RTC decision in toto.
Petitioners' motion for reconsideration having been
denied, the instant petition for review on certiorari was
filed.
The main issue in this case is whether or not petitioners
are liable for damages to private respondent.
Petitioners contend that they could not be made liable
for damages in the lawful exercise of their right to
dismiss private respondent.
of
On the other hand, private respondent contends that
because of petitioners' abusive manner in dismissing him
as well as for the inhuman treatment he got from them,
the Petitioners must indemnify him for the damage that
he had suffered.
One of the more notable innovations of the New Civil
Code is the codification of "some basic principles that
are to be observed for the rightful relationship between
human beings and for the stability of the social order."
[REPORT ON THE CODE COMMISSION ON THE
PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39].
The framers of the Code, seeking to remedy the defect
of the old Code which merely stated the effects of the
law, but failed to draw out its spirit, incorporated certain
fundamental precepts which were "designed to indicate
certain norms that spring from the fountain of good
conscience" and which were also meant to serve as
"guides for human conduct [that] should run as golden
threads through society, to the end that law may
approach its supreme ideal, which is the sway and
dominance of justice" (Id.) Foremost among these
principles is that pronounced in Article 19 which
provides:
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due, and observe
honesty and good faith.
This article, known to contain what is commonly referred
to as the principle of abuse of rights, sets certain
standards which must be observed not only in the
exercise of one's rights but also in the performance of
one's duties. These standards are the following: to act
with justice; to give everyone his due; and to observe
honesty and good faith. The law, therefore, recognizes a
primordial limitation on all rights; that in their exercise,
the norms of human conduct set forth in Article 19 must
be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is
exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the
government of human relations and for the maintenance
of social order, it does not provide a remedy for its
violation. Generally, an action for damages under either
Article 20 or Article 21 would be proper.
Article 20, which pertains to damage arising from a
violation of law, provides that:
Art. 20. Every person who contrary to law,
wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
However, in the case at bar, petitioners claim that they
did not violate any provision of law since they were
merely exercising their legal right to dismiss private
respondent. This does not, however, leave private
respondent with no relief because Article 21 of the Civil
Code provides that:
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.
This article, adopted to remedy the "countless gaps in
the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually
suffered material and moral injury" [Id.] should
"vouchsafe adequate legal remedy for that untold
number of moral wrongs which it is impossible for
human foresight to provide for specifically in the
statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-
27155, May 18,1978, 83 SCRA 237, 247].
In determining whether or not the principle of abuse of
rights may be invoked, there is no rigid test which can
be applied. While the Court has not hesitated to apply
Article 19 whether the legal and factual circumstances
called for its application [See for e.g., Velayo v. Shell Co.
of the Phil., Ltd., 100 Phil. 186 (1956); PNB v.
CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr.,
G.R. No. L-48250, December 28, 1979, 94 SCRA 953;
PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA
391; United General Industries, Inc, v. Paler G.R. No. L-
30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R.
No. 50911, August 21, 1987, 153 SCRA 183] the
question of whether or not the principle of abuse of
rights has been violated resulting in damages under
Article 20 or Article 21 or other applicable provision of
law, depends on the circumstances of each case. And in
the instant case, the Court, after examining the record
and considering certain significant circumstances, finds
that all petitioners have indeed abused the right that
they invoke, causing damage to private respondent and
for which the latter must now be indemnified.
The trial court made a finding that notwithstanding the
fact that it was private respondent Tobias who reported
the possible existence of anomalous transactions,
petitioner Hendry "showed belligerence and told plaintiff
(private respondent herein) that he was the number one
suspect and to take a one week vacation leave, not to
communicate with the office, to leave his table drawers
open, and to leave his keys to said defendant (petitioner
Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This,
petitioners do not dispute. But regardless of whether or
not it was private respondent Tobias who reported the
anomalies to petitioners, the latter's reaction towards
the former upon uncovering the anomalies was less than
civil. An employer who harbors suspicions that an
employee has committed dishonesty might be justified in
taking the appropriate action such as ordering an
investigation and directing the employee to go on a
leave. Firmness and the resolve to uncover the truth
would also be expected from such employer. But the
high-handed treatment accorded Tobias by petitioners
was certainly uncalled for. And this reprehensible
attitude of petitioners was to continue when private
respondent returned to work on November 20, 1972
after his one week forced leave. Upon reporting for
work, Tobias was confronted by Hendry who said.
"Tobby, you are the crook and swindler in this
company." Considering that the first report made by the
police investigators was submitted only on December 10,
1972 [See Exh. A] the statement made by petitioner
Hendry was baseless. The imputation of guilt without
basis and the pattern of harassment during the
investigations of Tobias transgress the standards of
human conduct set forth in Article 19 of the Civil Code.
The Court has already ruled that the right of the
employer to dismiss an employee should not be
confused with the manner in which the right is exercised
and the effects flowing therefrom. If the dismissal is
done abusively, then the employer is liable for damages
to the employee [Quisaba v. Sta. Ines-Melale Veneer
and Plywood Inc., G.R. No. L-38088, August 30, 1974,
58 SCRA 771; See also Philippine Refining Co., Inc. v.
Garcia, G.R. No. L-21871, September 27,1966, 18 SCRA
107] Under the circumstances of the instant case, the
petitioners clearly failed to exercise in a legitimate
manner their right to dismiss Tobias, giving the latter
the right to recover damages under Article 19 in relation
to Article 21 of the Civil Code.
But petitioners were not content with just dismissing
Tobias. Several other tortious acts were committed by
petitioners against Tobias after the latter's termination
from work. Towards the latter part of January, 1973,
after the filing of the first of six criminal complaints
against Tobias, the latter talked to Hendry to protest the
actions taken against him. In response, Hendry cut short
Tobias' protestations by telling him to just confess or
else the company would file a hundred more cases
against him until he landed in jail. Hendry added that,
"You Filipinos cannot be trusted." The threat unmasked
petitioner's bad faith in the various actions taken against
Tobias. On the other hand, the scornful remark about
Filipinos as well as Hendry's earlier statements about
Tobias being a "crook" and "swindler" are clear
violations of 'Tobias' personal dignity [See Article 26,
Civil Code].
The next tortious act committed by petitioners was the
writing of a letter to RETELCO sometime in October
1974, stating that Tobias had been dismissed by GLOBE
MACKAY due to dishonesty. Because of the letter, Tobias
failed to gain employment with RETELCO and as a result
of which, Tobias remained unemployed for a longer
period of time. For this further damage suffered by
Tobias, petitioners must likewise be held liable for
damages consistent with Article 2176 of the Civil Code.
Petitioners, however, contend that they have a "moral, if
not legal, duty to forewarn other employers of the kind
of employee the plaintiff (private respondent herein)
was." [Petition, p. 14; Rollo, p. 15]. Petitioners further
claim that "it is the accepted moral and societal
obligation of every man to advise or warn his fellowmen
of any threat or danger to the latter's life, honor or
property. And this includes warning one's brethren of
the possible dangers involved in dealing with, or
accepting into confidence, a man whose honesty and
integrity is suspect" [Id.]. These arguments, rather than
justify petitioners' act, reveal a seeming obsession to
prevent Tobias from getting a job, even after almost two
years from the time Tobias was dismissed.
Finally, there is the matter of the filing by petitioners of
six criminal complaints against Tobias. Petitioners
contend that there is no case against them for malicious
prosecution and that they cannot be "penalized for
exercising their right and prerogative of seeking justice
by filing criminal complaints against an employee who
was their principal suspect in the commission of
forgeries and in the perpetration of anomalous
transactions which defrauded them of substantial sums
of money" [Petition, p. 10, Rollo, p. 11].
While sound principles of justice and public policy dictate
that persons shall have free resort to the courts for
redress of wrongs and vindication of their rights
[Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)],
the right to institute criminal prosecutions can not be
exercised maliciously and in bad faith [Ventura v.
Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA
5871.] Hence, in Yutuk V. Manila Electric Co., G.R. No.
L-13016, May 31, 1961, 2 SCRA 337, the Court held that
the right to file criminal complaints should not be used
as a weapon to force an alleged debtor to pay an
indebtedness. To do so would be a clear perversion of
the function of the criminal processes and of the courts
of justice. And in Hawpia CA, G.R. No. L-20047, June 30,
1967. 20 SCRA 536 the Court upheld the judgment
against the petitioner for actual and moral damages and
attorney's fees after making a finding that petitioner,
with persistence, filed at least six criminal complaints
against respondent, all of which were dismissed.
To constitute malicious prosecution, there must be proof
that the prosecution was prompted by a design to vex
and humiliate a person and that it was initiated
deliberately by the defendant knowing that the charges
were false and groundless [Manila Gas Corporation v.
CA, G.R. No. L-44190, October 30,1980, 100 SCRA 602].
Concededly, the filing of a suit by itself, does not render
a person liable for malicious prosecution [Inhelder
Corporation v. CA, G.R. No. 52358, May 301983122
SCRA 576]. The mere dismissal by the fiscal of the
criminal complaint is not a ground for an award of
damages for malicious prosecution if there is no
competent evidence to show that the complainant had
acted in bad faith [Sison v. David, G.R. No. L-11268,
January 28,1961, 1 SCRA 60].
In the instant case, however, the trial court made a
finding that petitioners acted in bad faith in filing the
criminal complaints against Tobias, observing that:
xxx
Defendants (petitioners herein) filed with the
Fiscal's Office of Manila a total of six (6) criminal
cases, five (5) of which were for estafa thru
falsification of commercial document and one for
violation of Art. 290 of the Revised Penal Code
"discovering secrets thru seizure of
correspondence," and all were dismissed for
insufficiency or lack of evidence." The dismissal
of four (4) of the cases was appealed to the
Ministry of Justice, but said Ministry invariably
sustained the dismissal of the cases. As above
adverted to, two of these cases were refiled with
the Judge Advocate General's Office of the
Armed Forces of the Philippines to railroad
plaintiffs arrest and detention in the military
stockade, but this was frustrated by a
presidential decree transferring criminal cases
involving civilians to the civil courts.
xxx
To be sure, when despite the two (2) police
reports embodying the findings of Lt. Dioscoro
Tagle, Chief Document Examiner of the Manila
Police Department, clearing plaintiff of
participation or involvement in the fraudulent
transactions complained of, despite the negative
results of the lie detector tests which defendants
compelled plaintiff to undergo, and although the
police investigation was "still under follow-up
and a supplementary report will be submitted
after all the evidence has been gathered,"
defendants hastily filed six (6) criminal cases
with the city Fiscal's Office of Manila, five (5) for
estafa thru falsification of commercial document
and one (1) for violation of Art. 290 of the
Revised Penal Code, so much so that as was to
be expected, all six (6) cases were dismissed,
with one of the investigating fiscals, Asst. Fiscal
de Guia, commenting in one case that, "Indeed,
the haphazard way this case was investigated is
evident. Evident likewise is the flurry and haste
in the filing of this case against respondent
Tobias," there can be no mistaking that
defendants would not but be motivated by
malicious and unlawful intent to harass, oppress,
and cause damage to plaintiff.
xxx
[RTC Decision, pp. 5-6; Rollo, pp. 235-236].
In addition to the observations made by the trial court,
the Court finds it significant that the criminal complaints
were filed during the pendency of the illegal dismissal
case filed by Tobias against petitioners. This explains the
haste in which the complaints were filed, which the trial
court earlier noted. But petitioners, to prove their good
faith, point to the fact that only six complaints were filed
against Tobias when they could have allegedly filed one
hundred cases, considering the number of anomalous
transactions committed against GLOBE MACKAY.
However, petitioners' good faith is belied by the threat
made by Hendry after the filing of the first complaint
that one hundred more cases would be filed against
Tobias. In effect, the possible filing of one hundred more
cases was made to hang like the sword of Damocles
over the head of Tobias. In fine, considering the haste in
which the criminal complaints were filed, the fact that
they were filed during the pendency of the illegal
dismissal case against petitioners, the threat made by
Hendry, the fact that the cases were filed
notwithstanding the two police reports exculpating
Tobias from involvement in the anomalies committed
against GLOBE MACKAY, coupled by the eventual
dismissal of all the cases, the Court is led into no other
conclusion than that petitioners were motivated by
malicious intent in filing the six criminal complaints
against Tobias.
Petitioners next contend that the award of damages was
excessive. In the complaint filed against petitioners,
Tobias prayed for the following: one hundred thousand
pesos (P100,000.00) as actual damages; fifty thousand
pesos (P50,000.00) as exemplary damages; eight
hundred thousand pesos (P800,000.00) as moral
damages; fifty thousand pesos (P50,000.00) as
attorney's fees; and costs. The trial court, after making a
computation of the damages incurred by Tobias
[See RTC Decision, pp. 7-8; Rollo, pp. 154-1551,
awarded him the following: eighty thousand pesos
(P80,000.00) as actual damages; two hundred thousand
pesos (P200,000.00) as moral damages; twenty
thousand pesos (P20,000.00) as exemplary damages;
thirty thousand pesos (P30,000.00) as attorney's fees;
and, costs. It must be underscored that petitioners have
been guilty of committing several actionable tortious
acts, i.e., the abusive manner in which they dismissed
Tobias from work including the baseless imputation of
guilt and the harassment during the investigations; the
defamatory language heaped on Tobias as well as the
scornful remark on Filipinos; the poison letter sent to
RETELCO which resulted in Tobias' loss of possible
employment; and, the malicious filing of the criminal
complaints. Considering the extent of the damage
wrought on Tobias, the Court finds that, contrary to
petitioners' contention, the amount of damages awarded
to Tobias was reasonable under the circumstances.
Yet, petitioners still insist that the award of damages
was improper, invoking the principle of damnum
absque injuria. It is argued that "[t]he only probable
actual damage that plaintiff (private respondent herein)
could have suffered was a direct result of his having
been dismissed from his employment, which was a valid
and legal act of the defendants-appellants (petitioners
herein).lâwphî1.ñèt " [Petition, p. 17; Rollo, p. 18].
According to the principle of damnum absque injuria,
damage or loss which does not constitute a violation of a
legal right or amount to a legal wrong is not actionable
[Escano v. CA, G.R. No. L-47207, September 25, 1980,
100 SCRA 197; See also Gilchrist v. Cuddy 29 Phil, 542
(1915); The Board of Liquidators v. Kalaw, G.R. No. L-
18805, August 14, 1967, 20 SCRA 987]. This principle
finds no application in this case. It bears repeating that
even granting that petitioners might have had the right
to dismiss Tobias from work, the abusive manner in
which that right was exercised amounted to a legal
wrong for which petitioners must now be held liable.
Moreover, the damage incurred by Tobias was not only
in connection with the abusive manner in which he was
dismissed but was also the result of several other quasi-
delictual acts committed by petitioners.
Petitioners next question the award of moral damages.
However, the Court has already ruled in Wassmer v.
Velez, G.R. No. L-20089, December 26, 1964, 12 SCRA
648, 653, that [p]er express provision of Article 2219
(10) of the New Civil Code, moral damages are
recoverable in the cases mentioned in Article 21 of said
Code." Hence, the Court of Appeals committed no error
in awarding moral damages to Tobias.
Lastly, the award of exemplary damages is impugned by
petitioners. Although Article 2231 of the Civil Code
provides that "[i]n quasi-delicts, exemplary damages
may be granted if the defendant acted with gross
negligence," the Court, in Zulueta v. Pan American
World Airways, Inc., G.R. No. L- 28589, January 8, 1973,
49 SCRA 1, ruled that if gross negligence warrants the
award of exemplary damages, with more reason is its
imposition justified when the act performed is
deliberate, malicious and tainted with bad faith. As in
the Zulueta case, the nature of the wrongful acts shown
to have been committed by petitioners against Tobias is
sufficient basis for the award of exemplary damages to
the latter.
WHEREFORE, the petition is hereby DENIED and the
decision of the Court of Appeals in CA-G.R. CV No.
09055 is AFFIRMED. SO ORDERED.
G.R. No. 140420. February 15 , 2001
SERGIO AMONOY, petitioner, vs. Spouses JOSE
GUTIERREZ and ANGELA FORNILDA, respondents.
Damnum absque injuria. Under this principle, the
legitimate exercise of a persons rights, even if it causes
loss to another, does not automatically result in an
actionable injury. The law does not prescribe a remedy
for the loss. This principle does not, however, apply
when there is an abuse of a persons right, or when the
exercise of this right is suspended or extinguished
pursuant to a court order. Indeed, in the availment of
ones rights, one must act with justice, give others their
due, and observe honesty and good faith.
THE CASE
Before us is a Petition for Review under Rule 45 of the
Rules of Court, assailing the April 21, 1999 Decision of
the Court of Appeals (CA) in CA-GR CV No. 41451, which
set aside the judgment of the Regional Trial Court (RTC)
of Tanay, Rizal. The RTC had earlier dismissed the
Complaint for damages filed by herein respondents
against petitioner. The dispositive portion of the
challenged CA Decision reads as follows:
WHEREFORE, the appealed Decision is SET ASIDE, and
in its stead judgment is rendered ordering the
defendant-appellee Sergio Amonoy to pay the plaintiffs-
appellants Bruno and Bernardina Gutierrez as actual
damages the sum of [t]wo [h]undred [f]ifty [t]housand
[p]esos (P250,000.00).
Likewise assailed is the October 19, 1999 CA
Resolution, which denied the Motion for Reconsideration.
THE FACTS
The appellate court narrated the factual antecedents of
this case as follows:
This case had its roots in Special Proceedings No. 3103
of Branch I of the CFI of Pasig, Rizal, for the settlement
of the estate of the deceased Julio Cantolos, involving
six (6) parcels of land situated in Tanay, Rizal. Amonoy
was the counsel of therein Francisca Catolos, Agnes
Catolos, Asuncion Pasamba and Alfonso Formilda. On 12
January 1965, the Project of Partition submitted was
approved and x x x two (2) of the said lots were
adjudicated to Asuncion Pasamba and Alfonso
Formilda. The attorneys fees charged by Amonoy was
P27,600.00 and on 20 January 1965 Asuncion Pasamba
and Alfonso Formilda executed a deed of real estate
mortgage on the said two (2) lots adjudicated to them,
in favor of Amonoy to secure the payment of his
attorneys fees. But it was only on 6 August 1969 after
the taxes had been paid, the claims settled and the
properties adjudicated, that the estate was declared
closed and terminated.
Asuncion Pasamba died on 24 February 1969 while
Alfonso Fornilda passed away on 2 July 1969. Among
the heirs of the latter was his daughter, plaintiff-
appellant Angela Gutierrez.
Because his attorneys fees thus secured by the two lots
were not paid, on 21 January 1970 Amonoy filed for
their foreclosure in Civil Case No. 12726 entitled Sergio
Amonoy vs. Heirs of Asuncion Pasamba and Heirs of
Alfonso Fornilda before the CFI of Pasig, Rizal, and this
was assigned to Branch VIII. The heirs opposed,
contending that the attorneys fees charged [were]
unconscionable and that the agreed sum was only
P11,695.92. But on 28 September 1972 judgment was
rendered in favor of Amonoy requiring the heirs to pay
within 90 days the P27,600.00 secured by the mortgage,
P11,880.00 as value of the harvests, and P9,645.00 as
another round of attorneys fees. Failing in that, the two
(2) lots would be sold at public auction.
They failed to pay. On 6 February 1973, the said lots
were foreclosed and on 23 March 1973 the auction sale
was held where Amonoy was the highest bidder at
P23,760.00. On 2 May 1973 his bid was judicially
confirmed. A deficiency was claimed and to satisfy it
another execution sale was conducted, and again the
highest bidder was Amonoy at P12,137.50.
Included in those sold was the lot on which the
Gutierrez spouses had their house.
More than a year after the Decision in Civil Case No.
12726 was rendered, the said decedents heirs filed on
19 December 1973 before the CFI of Pasig, Rizal[,] Civil
Case No. 18731 entitled Maria Penano, et al vs. Sergio
Amonoy, et al, a suit for the annulment thereof. The
case was dismissed by the CFI on 7 November 1977,
and this was affirmed by the Court of Appeals on 22 July
1981.
Thereafter, the CFI on 25 July 1985 issued a Writ of
Possession and pursuant to which a notice to vacate was
made on 26 August 1985. On Amonoys motion of 24
April 1986, the Orders of 25 April 1986 and 6 May 1986
were issued for the demolition of structures in the said
lots, including the house of the Gutierrez spouses.
On 27 September 1985 the petition entitled David
Fornilda, et al vs Branch 164 RTC IVth Pasig, Deputy
Sheriff Joaquin Antonil and Atty. Sergio Amonoy, G.R.
No. L-72306, was filed before the Supreme
Court. Among the petitioners was the plaintiff-appellant
Angela Gutierrez. On a twin Musiyun (Mahigpit na
Musiyon Para Papanagutin Kaugnay ng
Paglalapastangan, and Musiyung Makahingi ng Utos sa
Pagpapapigil ng Pagpapagiba at Pananagutin sa
Paglalapastangan) with full titles as fanciful and
elongated as their Petisyung (Petisyung Makapagsuri
Taglay and Pagpigil ng Utos), a temporary restraining
order was granted on 2 June 1986 enjoining the
demolition of the petitioners houses.
Then on 5 October 1988 a Decision was rendered in the
said G.R. No. L-72306 disposing that:
WHEREFORE, Certiorari is granted; the Order of
respondent Trial Court, dated 25 July 1985, granting a
Writ of Possession, as well as its Orders, dated 25 April
1986 and 16 May 1986, directing and authorizing
respondent Sheriff to demolish the houses of petitioners
Angela and Leocadia Fornilda are hereby set aside, and
the Temporary Restraining Order heretofore issued, is
made permanent. The six (6) parcels of land herein
controverted are hereby ordered returned to petitioners
unless some of them have been conveyed to innocent
third persons.[5]
But by the time the Supreme Court promulgated the
above-mentioned Decision, respondents house had
already been destroyed, supposedly in accordance with
a Writ of Demolition ordered by the lower court.
Thus, a Complaint for damages in connection with the
destruction of their house was filed by respondents
against petitioner before the RTC on December 15,
1989.
In its January 27, 1993 Decision, the RTC dismissed
respondents suit. On appeal, the CA set aside the lower
courts ruling and ordered petitioner to pay
respondents P250,000 as actual damages. Petitioner
then filed a Motion for Reconsideration, which was also
denied.
Hence, this recourse.
The Issue
In his Memorandum, petitioner submits this lone issue
for our consideration:
Whether or not the Court of Appeals was correct in
deciding that the petitioner [was] liable to the
respondents for damages
The Courts Ruling
The Petition has no merit.
Main Issue: Petitioners Liability
Well-settled is the maxim that damage resulting from
the legitimate exercise of a persons rights is a loss
without injury -- damnum absque injuria --for which the
law gives no remedy. In other words, one who merely
exercises ones rights does no actionable injury and
cannot be held liable for damages.
Petitioner invokes this legal precept in arguing that he is
not liable for the demolition of respondents house. He
maintains that he was merely acting in accordance with
the Writ of Demolition ordered by the RTC.
We reject this submission. Damnum absque injuria finds
no application to this case.
True, petitioner commenced the demolition of
respondents house on May 30, 1986 under the authority
of a Writ of Demolition issued by the RTC.But the
records show that a Temporary Restraining Order
(TRO), enjoining the demolition of respondents house,
was issued by the Supreme Court on June 2, 1986. The
CA also found, based on the Certificate of Service of the
Supreme Court process server, that a copy of the TRO
was served on petitioner himself on June 4, 1986.
Petitioner, however, did not heed the TRO of this
Court. We agree with the CA that he unlawfully pursued
the demolition of respondents house well until the
middle of 1987. This is clear from Respondent Angela
Gutierrezs testimony. The appellate court quoted the
following pertinent portion thereof:
Q. On May 30, 1986, were they able to destroy your house?
A. Not all, a certain portion only
xxxxxxxxx
Q. Was your house completely demolished?
A. No, sir.
Q. How about the following day?
A. It was completely demolished
xxxxxxxxx
Q. Until when[,] Mrs. Witness?
A. Until 1987.
Q. About what month of 1987?
A. Middle of the year.
Q. Can you tell the Honorable Court who completed the demolition?
A. The men of Fiscal Amonoy.
The foregoing disproves the claim of petitioner that the
demolition, which allegedly commenced only on May 30,
1986, was completed the following day. It likewise belies
his allegation that the demolitions had already ceased
when he received notice of the TRO.
Although the acts of petitioner may have been legally
justified at the outset, their continuation after the
issuance of the TRO amounted to an insidious abuse of
his right. Indubitably, his actions were tainted with bad
faith. Had he not insisted on completing the demolition,
respondents would not have suffered the loss that
engendered the suit before the RTC. Verily, his acts
constituted not only an abuse of a right, but an invalid
exercise of a right that had been suspended when he
received the TRO from this Court on June 4, 1986. By
then, he was no longer entitled to proceed with the
demolition.
A commentator on this topic explains:
The exercise of a right ends when the right disappears,
and it disappears when it is abused, especially to the
prejudice of others. The mask of a right without the
spirit of justice which gives it life, is repugnant to the
modern concept of social law. It cannot be said that a
person exercises a right when he unnecessarily
prejudices another x x x. Over and above the specific
precepts of positive law are the supreme norms of
justice x x x; and he who violates them violates the
law. For this reason, it is not permissible to abuse our
rights to prejudice others.
Likewise, in Albenson Enterprises Corp. v. CA, the Court
discussed the concept of abuse of rights as follows:
Article 19, known to contain what is commonly referred
to as the principle of abuse of rights, sets certain
standards which may be observed not only in the
exercise of ones rights but also in the performance of
ones duties. These standards are the following: to act
with justice; to give everyone his due; and to observe
honesty and good faith. The law, therefore, recognizes
the primordial limitation on all rights: that in their
exercise, the norms of human conduct set forth in Article
19 must be observed. A right, though by itself legal
because recognized or granted by law as such, may
nevertheless become the source of some illegality. When
a right is exercised in a manner which does not conform
with norms enshrined in Article 19 and results in damage
to another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible x x x.
Clearly then, the demolition of respondents house by
petitioner, despite his receipt of the TRO, was not only
an abuse but also an unlawful exercise of such right. In
insisting on his alleged right, he wantonly violated this
Courts Order and wittingly caused the destruction of
respondents house.
Obviously, petitioner cannot invoke damnum absque
injuria, a principle premised on the valid exercise of a
right. Anything less or beyond such exercise will not give
rise to the legal protection that the principle
accords. And when damage or prejudice to another is
occasioned thereby, liability cannot be obscured, much
less abated.
In the ultimate analysis, petitioners liability is premised
on the obligation to repair or to make whole the damage
caused to another by reason of ones act or omission,
whether done intentionally or negligently and whether or
not punishable by law.
WHEREFORE, the Petition is DENIED and the appealed
Decision AFFIRMED. Costs against petitioner. SO
ORDERED.
G.R. No. 132344 February 17, 2000
UNIVERSITY OF THE EAST, petitioner, vs. ROMEO
A. JADER, respondent.
May an educational institution be held liable for damages
for misleading a student into believing that the latter
had satisfied all the requirements for graduation when
such is not the case? This is the issue in the instant
petition for review premised on the following undisputed
facts as summarized by the trial court and adopted by
the Court of Appeals (CA),1 to wit:
Plaintiff was enrolled in the defendants' College
of Law from 1984 up to 1988. In the first
semester of his last year (School year 1987-
1988), he failed to take the regular final
examination in Practice Court I for which he was
given an incomplete grade (Exhibits "2", also
Exhibit "H"). He enrolled for the second
semester as fourth year law student (Exhibit
"A") and on February 1, 1988 he filed an
application for the removal of the incomplete
grade given him by Professor Carlos Ortega
(Exhibits "H-2", also Exhibit "2") which was
approved by Dean Celedonio Tiongson after
payment of the required fee. He took the
examination on March 28, 1988. On May 30,
1988, Professor Carlos Ortega submitted his
grade. It was a grade of five (5). (Exhibits "H-
4", also Exhibits "2-L", "2-N").1âwphi1.nêt
In the meantime, the Dean and the Faculty
Members of the College of Law met to deliberate
on who among the fourth year students should
be allowed to graduate. The plaintiff's name
appeared in the Tentative List of Candidates for
graduation for the Degree of Bachelor of Laws
(LL.B) as of Second Semester (1987-1988) with
the following annotation:
JADER ROMEO A.
Def. Conflict of Laws — x-1-87-88, Practice
Court I Inc., 1-87-88 C-1 to submit transcript
with S.O. (Exhibits "3", "3-C-1", "3-C-2").
The 35th Investitures & Commencement
Ceremonies for the candidates of Bachelor of
Laws was scheduled on the 16th of April 1988 at
3:00 o'clock in the afternoon, and in the
invitation for that occasion the name of the
plaintiff appeared as one of the candidates.
(Exhibits "B", "B-6", "B-6-A"). At the foot of the
list of the names of the candidates there
appeared however the following annotation:
This is a tentative list Degrees will be
conferred upon these candidates who
satisfactorily complete requirements as
stated in the University Bulletin and as
approved of the Department of
Education, Culture and Sports (Exhibit
"B-7-A").
The plaintiff attended the investiture ceremonies
at F. dela Cruz Quadrangle, U.E., Recto Campus,
during the program of which he went up the
stage when his name was called, escorted by
her (sic) mother and his eldest brother who
assisted in placing the Hood, and his Tassel was
turned from left to right, and he was thereafter
handed by Dean Celedonio a rolled white sheet
of paper symbolical of the Law Diploma. His
relatives took pictures of the occasion (Exhibits
"C" to "C-6", "D-3" to "D-11").
He tendered a blow-out that evening which was
attended by neighbors, friends and relatives
who wished him good luck in the forthcoming
bar examination. There were pictures taken too
during the blow-out (Exhibits "D" to "D-1").
He thereafter prepared himself for the bar
examination. He took a leave of absence without
pay from his job from April 20, 1988 to
September 30, 1988 (Exhibit "G") and enrolled
 at the pre-bar review class in Far Eastern
University. (Exhibits "F" to "F-2"). Having
learned of the deficiency he dropped his review
class and was not able to take the bar
examination.2
Consequently, respondent sued petitioner for damages
alleging that he suffered moral shock, mental anguish,
serious anxiety, besmirched reputation, wounded
feelings and sleepless nights when he was not able to
take the 1988 bar examinations arising from the latter's
negligence. He prayed for an award of moral and
exemplary damages, unrealized income, attorney's fees,
and costs of suit.
In its answer with counterclaim, petitioner denied
liability arguing mainly that it never led respondent to
believe that he completed the requirements for a
Bachelor of Laws degree when his name was included in
the tentative list of graduating students. After trial, the
lower court rendered judgment as follows:
WHEREFORE, in view of the foregoing judgment
is hereby rendered in favor of the plaintiff and
against the defendant ordering the latter to pay
plaintiff the sum of THIRTY FIVE THOUSAND
FOUR HUNDRED SEVENTY PESOS (P35,470.00)
with legal rate of interest from the filing of the
complaint until fully paid, the amount of FIVE
THOUSAND PESOS (P5,000.00) as attorney's
fees and the cost of suit.
Defendant's counterclaim is, for lack of merit,
hereby dismissed.
SO ORDERED.3
which on appeal by both parties was affirmed by the
Court of Appeals (CA) with modification. The dispositive
portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the
lower Court's Decision is hereby AFFIRMED with
the MODIFICATION that defendant-appellee, in
addition to the sum adjudged by the lower court
in favor of plaintiff-appellant, is also ORDERED
to pay plaintiff-appellant the amount of FIFTY
THOUSAND (P50,000.00) PESOS for moral
damages. Costs against defendant-appellee.
SO ORDERED.4
Upon the denial of its motion for reconsideration,
petitioner UE elevated the case to this Court on a
petition for review under Rule 45 of the Rules of Court,
arguing that it has no liability to respondent Romeo A.
Jader, considering that the proximate and immediate
cause of the alleged damages incurred by the latter
arose out of his own negligence in not verifying from the
professor concerned the result of his removal exam.
The petition lacks merit.
When a student is enrolled in any educational or
learning institution, a contract of education is entered
into between said institution and the student. The
professors, teachers or instructors hired by the school
are considered merely as agents and administrators
tasked to perform the school's commitment under the
contract. Since the contracting parties are the school
and the student, the latter is not duty-bound to deal
with the former's agents, such as the professors with
respect to the status or result of his grades, although
nothing prevents either professors or students from
sharing with each other such information. The Court
takes judicial notice of the traditional practice in
educational institutions wherein the professor directly
furnishes his/her students their grades. It is the
contractual obligation of the school to timely inform and
furnish sufficient notice and information to each and
every student as to whether he or she had already
complied with all the requirements for the conferment of
a degree or whether they would be included among
those who will graduate. Although commencement
exercises are but a formal ceremony, it nonetheless is
not an ordinary occasion, since such ceremony is the
educational institution's way of announcing to the whole
world that the students included in the list of those who
will be conferred a degree during the baccalaureate
ceremony have satisfied all the requirements for such
degree. Prior or subsequent to the ceremony, the school
has the obligation to promptly inform the student of any
problem involving the latter's grades and performance
and also most importantly, of the procedures for
remedying the same.
Petitioner, in belatedly informing respondent of the
result of the removal examination, particularly at a time
when he had already commenced preparing for the bar
exams, cannot be said to have acted in good faith.
Absence of good faith must be sufficiently established
for a successful prosecution by the aggrieved party in a
suit for abuse of right under Article 19 of the Civil Code.
Good faith connotes an honest intention to abstain from
taking undue advantage of another, even though the
forms and technicalities of the law, together with the
absence of all information or belief of facts, would
render the transaction unconscientious.5 It is the school
that has access to those information and it is only the
school that can compel its professors to act and comply
with its rules, regulations and policies with respect to the
computation and the prompt submission of grades.
Students do not exercise control, much less influence,
over the way an educational institution should run its
affairs, particularly in disciplining its professors and
teachers and ensuring their compliance with the school's
rules and orders. Being the party that hired them, it is
the school that exercises general supervision and
exclusive control over the professors with respect to the
submission of reports involving the students' standing.
Exclusive control means that no other person or entity
had any control over the instrumentality which caused
the damage or injury.6
The college dean is the senior officer responsible for the
operation of an academic program, enforcement of rules
and regulations, and the supervision of faculty and
student services.7 He must see to it that his own
professors and teachers, regardless of their status or
position outside of the university, must comply with the
rules set by the latter. The negligent act of a professor
who fails to observe the rules of the school, for instance
by not promptly submitting a student's grade, is not only
imputable to the professor but is an act of the school,
being his employer.
Considering further, that the institution of learning
involved herein is a university which is engaged in legal
education, it should have practiced what it inculcates in
its students, more specifically the principle of good
dealings enshrined in Articles 19 and 20 of the Civil Code
which states:
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due, and observe
honesty and good faith.
Art. 20. Every person who, contrary to law,
wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Art. 19 was intended to expand the concept of torts by
granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human foresight
to provide specifically in statutory law. 8 In civilized
society, men must be able to assume that others will do
them no intended injury — that others will commit no
internal aggressions upon them; that their fellowmen,
when they act affirmatively will do so with due care
which the ordinary understanding and moral sense of
the community exacts and that those with whom they
deal in the general course of society will act in good
faith. The ultimate thing in the theory of liability is
justifiable reliance under conditions of civilized
society.9 Schools and professors cannot just take
students for granted and be indifferent to them, for
without the latter, the former are useless.
Educational institutions are duty-bound to inform the
students of their academic status and not wait for the
latter to inquire from the former. The conscious
indifference of a person to the rights or welfare of the
person/persons who may be affected by his act or
omission can support a claim for damages. 10 Want of
care to the conscious disregard of civil obligations
coupled with a conscious knowledge of the cause
naturally calculated to produce them would make the
erring party liable.11 Petitioner ought to have known that
time was of the essence in the performance of its
obligation to inform respondent of his grade. It cannot
feign ignorance that respondent will not prepare himself
for the bar exams since that is precisely the immediate
concern after graduation of an LL.B. graduate. It failed
to act seasonably. Petitioner cannot just give out its
student's grades at any time because a student has to
comply with certain deadlines set by the Supreme Court
on the submission of requirements for taking the bar.
Petitioner's liability arose from its failure to promptly
inform respondent of the result of an examination and in
misleading the latter into believing that he had satisfied
all requirements for the course. Worth quoting is the
following disquisition of the respondent court:
It is apparent from the testimony of Dean
Tiongson that defendant-appellee University had
been informed during the deliberation that the
professor in Practice Court I gave plaintiff-
appellant a failing grade. Yet, defendant-
appellee still did not inform plaintiff-appellant of
his failure to complete the requirements for the
degree nor did they remove his name from the
tentative list of candidates for graduation.
Worse, defendant-appellee university, despite
the knowledge that plaintiff-appellant failed in
Practice Court I, again included plaintiff-
appellant's name in the "tentative list of
candidates for graduation which was prepared
after the deliberation and which became the
basis for the commencement rites program.
Dean Tiongson reasons out that plaintiff-
appellant's name was allowed to remain in the
tentative list of candidates for graduation in the
hope that the latter would still be able to
remedy the situation in the remaining few days
before graduation day. Dean Tiongson,
however, did not explain how plaintiff appellant
Jader could have done something to complete
his deficiency if defendant-appellee university
did not exert any effort to inform plaintiff-
appellant of his failing grade in Practice Court
I.12
Petitioner cannot pass on its blame to the professors to
justify its own negligence that led to the delayed relay of
information to respondent. When one of two innocent
parties must suffer, he through whose agency the loss
occurred must bear it.13 The modern tendency is to
grant indemnity for damages in cases where there is
abuse of right, even when the act is not illicit. 14 If mere
fault or negligence in one's acts can make him liable for
damages for injury caused thereby, with more reason
should abuse or bad faith make him liable. A person
should be protected only when he acts in the legitimate
exercise of his right, that is, when he acts with prudence
and in good faith, but not when he acts with negligence
or abuse.15
However, while petitioner was guilty of negligence and
thus liable to respondent for the latter's actual damages,
we hold that respondent should not have been awarded
moral damages. We do not agree with the Court of
Appeals' findings that respondent suffered shock,
trauma and pain when he was informed that he could
not graduate and will not be allowed to take the bar
examinations. At the very least, it behooved on
respondent to verify for himself whether he has
completed all necessary requirements to be eligible for
the bar examinations. As a senior law student,
respondent should have been responsible enough to
ensure that all his affairs, specifically those pertaining to
his academic achievement, are in order. Given these
considerations, we fail to see how respondent could
have suffered untold embarrassment in attending the
graduation rites, enrolling in the bar review classes and
not being able to take the bar exams. If respondent was
indeed humiliated by his failure to take the bar, he
brought this upon himself by not verifying if he has
satisfied all the requirements including his school
records, before preparing himself for the bar
examination. Certainly, taking the bar examinations does
not only entail a mental preparation on the subjects
thereof; there are also prerequisites of documentation
and submission of requirements which the prospective
examinee must meet.
WHEREFORE, the assailed decision of the Court of
Appeals is AFFIRMED with MODIFICATION. Petitioner is
ORDERED to PAY respondent the sum of Thirty-five
Thousand Four Hundred Seventy Pesos (P35,470.00),
with legal interest of 6% per annum computed from the
date of filing of the complaint until fully paid; the
amount of Five Thousand Pesos (P5,000.00) as
attorney's fees; and the costs of the suit. The award of
moral damages is DELEIED.1âwphi1.nêtSO ORDERED.
[G.R. No. 120639. September 25, 1998]
BPI EXPRESS CARD CORPORATION, petitioner,
vs. COURT OF APPEALS and RICARDO J.
MARASIGAN, respondents.
The question before this Court is whether private
respondent can recover moral damages arising from the
cancellation of his credit card by petitioner credit card
corporation.
The facts of the case are as stated in the decision
of the respondent court,[1] to wit:
The case arose from the dishonor of the credit
card of the plaintiff Atty. Ricardo J. Marasigan by
Cafe Adriatico, a business establishment accredited
with the defendant-appellant BPI Express Card
Corporation (BECC for brevity) on December 8, 1989
when the plaintiff entertained some guests thereat.
The records of this case show that plaintiff,
who is a lawyer by profession was a complimentary
member of BECC from February 1988 to February
1989 and was issued Credit Card No. 100-012-5534
with a credit limit of P3,000.00 and with a monthly
billing every 27th of the month (Exh. N), subject to
the terms and conditions stipulated in the contract
(Exh. 1-b). His membership was renewed for
another year or until February 1990 and the credit
limit was increased to P5,000.00 (Exh. A). The
plaintiff oftentimes exceeded his credit limits (Exhs.
I, I-1 to I-12) but this was never taken against him
by the defendant and even his mode of paying his
monthly bills in check was tolerated. Their
contractual relations went on smoothly until his
statement of account for October, 1989 amounting
to P8,987.84 was not paid in due time. The plaintiff
admitted having inadvertently failed to pay his
account for the said month because he was in
Quezon province attending to some professional and
personal commitments. He was informed by his
secretary that defendant was demanding immediate
payment of his outstanding account, was requiring
him to issue a check for P15,000.00 which would
include his future bills, and was threatening to
suspend his credit card. Plaintiff issued Far East
Bank and Trust Co. Check No. 494675 in the amount
of P15,000.00, postdated December 15, 1989 which
was received on November 23, 1989 by Tess
Lorenzo, an employee of the defendant (Exhs. J and
J-1), who in turn gave the said check to Jeng
Angeles, a co-employee who handles the account of
the plaintiff. The check remained in the custody of
Jeng Angeles. Mr. Roberto Maniquiz, head of the
collection department of defendant was formally
informed of the postdated check about a week
later. On November 28, 1989, defendant served
plaintiff a letter by ordinary mail informing him of
the temporary suspension of the privileges of his
credit card and the inclusion of his account number
in their Caution List. He was also told to refrain from
further use of his credit card to avoid any
inconvenience/embarrassment and that unless he
settles his outstanding account with the defendant
within 5 days from receipt of the letter, his
membership will be permanently cancelled (Exh.
3). There is no showing that the plaintiff received
this letter before December 8, 1989. Confident that
he had settled his account with the issuance of the
postdated check, plaintiff invited some guests on
December 8, 1989 and entertained them at Caf
Adriatico. When he presented his credit card to Caf
Adriatico for the bill amounting to P735.32, said card
was dishonored. One of his guests, Mary Ellen
Ringler, paid the bill by using her own credit card, a
Unibankard (Exhs. M, M-1 and M-2).
In a letter addressed to the defendant dated
December 12, 1989, plaintiff requested that he be
sent the exact billing due him as of December 15,
1989, to withhold the deposit of his postdated check
and that said check be returned to him because he
had already instructed his bank to stop the payment
thereof as the defendant violated their agreement
that the plaintiff issue the check to the defendant to
cover his account amounting to only P8,987.84 on
the condition that the defendant will not suspend
the effectivity of the card (Exh. D). A letter dated
December 16, 1989 was sent by the plaintiff to the
manager of FEBTC, Ramada Branch, Manila
requesting the bank to stop the payment of the
check (Exhs. E, E-1). No reply was received by
plaintiff from the defendant to his letter dated
December 12, 1989. Plaintiff sent defendant another
letter dated March 12, 1990 reminding the latter
that he had long rescinded and cancelled whatever
arrangement he entered into with defendant and
requesting for his correct billing, less the improper
charges and penalties, and for an explanation within
five (5) days from receipt thereof why his card was
dishonored on December 8, 1989 despite assurance
to the contrary by defendant's personnel-in-charge,
otherwise the necessary court action shall be filed to
hold defendant responsible for the humiliation and
embarrassment suffered by him (Exh. F). Plaintiff
alleged further that after a few days, a certain Atty.
Albano, representing himself to be working with
office of Atty. Lopez, called him inquiring as to how
the matter can be threshed out extrajudicially but
the latter said that such is a serious matter which
cannot be discussed over the phone. The defendant
served its final demand to the plaintiff dated March
21, 1990 requiring him to pay in full his overdue
account, including stipulated fees and charges,
within 5 days from receipt thereof or face court
action also to replace the postdated check with cash
within the same period or face criminal suit for
violation of the Bouncing Check Law (Exh. G/Exh.
13). The plaintiff, in a reply letter dated April 5,
1990 (Exh. H), demanded defendant's compliance
with his request in his first letter dated March 12,
1990 within three (3) days from receipt, otherwise
the plaintiff will file a case against them, x x x.[2]
Thus, on May 7, 1990 private respondent filed a
complaint for damages against petitioner before the
Regional Trial Court of Makati, Branch 150, docketed as
Civil Case No. 90-1174.
After trial, the trial court ruled for private
respondent, finding that herein petitioner abused its
right in contravention of Article 19 of the Civil
Code.[3]The dispositive portion of the decision reads:
Wherefore, judgment is hereby rendered ordering the defendant
to pay plaintiff the following:
1. P100,000.00 as moral damages;
2. P50,000.00 as exemplary damages; and
3. P20,000.00 by way of attorney's fees.
On the other hand, plaintiff is ordered to pay
defendant its outstanding obligation in the amount
of P14,439.41, amount due as of December 15,
1989.[4]
The trial court's ruling was based on its findings
and conclusions, to wit:
There is no question that plaintiff had been in
default in the payment of his billings for more than
two months, prompting defendant to call him and
reminded him of his obligation. Unable to personally
talk with him, this Court is convinced that somehow
one or another employee of defendant called him up
more than once.
However, while it is true that, as indicated in
the terms and conditions of the application for BPI
credit card, upon failure of the cardholder to pay his
outstanding obligation for more than thirty (30)
days, the defendant can automatically suspend or
cancel the credit card, that reserved right should not
have been abused, as it was in fact abused, in
plaintiff's case. What is more peculiar here is that
there have been admitted communications between
plaintiff and defendant prior to the suspension or
cancellation of plaintiff's credit card and his inclusion
in the caution list. However, nowhere in any of these
communications was there ever a hint given to
plaintiff that his card had already been suspended or
cancelled. In fact, the Court observed that while
defendant was trying its best to persuade plaintiff to
update its account and pay its obligation, it had
already taken steps to suspend/cancel plaintiff's card
and include him in the caution list. While the Court
admires defendant's diplomacy in dealing with its
clients, it cannot help but frown upon the
backhanded way defendant dealt with plaintiff's
case. For despite Tess Lorenzo's denial, there is
reason to believe that plaintiff was indeed assured
by defendant of the continued honoring of his credit
card so long as he pays his obligation
of P15,000.00. Worst, upon receipt of the postdated
check, defendant kept the same until a few days
before it became due and said check was presented
to the head of the collection department, Mr.
Maniquiz, to take steps thereon, resulting to the
embarrassing situation plaintiff found himself in on
December 8, 1989. Moreover, Mr. Maniquiz himself
admitted that his request for plaintiff to replace the
check with cash was not because it was a postdated
check but merely to tally the payment with the
account due.
Likewise, the Court is not persuaded by the
sweeping denials made by Tess Lorenzo and her
claim that her only participation was to receive the
subject check. Her immediate superior, Mr. Maniquiz
testified that he had instructed Lorenzo to
communicate with plaintiff once or twice to request
the latter to replace the questioned check with cash,
thus giving support to the testimony of plaintiff's
witness, Dolores Quizon, that it was one Tess
Lorenzo who she had talked over the phone
regarding plaintiff's account and plaintiff's own
statement that it was this woman who assured him
that his card has not yet been and will not be
cancelled/suspended if he would pay defendant the
sum of P15,000.00.
Now, on the issue of whether or not upon
receipt of the subject check, defendant had agreed
that the card shall remain effective, the Court takes
note of the following:
1. An employee of defendant corporation unconditionally
accepted the subject check upon its delivery, despite its
being a postdated one; and the amount did not tally
with plaintiff's obligation;
2. Defendant did not deny nor controvert plaintiff's claim
that all his payments were made in checks;
3. Defendant's main witness, Mr. Maniquiz, categorically
stated that the request for plaintiff to replace his
postdated check with cash was merely for the purpose
of tallying plaintiff's outstanding obligation with his
payment and not to question the postdated check;
4. That the card was suspended almost a week after
receipt of the postdated check;
5. That despite the many instances that defendant could
have informed plaintiff over the phone of the
cancellation or suspension of his credit card, it did not
do so, which could have prevented the incident of
December 8, 1989, the notice allegedly sent thru
ordinary mail is not only unreliable but takes a long
time. Such action as suspension of credit card must be
immediately relayed to the person affected so as to
avoid embarrassing situations.
6. And that the postdated check was deposited on
December 20, 1989.
In view of the foregoing observations, it is
needless to say that there was indeed an
arrangement between plaintiff and the defendant, as
can be inferred from the acts of the defendant's
employees, that the subject credit card is still good
and could still be used by the plaintiff as it would be
honored by the duly accredited establishment of
defendant.[5]
Not satisfied with the Regional Trial Court's
decision, petitioner appealed to the Court of Appeals,
which, in a decision promulgated on March 9, 1995 ruled
in its dispositive portion:
WHEREFORE, premises considered, the decision
appealed from is hereby AFFIRMED with the
MODIFICATION that the defendant-appellant shall
pay the plaintiff-appellee the following: P50,000.00
as moral damages; P25,000.00 as exemplary
damages; and P10,000.00 by way of attorney's fees.
SO ORDERED.[6]
Hence, the present petition on the following
assignment of errors:
I. THE LOWER COURT ERRED IN DECLARING
THAT THERE WAS INDEED AN AGREEMENT
OR ARRANGEMENT ENTERED INTO
BETWEEN THE PARTIES WHEREIN THE
DEFENDANT REQUIRED THE PLAINTIFF TO
ISSUE A POSTDATED CHECK IN ITS FAVOR
IN THE AMOUNT OF P15,000.00 AS
PAYMENT FOR HIS OVERDUE ACCOUNTS,
WITH THE CONDITION THAT THE
PLAINTIFF'S CREDIT CARD WILL NOT BE
SUSPENDED OR CANCELLED.
II. THE LOWER COURT ERRED IN HOLDING
DEFENDANT LIABLE FOR DAMAGES AND
ATTORNEY'S FEES ARISING OUT FROM THE
DISHONOR OF THE PLAINTIFF'S CREDIT
CARD.
We find the petition meritorious.
The first issue to be resolved is whether petitioner
had the right to suspend the credit card of the private
respondent.
Under the terms and conditions of the credit card,
signed by the private respondent, any card with
outstanding balances after thirty (30) days from original
billing/statement shall automatically be suspended, thus:
PAYMENT OF CHARGES - BECC shall furnish the
Cardholder a monthly statement of account made
through the use of the CARD and the Cardholder
agrees that all charges made through the use of
the CARD shall be paid by the Cardholder on or
before the last day for payments, which is twenty
(20) days from the date of the said statement of
account, and such payment due date may be
changed to an earlier date if the Cardholder's
account is considered overdue and/or with balances
in excess of the approved credit limit; or to such
other date as may be deemed proper by the CARD
 issuer with notice to the Cardholder on the same
monthly statement of account. If the last day for
payment falls on a Saturday, Sunday or Holiday,
the last day for payment automatically becomes the
last working day prior to said payment
date. However, notwithstanding the absence or lack
of proof of service of the statement of charges to
the Cardholder, the latter shall pay any or all
charges made through the use of the CARD within
thirty (30) days from the date or dates thereof.
Failure of Cardholder to pay any and all charges
made through the CARD within the payment period
as stated in the statement of charges or within
thirty (30) days from actual date or dates
whichever occur earlier, shall render him in default
without the necessity of demand from BECC, which
the Cardholder expressly waives. These charges or
balance thereof remaining unpaid after the
payment due date indicated on the monthly
statement of account shall bear interest at the rate
of 3% per month and an additional penalty fee
equivalent to another 3% of the amount due for
every month or a fraction of a month's delay.
PROVIDED, that if there occurs any change on the
prevailing market rates. BECC shall have the option
to adjust the rate of interest and/or penalty fee due
on the outstanding obligation with prior notice to
the Cardholder.
xxx xxx xxx
Any CARD with outstanding balances unpaid
after thirty (30) days from original
billing/statement date shall automatically be
suspended, and those with accounts unpaid
after sixty (60) days from said original
billing/statement date shall automatically be
cancelled, without prejudice to BECC's right to
suspend or cancel any CARD any time and for
whatever reason. In case of default in his
obligation as provided for in the preceding
paragraph, Cardholder shall surrender his CARD
to BECC and shall in addition to the interest and
penalty charges aforementioned, pay the
following liquidated damages and/or fees (a) a
collection fee of 25% of the amount due if the
account is referred to a collection agency or
attorney; (b) a service fee of P100 for every
dishonored check issued by the Cardholder in
payment of his account, with prejudice,
however, to BECC's right of considering
Cardholder's obligation unpaid, cable cost for
demanding payment or advising cancellation of
membership shall also be for Cardholder's
account; and (c) a final fee equivalent to 25% of
the unpaid balance, exclusive of litigation
expenses and judicial costs, if the payment of
the account is enforced through court action.[8]
The aforequoted provision of the credit card cannot be
any clearer. By his own admission, private respondent
made no payment within thirty days for his original
billing/statement dated 27 September 1989. Neither did
he make payment for his original billing/statement dated
27 October 1989. Consequently, as early as 28 October
1989, thirty days from the non-payment of his billing
dated 27 September 1989, petitioner corporation could
automatically suspend his credit card.
The next issue is whether prior to the suspension of
private respondent's credit card on 28 November 1989,
the parties entered into an agreement whereby the card
could still be used and would be duly honored by duly
accredited establisments.
We agree with the findings of the respondent court,
that there was an arrangement between the parties,
wherein the petitioner required the private respondent
to issue a check worth P15,000 as payment for the
latter's billings. However, we find that the private
respondent was not able to comply with his obligation.
As the testimony of private respondent himself
bears out, the agreement was for the immediate
payment of the outstanding account:
Q In said statement of account that you are supposed to pay
the P8,974.84 the charge of interest and penalties, did you
note that?
A Yes, sir. I noted the date.
Q When?
A When I returned from the Quezon province, sir.
Q When?
A I think November 22, sir.
Q So that before you used again the credit card you were not able
to pay immediately this P8,987.84 in cash?
A I paid P15,000.00, sir.
Q My question Mr. Witness is, did you pay this P8,987.84 in charge
of interest and penalties immediately in cash?
A In cash no, but in check, sir.
Q You said that you noted the word "immediately" in bold letters
in your statement of account, why did you not pay
immediately?
A Because I received that late, sir.
Q Yes, on November 22 when you received from the secretary of
the defendant telling you to pay the principal amount
of P8,987.84, why did you not pay?
A There was a communication between me and the defendant, I
was required to pay P8,000.00 but I paid in check
for P15,000.00, sir.
Q Do you have any evidence to show that the defendant required
you to pay in check for P15,000.00?
 A Yes, sir.
Q Where is it?
A It was by telecommunication, sir.
Q So there is no written communication between you and the
defendant?
A There was none, sir.
Q There is no written agreement which says that P8,987.84 should
be paid for P15,000.00 in check, there is none?
A Yes, no written agreement, sir.
Q And you as a lawyer you know that a check is not considered as
cash specially when it is postdated sent to the defendant?
A That is correct, sir.
Clearly, the purpose of the arrangement between
the parties on November 22, 1989, was for the
immediate payment of the private respondent's
outstanding account, in order that his credit card would
not be suspended.
As agreed upon by the parties, on the following
day, private respondent did issue a check
for P15,000. However, the check was postdated 15
December 1989. Settled is the doctrine that a check is
only a substitute for money and not money, the delivery
of such an instrument does not, by itself operate as
payment.[9] This is especially true in the case of a
postdated check.
Thus, the issuance by the private respondent of the
postdated check was not effective payment. It did not
comply with his obligation under the arrangement with
Miss Lorenzo. Petitioner corporation was therefore
justified in suspending his credit card.
Finally, we find no legal and factual basis for private
respondent's assertion that in canceling the credit card
of the private respondent, petitioner abused its right
under the terms and conditions of the contract.
To find the existence of an abuse of right under
Article 19 the following elements must be present: (1)
There is a legal right or duty; (2) which is exercised in
bad faith; (3) for the sole intent of prejudicing or
injuring another.[10]
Time and again this Court has held that good faith
is presumed and the burden of proving bad faith is on
the party alleging it.[11] This private respondent failed to
do. In fact, the action of the petitioner belies the
existence of bad faith. As early as 28 October 1989,
petitioner could have suspended private respondent's
card outright. Instead, petitioner allowed private
respondent to use his card for several weeks. Petitioner
had even notified private respondent of the impending
suspension of his credit card and made special
accommodations for him for settling his outstanding
account. As such, petitioner cannot be said to have
capriciously and arbitrarily canceled the private
respondent's credit card.
We do not dispute the findings of the lower court
that private respondent suffered damages as a result of
the cancellation of his credit card. However, there is a
material distinction between damages and injury. Injury
is the illegal invasion of a legal right; damage is the loss,
hurt, or harm which results from the injury; and
damages are the recompense or compensation awarded
for the damage suffered. Thus, there can be damage
without injury in those instances in which the loss or
harm was not the result of a violation of a legal duty. In
such cases, the consequences must be borne by the
injured person alone, the law affords no remedy for
damages resulting from an act which does not amount
to a legal injury or wrong. These situations are often
called damnum absque injuria.[12]
In other words, in order that a plaintiff may
maintain an action for the injuries of which he
complains, he must establish that such injuries resulted
from a breach of duty which the defendant owed to the
plaintiff - a concurrence of injury to the plaintiff and
legal responsibility by the person causing it.The
underlying basis for the award of tort damages is the
premise that an individual was injured in contemplation
of law. Thus, there must first be a breach of some duty
and the imposition of liability for that breach before
damages may be awarded;[13] and the breach of such
duty should be the proximate cause of the injury.
We therefore disagree with the ruling of the
respondent court that the dishonor of the credit card of
the private respondent by Caf Adriatico is attributable to
petitioner for its willful or gross neglect to inform the
private respondent of the suspension of his credit card,
the unfortunate consequence of which brought social
humiliation and embarrassment to the private
respondent.[14]
It was petitioner's failure to settle his obligation
which caused the suspension of his credit card and
subsequent dishonor at Caf Adriatico. He can not now
pass the blame to the petitioner for not notifying him of
the suspension of his card. As quoted earlier, the
application contained the stipulation that the petitioner
could automatically suspend a card whose billing has not
been paid for more than thirty days. Nowhere is it stated
in the terms and conditions of the application that there
is a need of notice before suspension may be effected as
private respondent claims.[15]
This notwithstanding, on November 28, 1989, the
day of the suspension of private respondent's card,
petitioner sent a letter by ordinary mail notifying private
respondent that his card had been temporarily
suspended. Under the Rules on Evidence, there is a
disputable presumption that letters duly directed and
mailed were received on the regular course of
mail.[16] Aside from the private respondent's bare denial,
he failed to present evidence to rebut the presumption
that he received said notice. In fact upon cross
examination, private respondent admitted that he did
received the letter notifying him of the cancellation:
Q Now you were saying that there was a first letter sent to you by
the defendant?
A Your letter, sir.
Q Was that the first letter that you received?
A Yes, sir.
Q Is it that there was a communication first between you and the
defendant?
A There was none, sir. I received a cancellation notice but that
was after November 27.
As it was private respondent's own negligence which was the
proximate cause of his embarrassing and humiliating experience, we
find the award of damages by the respondent court clearly
unjustified. We take note of the fact that private respondent has not
yet paid his outstanding account with petitioner.
IN VIEW OF THE FOREGOING, the decision of
the Court of Appeals ordering petitioner to pay private
respondent P100,000.00 as moral damages, P50,000.00
as exemplary damages and P20,000.00 as attorney's
fees, is SET ASIDE. Private respondent is DIRECTED to
pay his outstanding obligation with the petitioner in the
amount of P14,439.41. SO ORDERED.
B. ACTS CONTRA BONUS MORES
 ART. 21 NCC
1. ELEMENTS
G.R. No. L-15526 December 28, 1963
ENRIQUE J. L. RUIZ and JOSE V. HERRERA, in
their behalf and as minority stockholders of the
Allied Technologists, Inc., plaintiffs-appellants,
vs.
THE SECRETARY OF NATIONAL DEFENSE, COL.
NICOLAS JIMENEZ, Head of the Engineer Group,
Office of the Secretary of National Defense, THE
FINANCE OFFICER of the Department of National
Defense, THE AUDITOR of the Dept. of National
Defense, PABLO D. PANLILIO and ALLIED
TECHNOLOGISTS, INC.,defendants-appellees.
This is an appeal by plaintiffs Enrique J. L. Ruiz and Jose
V. Herrera from an Order of the Court of First Instance
of Manila, in Civil Case No. 26601, dated February 25,
1959, dismissing plaintiffs' complaint.
On September 11, 1950, a contract was executed
between the defendant Allied Technologists, Inc.
(corporation, for short), and the Republic of the
Philippines, for the construction of the Veterans
Memorial Hospital. Ruiz and Herrera were stockholders
and officers of the corporation. The construction of the
hospital was terminated in 1955. On August 20, 1954,
and June 20, 1955, Civil Cases Nos. 23778 and 26601,
respectively, were filed by same plaintiffs herein, making
as parties-defendants in both cases, the same
defendants herein, the Secretary of National Defense,
Col. Nicolas Jimenez (Engineer), the Finance Officer, and
the Auditor of the Dept. of National Defense, Pablo D.
Panlilio and Allied Technologists, Inc. Civil Case No.
23778 was dismissed by the CFI on October 12, 1954;
and the dismissal was affirmed by this Court on July 7,
1955, in G.R. No. L-8638. Civil Case No. 26601 was also
dismissed on September 13, 1955. On appeal, this Court
reversed the order of dismissal, under the impression
that the real controversy was confined merely between
defendant Panlilio and plaintiffs Ruiz and Herrera over
the 15% of the contract price, which was retained by
the Department of National Defense. The retention of
the 15% of the contract price in the sum of P34,740.00
was made to answer for any claim or lien that might
arise, in the course of the construction. The last case,
however, was remanded to the court of origin, for
further proceedings. Panlilio and the corporation filed
their amended answers, stating that the amount
retained by the Department of National Defense was
already paid to defendant corporation, as sought for by
the plaintiffs in their complaint. In view of this
development, the trial court invited the parties to a
conference, in which the plaintiffs indicated their
conformity, to the dismissal of the complaint with
respect to the retention of the 15% of the contract
price; but insisted upon the hearing of the second
question, which sought the declaration and recognition
of plaintiffs Ruiz and Herrera, as two of the three
architects of the hospital. The trial court, nevertheless,
dismissed the complaint, for being already academic and
moot. Hence, this appeal by plaintiffs-appellants, who
alleged in their lone assignment of error that "the lower
court grievously erred in ordering the dismissal of the
case, with costs against the plaintiffs".
Plaintiffs-appellants contend that the only ground relied
upon by the lower court to dismiss the case without any
trial is the allegation contained in pars. 4 and (e) of the
answers of the appellees Panlilio and Allied
Technologists, Inc., respectively; that the amount
retained by the Department of National Defense had
already been paid; that except for this bare allegation of
the appellees, no evidence was adduced to prove the
truth of the same; that even assuming, for the sake of
argument, that the same is true, nevertheless the first
part of the first cause of action still remains, for which
they had insisted upon a hearing in order to establish
their right to be recognized as two of the three
architects of the hospital; that because the pleadings do
not show any ground which might legally justify the
action taken by the lower court, the latter should not
have ordered the dismissal of the entire case but should
have ordered only the striking out of the moot portion of
appellants' first cause of action, citing Pacal v. Ramos,
81 Phil. 30, 33; 27 C.J.S. 209-210; Bush v. Murray, 205
N.Y.S. 21, 26, 209 App. Div. 563; Bearden v. Longino.
190 S.E. 12, 183 Ga. 819. Appellants further argue in
their brief that they base their cause of action on article
21, New Civil Code.
The appeal has no merit. The order appealed from,
states —
Considering the manifestation of counsel for
plaintiffs that the latter would insist on the
hearing of the above-entitled case for the
purpose of establishing their right to be
recognized as the architects of the Veterans
Hospital together with defendant Pablo D.
Panlilio, and it appearing that plaintiffs'
Amended Complaint with Injunction prays,
among others, "That this Honorable Court order
defendants Secretary of National Defense, Col.
Nicolas Jimenez, and the Finance Officer and
Auditor of the Department of National Defense
to pay the Allied Technologists, Inc., the balance
unpaid by virtue of the contract executed on
September 11, 1950 (Annex "C" hereof) for
services rendered under Title I and to be
rendered under Title II of said contract; that
paragraph 4 of defendant Pablo Panlilio's
Amended Answer to said complaint alleges "That
whatever amounts were retained by the Dept. of
National Defense on the contract price, which
retention was authorized by the contract, was
paid by the Dept. of National Defense to the
Allied Technologists Inc. as sought by the
plaintiffs; that paragraph (e) of the ANSWER TO
THE AMENDED COMPLAINT of defendant Allied
Technologists, Inc., also alleges "That whatever
amounts were retained by the Department of
National Defense, per the stipulations contained
in the contract, have already been paid by the
Allied Technologists, Inc. and, therefore, the
present action seeking to compel the
aforementioned Department of National Defense
to pay to defendant Allied Technologists, Inc.
the amounts retained by the Department of
National Defense is academic, groundless,
unfounded and malicious"; that the said
allegations of the separate answers of
defendants Pablo Panlilio and Allied
Technologists, Inc., are not and can not be
denied by plaintiffs, and that it is this Court's
understanding that defendant has no objection
to the dismissal of this case — it is ordered that
this case be, as it is hereby DISMISSED, with
costs against plaintiffs.
A cursory reading of pars. 18 and 19 of the amended
complaint with injunction and prayers (1) and (2)
thereof, reveals that appellants' first cause of action is
composed of two parts, as follows:
(a) A judicial declaration or recognition that appellants
Ruiz and Herrera, together with appellee Panlilio, were
the architects of the Veterans Hospital; and
(b) An injunction restraining the appellee government
officials paying their co-appellee Panlilio the sum
retained by the former, as per stipulation contained in
the contract for the construction of the hospital because
"they will not only be deprived of the monetary value of
the services legally due them, but that their professional
prestige and standing will be seriously
impaired".lawphil.net
As appellants admitted, they no longer consider the
Secretary and other officials of the Department of
National Defense, as parties-defendants in the case, said
officials can no longer be compelled to recognize the
appellants, Ruiz and Herrera, as co-architects with
appellee Panlilio of the Veterans Hospital. And, as the
amount retained by the Department on the contract
price, which retention was authorized by the contract,
was, as sought by the appellants, already paid to the
Allied Technologists, Inc., there is nothing more for the
trial court to decide, even without first ruling on the
special defenses of appellees Panlilio and the
corporation.
Moreover, by discarding the Secretary and other officials
of the Department of National Defense, as parties-
defendants, appellants could not expect the trial court to
order them to recognize and declare appellants as co-
architects in the construction of the hospital. And this
must be so, because the construction agreement
expressly provides that the architect being contracted by
the Government was appellee Pablo Panlilio. The said
agreement states that the same was entered into by the
government, party of the first part and "Allied
Technologists, Inc. . . . and Mr. Pablo D. Panlilio,
architect, hereinafter called the party of the second part"
and "The Allied Technologists, Inc. for rendering
engineering services and Mr. Pablo D. Panlilio, architect,
for rendering architectural services". And the contract
was signed for the Government by "Ramon Magsaysay,
Secretary of National Defense (party of the first part,"
and "Allied Technologists, Inc., by Enrique J. L. Ruiz,
President, Contractor, Pablo D. Panlilio, Architect".
Appellants maintain that their claim for recognition is
divisible and separable from their allegations regarding
the non-payment by the government of a portion of the
architectural fees; thereby concluding that what the
lower court should have done, should have been merely
to order the striking out of the moot portion of
appellants' cause of action, and should have proceeded
with hearing their claim for recognition. But the
allegations in pars. 18 and 19 of the amended
complaint, show otherwise. There is an indivisible and
single cause of action which is primarily to prevent
payment exclusively to defendant Panlilio of the amount
of P34,740.00, which said appellants contend should be
paid to appellee Allied Technologists, Inc.; the matter
recognizing them together with Pablo Panlilio as
architects of the hospital, being merely incidental
thereto. The case of Pacal v. Ramos, 81 Phil. 30, cited
by appellants is not applicable. In this case, the grounds
for quo warranto are separable from the grounds for
election irregularities which are distinct and separate
causes of action, entitling the petitioner to separate and
unrelated reliefs. These two grounds were alleged under
separate paragraphs and they were two independent
actions improperly joined in one proceeding. In the case
at bar, in one paragraph (par. 19 of the amended
complaint), as first cause of action, the claim for
recognition is inseparably linked with their allegations
regarding alleged threatened payment of P34,740.00 to
Panlilio alone, because "they will not only be deprived of
the monetary value of the services legally due them, but
that their professional prestige and standing will be
seriously impaired". When the very defendant Allied
Technologists, Inc. itself asserted in its answer the
amended complaint, that the amount was paid to it, an
assertion which was not at all denied, plaintiffs-
appellants' cause of action under said par. 19 dissipated
entirely.
There is a veiled insinuation that appellants, thesis
would fall under the provisions of the Rules on
declaratory relief, because appellants wanted merely a
declaration of their rights in a contract in which they
were interested. The trial court, however, was correct in
refusing to make such declaration, because it was not
necessary and proper under the circumstances (sec. 6,
Rule 66). Appellants were not parties to the construction
agreement. The sole object the appeal is only to secure
for them a recognition, that they were allegedly the co-
architects of Panlilio, in the construction of the hospital,
so as to enhance their professional prestige and not to
impair their standing. If this is the goal of appellants, a
judicial declaration to the effect would seem
unnecessary. Let us ponder over the thought that a
brilliant professional enjoys the respect and esteem of
his fellowmen, even without any court declaration of
such fact, and that an incompetent one may summon all
the tribunals in the world, to proclaim his genius in vain.
But appellants invoke Article 21 of the Civil Code, which
states —
Any person who willfully 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 damages.
contending that the word "injury" in the said article,
refers not only to any indeterminate right or property,
but also to honor or credit (I Tolentino Civil Code, p.
67). It may be added, however, that this article also
envisions a situation where a person has a legal right,
and such right is violated by another in a manner
contrary to morals, good customs or public policy; it
presupposes losses or injuries, material or otherwise,
which one may suffer as a result of said violation. The
pleadings do not show that damages were ever asked or
alleged, in connection with this case, predicated upon
the article aforecited. And under the facts and
circumstances obtaining in this case, one cannot
plausibly sustain the contention that the failure or
refusal to extend the recognition was an act contrary to
morals, good customs or public policy.
IN VIEW HEREOF, the order appealed from is affirmed,
with costs against plaintiffs-appellants.
(a) BREACH OF PROMISE TO MARRY:
SEDUCTION AND SEXUAL ASSAULT
G.R. No. L-20089 December 26, 1964
BEATRIZ P. WASSMER, plaintiff-appellee, vs.
FRANCISCO X. VELEZ, defendant-appellant.
The facts that culminated in this case started with
dreams and hopes, followed by appropriate planning and
serious endeavors, but terminated in frustration and,
what is worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following
their mutual promise of love, decided to get married and
set September 4, 1954 as the big day. On September 2,
1954 Velez left this note for his bride-to-be:
Dear Bet —
Will have to postpone wedding — My mother
opposes it. Am leaving on the Convair today.
Please do not ask too many people about the
reason why — That would only create a scandal.
Paquing
But the next day, September 3, he sent her the following
telegram:
NOTHING CHANGED REST ASSURED RETURNING
VERY SOON APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from
again.
Sued by Beatriz for damages, Velez filed no answer and
was declared in default. Plaintiff adduced evidence
before the clerk of court as commissioner, and on April
29, 1955, judgment was rendered ordering defendant to
pay plaintiff P2,000.00 as actual damages; P25,000.00
as moral and exemplary damages; P2,500.00 as
attorney's fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief
from orders, judgment and proceedings and motion for
new trial and reconsideration." Plaintiff moved to strike it
cut. But the court, on August 2, 1955, ordered the
parties and their attorneys to appear before it on August
23, 1955 "to explore at this stage of the proceedings the
possibility of arriving at an amicable settlement." It
added that should any of them fail to appear "the
petition for relief and the opposition thereto will be
deemed submitted for resolution."
On August 23, 1955 defendant failed to appear before
court. Instead, on the following day his counsel filed a
motion to defer for two weeks the resolution on
defendants petition for relief. The counsel stated that he
would confer with defendant in Cagayan de Oro City —
the latter's residence — on the possibility of an amicable
element. The court granted two weeks counted from
August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two
weeks given by the court had expired on September 8,
1955 but that defendant and his counsel had failed to
appear.
Another chance for amicable settlement was given by
the court in its order of July 6, 1956 calling the parties
and their attorneys to appear on July 13, 1956. This
time. however, defendant's counsel informed the court
that chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying
defendant's aforesaid petition. Defendant has appealed
to this Court. In his petition of June 21, 1955 in the
court a quo defendant alleged excusable negligence as
ground to set aside the judgment by default.
Specifically, it was stated that defendant filed no answer
in the belief that an amicable settlement was being
negotiated.
A petition for relief from judgment on grounds of fraud,
accident, mistake or excusable negligence, must be duly
supported by an affidavit of merits stating facts
constituting a valid defense. (Sec. 3, Rule 38, Rules of
Court.) Defendant's affidavit of merits attached to his
petition of June 21, 1955 stated: "That he has a good
and valid defense against plaintiff's cause of action, his
failure to marry the plaintiff as scheduled having been
due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere
conclusions or opinions instead of facts is not valid.
(Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani
vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
Defendant, however, would contend that the affidavit of
merits was in fact unnecessary, or a mere surplusage,
because the judgment sought to be set aside was null
and void, it having been based on evidence adduced
before the clerk of court. In Province of Pangasinan vs.
Palisoc, L-16519, October 30, 1962, this Court pointed
out that the procedure of designating the clerk of court
as commissioner to receive evidence is sanctioned by
Rule 34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not
have to be obtained for he was declared in default and
thus had no standing in court (Velez vs. Ramas, 40 Phil.
787; Alano vs. Court of First Instance, L-14557, October
30, 1959).
In support of his "motion for new trial and
reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no
provision of the Civil Code authorizing" an action for
breach of promise to marry. Indeed, our ruling
in Hermosisima vs. Court of Appeals (L-14628, Sept. 30,
1960), as reiterated in Estopa vs. Biansay (L-14733,
Sept. 30, 1960), is that "mere breach of a promise to
marry" is not an actionable wrong. We pointed out that
Congress deliberately eliminated from the draft of the
new Civil Code the provisions that would have it so.
It must not be overlooked, however, that the extent to
which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code
provides that "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."
The record reveals that on August 23, 1954 plaintiff and
defendant applied for a license to contract marriage,
which was subsequently issued (Exhs. A, A-1). Their
wedding was set for September 4, 1954. Invitations
were printed and distributed to relatives, friends and
acquaintances (Tsn., 5; Exh. C). The bride-to-be's
trousseau, party drsrses and other apparel for the
important occasion were purchased (Tsn., 7-8). Dresses
for the maid of honor and the flower girl were prepared.
A matrimonial bed, with accessories, was bought. Bridal
showers were given and gifts received (Tsn., 6; Exh. E).
And then, with but two days before the wedding,
defendant, who was then 28 years old,: simply left a
note for plaintiff stating: "Will have to postpone wedding
— My mother opposes it ... " He enplaned to his home
city in Mindanao, and the next day, the day before the
wedding, he wired plaintiff: "Nothing changed rest
assured returning soon." But he never returned and was
never heard from again.
Surely this is not a case of mere breach of promise to
marry. As stated, mere breach of promise to marry is
not an actionable wrong. But to formally set a wedding
and go through all the above-described preparation and
publicity, only to walk out of it when the matrimony is
about to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good customs for
which defendant must be held answerable in damages in
accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the
damages awarded were excessive. No question is raised
as to the award of actual damages. What defendant
would really assert hereunder is that the award of moral
and exemplary damages, in the amount of P25,000.00,
should be totally eliminated.
Per express provision of Article 2219 (10) of the New
Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not
be adjudged against him because under Article 2232 of
the New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." The argument is
devoid of merit as under the above-narrated
circumstances of this case defendant clearly acted in a
"wanton ... , reckless [and] oppressive manner." This
Court's opinion, however, is that considering the
particular circumstances of this case, P15,000.00 as
moral and exemplary damages is deemed to be a
reasonable award.
PREMISES CONSIDERED, with the above-indicated
modification, the lower court's judgment is hereby
affirmed, with costs.
G.R. No. L-18630 December 17, 1966
APOLONIO TANJANCO, petitioner, vs. HON. COURT
OF APPEALS and ARACELI SANTOS, respondents.
Appeal from a decision of the Court of Appeals (in its
Case No. 27210-R) revoking an order of the Court of
First Instance of Rizal (in Civil Case No. Q-4797)
dismissing appellant's action for support and damages.
The essential allegations of the complaint are to the
effect that, from December, 1957, the defendant
(appellee herein), Apolonio Tanjanco, courted the
plaintiff, Araceli Santos, both being of adult age; that
"defendant expressed and professed his undying love
and affection for plaintiff who also in due time
reciprocated the tender feelings"; that in consideration
of defendant's promise of marriage plaintiff consented
and acceded to defendant's pleas for carnal knowledge;
that regularly until December 1959, through his
protestations of love and promises of marriage,
defendant succeeded in having carnal access to plaintiff,
as a result of which the latter conceived a child; that due
to her pregnant condition, to avoid embarrassment and
social humiliation, plaintiff had to resign her job as
secretary in IBM Philippines, Inc., where she was
receiving P230.00 a month; that thereby plaintiff
became unable to support herself and her baby; that
due to defendant's refusal to marry plaintiff, as
promised, the latter suffered mental anguish,
besmirched reputation, wounded feelings, moral shock,
and social humiliation. The prayer was for a decree
compelling the defendant to recognize the unborn child
that plaintiff was bearing; to pay her not less than
P430.00 a month for her support and that of her baby,
plus P100,000.00 in moral and exemplary damages, plus
P10,000.00 attorney's fees.
Upon defendant's motion to dismiss, the court of first
instance dismissed the complaint for failure to state a
cause of action.
Plaintiff Santos duly appealed to the Court of Appeals,
and the latter ultimately decided the case, holding with
the lower court that no cause of action was shown to
compel recognition of a child as yet unborn, nor for its
support, but decreed that the complaint did state a
cause of action for damages, premised on Article 21 of
the Civil Code of the Philippines, prescribing as follows:
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.
The Court of Appeals, therefore, entered judgment
setting aside the dismissal and directing the court of
origin to proceed with the case.
Defendant, in turn, appealed to this Court, pleading that
actions for breach of a promise to marry are not
permissible in this jurisdiction, and invoking the rulings
of this Court in Estopa vs. Piansay, L-14733, September
30, 1960; Hermosisima vs. Court of Appeals, L-14628,
January 29, 1962; and De Jesus vs. SyQuia, 58 Phil.
886.
We find this appeal meritorious.
In holding that the complaint stated a cause of action
for damages, under Article 21 above mentioned, the
Court of Appeals relied upon and quoted from the
memorandum submitted by the Code Commission to the
Legislature in 1949 to support the original draft of the
Civil Code. Referring to Article 23 of the draft (now
Article 21 of the Code), the Commission stated:
But the Code Commission has gone farther than
the sphere of wrongs defined or determined by
positive law. Fully sensible that there are
countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even
though they have actually suffered material and
moral injury, the Commission has deemed it
 necessary, in the interest of justice, to
incorporate in the proposed Civil Code the
following rule:
"ART. 23. 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."
An example will illustrate the purview of the
foregoing norm: "A" seduces the nineteen-year
old daughter of "X". A promise of marriage
either has not been made, or can not be proved.
The girl becomes pregnant. Under the present
laws, there is no crime, as the girl is above
eighteen years of age. Neither can any civil
action for breach of promise of marriage be
filed. Therefore, though the grievous moral
wrong has been committed, and though the girl
and her family have suffered incalculable moral
damage, she and her parents cannot bring any
action for damages. But under the proposed
article, she and her parents would have such a
right of action.
The Court of Appeals seems to have overlooked that the
example set forth in the Code Commission's
memorandum refers to a tort upon a minor who has
been seduced. The essential feature is seduction, that in
law is more than mere sexual intercourse, or a breach of
a promise of marriage; it connotes essentially the idea of
deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the
woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121;
U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case ( supra) that
— became very close and intimate to each other
To constitute seduction there must in all cases
be some sufficient promise or inducement and
the woman must yield because of the promise
or other inducement. If she consents merely
from carnal lust and the intercourse is from
mutual desire, there is no seduction (43 Cent.
Dig. tit. Seduction, par. 56). She must be
induced to depart from the path of virtue by the
use of some species of arts, persuasions and
wiles, which are calculated to have and do have
that effect, and which result in her ultimately
submitting her person to the sexual embraces of
her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman,
the enticement, persuasion or deception is the
essence of the injury; and a mere proof of
intercourse is insufficient to warrant a recover.
Accordingly it is not seduction where the
willingness arises out of sexual desire or
curiosity of the female, and the defendant
merely affords her the needed opportunity for
the commission of the act. It has been
emphasized that to allow a recovery in all such
cases would tend to the demoralization of the
female sex, and would be a reward for
unchastity by which a class of adventuresses
would be swift to profit." (47 Am. Jur. 662)
Bearing these principles in mind, let us examine the
complaint. The material allegations there are as follows:
I. That the plaintiff is of legal age, single, and
residing at 56 South E. Diliman, Quezon City,
while defendant is also of legal age, single and
residing at 525 Padre Faura, Manila, where he
may be served with summons;
II. That the plaintiff and the defendant became
acquainted with each other sometime in
December, 1957 and soon thereafter, the
defendant started visiting and courting the
plaintiff;
III. That the defendant's visits were regular and
frequent and in due time the defendant
expressed and professed his undying love and
affection for the plaintiff who also in due time
reciprocated the tender feelings;
IV. That in the course of their engagement, the
plaintiff and the defendant as are wont of young
people in love had frequent outings and dates,
and sometime in July, 1958, in consideration of
the defendant's promises of marriage, the
plaintiff consented and acceded to the former's
earnest and repeated pleas to have carnal
knowledge with him;
V. That subsequent thereto and regularly until
about July, 1959 except for a short period in
December, 1958 when the defendant was out of
the country, the defendant through his
protestations of love and promises of marriage
succeeded in having carnal knowledge with the
plaintiff;
VI. That as a result of their intimate relationship,
the plaintiff started conceiving which was
confirmed by a doctor sometime in July, 1959;
 VII. That upon being certain of her pregnant
condition, the plaintiff informed the defendant
and pleaded with him to make good his
promises of marriage, but instead of honoring
his promises and righting his wrong, the
defendant stopped and refrained from seeing
the plaintiff since about July, 1959 has not
visited the plaintiff and to all intents and
purposes has broken their engagement and his
promises.
Over and above the partisan allegations, the facts stand
out that for one whole year, from 1958 to 1959, the
plaintiff-appellee, a woman of adult age, maintained
intimate sexual relations with appellant, with repeated
acts of intercourse. Such conduct is incompatible with
the idea of seduction. Plainly there is here voluntariness
and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of
the deceit, artful persuasions and wiles of the
defendant, she would not have again yielded to his
embraces, much less for one year, without exacting
early fulfillment of the alleged promises of marriage, and
would have cut chart all sexual relations upon finding
that defendant did not intend to fulfill his promises.
Hence, we conclude that no case is made under Article
21 of the Civil Code, and no other cause of action being
alleged, no error was committed by the Court of First
Instance in dismissing the complaint.
Of course, the dismissal must be understood as without
prejudice to whatever actions may correspond to the
child of the plaintiff against the defendant-appellant, if
any. On that point, this Court makes no pronouncement,
since the child's own rights are not here involved.
FOR THE FOREGOING REASONS, the decision of the
Court of Appeals is reversed, and that of the Court of
First Instance is affirmed. No costs.
G.R. No. 101749 July 10, 1992
CONRADO BUNAG, JR., petitioner, vs. HON. COURT
OF APPEALS, First Division, and ZENAIDA B.
CIRILO, respondents
Petitioner appeals for the reversal of the decision 1 of
respondent Court of Appeals promulgated on May 17,
1991 in CA-G.R. CV No. 07054, entitled "Zenaida B.
Cirilo vs. Conrado Bunag, Sr. and Conrado Bunag, Jr.,"
which affirmed in toto the decision of the Regional Trial
Court, Branch XI at Bacoor, Cavite, and, implicitly,
respondent court's resolution of September 3,
1991 2 denying petitioner's motion for reconsideration.
Respondent court having assiduously discussed the
salient antecedents of this case, vis-a-vis the factual
findings of the court below, the evidence of record and
the contentions of the parties, it is appropriate that its
findings, which we approve and adopt, be extensively
reproduced hereunder:
Based on the evidence on record, the following
facts are considered indisputable: On the
afternoon of September 8, 1973, defendant-
appellant Bunag, Jr. brought plaintiff-appellant
to a motel or hotel where they had sexual
intercourse. Later that evening, said defendant-
appellant brought plaintiff-appellant to the
house of his grandmother Juana de Leon in
Pamplona, Las Piñas, Metro Manila, where they
lived together as husband and wife for 21 days,
or until September 29, 1973. On September 10,
1973, defendant-appellant Bunag, Jr. and
plaintiff-appellant filed their respective
applications for a marriage license with the
Office of the Local Civil Registrar of Bacoor,
Cavite. On October 1, 1973, after leaving
plaintiff-appellant, defendant-appellant Bunag,
Jr. filed an affidavit withdrawing his application
for a marriage license.
Plaintiff-appellant contends that on the
afternoon of September 8, 1973, defendant-
appellant Bunag, Jr., together with an
unidentified male companion, abducted her in
the vicinity of the San Juan de Dios Hospital in
Pasay City and brought her to a motel where
she was raped. The court a quo, which adopted
her evidence, summarized the same which we
paraphrased as follows:
Plaintiff was 26 years old on November
5, 1974 when she testified, single and
had finished a college course in
Commerce (t.s.n., p. 4, Nov. 5, 1974). It
appears that on September 8, 1973, at
about 4:00 o'clock in the afternoon,
while she was walking along Figueras
Street, Pasay City on her way to the San
Juan de Dios Canteen to take her snack,
defendant, Conrado Bunag, Jr., came
riding in a car driven by a male
companion. Plaintiff and defendant
Bunag, Jr. were sweethearts, but two
weeks before September 8, 1973, they
had a quarrel, and Bunag, Jr. wanted to
talk matters over with plaintiff, so that
he invited her to take their merienda at
the Aristocrat Restaurant in Manila
instead of at the San Juan de Dios
Canteen, to which plaintiff obliged, as
she believed in his sincerity (t.s.n., pp.
8-10, Nov. 5, 1974).
Plaintiff rode in the car and took the
front seat beside the driver while Bunag,
Jr. seated himself by her right side. The
car travelled north on its way to the
Aristocrat Restaurant but upon reaching
San Juan Street in Pasay City, it turned
abruptly to the right, to which plaintiff
protested, but which the duo ignored
and instead threatened her not to make
any noise as they were ready to die and
would bump the car against the post if
she persisted. Frightened and silenced,
the car travelled its course thru F.B.
Harrison Boulevard until they reached a
motel. Plaintiff was then pulled and
dragged from the car against her will,
and amidst her cries and pleas. In spite
of her struggle she was no match to the
joint strength of the two male
combatants because of her natural
weakness being a woman and her small
stature. Eventually, she was brought
inside the hotel where the defendant
Bunag, Jr. deflowered her against her
will and consent. She could not fight
back and repel the attack because after
Bunag, Jr. had forced her to lie down
and embraced her, his companion held
her two feet, removed her panty, after
which he left. Bunag, Jr. threatened her
that he would ask his companion to
come back and hold her feet if she did
not surrender her womanhood to him,
thus he succeeded in feasting on her
virginity. Plaintiff described the pains
she felt and how blood came out of her
private parts after her vagina was
penetrated by the penis of the
defendant Bunag, Jr. (t.s.n. pp. 17-24,
Nov. 5, 1974).
After that outrage on her virginity,
plaintiff asked Bunag, Jr. once more to
allow her to go home but the latter
would not consent and stated that he
would only let her go after they were
married as he intended to marry her, so
much so that she promised not to make
any scandal and to marry him.
Thereafter, they took a taxi together
after the car that they used had already
gone, and proceeded to the house of
Juana de Leon, Bunag, Jr.'s
grandmother in Pamplona, Las Piñas,
Metro Manila where they arrived at 9:30
o'clock in the evening (t.s.n., p. 26, Nov.
5, 1974). At about ten (10) o'clock that
same evening, defendant Conrado
Bunag, Sr., father of Bunag, Jr. arrived
and assured plaintiff that the following
day which was a Monday, she and
Bunag, Jr. would go to Bacoor, to apply
for a marriage license, which they did.
They filed their applications for marriage
license (Exhibits "A" and "C") and after
that plaintiff and defendant Bunag, Jr.
returned to the house of Juana de Leon
and lived there as husband and wife
from September 8, 1973 to September
29, 1973.
On September 29, 1973 defendant
Bunag, Jr. left and never returned,
humiliating plaintiff and compelled her
to go back to her parents on October 3,
1973. Plaintiff was ashamed when she
went home and could not sleep and eat
because of the deception done against
her by defendants-appellants (t.s.n., p.
35, Nov. 5, 1974).
The testimony of plaintiff was
corroborated in toto by her uncle,
Vivencio Bansagan who declared that on
September 8, 1973 when plaintiff failed
to arrive home at 9:00 o'clock in the
evening, his sister who is the mother of
plaintiff asked him to look for her but his
efforts proved futile, and he told his
sister that plaintiff might have married
(baka nag-asawa, t.s.n., pp. 5-6, March
18, 1976). However, in the afternoon of
the next day (Sunday), his sister told
him that Francisco Cabrera,
accompanied by barrio captain Jacinto
Manalili of Ligas, Bacoor, Cavite,
informed her that plaintiff and Bunag,
Jr. were in Cabrera's house, so that her
sister requested him to go and see the
plaintiff, which he did, and at the house
of Mrs. Juana de Leon in Pamplona, Las
Piñas, Metro Manila he met defendant
Conrado Bunag, Sr., who told him,
"Pare, the children are here already. Let
us settle the matter and have them
married."
He conferred with plaintiff who told him
that as she had already lost her honor,
she would bear her sufferings as Boy
Bunag, Jr. and his father promised they
would be married.
Defendants-appellants, on the other
hand, deny that defendant-appellant
Conrado Bunag, Jr. abducted and raped
plaintiff-appellant on September 8,
1973. On the contrary, plaintiff-
appellant and defendant-appellant
Bunag, Jr. eloped on that date because
of the opposition of the latter's father to
their relationship.
Defendant-appellants claim that
defendant-appellant Bunag, Jr. and
plaintiff-appellant had earlier made
plans to elope and get married, and this
fact was known to their friends, among
them, Architect Chito Rodriguez. The
couple made good their plans to elope
on the afternoon of September 8, 1973,
when defendant-appellant Bunag, Jr.,
accompanied by his friend Guillermo
Ramos, Jr., met plaintiff-appellant and
her officemate named Lydia in the
vicinity of the San Juan de Dios
Hospital. The foursome then proceeded
to (the) aforesaid hospital's canteen
where they had some snacks. Later,
Guillermo Ramos, Jr. took Lydia to
Quirino Avenue where she could get a
ride home, thereby leaving the
defendant-appellant Bunag, Jr. and
plaintiff-appellant alone. According to
defendant-appellant Bunag, Jr., after
Guillermo Ramos, Jr. and Lydia left, he
and plaintiff-appellant took a taxi to the
Golden Gate and Flamingo Hotels where
they tried to get a room, but these were
full. They finally got a room at the
Holiday Hotel, where defendant-
appellant registered using his real name
and residence certificate number. Three
hours later, the couple check out of the
hotel and proceeded to the house of
Juana de Leon at Pamplona, Las Piñas,
where they stayed until September 19,
1873. Defendant-appellant claims that
bitter disagreements with the plaintiff-
appellant over money and the threats
made to his life prompted him to break
off their plan to get married.
During this period, defendant-appellant
Bunag, Sr. denied having gone to the
house of Juan de Leon and telling
plaintiff-appellant that she would be
wed to defendant-appellant Bunag, Jr.
In fact, he phoned Atty. Conrado
Adreneda, member of the board of
directors of Mandala Corporation,
defendant-appellant Bunag, Jr.'s
employer, three times between the
evening of September 8, 1973 and
September 9, 1973 inquiring as to the
whereabouts of his son. He came to
know about his son's whereabouts when
he was told of the couple's elopement
late in the afternoon of September 9,
1973 by his mother Candida Gawaran.
He likewise denied having met relatives
and emissaries of plaintiff-appellant and
agreeing to her marriage to his son. 3
A complaint for damages for alleged breach of promise
to marry was filed by herein private respondent Zenaida
B. Cirilo against petitioner Conrado Bunag, Jr. and his
father, Conrado Bunag, Sr., as Civil Case No. N-2028 of
the Regional Trial Court, Branch XIX at Bacoor, Cavite.
On August 20, 1983, on a finding, inter alia, that
petitioner had forcibly abducted and raped private
respondent, the trial court rendered a
decision 4 ordering petitioner Bunag, Jr. to pay private
respondent P80,000.00 as moral damages, P20,000.00
as exemplary damages, P20,000.00 by way of temperate
damages, and P10,000.00 for and as attorney's fees, as
well as the costs of suit. Defendant Conrado Bunag, Sr.
was absolved from any and all liability.
Private respondent appealed that portion of the lower
court's decision disculpating Conrado Bunag, Sr. from
civil liability in this case. On the other hand, the Bunags,
as defendants-appellants, assigned in their appeal
several errors allegedly committed by trial court, which
were summarized by respondent court as follows: (1) in
finding that defendant-appellant Conrado Bunag, Jr.
forcibly abducted and raped plaintiff-appellant; (2) in
finding that defendants-appellants promised plaintiff-
appellant that she would be wed to defendant-appellant
Conrado Bunag, Jr.; and (3) in awarding plaintiff-
appellant damages for the breach of defendants-
appellants' promise of marriage. 5
As stated at the outset, on May 17, 1991 respondent
Court of Appeals rendered judgment dismissing both
appeals and affirming in toto the decision of the trial
court. His motion for reconsideration having been
denied, petitioner Bunag, Jr. is before us on a petition
for review, contending that (1) respondent court failed
to consider vital exhibits, testimonies and incidents for
petitioner's defense, resulting in the misapprehensions
of facts and violative of the law on preparation of
judgment; and (2) it erred in the application of the
proper law and jurisprudence by holding that there was
forcible abduction with rape, not just a simple elopement
and an agreement to marry, and in the award of
excessive damages. 6
Petitioner Bunag, Jr. first contends that both the trial
and appellate courts failed to take into consideration the
alleged fact that he and private respondent had agreed
to marry, and that there was no case of forcible
abduction with rape, but one of simple elopement and
agreement to marry. It is averred that the agreement to
marry has been sufficiently proven by the testimonies of
the witnesses for both parties and the exhibits presented
in court.
This submission, therefore, clearly hinges on the
credibility of the witnesses and evidence presented by
the parties and the weight accorded thereto in the
factual findings of the trial court and the Court of
Appeals. In effect, what petitioner would want this Court
to do is to evaluate and analyze anew the evidence,
both testimonial and documentary, presented before and
calibrated by the trial court, and as further meticulously
reviewed and discussed by respondent court.
The issue raised primarily and ineluctably involves
questions of fact. We are, therefore, once again
constrained to stress the well-entrenched statutory and
jurisprudential mandate that findings of fact of the Court
of Appeals are, as a rule, conclusive upon this Court.
Only questions of law, distinctly set forth, may be raised
in a petition for review on certiorari under Rule 45 of the
Rules of Court, subject to clearly settled exceptions in
case law.
Our jurisdiction in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of
law imputed to the latter, its findings of fact being
conclusive. This Court has emphatically declared that it
is not its function to analyze or weigh such evidence all
over again, its jurisdiction being limited to reviewing
errors of law that might have been committed by the
lower court. Barring, therefore, a showing that the
findings complained of are totally devoid of support in
the record, or that they are so glaringly erroneous as to
constitute serious abuse of discretion, such findings
must stand, for this Court is not expected or required to
examine or contrast the oral and documentary evidence
submitted by the parties. 7 Neither does the instant case
reveal any feature falling within, any of the exceptions
which under our decisional rules may warrant a review
of the factual findings of the Court of Appeals. On the
foregoing considerations and our review of the records,
we sustain the holding of respondent court in favor of
private respondent.
Petitioner likewise asserts that since action involves a
breach of promise to marry, the trial court erred in
awarding damages.
It is true that in this jurisdiction, we adhere to the time-
honored rule that an action for breach of promise to
marry has no standing in the civil law, apart from the
right to recover money or property advanced by the
plaintiff upon the faith of such promise. Generally,
therefore, a breach of promise to marry per se is not
actionable, except where the plaintiff has actually
incurred expenses for the wedding and the necessary
incidents thereof.
However, the award of moral damages is allowed in
cases specified in or analogous to those provided in
Article 2219 of the Civil Code. Correlatively, under Article
21 of said Code, in relation to paragraph 10 of said
Article 2219, 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 moral damages. 9 Article 21 was adopted to
remedy the countless gaps in the statutes which leave
so many victims of moral wrongs helpless even though
they have actually suffered material and moral injury,
and is intended to vouchsafe adequate legal remedy for
that untold number of moral wrongs which is impossible
for human foresight to specifically provide for in the
statutes. 10
Under the circumstances obtaining in the case at bar,
the acts of petitioner in forcibly abducting private
respondent and having carnal knowledge with her
against her will, and thereafter promising to marry her in
order to escape criminal liability, only to thereafter
renege on such promise after cohabiting with her for
twenty-one days, irremissibly constitute acts contrary to
morals and good customs. These are grossly insensate
and reprehensible transgressions which indisputably
warrant and abundantly justify the award of moral and
exemplary damages, pursuant to Article 21 in relation to
paragraphs 3 and 10, Article 2219, and Article 2229 and
2234 of Civil Code.
Petitioner would, however, belabor the fact that said
damages were awarded by the trial court on the basis of
a finding that he is guilty of forcible abduction with rape,
despite the prior dismissal of the complaint therefor filed
by private respondent with the Pasay City Fiscal's Office.
Generally, the basis of civil liability from crime is the
fundamental postulate of our law that every person
criminally liable for a felony is also civilly liable. In other
words, criminal liability will give rise to civil liability ex
delicto only if the same felonious act or omission results
in damage or injury to another and is the direct and
proximate cause thereof. Hence, extinction of the penal
action does not carry with it the extinction of civil liability
unless the extinction proceeds from a declaration in a
final judgment that the fact from which the civil might
arise did not exist.
In the instant case, the dismissal of the complaint for
forcible abduction with rape was by mere resolution of
the fiscal at the preliminary investigation stage. There is
no declaration in a final judgment that the fact from
which the civil case might arise did not exist.
Consequently, the dismissal did not in any way affect
the right of herein private respondent to institute a civil
action arising from the offense because such preliminary
dismissal of the penal action did not carry with it the
extinction of the civil action.
The reason most often given for this holding is that the
two proceedings involved are not between the same
parties. Furthermore, it has long been emphasized, with
continuing validity up to now, that there are different
rules as to the competency of witnesses and the
quantum of evidence in criminal and civil proceedings.
In a criminal action, the State must prove its case by
evidence which shows the guilt of the accused beyond
reasonable doubt, while in a civil action it is sufficient for
the plaintiff to sustain his cause by preponderance of
evidence only. 13 Thus, in Rillon, et al. vs. Rillon, 14 we
stressed that it is not now necessary that a criminal
prosecution for rape be first instituted and prosecuted to
final judgment before a civil action based on said
offense in favor of the offended woman can likewise be
instituted and prosecuted to final judgment.
WHEREFORE, the petition is hereby DENIED for lack of
merit, and the assailed judgment and resolution are
hereby AFFIRMED. SO ORDERED.
G.R. No. 57227 May 14, 1992
AMELITA CONSTANTINO and MICHAEL
CONSTANTINO, the latter represented herein by the
former, his mother and natural
guardian, petitioners, vs. IVAN MENDEZ and the
HONORABLE COURT OF APPEALS, respondents.
This is a petition for review on certiorari questioning the
decision1 dated April 30, 1981 of the Court of Appeals in
CA-G.R. No. 61552-R which dismissed petitioner's
complaint and set aside the resolution2 dated October
21, 1976 of the then Court of First Instance of Davao,
16th Judicial District, amending the dispositive portion of
its decision dated June 21, 1976 and ordering private
respondent Ivan Mendez: (1) to acknowledge the minor
Michael Constantino as his illegitimate child; (2) to give
a monthly support of P300.00 to the minor child; (3) to
pay complainant Amelita Constantino the sum of
P8,200.00 as actual and moral damages; and (4) to pay
attorney's fees in the sum of P5,000 plus costs.
It appears on record that on June 5, 1975, petitioner
Amelita Constantino filed an action for acknowledgment,
support and damages against private respondent Ivan
Mendez. The case was filed with the then CFI of Davao,
10th Judicial District and docketed as Civil Case No.
8881. In her complaint, Amelita Constantino alleges,
among others, that sometime in the month of August,
1974, she met Ivan Mendez at Tony's Restaurant
located at Sta. Cruz, Manila, where she worked as a
waitress; that the day following their first meeting, Ivan
invited Amelita to dine with him at Hotel Enrico where
he was billeted; that while dining, Ivan professed his
love and courted Amelita; that Amelita asked for time to
think about Ivan's proposal; that at about 11:00 o'clock
in the evening, Amelita asked Ivan to bring her home to
which the latter agreed, that on the pretext of getting
something, Ivan brought Amelita inside his hotel room
and through a promise of marriage succeeded in having
sexual intercourse with the latter; that after the sexual
contact, Ivan confessed to Amelita that he is a married
man; that they repeated their sexual contact in the
months of September and November, 1974, whenever
Ivan is in Manila, as a result of which Amelita got
pregnant; that her pleas for help and support fell on
deaf ears; that Amelita had no sexual relations with any
other man except Ivan who is the father of the child yet
to be born at the time of the filing of the complaint; that
because of her pregnancy, Amelita was forced to leave
her work as a waitress; that Ivan is a prosperous
businessman of Davao City with a monthly income of
P5,000 to P8,000. As relief, Amelita prayed for the
recognition of the unborn child, the payment of actual,
moral and exemplary damages, attorney's fees plus
costs.
In his answer dated August 5, 1975, Ivan admitted that
he met Amelita at Tony's Cocktail Lounge but denied
having sexual knowledge or illicit relations with her. He
prayed for the dismissal of the complaint for lack of
cause of action. By way of counterclaim, he further
prayed for the payment of exemplary damages and
litigation expense including attorney's fees for the filing
of the malicious complaint.
On September 1, 1975, Amelita Constantino filed a
motion for leave to amend the complaint impleading as
co-plaintiff her son Michael Constantino who was born
on August 3, 1975. In its order dated September 4,
1975, the trial court admitted the amended complaint.
On September 11, 1975, Ivan Mendez filed his answer to
the amended complaint reiterating his previous answer
denying that Michael Constantino is his illegitimate son.
After hearing, the trial court rendered a decision dated
June 21, 1976, the dispositive portion of which
reads, viz:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of plaintiff Amelita Constantino and against defendant Ivan
Mendez, ordering the latter to pay Amelita Constantino the sum of
P8,000.00 by way of actual and moral damages; and, the sum of
P3,000.00, as and by way of attorney's fees. The defendant shall pay
the costs of this suit.SO ORDERED.
From the above decision, both parties filed their
separate motion for reconsideration. Ivan Mendez
anchored his motion on the ground that the award of
damages was not supported by evidence. Amelita
Constantino, on the other hand, sought the recognition
and support of her son Michael Constantino as the
illegitimate son of Ivan Mendez.
In its resolution dated October 21, 1976, the trial court
granted Amelita Constantino's motion for
reconsideration, and amended the dispositive portion of
its decision dated June 21, 1976 to read as follows, viz:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of plaintiff Amelita Constantino and plaintiff-minor Michael
Constantino, and against defendant Ivan Mendez ordering the latter to
pay Amelita Constantino the sum of P8,000.00 by way of actual and
moral damages and the sum of P200.00 as and by way of payment of
the hospital and medical bills incurred during the delivery of plaintiff-
minor Michael Constantino; to recognize as his own illegitimate child
the plaintiff-minor Michael Constantino who shall be entitled to all the
rights, privileges and benefits appertaining to a child of such status; to
give a permanent monthly support in favor of plaintiff Michael
Constantino the amount of P300.00; and the sum of P5,000.00 as and
by way of attorney's fees. The defendant shall pay the costs of this
suit.
Let this Order form part of the decision dated June 21, 1976. SO
ORDERED.
On appeal to the Court of Appeals, the above amended
decision was set aside and the complaint was dismissed.
Hence, this petition for review.
Basically, the issue to be resolved in the case at bar is
whether or not the Court of Appeals committed a
reversible error in setting aside the decision of the trial
court and in dismissing the complaint.
Petitioners contend that the Court of Appeals erred in
reversing the factual findings of the trial and in not
affirming the decision of the trial court. They also
pointed out that the appellate court committed a
misapprehension of facts when it concluded that Ivan
did not have sexual access with Amelita during the first
or second week of November, 1976 (should be 1974),
the time of the conception of the child.
It must be stressed at the outset that factual findings of
the trial court have only a persuasive and not a
conclusive effect on the Court of Appeals. In the
exercise of its appellate jurisdiction, it is the duty of the
Court of Appeals to review the factual findings of the
trial court and rectify the errors it committed as may
have been properly assigned and as could be established
by a re-examination of the evidence on record. It is the
factual findings of the Court of Appeals, not those of the
trial court, that as a rule are considered final and
conclusive even on this Court (Hermo v. Hon. Court of
Appeals, et al., 155 SCRA 24 [1987]). This being a
petition for certiorari under Rule 45 of the Rules of
Court, this Court will review only errors of law
committed by the Court of Appeals. It is not the function
of this Court to re-examine all over again the oral and
documentary evidence submitted by the parties unless
the findings of facts of the Court of Appeals is not
supported by the evidence on record or the judgment is
based on misapprehension of facts (Remalante v. Tibe,
et al., 158 SCRA 138 [1988]; Hernandez v. Court of
Appeals, et al., 149 SCRA 97 [1987]).
It is the conclusion of the Court of Appeals, based on
the evidence on record, that Amelita Constantino has
not proved by clear and convincing evidence her claim
that Ivan Mendez is the father of her son Michael
Constantino. Such conclusion based on the evaluation of
the evidence on record is controlling on this Court as the
same is supported by the evidence on record. Even the
trial court initially entertained such posture. It ordered
the recognition of Michael as the illegitimate son of Ivan
only when acting on the motions for reconsideration, it
reconsidered, on October 21, 1976, its earlier decision
dated June 21, 1976. Amelita's testimony on cross-
examination that she had sexual contact with Ivan in
Manila in the first or second week of November, 1974
(TSN, December 8, 1975, p. 108) is inconsistent with her
response that she could not remember the date of their
last sexual intercourse in November, 1974 (Ibid, p. 106).
Sexual contact of Ivan and Amelita in the first or second
week of November, 1974 is the crucial point that was
not even established on direct examination as she
merely testified that she had sexual intercourse with
Ivan in the months of September, October and
November, 1974.
Michael Constantino is a full-term baby born on August
3, 1975 (Exhibit 6) so that as correctly pointed out by
private respondent's counsel, citing medical science
(Williams Obstetrics, Tenth Ed., p. 198) to the effect
that "the mean duration of actual pregnancy, counting
from the day of conception must be close to 267 days",
the conception of the child (Michael) must have taken
place about 267 days before August 3, 1975 or
sometime in the second week of November, 1974. While
Amelita testified that she had sexual contact with Ivan in
November, 1974, nevertheless said testimony is
contradicted by her own evidence (Exh. F), the letter
dated February 11, 1975, addressed to Ivan Mendez
requesting for a conference, prepared by her own
counsel Atty. Roberto Sarenas to whom she must have
confided the attendant circumstances of her pregnancy
while still fresh in her memory, informing Ivan that
Amelita is four (4) months pregnant so that applying the
period of the duration of actual pregnancy, the child was
conceived on or about October 11, 1974.
Petitioner's assertion that Ivan is her first and only
boyfriend (TSN, December 8, 1975, p. 65) is belied by
Exhibit 2, her own letter addressed to Mrs. Mendez
where she revealed the reason for her attachment to
Ivan who possessed certain traits not possessed by her
boyfriend. She also confided that she had a quarrel with
her boyfriend because of gossips so she left her work.
An order for recognition and support may create an
unwholesome atmosphere or may be an irritant in the
family or lives of the parties so that it must be issued
only if paternity or filiation is established by clear and
convincing evidence. The burden of proof is on Amelita
to establish her affirmative allegations that Ivan is the
father of her son. Consequently, in the absence of clear
and convincing evidence establishing paternity or
filiation, the complaint must be dismissed.
As regards Amelita's claim for damages which is based
on Articles 193 & 214 of the Civil Code on the theory
that through Ivan's promise of marriage, she
surrendered her virginity, we cannot but agree with the
Court of Appeals that more sexual intercourse is not by
itself a basis for recovery. Damages could only be
awarded if sexual intercourse is not a product of
voluntariness and mutual desire. At the time she met
Ivan at Tony's Restaurant, Amelita was already 28 years
old and she admitted that she was attracted to Ivan
(TSN, December 3, 1975, p. 83). Her attraction to Ivan
is the reason why she surrendered her womanhood. Had
she been induced or deceived because of a promise of
marriage, she could have immediately severed her
relation with Ivan when she was informed after their
first sexual contact sometime in August, 1974, that he
was a married man. Her declaration that in the months
of September, October and November, 1974, they
repeated their sexual intercourse only indicates that
passion and not the alleged promise of marriage was the
moving force that made her submit herself to Ivan.
WHEREFORE, the instant petition is Dismissed for lack of
merit. SO ORDERED.
(b) MALICIOUS PROSEECUTION
 ART. 2219 NCC
[G.R. No. 119178. June 20, 1997]
LINA LIM LAO, petitioner, vs. COURT OF APPEALS
and PEOPLE OF THE PHILIPPINES, respondents.
May an employee who, as part of her regular
duties, signs blank corporate checks -- with the name of
the payee and the amount drawn to be filled later by
another signatory -- and, therefore, does so without
actual knowledge of whether such checks are funded, be
held criminally liable for violation of Batas Pambansa
Bilang 22 (B.P. 22), when checks so signed are
dishonored due to insufficiency of funds?Does a notice
of dishonor sent to the main office of the corporation
constitute a valid notice to the said employee who holds
office in a separate branch and who had no actual
knowledge thereof? In other words, is constructive
knowledge of the corporation, but not of the signatory-
employee, sufficient?
These are the questions raised in the petition filed
on March 21, 1995 assailing the Decision[1] of
Respondent Court of Appeals[2]promulgated on
December 9, 1994 in CA-G.R. CR No. 14240 dismissing
the appeal of petitioner and affirming the decision dated
September 26, 1990 in Criminal Case Nos. 84-26967 to
84-26969 of the Regional Trial Court of Manila, Branch
33. The dispositive portion of the said RTC decision
affirmed by the respondent appellate court reads:[3]
WHEREFORE, after a careful consideration of the
evidence presented by the prosecution and that of the
defense, the Court renders judgment as follows:
In Criminal Case No. 84-26969 where no evidence was
presented by the prosecution notwithstanding the fact
that there was an agreement that the cases be tried
jointly and also the fact that the accused Lina Lim Lao
was already arraigned, for failure of the prosecution to
adduce evidence against the accused, the Court hereby
declares her innocent of the crime charged and she is
hereby acquitted with cost de oficio.
For Criminal Case No. 84-26967, the Court finds the
accused Lina Lim Lao guilty beyond reasonable doubt of
the crime charged and is hereby sentenced to suffer the
penalty of ONE (1) YEAR imprisonment and to pay a fine
of P150,000.00 without subsidiary imprisonment in case
of insolvency.
For Criminal Case No. 84-26968, the Court finds the
accused Lina Lim Lao guilty beyond reasonable doubt of
the crime charged and is hereby sentenced to suffer the
penalty of ONE (1) YEAR imprisonment and to pay a fine
of P150,000.00 without subsidiary imprisonment in case
of of (sic) insolvency.
For the two cases the accused is ordered to pay the cost
of suit.
The cash bond put up by the accused for her provisional
liberty in Criminal Case No. 84-26969 where she is
declared acquitted is hereby ordered cancelled (sic).
With reference to the accused Teodulo Asprec who has
remained at large, in order that the cases as against him
may not remain pending in the docket for an indefinite
period, let the same be archived without prejudice to its
subsequent prosecution as soon as said accused is
finally apprehended.
Let a warrant issue for the arrest of the accused Teodulo
Asprec which warrant need not be returned to this Court
until the accused is finally arrested. SO ORDERED.
The Facts
Version of the Prosecution
The facts are not disputed. We thus lift them from
the assailed Decision, as follows:
Appellant (and now Petitioner Lina Lim Lao) was a junior
officer of Premiere Investment House (Premiere) in its
Binondo Branch. As such officer, she was authorized to
sign checks for and in behalf of the corporation (TSN,
August 16, 1990, p. 6). In the course of the business,
she met complainant Father Artelijo Pelijo, the provincial
treasurer of the Society of the Divine Word through Mrs.
Rosemarie Lachenal, a trader for Premiere. Father Palijo
was authorized to invest donations to the society and
had been investing the societys money with Premiere
(TSN, June 23, 1987, pp. 5, 9-10). Father Palijo had
invested a total of P514,484.04, as evidenced by the
Confirmation of Sale No. 82-6994 (Exh A) dated July 8,
1993. Father Palijo was also issued Traders Royal Bank
(TRB) checks in payment of interest, as follows:
Check Date Amount
299961 Oct. 7, 1993 (sic) P150,000.00 (Exh. B)
299962 Oct. 7, 1983 P150,000.00 (Exh. C)
323835 Oct. 7, 1983 P 26,010.73
All the checks were issued in favor of Artelijo A. Palijo
and signed by appellant (herein petitioner) and Teodulo
Asprec, who was the head of operations.Further
evidence of the transaction was the acknowledgment of
postdated checks dated July 8, 1983 (Exh . D) and the
cash disbursement voucher (Exh. F, TSN, supra, at pp.
11-16).
When Father Palijo presented the checks for
encashment, the same were dishonored for the reason
Drawn Against Insufficient Funds (DAIF). Father Palijo
immediately made demands on premiere to pay him the
necessary amounts. He first went to the Binondo Branch
but was referred to the Cubao Main Branch where he
was able to talk with the President, Mr. Cario. For his
efforts, he was paid P5,000.00. Since no other payments
followed, Father Palijo wrote Premiere a formal letter of
demand. Subsequently, Premiere was placed under
receivership (TSN, supra, at pp. 16-19).[4]
Thereafter, on January 24, 1984, Private
Complainant Palijo filed an affidavit-complaint against
Petitioner Lina Lim Lao and Teodulo Asprec for violation
of B.P. 22. After preliminary investigation,[5] three
Informations charging Lao and Asprec with the offense
defined in the first paragraph of Section 1, B.P. 22 were
filed by Assistant Fiscal Felix S. Caballes before the trial
court on May 11, 1984,[6] worded as follows:
1. In Criminal Case No. 84-26967:
That on or about October 7, 1983 in the City of Manila,
Philippines, the said accused did then and there wilfully
and unlawfully draw and issue to Artelijo A. Palijo to
apply on account or for value a Traders Royal Bank
Check No. 299962 for P150,000.00 payable to Fr.
Artelijo A. Palijo dated October 7, 1983 well knowing
that at the time of issue he/she did not have sufficient
funds in or credit with the drawee bank for full payment
of the said check upon its presentment as in fact the
said check, when presented within ninety (90) days from
the date thereof, was dishonored by the drawee bank
for the reason:Insufficient Funds; that despite notice of
such dishonor, said accused failed to pay said Artelijo A.
Palijo the amount of the said check or to make
arrangement for full payment of the same within five (5)
banking days from receipt of said notice.
CONTRARY TO LAW.
2. In Criminal Case No. 84-26968:
That on or about October 7, 1983 in the City of Manila,
Philippines, the said accused did then and there wilfully
and unlawfully draw and issue to Artelijo A. Palijo to
apply on account or for value a Traders Royal Bank
Check No. 299961 for P150,000.00 payable to Fr.
Artelijo A. Palijo dated October 7, 83 well knowing that
at the time of issue he/she did not have sufficient funds
in or credit with the drawee bank for full payment of the
said check upon its presentment as in fact the said
check, when presented within ninety (90) days from the
date thereof, was dishonored by the drawee bank for
the reason:Insuficient Funds; that despite notice of such
dishonor, said accused failed to pay said Artelijo A. Palijo
the amount of the said check or to make arrangement
for full payment of the same within five (5) banking days
from receipt of said notice.
CONTRARY TO LAW.
3. And finally in Criminal Case No. 84-26969:
That on or about July 8, 1983 in the City of Manila,
Philippines, the said accused did then and there wilfully
and unlawfully draw and issue to Artelijo A. Palijo to
apply on account for value a Traders Royal Bank Check
No. 323835 for P26,010.03 payable to Fr. Artelijo A.
Palijo dated October 7, 1983 well knowing that at the
time of issue he/she did not have sufficient funds in or
credit with the drawee bank for full payment of the said
check upon its presentment as in fact the said check,
when presented within ninety (90) days from the date
thereof, was dishonored by the drawee bank for the
reason:Insufficient Funds; that despite notice of such
dishonor, said accused failed to pay said Artelijo A. Palijo
the amount of the said check or to make arrangement
for full payment of the same within five (5) banking days
from receipt of said notice.
CONTRARY TO LAW.
Upon being arraigned, petitioner assisted by
counsel pleaded not guilty. Asprec was not arrested; he
has remained at large since the trial, and even now on
appeal.
After due trial, the Regional Trial Court convicted
Petitioner Lina Lim Lao in Criminal Case Nos. 84-26967
and 84-26968 but acquitted her in Criminal Case No. 84-
26969.[7] On appeal, the Court of Appeals affirmed the
decision of the trial court.
Version of the Defense
Petitioner aptly summarized her version of the facts
of the case thus:
Petitioner Lina Lim Lao was, in 1983, an employee of
Premiere Financing Corporation (hereinafter referred to
as the Corporation), a corporation engaged in
investment management, with principal business office
at Miami, Cubao, Quezon City. She was a junior officer
at the corporation who was, however, assigned not at its
main branch but at the corporations extension office in
(Binondo) Manila. (Ocampo, T.S.N., 16 August 1990,
p. 14)
In the regular course of her duties as a junior officer,
she was required to co-sign checks drawn against the
account of the corporation. The other co-signor was her
head of office, Mr. Teodulo Asprec. Since part of her
duties required her to be mostly in the field and out of
the office, it was normal procedure for her to sign the
checks in blank, that is, without the names of the
payees, the amounts and the dates of maturity. It was
likewise Mr. Asprec, as head of office, who alone
decided to whom the checks were to be ultimately
issued and delivered. (Lao, T.S.N., 28 September
1989, pp. 9-11, 17, 19.)
In signing the checks as part of her duties as junior
officer of the corporation, petitioner had no knowledge
of the actual funds available in the corporate
account. (Lao, T.S.N., 28 September 1989, p.
21) The power, duty and responsibility of monitoring
and assessing the balances against the checks issued,
and funding the checks thus issued, devolved on the
corporations Treasury Department in its main office in
Cubao, Quezon City, headed then by the Treasurer, Ms.
Veronilyn Ocampo. (Ocampo, T.S.N., 19 July 1990,
p. 4; Lao, T.S.N., 28 September 1989, pp. 21-
23) All bank statements regarding the corporate
checking account were likewise sent to the main branch
in Cubao, Quezon City, and not in Binondo, Manila,
where petitioner was holding office. (Ocampo, T.S.N.,
19 July 1990, p. 24; Marqueses, T.S.N., 22
November 1988, p. 8)
The foregoing circumstances attended the issuance of
the checks subject of the instant prosecution.
The checks were issued to guarantee payment of
investments placed by private complainant Palijo with
Premiere Financing Corporation. In his transactions with
the corporation, private complainant
dealt exclusively with one Rosemarie Lachenal, a
trader connected with the corporation, and he never
knew nor in any way dealt with petitioner Lina Lim Lao
at any time before or during the issuance of the delivery
of the checks. (Palijo, T.S.N., 23 June 1987, pp. 28-
29, 32-34; Lao, T.S.N., 15 May 1990, p. 6;
Ocampo, T.S.N., p. 5) Petitioner Lina Lim Lao was not
in any way involved in the transaction which led to the
issuance of the checks.
When the checks were co-signed by petitioner, they
were signed in advance and in blank, delivered to the
Head of Operations, Mr. Teodulo Asprec, who
subsequently filled in the names of the payee, the
amounts and the corresponding dates of maturity. After
Mr. Asprec signed the checks, they were delivered to
private complainant Palijo. (Lao, T.S.N., 28
September 1989, pp. 8-11, 17, 19; note also that
the trial court in its decision fully accepted the
testimony of petitioner [Decision of the Regional
Trial Court, p. 12], and that the Court of Appeals
affirmed said decision in toto)
Petitioner Lina Lim Lao was not in any way involved in
the completion, and the subsequent delivery of the
check to private complainant Palijo.
At the time petitioner signed the checks, she had no
knowledge of the sufficiency or insufficiency of the funds
of the corporate account. (Lao, T.S.N., 28 September
1989, p. 21) It was not within her powers, duties or
responsibilities to monitor and assess the balances
against the issuance; much less was it within her (duties
and responsibilities) to make sure that the checks were
funded. Premiere Financing Corporation had a Treasury
Department headed by a Treasurer, Ms. Veronilyn
Ocampo, which alone had access to information as to
account balances and which alone was responsible for
funding the issued checks. (Ocampo, T.S.N., 19 July
1990, p. 4; Lao, T.S.N., 28 September 1990, p.
23) All statements of account were sent to the Treasury
Department located at the main office in Cubao, Quezon
City. Petitioner was holding office at the extension in
Binondo Manila. (Lao, T.S.N., 28 September 1989, p.
24-25) Petitioner Lina Lim Lao did not have knowledge
of the insufficiency of the funds in the corporate account
against which the checks were drawn.
When the checks were subsequently dishonored, private
complainant sent a notice of said dishonor to Premier
Financing Corporation at its head office in Cubao,
Quezon City. (Please refer to Exh. E; Palijo, T.S.N.,
23 June 1987, p. 51) Private complainant did not send
notice of dishonor to petitioner.(Palijo, T.S.N., 24 July
1987, p. 10) He did not follow up his investment with
petitioner. (Id.) Private complainant never contacted,
never informed, and never talked with, petitioner after
the checks had bounced. (Id., at p. 29) Petitioner
never had notice of the dishonor of the checks subject
of the instant prosecution.
The Treasurer of Premiere Financing Corporation, Ms.
Veronilyn Ocampo testified that it was the head office in
Cubao, Quezon City, which received notice of dishonor
of the bounced checks. (Ocampo, T.S.N., 19 July
1990, pp. 7-8) The dishonor of the check came in the
wake of the assassination of the late Sen. Benigno
Aquino, as a consequence of which event a majority of
the corporations clients pre-terminated their
investments. A period of extreme illiquidity and financial
distress followed, which ultimately led to the
corporations being placed under receivership by the
Securities and Exchange Commission. (Ocampo,
T.S.N., 16 August 1990, p. 8, 19; Lao, T.S.N., 28
September 1989, pp. 25-26; Please refer also to
Exhibit 1, the order of receivership issued by the
Securities and Exchange Commission) Despite the
Treasury Departments and (Ms. Ocampos) knowledge of
the dishonor of the checks, however, the main office in
Cubao, Quezon City never informed petitioner Lina Lim
Lao or anybody in the Binondo office for that
matter.(Ocampo, T.S.N., 16 August 1990, pp. 9-
10) In her testimony, she justified her omission by
saying that the checks were actually the responsibility of
the main office (Ocampo, T.S.N., 19 July 1990, p.
6) and that, at that time of panic withdrawals and
massive pre-termination of clients investments, it was
futile to inform the Binondo office since the main office
was strapped for cash and in deep financial
distress. (Id., at pp. 7-9) Moreover, the confusion
which came in the wake of the Aquino assassination and
the consequent panic withdrawals caused them to lose
direct communication with the Binondo
office. (Ocampo, T.S.N., 16 August 1990, p. 9-10)
As a result of the financial crisis and distress, the
Securities and Exchange Commission placed Premier
Financing Corporation under receivership, appointing a
rehabilitation receiver for the purpose of settling claims
against the corporation. (Exh. 1) As he himself admits,
private complainant filed a claim for the payment of the
bounced check before and even after the corporation
had been placed under receivership. (Palijo, T.S.N., 24
July 1987, p. 10-17) A check was prepared by the
receiver in favor of the private complainant but the same
was not claimed by him. (Lao, T.S.N., 15 May 1990,
p. 18)
Private complainant then filed the instant criminal
action. On 26 September 1990, the Regional Trial Court
of Manila, Branch 33, rendered a decision convicting
petitioner, and sentencing the latter to suffer the
aggregate penalty of two (2) years and to pay a fine in
the total amount of P300,000.00. On appeal, the Court
of Appeals affirmed said decision. Hence, this petition
for review.[8]
The Issue
In the main, petitioner contends that the public
respondent committed a reversible error in concluding
that lack of actual knowledge of insufficiency of funds
was not a defense in a prosecution for violation of B.P.
22. Additionally, the petitioner argues that the notice of
dishonor sent to the main office of the corporation, and
not to petitioner herself who holds office in that
corporations branch office, does not constitute the
notice mandated in Section 2 of BP 22; thus, there can
be no prima facie presumption that she had knowledge
of the insufficiency of funds.
The Courts Ruling
The petition is meritorious.
Strict Interpretation of Penal Statutes
It is well-settled in this jurisdiction that penal
statutes are strictly construed against the state and
liberally for the accused, so much so that the scope of a
penal statute cannot be extended by good intention,
implication, or even equity consideration. Thus, for
Petitioner Lina Lim Laos acts to be penalized under the
Bouncing Checks Law or B.P. 22, they must come clearly
within both the spirit and the letter of the statute.[9]
The salient portions of B.P. 22 read:
SECTION 1. Checks without sufficient funds. -- Any
person who makes or draws and issues any check to
apply on account or for value, knowing at the time of
issue that he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in
full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds
or credit or would have been dishonored for the same
reason had not the drawer, without any valid reason,
ordered the bank to stop payment, shall be punished by
imprisonment of not less than thirty days but not more
than one (1) year or by a fine of not less than but not
more than double the amount of the check which fine
shall in no case exceed Two hundred thousand pesos, or
both such fine and imprisonment at the discretion of the
court.
The same penalty shall be imposed upon any person
who having sufficient funds in or credit with the drawee
bank when he makes or draws and issues a check, shall
fail to keep sufficient funds or to maintain a credit or to
cover the full amount of the check if presented within a
period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the drawee
bank.
Where the check is drawn by a corporation, company or
entity, the person or persons who actually signed the
check in behalf of such drawer shall be liable under this
Act.
SECTION 2. Evidence of knowledge of insufficient
funds. -- The making, drawing and issuance of a check
payment of which is refused by the drawee because of
insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the
check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such maker
or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by
the drawee of such check within five (5) banking days
after receiving notice that such check has not been paid
by the drawee.
This Court listed the elements of the offense
penalized under B.P. 22, as follows: (1) the making,
drawing and issuance of any check to apply to account
or for value; (2) the knowledge of the maker, drawer or
issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and
(3) subsequent dishonor of the check by the drawee
bank for insufficiency of funds or credit or dishonor for
the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment.[10]
Justice Luis B. Reyes, an eminent authority in
criminal law, also enumerated the elements of the
offense defined in the first paragraph of Section 1 of
B.P. 22, thus:
1. That a person makes or
draws and issues any check.
2. That the check is made or drawn and
issued to apply on account or for value.
3. That the person who makes or draws and
issues the check knows at the time of
issue that he does not have sufficient funds
in or credit with the drawee bank for the
payment of such check in full upon its
presentment.
4. That the check is subsequently dishonored
by the drawee bank for insufficiency of
funds or credit, or would have been
dishonored for the same reason had not
the drawer, without any valid reason,
ordered the bank to stop payment.[11]
Crux of the Petition
Petitioner raised as defense before the Court of
Appeals her lack of actual knowledge of the insufficiency
of funds at the time of the issuance of the checks, and
lack of personal notice of dishonor to her. The
respondent appellate court, however, affirmed the RTC
decision, reasoning that the makers knowledge of the
insufficiency of funds is legally presumed from the
dishonor of his checks for insufficiency of funds. (People
vs. Laggui, 171 SCRA 305; Nieras vs. Hon. Auxencio C.
Dacuycuy, 181 SCRA 1)[12] The Court of Appeals also
stated that her alleged lack of knowledge or intent to
issue a bum check would not exculpate her from any
responsibility under B.P. Blg. 22, since the act of making
and issuing a worthless check is a malum
prohibitum.[13] In the words of the Solicitor General,
(s)uch alleged lack of knowledge is not material for
petitioners liability under B.P.Blg. 22.[14]
Lack of Actual Knowledge of Insufficiency of
Funds
Knowledge of insufficiency of funds or credit in the
drawee bank for the payment of a check upon its
presentment is an essential element of the
offense.[15] There is a prima facie presumption of the
existence of this element from the fact of drawing,
issuing or making a check, the payment of which was
subsequently refused for insufficiency of funds. It is
important to stress, however, that this is not a
conclusive presumption that forecloses or precludes the
presentation of evidence to the contrary.
In the present case, the fact alone that petitioner
was a signatory to the checks that were subsequently
dishonored merely engenders the prima
facie presumption that she knew of the insufficiency of
funds, but it does not render her automatically guilty
under B.P. 22. The prosecution has a duty to prove all
the elements of the crime, including the acts that give
rise to the prima facie presumption; petitioner, on the
other hand, has a right to rebut the prima
facie presumption.[16] Therefore, if such knowledge of
insufficiency of funds is proven to be actually absent or
non-existent, the accused should not be held liable for
the offense defined under the first paragraph of Section
1 of B.P. 22. Although the offense charged is a malum
prohibitum, the prosecution is not thereby excused from
its responsibility of proving beyond reasonable doubt all
the elements of the offense, one of which is knowledge
of the insufficiency of funds.
After a thorough review of the case at bar, the
Court finds that Petitioner Lina Lim Lao did not have
actual knowledge of the insufficiency of funds in the
corporate accounts at the time she affixed her signature
to the checks involved in this case, at the time the same
were issued, and even at the time the checks were
subsequently dishonored by the drawee bank.
The scope of petitioners duties and responsibilities
did not encompass the funding of the corporations
checks; her duties were limited to the marketing
department of the Binondo branch.[17] Under the
organizational structure of Premiere Financing
Corporation, funding of checks was the sole
responsibility of the Treasury Department. Veronilyn
Ocampo, former Treasurer of Premiere, testified thus:
Q Will you please tell us whose (sic)
responsible for the funding of checks in
Premiere?
A The one in charge is the Treasury Division
up to the Treasury Disbursement and
then they give it directly to Jose Cabacan,
President of Premiere.[18]
Furthermore, the Regional Trial Court itself found
that, since Petitioner Lina Lim Lao was often out in the
field taking charge of the marketing department of the
Binondo branch, she signed the checks in blank as to
name of the payee and the amount to be drawn,
and without knowledge of the transaction for which they
were issued.[19] As a matter of company practice, her
signature was required in addition to that of Teodulo
Asprec, who alone placed the name of the payee and
the amount to be drawn thereon. This is clear from her
testimony:
Q x x x Will you please or will you be able to tell us the
condition of this check when you signed this or
when you first saw this check?
A i signed the check in blank. There were no payee. No
amount, no date, sir.
Q why did you sign this check in blank when there was no
payee, no amount and no date?
A it is in order to facilitate the transaction, sir.
Xxxxxxxxx
Court (to witness)
Q is that your practice?
A procedure, your honor.
Court
That is quiet (sic) unusual. That is why i am asking
that last question if that is a practice of your office.
A as a co-signer, i sign first, sir.
Q so the check cannot be encashed without your
signature, co-signature?
A yes, sir.
Atty. Gonzales
Q now, you said that you sign first, after you sign, who
signs the check?
A mr. Teodoro asprec, sir.
Q is this teodoro asprec the same teodoro asprec, one of
the accused in all these cases?
A yes, sir.
Q now, in the distribution or issuance of checks which
according to you, as a co-signee, you sign. Who
determines to whom to issue or to whom to pay the
check after teodoro asprec signs the check?
A he is the one.
Atty. Gonzales
Q mr. Asprec is the one in-charge in . . . Are you telling
the honorable court that it was teodoro asprec who
determines to whom to issue the check? Does he do
that all the time?
Court
Q does he all the time?
(to witness)
A yes, your honor.
Q so the check can be negotiated? So, the check can be
good only upon his signing? Without his signing or
signature the check cannot be good?
A yes, your honor.
Atty. Gonzales (to witness)
Q you made reference to a transaction which according to
you, you signed this check in order to facilitate the
transaction . . . I withdraw that question. I will
reform.
Court (for clarification to witness)
Witness may answer.
Q only to facilitate your business transaction, so you
signed the other checks?
A yes, your honor.
Q so that when ever there is a transaction all is
needed . . . All that is needed is for the other co-
signee to sign?
A yes, your honor.
Court (to counsel)
Proceed.
Atty. Gonzales (to witness)
Q why is it necessary for you to sign?
A because most of the time i am out in the field in the
afternoon, so, in order to facilitate the transaction i
sign so if i am not around they can issue the check.
Petitioner did not have any knowledge either of the identity of
the payee or the transaction which gave rise to the issuance of the
checks. It was her co-signatory, Teodulo Asprec, who alone filled in
the blanks, completed and issued the checks. That Petitioner Lina Lim
Lao did not have any knowledge or connection with the checks payee,
Artelijo Palijo, is clearly evident even from the latters testimony, viz.:
 ATTY. GONZALES:
Q When did you come to know the accused Lina Lim Lao?
A I cannot remember the exact date because in their office
Binondo, --
COURT: (before witness could finish)
Q More or less?
A It must have been late 1983.
ATTY. GONZALES:
Q And that must or that was after the transactions
involving alleged checks marked in evidence as
Exhibits B and C?
A After the transactions.
Q And that was also before the transaction involving that
confirmation of sale marked in evidence as Exhibit
A?
A It was also.
Q And so you came to know the accused Lina Lim Lao
when all those transactions were already
consummated?
A Yes, sir.
Q And there has never been any occasion where you
transacted with accused Lina Lim Lao, is that
correct?
A None, sir, there was no occasion.
Q And your coming to know Lina Lim Lao the accused in
these cases was by chance when you happened to
drop by in the office at Binondo of the Premier
Finance Corporation, is that what you mean?
A Yes, sir.
Q You indicated to the Court that you were introduced to
the accused Lina Lim Lao, is that correct?
A I was introduced.
xxxxxxxxx
Q After that plain introduction there was nothing which
transpired between you and the accused Lina Lim
Lao?
A There was none.
Since Petitioner Lina Lim Lao signed the checks
without knowledge of the insufficiency of funds,
knowledge she was not expected or obliged to possess
under the organizational structure of the corporation,
she may not be held liable under B.P. 22. For in the final
analysis, penal statutes such as B.P. 22 must be
construed with such strictness as to carefully safeguard
the rights of the defendant x x x.[22] The element of
knowledge of insufficiency of funds having been proven
to be absent, petitioner is therefore entitled to an
acquittal.
This position finds support in Dingle vs.
Intermediate Appellate Court[23] where we stressed that
knowledge of insufficiency of funds at the time of the
issuance of the check was an essential requisite for the
offense penalized under B.P. 22. In that case, the
spouses Paz and Nestor Dingle owned a family business
known as PMD Enterprises. Nestor transacted the sale of
400 tons of silica sand to the buyer Ernesto Ang who
paid for the same. Nestor failed to deliver. Thus, he
issued to Ernesto two checks, signed by him and his wife
as authorized signatories for PMD Enterprises, to
represent the value of the undelivered silica sand. These
checks were dishonored for having been drawn against
insufficient funds. Nestor thereafter issued to Ernesto
another check, signed by him and his wife Paz, which
was likewise subsequently dishonored. No payment was
ever made; hence, the spouses were charged with a
violation of B.P. 22 before the trial court which found
them both guilty. Paz appealed the judgment to the then
Intermediate Appellate Court which modified the same
by reducing the penalty of imprisonment to thirty
days. Not satisfied, Paz filed an appeal to this Court
insisting on her innocence and contending that she did
not incur any criminal liability under B.P. 22 because she
had no knowledge of the dishonor of the checks issued
by her husband and, for that matter, even the
transaction of her husband with Ang. The Court ruled
in Dingle as follows:
The Solicitor General in his Memorandum recommended
that petitioner be acquitted of the instant
charge because from the testimony of the sole
prosecution witness Ernesto Ang, it was established that
he dealt exclusively with Nestor Dingle. Nowhere in his
testimony is the name of Paz Dingle ever mentioned in
connection with the transaction and with the issuance of
the check. In fact, Ang categorically stated that it was
Nestor Dingle who received his two (2) letters of
demand. This lends credence to the testimony of Paz
Dingle that she signed the questioned checks in blank
together with her husband without any knowledge of its
issuance, much less of the transaction and the fact of
dishonor.
In the case of Florentino Lozano vs. Hon. Martinez,
promulgated December 18, 1986, it was held that an
essential element of the offense is knowledge on the
part of the maker or drawer of the check of the
insufficiency of his funds.
WHEREFORE, on reasonable doubt, the assailed decision
of the Intermediate Appellate Court (now the Court of
Appeals) is hereby SET ASIDE and a new one is hereby
rendered ACQUITTING petitioner on reasonable
doubt."[24]
In rejecting the defense of herein petitioner and
ruling that knowledge of the insufficiency of funds is
legally presumed from the dishonor of the checks for
insufficiency of funds, Respondent Court of Appeals
cited People vs. Laggui[25] and Nierras vs.
Dacuycuy. These, however, are inapplicable here. The
[26]
accused in both cases issued personal -- not corporate --
checks and did not aver lack of knowledge of
insufficiency of funds or absence of personal notice of
the checks dishonor. Furthermore, in People vs.
Laggui[27] the Court ruled mainly on the adequacy of an
information which alleged lack of knowledge of
insufficiency of funds at the time the check was issued
and not at the time of its presentment. On the other
hand, the Court in Nierras vs. Dacuycuy[28] held mainly
that an accused may be charged under B.P. 22 and
Article 315 of the Revised Penal Code for the same act
of issuing a bouncing check.
 The statement in the two cases -- that mere
issuance of a dishonored check gives rise to the
presumption of knowledge on the part of the drawer
that he issued the same without funds -- does not
support the CA Decision. As observed earlier, there is
here only a prima faciepresumption which does not
preclude the presentation of contrary evidence. On the
contrary, People vs. Laggui clearly spells out as an
element of the offense the fact that the drawer must
have knowledge of the insufficiency of funds in, or of
credit with, the drawee bank for the payment of the
same in full on presentment; hence, it even supports the
petitioners position.
Lack of Adequate Notice of Dishonor
There is another equally cogent reason for the
acquittal of the accused. There can be no prima
facie evidence of knowledge of insufficiency of funds in
the instant case because no notice of dishonor was
actually sent to or received by the petitioner.
The notice of dishonor may be sent by the offended
party or the drawee bank. The trial court itself found
absent a personal notice of dishonor to Petitioner Lina
Lim Lao by the drawee bank based on the unrebutted
testimony of Ocampo (t)hat the checks bounced when
presented with the drawee bank but she did not inform
anymore the Binondo branch and Lina Lim Lao as there
was no need to inform them as the corporation was in
distress.[29] The Court of Appeals affirmed this factual
finding. Pursuant to prevailing jurisprudence, this finding
is binding on this Court.[30]
Indeed, this factual matter is borne by the
records. The records show that the notice of dishonor
was addressed to Premiere Financing Corporation and
sent to its main office in Cubao, Quezon
City. Furthermore, the same had not been transmitted to
Premieres Binondo Office where petitioner had been
holding office.
Likewise no notice of dishonor from the offended
party was actually sent to or received by Petitioner
Lao. Her testimony on this point is as follows:
Atty. Gonzales
Q Will you please tell us if Father Artelejo Palejo (sic) ever
notified you of the bouncing of the check or the two
(2) checks marked as Exhibit B or C for the
prosecution?
Witness
A No, sir.
Q What do you mean no, sir?
A I was never given a notice. I was never given notice
from Father Palejo (sic).
COURT: (to witness)
Q Notice of what?
A Of the bouncing check, Your Honor.
Because no notice of dishonor was actually sent to
and received by the petitioner, the prima
facie presumption that she knew about the insufficiency
of funds cannot apply. Section 2 of B.P. 22 clearly
provides that this presumption arises not from the mere
fact of drawing, making and issuing a bum check; there
must also be a showing that, within five banking
days from receipt of the notice of dishonor, such maker
or drawer failed to pay the holder of the check the
amount due thereon or to make arrangement for its
payment in full by the drawee of such check.
It has been observed that the State, under this
statute, actually offers the violator a compromise by
allowing him to perform some act which operates to
preempt the criminal action, and if he opts to perform it
the action is abated. This was also compared to certain
laws[32]allowing illegal possessors of firearms a certain
period of time to surrender the illegally possessed
firearms to the Government, without incurring any
criminal liability.[33] In this light, the full payment of the
amount appearing in the check within five banking days
from notice of dishonor is a complete defense.[34] The
absence of a notice of dishonor necessarily deprives an
accused an opportunity to preclude a criminal
prosecution. Accordingly, procedural due process clearly
enjoins that a notice of dishonor be actually served on
petitioner.Petitioner has a right to demand -- and the
basic postulates of fairness require -- that the notice of
dishonor be actually sent to and received by her to
afford her the opportunity to avert prosecution under
B.P. 22.
In this light, the postulate of Respondent Court of
Appeals that (d)emand on the Corporation constitutes
demand on appellant (herein petitioner),[35] is
erroneous. Premiere has no obligation to forward the
notice addressed to it to the employee concerned,
especially because the corporation itself incurs no
criminal liability under B.P. 22 for the issuance of a
bouncing check. Responsibility under B.P. 22 is personal
to the accused; hence, personal knowledge of the notice
of dishonor is necessary. Consequently, constructive
notice to the corporation is not enough to satisfy due
process. Moreover, it is petitioner, as an officer of the
corporation, who is the latters agent for purposes of
receiving notices and other documents, and not the
other way around. It is but axiomatic that notice to the
corporation, which has a personality distinct and
separate from the petitioner, does not constitute notice
to the latter.
Epilogue
In granting this appeal, the Court is not unaware of
B.P. 22s intent to inculcate public respect for and trust in
checks which, although not legal tender, are deemed
convenient substitutes for currency. B.P. 22 was
intended by the legislature to enhance commercial and
financial transactions in the Philippines by penalizing
makers and issuers of worthless checks. The public
interest behind B.P. 22 is thus clearly palpable from its
intended purpose.[36]
 At the same time, this Court deeply cherishes and is
in fact bound by duty to protect our peoples
constitutional rights to due process and to be presumed
innocent until the contrary is proven.[37] These rights
must be read into any interpretation and application of
B.P. 22.Verily, the public policy to uphold civil liberties
embodied in the Bill of Rights necessarily outweighs the
public policy to build confidence in the issuance of
checks. The first is a basic human right while the second
is only proprietary in nature.[38] Important to remember
also is B.P. 22s requirements that the check issuer must
know at the time of issue that he does not have
sufficient funds in or credit with the drawee bank and
that he must receive notice that such check has not
been paid by the drawee. Hence, B.P. 22 must not be
applied in a manner which contravenes an accuseds
constitutional and statutory rights.
There is also a social justice dimension in this
case. Lina Lim Lao is only a minor employee who had
nothing to do with the issuance, funding and delivery of
checks. Why she was required by her employer to
countersign checks escapes us. Her signature is
completely unnecessary for it serves no fathomable
purpose at all in protecting the employer from
unauthorized disbursements. Because of the pendency
of this case, Lina Lim Lao stood in jeopardy -- for over a
decade -- of losing her liberty and suffering the
wrenching pain and loneliness of imprisonment, not to
mention the stigma of prosecution on her career and
family life as a young mother, as well as the expenses,
effort and aches in defending her innocence. Upon the
other hand, the senior official -- Teodulo Asprec -- who
appears responsible for the issuance, funding and
delivery of the worthless checks has escaped criminal
prosecution simply because he could not be located by
the authorities. The case against him has been archived
while the awesome prosecutory might of the
government and the knuckled ire of the private
complainant were all focused on poor petitioner. Thus,
this Court exhorts the prosecutors and the police
authorities concerned to exert their best to arrest and
prosecute Asprec so that justice in its pristine essence
can be achieved in all fairness to the complainant, Fr.
Artelijo Palijo, and the People of the Philippines. By this
Decision, the Court enjoins the Secretary of Justice and
the Secretary of Interior and Local Government to see
that essential justice is done and the real culprit(s) duly-
prosecuted and punished.
WHEREFORE, the questioned Decision of the
Court of Appeals affirming that of the Regional Trial
Court, is hereby REVERSED and SET ASIDE. Petitioner
Lina Lim Lao is ACQUITTED. The Clerk of Court is
hereby ORDERED to furnish the Secretary of Justice and
the Secretary of Interior and Local Government with
copies of this Decision. No costs. SO ORDERED.
[G.R. No. 107019. March 20, 1997]
FRANKLIN M. DRILON, AURELIO C. TRAMPE,
GREGORIO A. ARIZALA, CESAR M. SOLIS and
FERDINAND R. ABESAMIS, petitioners, vs. COURT
OF APPEALS, HON. GEORGE C. MACLI-ING, in his
capacity as Presiding Judge of Branch 100 of the
Regional Trial Court of Quezon City, and HOMOBONO
ADAZA, respondents.
Petitioners seek the reversal of the Resolutions of
respondent Court of Appeals in CA-G.R. SP No. 25080
dated January 31, 1992 and September 2, 1992
affirming the Orders, dated February 8, 1991 and May
14, 1991, of respondent Judge George C. Macli-ing
which denied herein petitioners Motion to Dismiss the
complaint filed in Civil Case No. Q-90-6073 by
respondent Homobono Adaza.
The facts are not in dispute.
In a letter-complaint to then Secretary of Justice
Franklin Drilon[1] dated March 20, 1990, General Renato
de Villa,[2] who was then the Chief of Staff of the Armed
Forces of the Philippines, requested the Department of
Justice to order the investigation of several individuals
named therein, including herein private respondent
Homobono Adaza, for their alleged participation in the
failed December 1989 coup detat.The letter-complaint
was based on the affidavit of Brigadier General
Alejandro Galido, Captain Oscarlito Mapalo, Colonel Juan
Mamorno, Colonel Hernani Figueroa and Major Eduardo
Sebastian.
Gen. de Villas letter-complaint with its annexes was
referred for preliminary inquiry to the Special Composite
Team of Prosecutors created pursuant to Department of
Justice Order No. 5 dated January 10, 1990. Petitioner
then Assistant Chief State Prosecutor Aurelio
Trampe,[3] the Team Leader, finding sufficient basis to
continue the inquiry, issued a subpoena to the
individuals named in the letter-complaint, Adaza
included, and assigned the case for preliminary
investigation to a panel of investigators composed of
prosecutors George Arizala, as Chairman, and Ferdinand
Abesamis and Cesar Solis as members. The case was
docketed as I.S. No. DOJ-SC-90-013.
On April 17, 1990, the panel released its findings,
thru a Resolution, which reads:
PREMISES CONSIDERED, we find and so hold that there
is probable cause to hold herein respondents for trial for
the crime of REBELLION WITH MURDER AND
FRUSTRATED MURDER. Hence we respectfully
recommend the filing of the corresponding information
against them in court.[4]
The above Resolution became the basis for the
filing of an Information,[5] dated April 18, 1990, charging
private respondent with the crime of rebellion with
murder and frustrated murder before the Regional Trial
Court of Quezon City, with no recommendation as to
bail.[6]
Feeling aggrieved by the institution of these
proceedings against him, private respondent Adaza filed
a complaint for damages,[7] dated July 11, 1990, before
Branch 100 of the Regional Trial Court of Quezon
City. The complaint was docketed as Civil Case No. Q-
90-6073 entitled, Homobono Adaza, plaintiff
versus Franklin Drilon, et al., respondents. In his
complaint, Adaza charged petitioners with engaging in a
deliberate, willful and malicious experimentation by filing
against him a charge of rebellion complexed with
murder and frustrated murder when petitioners,
according to Adaza, were fully aware of the non-
existence of such crime in the statute books.
On October 15, 1990, petitioners filed a Motion to
Dismiss Adazas complaint on the ground that said
complaint states no actionable wrong constituting a valid
cause of action against petitioners.
On February 8, 1991, public respondent judge
issued an Order[8] denying petitioners Motion to
Dismiss. In the same Order, petitioners were required to
file their answer to the complaint within fifteen (15) days
from receipt of the Order.
Petitioners moved for a reconsideration of the
Order of denial, but the same was likewise denied by
respondent Judge in another Order dated May 14,
1991.[9] The subsequent Order reiterated that petitioners
file their responsive pleading within the prescribed
reglementary period.
Instead of filing their answer as ordered, petitioners
filed on June 5, 1991 a petition for certiorari under Rule
65 before the Court of Appeals, docketed as CA-G.R. No.
25080, alleging grave abuse of discretion on the part of
the respondent Judge in ruling that sufficient cause of
action exists to warrant a full-blown hearing of the case
filed by Adaza and thus denying petitioners Motion to
Dismiss.
In its Resolution promulgated on January 31, 1992,
the appellate court dismissed the petition for lack of
merit and ordered respondent Judge to proceed with the
trial of Civil Case No. Q-90-6073.[10] A Motion for
Reconsideration having been subsequently filed on
February 28, 1992, the court a quo denied the same in a
Resolution dated September 2, 1992.[11]
Hence, this petition, dated October 9, 1992,
pleading this Court to exercise its power of review under
Rule 45 of the Revised Rules of Court.
On January 13, 1993, however, this Court, thru the
Second Division, dismissed the petition for failure to
comply with Revised Circular No. 1-88, particularly the
requirement on the payment of the prescribed docketing
fees.[12]
On March 8, 1993,[13] we reinstated the petition and
required the respondents to comment on the aforesaid
petition. In the same Resolution, a temporary restraining
order was issued by this Court enjoining respondent
Judge from further proceeding with Civil Case No. Q-90-
6073 until further orders from this Court.
The petition has merit.
In his Comment,[14] dated March 23, 1993,
respondent Adaza maintains that his claim before the
trial court was merely a suit for damages based on tort
by reason of petitioners various malfeasance,
misfeasance and nonfeasance in office, as well as for
violation by the petitioners of Section 3 (e) of Republic
Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act. It was not a suit for malicious
prosecution.
Private respondent is taking us for a ride. A cursory
perusal of the complaint filed by Adaza before
respondent Judge George Macli-ing reveals that it is one
for malicious prosecution against the petitioners for the
latters filing of the charge against him of rebellion with
murder and frustrated murder. An examination of the
records would show that this latest posture as to the
nature of his cause of action is only being raised for the
first time on appeal. Nowhere in his complaint filed with
the trial court did respondent Adaza allege that his
action is one based on tort or on Section 3 (e) of
Republic Act No. 3019. Such a change of theory cannot
be allowed. When a party adopts a certain theory in the
court below, he will not be permitted to change his
theory on appeal, for to permit him to do so would not
only be unfair to the other party but it would also be
offensive to the basic rules of fair play, justice and due
process.[15] Any member of the Bar, even if not too
schooled in the art of litigation, would easily discern that
Adazas complaint is no doubt a suit for damages for
malicious prosecution against the herein
petitioners. Unfortunately, however, his complaint filed
with the trial court suffers from a fatal infirmity -- that of
failure to state a cause of action -- and should have
been dismissed right from the start. We shall show why.
The term malicious prosecution has been defined in
various ways. In American jurisdiction, it is defined as:
One begun in malice without probable cause to believe
the charges can be sustained (Eustace v. Dechter, 28
Cal. App. 2d. 706,83 P. 2d. 525). Instituted with
intention of injuring defendant and without probable
cause, and which terminates in favor of the person
prosecuted. For this injury an action on the case lies,
called the action of malicious prosecution (Hicks v.
Brantley, 29 S.E. 459, 102 Ga. 264; Eggett v. Allen, 96
N.W. 803, 119 Wis. 625).[16]
 In Philippine jurisdiction, it has been defined as:
An action for damages brought by one against whom a
criminal prosecution, civil suit, or other legal proceeding
has been instituted maliciously and without probable
cause, after the termination of such prosecution, suit, or
other proceeding in favor of the defendant therein. The
gist of the action is the putting of legal process in force,
regularly, for the mere purpose of vexation or injury
(Cabasaan v. Anota, 14169-R, November 19, 1956).[17]
The statutory basis for a civil action for damages
for malicious prosecution are found in the provisions of
the New Civil Code on Human Relations and on damages
particularly Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217
and 2219 (8).[18] To constitute malicious prosecution,
however, there must be proof that the prosecution was
prompted by a sinister design to vex and humiliate a
person, and that it was initiated deliberately by the
defendant knowing that his charges were false and
groundless. Concededly, the mere act of submitting a
case to the authorities for prosecution does not make
one liable for malicious prosecution.[19] Thus, in order for
a malicious prosecution suit to prosper, the plaintiff must
prove three (3) elements: (1) the fact of the prosecution
and the further fact that the defendant was himself the
prosecutor and that the action finally terminated with an
acquittal; (2) that in bringing the action, the prosecutor
acted without probable cause; and (3) that the
prosecutor was actuated or impelled by legal malice,
that is by improper or sinister motive.[20] All these
requisites must concur.
Judging from the face of the complaint itself filed
by Adaza against the herein petitioners, none of the
foregoing requisites have been alleged therein, thus
rendering the complaint dismissible on the ground of
failure to state a cause of action under Section 1 (g),
Rule 16 of the Revised Rules of Court.
There is nothing in the records which shows, and
the complaint does not allege, that Criminal Case No. Q-
90-11855, filed by the petitioners against respondent
Adaza for Rebellion with Murder and Frustrated Murder,
has been finally terminated and therein accused
Adaza acquitted of the charge. Not even Adaza himself,
thru counsel, makes any positive asseveration on this
aspect that would establish his acquittal. Insofar as
Criminal Case No. Q-90-11855 is concerned, what
appears clear from the records only is that respondent
has been discharged on a writ of habeas corpus and
granted bail.[21] This is not, however, considered the
termination of the action contemplated under Philippine
jurisdiction to warrant the institution of a malicious
prosecution suit against those responsible for the filing
of the informaion against him.
The complaint likewise does not make any
allegation that the prosecution acted without probable
cause in filing the criminal information dated April 18,
1990 for rebellion with murder and frustrated
murder. Elementarily defined, probable cause is the
existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted. It is well-settled that one cannot be held
liable for maliciously instituting a prosecution where one
has acted with probable cause. Elsewise stated, a suit
for malicious prosecution will lie only in cases where a
legal prosecution has been carried on without probable
cause. The reason for this rule is that it would be a very
great discouragement to public justice, if prosecutors,
who had tolerable ground of suspicion, were liable to be
sued at law when their indictment miscarried.[22]
In the case under consideration, the decision of the
Special Team of Prosecutors to file the information for
rebellion with murder and frustrated murder against
respondent Adaza, among others, cannot be dismissed
as the mere product of whim or caprice on the part of
the prosecutors who conducted the preliminary
investigation. Said decision was fully justified in an
eighteen (18)-page Resolution dated April 17,
1990.[23] While it is true that the petitioners were fully
aware of the prevailing jurisprudence enunciated
in People v. Hernandez,[24] which proscribes the
complexing of murder and other common crimes with
rebellion, petitioners were of the honest conviction that
the Hernandez Case can be differentiated from the
present case. The petitioners thus argued:
Of course we are aware of the ruling in People vs.
Hernandez, 99 Phil. 515, which held that common
crimes like murder, arson, etc. are absorbed by
rebellion. However, the Hernandez case is different from
the present case before us. In the Hernandez case, the
common crimes of murder, arson, etc. were found by
the fiscal to have been committed as a necessary means
to commit rebellion, or in furtherance thereof. Thus, the
fiscal filed an information for rebellion alleging those
common crimes as a necessary means of committing the
offense charged under the second part of Article 48,
RPC.
We, however, find no occasion to apply the Hernandez
ruling since as intimated above, the crimes of murder
and frustrated murder in this case were absolutely
unnecessary to commit rebellion although they were the
natural consequences of the unlawful bombing. Hence,
the applicable provision is the first part of Article 48 of
the RPC.[25]
While the Supreme Court in the case of
Enrile v. Salazar,[26] addressing the issue of whether or
not the Hernandez doctrine is still good law, in a 10-3
vote, did not sustain the position espoused by the herein
petitioners on the matter, three justices[27] felt the need
to re-study the Hernandez ruling in light of present-day
developments, among whom was then Chief Justice
Marcelo Fernan who wrote a dissenting opinion in this
wise:
I am constrained to write this separate opinion on what
seems to be a rigid adherence to the 1956 ruling of the
Court. The numerous challenges to the doctrine
enunciated in the case of People vs. Hernandez, 99 Phil.
515 (1956), should at once demonstrate the need to
redefine the applicability of said doctrine so as to make
it conformable with accepted and well-settled principles
of criminal law and jurisprudence.
To my mind, the Hernandez doctrine should not be
interpreted as an all-embracing authority for the rule
that all common crimes committed on the occasion, or in
furtherance of, or in connection with, rebellion are
absorbed by the latter. To that extent, I cannot go along
with the view of the majority in the instant case that
Hernandez remains binding doctrine operating to
prohibit the complexing of rebellion with any other
offense committed on the occasion thereof, either as a
means necessary to its commission or as an unintended
effect of an activity that constitutes rebellion (p. 9,
Decision).
The Hernandez doctrine has served the purpose for
which it was applied by the Court in 1956 during the
communist-inspired rebellion of the Huks. The changes
in our society in the span of 34 years since then have
far-reaching effects on the all-embracing applicability of
the doctrine considering the emergence of alternative
modes of seizing the powers of the duly-constituted
Government not contemplated in Articles 134 and 135 of
the Revised Penal Code and their consequent effects on
the lives of our people. The doctrine was good law then,
but I believe that there is a certain aspect of the
Hernandez doctrine that needs clarification.[28]
Apparently, not even the Supreme Court then was
of one mind in debunking the theory being advanced by
the petitioners in this case, some of whom were also the
petitioners in the Enrile case. Nevertheless, we held
in Enrile that the Information filed therein properly
charged an offense -- that of simple rebellion --[29] and
thereupon ordered the remand of the case to the trial
court for the prosecution of the named accused [30] in the
Information therein. Following this lead, the Information
against Adaza in Criminmal Case No. Q-90-11855 was
not quashed, but was instead treated likewise as
charging the crime of simple rebellion.
A doubtful or difficult question of law may become
the basis of good faith and, in this regard, the law
always accords to public officials the presumption of
good faith and regularity in the performance of official
duties.[31] Any person who seeks to establish otherwise
has the burden of proving bad faith or ill-motive. Here,
since the petitioners were of the honest conviction that
there was probable cause to hold respondent Adaza for
trial for the crime of rebellion with murder and frustrated
murder, and since Adaza himself, through counsel, did
not allege in his complaint lack of probable cause, we
find that the petitioners cannot be held liable for
malicious prosecution. Needless to say, probable cause
was not wanting in the institution of Criminal Case No.
Q-90-11855 against Adaza.
As to the requirement that the prosecutor must be
impelled by malice in bringing the unfounded action,
suffice it to state that the presence of probable cause
signifies, as a legal consequence, the absence of
malice.[32] At the risk of being repetitious, it is evident in
this case that petitioners were not motivated by
malicious intent or by a sinister design to unduly harass
private respondent, but only by a well-founded belief
that respondent Adaza can be held for trial for the crime
alleged in the information.
All told, the complaint, dated July 11, 1990, filed by
Adaza before Branch 100 of the Regional Trial Court
against the petitioners does not allege facts sufficient to
constitute a cause of action for malicious
prosecution. Lack of cause of action, as a ground for a
motion to dismiss under Section 1 (g), Rule 16 of the
Revised Rules of Court, must appear on the face of the
complaint itself, meaning that it must be determined
from the allegations of the complaint and from none
other.[33] The infirmity of the complaint in this regard is
only too obvious to have escaped respondent judges
attention. Paragraph 14 of the complaint which states:
xxxxxxxxx
14. The malicious prosecution, nay persecution, of
plaintiff for a non-existent crime had severely injured
and besmirched plaintiffs name and reputation and
forever stigmatized his stature as a public figure,
thereby causing him extreme physical suffering, serious
anxiety, mental anguish, moral shock and social
humiliation.[34]
is a mere conclusion of law and is not an averment or
allegation of ultimate facts. It does not, therefore, aid in
any wise the complaint in setting forth a valid cause of
action against the petitioners.
It is worthy to note that this case was elevated to
the public respondent Court of Appeals and now to this
Court because of respondent Judge Macli-ings denial of
petitioners motion to dismiss the Adaza complaint. The
ordinary procedure, as a general rule, is that petitioners
should have filed an answer, go to trial, and if the
decision is adverse, reiterate the issue on appeal.[35] This
general rule, however, is subject to certain exceptions,
among which are, if the court denying the motion to
dismiss acts without or in excess of jurisdiction or with
grave abuse of discretion, in which case certiorari under
Rule 65 may be availed of. The reason is that it would
be unfair to require the defendants (petitioners in this
case) to undergo the ordeal and expense of trial under
such circumstances, because the remedy of appeal then
would then not be plain and adequate.[36] Judge Macli-
ing committed grave abuse of discretion in denying
petitioners motion to dismiss the Adaza complaint, and
thus public respondent Court of Appeals should have
issued the writ of certiorari prayed for by the petitioners
and annulled the February 8, 1991 and May 14, 1991
Orders of respondent Judge. It was grievous error on
the part of the court a quo not to have done so. This
has to be corrected. Respondent Adazas baseless action
cannot be sustained for this would unjustly compel the
petitioners to needlessly go through a protracted trial
and thereby unduly burden the court with one more
futile and inconsequential case.
WHEREFORE, the petition is GRANTED. The
Resolutions of respondent Court of Appeals dated
January 31, 1992 and September 2, 1992 affirming the
February 8, 1991 and May 14, 1991 Orders of
respondent Judge George C. Macli-ing are all hereby
NULLIFIED AND SET ASIDE. Respondent Judge
is DIRECTED to take no further action on Civil Case No.
Q-90-6073 except to DISMISS the same. SO
ORDERED.
(c) PUBLIC HUMILIATION
G.R. No. L-51832 April 26, 1989
RAFAEL PATRICIO, petitioner, vs. THE HONORABLE
OSCAR LEVISTE, JUDGE, CFI CAPIZ, BRANCH II
and BIENVENIDO BACALOCOS, respondents.
Petition for review on certiorari of the Order 1 of the
Court of First Instance of Capiz, Branch II, on the
motion for reconsideration flied by private respondent
Bienvenido Bacalocos, dismissing the complaint for
damages against the latter, docketed as Civil Case No.
V-3937.
Petitioner Rafael Patricio, an ordained Catholic priest,
and actively engaged in social and civic affairs in Pilar,
Capiz, where he is residing, was appointed Director
General of the 1976 Religious and Municipal Town Fiesta
of Pilar, Capiz.
On 16 May 1976 at about 10:00 o'clock in the evening,
while a benefit dance was on-going in connection with
the celebration of the town fiesta, petitioner together
with two (2) policemen were posted near the gate of the
public auditorium to check on the assigned watchers of
the gate. Private respondent Bienvenido Bacalocos,
President of the Association of Barangay Captains of
Pilar, Capiz and a member of the Sangguniang Bayan,
who was in a state of drunkenness and standing near
the same gate together with his companions, struck a
bottle of beer on the table causing an injury on his hand
which started to bleed. Then, he approached petitioner
in a hostile manner and asked the latter if he had seen
his wounded hand, and before petitioner could respond,
private respondent, without provocation, hit petitioner's
face with his bloodied hand. As a consequence, a
commotion ensued and private respondent was brought
by the policemen to the municipal building. 2
As a result of the incident, a criminal complaint for
"Slander by Deed was flied by petitioner with the
Municipal Trial Court of Pilar, Capiz, docketed as Criminal
Case No. 2228, but the same was
dismissed. 3 Subsequently, a complaint for damages
was filed by petitioner with the court a quo. In a
decision 4 dated 18 April 1978, the court ruled in favor
of herein petitioner (as complainant), holding private
respondent liable to the former for moral damages as a
result of the physical suffering, moral shock and social
humiliation caused by private respondent's act of hitting
petitioner on the face in public. The dispositive part of
the decision reads as follows:
WHEREFORE, the Court orders defendant to pay plaintiff the damages
as follows:
a) Moral damages of P10,000.00
b) Exemplary damages, P1,000.00 and
c) Attorney's fees, P2,000.00.
SO ORDERED.
On 9 June 1978, petitioner filed a motion for execution
of judgment, alleging that the 18 April 1978 decision had
become final and executory after the lapse of thirty (30)
days from receipt thereof by private respondent, without
any motion for reconsideration or appeal having been
filed. 6 However, said motion was denied by the court a
quo on the ground that there was a pending motion for
reconsideration filed by private
respondent. 7 Subsequently, private respondent filed a
supplemental motion for reconsideration 8 and the court
ordered petitioner to file a reply (opposition)
thereto. 9 In compliance, petitioner flied a reply
(opposition) to the motion for reconsideration, alleging
that the filing of said motion and supplement thereto
was without notice to the adverse party and proof of
service, hence, the decision sought to be reconsidered
had already become final and unappealable. 10
Private respondent filed a rejoinder (reply) and a
manifestation stating that petitioner was duly served
with a copy of said motion for reconsideration
by ordinary mail, attaching thereto the affidavit of
Godofredo Almazol who stated that he mailed the
envelope to counsel for herein petitioner. 11 The court a
quo then scheduled the motion for oral argument and
the parties were allowed to extensively argue their
respective causes.
On 3 August 1979, an order 12 of dismissal of the
petitioner's complaint was issued by the trial court, thus
—
ORDER
This is a motion for reconsideration of the decision of
this Court dated April 18, 1978, filed by counsel for
defendant on May 18, 1978.
In view of the recent trend in the Supreme Court to
liberally construe the Rules, and in view of Section 2,
Rule 1, the Court resolves to give due course to the
motion.
Upon review of the facts of the case, it appears and the
Court finds merit in the motion for reconsideration,
particularly noting that there is indeed no showing of
compensatory damages being proved.
WHEREFORE, tills Court reconsiders its decision to
conform to the facts and the law, namely, that moral
and exemplary damages, in order to merit, the plaintiff
ought to have proven actual or compensatory damages.
WHEREFORE, this case is ordered dismissed.
SO ORDERED.
Not satisfied with said order, petitioner filed the petition
at bar contending that no copy of the Motion for
consideration was served upon petitioner and no proof
of service as well as notice of hearing were attached to
said motion when filed with the court a quo; thus, the
motion for reconsideration did not interrupt the running
of the period to appeal. The alleged mailing of a copy of
said motion by ordinary mail did not, according to
petitioner, cure the defect. Petitioner further argues that
respondent's admission that he slapped herein petitioner
in public causing him physical suffering and social
humiliation, entitles the latter to moral damages. Actual
and compensatory damages need not be proven before
an award of moral damages can be granted, so
petitioner contends.
On the other hand, private respondent claims that the
order of the court a quo apprising petitioner of the
motion for reconsideration filed by private respondent
and requiring the former to file a reply (opposition)
thereto, had cured the defect of lack of proof of service
and notice of hearing of said motion for reconsideration;
and that the award of moral damages to petitioner is
without basis for lack of proof of bad faith on the part of
private respondent.
With respect to the alleged lack of service on petitioner
of a copy of the motion and notice of hearing and failure
to attach to the motion proof of service thereof, the
general rule is that notice of motion is required where a
party has a right to resist the relief sought by the motion
and principles of natural justice demand that his rights
be not affected without an opportunity to be heard. 13
In the case at bar, a copy of the motion for
reconsideration was served upon petitioner, although
service was effected through ordinary mail and not by
registered mail as reqired by the rules. But, petitioner
was duly given the full opportunity to be heard and to
argue his case when the court a quo required him to file
a reply (opposition) to the motion for reconsideration
and subsequently set the motion for oral argument.
What the law really eschews is not the lack of previous
notice of hearing but the lack of opportunity to be
heard. It has been held that parties should not rely on
mere technicalities which, in the interest of justice, may
be relaxed. 14The rifles of procedure should be viewed
as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than
promote substantial justice, must be
avoided. 15 Moreover, the case should, as much as
possible, be decided on the merits and not merely on
technicalities.
As to the petitioner's claim for moral damages, we find
the same to be meritorious. There is no question that
moral damages may be recovered in cases where a
defendant's wrongful act or omission has caused the
complainant physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation and similar
injury. 16 An award of moral damages is allowed in
cases specified or analogous to those provided in Article
2219 of the Civil Code, to wit:
ART. 2219. Moral damages may be recovered in the
following and analogous cases
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts.
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27,
28, 29, 30, 32, 34, and 35.
xxx xxx xxx
Private respondent's contention that there was no bad
faith on his part in slapping petitioner on the face and
that the incident was merely accidental is not tenable. It
was established before the court a quo that there was
an existing feud between the families of both petitioner
and private respondent and that private respondent
slapped the petitioner without provocation in the
presence of several persons.
The act of private respondent in hitting petitioner on the
face is contrary to morals and good customs and caused
the petitioner mental anguish, moral shock, wounded
feelings and social humiliation. Private respondent has to
take full responsibility for his act and his claim that he
was unaware of what he had done to petitioner because
of drunkenness is definitely no excuse and does not
relieve him of his liability to the latter.
Pursuant to Art. 21 of the Civil Code in relation to par.
(10) of Art. 2219 of the same Code, "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."
The fact that no actual or compensatory damage was
proven before the trial court, does not adversely affect
petitioner's right to recover moral damages. Moral
damages may be awarded in appropriate cases referred
to in the chapter on human relations of the Civil Code
(Articles 19 to 36), without need of proof that the
wrongful act complained of had caused any physical
injury upon the complainant. 17 It is clear from the
report of the Code Commission that the reason
underlying an award of damages under Art. 21 of the
Civil Code is to compensate the injured party for
the moral injury caused upon his person, thus —
... . Fully sensible that there are countless gaps in the
statutes, which leave so many victims of moral wrongs
helpless, even though they have actually suffered
material and moral injury, the Commission has deemed
it necessary, in the interest of justice, to incorporate in
the proposed Civil Code the following rule:
ART. 23. 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.
xxx xxx xxx 18
In addition to the award of moral damages, exemplary
or corrective damages may be imposed upon herein
private respondent by way of example or correction for
the public good. 19 Exemplary damages are required by
public policy to suppress the wanton acts of the
offender. They are an antidote so that the poison of
wickedness may not run through the body
politic. 20 The amount of exemplary damages need not
be proved where it is shown that plaintiff is entitled to
either moral, temperate or compensatory damages, as
the case may be, 21 although such award cannot be
recovered as a matter of right. 22
In cases where exemplary damages are awarded to the
injured party, attorney's fees are also recoverable. 23
WHEREFORE, the petition is GRANTED. The order
appealed from, dated 3 August 1979, is REVERSED and
the decision of the court a quo dated 18 April 1978 is
hereby REINSTATED. With costs against private
respondent. SO ORDERED.
G.R. No. L-48250 December 28, 1979
GRAND UNION SUPERMARKET, INC. and NELIA
SANTOS FANDINO, petitioners, vs. JOSE J. ESPINO
JR., and THE HONORABLE COURT OF
APPEALS, respondents.
This is a petition tor certiorari by way of appeal from the
decision of the Court of Appeals 1 dated September 26,
1977 rendered in CA-G.R. No. 55186-R entitled "Jose J.
Espino, Jr., plaintiff-appellant. versus Grand Union
Supermarket, Inc. and Nelia Santos-
Fandino, defendants-appellees," the dispositive portion
of which states;
WHEREFORE, the appealed judgment is hereby reversed and
set aside. Defendants are ordered to pay plaintiff-jointly and
severally, the sum of Seventy-Five Thousand Pesos
(P75,000.00) by way of moral damages. Twenty-Five
Thousand Pesos (P25,000.00) as exemplary damages, and
Five Thousand Pesos (P5,000.00) as attorney's fee, Costs of
both instances shall be taxed against the defendant
defendants.
The facts of the case are as stated in the decision of the
respondent court to wit:
"Upon the evidence, and from the findings of the lower
court, it appears that in the morning of August 22, 1970,
plaintiff Jose J. Espino. Jr., a civil engineer and an
executive of Procter and Gamble Philippines, Inc., and
his wife and their two daughters went to shop at the
defendants' South Supermarket in Makati. While his wife
was shopping at the groceries section, plaintiff browsed
around the other parts of the market. Finding a
cylindrical "rat tail" file which he needed in his hobby
and had been wanting to buy, plaintiff picked up that
item from one of the shelves. He held it in his hand
thinking that it might be lost, because of its tiny size, if
he put it in his wife's grocery cart. In the course of their
shopping, plaintiff and his wife saw the maid of plaintiff's
aunt. While talking to this maid, plaintiff stuck the file
into the front breast pocket of his shirt with a good part
of the merchandise exposed.
"At the check-out counter, the plaintiff paid for his wife's
purchases which amounted to P77.00, but he forgot to
pay for the file. As he was leaving by the exit of the
supermarket on his way to his car, carrying two bags of
groceries and accompanied by his wife and two
daughter, plaintiff was approached by a uniformed
guard of the supermarket who said: "Excuse me, Mr., I
think you have something in your pocket which you have
not paid for." (p. 5, tsn, Aug. 13, 1971), pointing to his
left front breast pocket. Suddenly reminded of the file,
plaintiff apologized thus: "I am sorry," and he turned
back toward the cashier to pay for the file. But the
guard stopped him and led him instead toward the rear
of the supermarket. The plaintiff protested but the guard
was firm saying: "No, Mr., please come with me. It is
the procedure of the supermarket to bring people that
we apprehend to the back of the supermarket" (p. 8,
Ibid). The time was between 9 and 10 o'clock. A crowd
of customers on their way into the supermarket saw the
plaintiff being stopped and led by a uniformed guard
toward the rear of the supermarket. Plaintiff acquiesced
and signaled to his wife and daughters to wait.
"Into a cubicle which was immediately adjacent to the
area where deliveries to the supermarket were being
made, the plaintiff was ushered. The guard directed him
to a table and gave the file to the man seated at the
desk. Another man stood beside the plaintiff. The man
at the desk looked at the plaintiff and the latter
immediately explained the circumstances that led to the
finding of the file in his possession. The man at the desk
pulled out a sheet of paper and began to ask plaintiff's
name, age, residence and other personal data. Plaintiff
was asked to make a brief statement, and on the sheet
of paper or "Incident Report" he wrote down the
following: "While talking to my aunt's maid with my wife,
I put this item in my shirt pocket. I forgot to check it out
with my wife's items" (Exhibit A). Meanwhile, the
plaintiff's wife joined him and asked what had taken him
so long.
"The guard who had accosted plaintiff took him back
inside the supermarket in the company of his wife.
Plaintiff and his wife were directed across the main
entrance to the shopping area, down the line of check-
out counters, to a desk beside the first checkout
counter. To the woman seated at the desk, who turned
out to be defendant Nelia Santos-Fandino, the guard
presented the incident report and the file, Exhibit B.
Defendant Fandino read the report and addressing the
guard remarked: "Ano, nakaw na naman ito" (p. 22,
Id.). Plaintiff explained and narrated the incident that led
to the finding of the file in his pocket, telling Fandino
that he was going to pay for the file because he needed
it. But this defendant replied: "That is all they say, the
people whom we cause not paying for the goods say...
They all intended to pay for the things that are found to
them." (p. 23, Id). Plaintiff objected and said that he
was a regular customer of the supermarket.
"Extracting a P5.00 bill from his pocket, plaintiff told
Fandino that he was paying for the file whose cost was
P3.85. Fandino reached over and took the P5.00 bill
from plaintiff with these words: "We are fining you
P5.00. That is your the fine." Plaintiff was shocked. He
and his wife objected vigorously that he was not a
common criminal, and they wanted to get back the
P5.00. But Fandino told them that the money would be
given as an incentive to the guards who apprehend
pilferers. People were milling around them and staring at
the plaintiff. Plaintiff gave up the discussion. He drew a
P50.00 bill and took back the file. Fandino directed him
to the nearest check-out counter where he had to fall in
line. The people who heard the exchange of words
between Fandino and plaintiff continued to stare at him.
At the trial, plaintiff expressed his embarrassment and
humiliation thus: " I felt as though I wanted to
disappear into a hole on the ground" (p. 34, Id.). After
paying for the file, plaintiff and his wife walked as fast
as they could out of the supermarket. His first impulse
was to go back to the supermarket that night to throw
rocks at its glass windows. But reason prevailed over
passion and he thought that justice should take its due
course.
"Plaintiff was certain during the trial that when he signed
the incident report, Exhibit A, inside the cubicle at the
back of the supermarket only his brief statement of the
facts (Exhibit A-2), aside from his name and personal
circumstances, was written thereon. He swore that the
following were not in the incident report at, the time he
signed it:
Exhibit A-I which says opposite the stenciled
word SUBJECT "Shoplifting"
Exhibit A-3 which says opposite the stenciled
words Action Taken: Released by Mrs. Fandino
after paying the item.
Exhibit A-4 which says opposite the stenciled
words Remarks Noted: "Grd. Ebreo requested
Grd. Paunil to apprehend subject shoplifter.
Private respondent's complaint filed on October 8, 1970
is founded on Article 21 in relation to Article 2219 of the
New Civil Code and prays for moral damages, exemplary
damages, attorney s fees and 'expenses of litigation,
costs of the suit and the return of the P5.00 fine. After
trial, the Court of First Instance of Pasig, Rizal, Branch
XIX dismissed the complaint, Interposing the appeal to
the Court of Appeals, the latter reversed and set aside
the appealed judgment, granting and damages as earlier
stated.
Not satisfied with the decision of the respondent court,
petitioners instituted the present petition and submits
the following grounds and/or assignment of errors, to
wit:
I. Respondent Court of Appeals erred in awarding
moral and exemplary damages to the respondent
Espino under Articles 19 and 21 in relation to
Article 2219 of the Civil Code, considering that —
A. Respondent Espino was guilty of theft;
 B. Petitioners legitimately exercised their right of
defense of property within the context of Article
429 of the Civil Code negating the application of
Articles 19 and 21 of the same Code;
C. Petitioners acted upon probable cause in
stopping and investigating respondent Espino
for shoplifting and as held in various decisions in
the United States on shoplifting, a merchant
who acts upon probable cause should not be
held liable in damages by the suspected
shoplifter;
D. Petitioners did not exercise their right
maliciously, wilfully or in bad faith; and/or
E. The proximate cause of respondent Espino's
alleged injury or suffering was his own
negligence or forgetfulness; petitioners acted in
good faith.
II. Assuming arguendo that petitioners are hable for
moral and exemplary damages, the award of
P75,000.00 for moral damages and P25,000.00 for
exemplary damages by the respondent Court of
Appeals is not legally justified and/or is grossly
excessive in the premises.
III. The award of P5,000.00 for attorney's fees
by the respondent Court of Appeals is
unjustified and unwarranted under Article
2199 of the Civil Code.
We agree with the holding of the respondent appellate
court that "the evidence sustains the court's finding that
the plaintiff had absolutely no intention to steal the file."
The totality of the facts and circumstances as found by
the Court of Appeals unerringly points to the conclusion
that private respondent did not intend to steal the file
and that is act of picking up the file from the open shelf
was not criminal nor done with malice or criminal intent
for on the contrary, he took the item with the intention
of buying and paying for it.
This Court needs only to stress the following undisputed
facts which strongly and convincingly uphold the
conclusion that private respondent was not "shoplifting."
Thus, the facts that private respondent after picking the
cylindrical "rat-tail" file costing P3.85 had placed it inside
his left front breast pocket with a good portion of the
item exposed to view and that he did not conceal it in
his person or hid it from sight as well as the fact that he
paid the purchases of his wife amounting to P77.00 at
the checkout counter of the Supermarket, owed that he
was not acting suspiciously or furtively. And the
circumstance that he was with his family consisting of
his wife Mrs. Caridad Jayme Espino, and their two
daughters at the time negated any criminal intent on his
part to steal. Moreover, when private respondent was
approached by the guard of the Supermarket as he was
leaving by the exit to his car who told him, "Excuse me,
Mr., I think you have something in your pocket which
you have not paid for," Espino, immediately apologized
and answered, "I am sorry," which indicated his sincere
apology or regrets. He turned back towards the cashier
to pay for the file which proved his honesty sincerity and
good faith in buying the item, and not to shoplift the
same. His brief statement on the sheet of paper called
the Incident Report where private respondent wrote the
following: "While talking to my aunt's maid with my wife,
I put this item in in my shirt pocket. I forgot to check it
out with my wife's item," was an instant and
contemporaneous explanation of the incident.
Considering further the personal circumstances of the
private respondent. his education, position and character
showing that he is a graduate Mechanical Engineer from
U.P. Class 1950, employed as an executive of Proctor &
Gamble Phils., Inc., a corporate manager incharge of
motoring and warehousing therein; honorably
discharged from the Philippine Army in 1946; a
Philippine government pensionado of the United States
for six months; member of the Philippine veterans
Legion; author of articles published in the Manila Sunday
Times and Philippines Free Press; member of the
Knights of Columbus, Council No. 3713; son of the late
Jose Maria Espino, retired Minister, Department of
Foreign Affairs at the Philippine Embassy Washington,
We are fully convinced, as the trial and appellate courts
were, that private respondent did not intend to steal the
article costing P3.85. Nothing in the records intimates or
hints whatsoever that private respondent has had any
police record of any sort much less suspicion of stealing
or shoplifting.
We do not lay down here any hard-and-fast rule as to
what act or combination of acts constitute the crime of
shoplifting for it must be stressed that each case must
be considered and adjudged on a case-to-case basis and
that in the determination of whether a person suspected
of shoplifting has in truth and in fact committed the
same, all the attendant facts and circumstances should
be considered in their entirety and not from any single
fact or circumstance from which to impute the stigma of
shoplifting on any person suspected and apprehended
therefor.
We likewise concur with the Court of Appeals that
"(u)pon the facts and under the law, plaintiff has clearly
made the cause of action for damages against the
defendants. Defendants wilfully caused loss or injury to
plaintiff in a manner that was contrary to morals, good
customs or public policy, making them amenable to
damages under Articles 19 and 21 in relation to Article
2219 of the Civil Code." 2
That private respondent was falsely accused of
shoplifting is evident. The Incident Report (Exhibit A)
with the entries thereon under Exhibit A-1 which says
opposite the stenciled word SUBJECT: "Shoplifting,"
Exhibit A-3 which says opposite the stenciled words
Action Taken: Relesed by Mrs. Fandino after paying the
item," Exhibit A-4 which says opposite the stenciled
words Remarks Noted: Grd. Ebreo requested Grd. Paunil
to apprehend subject shoplifter," established the
opinion, judgment or thinking of the management of
petitioner's supermarket upon private respondent's act
of picking up the file. ln plain words, private respondent
was regarded and pronounced a shoplifter and had
committed "shoplifting."
We also affirm the Court of Appeals' finding that
petitioner Nelia Santos Fandino, after reading the
incident report, remarked the following: "Ano, nakaw na
naman ito". Such a remark made in the presence of
private respondent and with reference to the incident
report with its entries, was offensive to private
respondent's dignity and defamatory to his character
and honesty. When Espino explained that he was going
to pay the file but simply forgot to do so, Fandino
doubted the explanation. saying: "That is all what they
say, the people whom we caught not paying for the
goods say... they all intended to pay for the things that
are found to them." Private respondent objected and
said that he was a regular customer of the Supermarket.
The admission of Fandino that she required private
respondent to pay a fine of P5.00 and did in fact take
the P5.00 bill of private respondent tendered by the
latter to pay for the file, as a fine which would be given
as an incentive to the guards who apprehend pilferers
clearly proved that Fandino branded private respondent
as a thief which was not right nor justified.
The testimony of the guard that management instructed
them to bring the suspected customers to the public
area for the people to see those kind of customers in
order that they may be embarassed (p. 26, tsn, Sept.
30, 1971); that management wanted "the customers to
be embarrassed in public so that they will not repeat the
stealing again" (p. 2, tsn, Dec. 10, 1971); that the
management asked the guards "to bring these
customers to different cashiers in order that they will
know that they are pilferers" (p. 2, Ibid.) may indicate
the manner or pattern whereby a confirmed or self-
confessed shoplifter is treated by the Supermarket
management but in the case at bar, there is no showing
that such procedure was taken in the case of the private
respondent who denied strongly and vehemently the
charge of shoplifting.
Nonetheless, the false accusation charged against the
private respondent after detaining and interrogating him
by the uniformed guards and the mode and manner in
which he was subjected, shouting at him, imposing upon
him a fine, threatening to call the police and in the
presence and hearing of many people at the
Supermarket which brought and caused him humiliation
and embarrassment, sufficiently rendered the petitioners
liable for damages under Articles 19 and 21 in relation to
Article 2219 of the Civil Code. We rule that under the
facts of the case at bar, petitioners wilfully caused loss
or injury to private respondent in a manner that was
contrary to morals, good customs or public policy. It is
against morals, good customs and public policy to
humiliate, embarrass and degrade the dignity of a
person. Everyone must respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons (Article 26, Civil Code). And one must act with
justice, give everyone his due and observe honesty and
good faith (Article 19, Civil Code).
Private respondent is entitled to damages but We hold
that the award of Seventy-Five Thousand Pesos
(P75,000.00) for moral damages and Twenty-Five
Thousand Pesos (P25,000.00, for exemplary damages is
unconscionable and excessive.
While no proof of pecuniary loss is necessary in order
that moral, nominal, temperate, liquidated or exemplary
damages may be adjudicated, the assessment of such
damages, except liquidated ones, is left to the discretion
of the court, according to the circumstances of each
case (Art. 2216, New Civil Code). In the case at bar,
there is no question that the whole incident that befell
respondent had arisen in such a manner that was
created unwittingly by his own act of forgetting to pay
for the file. It was his forgetfullness in checking out the
item and paying for it that started the chain of events
which led to his embarassment and humiliation thereby
causing him mental anguish, wounded feelings and
serious anxiety. Yet, private respondent's act of omission
contributed to the occurrence of his injury or loss and
such contributory negligence is a factor which may
reduce the damages that private respondent may
recover (Art. 2214, New Civil Code). Moreover, that
many people were present and they saw and heard the
ensuing interrogation and altercation appears to be
simply a matter of coincidence in a supermarket which is
a public place and the crowd of onlookers, hearers or
bystanders was not deliberately sought or called by
management to witness private respondent's
predicament. We do not believe that private respondent
was intentionally paraded in order to humiliate or
embarrass him because petitioner's business depended
for its success and patronage the good will of the buying
public which can only be preserved and promoted by
good public relations.
As succinctly expressed by Mr. Justice J. B. L. Reyes in
his concurring and dissenting opinion in Pangasinan
Transportation Company, Inc, vs. Legaspi, 12 SCRA 598,
the purpose of moral damages is essentially indemnity
or reparation, both punishment or correction. Moral
damages are emphatically not intended to enrich a
complainant at the expense of a defendant; they are
awarded only to enable the injured party to obtain
means, diversion or amusements that will serve to
alleviate the moral suffering he has undergone, by
reason of the defendant's culpable action. In other
words, the award of moral damages is aimed at a
restoration, within the limits of the possible, of the
spiritual status quo ante and, it must be proportionate to
the suffering inflicted.
In Our considered estimation and assessment, moral
damages in the amount of Five Thousand Pesos
(P5,000.00) is reasonable and just to award to private
respondent.
The grant of Twenty-Five Thousand Pesos (P25,000.00)
as exemplary damages is unjustified. Exemplary or
corrective damages are imposed by way of example or
correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages (Art.
2229, New Civil Code). Exemplary damages cannot be
recovered as a matter of right; the court will decide
whether or not they could be adjudicated (Art. 2223,
New Civil Code). Considering that exemplary damages
are awarded for wanton acts, that they are penal in
character granted not by way of compensation but as a
punishment to the offender and as a warning to others
as a sort of deterrent, We hold that the facts and
circumstances of the case at bar do not warrant the
grant of exemplary damages.
Petitioners acted in good faith in trying to protect and
recover their property, a right which the law accords to
them. Under Article 429, New Civil Code, the owner or
lawful possessor of a thing has a right to exclude any
person from the enjoyment and disposal thereof and for
this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of
his property. And since a person who acts in the
fulfillment of a duty or in the lawful exercise of a right or
office exempts him from civil or criminal liability,
petitioner may not be punished by imposing exemplary
damages against him. We agree that petitioners acted
upon probable cause in stopping and investigating
private respondent for taking the file without paying for
it, hence, the imposition of exemplary damages as a
warning to others by way of a deterrent is without legal
basis. We, therefore, eliminate the grant of exemplary
damages to the private respondent.
In the light of the reduction of the damages, We hereby
likewise reduce the original award of Five Thousand
Pesos (P5,000.00) as attorney's fees to Two Thousand
Pesos (P2,000.00).
WHEREFORE, IN VIEW OF THE FOREGOING, the
judgment of the Court of Appeals is hereby modified.
Petitioners are hereby ordered to pay, jointly and
severally, to private respondent moral damages in the
sum of Five Thousand Pesos (P5,000.00) and the
amount of Two Thousand Pesos (P2,000.00) as and for
attorney's fees; and further, to return the P5.00 fine to
private respondent. No costs. SO ORDERED.
OTHER TORTS
A. DERELICTION OF DUTY
 ART. 27 NCC
G.R. No. L-14986 July 31, 1962
CORNELIO AMARO and JOSE AMARO, plaintiffs-
appellants, vs. AMBROSIO SUMANGUIT, defendant-
appellee.
Appellants filed suit for damages in the Court of First
Instance of Negros Occidental against the chief of police
of the City of Silay. Although not specifically alleged in
the complaint, it is admitted by both parties, as shown in
their respective briefs, that the action is predicated on
Articles 21 and/or 27 of the Civil Code, which provide:
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.
ART. 27. Any person suffering material or moral
loss because a public servant or employee
refuses or neglects, without just cause, to
perform his official duty may file an action for
damages and other relief against the latter,
without prejudice to any disciplinary
administrative action that may be taken.
The complaint was dismissed upon appellee's motion in
the court below on the ground that it does not state
facts sufficient to constitute a cause of action. The only
question now before us refers to correctness of the
order dismissal.
The pertinent allegations in the complaint are that on
October 5, 1958 appellant Jose Amaro was assaulted
and shot at near the city government building of Silay;
that the following day he, together with his father
(Cornelio Amaro) and his witnesses, "went to the office
of the defendant but instead of obtaining assistance to
their complaint they were harassed and terrorized;" that
in view thereof they "gave up and renounced their right
and interest in the prosecution of the crime . . . .;" that
upon advice of the City Mayor given to appellee an
investigation (of said crime) was conducted and as a
result the city attorney of Silay was about to file or had
already filed an information for illegal discharge of
firearm against the assailant; and that "having finished
the investigation of the crime complained of, the
defendant chief of police is now harassing the plaintiffs
in their daily work, ordering them thru his police to
appear in his office when he is absent, and he is about
to order the arrest of the plaintiffs to take their
signatures in prepared affidavits exempting the police
from any dereliction of duty in their case against the
perpetrator of the crime."
We are of the opinion that the facts set out constitute an
actionable dereliction on appellee's part in the light of
Article 27 of the Civil Code. That appellants were
"harrased and terrorized" may be a conclusion of law
and hence improperly pleaded. Their claim for relief,
however, is not based on the fact of harassment and
terrorization but on appellee's refusal to give them
assistance, which it was his duty to do as an officer of
the law. The requirement under the aforesaid provision
that such refusal must be "without just cause" is implicit
in the context of the allegation. The statement of
appellee's dereliction is repeated in a subsequent
paragraph of the complaint, where it is alleged that "he
is about to order the arrest of the plaintiffs" to make
them sign affidavits of exculpation in favor of the
policemen.
The complaint is, without doubt, imperfectly drafted. It
suffers from vagueness and generalization. But all that
the Rules require is that there be a showing by a
statement of ultimate facts, that the plaintiff his a right
and that such right has been violated by the defendant.
An action should not be dismissed upon mere ambiguity,
indefiniteness or uncertainty, for these are not grounds
for a motion to dismiss, under Rule 8, but rather for a
bill of particulars according to Rule 16. Moran,
Comments on the Rules of Court, 1957 ed., Vol. I, p.
111. In two cases decided by this Court, it was
observed:
Under the new Rules of Court, an action cannot
be dismissed upon the ground that the
complaint is vague, ambiguous, or indefinite
(see Rule 8, section 1), because the defendant,
in such case, may ask for more particulars (Rule
16) or he may compel the plaintiff to disclose
more relevant facts under the different methods
of discovery provided by the Rules. (Rules 18,
20, 21, 22 and 23.) Professor Sunderland once
said "The real test of good pleading under the
new rules is whether the information given is
sufficient to enable the party to plead and
prepare for trial. A legal conclusion may serve
the purpose of pleading as well as anything else
if it gives the proper information. If the party
wants more he may ask for more details in
regard to the particular matter that is stated too
generally (Vol. XIII, Cincinnati Law Review,
January 1939.) Co Tiamco vs. Diaz, 75 Phil. 672.
At any rate, if respondent's complaint, which
was clear enough, had created confusion in
petitioner's mind as to the foundation of her
cause of action, then it should have moved for a
more definite statement of the same before the
trial. De Leon Brokerage Co., Inc. vs. The Court
of Appeals, et al., G.R. No. L-15247, Feb. 28,
1962.
The fact, cited by the court below in the order subject to
review, that appellants have another recourse (in
connection with the crime of illegal discharge of firearm
supposedly committed against one of them) as by filing
their complaint directly with the city attorney of Silay or
by lodging an administrative charge against appellee
herein, does not preclude this action for damages under
Article 27 of the Civil Code and hence does not justify its
dismissal.
THE ORDER APPEALED from is set aside and the case is
remanded to the Court of origin for further proceedings.
Costs against appellee.
B. UNFAIR COMPETITION
 ART 28 NCC
C. VIOLATION OF HUMAN DIGINITY AND PRIVACY
 ART 26 NCC
G.R. No. L-46061 November 14, 1984
ST. LOUIS REALTY CORPORATION, petitioner, vs.
COURT OF APPEALS and CONRADO J.
ARAMIL, respondents.
This case is about the recovery of damages for a
wrongful advertisement in the Sunday Times where
Saint Louis Realty Corporation misrepresented that the
house of Doctor Conrado J. Aramil belonged to Arcadio
S. Arcadio.
St. Louis Realty caused to be published with the
permission of Arcadio S. Arcadio (but without permission
of Doctor Aramil) in the issue of the Sunday Times of
December 15, 1968 an advertisement with the heading
"WHERE THE HEART IS". Below that heading was the
photograph of the residence of Doctor Aramil and
the Arcadio family and then below the photograph was
the following write-up:
Home is where the heart is. And the hearts of
MR. AND MRS. ARCADIO S. ARCADIO and their
family have been captured by BROOKSIDE
HILLS. They used to rent a small 2-bedroom
house in a cramped neighborhood, sadly
inadequate and unwholesome for the needs of a
large family. They dream(ed) of a more pleasant
place free from the din and dust of city life yet
near all facilities. Plans took shape when they
heard of BROOKSIDE HILLS. With thrift and
determination, they bought a lot and built their
dream house ... for P31,000. The Arcadios are
now part of the friendly, thriving community of
BROOKSIDE HILLS... a beautiful first-class
subdivision planned for wholesome family living.
The same advertisement appeared in the Sunday
Times dated January 5, 1969. Doctor Aramil a
neuropsychiatrist and a member of the faculty of the U.
E. Ramon Magsaysay Memorial Hospital, noticed the
mistake. On that same date, he wrote St. Louis Realty
the following letter of protest:
Dear Sirs:
This is anent to your advertisements appearing
in the December 15, 1968 and January 5, 1969
issues of the Sunday Times which boldly
depicted my house at the above-mentioned
address and implying that it belonged to another
person. I am not aware of any permission or
authority on my part for the use of my house for
such publicity.
This unauthorized use of my house for your
promotional gain and much more the apparent
distortions therein are I believe not only
transgression to my private property but also
damaging to my prestige in the medical
profession I have had invited in several
occasions numerous medical colleagues, medical
students and friends to my house and after
reading your December 15 advertisement some
of them have uttered some remarks purporting
doubts as to my professional and personal
integrity. Such sly remarks although in light vein
as "it looks like your house," "how much are you
renting from the Arcadios?", " like your wife
portrayed in the papers as belonging to another
husband," etc., have resulted in no little mental
anguish on my part.
I have referred this matter to the Legal Panel of
the Philippine Medical Association and their final
advice is pending upon my submission of
supporting ownership papers.
I will therefore be constrained to pursue court
action against your corporation unless you could
satisfactorily explain this matter within a week
upon receipt of this letter.
The letter was received by Ernesto Magtoto, an officer of
St. Louis Realty in charge of advertising. He stopped
publication of the advertisement. He contacted Doctor
Aramil and offered his apologies. However, no
rectification or apology was published.
On February 20, 1969, Aramil's counsel demanded from
St. Louis Realty actual, moral and exemplary damages of
P110,000 (Exh. D). In its answer dated March 10, St.
Louis Realty claimed that there was an honest mistake
and that if Aramil so desired, rectification would be
published in the Manila Times (Exh. 3).
It published in the issue of the Manila Times of March
18, 1969 a new advertisement with the Arcadio family
and their real house. But it did not publish any apology
to Doctor Aramil and an explanation of the error.
On March 29, Aramil filed his complaint for damages. St.
Louis Realty published in the issue of the Manila
Times of April 15, 1969 the following "NOTICE OF
RECTIFICATION" in a space 4 by 3 inches:
This will serve as a notice that our print ad
'Where the Heart is' which appeared in
the Manila Timesissue of March 18, 1969 is a
rectification of the same ad that appeared in
the Manila Times issues rectification of the same
ad that appeal of December 15, 1968 and
January 5, 1969 wherein a photo of the house
of another Brookside Homeowner (Dr. Aramil-
private respondent) was mistakenly used as a
background for the featured homeowner's the
Arcadio family.
The ad of March 18, 1969 shows the Arcadio
family with their real house in the background,
as was intended all along.
Judge Jose M. Leuterio observed that St. Louis Realty
should have immediately published a rectification and
apology. He found that as a result of St. Louis Realty's
mistake, magnified by its utter lack of sincerity, Doctor
Aramil suffered mental anguish and his income was
reduced by about P1,000 to P1,500 a month. Moreover,
there was violation of Aramil's right to privacy (Art. 26,
Civil Code).
The trial court awarded Aramil P8,000 as actual
damages, P20,000 as moral damages and P2,000 as
attorney's fees. St. Louis Realty appealed to the Court of
Appeals.
The Appellate Court affirmed that judgment, with Acting
Presiding Justice Magno S. Gatmaitan as ponente, and
Justices Sixto A. Domondon and Samuel F. Reyes
concurring.
The Appellate Court reasoned out that St. Louis Realty
committed an actionable quasi-delict under articles 21
and 26 of the Civil Code because the questioned
advertisements pictured a beautiful house which did not
belong to Arcadio but to Doctor Aramil who, naturally,
was annoyed by that contretemps.
In this appeal, St. Louis Realty contends that the
Appellate Court ignored certain facts and resorted to
surmises and conjectures. This contention is
unwarranted. The Appellate Court adopted the facts
found by the trial court. Those factual findings are
binding on this Court.
St. Louis Realty also contends that the decision is
contrary to law and that the case was decided in a way
not in conformity with the rulings of this Court. It argues
that the case is not covered by article 26 which provides
that "every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons". "Prying into the privacy of another's residence"
and "meddling with or disturbing the private life or
family relations of another" and "similar acts", "though
they may not constitute a criminal offense, shall produce
a cause of action for damages, prevention and other
relief".
The damages fixed by Judge Leuterio are sanctioned by
Articles 2200, 2208 and 2219 of the Civil Code. Article
2219 allows moral damages for acts and actions
mentioned in Article 26. As lengthily explained by Justice
Gatmaitan, the acts and omissions of the firm fan under
Article 26.
St. Louis Realty's employee was grossly negligent in
mixing up the Aramil and Arcadio residences in a widely
circulated publication like the Sunday Times. To suit its
purpose, it never made any written apology and
explanation of the mix-up. It just contented itself with a
cavalier "rectification ".
Persons, who know the residence of Doctor Aramil, were
confused by the distorted, lingering impression that he
was renting his residence from Arcadio or that Arcadio
had leased it from him. Either way, his private life was
mistakenly and unnecessarily exposed. He suffered
diminution of income and mental anguish.
WHEREFORE, the judgment of the Appellate Court is
affirmed. Costs against the petitioner. SO ORDERED.
DAMAGES
A. DEFENITION AND CONCEPT
[G.R. No. 120921. January 29, 1998]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. FELIPE BALLESTEROS, CESAR
GALO and ALVIN BULUSAN, accused-
appellants.
This is an appeal from the decision of the Regional
Trial Court of Bangui, Ilocos Norte, Branch 19, finding
the accused guilty beyond reasonable doubt of murder,
qualified by treachery, as charged under Article 248 of
the Revised Penal Code, as amended, to wit:
WHEREFORE, the Court finds the three accused guilty
beyond reasonable doubt of murder, qualified by
treachery, as charged, defined and penalized under
Article 248 of the Revised Penal Code, as amended, and
applying Article 248 of the Revised Penal Code hereby
sentences them to reclusion perpetua, with all the
accessory penalties provided by law, and further
sentencing them to pay jointly and solidarily -
1. The heirs of Jerry Agliam compensatory damages in the
amount of FIFTY THOUSAND PESOS (P50,000.00),
moral damages in the amount of TWENTY
THOUSAND PESOS (P20,000.00), and actual
damages in the amount of THIRTY-FIVE
THOUSANDSEVEN HUNDRED FIFTY-FIVE PESOS
(P35,755.00), with interest;
2. The heirs of the late Eduardo Tolentino, Sr.,
compensatory damages in the amount of FIFTY
THOUSAND PESOS (P50,000.00), moral damages
in the amount of TWENTY THOUSAND PESOS
(P20,000.00), and actual damages in the total
amount of SIXTY-ONE THOUSAND SEVEN
HUNDRED EIGHTY-FIVE PESOS (P61,785.00), with
interest;
3. Carmelo Agliam, actual damages in the amount of TWO
THOUSAND AND THREE PESOS AND FORTY
CENTAVOS (P2,003.40), and moral damages in
the amount of TEN THOUSAND PESOS
(P10,000.00), with interest;
4. Vidal Agliam Jr., Robert Cacal and Ronnel Tolentino,
moral damages in the amount of FIVE THOUSAND
PESOS (P5,000.00) each, with interest.
5. The costs.
The accused shall be credited in the service of their
sentence the full time during which they had undergone
preventive imprisonment, if they agreed voluntarily in
writing to abide by the same disciplinary rules imposed
upon convicted prisoners, otherwise, they shall be
credited in the service thereof with only four-fifths of the
time during which they had undergone preventive
imprisonment.[1]
 In the warm summer evening of May 28, 1991,
Carmelo Agliam, his half-brother Eduardo Tolentino,
Ronnel Tolentino, Vidal Agliam, his brother Jerry Agliam,
Robert Cacal, Raymundo Bangi and Marcial Barid
converged at a carinderia owned by Ronnel Tolentino at
Ganayao, Pasuquin, Ilocos Norte. They proceeded to the
barangay hall at Carusipan to attend a dance. The group
did not tarry for long at the dance because they sensed
some hostility from Cesar Galo and his companions who
were giving them dagger looks. In order to avoid
trouble, especially during the festivity, they decided to
head for home instead of reacting to the perceived
provocation of Galo and his companions.
The group had barely left when, within fifty meters
from the dance hall, their owner jeep was fired upon
from the rear. Vidal Agliam was able to jump out from
the eastern side of the topdown jeep and landed just
beside it. He scurried to the side of the road and hid in
the ricefield. His younger brother Jerry also managed to
jump out, but was shot in the stomach and
died.[2] Carmelo Agliam, Robert Cacal and Ronnel
Tolentino sustained injuries in the right foot, back of the
right thigh, and legs and thighs, respectively.[3] The
stunned Eduardo Tolentino was not even able to move
from his seat and was hit with a bullet which punctured
his right kidney.[4] He did not survive. The precipitate
attack upon the jeep left two people dead and four
others injured.
Based upon the affidavits of Carmelo and Vidal
Agliam, warrants for the arrest of Ballesteros, Galo and
Bulusan were issued. Charged with the crime of double
murder with multiple frustrated murder, an information
was filed as follows:
That on or about (sic) May 28, 1991, in the Municipality
of Pasuquin, Ilocos Norte, Philippines and within the
jurisdiction of the Honorable Court, the abovenamed
accused, nighttime purposely sought, with evident
premeditation and treachery, confederating and
mutually helping one another, did then and there, with
intent to kill, willfully, unlawfully and feloniously attack
and shot Eduardo Tolentino Sr., Jerry Agliam, Vidal
Agliam, Carmelo Agliam, Robert Cacal and Ronnel
Tolentino, with the use of firearms which caused the
death of Eduardo Tolentino Sr. and Jerry Agliam and
thereby inflicting gunshot wounds to Vidal Agliam,
Carmelo Agliam, Robert Cacal and Ronnel Tolentino
having performed all the acts which would have
produced the crime of Murder, but which did not by
reason of causes independent of the will of the
defendant, namely the able and timely medical
assistance given to said Vidal Agliam, Carmelo Agliam,
Robert Cacal and Ronnel Tolentino which prevented
their death.
All pleaded not guilty. Paraffin tests conducted on
Galo and Ballesteros produced positive results. Bulusan
was not tested for nitrates.
In his testimony, Galo claimed that he did not even
talk to Bulusan or any of his companions at the
basketball court, as alleged by the complainants. Having
been found with gunpowder residue in his hands, Galo
attempted to exculpate himself from the results by
confessing that he had been a cigarette smoker for the
past ten years and had, in fact, just consumed eight
cigarette sticks prior to the test. He further asserted that
paraffin tests are not infallible, and that his hand may
have been contaminated by a nitrogenous compound,
the source of which is urine. Lastly, he said that he was
not even present at the crime scene when the firing
incident took place; hence, he could not have been one
of those who strafed the jeep.[5]
For his part, Ballesteros interposed the defense of
alibi, narrating to the court that, on May 28, 1991, at
around 7:00 oclock in the evening, he went to a nearby
store to purchase some cigarettes. He returned home
within thirty minutes and cleaned his garlic bulbs before
retiring at 9:00 oclock. The next morning, he busied
himself with some chores, which included fertilizing his
pepper plants with sulfate. He handled the fertilizers
without gloves. To counter the finding of traces of
nitrates on his left hand, Ballesteros maintained that he
uses his left hand in lighting cigarettes, as it was very
painful for him to use his right hand. He likewise
informed the trial court that he had no motive to kill the
victims.[6]
Bulusan echoed the defense of alibi of Galo and
Ballesteros, stating that he saw only Galo on the evening
of the dance but did not talk to him. He denied joining
the two later that night because after the dance, he
went straight to the house of Michael Viloria, where he
spent the night until he went to work at 7:00 oclock in
the morning of the following day.[7]
The trial court found the three accused guilty
beyond reasonable doubt of murder, qualified by
treachery, as charged, defined and penalized under
Article 248 of the Revised Penal Code.
The accused now come to the High Court on
appeal, praying that the decision of the trial court be
reversed and that a new one be entered acquitting them
of the charges.
The principal question to be resolved has to do with
the merits of the decision of the lower court. Was it
correct in finding accused-appellants guilty beyond
reasonable doubt? We answer in the affirmative.
Accused-appellants insist that the trial court erred
in finding that Carmelo and Vidal Agliam recognized
them as the assailants. This claim is unmeritorious. In
their testimonies, Carmelo and Vidal Agliam both
described the area to be well illumined by the
moon. The shooting took place on a small road in the
mountainous terrains of Ilocos Norte, where the air is
free from darkening elements and turbidity.It being a
summer evening, there could not have been any fog to
becloud the atmosphere and hamper the vision of the
victims, which would have prevented them from clearly
seeing their assailants. They pinpointed the location of
the malefactors to be approximately three meters from
where they stood.[8] Considering the luminescence of the
moon and the proximity between them, the victims
could distinctly identify their assailants. It must be noted
that Carmelo was acquainted with Galo and his brother,
a butcher, since he used to deal with them in his
business of buying and selling cattle.[9] Bulusan was a
classmate of Vidal at Cadaratan School. Generally,
people in rural communities know each other both by
face and name.[10] Bulusan and Agliam were, not only
townmates, but former classmates as well. The constant
interaction between them through the years would
necessarily lead to familiarity with each other such that,
at the very least, one would have been able to recognize
the other easily.
That accused-appellants had no motive in
perpetrating the offense is irrelevant. A distinction is
herein timely made between motive and intent. Motive is
the moving power which impels one to action for a
definite result. Intent, on the other hand, is the purpose
to use a particular means to effect such result. [11] Motive
alone is not proof of a crime.[12] In order to tip the scales
in its favor, intent and not motive must be established
by the prosecution. Motive is hardly ever an essential
element of a crime. A man driven by extreme moral
perversion may be led to commit a crime, without a real
motive but just for the sake of committing it.[13] Along
the same line, a man who commits a crime with an
apparent motive may produce different results, for
which he is punished. As held in a line of cases, the rule
is well-settled that the prosecution need not prove
motive on the part of the accused when the latter has
been positively identified as the author of the
crime.[14]Lack or absence of motive for committing the
crime does not preclude conviction thereof where there
were reliable witnesses who fully and satisfactorily
identified the accused as the perpetrator of the
felony.[15]
Accused-appellants attempt to offer wild excuses
regarding the source of the gunpowder traces found on
their hands is futile. Experts confirm the possibility that
cigarettes, fertilizers and urine may leave traces of
nitrates, but these are minimal and, unlike those found
in gunpowder, may be washed off with tap water.
The hackneyed defense of alibi interposed by
accused-appellants must likewise fail. As consistently
enunciated by this Court, the established doctrine is
that, for the defense of alibi to prosper, the accused
must prove, not only that he was at some other place at
the time of the commission of the crime, but also that it
was physically impossible for him to be at the locus
delicti or within its immediate vicinity.[16]This accused-
appellants failed to satisfactorily prove. On the night of
May 28, 1991, Galo and Bulusan attended the dance at
the barangay hall. After the dance, they went their
separate ways but remained within the barangay. Galo
lingered in the premises. Bulusan slept over at the house
of Michael Viloria, which was within walking distance
from the dance hall.
The defense of alibi must be established by
positive, clear and satisfactory evidence, the reason
being that it is easily manufactured and usually so
unreliable that it can rarely be given credence.[17] This is
especially true in case of positive identification of the
culprit by reliable witnesses,[18] which renders their alibis
worthless.[19] Positive identification prevails over denials
and alibis.[20]
Accused-appellants are under the common
misconception that proof beyond reasonable doubt
requires total freedom from any quantum of doubt. This
is not so. Under Section 2, Rule 133 of the Rules of
Court,
(p)roof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces
conviction in an unprejudiced mind.
Absolute certainty of guilt is not demanded by law
to convict a person of a criminal charge. The doubt to
the benefit of which an accused is entitled in a criminal
trial is a reasonable doubt, not a whimsical or fanciful
doubt based on imagined but wholly improbable
possibilities and unsupported by
evidence.[21] Reasonable doubt is that engendered by an
investigation of the whole proof and inability, after such
investigation, to let the mind rest easy upon the
certainty of guilt.[22] A precise example would be the
uncorroborated alibi of accused in the case at bar where
accused-appellants individually interposed the wavering
defense of alibi. Galo failed to elucidate on his
whereabouts after the dance, whereas Bulusan claimed
to have slept in the house of one Michael Viloria.
Ballesteros attested that he was not at the dance hall at
all. None of them, however, attempted to corroborate
their alibi through the testimony of witnesses. In fact,
they never attempted to present as witnesses those who
could have testified to having seen them elsewhere on
the night in question. Had they done so, the
presentation of corroborative testimony would have
reenforced their defense of alibi. As held in People vs.
Ligotan,[23] an alibi must be supported by credible
corroboration from disinterested witnesses, and where
such defense is not corroborated, it is fatal to the
accused.
The Court correctly ruled in finding that the offense
was qualified by treachery. Under Paragraph 16, Article
14 of the Revised Penal Code, (t)here is treachery when
the offender commits any of the crimes against the
person employing means, methods or forms in the
execution thereof which tend directly and specially to
insure its execution without risk to himself arising from
the defense which the offendedparty might make. The
requisites of treachery are twofold: (1) (t)hat at the time
of the attack, the victim was not in a position to defend
himself; and (2) that the offender consciously adopted
the particular means, method or form of attack
employed by him.[24] As regards the second requisite,
the accused must make some preparation to kill his
victim in such a manner as to insure the execution of the
crime or to make it impossible or hard for the person
attacked to defend himself or retaliate.[25] There must be
evidence that such form of attack was
purposely adopted by the accused.[26] Here, it is obvious
that the accused-appellants had sufficient opportunity to
reflect on their heinous plan. The facts show that the
attack was well-planned and not merely a result of the
impulsiveness of the offenders. Manifestations of their
evil designs were already apparent as early as the time
of the dance. They were well-armed and approached the
homebound victims, totally unaware of their presence,
from behind. There was no opportunity for the latter to
defend themselves, the attack being so sudden that
Eduardo Tolentino was shot right where he sat.
The trial court was also correct in the award of
damages to the heirs of the victims. Damages may be
defined as the pecuniary compensation, recompense, or
satisfaction for an injury sustained, or as otherwise
expressed, the pecuniary consequences which the law
imposes for the breach of some duty or the violation of
some right.[27] Actual or compensatory damages are
those awarded in satisfaction of, or in recompense for,
loss or injury sustained,[28] whereas moral damages may
be invoked when the complainant has experienced
mental anguish, serious anxiety, physical suffering,
moral shock and so forth, and had furthermore shown
that these were the proximate result of the offenders
wrongful act or omission.[29] In granting actual or
compensatory damages, the party making a claim for
such must present the best evidence available, viz.,
receipts, vouchers, and the like,[30] as corroborated by
his testimony.[31] Here, the claim for actual damages by
the heirs of the victims is not controverted, the same
having been fully substantiated by receipts accumulated
by them and presented to the court.[32] Therefore, the
award of actual damages is proper. However, the order
granting compensatory damages to the heirs of Jerry
Agliam and Eduardo Tolentino Sr. must be
amended. Consistent with the policy of this Court, the
amount of fifty thousand pesos (P 50,000.00) is given to
the heirs of the victims by way of indemnity, and not as
compensatory damages.[33] As regards moral damages,
the amount of psychological pain, damage and injury
caused to the heirs of the victims, although
inestimable,[34] may be determined by the trial court in
its discretion. Hence, we see no reason to disturb its
findings as to this matter.
WHEREFORE, premises considered, the decision
appealed from is hereby AFFIRMED WITH
MODIFICATION. No pronouncement as to costs. SO
ORDERED.
G.R. No. 116100. February 9, 1996
SPOUSES CRISTINO and BRIGIDA CUSTODIO and
SPOUSES LITO and MARIA CRISTINA
SANTOS, petitioners, vs. COURT OF APPEALS,
HEIRS OF PACIFICO C. MABASA and REGIONAL
TRIAL COURT OF PASIG, METRO MANILA,
BRANCH 181, respondents
This petition for review on certiorari assails the
decision of respondent Court of Appeals in CA-G.R. CV
No. 29115, promulgated on November 10, 1993, which
affirmed with modification the decision of the trial court,
as well as its resolution dated July 8, 1994 denying
petitioners motion for reconsideration.[1]
On August 26, 1982, Civil Case No. 47466 for the
grant of an easement of right of way was filed by
Pacifico Mabasa against Cristino Custodio, Brigida R.
Custodio, Rosalina R. Morato, Lito Santos and Maria
Cristina C. Santos before the Regional Trial Court of
Pasig and assigned to Branch 22 thereof.[2]
The generative facts of the case, as synthesized by
the trial court and adopted by the Court of Appeals, are
as follows:
Perusing the record, this Court finds that the original
plaintiff Pacifico Mabasa died during the pendency of
this case and was substituted by Ofelia Mabasa, his
surviving spouse [and children].
The plaintiff owns a parcel of land with a two-door
apartment erected thereon situated at Interior P. Burgos
St., Palingon, Tipas, Taguig, Metro Manila.The plaintiff
was able to acquire said property through a contract of
sale with spouses Mamerto Rayos and Teodora Quintero
as vendors last September 1981. Said property may be
described to be surrounded by other immovables
pertaining to defendants herein. Taking P. Burgos
Street as the point of reference, on the left side, going
to plaintiffs property, the row of houses will be as
follows: That of defendants Cristino and Brigido
Custodio, then that of Lito and Maria Cristina Santos and
then that of Ofelia Mabasa. On the right side (is) that of
defendant Rosalina Morato and then a Septic Tank
(Exhibit D). As an access to P. Burgos Street from
plaintiffs property, there are two possible
passageways. The first passageway is approximately one
meter wide and is about 20 meters distan(t) from
Mabasas residence to P. Burgos Street. Such path is
passing in between the previously mentioned row of
houses. The second passageway is about 3 meters in
width and length from plaintiff Mabasas residence to P.
Burgos Street; it is about 26 meters. In passing thru said
passageway, a less than a meter wide path through the
septic tank and with 5-6 meters in length has to be
traversed.
When said property was purchased by Mabasa, there
were tenants occupying the premises and who were
acknowledged by plaintiff Mabasa as tenants.However,
sometime in February, 1982. one of said tenants
vacated the apartment and when plaintiff Mabasa went
to see the premises, he saw that there had been built an
adobe fence in the first passageway making it narrower
in width. Said adobe fence was first constructed by
defendants Santoses along their property which is also
along the first passageway. Defendant Morato
constructed her adobe fence and even extended said
fence in such a way that the entire passageway was
enclosed (Exhibit 1-Santoses and Custodios, Exh. D for
plaintiff, Exhs. 1-C, 1-D and I -E) And it was then that
the remaining tenants of said apartment vacated the
area. Defendant Ma. Cristina Santos testified that she
constructed said fence because there was an incident
when her daughter was dragged by a bicycle pedalled
by a son of one of the tenants in said apartment along
the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a
pathway such as when some of the tenants were drunk
and would bang their doors and windows. Some of their
footwear were even lost. x x x[3] (Italics in original text;
corrections in parentheses supplied)
On February 27, 1990, a decision was rendered by
the trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as
follows:
1) Ordering defendants Custodios and Santoses to give
plaintiff permanent access - ingress and egress, to the
public street;
2) Ordering the plaintiff to pay defendants Custodios
and Santoses the sum of Eight Thousand Pesos (P8,000)
as indemnity for the permanent use of the passageway.
The parties to shoulder their respective litigation
expenses.[4]
Not satisfied therewith, therein plaintiff represented
by his heirs, herein private respondents, went to the
Court of Appeals raising the sole issue of whether or not
the lower court erred in not awarding damages in their
favor. On November 10, 1993, as earlier stated, the
Court of Appeals rendered its decision affirming the
judgment of the trial court with modification, the
decretal portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is
hereby AFFIRMED WITH MODIFICATION only insofar as
the herein grant of damages to plaintiffs-appellants. The
Court hereby orders defendants-appellees to pay
plaintiffs-appellants the sum of Sixty Five
Thousand (P65,000) Pesos as Actual Damages, Thirty
Thousand (P30,000) Pesos as Moral Damages, and Ten
Thousand (P10,000) Pesos as Exemplary Damages. The
rest of the appealed decision is affirmed to all
respects.[5]
On July 8, 1994, the Court of Appeals denied
petitioners motion for reconsideration.[6] Petitioners then
took the present recourse to us, raising two issues,
namely, whether or not the grant of right of way to
herein private respondents is proper, and whether or not
the award of damages is in order.
With respect to the first issue, herein petitioners are
already barred from raising the same. Petitioners did not
appeal from the decision of the court a quo granting
private respondents the right of way, hence they are
presumed to be satisfied with the adjudication therein.
With the finality of the judgment of the trial court as to
petitioners, the issue of propriety of the grant of right of
way has already been laid to rest.
For failure to appeal the decision of the trial court
to the Court of Appeals, petitioners cannot obtain any
affirmative relief other than those granted in the
decision of the trial court. That decision of the court
below has become final as against them and can no
longer be reviewed, much less reversed, by this
Court. The rule in this jurisdiction is that whenever an
appeal is taken in a civil case, an appellee who has not
himself appealed may not obtain from the appellate
court any affirmative relief other than what was granted
in the decision of the lower court. The appellee can only
advance any argument that he may deem necessary to
defeat the appellants claim or to uphold the decision
that is being disputed, and he can assign errors in his
brief if such is required to strengthen the views
expressed by the court a quo. These assigned errors, in
turn, may be considered by the appellate court solely to
maintain the appealed decision on other grounds, but
not for the purpose of reversing or modifying the
judgment in the appellees favor and giving him other
affirmative reliefs.[7]
However, with respect to the second issue, we
agree with petitioners that the Court of Appeals erred in
awarding damages in favor of private respondents. The
award of damages has no substantial legal basis. A
reading of the decision of the Court of Appeals will show
that the award of damages was based solely on the fact
that the original plaintiff, Pacifico Mabasa, incurred
losses in the form of unrealized rentals when the tenants
vacated the leased premises by reason of the closure of
the passageway.
However, the mere fact that the plaintiff suffered
losses does not give rise to a right to recover
damages. To warrant the recovery of damages, there
must be both a right of action for a legal wrong inflicted
by the defendant, and damage resulting to the plaintiff
therefrom.Wrong without damage, or damage without
wrong, does not constitute a cause of action, since
damages are merely part of the remedy allowed for the
injury caused by a breach or wrong.[8]
There is a material distinction between damages
and injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results from the
injury; and damages are the recompense or
compensation awarded for the damage suffered. Thus,
there can be damage without injury in those instances in
which the loss or harm was not the result of a violation
of a legal duty. These situations are often
called damnum absque injuria.[9] in order that a plaintiff
may maintain an action for the injuries of which he
complains, he must establish that such injuries resulted
from a breach of duty which the defendant owed to the
plaintiff - a concurrence of injury to the plaintiff and
legal responsibility by the person causing it.[10] The
underlying basis for the award of tort damages is the
premise that an individual was injured in contemplation
of law. Thus, there must first be the breach of some
duty and the imposition of liability for that breach before
damages may be awarded; it is not sufficient to state
that there should be tort liability merely because the
plaintiff suffered some pain and suffering)[11]
Many accidents occur and many injuries are
inflicted by acts or omissions which cause damage or
loss to another but which violate no legal duty to such
other person, and consequently create no cause of
action in his favor. In such cases, the consequences
must be borne by the injured person alone. The law
affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong. [12]
In other words, in order that the law will give
redress for an act causing damage, that act must be not
only hurtful, but wrongful. There must be damnum et
injuria.[13] If, as may happen in many cases, a person
sustains actual damage, that is, harm or loss to his
person or property, without sustaining any legal injury,
that is, an act or omission which the law does not deem
an injury, the damage is regarded as damnum absque
injuria.[14]
In the case at bar, although there was damage,
there was no legal injury. Contrary to the claim of
private respondents, petitioners could not be said to
have violated the principle of abuse of right. In order
that the principle of abuse of right provided in Article 21
of the Civil Code can be applied, it is essential that the
following requisites concur: (1) The defendant should
have acted in a manner that is contrary to morals, good
customs or public policy; (2) The acts should be willful;
and (3) There was damage or injury to the plaintiff.[15]
The act of petitioners in constructing a fence within
their lot is a valid exercise of their right as owners,
hence not contrary to morals, good customs or public
policy. The law recognizes in the owner the right to
enjoy and dispose of a thing, without other limitations
than those established by law.[16] It is within the right of
petitioners, as owners, to enclose and fence their
property. Article 430 of the Civil Code provides that
(e)very owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to
servitudes constituted thereon.
At the time of the construction of the fence, the lot
was not subject to any servitudes. There was no
easement of way existing in favor of private
respondents, either by law or by contract. The fact that
private respondents had no existing right over the said
passageway is confirmed by the very decision of the trial
court granting a compulsory right of way in their favor
after payment of just compensation. It was only that
decision which gave private respondents the right to use
the said passageway after payment of the compensation
and imposed a corresponding duty on petitioners not to
interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an
absolute right over their property and their act of
fencing and enclosing the same was an act which they
may lawfully perform in the employment and exercise of
said right. To repeat, whatever injury or damage may
have been sustained by private respondents by reason
of the rightful use of the said land by petitioners
is damnum absque injuria.[17]
A person has a right to the natural use and
enjoyment of his own property, according to his
pleasure, for all the purposes to which such property is
usually applied. As a general rule, therefore, there is no
cause of action for acts done by one person upon his
own property in a lawful and proper manner, although
such acts incidentally cause damage or an unavoidable
loss to another, as such damage or loss is damnum
absque injuria.[18] When the owner of property makes
use thereof in the general and ordinary manner in which
the property is used, such as fencing or enclosing the
same as in this case, nobody can complain of having
been injured, because the inconvenience arising from
said use can be considered as a mere consequence of
community life.[19]
The proper exercise of a lawful right cannot
constitute a legal wrong for which an action will
lie,[20] although the act may result in damage to another,
for no legal right has been invaded[21] One may use any
lawful means to accomplish a lawful purpose and though
the means adopted may cause damage to another, no
cause of action arises in the latters favor. Any injury or
damage occasioned thereby is damnum absque
injuria. The courts can give no redress for hardship to an
individual resulting from action reasonably calculated to
achieve a lawful end by lawful means.[22]
 WHEREFORE, under the compulsion of the
foregoing premises, the appealed decision of respondent
Court of Appeals is hereby REVERSED and SET ASIDE
and the judgment of the trial court is correspondingly
REINSTATED.
SO ORDERED.
Pesos (P300.00). After the death of Francsico on 26
February 1948, his widow Amparo Dionisio Vda. de
Bacero, in her capacity as legal guardian of her minor
children, namely: Nicolas, Valentin and Luzviminda, all
surnamed Bacero and forced heirs of Francisco Bacero
sold it (the lot) to the Spouses Bienvenido Bulan and
Salvacion Borbon, through a Deed of Absolute Sale
dated 27 August 1954 (Exh. 65, pp. 243-245, id.).

Upon the execution of the Deed of Sale and even prior

thereto, actual possession of Lot No. 2057 was with the
vendees-spouses Bulans in view of a loan obtained by
Francisco Bacero from them in December 1947 (Exh. 65,
ART. 2195, 2197 NCC: supra). Exercising their right of ownership under the
Deed of Sale, Salvacion Borbon Vda. de Bulan declared
[G.R. No. 114118. August 28, 2001] the lot in her name in 1900 for taxation purposes under
HEIRS OF SIMEON BORLADO, namely, ADELAIDA Tax Declaration No. 2232 (Exh. F, p. 254, Record
BORLADO, LORETO BORLADO, REYNALDO [MTC]). She paid the corresponding taxes as evidenced
BORLADO, RICARDO BORLADO, FRANCISCO by the Tax Receipts marked as Exhibits K, J, I, G, F and
BORLADO and ALADINO DORADO, petitioners, vs. H (pp. 248-253, Record, id.). Salvacion and her co-
COURT OF APPEALS, and SALVACION VDA. DE defendants-appellees[4] possession of the lot was
BULAN, BIENVENIDO BULAN, JR., NORMA B. continuous, peaceful, uninterrupted, adverse and
CLARITO and THE PROVINCIAL SHERIFF OF exclusive until November 4, 1972, when petitioners
CAPIZ, respondents. forcibly entered and wrested physical possession thereof
from them.
The case is an appeal via certiorari from a
On 23 November 1972, respondents filed with the
decision[1] of the Court of Appeals affirming the decision
Municipal Court of Maayon, Capiz a complaint for
of the trial court, the dispositive portion of which reads:
ejectment docketed as Civil Case No. A-1, against
petitioners (p. 1, id.). The ejectment case was decided
WHEREFORE, judgment is rendered dismissing in favor of the respondents whereby the petitioners,
plaintiffs complaint for lack of cause of action and their agents, tenants, privies and members of their
ordering as vacated the restraining order and writ of families were ordered to vacate Lot No. 2079 and deliver
preliminary injunction issued in this case; and possession to the respondents together with all
improvements and standing crops; to pay said
1. Plaintiffs to be jointly and solidarily liable to defendants the quantity
respondents One Hundred (100) cavans of palay
of one hundred (100) cavans of palay every year from 1972 until
plaintiffs vacate the premises of the land in question; annually from 1972 to the present or in the total amount
2. Declaring defendants as owner of the land and entitled to of One Thousand One Hundred (1,100) cavans of palay;
possession; and to pay the sum of Five Thousand (P5,000.00) Pesos
3. Ordering plaintiffs to pay defendants the sum of P5,000.00 as
as reimbursement for the amount respondents had paid
attorneys fees and the sum of P5,000.00 as litigation expenses; and
4. To pay the costs of the suit. their lawyer to protect their rights; and, the costs of suit
SO ORDERED. (Exh. 57, pp. 256-261, id.). Instead of appealing the
Roxas City, Philippines, March 18, 1988. adverse decision to the Court of First Instance (now
RTC), on 8 November 1983, petitioners filed the present
(Sgd.) JONAS A. ABELLAR case with the Regional Trial Court, Branch 18, Roxas
Judge
City, docketed as Civil Case No. V-4887. This case was
dismissed for lack of cause of action in a decision, the
The Facts decretal portion of which was quoted earlier.[5]
The facts, as found by the Court of Appeals, are as
follows:
On 24 November 1993, the Court
The records show that plaintiffs-
of Appeals promulgated its decision affirming in toto the
appellants[3] (petitioners) are the heirs of Simeon
appealed decision.[6] Hence, this appeal.[7]
Borlado whose parents were Serapio Borlado and
Balbina Bulan. The original owner of the lot in question, The Issue
Lot No. 2097 of the Pontevedra Cadastre, Maayon,
Capiz, was Serapio Borlado, grandfather of petitioners.
The issue raised is whether the Court of Appeals
On 15 April 1942, Serapio sold the lot to Francisco erred in ruling that respondents were the owners of the
Bacero (Exh. C, p. 247, MTC Record) for Three Hundred lot in question.
The Courts Ruling
We deny the petition. The issue is factual. In an
appeal via certiorari, we may not review the findings of
fact of the Court of Appeals.[8] When supported by
substantial evidence, the findings of fact of the Court of
Appeals are conclusive and binding on the parties and
are not reviewable by this Court,[9] unless the case falls
under any of the exceptions to the rule.[10]
Petitioner failed to prove that the case falls within
the exceptions.[11] The Supreme Court is not a trier of
facts.[12] It is not our function to review, examine and
evaluate or weigh the probative value of the evidence
presented.[13] A question of fact would arise in such
event.[14] Questions of fact cannot be raised in an
appeal via certiorari before the Supreme Court and are
not proper for its consideration.[15]
Nevertheless, as a matter of law, the trial court and
the Court of Appeals erred in holding petitioners liable to
pay respondents one hundred (100) cavans of palay
every year from 1972 until they vacate the premises of
the land in question.
The one hundred cavans of palay was awarded as a
form of damages. We cannot sustain the award. Palay is
not legal tender currency in the Philippines.
El Fallo del Tribunal
WHEREFORE, the Court DENIES the petition and
AFFIRMS the decision of the Court of Appeals in CA-G.
R. CV No. 18980 with modification that petitioners
liability to pay respondents one hundred (100) cavans of
palay every year from 1972 until petitioners vacate the
land in question is deleted, for lack of basis. No costs.
SO ORDERED.
G.R. No. L-12736 July 31, 1961
FRANCISCO L. LAZATIN, plaintiff-appellant, vs.
ANGEL C. TWAÑO and GREGORIO T.
CASTRO, defendants-appellees.
The case at bar had its genesis in Civil Case No. 213,
CFI, Manila, entitled "Angel C. Twaño and Gregorio T.
Castro, plaintiffs, versus F. L. Lazatin, et al., defendants,
Dionisio P. Tanglao, Intervenor," for the recovery of
P35,000.00, plus interest, realized in connection with the
purchase by them (plaintiffs and defendants) from the
U.S. government, and the subsequent sale, of some 225
auto-trucks. After trial, the CFI of Manila dismissed the
complaint as well as the intervention. The order of
dismissal was taken to the Court of Appeals (CA-G.R.
No. 4533-R), which, on November 3, 1950, rendered
judgment reversing the said order and declaring that
plaintiffs and defendants were co-owners in the business
of buying and selling surplus auto-trucks, and ordered
the defendants (one of them Lazatin) to pay to the
plaintiff s therein, the sum of P10,000.00, with legal
interest from the filing of the complaint. The said
decision became final; it was executed, with the levy of
the properties of defendant Lazatin and their subsequent
sale at public auction, wherein the plaintiffs Twaño and
Castro were the purchasers. Before the expiration of the
redemption period, on August 2, 1952, defendant
Lazatin, deposited with the Sheriff of Pampanga the sum
of P13,849.88, redemption price. On August 9, 1952, the
same Francisco Lazatin, filed the present action, to
recover from the same Twaño and Castro the sum of
P19,676.09, supposedly a balance of the proceeds of
auto-trucks, sold directly to purchasers by said
defendants. On the same date, plaintiff Lazatin, alleging
that "there is no security whatsoever for the payment of
the amount claimed in the complaint and that the
defendant defendants are removing or are about to
remove or dispose of their property with intent to
defraud their creditors, particularly the plaintiff," secured
a writ of attachment on the amount he deposited, and
pursuant thereto, the Sheriff of Pampanga refused to
deliver the sum of P13,849.88, which should have been
paid to the herein defendants.
On August 12, 1952, the herein defendants filed an
Urgent Motion to Dissolve the Writ of Preliminary
Attachment on the following grounds:
1. That the plaintiff has no cause of action because (a) the
right of action, if any, has prescribed, and (b) the cause of
action is barred by a prior judgment; and
2. That the allegations in the petition for the issuance of the
writ and in the affidavit in support thereof are false.
On September 10, 1952, the lower court, after due
hearing, dissolved the writ.
Subsequently, the defendants filed their answer and
after the customary admissions and denials, interposed
as special defenses, the same grounds averred in the
motion to lift the writ and counterclaimed:
1. That the plaintiff herein has filed a clearly unfounded civil
action against the herein defendants as a result of which the
latter had suffered actual or compensatory damages by way
of attorney's fees in the sum of P3,000.00
2. That as a result of the wrongful attachment and the false
statements made by the plaintiffs, under oath, in support of
his Ex-Parte Petition for the Writ, the herein defendants
have suffered moral damages to the amount of P10,000.00
3. That the wrongful attachment against the properties and
the sum of P13,849.88 had caused actual damages to the
herein defendants, represented by the legal interest on such
amount.
On May 9, 1953, plaintiff Lazatin died and on March 10,
1954, Gil Gotiangco was appointed and qualified as
administrator of plaintiff's estate.
On the date set for hearing, the defendants herein were
granted, a preliminary hearing on their special defenses
(Sec. 5, Rule 8). The lower court on November 12, 1954,
entered an order, dismissing the complaint on the
ground that it was barred by a prior judgment and by
the statute of limitations. At the same time, the Court
set the case for hearing on defendants' counterclaim. On
October 28, 1955, the trial court rendered judgment,
ordering the estate of Lazatin to pay the defendants
therein the following sums: —
(1) P3,000.00 for the fees of Attorney Manuel O. Chan;
(2) P,500.00 for moral damages to each of the defendants;
(3) Six percent (6%) interest on the amount of P13,849.88
from August 6, 1952 until said amount is actually delivered
to and receipted by the defendants; and
(4) To pay the costs.
Judgment is also rendered against the Central Surety and
Insurance Co., which is solidarily liable with the Estate of the
deceased plaintiff Francisco L. Lazatin on its bond for the
sum of P20,000.00, filed by said Company for the issuance
on the writ of attachment for the amounts mentioned in
Nos. (2) and (3) of the dispositive part of this decision.
Upon appellant's request, the appeal was certified by the
Court of Appeals to this Court, as the issues involved
therein are purely legal in character.
The law on damages is found on Title XVII of the Civil
Code (Arts. 2195 to 2235). The rules governing
damages laid down in other laws, and the principles of
the general law on damages are adopted in so far as
they are not in consistent with the Code (Arts. 2196 and
2198). Article 2197 mentions the kind of damages
recoverable, among which are (1) actual or
compensatory and (2) moral Article 2219 provides that
moral damages may be recovered in the following and
analogous cases . . . (3) malicious prosecution. There is
an abundance of case holding that the action to recover
damages from the attachment plaintiff, for the wrongful
issuance and levy of an attachment (malicious
attachment) is identical or is analogous to the ordinary
action for malicious prosecution (Eastern v. Bank of
Stockton, 66 Cal. 123, 56 Am. Rep. 77, 4 Pac. 1106;
Robinson v. Kellum 6 Cal. 399; Grant v. Moore, 29 Cal.
644; King v. Montgomery 50 Cal. 115; Gonzales v.
Cobliner 68 Cal 151, 8 Pac. 697; Asevado v. Orr 100 Cal.
293, 34 Pac. 777). It may logically be inferred,
therefore, that in order hat moral damages may be
recovered in connection with he writ of attachment
under consideration, malice is an essential ingredient
thereof. In Songco v. Sellner, 37 Phil. 154, where the
evidence showed that defendant offered damages to his
credit, as a result of writ of attachment wrongfully
issued, the Court declared that such damages were
remote and speculative and that there was no 'ending
that the attachment was maliciously sued out. In Aboitiz
v. Da Silva, 45 Phil. 883, the Court refused to grant
damages for loss of reputation by reason of an improper
attachment, on the ground that there was no evidence
from which malice on the part of the plaintiff or loss of
credit to the defendant, may be inferred or presumed. In
Masterson v. Smith Navigation, 60 Phil. 366 ' damages
to good name, allegedly suffered by the defendant as a
result f a writ of attachment wrongfully issued, were
disallowed in the ground that such damages were very
problematical. In American jurisdictions where the
principles of the general laws on damages in common
law (adopted by Art. 198 of the new Civil Code), are in
force, only actual or compensatory damages are
recoverable for wrongful but not malicious attachment.
An allowance may be made r injury to feeling if the
attachment was sued out maliciously and without
probable cause; but in the absence of his element there
can be no recovery (6 C.J. 533- 534; 541). "The
authorities are quite uniform in holding that, in the
absence of malice, injuries to credit, reputation and
business are too remote and speculative to be
recovered" (Union Nat. Bank v. Cross, 100 Wis. 174, 75
NW 992). There is no issue of malice, damages must
be compensatory merely, and confined to the actual loss
from deprivation of the property attached or injury to it,
or in case of closing business, to the probable profits of
the business, during the time of its stoppage (Holiday
Bros. Cohen 34 Ark. 707). All of which go to show that
the attachment defendant is not entitled to moral
damages, unless it is alleged and established that the
writ was maliciously sued out.
This notwithstanding the defendants-appellees invoke
the following rule, in support of their thesis.
SEC. 4. Bond required from plaintiff. — The
party applying for the order must give a bond
executed to the defendant in amount to be fixed
by the judge, not exceeding the plaintiff claim
that the plaintiff will pay all the costs which it
may be adjudged to the defendant and all
damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that
the plaintiff was not entitled thereto. (Rule 59,
R.C.)
They claim that under the above section, malice and
want of probable cause are not essential (II Moran's
Rules of Court , 2nd Ed. pp. 19-20); that the language
used therein is clear and its intent and purpose are
obvious; its provision cannot be given a broader scope
than what it imports; and the element of malice cannot
be implied from the terms thereof. It is finally argued
that as the attachment-plaintiff, according to the rule,
should pay "all the damages" which the attachment
defendant might sustain by reason of the attachment, if
the court shall finally adjudge that the plaintiff was not
entitled thereto, the ruling of the trial court that the
appellant should pay the appellees moral damages, is
correct. We do not share this view. It should be
observed that Sec. 4 of Rule 59, does not prescribe the
remedies available to the attachment defendant in case
of a wrongful attachment, but merely provides an action
for recovery upon the bond, based on the undertaking
therein made and not upon the ability arising from a
tortious act, like the malicious suing of an attachment.
Under the first, where malice is not essential, the
attachment defendant, is entitled to recover only the
actual damages sustained by him by reason of the
attachment. Under the second, where the attachment is
maliciously sued out, the damages recoverable may
include a compensation for every injury to his credit,
business or feelings (Tyler v. Mahoney 168 NC 237, 84
SE 362; Pittsburg etc. C 73, 47 SE 234). And considering
the fact that the rules of court are of older vintage than
the new Civil Code, the matter of damages in the said
rules should be encompassed within the framework Of
the Civil Code (Art. 2196 Civil Code). It is quite true that
said section 4 employs the expression "all damages", but
this should be understood to refer to the damages
resulting from the undertaking itself, the recovery of
which is subject to "the principles of the general law on
damages", earlier discussed. (Art. 2198, Civil
Code, supra).
A cursory perusal of the decision would show that the
trial court did not make any express ruling that the writ
of attachment was maliciously sued out by the plaintiff
or any finding of facts or circumstances from which it
may be necessarily inferred that the attachment was
thus obtained. The decision does not make any finding
that the defendants-appellees did in fact suffer mental
anguish or injury to their credit or reputation. The
decision simply states: "Coming now to the moral
damages which defendants have suffered consisting of
mental anguish, serious anxiety and besmirched
reputation, it is believed that sing businessmen of good
commercial standing and reputation, each of them
should be awarded at least P2,500.00." Moreover the
dissolution of the writ was due to a technicality No moral
damages can be inferred from the mere act that the
redemption price to which defendants were entitled, had
been retained by the provincial sheriff for a period of 38
days. The trial court held that the present action was
already investigated and adjudged in CA-G.R. To 4533-R
and the right of action was barred by the state of
limitations, and that since the writ of attachment was
only a remedy adjunct to the main suit, plaintiff-
appellant was not entitled to the writ. While the lower
court declared that the defendants-appellees had an
outstanding balance of P171,947.80, in the bank and
that they were not disposing their property in fraud of
creditors or of the plaintiff, as alleged in the petition for
the issuance of the writ still the said court did not make
any finding that the said petition was maliciously sued
out. We are, therefore, the opinion that the defendants-
appellants are not entitled to moral damages.
In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs, cannot
be covered, except: . . .
(4) In case of a clearly unfounded civil action or
proceeding against the plaintiff.
xxx xxx xxx
(11) In any other case where the court deems it
just and equitable that attorney's fees and
expenses of litigation should be recovered." (Art.
2208, Civil Code).
Defendants' counterclaim for the recovery of attorney's
fees is based on paragraph 4 of the cited provision, for
legal services rendered in defending the main suit. There
is no showing in the decision appealed from that
plaintiffs' action is "clearly unfounded". Plaintiffs-
appellants' complaint was not dismissed because the
facts alleged therein were found untrue, but on purely
technical grounds; the special defenses of prescription of
the action and res adjudicata. While it may be hard to
believe that the plaintiff had labored under the
impression that the matters involved in his complaint
had not been adjudicated in the previous litigation
between the same parties (Civil Case No. 213 CFI
Manila), because plaintiff himself was a lawyer such
error of judgment on his part would not justify the
inference that the action was "clearly unfounded". As
aptly observed by appellants' counsel, defenses as the
one interposed by appellee in their counterclaim "raise
questions of law not always of obvious and easy
solution." While it may appear also that the move was a
scheme to prevent the defendants-appellees from
reaping the benefits of the final judgment rendered in
their favor in said case CA- G.R. No. 5433-R, still one
cannot nullify, without cause, the good and honest
motive, which should be presumed, when a litigant goes
to court for the determination of his alleged right.
Withal, and considering the fact that defendants-
appellant lees were drawn into this litigation by plaintiff-
appellant and were compelled to hire an attorney to
protect and defend them, and taking into account the
work done by said attorney, as reflected in the record,
throughout the proceedings, we deem it just and
equitable to award at attorney's fees for defendants-
appellees. The sum of P3,000.00 adjudicated by the trial
court, is reasonable under the circumstances (par. 11
Art. 2208, Civil Code).
It appears that plaintiffs-appellants have abandoned
their appeal with respect to the payment of 6% interest
in the amount of P13,849.88.
Modified, with the elimination of moral damages, the
decision appealed from is affirmed in all other respects.
Costs against plaintiff-appellant.

B. KINDS OF DAMAGES
1. ACTUAL OR COMPENSATORY
 ART 2216, 2199, 2200, 2205 NCC
G.R. No. L-8385 March 24, 1914
LUCIO ALGARRA, plaintiff-appellant, vs. SIXTO
SANDEJAS, defendant-appellee.
This is a civil action for personal injuries received from a
collision with the defendant's automobile due to the
negligence of the defendant, who was driving the car.
The negligence of the defendant is not questioned and
this case involves only the amount of damages which
should be allowed.
As a result of the injuries received, plaintiff was obliged
to spend ten days in the hospital, during the first four or
five of which he could not leave his bed. After being
discharged from the hospital, he received medical
attention from a private practitioner for several days.
The latter testified that after the last treatment the
plaintiff described himself as being well. On the trial the
plaintiff testified that he had done no work since the
accident, which occurred on July 9, 1912, and that he
was not yet entirely recovered. Plaintiff testified that his
earning capacity was P50 per month. It is not clear at
what time plaintiff became entirely well again, but as to
the doctor to whom he described himself as being well
stated that this was about the last of July, and the trial
took place September 19, two months' pay would seem
sufficient for the actual time lost from his work. Plaintiff
further testified that he paid the doctor P8 and
expended P2 for medicines. This expenses, amounting in
all to P110 should also be allowed.
Plaintiff sold the products of a distillery on a 10 per cent
commission and made an average of P50 per month. He
had about twenty regular customers who, it seems,
purchased in small quantities, necessitating regular and
frequent deliveries. Since the accident his wife had done
something in a small way to keep up this business but
the total orders taken by her would not net them over
P15. He lost all his regular customers but four, other
agents filing their orders since his accident. It took him
about four years to build up the business he had at the
time of the accident, and he could not say how long it
would take him to get back the business he had lost.
Under this state of facts, the lower court, while
recognizing the justness of he claim, refused to allow
him anything for injury to his business due to his
enforced absence therefrom, on the ground that the
doctrine of Marcelo vs. Velasco (11 Phil., Rep., 277) is
opposed t such allowance. The trial court's opinion
appears to be based upon the following quotation from
Viada (vol. 1 p. 539), quoted in that decision: ". . . with
regard to the offense of lesiones, for example, the civil
liability is almost always limited to indemnity for damage
to the party aggrieved for the time during which he was
incapacitated for work; . . ."
This statement, however, derives its force, not from any
provision of the law applicable to lesiones, but is a mere
deduction from the operation of the law upon the cases
arising under it. That the interpretation placed upon this
statement of Viada by the lower court is either not
correct, or that it does not apply to actions for personal
injuries under article 1902 of the Civil Code, is apparent
from the decisions of the supreme court of Spain of
January 8, 1906, January 15, 1902, and October 19,
1909, to which a more extended reference will be made
further on in this opinion. There is nothing said in the
decision in question prohibiting the allowance of
compensatory damages, nor does there seem to be
anything contained therein opposed to the allowance of
such damages occurring subsequent to the institution of
the action. In fact, it appears from the following
quotation that the court would have been disposed to
consider favorably the plaintiff's claim for injury to her
business had the evidence presented it.
No evidence was then offered by the plaintiff to
show that this slight lameness in any way
interfered with the conduct of her business or
that she could make any less amount therein
than she could make if she did not suffer from
this direct. The court, therefore, did not err in
allowing her no further damages on this
account, because there was no evidence that
she had suffered any.
The alleged damages which the court refused to
entertain in that case and under the discussion of which
appears the above quotation from Viada, were for pain
and suffering the plaintiff may have experienced. The
court said: "For the profits which the plaintiff failed to
obtain, spoken of in the latter part of this article, the
plaintiff was allowed to recover, and the question is,
whether the value of the loss which she suffered can be
extended to pain which she experienced by reason of
the accident."
Actions for damages such as the case at bar are based
upon article 1902 of the Civil Code, which reads as
follows: "A person who, by act or omission, causes
damage to another where there is fault or negligence
shall be obliged to repair the damage so done."
Of this article, the supreme court of Spain, in its decision
of February 7, 1900, in considering the indemnity
imposed by it, said: "It is undisputed that said
reparation, to be efficacious and substantial, must
rationally include the generic idea of complete
indemnity, such as is defined and explained in article
1106 of the said (Civil) Code."
Articles 1106 and 1107 of the Civil Code read as follows:
1106. Indemnity for losses and damages
includes not only the amount of the loss which
may have been suffered, but also that of the
profit which the creditor may have failed to
realize, reserving the provisions contained in the
following articles.
1107. The losses and damages for which a
debtor in good faith is liable, are those foreseen
or which may have been foreseen, at the time of
constituting the obligation, and which may be a
necessary consequence of its nonfulfillment.
In case of fraud, the debtor shall be liable for all
those which clearly may originate from the
nonfulfillment of the obligation.
Fraud is not an element of the present case, and we are
not therefore concerned with it. The liability of the
present defendant includes only those damages which
were "foreseen or may have been foreseen" at the time
of the accident, and which are the necessary and
immediate consequences of his fault. In discussing the
question of damages under the civil law, Gutierrez (vol.
4, pp. 64, 65) says:
In the impossibility of laying down a surer rule,
the Code understands known damages to be
those which in the prudent discernment of the
judge merit such a qualification, although their
consequences may not be direct, immediate
inevitable.
If it is a question of losses occasioned through
other causes, except fraud, and the contracting
parties have not covenanted any indemnity for
the case of nonfulfillment, then the reparation of
the losses or damages shall only comprise those
that fault. This rule may not be very clear, but is
the only one possible in a matter more of the
domain of prudence than of law.
In its decision of April 18, 1901, the supreme court of
Spain said: "Neither were the errors incurred that are
mentioned in the third assignment, since the indemnity
for damages is understood to apply to those caused the
complainant directly, and not to those which, indirectly
and through more or less logical deductions, may affect
the interests of the Ayuntamiento de Viana, as occurs in
the present case where the increase of wealth concerns
not only the Ayuntamiento but also the provide and the
state, yet, not on this account does any action lie in their
behalf as derived from the contracts with Urioste."
This doctrine is also affirmed in the more recent decision
of March 18, 1909, in the following words: "For the
calculation of the damages claimed, it is necessary,
pursuant to the provisions of article 924 of the Law of
Civil Procedure, to give due regard to the nature of the
obligation that was unfulfilled and to the reasonable
consequences of its nonfulfillment, because the
conviction sought can be imposed only when there
exists a natural and true relation between such
nonfulfillment and damages, whatever, reason there
may be to demand them on another account."
In the case of Garcia Gamo vs. Compania Madrilena de
Alumbrado, etc. (101 Juris, p., 662), it appeared that an
employee of the defendant company whose duty it was
to clean and light the street lamps left as stepladder
leaning against a tree which stood in a public
promenade. The seven-year old son of the plaintiff
climbed the tree by means of the ladder, and while
endeavoring to cut some branches fell to the ground,
sustaining severe injuries which eventually caused his
death. The plaintiff lost in the lower courts and on
appeal to the supreme court the decision of those lower
courts was affirmed with the following statement;
That in this sense — aside from the fitness of
the judgment appealed from, inasmuch as the
acquittal of the defendant party resolves all the
issues argued at the trial, if no counterclaim was
made — the assignments of error in the appeal
cannot be sustained, because, while the act of
placing the stepladder against the tree in the
manner and for the purposes aforestated, was
not permissible it was regularly allowed by the
local authorities, and that fact did not precisely
determine the injury, which was due first to the
abandonment of the child by his parents and
secondly to his own imprudence, according to
the findings of the trial court, not legally
objected to in the appeal; so it is beyond
peradventure that the circumstances necessary
for imposing the obligations arising from guilt or
negligence do not concur in the present case.
The court here simply held that the injury to the child
could not be considered as the probable consequence of
an injury which could have been foreseen from the act
of the company's employee in leaving the ladder leaning
against the tree.
In De Alba vs. Sociedad Anonima de Tranvias (102 Juris,
p., 928), a passenger was standing on the platform of a
street car while it was in motion when, on rounding a
curve, the plaintiff fell off and under the car, thereby
sustaining severe injuries which took several months to
heal. He was not allowed to recover in the lower courts
and on appeal the supreme court sustained the inferior
tribunals saying:
Whereas, considering the circumstances of the
accident that happened to D. Antonio Morales
de Alba, such as they were held by the trail
court to have been proved, the evidence does
not disclose that any liability whatever in the
said accident, for acts or omissions, may be
charged against the employees of the street car,
as being guilty through fault or negligence, since
it was shown that the car was not traveling at
any unusual speed nor was this increased on
rounding the curve, but that the accident was
solely due to the fact that the car in turning
made a movement which caused the plaintiff to
lose his balance; and whereas no act whatever
has been proved of any violation of the
regulations, nor can it be required of street-car
employees, who have to attend to their
respective duties, that they should foresee and
be on the alert to notify the possibility of danger
when not greater than that which is more or less
inherent to this mode of travel; therefore the
appeal can not be upheld, and with all the more
reason since the passenger who takes the risk of
travelling on the platform, especially when there
is an unoccupied seat in the car, should be on
his guard against a contingency so natural as
that of losing his balance to a greater or less
extent when the car rounds a curve.
In Crespo vs. Garcia (112 Jurisp., 796), the plaintiff, a
servant woman, 72 years old, was injured in the
performance of her duties by the sudden and
unexpected failure of the upper floor of a house in which
she was working. The owner and the architect of the
building were made defendants and after due trial it was
held that no responsibility attached to them for the
failure of the floor, consequently the plaintiff was not
allowed to recover. On her appeal to the supreme court
that tribunal said:
Whereas the trial court held, in view of all the
evidence adduced, including the expert and
other testimony, that the act which occasioned
the injury suffered by Doña Maria Alonso
Crespo, was accidental, without fault of
anybody, and consequently fortuitous, and that,
in so considering it to absolve the defendants,
he did not incur the second error assigned on
the appeal, because, without overlooking the
import and legal value of the affidavit adduced
at the trial, he held that the defendants in their
conduct were not liable for any omission that
might constitute such fault or negligence as
would oblige them to indemnify the plaintiff; and
to support the error assigned no legal provision
whatever was cited such as would require a
different finding, nor was any other authentic
document produced than the aforesaid affidavit
which contained an account of the ocular
inspection and the expert's report, which, as
well as the testimony of the witnesses, the trial
court was able to pass upon in accordance with
its exclusive power-all points of proof which do
not reveal any mistake on the part of the judge,
whose opinion the appellant would substitute
with his own by a different interpretation.
These authorities are sufficient to show that liability for
acts ex delicto under the Civil Code is precisely that
embraced within the "proximate cause" of the Anglo-
Saxon law of torts.
The general rule, as frequently stated, is that in
order that an act omission may be the proximate
cause of an injury, the injury must be the
natural and probable consequence of the act or
omission and such as might have been foreseen
by an ordinarily responsible and prudent man, in
the light of the attendant circumstances, as
likely to result therefrom . . .
According to the latter authorities
foreseeableness, as an element of proximate
cause, does not depend upon whether an
ordinarily reasonable and prudent man would or
ought in advance to have anticipated the result
which happened, but whether, if such result and
the chain of events connecting it with the act
complained of had occurred to his mind, the
same would have seemed natural and probable
and according to the ordinary course of nature.
Thus, as said in one case, "A person guilty of
negligence, or an unlawful act, should be held
responsible for all the consequences which a
prudent and experienced man, fully acquainted
with all the circumstances which in fact existed,
would at the time of the negligent or unlawful
act have thought reasonable to follow, if they
had occurred to his mind." (Wabash R. etc.
Co. vs. Coker, 81 Ill. App. 660, 664; Cooley on
Torts, sec. 15.)
The view which I shall endeavor to justify is
that, for the purpose of civil liability, those
consequences, and those only, are deemed
"immediate," "proximate," or, to anticipate a
little, "natural and probable," which a person of
average competence and knowledge, being in
the like case with the person whose conduct is
complained of, and having the like opportunities
of observation, might be expected to foresees as
likely to follow upon such conduct. This is only
where the particular consequence is not known
to have been intended or foreseen by the actor.
 If proof of that be forthcoming, whether the
consequence was "immediate" or not does not
matter. That which a man actually foresees is to
him, at all events, natural and probable. (Webb's
Pollock on Torts, p. 32.)
There is another line of definitions which have for their
basis "the natural and probable consequences" or "the
direct and immediate consequences" of the defendant's
act. (Joyce on Damages, sec. 82.)
It will be observed that the supreme court of Spain, in
the above decisions, has rather inclined to this line of
definitions of what results a defendant is liable for as a
consequence of his wrongful acts, while the Civil Code
uses the phraseology, "those foreseen or which may
have been foreseen." From either viewpoint the method
of arriving at the liability of the wrongdoer under the
Civil Code and under the Anglo Saxon law is the same.
Such was the holding of this court in Taylor vs. M. E. R.
and L. Co. (16 Phil. Rep., 8, 15):
We agree with counsel for appellant that under
the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an
action such as that under consideration, in order
to establish his right to a recovery, must
establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which
defendant personally, or some person for whose
acts it must respond, was guilty.
(3) The connection of cause and effect between
the negligence and the damages.
These propositions are, of course, elementary,
and do not admit of discussion, the real difficulty
arising in the application of these principles to
the particular facts developed in the case under
consideration.
Parenthetically it may be said that we are not now
dealing with the doctrine of comparative (contributory)
negligence which was established by Rakes vs. A. G. and
P. Co. (7 Phil. Rep., 359), and Eades vs. A. G. and P.
Co. (19 Phil., Rep., 561.)
The rules for the measure of damages, once that liability
is determined, are, however, somewhat different. The
Civil Code requires that the defendant repair the damage
caused by his fault or negligence. No distinction is made
therein between damage caused maliciously and
intentionally and damages caused through mere
negligence in so far as the civil liability of the wrongdoer
in concerned. Nor is the defendant required to do more
than repair the damage done, or, in other words, to put
the plaintiff in the same position, so far as pecuniary
compensation can do so, that he would have been in
had the damage not been inflicted. In this respect there
is a notable difference between the two systems. Under
the Anglo-SAxon law, when malicious or willful intention
to cause the damage is an element of the defendant's
act, it is quite generally regarded as an aggravating
circumstance for which the plaintiff is entitled to more
than mere compensation for the injury inflicted. These
are called exemplary or punitive damages, and no
provision is made for them in article 1902 of the Civil
Code.
Again it is quite common under the English system to
award what is called nominal damages where there is
only a technical violation of the plaintiff's rights resulting
in no substantial injury to him. This branch of damages
is also unknown under the Civil Code. If no damages
have actually occurred there can be none to repair and
the doctrine of nominal damages is not applicable. Thus
it has been often held by the supreme court of Spain
that a mere noncompliance with the obligations of a
contract is not sufficient to sustain a judgment for
damages. It must be shown that damages actually
existed. (Decision of February 10, 1904.) Again, in its
decision of January 9, 1897, that high tribunal said that
as a logical consequence of the requirements of articles
1101, 1718, and 1902 that he who causes damages
must repair them, their existence must be proved.
In at least one case decided by this court we held in
effect that nominal damages could not be allowed.
(Mercado vs. Abangan, 10 Phil., Rep., 676.)
The purpose of the law in awarding actual
damages is to repair the wrong that has been
done, to compensate for the injury inflicted, and
not to impose a penalty. Actual damages are not
dependent on nor graded by the intent with
which the wrongful act is done."
(Field vs. Munster, 11 Tex. Civ., Appl., 341, 32
S. W., 417.) "The words "actual damages" shall
be construed to include all damages that the
plaintiff may he has suffered in respect to his
property, business, trade, profession, or
occupation, and no other damages whatever."
(Gen Stat. Minn. 1894, sec., 5418.) "Actual
damages are compensatory only." (Lord, Owen
and Co. vs. Wood, 120 Iowa, 303, 94 N. W.,
842.) " `Compensatory damages' as indicated
by the word employed to characterize them,
simply make good or replace the loss caused by
the wrong. They proceed from a sense of
natural justice, and are designed to repair that
of which one has been deprived by the wrong of
another." (Reid vs.Terwilliger, 116 N. Y., 530; 22
N. E., 1091.) "Compensatory damages' are such
as awarded to compensate the injured party for
 caused by the wrong, and must be only such as
make just and fair compensation, and are due
when the wrong is established, whether it was
committed maliciously — that is, with evil
intention — or not. (Wimer vs. Allbaugh, 78
Iowa, 79; 42 N. W., 587; 16 Am. St. Rep., 422.)
Finally, this court has itself held that actual damages are
the extent of the recovery allowed to the plaintiff.
In Marker vs. Garcia (5 Phil., Rep., 557), which was an
action for damages for breach of contract, this court
said: "Except in those cases where the law authorizes
the imposition of punitive or exemplary damages, the
party claiming damages must establish by competent
evidence the amount of such damages, and courts can
not give judgment for a greater amount than those
actually proven."
We are of the opinion that the requirements of article
1902, that the defendant repair the damage done can
only mean what is set forth in the above definitions,
Anything short of that would not repair the damages and
anything beyond that would be excessive. Actual
compensatory damages are those allowed for tortious
wrongs under the Civil Code; nothing more, nothing
less.
According to the text of article 1106 of the Civil Code,
which, according to the decision of February 7, 1990
(referred to above), is the generic conception of what
article 1902 embraces, actual damages include not only
loss already suffered, but loss of profits which may not
have been realized. The allowance of loss of prospective
profits could hardly be more explicitly provided for. But it
may not be amiss to refer to the decisions of the
supreme court of Spain for its interpretation of this
article. The decisions are numerous upon this point. The
decisions are as epitomized by Sanchez Roman (vol. 1,
0. 281), interprets article 1106 as follows:
Pursuant to articles 1106 and 1107 of the same
Code, which govern in general the matter of
indemnity due for the nonfulfillment of
obligations, the indemnity comprises, not only
the value of loss suffered, but also that of the
prospective profit that was not realized, and the
obligation of the debtor in good faith is limited
to such losses and damages as were foreseen or
might have been foreseen at the time the
obligation was incurred and which are a
necessary consequence of his failure of
fulfillment. Losses and damages under such
limitations and frustrated profits must,
therefore, be proved directly by means of the
evidence the law authorizes.
The decisions of January 8, 1906 (published in 14 Jurisp.
del Codigo Civil, 516) had to do with the following case:
The plaintiff, a painter by occupation, was engaged to
paint the poles from which were suspended the trolley
wires of a traction company. While at work on February
8, 1901, the electric current was negligently turned on
by the company, whereby plaintiff received a severe
shock, causing him to fall to the ground. Plaintiff
sustained injuries which took several months to heal and
his right arm was permanently disabled by the accident.
The age of the plaintiff is not stated. His daily wage was
four pesetas. He was awarded 25,000 pesetas by the
trial court and this judgment was affirmed on appeal to
the supreme court. This was equivalent to approximately
twenty year's salary.
In its decision of January 15, 1902 (published in 10
Jurisp. del Codigo Civil., 260), the supreme court had
the following case under consideration: Plaintiff's son
was a travelling salesman 48 years of age, who received
an annual salary of 2,500 pesetas and expenses. While
travelling on defendant's train an accident occurred
which caused his death. The accident was held to be
due to the failure of the defendant company to keep its
track and roadbed in good repair. Plaintiff was allowed
35,000 pesetas for the death of her son. this would be
equivalent to about fourteen years' salary.
in the case dated October 19, 1909 (published in 116
Jurisp. del Codigo Civil, 120), plaintiff as suing for the
death of his son caused from injuries inflicted by the
defendant's bull while plaintiff and his son were
travelling along a public road. The age of the son is not
given. Plaintiff was awarded 3,000 pesetas damages.
In each of the above-mentioned cases the supreme
court refused to pass on the amount of damages which
had been awarded. It appears to be the unvarying rule
of the supreme court of Spain to accept the amount of
damages awarded by trial courts, its only inquiry being
as to whether damages have actually occurred as the
result of the defendant's fault or negligence. (Decision of
July 5, 1909.) The reason why the supreme court of
Spain refuses to consider the amount of damages
awarded is to be found in the great importance attached
by it to the provision of the Ley de Enjuiciamiento Civil,
articles 659 and 1692, No. 7. In its auto of March 16,
1900 (published in 8 Jurisp. del Codigo Civil, 503), the
following comment is made on these articles:
As this supreme court has repeatedly held, the
weight given by the trial judge to the testimony,
with good discernment or otherwise, can not be
a matter for reversal, not even with the support
of No. 7 of article 1692 of the Ley de
Enjuiciamiento Civil, as it is exclusively
submitted to him, pursuant to the provisions of
article 659 of the said law and article 1248 of
the Code.
The practice of this court, under our Code of Civil
Procedure, does not permit of our going to such lengths
in sustaining the findings of fact in trial courts. We have
repeatedly held that due weight will be given in this
court to the findings of fact by trial courts by reason of
their opportunities to see and hear the witnesses testify,
note their demeanor and bearing upon the stand, etc.,
but when the decision of the trial court, after permitting
due allowance for its superior advantages in weighing
the evidence of the case, appears to us to be against the
fair preponderance of that evidence, it is our duty to
reverse or set aside the findings of fact made by the trial
court and render such judgment as the facts of the
same deem to us to warrant. (Code of Civ., Proc., sec.
496.) We need go to no other branch of law than that of
damages to support this statement. In the following
case the damages awarded by the lower court were
reduced after a consideration of the evidence;
Sparrevohn vs. Fisher (2 Phil. Rep., 676); Campbell and
Go-Tauco vs. Behn, Meyer and Co. (3 Phil., Rep., 590);
Causin vs. Jakosalem 95 Phil., Rep., 155);
Marker vs.Garcia (5 Phil., Rep., 557); Uy
Piaoco vs. Osmeña (9 Phil., Rep., 299); Macleod vs. Phil.
Pub. Co. (12 Phil., Rep., 427); Orense vs. Jaucian (18
Phil. Rep., 553). In Rodriguez vs. Findlay and Co. (14
Phil. Rep., 294); and Cordoba y Conde vs. Castle Bros.
(18 Phil. Rep., 317), the damages awarded by the lower
court were increased on appeal after a consideration of
the evidence. In Brodek vs. Larson (18 Phil., Rep., 425),
it was held that the damages awarded by the lower
court were base on too uncertain evidence, and the case
was remanded for a new trial as to the amount of
damages sustained. Also in Saldivar vs. Municipality of
Talisay (18 Phil., Rep., 362), where the lower court
exonerated the defendant from liability, this court, after
a consideration of the evidence, held that the defendant
was liable and remanded the case for the purpose of a
new trial in order to ascertain the amount of damages
sustained.
In this respect the law of damages under article 1902,
as laid down by the decisions of the supreme court of
Spain, has been indirectly modified by the present Code
of Civil Procedure so that the finding of the lower court
as to the amount of damages is not conclusive on
appeal.
Actual damages, under the American system, include
pecuniary recompense for pain and suffering, injured
feelings, and the like. Article 1902, as interpreted by this
court in Marcelo vs. Velasco (11 Phil., Rep., 287), does
not extend to such incidents. Aside from this exception,
actual damages, in this jurisdiction, in the sense that
they mean just compensation for the loss suffered, are
practically synonymous with actual damages under the
American system.
This court has already gone some distance in
incorporating into our jurisprudence those principles of
the American law of actual damages which are of a
general and abstract nature. In Baer Senior and Co.'s
Successors vs.Compañia Maritima (6 Phil. Rep., 215),
the American principle of admiralty law that the liability
of the ship for a tow is not so great as that for her cargo
was applied in determining the responsibility of a ship,
under the Code of Commerce, for her tow. In
Rodriguez, vs. Findlay and Co. (14 Phil., Rep., 294),
which was an action for breach of contract of warranty,
the following principle, supported entirely by American
authority, was used in computing the amount of
damages due the plaintiff:
The damages recoverable of a manufacturer or
dealer for the breach of warranty of machinery,
which he contracts to furnish, or place in
operation for a known purpose are not confined
to the difference in value of the machinery as
warranted and as it proves to be, but includes
such consequential damages as are the direct,
immediate, and probable result of the breach.
In Aldaz vs. Gay (7 Phil., Rep., 268), it was held that the
earnings or possible earnings of a workman wrongfully
discharged should be considered in mitigation of his
damages for the breach of contract by his employer,
with the remark that nothing had been brought to our
attention to the contrary under Spanish jurisprudence.
In Fernandez vs. M. E. R. and L. Co. (14 Phil., Rep.,
274), a release or compromise for personal injury
sustained by negligence attributed to the defendant
company was held a bar to an action for the recovery of
further damages, on the strength of American
precedents.
In Taylor vs. M. E. R. and L. Co., supra, in the course of
an extended reference to American case law, the
doctrine of the so-called "Turntable" and "Torpedo"
cases was adopted by this court as a factor in
determining the question of liability for damages in such
cases as the one the court the then had under
consideration.
In Martinez vs. Van Buskirk (18 Phil., 79), this court,
after remarking that the rules under the Spanish law by
which the fact of negligence is determined are, generally
speaking, the same as they are in Anglo-Saxon
countries, approved the following well-known rule of the
Anglo-Saxon law of negligence, relying exclusively upon
American authorities: ". . . acts, the performance of
which has not proven destructive or injurious and which
have been generally acquiesced in by society for so long
a time as to have ripened into a custom, cannot be held
to be unreasonable or imprudent and that, under the
circumstances, the driver was not guilty of negligence in
so leaving his team while assisting in unloading his
wagon.
This court does not, as a rule, content itself in the
determination of cases brought before it, with a mere
reference to or quotation of the articles of the codes or
laws applicable to the questions involved, for the reason
that it is committed to the practice of citing precedents
for its rulings wherever practicable. (See
Ocampo vs. Cabangis, 15 Phil Rep., 626.) No better
example of the necessity of amplifying the treatment of
a subject given in the code is afforded than article 1902
of the Civil Code. That article requires that the
defendant repair the damage done. There is, however, a
world of difficulty in carrying out the legislative will in
this particular. The measure of damages is an ultimate
fact, to be determined from the evidence submitted to
the court. The question is sometimes a nice one to
determine, whether the offered evidence in such as
sought to be considered by the court in fixing the
quantum of damages; and while the complexity of
human affairs is such that two cases are seldom exactly
alike, a thorough discussion of each case may permit of
their more or less definite classification, and develop
leading principles which will be of great assistance to a
court in determining the question, not only of damages,
but of the prior one of negligence. We are of the opinion
that as the Code is so indefinite (even though from
necessity) on the subject of damages arising from fault
or negligence, the bench and bar should have access to
and avail themselves of those great, underlying
principles which have been gradually and conservatively
developed and thoroughly tested in Anglo-Saxon courts.
A careful and intelligent application of these principles
should have a tendency to prevent mistakes in the
rulings of the court on the evidence offered, and should
assist in determining damages, generally, with some
degree of uniformity.
The law of damages has not, for some reason, proved
as favorite a theme with the civil-law writers as with
those of the common-law school. The decisions of the
supreme court of Spain, though numerous on damages
arising from contractual obligations, are exceedingly few
upon damages for personal injuries arising ex delicto.
The reasons for this are not important to the present
discussion. It is sufficient to say that the law of damages
has not received the elaborate treatment that it has at
the hands of the Anglo-Saxon jurists. If we in this
jurisdiction desire to base our conclusions in damage
cases upon controlling principles, we may develop those
principles and incorporate them into our jurisprudence
by that difficult and tedious process which constitutes
the centuries-old history of Anglo-Saxon jurisprudence;
or we may avail ourselves of these principles in their
present state of development without further effort than
it costs to refer to the works and writings of many
eminent text-writers and jurists. We shall not attempt to
say that all these principles will be applicable in this
jurisdiction. It must be constantly borne in mind that the
law of damages in this jurisdiction was conceived in the
womb of the civil law and under an entirely different
form of government. These influences have had their
effect upon the customs and institutions of the country.
Nor are the industrial and social conditions the same. An
Act which might constitute negligence or damage here,
and vice versa. As stated in Story on Bailments, section
12, "It will thence follow that, in different times and in
different countries, the standard (of diligence) is
necessary variable with respect to the facts, although it
may be uniform with respect to the principle. So that it
may happen that the same acts which in one country or
in one age may be deemed negligent acts, may at
another time or in another country be justly deemed an
exercise of ordinary diligence."
The abstract rules for determining negligence and the
measure of damages are, however, rules of natural
justice rather than man-made law, and are applicable
under any enlightened system of jurisprudence. There is
all the more reason for our adopting the abstract
principles of the Anglo- Saxon law of damages, when we
consider that there are at least two important laws o n
our statute books of American origin, in the application
of which we must necessarily be guided by American
authorities: they are the Libel Law (which, by the way,
allows damages for injured feelings and reputation, as
well as punitive damages, in a proper case), and the
Employer's Liability Act.
The case at bar involves actual incapacity of the plaintiff
for two months, and loss of the greater portion of his
business. As to the damages resulting from the actual
incapacity of the plaintiff to attend to his business there
is no question. They are, of course, to be allowed on the
basis of his earning capacity, which in this case, is P50
per month. the difficult question in the present case is to
determine the damage which has results to his business
through his enforced absence. In Sanz vs. Lavin Bros. (6
Phil. Rep., 299), this court, citing numerous decisions of
the supreme court of Spain, held that evidence of
damages "must rest upon satisfactory proof of the
existence in reality of the damages alleged to have been
suffered." But, while certainty is an essential element of
an award of damages, it need not be a mathematical
certainty. That this is true is adduced not only from the
personal injury cases from the supreme court of Spain
which we have discussed above, but by many cases
decided by this court, reference to which has already
been made. As stated in Joyce on Damages, section 75,
"But to deny the injured party the right to recover any
actual damages in cases f torts because they are of such
a nature a cannot be thus certainly measured, would be
to enable parties to profit by and speculate upon their
own wrongs; such is not the law."
As to the elements to be considered in estimating the
damage done to plaintiff's business by reason of his
accident, this same author, citing numerous authorities,
has the following to say: It is proper to consider the
business the plaintiff is engaged in, the nature and
extent of such business, the importance of his personal
oversight and superintendence in conducting it, and the
consequent loss arising from his inability to prosecure it.
The business of the present plaintiff required his
immediate supervision. All the profits derived therefrom
were wholly due to his own exertions. Nor are his
damages confined to the actual time during which he
was physically incapacitated for work, as is the case of a
person working for a stipulated daily or monthly or
yearly salary. As to persons whose labor is thus
compensated and who completely recover from their
injuries, the rule may be said to be that their damages
are confined to the duration of their enforced absence
from their occupation. But the present plaintiff could not
resume his work at the same profit he was making when
the accident occurred. He had built up an establishing
business which included some twenty regular customers.
These customers represented to him a regular income.
In addition to this he made sales to other people who
were not so regular in their purchases. But he could
figure on making at least some sales each month to
others besides his regular customers. Taken as a whole
his average monthly income from his business was
about P50. As a result of the accident, he lost all but
four of his regular customers and his receipts dwindled
down to practically nothing. Other agents had invaded
his territory, and upon becoming physically able to
attend to his business, he found that would be
necessary to start with practically no regular trade, and
either win back his old customers from his competitors
or else secure others. During this process of
reestablishing his patronage his income would
necessarily be less than he was making at the time of
the accident and would continue to be so for some time.
Of course, if it could be mathematically determined how
much less he will earn during this rebuilding process
than he would have earned if the accident had not
occurred, that would be the amount he would be
entitled to in this action. But manifestly this ideal
compensation cannot be ascertained. The question
therefore resolves itself into whether this damage to his
business can be so nearly ascertained as to justify a
court in awarding any amount whatever.
When it is shown that a plaintiff's business is a going
concern with a fairly steady average profit on the
investment, it may be assumed that had the interruption
to the business through defendant's wrongful act not
occurred, it would have continued producing this
average income "so long as is usual with things of that
nature." When in addition to the previous average
income of the business it is further shown what the
reduced receipts of the business are immediately after
the cause of the interruption has been removed, there
can be no manner of doubt that a loss of profits has
resulted from the wrongful act of the defendant. In the
present case, we not only have the value of plaintiff's
business to him just prior to the accident, but we also
have its value to him after the accident. At the trial, he
testified that his wife had earned about fifteen pesos
during the two months that he was disabled. That this
almost total destruction of his business was directly
chargeable to defendant's wrongful act, there can be no
manner of doubt; and the mere fact that the loss can
not be ascertained with absolute accuracy, is no reason
for denying plaintiff's claim altogether. As stated in one
case, it would be a reproach to the law if he could not
recover damages at all. (Baldwin vs. Marquez, 91 Ga.,
404)
Profits are not excluded from recovery because
they are profits; but when excluded, it is on the
ground that there are no criteria by which to
estimate the amount with the certainty on which
the adjudications of courts, and the findings of
juries, should be based. (Brigham vs. Carlisle
(Ala.), 56 Am. Rep., 28, as quoted in
Wilson vs. Wernwag, 217 Pa., 82.)
The leading English case on the subject is
Phillips vs. London and Southwestern Ry. Co. (5 Q. B.
D., 788; 41 L.T., 121; 8 Eng. Rul. Cases, 447). The
plaintiff was a physician with a very lucrative practice. In
one case he had received a fee of 5,000 guineas; but it
appeared that his average income was between 6,000
and 7,000 pounds sterling per year. The report does not
state definitely how serious plaintiff's injuries were, but
apparently he was permanently disabled. The following
instruction to the jury was approved, and we think
should be set out in this opinion as applicable to the
present case:
You cannot put the plaintiff back again into his
original position, but you must bring your
reasonable common sense to bear, and you
must always recollect that this is the only
occasion on which compensation can be given.
Dr. Philips can never sue again for it. You have,
therefore, not to give him compensation a
wrong at the hands of the defendants, and you
must take care o give him full, fair
compensation. for that which he has suffered.
The jury's award was seven thousand pounds. Upon a
new trial, on the ground of the insufficiency of the
damages awarded, plaintiff received 16,000 pounds. On
the second appeal, Bramwell, L. J., put the case of a
laborer earning 25 shillings a week, who, on account of
injury, was totally incapacitated for work for twenty-six
weeks, and then for ten weeks could not earn more than
ten shillings a week, and was not likely to get into full
work for another twenty weeks. The proper measure of
damages would be in that case 25 shillings a week
twenty-six weeks, plus 15 shillings a week for the ten
and twenty weeks, and damages for bodily suffering and
medical expenses. Damages for bodily suffering, of
course, are not, for reasons stated above, applicable to
this jurisdiction; otherwise we believe this example to be
the ideal compensation for loss of profits which courts
should strike to reach, in cases like the present.
In Joslin vs. Grand Rapids Ice and Coal Co. (53 Mich.,
322), the court said: "The plaintiff, in making proof of
his damages, offered testimony to the effect that he was
an attorney at law of ability and in good standing, and
the extent and value of his practice, and that, in
substance, the injury had rendered him incapable of
pursuing his profession. This was objected to as
irrelevant, immaterial and incompetent. We think this
was competent. It was within the declaration that his
standing in his profession was such as to command
respect, and was proper to be shown, and his ability to
earn, and the extent of his practice, were a portion of
the loss he had sustained by the injury complained of.
There was no error in permitting this proof, and we
further think it was competent, upon the question of
damages under the evidence in this case, for the plaintiff
to show, by Judge Hoyt, as was done, that an
interruption in his legal business and practice for eight
months was a damage to him. It seems to have been a
part of the legitimate consequences of the plaintiff's
injury."
In Luck vs. City of Ripon (52 Wis., 196), plaintiff was
allowed to prevent that she was a midwife and show the
extent of her earnings prior to the accident in order to
establish the damage done to her business.
The pioneer case of Gobel vs. Hough (26 Minn., 252)
contains perhaps one of the clearest statements of the
rule and is generally considered as one of the leading
cases on this subject. In that case the court said:
When a regular and established business, the
value of which may be ascertained, has been
wrongfully interrupted, the true general rule for
compensating the party injured is to ascertain
how much less valuable the business was by
reason of the interruption, and allow that as
damages. This gives him only what the wrongful
act deprived him of. The value of such a
business depends mainly on the ordinary profits
derived from it. Such value cannot be
ascertained without showing what the usual
profits are; nor are the ordinary profits incident
to such a business contingent or speculative, in
the sense that excludes profits from
consideration as an element of damages. What
they would have been, in the ordinary course of
the business, for a period during which it was
interrupted, may be shown with reasonable
certainty. What effect extraordinary
circumstances would have had upon the
business might be contingent and conjectural,
and any profits anticipated from such cause
would be obnoxious to the objection that they
are merely speculative; but a history of the
business, for a reasonable time prior to a period
of interruption, would enable the jury to
determine how much would be done under
ordinary circumstances, and in the usual course,
during the given period; and the usual rate of
profit being shown, of course the aggregate
becomes only a matter of calculation.
In the very recent case of Wellington vs. Spencer (Okla.,
132 S. W., 675), plaintiff had rented a building from the
defendant and used it as a hotel. Defendant sued out a
wrongful writ of attachment upon the equipment of the
plaintiff, which caused him to abandon his hotel
business. After remarking that the earlier cases held that
no recovery could be had for prospective profits, but
that the later authorities have held that such damages
may be allowed when the amount is capable of proof,
the court had the following to say:
Where the plaintiff has just made his
arrangements to begin business, and he is
prevented from beginning either by tort or a
breach of contract, or where the injury is to a
particular subject matter, profits of which are
uncertain, evidence as to expected profits must
be excluded from the jury because of the
uncertainty. There is as much reason to believe
that there will be no profits as to believe that
there will be no profits, but no such argument
can be made against proving a usual profit of an
established business. In this case the plaintiff,
according to his testimony, had an established
business, and was earning a profit in the
business, and had been doing that for a
sufficient length of time that evidence as to
prospective profits was not entirely speculative.
Men who have been engaged in business
calculate with a reasonable certainty the income
from their business, make their plans to live
accordingly, and the value of such business is
not a matter of speculation as to exclude
evidence from the jury.
A good example of a business not established for which
loss of profits will be allowed may be found in the
States vs.Durkin (65 Kan., 101). Plaintiffs formed a
partnership, and entered the plumbing business in the
city of Topeka in April. In July of the same year, they
brought an action against a plumbers' association on the
ground that the latter had formed an unlawful
combination in restraint of trade and prevented them
from securing supplies for their business within a
reasonable time. The court said:
In the present case the plaintiffs had only been
in business a short time — not so long that it
can be said that they had an established
business. they had contracted three jobs of
 plumbing, had finished two, and lost money on
both; not, however, because of any misconduct
or wrongful acts on the part of the defendants
or either of them. They carried no stock in
trade, and their manner of doing business was
to secure a contract and then purchase the
material necessary for its completion. It is not
shown that they had any means or capital
invested in the business other than their tools.
Neither of them had prior thereto managed or
carried on a similar business. Nor was it shown
that they were capable of so managing this
business as to make it earn a profit. There was
little of that class of business being done at the
time, and little, if any, profit derived therefrom.
The plaintiffs' business lacked duration,
permanency, and recognition. It was an
adventure, as distinguished from an established
business. Its profits were speculative and
remote, existing only in anticipation. The law,
with all its vigor and energy in its effort to right
or wrongs and damages for injuries sustained,
may not enter into a domain of speculation or
conjecture. In view of the character and
condition of the plaintiffs' business, the jury had
not sufficient evidence from which to ascertain
profits.
Other cases which hold that the profits of an established
business may be considered in calculating the measure
of damages for an interruption of it are:
Wilkinson vs. Dunbar (149 N. C., 20); Kinney vs. Crocker
(18 Wis., 80); Sachra vs. Manila (120 la., 562);
Kramer vs. City of Los Angeles (147 Cal., 668);
Mugge vs. Erkman (161 Ill. App., 180); Fredonia Gas
Co. vs. Bailey 977 Kan., 296); Morrow vs. Mo. Pac. R.
Co. (140 Mo. App., 200); City of Indianapolis vs. Gaston
(58 Ind., 24); National Fibre Board vs. Auburn Electric
Light Co. (95 Me., 318); Sutherland on Damages, sec.
70.
We have now outlined the principles which should
govern the measure of damages in this case. We are of
the opinion that the lower court had before it sufficient
evidence of the damage to plaintiff's business in the way
of prospective loss of profits to justify it in calculating his
damages as to his item. That evidence has been
properly elevated to this court of review. Under section
496 of the Code of Civil Procedure, we are authorized to
enter final judgment or direct a new trial, as may best
subserve the ends of justice. We are of the opinion that
the evidence presented as to the damage done to
plaintiff's business is credible and that it is sufficient and
clear enough upon which to base a judgment for
damages. Plaintiff having had four years' experience in
selling goods on commission, it must be presumed that
he will be able to rebuild his business to its former
proportions; so that at some time in the future his
commissions will equal those he was receiving when the
accident occurred. Aided by his experience, he should be
able to rebuild this business to its former proportions in
much less time than it took to establish it as it stood just
prior to the accident. One year should be sufficient time
in which to do this. The profits which plaintiff will receive
from the business in the course of its reconstruction will
gradually increase. The injury to plaintiff's business
begins where these profits leave off, and, as a corollary,
there is where defendant's liability begins. Upon this
basis, we fix the damages to plaintiff's business at P250.
The judgment of the lower court is set aside, and the
plaintiff is awarded the following damages; ten pesos for
medical expenses; one hundred pesos for the two
months of his enforced absence from his business; and
two hundred and fifty pesos for the damage done to his
business in the way of loss of profits, or a total of three
hundred and sixty pesos. No costs will be allowed in this
instance.
(a) KINDS
[G.R. No. 107518. October 8, 1998]
PNOC SHIPPING AND TRANSPORT
CORPORATION, petitioner, vs. HONORABLE COURT
OF APPEALS and MARIA EFIGENIA FISHING
CORPORATION, respondents.
A party is entitled to adequate compensation only
for such pecuniary loss actually suffered and duly
proved.[1] Indeed, basic is the rule that to recover actual
damages, the amount of loss must not only be capable
of proof but must actually be proven with a reasonable
degree of certainty, premised upon competent proof or
best evidence obtainable of the actual amount
thereof.[2] The claimant is duty-bound to point out
specific facts that afford a basis for measuring whatever
compensatory damages are borne.[3] A court cannot
merely rely on speculations, conjectures, or guesswork
as to the fact and amount of damages[4] as well as
hearsay[5] or uncorroborated testimony whose truth is
suspect.[6] Such are the jurisprudential precepts that the
Court now applies in resolving the instant petition.
The records disclose that in the early morning of
September 21, 1977, the M/V Maria Efigenia XV, owned
by private respondent Maria Efigenia Fishing
Corporation, was navigating the waters near Fortune
Island in Nasugbu, Batangas on its way to Navotas,
Metro Manila when it collided with the
vessel Petroparcel which at the time was owned by the
Luzon Stevedoring Corporation (LSC).
After investigation was conducted by the Board of
Marine Inquiry, Philippine Coast Guard Commandant
Simeon N. Alejandro rendered a decision finding
the Petroparcel at fault. Based on this finding by the
Board and after unsuccessful demands on
petitioner,[7] private respondent sued the LSC and
the Petroparcel captain, Edgardo Doruelo, before the
then Court of First Instance of Caloocan City, paying
thereto the docket fee of one thousand two hundred
fifty-two pesos (P1,252.00) and the legal research fee of
two pesos (P2.00).[8] In particular, private respondent
prayed for an award of P692,680.00, allegedly
representing the value of the fishing nets, boat
equipment and cargoes of M/V Maria Efigenia XV, with
interest at the legal rate plus 25% thereof as attorneys
fees. Meanwhile, during the pendency of the case,
petitioner PNOC Shipping and Transport Corporation
sought to be substituted in place of LSC as it had
already acquired ownership of the Petroparcel.[9]
For its part, private respondent later sought the
amendment of its complaint on the ground that the
original complaint failed to plead for the recovery of the
lost value of the hull of M/V Maria Efigenia
XV.[10] Accordingly, in the amended complaint, private
respondent averred that M/V Maria Efigenia XV had an
actual value of P800,000.00 and that, after deducting
the insurance payment of P200,000.00, the amount
of P600,000.00 should likewise be claimed. The
amended complaint also alleged that inflation resulting
from the devaluation of the Philippine peso had affected
the replacement value of the hull of the vessel, its
equipment and its lost cargoes, such that there should
be a reasonable determination thereof. Furthermore, on
account of the sinking of the vessel, private respondent
supposedly incurred unrealized profits and lost business
opportunities that would thereafter be proven.[11]
Subsequently, the complaint was further amended
to include petitioner as a defendant[12] which the lower
court granted in its order of September 16,
1985.[13] After petitioner had filed its answer to the
second amended complaint, on February 5, 1987, the
lower court issued a pre-trial order[14] containing, among
other things, a stipulations of facts, to wit:
1. On 21 September 1977, while the fishing
boat `M/V MARIA EFIGENIA owned by plaintiff
was navigating in the vicinity of Fortune Island
in Nasugbu, Batangas, on its way to Navotas,
Metro Manila, said fishing boat was hit by the
LSCO tanker Petroparcel causing the former to
sink.
2. The Board of Marine Inquiry conducted an
investigation of this marine accident and on 21
November 1978, the Commandant of the
Philippine Coast Guard, the Honorable Simeon
N. Alejandro, rendered a decision finding the
cause of the accident to be the reckless and
imprudent manner in which Edgardo Doruelo
navigated the LSCO Petroparcel and declared
the latter vessel at fault.
3. On 2 April 1978, defendant Luzon
Stevedoring Corporation (LUSTEVECO),
executed in favor of PNOC Shipping and
Transport Corporation a Deed of Transfer
involving several tankers, tugboats, barges and
pumping stations, among which was the LSCO
Petroparcel.
4. On the same date on 2 April 1979 (sic),
defendant PNOC STC again entered into an
Agreement of Transfer with co-defendant
Lusteveco whereby all the business properties
and other assets appertaining to the tanker
and bulk oil departments including the motor
tanker LSCO Petroparcel of defendant
Lusteveco were sold to PNOC STC.
5. The aforesaid agreement stipulates, among
others, that PNOC-STC assumes, without
qualifications, all obligations arising from and
by virtue of all rights it obtained over the LSCO
`Petroparcel.
6. On 6 July 1979, another agreement between
defendant LUSTEVECO and PNOC-STC was
executed wherein Board of Marine Inquiry Case
No. 332 (involving the sea accident of 21
September 1977) was specifically identified and
assumed by the latter.
7. On 23 June 1979, the decision of Board of
Marine Inquiry was affirmed by the Ministry of
National Defense, in its decision dismissing the
appeal of Capt. Edgardo Doruelo and Chief
mate Anthony Estenzo of LSCO `Petroparcel.
8. LSCO `Petroparcel is presently owned and
operated by PNOC-STC and likewise Capt.
Edgardo Doruelo is still in their employ.
9. As a result of the sinking of M/V Maria
Efigenia caused by the reckless and imprudent
manner in which LSCO Petroparcel was
navigated by defendant Doruelo, plaintiff
suffered actual damages by the loss of its
fishing nets, boat equipments (sic) and
cargoes, which went down with the ship when
it sank the replacement value of which should
be left to the sound discretion of this
Honorable Court.
After trial, the lower court[15] rendered on
November 18, 1989 its decision disposing of Civil Case
No. C-9457 as follows:
WHEREFORE, and in view of the foregoing,
judgment is hereby rendered in favor of the
plaintiff and against the defendant PNOC
Shipping & Transport Corporation, to pay the
plaintiff:
a. The sum of P6,438,048.00 representing the
value of the fishing boat with interest from the
 date of the filing of the complaint at the rate
of 6% per annum;
b. The sum of P50,000.00 as and for attorneys
fees; and
c. The costs of suit.
The counterclaim is hereby DISMISSED for lack
of merit. Likewise, the case against defendant
Edgardo Doruelo is hereby DISMISSED, for lack
of jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court
cited the evidence presented by private respondent
consisting of the testimony of its general manager and
sole witness, Edilberto del Rosario. Private respondents
witness testified that M/V Maria Efigenia XV was owned
by private respondent per Exhibit A, a certificate of
ownership issued by the Philippine Coast Guard showing
that M/V Maria Efigenia XV was a wooden motor boat
constructed in 1965 with 128.23 gross
tonnage. According to him, at the time the vessel sank,
it was then carrying 1,060 tubs (baeras) of assorted fish
the value of which was never recovered. Also lost with
the vessel were two cummins engines (250
horsepower), radar, pathometer and compass. He
further added that with the loss of his flagship vessel in
his fishing fleet of fourteen (14) vessels, he was
constrained to hire the services of counsel whom he paid
P10,000 to handle the case at the Board of Marine
Inquiry and P50,000.00 for commencing suit for
damages in the lower court.
As to the award of P6,438,048.00 in actual
damages, the lower court took into account the
following pieces of documentary evidence that private
respondent proffered during trial:
(a) Exhibit A certified xerox copy of the certificate of
ownership of M/V Maria Efigenia XV;
(b) Exhibit B a document titled Marine Protest
executed by Delfin Villarosa, Jr. on
September 22, 1977 stating that as a result
of the collision, the M/V Maria Efigenia
XV sustained a hole at its left side that
caused it to sink with its cargo of
1,050 baerasvalued at P170,000.00;
(c) Exhibit C a quotation for the construction of a 95-
footer trawler issued by Isidoro A. Magalong
of I. A. Magalong Engineering and
Construction on January 26, 1987 to Del
Rosario showing that construction of such
trawler would cost P2,250,000.00;
(d) Exhibit D pro forma invoice No. PSPI-05/87-NAV
issued by E.D. Daclan of Power Systems,
Incorporated on January 20, 1987 to Del
Rosario showing that two (2) units of
CUMMINS Marine Engine model N855-M, 195
bhp. at 1800 rpm. would cost P1,160,000.00;
(e) Exhibit E quotation of prices issued by Scan
Marine Inc. on January 20, 1987 to Del
Rosario showing that a unit of Furuno
Compact Daylight Radar, Model FR-604D,
would cost P100,000.00 while a unit of
Furuno Color Video Sounder, Model FCV-501
would cost P45,000.00 so that the two units
would cost P145,000.00;
(f) Exhibit F quotation of prices issued by Seafgear
Sales, Inc. on January 21, 1987 to Del
Rosario showing that two (2) rolls of nylon
rope (5 cir. X 300fl.) would
cost P140,000.00; two (2) rolls of nylon rope
(3 cir. X 240fl.), P42,750.00; one (1)
binocular (7 x 50), P1,400.00, one (1)
compass (6), P4,000.00 and 50 pcs. of
floats, P9,000.00 or a total of P197, 150.00;
(g) Exhibit G retainer agreement between Del
Rosario and F. Sumulong Associates Law
Offices stipulating an acceptance fee
ofP5,000.00, per appearance fee of P400.00,
monthly retainer of P500.00, contingent fee
of 20% of the total amount recovered and
that attorneys fee to be awarded by the
court should be given to Del Rosario; and
(h) Exhibit H price quotation issued by Seafgear
Sales, Inc. dated April 10, 1987 to Del
Rosario showing the cost of poly nettings as:
50 rolls of 400/18 3kts. 100md x
100mtrs., P70,000.00; 50 rolls of 400/18
5kts. 100md x 100mtrs., P81,500.00; 50 rolls
of 400/18 8kts. 100md x
100mtrs., P116,000.00, and 50 rolls of
400/18 10kts. 100md x 100mtrs., P146,500
and banera(tub) at P65.00 per piece or a
total of P414,065.00
The lower court held that the prevailing
replacement value of P6,438,048.00 of the fishing boat
and all its equipment would regularly increase at 30%
every year from the date the quotations were given.
On the other hand, the lower court noted that
petitioner only presented Lorenzo Lazaro, senior
estimator at PNOC Dockyard & Engineering Corporation,
as sole witness and it did not bother at all to offer any
documentary evidence to support its position. Lazaro
testified that the price quotations submitted by private
respondent were excessive and that as an expert
witness, he used the quotations of his suppliers in
making his estimates. However, he failed to present
such quotations of prices from his suppliers, saying that
he could not produce a breakdown of the costs of his
estimates as it was a sort of secret scheme. For this
reason, the lower court concluded:
Evidently, the quotation of prices submitted by
the plaintiff relative to the replacement value of
the fishing boat and its equipments in the tune
of P6,438,048.00 which were lost due to the
recklessness and imprudence of the herein
defendants were not rebutted by the latter with
sufficient evidence. The defendants through
their sole witness Lorenzo Lazaro relied heavily
on said witness bare claim that the amount
afore-said is excessive or bloated, but they did
not bother at all to present any documentary
evidence to substantiate such claim. Evidence
to be believed, must not only proceed from the
mouth of the credible witness, but it must be
credible in itself. (Vda. de Bonifacio vs. B. L. T.
Bus Co., Inc. L-26810, August 31, 1970).
 Aggrieved, petitioner filed a motion for the
reconsideration of the lower courts decision contending
that: (1) the lower court erred in holding it liable for
damages; that the lower court did not acquire
jurisdiction over the case by paying only P1,252.00 as
docket fee; (2) assuming that plaintiff was entitled to
damages, the lower court erred in awarding an amount
greater than that prayed for in the second amended
complaint; and (3) the lower court erred when it failed
to resolve the issues it had raised in its
memorandum.[16] Petitioner likewise filed a supplemental
motion for reconsideration expounding on whether the
lower court acquired jurisdiction over the subject matter
of the case despite therein plaintiffs failure to pay the
prescribed docket fee.[17]
On January 25, 1990, the lower court declined
reconsideration for lack of merit.[18] Apparently not
having received the order denying its motion for
reconsideration, petitioner still filed a motion for leave to
file a reply to private respondents opposition to said
motion.[19] Hence, on February 12, 1990, the lower court
denied said motion for leave to file a reply on the
ground that by the issuance of the order of January 25,
1990, said motion had become moot and academic.[20]
Unsatisfied with the lower courts decision,
petitioner elevated the matter to the Court of Appeals
which, however, affirmed the same in toto on October
14, 1992.[21] On petitioners assertion that the award
of P6,438,048.00 was not convincingly proved by
competent and admissible evidence, the Court of
Appeals ruled that it was not necessary to qualify Del
Rosario as an expert witness because as the owner of
the lost vessel, it was well within his knowledge and
competency to identify and determine the equipment
installed and the cargoes loaded on the
vessel. Considering the documentary evidence presented
as in the nature of market reports or quotations, trade
journals, trade circulars and price lists, the Court of
Appeals held, thus:
Consequently, until such time as the Supreme
Court categorically rules on the admissibility or
inadmissibility of this class of evidence, the
reception of these documentary exhibits (price
quotations) as evidence rests on the sound
discretion of the trial court.In fact, where the
lower court is confronted with evidence which
appears to be of doubtful admissibility, the
judge should declare in favor of admissibility
rather than of non-admissibility (The Collector
of Palakadhari, 124 [1899], p. 43, cited in
Francisco, Revised Rules of Court, Evidence,
Volume VII, Part I, 1990 Edition, p. 18). Trial
courts are enjoined to observe the strict
enforcement of the rules of evidence which
crystallized through constant use and practice
and are very useful and effective aids in the
search for truth and for the effective
administration of justice. But in connection with
evidence which may appear to be of doubtful
relevancy or incompetency or admissibility, it is
the safest policy to be liberal, not rejecting
them on doubtful or technical grounds, but
admitting them unless plainly irrelevant,
immaterial or incompetent, for the reason that
their rejection places them beyond the
consideration of the court. If they are
thereafter found relevant or competent, can
easily be remedied by completely discarding or
ignoring them.(Banaria vs. Banaria, et al., C.A.
No. 4142, May 31, 1950; cited in Francisco,
Supra). [Underscoring supplied].
Stressing that the alleged inadmissible documentary
exhibits were never satisfactorily rebutted by appellants
own sole witness in the person of Lorenzo Lazaro, the
appellate court found that petitioner ironically situated
itself in an inconsistent posture by the fact that its own
witness, admittedly an expert one, heavily relies on the
very same pieces of evidence (price quotations)
appellant has so vigorously objected to as inadmissible
evidence. Hence, it concluded:
x x x. The amount of P6,438,048.00 was duly
established at the trial on the basis of appellees
documentary exhibits (price quotations) which
stood uncontroverted, and which already
included the amount by way of adjustment as
prayed for in the amended complaint. There
was therefore no need for appellee to amend
the second amended complaint in so far as to
the claim for damages is concerned to conform
with the evidence presented at the trial. The
amount of P6,438,048.00 awarded is clearly
within the relief prayed for in appellees second
amended complaint.
On the issue of lack of jurisdiction, the respondent
court held that following the ruling in Sun Insurance Ltd.
v. Asuncion,[22] the additional docket fee that may later
on be declared as still owing the court may be enforced
as a lien on the judgment.
Hence, the instant recourse.
In assailing the Court of Appeals decision, petitioner
posits the view that the award of P6,438,048 as actual
damages should have been in light of these
considerations, namely: (1) the trial court did not base
such award on the actual value of the vessel and its
equipment at the time of loss in 1977; (2) there was no
evidence on extraordinary inflation that would warrant
an adjustment of the replacement cost of the lost vessel,
equipment and cargo; (3) the value of the lost cargo
and the prices quoted in respondents documentary
evidence only amount to P4,336,215.00; (4) private
respondents failure to adduce evidence to support its
claim for unrealized profit and business opportunities;
and (5) private respondents failure to prove the extent
and actual value of damages sustained as a result of the
1977 collision of the vessels.[23]
Under Article 2199 of the Civil Code, actual or
compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury
sustained. They proceed from a sense of natural justice
and are designed to repair the wrong that has been
done, to compensate for the injury inflicted and not to
impose a penalty.[24] In actions based on torts or quasi-
delicts, actual damages include all the natural and
probable consequences of the act or omission
complained of.[25] There are two kinds of actual or
compensatory damages: one is the loss of what a
person already possesses (dao emergente), and the
other is the failure to receive as a benefit that which
would have pertained to him (lucro cesante).[26] Thus:
Where goods are destroyed by the wrongful
act of the defendant the plaintiff is entitled to
their value at the time of destruction, that is,
normally, the sum of money which he would
have to pay in the market for identical or
essentially similar goods, plus in a proper case
damages for the loss of use during the period
before replacement. In other words, in the
case of profit-earning chattels, what has to be
assessed is the value of the chattel to its owner
as a going concern at the time and place of the
loss, and this means, at least in the case of
ships, that regard must be had to existing and
pending engagements.x x x.
x x x. If the market value of the ship reflects
the fact that it is in any case virtually certain of
profitable employment, then nothing can be
added to that value in respect of charters
actually lost, for to do so would be pro tanto to
compensate the plaintiff twice over. On the
other hand, if the ship is valued without
reference to its actual future engagements and
only in the light of its profit-earning
potentiality, then it may be necessary to add to
the value thus assessed the anticipated profit
on a charter or other engagement which it was
unable to fulfill. What the court has to
ascertain in each case is the `capitalised value
of the vessel as a profit-earning machine not in
the abstract but in view of the actual
circumstances, without, of course, taking into
account considerations which were too remote
at the time of the loss.[27] [Underscoring
supplied].
As stated at the outset, to enable an injured party
to recover actual or compensatory damages, he is
required to prove the actual amount of loss with
reasonable degree of certainty premised upon
competent proof and on the best evidence
available.[28] The burden of proof is on the party who
would be defeated if no evidence would be presented on
either side. He must establish his case by a
preponderance of evidence which means that the
evidence, as a whole, adduced by one side is superior to
that of the other.[29] In other words, damages cannot be
presumed and courts, in making an award must point
out specific facts that could afford a basis for measuring
whatever compensatory or actual damages are borne.[30]
In this case, actual damages were proven through
the sole testimony of private respondents general
manager and certain pieces of documentary
evidence. Except for Exhibit B where the value of the
1,050 baeras of fish were pegged at their September
1977 value when the collision happened, the pieces of
documentary evidence proffered by private respondent
with respect to items and equipment lost show similar
items and equipment with corresponding prices in early
1987 or approximately ten (10) years after the
collision. Noticeably, petitioner did not object to the
exhibits in terms of the time index for valuation of the
lost goods and equipment. In objecting to the same
pieces of evidence, petitioner commented that these
were not duly authenticated and that the witness (Del
Rosario) did not have personal knowledge on the
contents of the writings and neither was he an expert on
the subjects thereof.[31] Clearly ignoring petitioners
objections to the exhibits, the lower court admitted
these pieces of evidence and gave them due weight to
arrive at the award of P6,438,048.00 as actual damages.
The exhibits were presented ostensibly in the
course of Del Rosarios testimony. Private respondent did
not present any other witnesses especially those whose
signatures appear in the price quotations that became
the bases of the award. We hold, however, that the
price quotations are ordinary private writings which
under the Revised Rules of Court should have been
proffered along with the testimony of the authors
thereof. Del Rosario could not have testified on the
veracity of the contents of the writings even though he
was the seasoned owner of a fishing fleet because he
was not the one who issued the price
quotations. Section 36, Rule 130 of the Revised Rules of
Court provides that a witness can testify only to those
facts that he knows of his personal knowledge.
For this reason, Del Rosarios claim that private
respondent incurred losses in the total amount
of P6,438,048.00 should be admitted with extreme
caution considering that, because it was a bare
assertion, it should be supported by independent
evidence. Moreover, because he was the owner of
private respondent corporation[32] whatever testimony
he would give with regard to the value of the lost vessel,
its equipment and cargoes should be viewed in the light
of his self-interest therein. We agree with the Court of
Appeals that his testimony as to the equipment installed
and the cargoes loaded on the vessel should be given
credence[33] considering his familiarity thereto. However,
we do not subscribe to the conclusion that
his valuation of such equipment, cargo and the vessel
itself should be accepted as gospel truth.[34] We must,
therefore, examine the documentary evidence presented
to support Del Rosarios claim as regards the amount of
losses.
The price quotations presented as exhibits partake
of the nature of hearsay evidence considering that the
persons who issued them were not presented as
witnesses.[35] Any evidence, whether oral or
documentary, is hearsay if its probative value is not
based on the personal knowledge of the witness but on
the knowledge of another person who is not on the
witness stand. Hearsay evidence, whether objected to or
not, has no probative value unless the proponent can
show that the evidence falls within the exceptions to the
hearsay evidence rule.[36] On this point, we believe that
the exhibits do not fall under any of the exceptions
provided under Sections 37 to 47 of Rule 130.[37]
It is true that one of the exceptions to the hearsay
rule pertains to commercial lists and the like under
Section 45, Rule 130 of the Revised Rules on
Evidence. In this respect, the Court of Appeals
considered private respondents exhibits as commercial
lists. It added, however, that these exhibits should be
admitted in evidence until such time as the Supreme
Court categorically rules on the admissibility or
inadmissibility of this class of evidence because the
reception of these documentary exhibits (price
quotations) as evidence rests on the sound discretion of
the trial court.[38] Reference to Section 45, Rule 130,
however, would show that the conclusion of the Court of
Appeals on the matter was arbitrarily arrived at. This
rule states:
Commercial lists and the like. Evidence of
statements of matters of interest to persons
engaged in an occupation contained in a list,
register, periodical, or other published
compilation is admissible as tending to prove
the truth of any relevant matter so stated if
that compilation is published for use by
persons engaged in that occupation and is
generally used and relied upon by them there.
Under Section 45 of the aforesaid Rule, a document
is a commercial list if: (1) it is a statement of matters
of interest to persons engaged in an occupation; (2)
such statement is contained in a list, register, periodical
or other published compilation; (3) said compilation is
published for the use of persons engaged in that
occupation, and (4) it is generally used and relied upon
by persons in the same occupation.
Based on the above requisites, it is our considered
view that Exhibits B, C, D, E, F and H[39] are not
commercial lists for these do not belong to the category
of other published compilations under Section 45
aforequoted. Under the principle of ejusdem
generis, (w)here general words follow an enumeration of
persons or things, by words of a particular and specific
meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only
to persons or things of the same kind or class as those
specifically mentioned.[40] The exhibits mentioned are
mere price quotations issued personally to Del Rosario
who requested for them from dealers of equipment
similar to the ones lost at the collision of the two
vessels. These are not published in any list, register,
periodical or other compilation on the relevant subject
matter. Neither are these market reports or quotations
within the purview of commercial lists as these are not
standard handbooks or periodicals, containing data of
everyday professional need and relied upon in the work
of the occupation.[41]These are simply letters responding
to the queries of Del Rosario. Thus, take for example
Exhibit D which reads:
January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV
MARIA EFIGINIA FISHING CORPORATION
Navotas, Metro Manila
Attention: MR. EDDIE DEL ROSARIO
Gentlemen:
In accordance to your request, we are pleased to quote
our Cummins Marine Engine, to wit.
Two (2) units CUMMINS Marine Engine model N855-
M, 195 bhp.
at 1800 rpm., 6-cylinder in-line, 4-stroke cycle,
natural aspirated, 5 in. x 6 in. bore and stroke, 855
cu. In. displacement, keel-cooled, electric starting
coupled with Twin-Disc Marine gearbox model MG-
509, 4.5:1 reduction ratio, includes oil cooler,
companion flange, manual and standard accessories
as per attached sheet.
Price FOB Manila - - - - - P 580,000.00/unit
Total FOB Manila - - - - -P 1,160,000.00
vvvvvvvvv
T E R M S : CASH
DELIVERY : 60-90 days from date of order.
VALIDITY : Subject to our final confirmation.
WARRANTY : One (1) full year against factory defect.
Very truly yours,
POWER SYSTEMS, INC.
(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in
evidence but these are, however, subject to the general
principles of evidence and to various rules relating to
documentary evidence.[42] Hence, in one case, it was
held that a letter from an automobile dealer offering an
allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a
price current or commercial list within the statute which
made such items presumptive evidence of the value of
the article specified therein. The letter was not
admissible in evidence as a commercial list even though
the clerk of the dealer testified that he had written the
letter in due course of business upon instructions of the
dealer.[43]
 But even on the theory that the Court of Appeals
correctly ruled on the admissibility of those letters or
communications when it held that unless plainly
irrelevant, immaterial or incompetent, evidence should
better be admitted rather than rejected on doubtful or
technical grounds,[44] the same pieces of evidence,
however, should not have been given probative
weight. This is a distinction we wish to point
out.Admissibility of evidence refers to the question of
whether or not the circumstance (or evidence) is to
considered at all.[45] On the other hand, the probative
value of evidence refers to the question of whether or
not it proves an issue.[46] Thus, a letter may be offered
in evidence and admitted as such but its evidentiary
weight depends upon the observance of the rules on
evidence. Accordingly, the author of the letter should be
presented as witness to provide the other party to the
litigation the opportunity to question him on the
contents of the letter. Being mere hearsay evidence,
failure to present the author of the letter renders its
contents suspect. As earlier stated, hearsay evidence,
whether objected to or not, has no probative
value. Thus:
The courts differ as to the weight to be given
to hearsay evidence admitted without
objection. Some hold that when hearsay has
been admitted without objection, the same
may be considered as any other properly
admitted testimony. Others maintain that it is
entitled to no more consideration than if it had
been excluded.
The rule prevailing in this jurisdiction is the
latter one. Our Supreme Court held that
although the question of admissibility of
evidence can not be raised for the first time on
appeal, yet if the evidence is hearsay it has no
probative value and should be disregarded
whether objected to or not. `If no objection is
made quoting Jones on Evidence - `it
(hearsay) becomes evidence by reason of the
want of such objection even though its
admission does not confer upon it any new
attribute in point of weight. Its nature and
quality remain the same, so far as its intrinsic
weakness and incompetency to satisfy the
mind are concerned, and as opposed to direct
primary evidence, the latter always prevails.
The failure of the defense counsel to object to
the presentation of incompetent evidence, like
hearsay evidence or evidence that violates the
rules of res inter alios acta, or his failure to ask
for the striking out of the same does not give
such evidence any probative value. But
admissibility of evidence should not be equated
with weight of evidence. Hearsay evidence
whether objected to or not has no probative
value.[47]
Accordingly, as stated at the outset, damages may not
be awarded on the basis of hearsay evidence.[48]
Nonetheless, the non-admissibility of said exhibits
does not mean that it totally deprives private respondent
of any redress for the loss of its vessel. This is because
in Lufthansa German Airlines v. Court of
Appeals,[49] the Court said:
In the absence of competent proof on the
actual damage suffered, private respondent is
`entitled to nominal damages which, as the
law says, is adjudicated in order that a right of
the plaintiff, which has been violated or
invaded by defendant, may be vindicated and
recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered.
[Underscoring supplied].
Nominal damages are awarded in every obligation
arising from law, contracts, quasi-contracts, acts or
omissions punished by law, and quasi-delicts, or in every
case where property right has been invaded.[50] Under
Article 2223 of the Civil Code, (t)he adjudication of
nominal damages shall preclude further contest upon
the right involved and all accessory questions, as
between the parties to the suit, or their respective heirs
and assigns.
Actually, nominal damages are damages in name
only and not in fact. Where these are allowed, they are
not treated as an equivalent of a wrong inflicted but
simply in recognition of the existence of a technical
injury.[51] However, the amount to be awarded as
nominal damages shall be equal or at least
commensurate to the injury sustained by private
respondent considering the concept and purpose of such
damages.[52] The amount of nominal damages to be
awarded may also depend on certain special reasons
extant in the case.[53]
Applying now such principles to the instant case,
we have on record the fact that petitioners
vessel Petroparcel was at fault as well as private
respondents complaint claiming the amount
of P692,680.00 representing the fishing nets, boat
equipment and cargoes that sunk with the M/V Maria
Efigenia XV. In its amended complaint, private
respondent alleged that the vessel had an actual value
of P800,000.00 but it had been paid insurance in the
amount of P200,000.00 and, therefore, it claimed only
the amount of P600,000.00. Ordinarily, the receipt of
insurance payments should diminish the total value of
the vessel quoted by private respondent in his complaint
considering that such payment is causally related to the
loss for which it claimed compensation. This Court
believes that such allegations in the original and
amended complaints can be the basis for determination
of a fair amount of nominal damages inasmuch as a
complaint alleges the ultimate facts constituting the
plaintiff's cause of action.[54] Private respondent should
be bound by its allegations on the amount of its claims.
With respect to petitioners contention that the
lower court did not acquire jurisdiction over the
amended complaint increasing the amount of damages
claimed to P600,000.00, we agree with the Court of
Appeals that the lower court acquired jurisdiction over
the case when private respondent paid the docket fee
corresponding to its claim in its original complaint. Its
failure to pay the docket fee corresponding to its
increased claim for damages under the amended
complaint should not be considered as having curtailed
the lower courts jurisdiction.Pursuant to the ruling
in Sun Insurance Office, Ltd. (SIOL) v.
Asuncion,[55] the unpaid docket fee should be
considered as a lien on the judgment even though
private respondent specified the amount of P600,000.00
as its claim for damages in its amended complaint.
Moreover, we note that petitioner did not question
at all the jurisdiction of the lower court on the ground of
insufficient docket fees in its answers to both the
amended complaint and the second amended
complaint. It did so only in its motion for reconsideration
of the decision of the lower court after it had received
an adverse decision. As this Court held in Pantranco
North Express, Inc. v. Court of
Appeals,[56]participation in all stages of the case before
the trial court, that included invoking its authority in
asking for affirmative relief, effectively barred petitioner
by estoppel from challenging the courts
jurisdiction. Notably, from the time it filed its answer to
the second amended complaint on April 16,
1985,[57] petitioner did not question the lower courts
jurisdiction. It was only on December 29, 1989[58] when
it filed its motion for reconsideration of the lower courts
decision that petitioner raised the question of the lower
courts lack of jurisdiction. Petitioner thus foreclosed its
right to raise the issue of jurisdiction by its own inaction.
WHEREFORE, the challenged decision of the Court
of Appeals dated October 14, 1992 in CA-G. R. CV No.
26680 affirming that of the Regional Trial Court of
Caloocan City, Branch 121, is hereby MODIFIED insofar
as it awarded actual damages to private respondent
Maria Efigenia Fishing Corporation in the amount
of P6,438,048.00 for lack of evidentiary bases
therefor. Considering the fact, however, that: (1)
technically petitioner sustained injury but which,
unfortunately, was not adequately and properly proved,
and (2) this case has dragged on for almost two
decades, we believe that an award of Two Million
(P2,000,000.00)[59] in favor of private respondent as and
for nominal damages is in order. No pronouncement as
to costs. SO ORDERED.
[G.R. No. 115117. June 8, 2000]
INTEGRATED PACKAGING CORP., petitioner, vs.
COURT OF APPEALS and FIL-ANCHOR PAPER CO.,
INC. respondents.
This is a petition to review the decision of the Court of
Appeals rendered on April 20, 1994 reversing the
judgment of the Regional Trial Court of Caloocan City in
an action for recovery of sum of money filed by private
respondent against petitioner. In said decision, the
appellate court decreed:
WHEREFORE, in view of all the foregoing, the appealed
judgment is hereby REVERSED and SET ASIDE. Appellee
[petitioner herein] is hereby ordered to pay appellant
[private respondent herein] the sum of P763,101.70, with
legal interest thereon, from the date of the filing of the
Complaint, until fully paid. SO ORDERED."[1]
The RTC judgment reversed by the Court of Appeals had
disposed of the complaint as follows:
"WHEREFORE, judgment is hereby rendered:
Ordering plaintiff [herein private respondent] to pay
defendant [herein petitioner] the sum of P27,222.60 as
compensatory and actual damages after deducting
P763,101.70 (value of materials received by defendant) from
P790,324.30 representing compensatory damages as
defendants unrealized profits;
Ordering plaintiff to pay defendant the sum of P100,000.00
as moral damages;
Ordering plaintiff to pay the sum of P30,000.00 for attorneys
fees; and to pay the costs of suit. SO ORDERED."[2]
The facts, as culled from the records, are as follows:
Petitioner and private respondent executed on May 5,
1978, an order agreement whereby private respondent
bound itself to deliver to petitioner 3,450 reams of
printing paper, coated, 2 sides basis, 80 lbs., 38" x 23",
short grain, worth P1,040,060.00 under the following
schedule: May and June 1978450 reams at
P290.00/ream; August and September 1978700 reams
at P290/ream; January 1979575 reams at
P307.20/ream; March 1979575 reams at P307.20/ream;
July 1979575 reams at P307.20/ream; and October
1979575 reams at P307.20/ream. In accordance with
the standard operating practice of the parties, the
materials were to be paid within a minimum of thirty
days and maximum of ninety days from delivery.
Later, on June 7, 1978, petitioner entered into a contract
with Philippine Appliance Corporation (Philacor) to print
three volumes of "Philacor Cultural Books" for delivery
on the following dates: Book VI, on or before November
1978; Book VII, on or before November 1979 and; Book
VIII, on or before November 1980, with a minimum of
300,000 copies at a price of P10.00 per copy or a total
cost of P3,000,000.00.
As of July 30, 1979, private respondent had delivered to
petitioner 1,097 reams of printing paper out of the total
3,450 reams stated in the agreement. Petitioner alleged
it wrote private respondent to immediately deliver the
balance because further delay would greatly prejudice
petitioner. From June 5, 1980 and until July 23, 1981,
private respondent delivered again to petitioner various
quantities of printing paper amounting to P766,101.70.
However, petitioner encountered difficulties paying
private respondent said amount. Accordingly, private
respondent made a formal demand upon petitioner to
settle the outstanding account. On July 23 and 31, 1981
and August 27, 1981, petitioner made partial payments
totalling P97,200.00 which was applied to its back
accounts covered by delivery invoices dated September
29-30, 1980 and October 1-2, 1980.[3]
Meanwhile, petitioner entered into an additional printing
contract with Philacor. Unfortunately, petitioner failed to
fully comply with its contract with Philacor for the
printing of books VIII, IX, X and XI. Thus, Philacor
demanded compensation from petitioner for the delay
and damage it suffered on account of petitioners failure.
On August 14, 1981, private respondent filed with the
Regional Trial Court of Caloocan City a collection suit
against petitioner for the sum of P766,101.70,
representing the unpaid purchase price of printing paper
bought by petitioner on credit.
In its answer, petitioner denied the material allegations
of the complaint. By way of counterclaim, petitioner
alleged that private respondent was able to deliver only
1,097 reams of printing paper which was short of 2,875
reams, in total disregard of their agreement; that private
respondent failed to deliver the balance of the printing
paper despite demand therefor, hence, petitioner
suffered actual damages and failed to realize expected
profits; and that petitioners complaint was prematurely
filed.
After filing its reply and answer to the counterclaim,
private respondent moved for admission of its
supplemental complaint, which was granted. In said
supplemental complaint, private respondent alleged that
subsequent to the enumerated purchase invoices in the
original complaint, petitioner made additional purchases
of printing paper on credit amounting to P94,200.00.
Private respondent also averred that petitioner failed
and refused to pay its outstanding obligation although it
made partial payments in the amount of P97,200.00
which was applied to back accounts, thus, reducing
petitioners indebtedness to P763,101.70.
On July 5, 1990, the trial court rendered judgment
declaring that petitioner should pay private respondent
the sum of P763,101.70 representing the value of
printing paper delivered by private respondent from
June 5, 1980 to July 23, 1981. However, the lower court
also found petitioners counterclaim meritorious. It ruled
that were it not for the failure or delay of private
respondent to deliver printing paper, petitioner could
have sold books to Philacor and realized profit of
P790,324.30 from the sale. It further ruled that
petitioner suffered a dislocation of business on account
of loss of contracts and goodwill as a result of private
respondents violation of its obligation, for which the
award of moral damages was justified.
On appeal, the respondent Court of Appeals reversed
and set aside the judgment of the trial court. The
appellate court ordered petitioner to pay private
respondent the sum of P763,101.70 representing the
amount of unpaid printing paper delivered by private
respondent to petitioner, with legal interest thereon
from the date of the filing of the complaint until fully
paid.[4] However, the appellate court deleted the award
of P790,324.30 as compensatory damages as well as the
award of moral damages and attorneys fees, for lack of
factual and legal basis.
Expectedly, petitioner filed this instant petition
contending that the appellate courts judgment is based
on erroneous conclusions of facts and law. In this
recourse, petitioner assigns the following errors:
[I] "THE COURT OF APPEALS ERRED IN CONCLUDING
THAT PRIVATE RESPONDENT DID NOT VIOLATE THE
ORDER AGREEMENT.
[II] THE COURT OF APPEALS ERRED IN CONCLUDING
THAT RESPONDENT IS NOT LIABLE FOR PETITIONERS
BREACH OF CONTRACT WITH PHILACOR.
[III] THE COURT OF APPEALS ERRED IN CONCLUDING
THAT PETITIONER IS NOT ENTITLED TO DAMAGES
AGAINST PRIVATE RESPONDENT."[5]
In our view, the crucial issues for resolution in this case
are as follows:
(1)....Whether or not private respondent
violated the order agreement, and;
(2)....Whether or not private respondent is liable
for petitioners breach of contract with Philacor.
Petitioners contention lacks factual and legal basis,
hence, bereft of merit.
Petitioner contends, firstly, that private respondent
violated the order agreement when the latter failed to
deliver the balance of the printing paper on the dates
agreed upon.
The transaction between the parties is a contract of sale
whereby private respondent (seller) obligates itself to
deliver printing paper to petitioner (buyer) which, in
turn, binds itself to pay therefor a sum of money or its
equivalent (price).[6] Both parties concede that the order
agreement gives rise to a reciprocal obligations[7] such
that the obligation of one is dependent upon the
obligation of the other. Reciprocal obligations are to be
performed simultaneously, so that the performance of
one is conditioned upon the simultaneous fulfillment of
the other.[8] Thus, private respondent undertakes to
deliver printing paper of various quantities subject to
petitioners corresponding obligation to pay, on a
maximum 90-day credit, for these materials. Note that in
the contract, petitioner is not even required to make any
deposit, down payment or advance payment, hence, the
undertaking of private respondent to deliver the
materials is conditional upon payment by petitioner
within the prescribed period. Clearly, petitioner did not
fulfill its side of the contract as its last payment in
August 1981 could cover only materials covered by
delivery invoices dated September and October 1980.
There is no dispute that the agreement provides for the
delivery of printing paper on different dates and a
separate price has been agreed upon for each delivery.
It is also admitted that it is the standard practice of the
parties that the materials be paid within a minimum
period of thirty (30) days and a maximum of ninety (90)
days from each delivery.[9] Accordingly, the private
respondents suspension of its deliveries to petitioner
whenever the latter failed to pay on time, as in this
case, is legally justified under the second paragraph of
Article 1583 of the Civil Code which provides that:
"When there is a contract of sale of goods to be
delivered by stated installments, which are to be
separately paid for, and the seller makes
defective deliveries in respect of one or more
installments, or the buyer neglects or refuses
without just cause totake delivery of or pay for
one or more installments, it depends in each
case on the terms of the contract and the
circumstances of the case, whether the breach
of contract is so material as to justify the injured
party in refusing to proceed further and suing
for damages for breach of the entire contract, or
whether the breach is severable, giving rise to a
claim for compensation but not to a right to
treat the whole contract as broken." (Emphasis
supplied)
In this case, as found a quo petitioners evidence failed
to establish that it had paid for the printing paper
covered by the delivery invoices on time. Consequently,
private respondent has the right to cease making further
delivery, hence the private respondent did not violate
the order agreement. On the contrary, it was petitioner
which breached the agreement as it failed to pay on
time the materials delivered by private respondent.
Respondent appellate court correctly ruled that private
respondent did not violate the order agreement.
On the second assigned error, petitioner contends that
private respondent should be held liable for petitioners
breach of contract with Philacor. This claim is manifestly
devoid of merit.
As correctly held by the appellate court, private
respondent cannot be held liable under the contracts
entered into by petitioner with Philacor. Private
respondent is not a party to said agreements. It is also
not a contract pour autrui. Aforesaid contracts could not
affect third persons like private respondent because of
the basic civil law principle of relativity of contracts
which provides that contracts can only bind the parties
who entered into it, and it cannot favor or prejudice a
third person,[10] even if he is aware of such contract and
has acted with knowledge thereof.[11]
Indeed, the order agreement entered into by petitioner
and private respondent has not been shown as having a
direct bearing on the contracts of petitioner with
Philacor. As pointed out by private respondent and not
refuted by petitioner, the paper specified in the order
agreement between petitioner and private respondent
are markedly different from the paper involved in the
contracts of petitioner with Philacor.[12] Furthermore, the
demand made by Philacor upon petitioner for the latter
to comply with its printing contract is dated February 15,
1984, which is clearly made long after private
respondent had filed its complaint on August 14, 1981.
This demand relates to contracts with Philacor dated
April 12, 1983 and May 13, 1983, which were entered
into by petitioner after private respondent filed the
instant case.
To recapitulate, private respondent did not violate the
order agreement it had with petitioner. Likewise, private
respondent could not be held liable for petitioners
breach of contract with Philacor. It follows that there is
no basis to hold private respondent liable for damages.
Accordingly, the appellate court did not err in deleting
the damages awarded by the trial court to petitioner.
The rule on compensatory damages is well established.
True, indemnification for damages comprehends not
only the loss suffered, that is to say actual damages
(damnum emergens), but also profits which the obligee
failed to obtain, referred to as compensatory damages
(lucrum cessans). However, to justify a grant of actual
or compensatory damages, it is necessary to prove with
a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable by
the injured party, the actual amount of loss.[13] In the
case at bar, the trial court erroneously concluded that
petitioner could have sold books to Philacor at the
quoted selling price of P1,850,750.55 and by deducting
the production cost of P1,060,426.20, petitioner could
have earned profit of P790,324.30. Admittedly, the
evidence relied upon by the trial court in arriving at the
amount are mere estimates prepared by
petitioner.[14] Said evidence is highly speculative and
manifestly hypothetical. It could not provide sufficient
legal and factual basis for the award of P790,324.30 as
compensatory damages representing petitioners self-
serving claim of unrealized profit.
Further, the deletion of the award of moral damages is
proper, since private respondent could not be held liable
for breach of contract. Moral damages may be awarded
when in a breach of contract the defendant acted in bad
faith, or was guilty of gross negligence amounting to
bad faith, or in wanton disregard of his contractual
obligation.[15] Finally, since the award of moral damages
is eliminated, so must the award for attorneys fees be
also deleted.[16]
WHEREFORE, the instant petition is DENIED. The
decision of the Court of Appeals is AFFIRMED. Costs
against petitioner.SO ORDERED.
(b) EXTENT
 ART 2201, 2202 NCC
(c) CERTAINTY
[G.R. No. 118342. January 5, 1998]
DEVELOPMENT BANK OF THE
PHILIPPINES, petitioner, vs. COURT OF APPEALS
and LYDIA CUBA, respondents.
[G.R. No. 118367. January 5, 1998]
LYDIA P. CUBA, petitioner, vs. COURT OF APPEALS,
DEVELOPMENT BANK OF THE PHILIPPINES and
AGRIPINA P. CAPERAL, respondents.
These two consolidated cases stemmed from a
complaint[1] filed against the Development Bank of the
Philippines (hereafter DBP) and Agripina Caperal filed by
Lydia Cuba (hereafter CUBA) on 21 May 1985 with the
Regional Trial Court of Pangasinan, Branch 54. The said
complaint sought (1) the declaration of nullity of DBPs
appropriation of CUBAs rights, title, and interests over a
44-hectare fishpond located in Bolinao, Pangasinan, for
being violative of Article 2088 of the Civil Code; (2) the
annulment of the Deed of Conditional Sale executed in
her favor by DBP; (3) the annulment of DBPs sale of the
subject fishpond to Caperal; (4) the restoration of her
rights, title, and interests over the fishpond; and (5) the
recovery of damages, attorneys fees, and expenses of
litigation.
After the joinder of issues following the filing by the
parties of their respective pleadings, the trial court
conducted a pre-trial where CUBA and DBP agreed on
the following facts, which were embodied in the pre-trial
order:[2]
1. Plaintiff Lydia P. Cuba is a grantee of a
Fishpond Lease Agreement No. 2083
(new) dated May 13, 1974 from the
Government;
2. Plaintiff Lydia P. Cuba obtained loans from
the Development Bank of the Philippines
in the amounts
of P109,000.00; P109,000.00;
and P98,700.00 under the terms stated in
the Promissory Notes dated September 6,
1974; August 11, 1975; and April 4, 1977;
3. As security for said loans, plaintiff Lydia P.
Cuba executed two Deeds of Assignment
of her Leasehold Rights;
4. Plaintiff failed to pay her loan on the
scheduled dates thereof in accordance
with the terms of the Promissory Notes;
5. Without foreclosure proceedings, whether
judicial or extra-judicial, defendant DBP
appropriated the Leasehold Rights of
plaintiff Lydia Cuba over the fishpond in
question;
6. After defendant DBP has appropriated the
Leasehold Rights of plaintiff Lydia Cuba
over the fishpond in question, defendant
DBP, in turn, executed a Deed of
Conditional Sale of the Leasehold Rights
in favor of plaintiff Lydia Cuba over the
same fishpond in question;
7. In the negotiation for repurchase, plaintiff
Lydia Cuba addressed two letters to the
Manager DBP, Dagupan City dated
November 6, 1979 and December 20,
1979. DBP thereafter accepted the offer
to repurchase in a letter addressed to
plaintiff dated February 1, 1982;
8. After the Deed of Conditional Sale was
executed in favor of plaintiff Lydia Cuba,
a new Fishpond Lease Agreement No.
2083-A dated March 24, 1980 was issued
by the Ministry of Agriculture and Food in
favor of plaintiff Lydia Cuba only,
excluding her husband;
9. Plaintiff Lydia Cuba failed to pay the
amortizations stipulated in the Deed of
Conditional Sale;
10. After plaintiff Lydia Cuba failed to pay the
amortization as stated in Deed of
Conditional Sale, she entered with the
DBP a temporary arrangement whereby
 in consideration for the deferment of the
Notarial Rescission of Deed of Conditional
Sale, plaintiff Lydia Cuba promised to
make certain payments as stated in
temporary Arrangement dated February
23, 1982;
11. Defendant DBP thereafter sent a Notice of
Rescission thru Notarial Act dated March
13, 1984, and which was received by
plaintiff Lydia Cuba;
12. After the Notice of Rescission, defendant
DBP took possession of the Leasehold
Rights of the fishpond in question;
13. That after defendant DBP took possession
of the Leasehold Rights over the fishpond
in question, DBP advertised in the
SUNDAY PUNCH the public bidding dated
June 24, 1984, to dispose of the
property;
14. That the DBP thereafter executed a Deed
of Conditional Sale in favor of defendant
Agripina Caperal on August 16, 1984;
15. Thereafter, defendant Caperal was
awarded Fishpond Lease Agreement No.
2083-A on December 28, 1984 by the
Ministry of Agriculture and Food.
Defendant Caperal admitted only the facts stated in
paragraphs 14 and 15 of the pre-trial order. [3]
Trial was thereafter had on other matters.
The principal issue presented was whether the act
of DBP in appropriating to itself CUBAs leasehold rights
over the fishpond in question without foreclosure
proceedings was contrary to Article 2088 of the Civil
Code and, therefore, invalid. CUBA insisted on an
affirmative resolution. DBP stressed that it merely
exercised its contractual right under the Assignments of
Leasehold Rights, which was not a contract of
mortgage. Defendant Caperal sided with DBP.
The trial court resolved the issue in favor of CUBA
by declaring that DBPs taking possession and ownership
of the property without foreclosure was plainly violative
of Article 2088 of the Civil Code which provides as
follows:
ART. 2088. The creditor cannot appropriate the things
given by way of pledge or mortgage, or dispose of
them. Any stipulation to the contrary is null and void.
It disagreed with DBPs stand that the Assignments of
Leasehold Rights were not contracts of mortgage
because (1) they were given as security for loans, (2)
although the fishpond land in question is still a public
land, CUBAs leasehold rights and interest thereon are
alienable rights which can be the proper subject of a
mortgage; and (3) the intention of the contracting
parties to treat the Assignment of Leasehold Rights as a
mortgage was obvious and unmistakable; hence, upon
CUBAs default, DBPs only right was to foreclose the
Assignment in accordance with law.
The trial court also declared invalid condition no. 12
of the Assignment of Leasehold Rights for being a clear
case of pactum commissorium expressly prohibited and
declared null and void by Article 2088 of the Civil
Code. It then concluded that since DBP never acquired
lawful ownership of CUBAs leasehold rights, all acts of
ownership and possession by the said bank were
void. Accordingly, the Deed of Conditional Sale in favor
of CUBA, the notarial rescission of such sale, and the
Deed of Conditional Sale in favor of defendant Caperal,
as well as the Assignment of Leasehold Rights executed
by Caperal in favor of DBP, were also void and
ineffective.
As to damages, the trial court found ample
evidence on record that in 1984 the representatives of
DBP ejected CUBA and her caretakers not only from the
fishpond area but also from the adjoining big house; and
that when CUBAs son and caretaker went there on 15
September 1985, they found the said house unoccupied
and destroyed and CUBAs personal belongings,
machineries, equipment, tools, and other articles used in
fishpond operation which were kept in the house were
missing. The missing items were valued at
about P550,000. It further found that when CUBA and
her men were ejected by DBP for the first time in 1979,
CUBA had stocked the fishpond with 250,000 pieces of
bangus fish (milkfish), all of which died because the DBP
representatives prevented CUBAs men from feeding the
fish. At the conservative price of P3.00 per fish, the
gross value would have been P690,000, and after
deducting 25% of said value as reasonable allowance for
the cost of feeds, CUBA suffered a loss of P517,500. It
then set the aggregate of the actual damages sustained
by CUBA at P1,067,500.
The trial court further found that DBP was guilty of
gross bad faith in falsely representing to the Bureau of
Fisheries that it had foreclosed its mortgage on CUBAs
leasehold rights. Such representation induced the said
Bureau to terminate CUBAs leasehold rights and to
approve the Deed of Conditional Sale in favor of
CUBA. And considering that by reason of her unlawful
ejectment by DBP, CUBA suffered moral shock,
degradation, social humiliation, and serious anxieties for
which she became sick and had to be hospitalized the
trial court found her entitled to moral and exemplary
damages. The trial court also held that CUBA was
entitled to P100,000 attorneys fees in view of the
considerable expenses she incurred for lawyers fees and
in view of the finding that she was entitled to exemplary
damages.
In its decision of 31 January 1990, [4]
the trial court
disposed as follows:
WHEREFORE, judgment is hereby rendered in
favor of plaintiff:
1. DECLARING null and void and without any
legal effect the act of defendant
Development Bank of the Philippines in
appropriating for its own interest,
without any judicial or extra-judicial
foreclosure, plaintiffs leasehold rights
and interest over the fishpond land in
question under her Fishpond Lease
Agreement No. 2083 (new);
2. DECLARING the Deed of Conditional Sale
dated February 21, 1980 by and between
the defendant Development Bank of the
Philippines and plaintiff (Exh. E and Exh.
1) and the acts of notarial rescission of
the Development Bank of the Philippines
relative to said sale (Exhs. 16 and 26) as
void and ineffective;
3. DECLARING the Deed of Conditional Sale
dated August 16, 1984 by and between
the Development Bank of the Philippines
and defendant Agripina Caperal (Exh. F
and Exh. 21), the Fishpond Lease
Agreement No. 2083-A dated December
28, 1984 of defendant Agripina Caperal
(Exh. 23) and the Assignment of
Leasehold Rights dated February 12,
1985 executed by defendant Agripina
Caperal in favor of the defendant
Development Bank of the Philippines
(Exh. 24) as void ab initio;
4. ORDERING defendant Development Bank
of the Philippines and defendant Agripina
Caperal, jointly and severally, to restore
to plaintiff the latters leasehold rights
and interests and right of possession over
the fishpond land in question, without
prejudice to the right of defendant
Development Bank of the Philippines to
foreclose the securities given by plaintiff;
5. ORDERING defendant Development Bank
of the Philippines to pay to plaintiff the
following amounts:
a) The sum of ONE MILLION SIXTY-SEVEN
THOUSAND FIVE HUNDRED PESOS
(P1,067,500.00), as and for actual
damages;
b) The sum of ONE HUNDRED THOUSAND
(P100,000.00) PESOS as moral damages;
c) The sum of FIFTY THOUSAND (P50,000.00)
PESOS, as and for exemplary damages;
d) And the sum of ONE HUNDRED THOUSAND
(P100,000.00) PESOS, as and for attorneys
fees;
6. And ORDERING defendant Development
Bank of the Philippines to reimburse and
pay to defendant Agripina Caperal the
sum of ONE MILLION FIVE HUNDRED
THIRTY-TWO THOUSAND SIX HUNDRED
TEN PESOS AND SEVENTY-FIVE
CENTAVOS (P1,532,610.75) representing
the amounts paid by defendant Agripina
Caperal to defendant Development Bank
of the Philippines under their Deed of
Conditional Sale.
CUBA and DBP interposed separate appeals from
the decision to the Court of Appeals. The former sought
an increase in the amount of damages, while the latter
questioned the findings of fact and law of the lower
court.
In its decision [5] of 25 May 1994, the Court of
Appeals ruled that (1) the trial court erred in declaring
that the deed of assignment was null and void and that
defendant Caperal could not validly acquire the
leasehold rights from DBP; (2) contrary to the claim of
DBP, the assignment was not a cession under Article
1255 of the Civil Code because DBP appeared to be the
sole creditor to CUBA - cession presupposes plurality of
debts and creditors; (3) the deeds of assignment
represented the voluntary act of CUBA in assigning her
property rights in payment of her debts, which
amounted to a novation of the promissory notes
executed by CUBA in favor of DBP; (4) CUBA was
estopped from questioning the assignment of the
leasehold rights, since she agreed to repurchase the said
rights under a deed of conditional sale; and (5) condition
no. 12 of the deed of assignment was an express
authority from CUBA for DBP to sell whatever right she
had over the fishpond. It also ruled that CUBA was not
entitled to loss of profits for lack of evidence, but agreed
with the trial court as to the actual damages
of P1,067,500. It, however, deleted the amount of
exemplary damages and reduced the award of moral
damages from P100,000 to P50,000 and attorneys fees,
from P100,000 to P50,000.
The Court of Appeals thus declared as valid the
following: (1) the act of DBP in appropriating Cubas
leasehold rights and interest under Fishpond Lease
Agreement No. 2083; (2) the deeds of assignment
executed by Cuba in favor of DBP; (3) the deed of
conditional sale between CUBA and DBP; and (4) the
deed of conditional sale between DBP and Caperal, the
Fishpond Lease Agreement in favor of Caperal, and the
assignment of leasehold rights executed by Caperal in
favor of DBP. It then ordered DBP to turn over
possession of the property to Caperal as lawful holder of
the leasehold rights and to pay CUBA the following
amounts: (a) P1,067,500 as actual damages; P50,000 as
moral damages; and P50,000 as attorneys fees.
Since their motions for reconsideration were
denied,[6] DBP and CUBA filed separate petitions for
review.
In its petition (G.R. No. 118342), DBP assails the
award of actual and moral damages and attorneys fees
in favor of CUBA.
Upon the other hand, in her petition (G.R. No.
118367), CUBA contends that the Court of Appeals erred
(1) in not holding that the questioned deed of
assignment was a pactum commissorium contrary to
Article 2088 of the Civil Code; (b) in holding that the
deed of assignment effected a novation of the
promissory notes; (c) in holding that CUBA was
estopped from questioning the validity of the deed of
assignment when she agreed to repurchase her
leasehold rights under a deed of conditional sale; and
(d) in reducing the amounts of moral damages and
attorneys fees, in deleting the award of exemplary
damages, and in not increasing the amount of damages.
We agree with CUBA that the assignment of
leasehold rights was a mortgage contract.
It is undisputed that CUBA obtained from DBP three
separate loans totalling P335,000, each of which was
covered by a promissory note. In all of these notes,
there was a provision that: In the event of foreclosure of
the mortgage securing this notes, I/We further bind
myself/ourselves, jointly and severally, to pay the
deficiency, if any. [7]
Simultaneous with the execution of the notes was
the execution of Assignments of Leasehold
Rights [8] where CUBA assigned her leasehold rights and
interest on a 44-hectare fishpond, together with the
improvements thereon. As pointed out by CUBA, the
deeds of assignment constantly referred to the assignor
(CUBA) as borrower; the assigned rights, as mortgaged
properties; and the instrument itself, as mortgage
contract. Moreover, under condition no. 22 of the deed,
it was provided that failure to comply with the terms and
condition of any of the loans shall cause all other loans
to become due and demandable and all mortgages shall
be foreclosed. And, condition no. 33 provided that if
foreclosure is actually accomplished, the usual 10%
attorneys fees and 10% liquidated damages of the total
obligation shall be imposed. There is, therefore, no
shred of doubt that a mortgage was intended.
Besides, in their stipulation of facts the parties
admitted that the assignment was by way of security for
the payment of the loans; thus:
3. As security for said loans, plaintiff Lydia P. Cuba
executed two Deeds of Assignment of her
Leasehold Rights.
In Peoples Bank & Trust Co. vs. Odom,[9] this Court
had the occasion to rule that an assignment to
guarantee an obligation is in effect a mortgage.
We find no merit in DBPs contention that the
assignment novated the promissory notes in that the
obligation to pay a sum of money the loans (under the
promissory notes) was substituted by the assignment of
the rights over the fishpond (under the deed of
assignment). As correctly pointed out by CUBA, the said
assignment merely complemented or supplemented the
notes; both could stand together. The former was only
an accessory to the latter. Contrary to DBPs submission,
the obligation to pay a sum of money remained, and the
assignment merely served as security for the loans
covered by the promissory notes. Significantly, both the
deeds of assignment and the promissory notes were
executed on the same dates the loans were
granted. Also, the last paragraph of the assignment
stated: The assignor further reiterates and states all
terms, covenants, and conditions stipulated in the
promissory note or notes covering the proceeds of this
loan, making said promissory note or notes, to all intent
and purposes, an integral part hereof.
Neither did the assignment amount to payment
by cession under Article 1255 of the Civil Code for the
plain and simple reason that there was only one
creditor, the DBP. Article 1255 contemplates the
existence of two or more creditors and involves the
assignment of all the debtors property.
Nor did the assignment constitute dation in
payment under Article 1245 of the civil Code, which
reads: Dation in payment, whereby property is alienated
to the creditor in satisfaction of a debt in money, shall
be governed by the law on sales. It bears stressing that
the assignment, being in its essence a mortgage, was
but a security and not a satisfaction of indebtedness.[10]
We do not, however, buy CUBAs argument that
condition no. 12 of the deed of assignment
constituted pactum commissorium. Said condition reads:
12. That effective upon the breach of any condition of
this assignment, the Assignor hereby appoints the
Assignee his Attorney-in-fact with full power and
authority to take actual possession of the property
above-described, together with all improvements
thereon, subject to the approval of the Secretary of
Agriculture and Natural Resources, to lease the same or
any portion thereof and collect rentals, to make repairs
or improvements thereon and pay the same, to sell or
otherwise dispose of whatever rights the Assignor has or
might have over said property and/or its improvements
and perform any other act which the Assignee may
deem convenient to protect its interest. All expenses
advanced by the Assignee in connection with purpose
above indicated which shall bear the same rate of
interest aforementioned are also guaranteed by this
Assignment. Any amount received from rents,
administration, sale or disposal of said property may be
supplied by the Assignee to the payment of repairs,
improvements, taxes, assessments and other incidental
expenses and obligations and the balance, if any, to the
payment of interest and then on the capital of the
indebtedness secured hereby. If after disposal or sale of
said property and upon application of total amounts
received there shall remain a deficiency, said Assignor
hereby binds himself to pay the same to the Assignee
upon demand, together with all interest thereon until
fully paid. The power herein granted shall not be
revoked as long as the Assignor is indebted to
the Assignee and all acts that may be executed by the
Assignee by virtue of said power are hereby ratified.
The elements of pactum commissorium are as
follows: (1) there should be a property mortgaged by
way of security for the payment of the principal
obligation, and (2) there should be a stipulation for
automatic appropriation by the creditor of the thing
mortgaged in case of non-payment of the principal
obligation within the stipulated period.[11]
Condition no. 12 did not provide that the ownership
over the leasehold rights would automatically pass to
DBP upon CUBAs failure to pay the loan on time. It
merely provided for the appointment of DBP as attorney-
in-fact with authority, among other things, to sell or
otherwise dispose of the said real rights, in case of
default by CUBA, and to apply the proceeds to the
payment of the loan. This provision is a standard
condition in mortgage contracts and is in conformity with
Article 2087 of the Civil Code, which authorizes the
mortgagee to foreclose the mortgage and alienate the
mortgaged property for the payment of the principal
obligation.
DBP, however, exceeded the authority vested by
condition no. 12 of the deed of assignment. As admitted
by it during the pre-trial, it had [w]ithout foreclosure
proceedings, whether judicial or extrajudicial,
appropriated the [l]easehold [r]ights of plaintiff Lydia
Cuba over the fishpond in question. Its contention that it
limited itself to mere administration by posting
caretakers is further belied by the deed of conditional
sale it executed in favor of CUBA. The deed stated:
WHEREAS, the Vendor [DBP] by virtue of a deed of
assignment executed in its favor by the herein vendees
[Cuba spouses] the former acquired all the rights and
interest of the latter over the above-described property;
The title to the real estate property [sic] and all
improvements thereon shall remain in the name of the
Vendor until after the purchase price, advances and
interest shall have been fully paid. (Emphasis supplied).
It is obvious from the above-quoted paragraphs
that DBP had appropriated and taken ownership of
CUBAs leasehold rights merely on the strength of the
deed of assignment.
DBP cannot take refuge in condition no. 12 of the
deed of assignment to justify its act of appropriating the
leasehold rights. As stated earlier, condition no. 12 did
not provide that CUBAs default would operate to vest in
DBP ownership of the said rights. Besides, an
assignment to guarantee an obligation, as in the present
case, is virtually a mortgage and not an absolute
conveyance of title which confers ownership on the
assignee.[12]
At any rate, DBPs act of appropriating CUBAs
leasehold rights was violative of Article 2088 of the Civil
Code, which forbids a creditor from appropriating, or
disposing of, the thing given as security for the payment
of a debt.
The fact that CUBA offered and agreed to
repurchase her leasehold rights from DBP did not estop
her from questioning DBPs act of appropriation. Estoppel
is unavailing in this case. As held by this Court in some
cases,[13] estoppel cannot give validity to an act that is
prohibited by law or against public policy. Hence, the
appropriation of the leasehold rights, being contrary to
Article 2088 of the Civil Code and to public policy,
cannot be deemed validated by estoppel.
Instead of taking ownership of the questioned real
rights upon default by CUBA, DBP should have
foreclosed the mortgage, as has been stipulated in
condition no. 22 of the deed of assignment. But, as
admitted by DBP, there was no such foreclosure. Yet, in
its letter dated 26 October 1979, addressed to the
Minister of Agriculture and Natural Resources and
coursed through the Director of the Bureau of Fisheries
and Aquatic Resources, DBP declared that it had
foreclosed the mortgage and enforced the assignment of
leasehold rights on March 21, 1979 for failure of said
spouses [Cuba spouces] to pay their loan
amortizations.[14] This only goes to show that DBP was
aware of the necessity of foreclosure proceedings.
In view of the false representation of DBP that it
had already foreclosed the mortgage, the Bureau of
Fisheries cancelled CUBAs original lease permit,
approved the deed of conditional sale, and issued a new
permit in favor of CUBA. Said acts which were
predicated on such false representation, as well as the
subsequent acts emanating from DBPs appropriation of
the leasehold rights, should therefore be set aside. To
validate these acts would open the floodgates to
circumvention of Article 2088 of the Civil Code.
Even in cases where foreclosure proceedings were
had, this Court had not hesitated to nullify the
consequent auction sale for failure to comply with the
requirements laid down by law, such as Act No. 3135, as
amended.[15] With more reason that the sale of property
given as security for the payment of a debt be set aside
if there was no prior foreclosure proceeding.
 Hence, DBP should render an accounting of the
income derived from the operation of the fishpond in
question and apply the said income in accordance with
condition no. 12 of the deed of assignment which
provided: Any amount received from rents,
administration, may be applied to the payment of
repairs, improvements, taxes, assessment, and other
incidental expenses and obligations and the balance, if
any, to the payment of interest and then on the capital
of the indebtedness.
We shall now take up the issue of damages.
Article 2199 provides:
Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages.
Actual or compensatory damages cannot be
presumed, but must be proved with reasonable degree
of certainty.[16] A court cannot rely on speculations,
conjectures, or guesswork as to the fact and amount of
damages, but must depend upon competent proof that
they have been suffered by the injured party and on the
best obtainable evidence of the actual amount
thereof.[17] It must point out specific facts which could
afford a basis for measuring whatever compensatory or
actual damages are borne.[18]
In the present case, the trial court awarded in favor
of CUBA P1,067,500 as actual damages consisting
of P550,000 which represented the value of the alleged
lost articles of CUBA and P517,500 which represented
the value of the 230,000 pieces of bangus allegedly
stocked in 1979 when DBP first ejected CUBA from the
fishpond and the adjoining house. This award was
affirmed by the Court of Appeals.
We find that the alleged loss of personal belongings
and equipment was not proved by clear evidence. Other
than the testimony of CUBA and her caretaker, there
was no proof as to the existence of those items before
DBP took over the fishpond in question. As pointed out
by DBP, there was not inventory of the alleged lost
items before the loss which is normal in a project which
sometimes, if not most often, is left to the care of other
persons. Neither was a single receipt or record of
acquisition presented.
Curiously, in her complaint dated 17 May 1985,
CUBA included losses of property as among the
damages resulting from DBPs take-over of the
fishpond. Yet, it was only in September 1985 when her
son and a caretaker went to the fishpond and the
adjoining house that she came to know of the alleged
loss of several articles. Such claim for losses of property,
having been made before knowledge of the alleged
actual loss, was therefore speculative. The alleged loss
could have been a mere afterthought or subterfuge to
justify her claim for actual damages.
With regard to the award of P517,000 representing
the value of the alleged 230,000 pieces of bangus which
died when DBP took possession of the fishpond in March
1979, the same was not called for. Such loss was not
duly proved; besides, the claim therefor was delayed
unreasonably. From 1979 until after the filing of her
complaint in court in May 1985, CUBA did not bring to
the attention of DBP the alleged loss. In fact, in her
letter dated 24 October 1979,[19] she declared:
1. That from February to May 1978, I was then seriously
ill in Manila and within the same period I neglected the
management and supervision of the cultivation and
harvest of the produce of the aforesaid fishpond thereby
resulting to the irreparable loss in the produce of the
same in the amount of about P500,000.00 to my great
damage and prejudice due to fraudulent acts of some of
my fishpond workers.
Nowhere in the said letter, which was written seven
months after DBP took possession of the fishpond, did
CUBA intimate that upon DBPs take-over there was a
total of 230,000 pieces of bangus, but all of which died
because of DBPs representatives prevented her men
from feeding the fish.
The award of actual damages should, therefore, be
struck down for lack of sufficient basis.
In view, however, of DBPs act of appropriating
CUBAs leasehold rights which was contrary to law and
public policy, as well as its false representation to the
then Ministry of Agriculture and Natural Resources that it
had foreclosed the mortgage, an award of moral
damages in the amount of P50,000 is in order
conformably with Article 2219(10), in relation to Article
21, of the Civil Code. Exemplary or corrective damages
in the amount of P25,000 should likewise be awarded by
way of example or correction for the public
good.[20] There being an award of exemplary damages,
attorneys fees are also recoverable.[21]
WHEREFORE, the 25 May 1994 Decision of the
Court of Appeals in CA-G.R. CV No. 26535 is hereby
REVERSED, except as to the award of P50,000 as moral
damages, which is hereby sustained. The 31 January
1990 Decision of the Regional Trial Court of Pangasinan,
Branch 54, in Civil Case No. A-1574 is MODIFIED setting
aside the finding that condition no. 12 of the deed of
assignment constitutedpactum commissorium and the
award of actual damages; and by reducing the amounts
of moral damages from P100,000 to P50,000; the
exemplary damages, from P50,000 to P25,000; and the
attorneys fees, from P100,000 to P20,000. The
Development Bank of the Philippines is hereby ordered
to render an accounting of the income derived from the
operation of the fishpond in question.
 Let this case be REMANDED to the trial court for
the reception of the income statement of DBP, as well as
the statement of the account of Lydia P. Cuba, and for
the determination of each partys financial obligation to
one another. SO ORDERED.
[G.R. No. 111692. February 9, 1996]
ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Still professing innocence and insisting that he is a
victim of mistaken identity, petitioner Alejandro Fuentes,
Jr., seeks reversal of the decision of the Court of
Appeals affirming his conviction for murder.[1]
At four o clock in the morning of 24 June 1989
Julieto Malaspina together with Godofredo Llames,
Honorio Osok and Alberto Toling, was at a benefit dance
at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner
called Malaspina and placed his right arm on the
shoulder of the latter saying, Before, I saw you with a
long hair but now you have a short hair.[2] Suddenly
petitioner stabbed Malaspina in the abdomen with a
hunting knife. Malaspina fell to the ground and his
companions rushed to his side. Petitioner fled. Before
the victim succumbed to the gaping wound on his
abdomen he muttered that Alejandro Fuentes, Jr.,
stabbed him.[3]
Dr. Porfirio L. Salubre, the Rural Health Physician
who autopsied the cadaver of Julieto Malaspina on 24
July 1989, reported that death was due to stab wound
at left lumbar region I V2 in. in length with
extracavitation of the small and large intestines.[4]
Petitioner claims on the other hand that it was his
cousin Zoilo Fuentes, Jr., alias Jonie who knifed
Malaspina; that when the victim was killed he was
conversing with him; that he was compelled to run away
when he heard that somebody with a bolo and spear
would kill all those from San Isidro because Jonie, the
killer, was from that place; that since he was also from
San Isidro he sought refuge in his brothers house where
he met Jonie; that Jonie admitted spontaneously that he
stabbed Malaspina because after a boxing match before
the latter untied his gloves and punched him; that as
there were many persons milling around the house Jonie
jumped out and escaped through the window; that he
was arrested at eight oclock in the morning of 24 June
1989 while he was in a store in the barangay.[5]
The Regional Trial Court of Prosperidad, Agusan del
Sur, found petitioner guilty of murder qualified by
treachery and imposed on him an indeterminate prison
term of ten (10) years and one (1) day of prision
mayor as minimum to seventeen (17) years and four (4)
months of reclusion temporal as maximum, to indemnify
the heirs of the victim Julieto Malaspina the amount of
P50,000.00 and to pay P8,300.00 as actual damages
plus costs.[6]
The Court of Appeals affirmed the judgment of the
trial court; hence, this petition for review.
Petitioner contends that the appellate court erred
when it held that petitioner was positively and
categorically identified as the killer of Malaspina, in
affirming the judgment of conviction and in holding
petitioner liable for damages to the heirs of the victim.
Petitioner points to an alleged inconsistency
between the testimonies of prosecution witnesses
Alberto Toling and Honorio Osok to the effect that they
saw petitioner stab Malaspina on the right lumbar
region, and the testimony of the attending physician that
the victim was stabbed on the left lumbar region.
This discrepancy is inconsequential. What is
material is that Malaspina was stabbed to death and that
three (3) prosecution witnesses positively identified
petitioner as the knife wielder. It must be stressed that
these witnesses had known petitioner for quite some
time and never had any personal misunderstanding nor
altercation with the latter as to create any suspicion that
they were impelled by ill motives to falsely implicate
him.
That it was another person who committed the
offense is too incredible. No less than petitioners own
witness, Nerio Biscocho who claimed he also saw the
killing, testified that Alejandro Fuentes, Jr., the
petitioner, and Jonie Fuentes are one and the same
person. Thus -
COURT:
Q. Who is this Joni Fuentes and Alejandro Fuentes?
A. That Joni Fuentes is the same of that or the accused
Alejandro Fuentes. I do not know his real name but
he is called as Joni, sir, x x x
On cross-examination witness Biscocho further
admitted that he himself would call petitioner Alejandro
Fuentes, Jr., as Joni or Jonie Fuentes, as some of his
friends did, but victim Malaspina occasionally called
petitioner Junior.[8]
Petitioner would make much of the alleged
confession of Zoilo Fuentes, Jr., since it is a declaration
against penal interest and therefore an exception to the
hearsay rule. The so-called confession of Zoilo was
allegedly given to Felicisimo Fuentes, the uncle of
petitioner and Zoilo, who in turn relayed the matter to
P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24
June 1989 while he was at Barangay San Isidro, Zoilo
Fuentes, Jr., confessed that he killed Malaspina in
retaliation; that he even showed him the knife he used
and asked his help in finding a lawyer, in securing bail
and, if possible, in working out a settlement with the
relatives of the deceased. The following day however he
learned that the self-confessed killer was gone and that
petitioner had been arrested for a crime he did not
commit.[9]
For his part, Station Commander P/Sgt. Conde, Jr.,
testified that after the criminal information for murder
was filed on 26 July 1989, petitioner met Felicisimo who
informed him of the disclosure by Zoilo. Conde then
advised Felicisimo that if it was true that it was Zoilo
who fatally stabbed Malaspina Felicisimo must persuade
Zoilo to surrender. Conde then personally went to
Barangay San Isidro to investigate. There he was told by
the townsfolk that Zoilo had already fled).[10]
One of the recognized exceptions to the hearsay
rule is that pertaining to declarations made against
interest. Sec. 38 of Rule 130 of the Rules of Court
provides that (t)he declaration made by a person
deceased, or unable to testify, against the interest of the
declarant, if the fact asserted in the declaration was at
the time it was made so far contrary to declarants own
interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be
true, may be received in evidence against himself or his
successors in interest and against third persons. The
admissibility in evidence of such declaration is grounded
on necessity and trustworthiness.[11]
There are three (3) essential requisites for the
admissibility of a declaration against interest: (a) the
declarant must not be available to testify; (b) the
declaration must concern a fact cognizable by the
declarant; and (c) the circumstances must render it
improbable that a motive to falsify existed.
In the instant case, we find that the declaration
particularly against penal interest attributed to Zoilo
Fuentes Jr. is not admissible in evidence as an exception
to the hearsay rule. We are not unaware
of People Toledo,[12] a 1928 case, where Justice Malcolm
writing for the Court endeavored to reexamine the
declaration of third parties made contrary to their penal
interest. In that case, the protagonists Holgado and
Morales engaged in a bob duel. Morales was killed
almost instantly. Holgado who was seriously wounded
gave a sworn statement (Exh. 1) before the municipal
president declaring that when he and Morales fought
there was nobody else present. One (1) month later
Holgado died from his wounds. While the Court was
agreed that Toledo, who reportedly intervened in the
fight and dealt the mortal blow, should be exonerated
on reasonable doubt, the members did not reach an
accord on the admissibility of Exh. 1. One group would
totally disregard Exh. 1 since there was ample
testimonial evidence to support an acquittal. The second
group considered Exh. 1 as part of the res gestae as it
was made on the same morning when the fight
occurred. A third group, to which Justice Malcolm
belonged, opined that the court below erred in not
admitting Exh. 1 as the statement of a fact against penal
interest.
For all its attempt to demonstrate the arbitrariness
behind the rejection in certain cases of declarations
against penal interest, the Toledocase cannot be applied
in the instant case which is remarkably different.
Consider this factual scenario: the alleged declarant
Zoilo Fuentes Jr., a cousin of accused-appellant, verbally
admitted to the latter, and later to their common uncle
Felicisimo Fuentes, that he (Zoilo) killed the victim
because of a grudge, after which he disappeared. One
striking feature that militates against the acceptance of
such a statement is its patent untrustworthiness. Zoilo
who is related to accused-appellant had every motive to
prevaricate. The same can be said of accused-appellant
and his uncle Felicisimo. Secondly, we need not resort to
legal rhetorics to find that the admission of such a
statement may likewise be, according to Wigmore,
shocking to the sense of justice.[13] Let us assume that
the trial court did admit the statement of Zoilo and on
that basis acquitted accused-appellant. Let us assume
further that Zoilo was subsequently captured and upon
being confronted with his admission of guilt readily
repudiated the same. There is nothing, absolutely
nothing, that can bind Zoilo legally to that statement.
But more importantly, the far weightier reason why
the admission against penal interest cannot be accepted
in the instant case is that the declarant is not unable to
testify. There is no showing that Zoilo is either dead,
mentally incapacitated or physically incompetent which
Sec. 38 obviously contemplates. His mere absence from
the jurisdiction does not make him ipso facto unavailable
under this rule.[14] For it is incumbent upon the defense
to produce each and every piece of evidence that can
break the prosecution and assure the acquittal of the
accused. Other than the gratuitous statements of
accused-appellant and his uncle to the effect that Zoilo
admitted having killed Malaspina, the records show that
the defense did not exert any serious effort to produce
Zoilo as a witness. Lest we be misunderstood, the Court
is always for the admission of evidence that would let an
innocent declaration of guilt by the real culprit. But this
can be open to abuse, as when the extrajudicial
statement is not even authenticated thus increasing the
probability of its fabrication; it is made to persons who
have every reason to lie and falsify; and it is not
altogether clear that the declarant himself is unable to
testify. Thus, for this case at least, exclusion is the
prudent recourse as explained in Toledo -The purpose of
all evidence is to get at the truth. The reason for the
hearsay rule is that the extrajudicial and unsworn
statement of another is not the best method of serving
this purpose. In other words, the great possibility of the
fabrication of falsehoods, and the inability to prove their
untruth, requires that the doors be closed to such
evidence.[15]
The Court of Appeals as well as the trial court
correctly determined the crime to be murder qualified by
treachery. The suddenness of the attack, without any
provocation from the unsuspecting victim, made the
stabbing of Malaspina treacherous.[16] However, the
court a quo erred in imposing an indeterminate prison
term of ten (10) years and one (1) day of prision
mayor as minimum to seventeen (17) years and four (4)
months of reclusion temporal as maximum. Murder
under Art. 248 of The Revised Penal Code is punishable
by reclusion temporal in its maximum period to death.
Since aside from treachery qualifying the crime to
murder there is no other modifying circumstance
proved, the medium period of the penalty, i.e. reclusion
perpetua, should have been imposed on petitioner.[17]
Petitioner maintains that assuming that he
committed the crime it is error to hold him answerable
for P8,300.00 as actual damages on the basis of the
mere testimony of the victims sister, Angelina Serrano,
without any tangible document to support such claim.
This is a valid point. In crimes and quasi-delicts, the
defendant is liable for all damages which are the natural
and probable consequences of the act or omission
complained of.[18] To seek recovery for actual damages it
is essential that the injured party proves the actual
amount of loss with reasonable degree of certainty
premised upon competent proof and on the best
evidence available.[19] Courts cannot simply rely on
speculation, conjecture or guesswork in determining the
fact and amount of damages.[20]
The award by the court a quo of P8,300.00 as
actual damages is not supported by the evidence on
record. We have only the testimony of the victims elder
sister stating that she incurred expenses of P8,300.00 in
connection with the death of Malaspina.[21] However, no
proof of the actual damages was ever presented in
court. Of the expenses alleged to have been incurred,
the Court can only give credence to those supported by
receipts and which appear to have been genuinely
expended in connection with the death of the victim.
Since the actual amount was not substantiated, the
same cannot be granted.[22]
WHEREFORE, the judgment appealed from finding
petitioner ALEJANDRO FUENTES JR. guilty of MURDER
and directing him to indemnify the heirs of Julieto
Malaspina in the amount of P50,000.00 plus costs is
AFFIRMED with the modification that the penalty
imposed should be as it is corrected to reclusion
perpetua, and the award of actual damages is deleted.
SO ORDERED.
(d) DAMAGE TO PROPERTY
(PNOC vs. CA, supra ** PREVIOUS CASE*)
(e) PERSONAL INJURY AND DEATH
 ART 2206 NCC
[G.R. No. 124354. December 29, 1999]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their
own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and
RON RAYMOND RAMOS, petitioners, vs. COURT OF
APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error,
may spell the difference between life and death. In this
sense, the doctor plays God on his patients fate.[1]
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy.[2]
Petitioners seek the reversal of the decision[3] of the
Court of Appeals, dated 29 May 1995, which overturned
the decision[4]of the Regional Trial Court, dated 30
January 1992, finding private respondents liable for
damages arising from negligence in the performance of
their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial
court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June
17, 1985, a 47-year old (Exh. A) robust woman (TSN,
October 19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains allegedly caused
by the presence of a stone in her gall bladder (TSN,
January 13, 1988, pp. 4-5), she was as normal as any
other woman. Married to Rogelio E. Ramos, an executive
of Philippine Long Distance Telephone Company, she
has three children whose names are Rommel Ramos,
Roy Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her
normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p.
5). She underwent a series of examinations which
included blood and urine tests (Exhs. A and C) which
indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr.
Buenviaje (TSN, January 13, 1988, p. 7), she and her
husband Rogelio met for the first time Dr. Orlino Hozaka
(should be Hosaka; see TSN, February 20, 1990, p. 3),
one of the defendants in this case, on June 10,
1985. They agreed that their date at the operating table
at the DLSMC (another defendant), would be on June
17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a cholecystectomy operation after
examining the documents (findings from the Capitol
Medical Center, FEU Hospital and DLSMC) presented to
him.Rogelio E. Ramos, however, asked Dr. Hosaka to
look for a good anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee
of P16,000.00, which was to include the
anesthesiologists fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-
33; TSN, February 27, 1990, p. 13; and TSN, November
9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was
admitted at one of the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon City (TSN, October
19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in
her room, she was prepared for the operation by the
hospital staff. Her sister-in-law, Herminda Cruz, who was
the Dean of the College of Nursing at the Capitol Medical
Center, was also there for moral support. She reiterated
her previous request for Herminda to be with her even
during the operation. After praying, she was given
injections. Her hands were held by Herminda as they
went down from her room to the operating room (TSN,
January 13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three
nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced
herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay inside
the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby
phone to look for Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in
the arrival of Dr. Hosaka. Herminda then went back to
the patient who asked, Mindy, wala pa ba ang
Doctor? The former replied, Huwag kang mag-alaala,
darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room
and informed the patients husband, Rogelio, that the
doctor was not yet around (id., p. 13). When she
returned to the operating room, the patient told her,
Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor. So, she went out again and told Rogelio about
what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already
dying [and] waiting for the arrival of the doctor even as
he did his best to find somebody who will allow him to
pull out his wife from the operating room (TSN, October
19, 1989, pp. 19-20). He also thought of the feeling of
his wife, who was inside the operating room waiting for
the doctor to arrive (ibid.). At almost 12:00 noon, he
met Dr. Garcia who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to arrive (id., p.
21). While talking to Dr. Garcia at around 12:10 P.M., he
came to know that Dr. Hosaka arrived as a nurse
remarked, Nandiyan na si Dr. Hosaka, dumating na
raw. Upon hearing those words, he went down to the
lobby and waited for the operation to be completed (id.,
pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say
that Dr. Hosaka is already here. She then saw people
inside the operating room moving, doing this and that,
[and] preparing the patient for the operation (TSN,
January 13, 1988, p. 16). As she held the hand of
Erlinda Ramos, she then saw Dr. Gutierrez intubating
the hapless patient. She thereafter heard Dr. Gutierrez
say, ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because
of the remarks of Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She
thereafter noticed bluish discoloration of the nailbeds of
the left hand of the hapless Erlinda even as Dr. Hosaka
approached her.She then heard Dr. Hosaka issue an
order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon arrived
at the operating room, she saw this anesthesiologist
trying to intubate the patient. The patients nailbed
became bluish and the patient was placed in a
trendelenburg position - a position where the head of
the patient is placed in a position lower than her feet
which is an indication that there is a decrease of blood
supply to the patients brain (Id., pp. 19-
20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos that
something wrong was x x x happening (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN,
July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating
room, saw a respiratory machine being rushed towards
the door of the operating room. He also saw several
doctors rushing towards the operating room. When
informed by Herminda Cruz that something wrong was
happening, he told her (Herminda) to be back with the
patient inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that
the patient was still in trendelenburg position (TSN,
January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive
Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able
to talk to Dr. Hosaka. The latter informed the former
that something went wrong during the
intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would
not have happened, had he (Dr. Hosaka) looked for a
good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the
hospital to explain what happened to the patient. The
doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient
was released from the hospital.
During the whole period of her confinement, she
incurred hospital bills amounting to P93,542.25 which is
the subject of a promissory note and affidavit of
undertaking executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June 17, 1985,
she has been in a comatose condition. She cannot do
anything. She cannot move any part of her body. She
cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes
(TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in
their residence, still needing constant medical attention,
with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October
19, 1989, pp. 32-34). She was also diagnosed to be
suffering from diffuse cerebral parenchymal damage
(Exh. G; see also TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil
case[6] for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda
Ramos.
During the trial, both parties presented evidence as
to the possible cause of Erlindas injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and
Dr. Mariano Gavino to prove that the damage sustained
by Erlinda was due to lack of oxygen in her brain caused
by the faulty management of her airway by private
respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist, to
the effect that the cause of brain damage was Erlindas
allergic reaction to the anesthetic agent, Thiopental
Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of
facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar,
this Court finds and so holds that defendants are liable
to plaintiffs for damages. The defendants were guilty of,
at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds
that she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-
10), without due regard to the fact that the patient was
inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the
patient, thereafter, was placed in trendelenburg position,
because of the decrease of blood supply to the patient's
brain. The evidence further shows that the hapless
patient suffered brain damage because of the absence
of oxygen in her (patient's) brain for approximately four
to five minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he
is liable for the acts of Dr. Perfecta Gutierrez whom he
had chosen to administer anesthesia on the patient as
part of his obligation to provide the patient a `good
anesthesiologist', and for arriving for the scheduled
operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds
that it is liable for the acts of negligence of the doctors
in their `practice of medicine' in the operating
room. Moreover, the hospital is liable for failing through
its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive
on time.
In having held thus, this Court rejects the defense raised
by defendants that they have acted with due care and
prudence in rendering medical services to plaintiff-
patient. For if the patient was properly intubated as
claimed by them, the patient would not have become
comatose. And, the fact that another anesthesiologist
was called to try to intubate the patient after her (the
patient's) nailbed turned bluish, belie their
claim. Furthermore, the defendants should have
rescheduled the operation to a later date. This, they
should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an
emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is
rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay,
jointly and severally, the former the following sums of
money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff
Erlinda Ramos reckoned from November 15, 1985 or in the total sum
of P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further
sum of P200,000.00 by way of exemplary damages; and,
4) the costs of the suit. SO ORDERED.[7]
Private respondents seasonably interposed an
appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the
findings of the trial court. The decretal portion of the
decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed
decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los
Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital
bills amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy. SO ORDERED.[8]
The decision of the Court of Appeals was received
on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as Atty. Rogelio Ramos. No copy
of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June
1995, or four (4) days before the expiration of the
reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed
with the appellate court a motion for extension of time
to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However,
the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995.[9] Meanwhile
petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on
7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not
yet commenced to run as the Division Clerk of Court of
the Court of Appeals had not yet served a copy thereof
to the counsel on record. Despite this explanation, the
appellate court still denied the motion to admit the
motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the
ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the
filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p.
12) was denied. It is, on the other hand, admitted in the
latter Motion that plaintiffs/appellees received a copy of
the decision as early as June 9, 1995. Computation wise,
the period to file a Motion for Reconsideration expired
on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4,
necessarily, the 15-day period already passed. For that
alone, the latter should be denied.
Even assuming admissibility of the Motion for
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
SO ORDERED.[10]
A copy of the above resolution was received by
Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion
for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the
motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the
fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit
the petition. The due date fell on 27 May 1996. The
petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of
Appeals on the following grounds:
I. IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;
II. IN FINDING THAT THE NEGLIGENCE OF
THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III. IN NOT APPLYING THE DOCTRINE OF RES
IPSA LOQUITUR.
Before we discuss the merits of the case, we shall
first dispose of the procedural issue on the timeliness of
the petition in relation to the motion for reconsideration
filed by petitioners with the Court of Appeals. In their
Comment,[12] private respondents contend that the
petition should not be given due course since the motion
for reconsideration of the petitioners on the decision of
the Court of Appeals was validly dismissed by the
appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the
reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the
decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law
Office. In fact, a copy of the decision of the appellate
court was instead sent to and received by petitioner
Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on
the other communications received by petitioner Rogelio
Ramos, the appellate court apparently mistook him for
the counsel on record.Thus, no copy of the decision of
the appellate court was furnished to the counsel on
record. Petitioner, not being a lawyer and unaware of
the prescriptive period for filing a motion for
reconsideration, referred the same to a legal counsel
only on 20 June 1995.
It is elementary that when a party is represented
by counsel, all notices should be sent to the partys
lawyer at his given address. With a few exceptions,
notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent
to the counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March
1996, which superseded the earlier resolution issued on
25 July 1995, and denied the motion for reconsideration
of petitioner, we believe that the receipt of the former
should be considered in determining the timeliness of
the filing of the present petition. Based on this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we
shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first
consider the issue on the applicability of the doctrine
of res ipsa loquitur to the instant case. Thereafter, the
first two assigned errors shall be tackled in relation to
the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally
means the thing or the transaction speaks for itself. The
phrase res ipsa loquitur is a maxim for the rule that the
fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
plaintiffs prima facie case, and present a question of fact
for defendant to meet with an explanation. [13] Where the
thing which caused the injury complained of is shown to
be under the management of the defendant or his
servants and the accident is such as in ordinary course
of things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was
caused by the defendants want of care.[14]
The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain
types of occurrences may justify an inference of
negligence on the part of the person who controls the
instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with
negligence.[15] It is grounded in the superior logic of
ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident
itself.[16] Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa
loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or
separate ground of liability.[17] Instead, it is considered
as merely evidentiary or in the nature of a procedural
rule.[18] It is regarded as a mode of proof, or a mere
procedural convenience since it furnishes a substitute
for, and relieves a plaintiff of, the burden of producing
specific proof of negligence.[19] In other words, mere
invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It
is simply a step in the process of such proof, permitting
the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to
invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the
defendant the burden of going forward with the
proof.[20] Still, before resort to the doctrine may be
allowed, the following requisites must be satisfactorily
shown:
1. The accident is of a kind which ordinarily
does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.[21]
In the above requisites, the fundamental element is
the control of the instrumentality which caused the
damage.[22] Such element of control must be shown to
be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where
it is applicable, and must establish that the essential
elements of the doctrine were present in a particular
incident.[23]
Medical malpractice[24]cases do not escape the
application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon
the harm are themselves of such a character as to
justify an inference of negligence as the cause of that
harm.[25] The application of res ipsa loquiturin medical
negligence cases presents a question of law since it is a
judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference.[26]
 Although generally, expert medical testimony is
relied upon in malpractice suits to prove that a physician
has done a negligent act or that he has deviated from
the standard medical procedure, when the doctrine
of res ipsa loquitur is availed by the plaintiff, the need
for expert medical testimony is dispensed with because
the injury itself provides the proof of negligence.[27] The
reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are
within the common knowledge of mankind which may be
testified to by anyone familiar with the
facts.[28] Ordinarily, only physicians and surgeons of skill
and experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions
which are observable by any one may be given by non-
expert witnesses.[29]Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine
the proper standard of care.[30] Where common
knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had
been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but
how and why it occurred.[31] When the doctrine is
appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained
of and the injury sustained while under the custody and
management of the defendant without need to produce
expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there
is no other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury suffered
by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an
operation,[32] injuries sustained on a healthy part of the
body which was not under, or in the area, of
treatment,[33] removal of the wrong part of the body
when another part was intended,[34] knocking out a
tooth while a patients jaw was under anesthetic for the
removal of his tonsils,[35] and loss of an eye while the
patient plaintiff was under the influence of anesthetic,
during or following an operation for
appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res
ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as
to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised.[37] A distinction must be made between the
failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the
service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment.[38] The physician or
surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any
particular scientific treatment did not produce the
desired result.[39] Thus, res ipsa loquitur is not available
in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not
accomplished.[40] The real question, therefore, is
whether or not in the process of the operation any
extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the
regular scope of customary professional activity in such
operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent
cause or causes of the untoward consequence.[41] If
there was such extraneous interventions, the doctrine
of res ipsa loquitur may be utilized and the defendant is
called upon to explain the matter, by evidence of
exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate
in the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell,[43] where the Kansas Supreme Court in
applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care,
custody and control of his physician who had complete
and exclusive control over him, but the operation was
never performed. At the time of submission he was
neurologically sound and physically fit in mind and body,
but he suffered irreparable damage and injury rendering
him decerebrate and totally incapacitated. The injury
was one which does not ordinarily occur in the process
of a mastoid operation or in the absence of negligence
in the administration of an anesthetic, and in the use
and employment of an endoctracheal tube. Ordinarily a
person being put under anesthesia is not rendered
decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these
facts and under these circumstances a layman would be
able to say, as a matter of common knowledge and
observation, that the consequences of professional
treatment were not as such as would ordinarily have
followed if due care had been exercised.
Here the plaintiff could not have been guilty of
contributory negligence because he was under the
influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of
event is more accessible to the defendants than to the
plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged
in Count II it is held that a cause of action is stated
under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the
aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself
for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care,
custody and control of private respondents who
exercised complete and exclusive control over her. At
the time of submission, Erlinda was neurologically sound
and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the
administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable
damage to her brain. Thus, without undergoing surgery,
she went out of the operating room already decerebrate
and totally incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury which does not
normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not happen
in the absence of negligence of someone in the
administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because
she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member
of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and
exclusive control of the physicians, we hold that a
practical administration of justice dictates the application
of res ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a
matter of common knowledge and observation, if
negligence attended the management and care of the
patient. Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an alleged
failure to secure the desired results of an operation nor
on an alleged lack of skill in the diagnosis or treatment
as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine
of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is
available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury
occurs to a patient while under anesthesia, or to any
and all anesthesia cases. Each case must be viewed in
its own light and scrutinized in order to be within the res
ipsa loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of
Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence
was the proximate cause of Erlindas comatose
condition. Corollary thereto, we shall also determine if
the Court of Appeals erred in relying on the testimonies
of the witnesses for the private respondents.
In sustaining the position of private respondents,
the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving
weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to
admit that she experienced some difficulty in the
endotracheal intubation[45]of the patient and thus,
cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that
private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the
alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by
their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean Herminda
Cruz offered in favor of petitioners that the cause of the
brain injury was traceable to the wrongful insertion of
the tube since the latter, being a nurse, was allegedly
not knowledgeable in the process of intubation. In so
holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them
of any liability towards Erlinda and her family.
We disagree with the findings of the Court of
Appeals. We hold that private respondents were unable
to disprove the presumption of negligence on their part
in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
 In the instant case, the records are helpful in
furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the
Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents own
testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent
in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to
properly intubate the patient. This fact was attested to
by Prof. Herminda Cruz, Dean of the Capitol Medical
Center School of Nursing and petitioner's sister-in-law,
who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to
this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the
patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a
sudden I heard some remarks coming from Dra. Perfecta
Gutierrez herself. She was saying Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the
left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person
of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating
room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a
while the patients nailbed became bluish and I saw the
patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in that position, there is a
decrease of blood supply to the brain.[46]
xxx
The appellate court, however, disbelieved Dean
Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our
country will show that intubation is not taught as part of
nursing procedures and techniques. Indeed, we take
judicial notice of the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is fully
capable of determining whether or not a patient is
properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July
25, 1991, p. 13). More importantly, there is no evidence
that she ever auscultated the patient or that she
conducted any type of examination to check if the
endotracheal tube was in its proper place, and to
determine the condition of the heart, lungs, and other
organs. Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of
sufficient factual bases.[47]
In other words, what the Court of Appeals is trying
to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation
was a success.
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the
statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are
observable by any one.[48] This is precisely allowed
under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for
the proof of negligence in non-technical matters or those
of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is
so obvious as to render expert testimony
unnecessary.[49] We take judicial notice of the fact that
anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of observation,
we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the
Capitol Medical Center School of Nursing, was fully
capable of determining whether or not the intubation
was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San
Pablo City; and then Dean of the Capitol Medical Center
School of Nursing.[50]Reviewing witness Cruz'
statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity,
consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less
than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlindas
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at
your first attempt (sic), you did not immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right
away.[51]
Curiously in the case at bar, respondent Dra.
Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the
trachea of Erlinda because it was positioned more
anteriorly (slightly deviated from the normal anatomy of
a person)[52] making it harder to locate and, since
Erlinda is obese and has a short neck and protruding
teeth, it made intubation even more difficult.
The argument does not convince us. If this was
indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a
thorough assessment of Erlindas airway, prior to the
induction of anesthesia, even if this would mean
postponing the procedure. From their testimonies, it
appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to
the administration of anesthesia is universally observed
to lessen the possibility of anesthetic accidents. Pre-
operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patients
medical records and visits with the patient, traditionally,
the day before elective surgery.[53] It includes taking the
patients medical history, review of current drug therapy,
physical examination and interpretation of laboratory
data.[54] The physical examination performed by the
anesthesiologist is directed primarily toward the central
nervous system, cardiovascular system, lungs and upper
airway.[55] A thorough analysis of the patient's airway
normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance.[56] Thus,
physical characteristics of the patients upper airway that
could make tracheal intubation difficult should be
studied.[57]Where the need arises, as when initial
assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patients airway would go a
long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez
admitted that she saw Erlinda for the first time on the
day of the operation itself, on 17 June 1985. Before this
date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of
the operation, respondent Dra. Gutierrez was unaware
of the physiological make-up and needs of Erlinda. She
was likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez act of
seeing her patient for the first time only an hour before
the scheduled operative procedure was, therefore, an
act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of
the physicians centuries-old Hippocratic Oath. Her failure
to follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to
gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she
could get away with it. Respondent Dra. Gutierrez tried
to muddle the difference between an elective surgery
and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective cases
and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic).[58]
However, the exact opposite is true. In an
emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative
procedure so that an anesthesiologist is able to see the
patient only a few minutes before surgery, if at
all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to make a proper
assessment, including the time to be at the patient's
bedside to do a proper interview and clinical
evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible
hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed
and cooperative.
Erlindas case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlindas case prior to the
operation and prepare her for anesthesia. However, she
never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the
operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez
failed to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now
determine if the faulty intubation is truly the proximate
cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view
that the cerebral anoxia which led to Erlindas coma was
due to bronchospasm[59] mediated by her allergic
response to the drug, Thiopental Sodium, introduced
into her system. Towards this end, they presented Dr.
Jamora, a Fellow of the Philippine College of Physicians
and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic
encephalopathy,[60] was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an
authority in the field of anesthesiology simply because
he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia
practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-
mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting
Dr. Jamoras testimony as an expert witness in the
anesthetic practice of Pentothal administration is further
supported by his own admission that he formulated his
opinions on the drug not from the practical experience
gained by a specialist or expert in the administration and
use of Sodium Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any
occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they
have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only
on what you have read from books and not by your own
personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of your
own personal experience you feel that you can testify on
pentothal here with medical authority?
A: No. That is why I used references to support my claims.
An anesthetic accident caused by a rare drug-
induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are
within the expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript,
in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority,
it is clear that the appellate court erred in giving weight
to Dr. Jamoras testimony as an expert in the
administration of Thiopental Sodium.
The provision in the rules of evidence[62]regarding
expert witnesses states:
Sec. 49. Opinion of expert witness. - The
opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he is shown to possess, may be received
in evidence.
Generally, to qualify as an expert witness, one must
have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of
recognized authorities on the subject or by practical
experience.[63] Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he
lacks the necessary knowledge, skill, and training in the
field of anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field, private
respondents intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents theory, that
Thiopental Sodium may have produced Erlinda's coma
by triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin
reactions, or wheezing - some of the more common
accompanying signs of an allergic reaction - appears on
record. No laboratory data were ever presented to the
court.
In any case, private respondents themselves admit
that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were
to accept private respondents' hypothesis without
supporting medical proof, and against the weight of
available evidence, then every anesthetic accident would
be an act of God. Evidently, the Thiopental-allergy
theory vigorously asserted by private respondents was a
mere afterthought. Such an explanation was advanced
in order to absolve them of any and all responsibility for
the patients condition.
In view of the evidence at hand, we are inclined to
believe petitioners stand that it was the faulty intubation
which was the proximate cause of Erlindas comatose
condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred.[64] An injury
or damage is proximately caused by an act or a failure
to act, whenever it appears from the evidence in the
case, that the act or omission played a substantial part
in bringing about or actually causing the injury or
damage; and that the injury or damage was either a
direct result or a reasonably probable consequence of
the act or omission.[65] It is the dominant, moving or
producing cause.
Applying the above definition in relation to the
evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events
leading to Erlindas brain damage and, ultimately, her
comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan. Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of
abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal
intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through
the esophagus instead of the lungs through the
trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube
which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first
intubation suggests that the length of time utilized in
inserting the endotracheal tube (up to the time the tube
was withdrawn for the second attempt) was fairly
significant. Due to the delay in the delivery of oxygen in
her lungs Erlinda showed signs of cyanosis.[66] As stated
in the testimony of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed that the nailbeds
of Erlinda were already blue.[67] However, private
respondents contend that a second intubation was
executed on Erlinda and this one was successfully
done. We do not think so. No evidence exists on record,
beyond private respondents' bare claims, which supports
the contention that the second intubation was
successful. Assuming that the endotracheal tube finally
found its way into the proper orifice of the trachea, the
same gave no guarantee of oxygen delivery, the
hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it
could not be claimed, as private respondents insist, that
the second intubation was accomplished.Even granting
that the tube was successfully inserted during the
second attempt, it was obviously too late. As aptly
explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation
of her brain for about four to five minutes.[68]
The above conclusion is not without basis. Scientific
studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious
injuries associated with anesthesia.[69] Nevertheless,
ninety-eight percent (98%) or the vast majority of
difficult intubations may be anticipated by performing a
thorough evaluation of the patients airway prior to the
operation.[70] As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care
been used in the pre-operative evaluation, respondent
physician could have been much more prepared to meet
the contingency brought about by the perceived
anatomic variations in the patients neck and oral area,
defects which would have been easily overcome by a
prior knowledge of those variations together with a
change in technique.[71] In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-
operative evaluation, would have had little difficulty
going around the short neck and protruding
teeth.[72] Having failed to observe common medical
standards in pre-operative management and intubation,
respondent Dra. Gutierrez negligence resulted in
cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent
Dr. Orlino Hosaka as the head of the surgical team. As
the so-called captain of the ship,[73] it is the surgeons
responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr.
Hosakas negligence can be found in his failure to
exercise the proper authority (as the captain of the
operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. In fact, no
evidence on record exists to show that respondent Dr.
Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient.Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another
procedure in a different hospital at the same time as
Erlindas cholecystectomy, and was in fact over three
hours late for the latters operation. Because of this, he
had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he
was remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for the
events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in
this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with
attending and visiting consultants,[74] who are allegedly
not hospital employees, presents problems in
apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant
control in the hiring and firing of consultants and in the
conduct of their work within the hospital
premises. Doctors who apply for consultant slots, visiting
or attending, are required to submit proof of completion
of residency, their educational qualifications; generally,
evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and
references. These requirements are carefully scrutinized
by members of the hospital administration or by a
review committee set up by the hospital who either
accept or reject the application.[75] This is particularly
true with respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds
for clerks, interns and residents, moderate grand rounds
and patient audits and perform other tasks and
responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege
of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is
generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee,
is normally politely terminated.
In other words, private hospitals, hire, fire and
exercise real control over their attending and visiting
consultant staff. While consultants are not, technically
employees, a point which respondent hospital asserts in
denying all responsibility for the patients condition, the
control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of
the payment of wages. In assessing whether such a
relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case,
the question now arises as to whether or not respondent
hospital is solidarily liable with respondent doctors for
petitioners condition.[76]
The basis for holding an employer solidarily
responsible for the negligence of its employee is found
in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also for
those of others based on the formers responsibility
under a relationship of patria potestas.[77] Such
responsibility ceases when the persons or entity
concerned prove that they have observed the diligence
of a good father of the family to prevent damage. [78] In
other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the
burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they
observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from
a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in
the hiring and supervision of the latter. It failed to
adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge
its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for
Erlindas condition.
Based on the foregoing, we hold that the Court of
Appeals erred in accepting and relying on the
testimonies of the witnesses for the private
respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut
the presumption of negligence. Upon these disquisitions
we hold that private respondents are solidarily liable for
damages under Article 2176[79] of the Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total
of P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, subject to its
being updated covering the period from 15 November
1985 up to 15 April 1992, based on monthly expenses
for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount
established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at
the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were
forced to bring home the patient to avoid mounting
hospital bills.
 And yet ideally, a comatose patient should remain
in a hospital or be transferred to a hospice specializing in
the care of the chronically ill for the purpose of providing
a proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be normally
made by a dietitian to provide her with the correct daily
caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a
regular basis by a physical therapist to avoid muscle
atrophy, and by a pulmonary therapist to prevent the
accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of
proper care, not the cost of the care the family is usually
compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on
actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which
may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has
been completed and that the cost can be
liquidated. However, these provisions neglect to take
into account those situations, as in this case, where the
resulting injury might be continuing and possible future
complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which
should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one
which compensates for pecuniary loss incurred and
proved, up to the time of trial; and one which would
meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with
certainty.[80] In other words, temperate damages can
and should be awarded on top of actual or
compensatory damages in instances where the injury is
chronic and continuing. And because of the unique
nature of such cases, no incompatibility arises when
both actual and temperate damages are provided
for. The reason is that these damages cover two distinct
phases.
As it would not be equitable - and certainly not in
the best interests of the administration of justice - for
the victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded - temperate
damages are appropriate. The amount given as
temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide
only home-based nursing care for a comatose patient
who has remained in that condition for over a
decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step
with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which
generally specializes in such care. They should not be
compelled by dire circumstances to provide substandard
care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate
damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court
was confronted with a situation where the injury
suffered by the plaintiff would have led to expenses
which were difficult to estimate because while they
would have been a direct result of the injury
(amputation), and were certain to be incurred by the
plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court
therein stated:
As a result of the accident, Ma. Lourdes
Valenzuela underwent a traumatic amputation
of her left lower extremity at the distal left
thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full
ambulatory functions of her left extremity, even
with the use of state of the art prosthetic
technology. Well beyond the period of
hospitalization (which was paid for by Li), she
will be required to undergo adjustments in her
prosthetic devise due to the shrinkage of the
stump from the process of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy. During
her lifetime, the prosthetic devise will have to
be replaced and readjusted to changes in the
size of her lower limb effected by the biological
changes of middle-age, menopause and
aging. Assuming she reaches menopause, for
example, the prosthetic will have to be adjusted
to respond to the changes in bone resulting
 from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal
women. In other words, the damage done to
her would not only be permanent and lasting, it
would also be permanently changing and
adjusting to the physiologic changes which her
body would normally undergo through the
years. The replacements, changes, and
adjustments will require corresponding
adjustive physical and occupational therapy. All
of these adjustments, it has been documented,
are painful.
x x x.
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount
of functional restoration of the motor functions
of the lower limb. The sensory functions are
forever lost. The resultant anxiety,
sleeplessness, psychological injury, mental and
physical pain are inestimable.[83]
The injury suffered by Erlinda as a consequence of
private respondents negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties
when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care
has so far been heroically shouldered by her husband
and children, who, in the intervening years have been
deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and
financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioners
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of
the victims actual injury would not even scratch the
surface of the resulting moral damage because it would
be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and
injury suffered by the victim or those actually affected
by the victims condition.[84] The husband and the
children, all petitioners in this case, will have to live with
the day to day uncertainty of the patients illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility
of the care of the victim. The familys moral injury and
suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral
damages would be appropriate.
Finally, by way of example, exemplary damages in
the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the
instant suit we are of the opinion that attorneys fees
valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating
medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally
cause injury or death to their patients. However, intent
is immaterial in negligence cases because where
negligence exists and is proven, the same automatically
gives the injured a right to reparation for the damage
caused.
Established medical procedures and practices,
though in constant flux are devised for the purpose of
preventing complications. A physicians experience with
his patients would sometimes tempt him to deviate from
established community practices, and he may end a
distinguished career using unorthodox methods without
incident. However, when failure to follow established
procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is
made between the deviation and the injury or damage,
the physician would necessarily be called to account for
it. In the case at bar, the failure to observe pre-
operative assessment protocol which would have
influenced the intubation in a salutary way was fatal to
private respondents case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as
to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of
promulgation of this decision plus a monthly payment
of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives;
2) P2,000,000.00 as moral damages, 3) P1,500,000.00
as temperate damages; 4) P100,000.00 each as
exemplary damages and attorneys fees; and, 5) the
costs of the suit. SO ORDERED.
G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner, vs. ARSENIO
DELIM and the HON. COURT OF
APPEALS, respondents.
At noon time on 11 July 1973, petitioner Reynalda
Gatchalian boarded, as a paying passenger,
respondent's "Thames" mini bus at a point in San
Eugenio, Aringay, La Union, bound for Bauang, of the
same province. On the way, while the bus was running
along the highway in Barrio Payocpoc, Bauang, Union, "a
snapping sound" was suddenly heard at one part of the
bus and, shortly thereafter, the vehicle bumped a
cement flower pot on the side of the road, went off the
road, turned turtle and fell into a ditch. Several
passengers, including petitioner Gatchalian, were
injured. They were promptly taken to Bethany Hospital
at San Fernando, La Union, for medical treatment. Upon
medical examination, petitioner was found to have
sustained physical injuries on the leg, arm and forehead,
specifically described as follows: lacerated wound,
forehead; abrasion, elbow, left; abrasion, knee, left;
abrasion, lateral surface, leg, left. 1
On 14 July 1973, while injured. passengers were
confined in the hospital, Mrs. Adela Delim, wife of
respondent, visited them and later paid for their
hospitalization and medical expenses. She also gave
petitioner P12.00 with which to pay her transportation
expense in going home from the hospital. However,
before Mrs. Delim left, she had the injured passengers,
including petitioner, sign an already prepared Joint
Affidavit which stated, among other things:
That we were passengers of Thames with Plate No. 52-
222 PUJ Phil. 73 and victims after the said Thames met
an accident at Barrio Payocpoc Norte, Bauang, La Union
while passing through the National Highway No. 3;
That after a thorough investigation the said Thames met
the accident due to mechanical defect and went off the
road and turned turtle to the east canal of the road into
a creek causing physical injuries to us;
xxx xxx xxx
That we are no longer interested to file a complaint,
criminal or civil against the said driver and owner of the
said Thames, because it was an accident and the said
driver and owner of the said Thames have gone to the
extent of helping us to be treated upon our injuries.
xxx xxx xxx 2
(Emphasis supplied)
Notwithstanding this document, petitioner Gathalian filed
with the then Court of First Instance of La Union an
action extra contractu to recover compensatory and
moral damages. She alleged in the complaint that her
injuries sustained from the vehicular mishap had left her
with a conspicuous white scar measuring 1 by 1/2 inches
on the forehead, generating mental suffering and an
inferiority complex on her part; and that as a result, she
had to retire in seclusion and stay away from her
friends. She also alleged that the scar diminished her
facial beauty and deprived her of opportunities for
employment. She prayed for an award of: P10,000.00
for loss of employment and other opportunities;
P10,000.00 for the cost of plastic surgery for removal of
the scar on her forehead; P30,000.00 for moral
damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular
mishap was due to force majeure, and that petitioner
had already been paid and moreover had waived any
right to institute any action against him (private
respondent) and his driver, when petitioner Gatchalian
signed the Joint Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint upon
the ground that when petitioner Gatchalian signed the
Joint Affidavit, she relinquished any right of action
(whether criminal or civil) that she may have had
against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed
the trial court's conclusion that there had been a valid
waiver, but affirmed the dismissal of the case by
denying petitioner's claim for damages:
We are not in accord, therefore, of (sic) the ground of
the trial court's dismissal of the complaint, although we
conform to the trial court's disposition of the case — its
dismissal.
IN VIEW OF THE FOREGOING considerations, there
being no error committed by the lower court in
dismissing the plaintiff-appellant's complaint, the
judgment of dismissal is hereby affirmed.
Without special pronouncement as to costs. SO
ORDERED. 3
In the present Petition for Review filed in forma
pauperis, petitioner assails the decision of the Court of
Appeals and ask this Court to award her actual or
compensatory damages as well as moral damages.
We agree with the majority of the Court of Appeals who
held that no valid waiver of her cause of action had been
made by petitioner. The relevant language of the Joint
Affidavit may be quoted again:
That we are no longer interested to file a complaint,
criminal or civil against the said driver and owner of the
said Thames, because it was an accident and the said
driver and owner of the said Thames have gone to the
extent of helping us to be treated upon our injuries.
(Emphasis supplied)
A waiver, to be valid and effective, must in the first
place be couched in clear and unequivocal terms which
leave no doubt as to the intention of a person to give up
a right or benefit which legally pertains to him. A waiver
may not casually be attributed to a person when the
terms thereof do not explicitly and clearly evidence an
intent to abandon a right vested in such person.
The degree of explicitness which this Court has required
in purported waivers is illustrated in Yepes and Susaya
v. Samar Express Transit (supra), where the Court in
reading and rejecting a purported waiver said:
. . . It appears that before their transfer to the Leyte
Provincial Hospital, appellees were asked to sign as, in
fact, they signed the document Exhibit I wherein they
stated that "in consideration of the expenses which said
operator has incurred in properly giving us the proper
medical treatment, we hereby manifest our desire to
waive any and all claims against the operator of the
Samar Express Transit."
xxx xxx xxx
Even a cursory examination of the document mentioned
above will readily show that appellees did not actually
waive their right to claim damages from appellant for
the latter's failure to comply with their contract of
carriage. All that said document proves is that they
expressed a "desire" to make the waiver — which
obviously is not the same as making an actual waiver of
their right. A waiver of the kind invoked by appellant
must be clear and unequivocal (Decision of the Supreme
Court of Spain of July 8, 1887) — which is not the case
of the one relied upon in this appeal. (Emphasis
supplied)
If we apply the standard used in Yepes and Susaya, we
would have to conclude that the terms of the Joint
Affidavit in the instant case cannot be regarded as a
waiver cast in "clear and unequivocal" terms. Moreover,
the circumstances under which the Joint Affidavit was
signed by petitioner Gatchalian need to be considered.
Petitioner testified that she was still reeling from the
effects of the vehicular accident, having been in the
hospital for only three days, when the purported waiver
in the form of the Joint Affidavit was presented to her
for signing; that while reading the same, she
experienced dizziness but that, seeing the other
passengers who had also suffered injuries sign the
document, she too signed without bothering to read the
Joint Affidavit in its entirety. Considering these
circumstances there appears substantial doubt whether
petitioner understood fully the import of the Joint
Affidavit (prepared by or at the instance of private
respondent) she signed and whether she actually
intended thereby to waive any right of action against
private respondent.
Finally, because what is involved here is the liability of a
common carrier for injuries sustained by passengers in
respect of whose safety a common carrier must
exercise extraordinary diligence, we must construe any
such purported waiver most strictly against the common
carrier. For a waiver to be valid and effective, it must
not be contrary to law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to
claim damages by an injured passenger, under
circumstances like those exhibited in this case, would be
to dilute and weaken the standard of extraordinary
diligence exacted by the law from common carriers and
hence to render that standard unenforceable. 6 We
believe such a purported waiver is offensive to public
policy.
Petitioner Gatchalian also argues that the Court of
Appeals, having by majority vote held that there was no
enforceable waiver of her right of action, should have
awarded her actual or compensatory and moral
damages as a matter of course.
We have already noted that a duty to exercise
extraordinary diligence in protecting the safety of its
passengers is imposed upon a common carrier. 7 In case
of death or injuries to passengers, a statutory
presumption arises that the common carrier was at fault
or had acted negligently "unless it proves that it [had]
observed extraordinary diligence as prescribed in Articles
1733 and 1755." 8 In fact, because of this statutory
presumption, it has been held that a court need not
even make an express finding of fault or negligence on
the part of the common carrier in order to hold it
liable. 9 To overcome this presumption, the common
carrier must slow to the court that it had exercised
extraordinary diligence to prevent the injuries. 10 The
standard of extraordinary diligence imposed upon
common carriers is considerably more demanding than
the standard of ordinary diligence, i.e., the diligence of a
good paterfamilias established in respect of the ordinary
relations between members of society. A common
carrier is bound to carry its passengers safely" as far as
human care and foresight can provide, using the utmost
diligence of a very cautious person, with due regard to
all the circumstances". 11
Thus, the question which must be addressed is whether
or not private respondent has successfully proved that
he had exercised extraordinary diligence to prevent the
mishap involving his mini-bus. The records before the
Court are bereft of any evidence showing that
respondent had exercised the extraordinary diligence
required by law. Curiously, respondent did not even
attempt, during the trial before the court a quo, to prove
that he had indeed exercised the requisite extraordinary
diligence. Respondent did try to exculpate himself from
liability by alleging that the mishap was the result
of force majeure. But allegation is not proof and here
again, respondent utterly failed to substantiate his
defense offorce majeure. To exempt a common carrier
from liability for death or physical injuries to passengers
upon the ground of force majeure, the carrier must
clearly show not only that the efficient cause of the
casualty was entirely independent of the human will, but
also that it was impossible to avoid. Any participation by
the common carrier in the occurrence of the injury will
defeat the defense of force majeure. In Servando v.
Philippine Steam Navigation Company, 12 the Court
summed up the essential characteristics of force
majeure by quoting with approval from the Enciclopedia
Juridica Española:
Thus, where fortuitous event or force majeure is the
immediate and proximate cause of the loss, the obligor
is exempt from liability non-performance. The Partidas,
the antecedent of Article 1174 of the Civil Code, defines
"caso fortuito" as 'an event that takes place by accident
and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck,
violence of robber.
In its dissertation on the phrase "caso fortuito" the
Enciclopedia Juridica Española says: 'In legal sense and,
consequently, also in relation to contracts, a "caso
fortuito" presents the following essential characteristics:
(1) the cause of the unforeseen and unexpected
occurence, or of the failure of the debtor to comply with
his obligation, must be independent of the human will;
(2) it must be impossible to foresee the event which
constitutes the "caso fortuito", or if it can be foreseen, it
must be impossible to avoid; (3) the occurrence must be
such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (4) the obligor must
be free from any participation in the aggravation of the
injury resulting to the creditor.
Upon the other hand, the record yields affirmative
evidence of fault or negligence on the part of
respondent common carrier. In her direct examination,
petitioner Gatchalian narrated that shortly before the
vehicle went off the road and into a ditch, a "snapping
sound" was suddenly heard at one part of the bus. One
of the passengers, an old woman, cried out, "What
happened?" ("Apay addan samet nadadaelen?"). The
driver replied, nonchalantly, "That is only
normal" ("Ugali ti makina dayta"). The driver did not
stop to check if anything had gone wrong with the bus.
Moreover, the driver's reply necessarily indicated that
the same "snapping sound" had been heard in the bus
on previous occasions. This could only mean that the
bus had not been checked physically or mechanically to
determine what was causing the "snapping sound"
which had occurred so frequently that the driver had
gotten accustomed to it. Such a sound is obviously alien
to a motor vehicle in good operating condition, and even
a modicum of concern for life and limb of passengers
dictated that the bus be checked and repaired. The
obvious continued failure of respondent to look after the
roadworthiness and safety of the bus, coupled with the
driver's refusal or neglect to stop the mini-bus after he
had heard once again the "snapping sound" and the cry
of alarm from one of the passengers, constituted wanton
disregard of the physical safety of the passengers, and
hence gross negligence on the part of respondent and
his driver.
We turn to petitioner's claim for damages. The first item
in that claim relates to revenue which petitioner said she
failed to realize because of the effects of the vehicular
mishap. Petitioner maintains that on the day that the
mini-bus went off the road, she was supposed to confer
with the district supervisor of public schools for a
substitute teacher's job, a job which she had held off
and on as a "casual employee." The Court of Appeals,
however, found that at the time of the accident, she was
no longer employed in a public school since, being a
casual employee and not a Civil Service eligible, she had
been laid off. Her employment as a substitute teacher
was occasional and episodic, contingent upon the
availability of vacancies for substitute teachers. In view
of her employment status as such, the Court of Appeals
held that she could not be said to have in fact lost any
employment after and by reason of the
accident. 13 Such was the factual finding of the Court of
Appeals, a finding entitled to due respect from this
Court. Petitioner Gatchalian has not submitted any basis
for overturning this finding of fact, and she may not be
awarded damages on the basis of speculation or
conjecture. 14
Petitioner's claim for the cost of plastic surgery for
removal of the scar on her forehead, is another matter.
A person is entitled to the physical integrity of his or her
body; if that integrity is violated or diminished, actual
injury is suffered for which actual or compensatory
damages are due and assessable. Petitioner Gatchalian
is entitled to be placed as nearly as possible in the
condition that she was before the mishap. A scar,
especially one on the face of the woman, resulting from
the infliction of injury upon her, is a violation of bodily
integrity, giving raise to a legitimate claim for restoration
to her conditio ante. If the scar is relatively small and
does not grievously disfigure the victim, the cost of
surgery may be expected to be correspondingly modest.
In Araneta, et al. vs. Areglado, et al., 15 this Court
awarded actual or compensatory damages for, among
other things, the surgical removal of the scar on the face
of a young boy who had been injured in a vehicular
collision. The Court there held:
We agree with the appellants that the damages awarded
by the lower court for the injuries suffered by Benjamin
Araneta are inadequate. In allowing not more than
P1,000.00 as compensation for the "permanent
deformity and — something like an inferiority complex"
as well as for the "pathological condition on the left side
of the jaw" caused to said plaintiff, the court below
overlooked the clear evidence on record that to arrest
the degenerative process taking place in the mandible
and restore the injured boy to a nearly normal condition,
surgical intervention was needed, for which the doctor's
charges would amount to P3,000.00, exclusive of
hospitalization fees, expenses and
medicines. Furthermore, the operation, according to Dr.
Diño, would probably have to be repeated in order to
effectuate a complete cure, while removal of the scar on
the face obviously demanded plastic surgery.
xxx xxx xxx
The father's failure to submit his son to a plastic
operation as soon as possible does not prove that such
treatment is not called for. The damage to the jaw and
the existence of the scar in Benjamin Araneta's
faceare physical facts that can not be reasoned out of
existence. That the injury should be treated in order to
restore him as far as possible to his original condition is
undeniable. The father's delay, or even his negligence,
should not be allowed to prejudice the son who has no
control over the parent's action nor impair his right to a
full indemnity.
. . . Still, taking into account the necessity and cost of
corrective measures to fully repair the damage; the pain
suffered by the injured party; his feelings of inferiority
due to consciousness of his present deformity, as well as
the voluntary character of the injury inflicted; and
further considering that a repair, however, skillfully
conducted, is never equivalent to the original state, we
are of the opinion that the indemnity granted by the trial
court should be increased to a total of P18,000.00.
(Emphasis supplied)
Petitioner estimated that the cost of having her scar
surgically removed was somewhere between P10,000.00
to P15,000.00. 16 Upon the other hand, Dr. Fe Tayao
Lasam, a witness presented as an expert by petitioner,
testified that the cost would probably be between
P5,000.00 to P10,000.00. 17 In view of this testimony,
and the fact that a considerable amount of time has
lapsed since the mishap in 1973 which may be expected
to increase not only the cost but also very probably the
difficulty of removing the scar, we consider that the
amount of P15,000.00 to cover the cost of such plastic
surgery is not unreasonable.
Turning to petitioner's claim for moral damages, the
long-established rule is that moral damages may be
awarded where gross negligence on the part of the
common carrier is shown. 18 Since we have earlier
concluded that respondent common carrier and his
driver had been grossly negligent in connection with the
bus mishap which had injured petitioner and other
passengers, and recalling the aggressive manuevers of
respondent, through his wife, to get the victims to waive
their right to recover damages even as they were still
hospitalized for their injuries, petitioner must be held
entitled to such moral damages. Considering the extent
of pain and anxiety which petitioner must have suffered
as a result of her physical injuries including the
permanent scar on her forehead, we believe that the
amount of P30,000.00 would be a reasonable award.
Petitioner's claim for P1,000.00 as atttorney's fees is in
fact even more modest. 19
WHEREFORE, the Decision of the Court of Appeals dated
24 October 1980, as well as the decision of the then
Court of First Instance of La Union dated 4 December
1975 are hereby REVERSED and SET ASIDE.Respondent
is hereby ORDERED to pay petitioner Reynalda
Gatchalian the following sums: 1) P15,000.00 as actual
or compensatory damages to cover the cost of plastic
surgery for the removal of the scar on petitioner's
forehead; 2) P30,000.00 as moral damages; and 3)
P1,000.00 as attorney's fees, the aggregate amount to
bear interest at the legal rate of 6% per annum counting
from the promulgation of this decision until full payment
thereof. Costs against private respondent. SO ORDERED.
(f) ATTORNEY’S FEES
 ART. 2208 NCC
[G.R. No. 73886. January 31, 1989.]
JOHN C. QUIRANTE and DANTE CRUZ, Petitioners,
v. THE HONORABLE INTERMEDIATE APPELLATE
COURT, MANUEL C. CASASOLA, and ESTRELLITA
C. CASASOLA, Respondents.
SYLLABUS
1. LEGAL ETHICS; ATTORNEY AND CLIENT; ATTORNEY’S FEES; MAY
BE ASSERTED EITHER IN THE VERY ACTION IN WHICH SERVICES IN
QUESTION HAVE BEEN RENDERED, OR IN A SEPARATE ACTION. —
Well settled is the rule that counsel’s claim for attorney’s fees may be
asserted either in the very action in which the services in question
have been rendered, or in a separate action. If the first alternative is
chosen, the Court may pass upon said claim, even if its amount were
less than the minimum prescribed by law for the jurisdiction of said
court, upon the theory that the right to recover attorney’s fees is but
an incident of the case in which the services of counsel have been
rendered." It also rests on the assumption that the court trying the
case is to a certain degree already familiar with the nature and extent
of the lawyer’s services. The rule against multiplicity of suits will in
effect be subserved
2. ID.; ID.; ID.; DISTINGUISHED FROM ATTORNEY’S FEES AS
DAMAGES UNDER ARTICLE 2208 OF CIVIL CODE. — What is being
claimed here as attorney’s fees by petitioners is, however, different
from attorney’s fees as an item of damages provided for under Article
2208 of the Civil Code, wherein the award is made in favor of the
litigant, not of his counsel, and the litigant, not his counsel, is the
judgment creditor who may enforce the judgment for attorney’s fees
by execution. Here, the petitioner’s claims are based on an alleged
contract for professional services, with them as the creditors and the
private respondents as the debtors.
3. ID.; ID.; ID.; DETERMINATION OF PROPRIETY AND AMOUNT
SHOULD BE HELD IN ABEYANCE PENDING THE FINALITY OF CASE. —
Since the main case from which the petitioner’s claims for their fees
may arise has not yet become final, the determination of the propriety
of said fees and the amount thereof should be held in abeyance. This
procedure gains added validity in the light of the rule that the remedy
for recovering attorney’s fees as an incident of the main action may be
availed of only when something is due to the client.
4. ID.; ID.; ID.; CONFIRMATION BY SOME HEIRS OF DECEASED
SHOULD BE DETERMINED BY TRIAL COURT. — With regard to the
effect of the alleged confirmation of the attorney’s fees by some of the
heirs of the deceased. We are of the considered view that the orderly
administration of justice dictates that such issue be likewise
determined by the court a quo inasmuch as it also necessarily involves
the same contingencies in determining the propriety and assessing the
extent of recovery of attorney’s fees by both petitioners herein. The
court below will be in a better position, after the entire case shall have
been adjudicated, inclusive of any liability of PHILAMGEN and the
respective participations of the heirs of Dr. Casasola in the award, to
determine with evidentiary support such matters like the basis for the
entitlement in the fees of petitioner Dante Cruz and as to whether the
agreement allegedly entered into with the late Dr. Casasola would be
binding on all his heirs, as contended by petitioner Quirante.
DECISION
This appeal by certiorari seeks to set aside the judgment
1 of the former Intermediate Appellate Court
promulgated on November 6, 1985 in AC-G.R. No. SP-
03640, 2 which found the petition for certioraritherein
meritorious, thus:
"Firstly, there is still pending in the Supreme Court a
petition which may or may not ultimately result in the
granting to the Isasola (sic) family of the total amount of
damages given by the respondent Judge. Hence the
award of damages confirmed in the two assailed Orders
may be premature." Secondly, assuming that the grant
of damages to the family is eventually ratified, the
alleged confirmation of attorney’s fees will not and
should not adversely affect the non-signatories thereto.
"WHEREFORE, in view of the grave abuse of discretion
(amounting to lack of jurisdiction) committed by the
respondent Judge, We hereby SET ASIDE his questioned
orders of March 20, 1984 and May 25, 1984. The
restraining order previously issued is made permanent."
3
The challenged decision of respondent court succinctly
sets out the factual origin of this case as follows:
". . . Dr. Indalecio Casasola (father of respondents) had
a contract with a building contractor named Norman
GUERRERO. The Philippine American General Insurance
Co. Inc. (PHILAMGEN, for short) acted as bondsman for
GUERRERO. In view of GUERRERO’S failure to perform
his part of the contract within the period specified, Dr.
Indalecio Casasola, thru his counsel, Atty. John
Quirante, sued both GUERRERO and PHILAMGEN before
the Court of First Instance of Manila, now the Regional
Trial Court (RTC) of Manila for damages, with
PHILAMGEN filing a cross-claim against GUERRERO for
indemnification. The RTC rendered a decision dated
October 16, 1981 . . ."
In said decision, the trial court ruled in favor of the
plaintiff by rescinding the contract; ordering GUERRERO
and PHILAMGEN to pay the plaintiff actual damages in
the amount of P129,430.00, moral damages in the
amount of P50,000.00, exemplary damages in the
amount of P40,000.00 and attorney’s fees in the amount
of P30,000.00; ordering Guerrero alone to pay liquidated
damages of P300.00 a day from December 15, 1978 to
July 16, 1979; and ordering PHILAMGEN to pay the
plaintiff the amount of the surety bond equivalent to
P120,000.00 5 A motion for reconsideration filed by
PHILAMGEN was denied by the trial court on November
4, 1982.
Not satisfied with the decision of the trial court,
PHILAMGEN filed a notice of appeal but the same was
not given due course because it was allegedly filed out
of time. The trial court thereafter issued a writ of
execution.
A petition was filed in AC-G.R. No. 00202 with the
Intermediate Appellate Court for the quashal of the writ
of execution and to compel the trial court to give due
course to the appeal. The petition was dismissed on May
4, 1983 8 so the case was elevated to this Court in G.R.
No. 64334 9 In the meantime, on November 16, 1981,
Dr. Casasola died leaving his widow and several children
as survivors.
On June 18, 1983, herein petitioner Quirante filed a
motion in the trial court for the confirmation of his
attorney’s fees. According to him, there was an oral
agreement between him and the late Dr. Casasola with
regard to his attorney’s fees, which agreement was
allegedly confirmed in writing by the widow, Asuncion
Vda. de Casasola, and the two daughters of the
deceased, namely Mely C. Garcia and Virginia C.
Nazareno. Petitioner avers that pursuant to said
agreement, the attorney’s fees would be computed as
follows: virtual 1aw library
A. In case of recovery of the P120,000.00 surety bond,
the attorney’s fees of the undersigned counsel (Atty.
Quirante) shall be P30,000.00.
B. In case the Honorable Court awards damages in
excess of the P120,000.00 bond, it shall be divided
equally between the Heirs of I. Casasola, Atty. John C.
Quirante and Atty. Dante Cruz.
The trial court granted the motion for confirmation in an
order dated March 20, 1984, despite an opposition
thereto. It also denied the motion for reconsideration of
the order of confirmation in its second order dated May
25, 1984. 11
These are the two orders which are assailed in this
case.chanrobles virtual lawlibrary
Well settled is the rule that counsel’s claim for attorney’s
fees may be asserted either in the very action in which
the services in question have been rendered, or in a
separate action. If the first alternative is chosen, the
Court may pass upon said claim, even if its amount were
less than the minimum prescribed by law for the
jurisdiction of said court, upon the theory that the right
to recover attorney’s fees is but an incident of the case
in which the services of counsel have been rendered."
12 It also rests on the assumption that the court trying
the case is to a certain degree already familiar with the
nature and extent of the lawyer’s services. The rule
against multiplicity of suits will in effect be subserved.
13
What is being claimed here as attorney’s fees by
petitioners is, however, different from attorney’s fees as
an item of damages provided for under Article 2208 of
the Civil Code, wherein the award is made in favor of
the litigant, not of his counsel, and the litigant, not his
counsel, is the judgment creditor who may enforce the
judgment for attorney’s fees by execution. 14 Here, the
petitioner’s claims are based on an alleged contract for
professional services, with them as the creditors and the
private respondents as the debtors.
In filing the motion for confirmation of attorney’s fees,
petitioners chose to assert their claims in the same
action. This is also a proper remedy under our
jurisprudence. Nevertheless, we agree with the
respondent court that the confirmation of attorney’s fees
is premature. As it correctly pointed out, the petition for
review on certiorari filed by PHILAMGEN in this Court
(G.R. No. 64334) "may or may not ultimately result in
the granting to the Isasola (sic) family of the total
amount of damages" awarded by the trial court. This
especially true in the light of subsequent developments
in G.R. No. 64334. In a decision promulgated on May
21, 1987, the Court rendered judgment setting aside the
decision of May 4, 1983 of the Intermediate Appellate
Court in AC-G.R. No. 00202 and ordering the respondent
Regional Trial Court of Manila to certify the appeal of
PHILAMGEN from said trial court’s decision in Civil Case
No. 122920 to the Court of Appeal. Said decision of the
Court became final and executory on June 25, 1987.
Since the main case from which the petitioner’s claims
for their fees may arise has not yet become final, the
determination of the propriety of said fees and the
amount thereof should be held in abeyance. This
procedure gains added validity in the light of the rule
that the remedy for recovering attorney’s fees as an
incident of the main action may be availed of only when
something is due to the client. Thus, it was ruled that:
". . . an attorney’s fee cannot be determined until after
the main litigation has been decided and the subject of
recovery is at the disposition of the court. The issue over
attorney’s fee only arises when something has been
recovered from which the fee is to be paid."
It is further observed that the supposed contract alleged
by petitioners as the basis for their fees provides that
the recovery of the amounts claimed is subject to certain
contingencies. It is subject to the condition that the fee
shall be P30,000.00 in case of recovery of the
P120,000.00 surety bond, plus an additional amount in
case the award is in excess of said P120,000.00 bond,
on the sharing basis hereinbefore stated.
With regard to the effect of the alleged confirmation of
the attorney’s fees by some of the heirs of the
deceased. We are of the considered view that the
orderly administration of justice dictates that such issue
be likewise determined by the court a quo inasmuch as
it also necessarily involves the same contingencies in
determining the propriety and assessing the extent of
recovery of attorney’s fees by both petitioners herein.
The court below will be in a better position, after the
entire case shall have been adjudicated, inclusive of any
liability of PHILAMGEN and the respective participations
of the heirs of Dr. Casasola in the award, to determine
with evidentiary support such matters like the basis for
the entitlement in the fees of petitioner Dante Cruz and
as to whether the agreement allegedly entered into with
the late Dr. Casasola would be binding on all his heirs,
as contended by petitioner Quirante.
We, therefore, take exception to and reject that portion
of the decision of the respondent court which holds that
the alleged confirmation to attorney’s fees should not
adversely affect the non-signatories thereto, since it is
also premised on the eventual grant of damages to the
Casasola family, hence the same objection of
prematurity obtains and such a holding may be
preemptive of factual and evidentiary matters that may
be presented for consideration by the trial court.
WHEREFORE, with the foregoing observation, the
decision of the respondent court subject of the present
recourse is hereby AFFIRMED. SO ORDERED.
(g) INTEREST
 ART. 2209-2213
(h) MITIGATION OF LIABILITY
[G.R. No. 128721. March 9, 1999]
CRISMINA GARMENTS, INC., petitioner, vs. COURT
OF APPEAL AND NORMA SIAPNO, respondents.
Interest shall be computed in accordance with the
stipulation of the parties. In the absence of such
agreement, the rate shall be twelve percent (12%) per
annum when the obligation arises out of a loan or a
forbearance of money, goods or credits. In other cases,
it shall be six percent (6%).
The Case
On May 5, 1997, Crismina Garments, Inc. filed a Petition
for Review on Certiorari assailing the December 28,
1995 Decision and March 17, 1997 Resolution of the
Court of Appeals in CA-GR CV No. 28973. On September
24, 1997, this Court issued a minute Resolution denying
the petition for its failure to show any reversible error on
the part of the Court of Appeals.
Petitioner then filed a Motion for
Reconsideration, arguing that the interest rate should be
computed at 6 percent per annum as provided under
Article 2209 of the Civil Code, not 12 percent per annum
as prescribed under Circular No. 416 of the Central Bank
of the Philippines. Acting on the Motion, the Court
reinstated the Petition, but only with respect to the issue
of which interest rate should be applied.
The Facts
As the facts of the case are no longer disputed, we are
reproducing hereunder the findings of the appellate
court:
During the period from February 1979 to April 1979, the
[herein petitioner], which was engaged in the export of
girls denim pants, contracted the services of the
[respondent], the sole proprietress of the DWilmar
Garments, for the sewing of 20,762 pieces of assorted
girls[] denims supplied by the [petitioner] under
Purchase Orders Nos. 1404, dated February 15, 1979,
0430 dated February 1, 1979, 1453 dated April 30,
1979. The [petitioner] was obliged to pay the
[respondent], for her services, in the total amount
of P76,410.00. The [respondent] sew[ed] the materials
and delivered the same to the [petitioner] which
acknowledged the same per Delivery Receipt Nos. 0030,
dated February 9, 1979; 0032, dated February 15, 1979;
0033 dated February 21, 1979; 0034, dated February
24, 1979; 0036, dated February 20, 1979; 0038, dated
March 11, 1979[;] 0039, dated March 24, 1979; 0040
dated March 27, 1979; 0041, dated March 29, 1979;
0044, dated Marc[h] 25, 1979; 0101 dated May 18,
1979[;] 0037, dated March 10, 1979 and 0042 dated
March 10, 1979, in good order condition. At first, the
[respondent] was told that the sewing of some of the
pants w[as] defective. She offered to take delivery of
the defective pants. However, she was later told by
[petitioner]s representative that the goods were already
good. She was told to just return for her check
ofP76,410.00. However, the [petitioner] failed to pay her
the aforesaid amount. This prompted her to hire the
services of counsel who, on November 12, 1979, wrote a
letter to the [petitioner] demanding payment of the
aforesaid amount within ten (10) days from receipt
thereof. On February 7, 1990, the [petitioner]s [v]ice-
[p]resident-[c]omptroller, wrote a letter to
[respondent]s counsel, averring, inter alia, that the pairs
of jeans sewn by her, numbering 6,164 pairs, were
defective and that she was liable to the [petitioner] for
the amount of P49,925.51 which was the value of the
damaged pairs of denim pants and demanded refund of
the aforesaid amount.
On January 8, 1981, the [respondent] filed her
complaint against the [petitioner] with the [trial court]
for the collection of the principal amount
of P76,410.00. x x x
xxxxxxxxx
After due proceedings, the [trial court] rendered
judgment, on February 28, 1989, in favor of the
[respondent] against the [petitioner], the dispositive
portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of
the plaintiff and against the defendant ordering the
latter to pay the former:
(1) The sum of P76,140.00 with interest thereon at 12% per annum,
to be counted from the filing of this complaint on January 8, 1981,
until fully paid;
(2) The sum of P5,000 as attorney[]s fees; and
(3) The costs of this suit;
(4) Defendants counterclaim is hereby dismissed.
The Court of Appeals (CA) affirmed the trial courts
ruling, except for the award of attorneys fees which was
deleted.[9] Subsequently, the CA denied the Motion for
Reconsideration.[10]
Hence, this recourse to this Court.
Sole Issue
In light of the Courts Resolution dated April 27, 1998,
petitioner submits for our consideration this sole issue:
Whether or not it is proper to impose interest at the rate
of twelve percent (12%) per annum for an obligation
that does not involve a loan or forbearance of money in
the absence of stipulation of the parties.
This Courts Ruling
We sustain petitioners contention that the interest rate
should be computed at six percent (6%) per annum.
Sole Issue: Interest Rate
The controversy revolves around petitioners payment of
the price beyond the period prescribed in a contract for
a piece of work. Article 1589 of the Civil Code provides
that [t]he vendee [herein petitioner] shall owe interest
for the period between the delivery of the thing and the
payment of the price x x x should he be in default, from
the time of judicial or extrajudicial demand for the
payment of the price. The only issue now is the
applicable rate of interest for the late payment.
Because the case before us is an action for the
enforcement of an obligation for payment of money
arising from a contract for a piece of work, petitioner
submits that the interest rate should be six percent
(6%), pursuant to Article 2209 of the Civil Code, which
states:
If the obligation consists in the payment of money and
the debtor incurs in delay, the indemnity for damages,
there being no stipulation to the contrary, shall be the
payment of the interest agreed upon, and in the
absence of stipulation, the legal interest, which is six per
cent per annum. (Emphasis supplied.)
On the other hand, private respondent maintains that
the interest rate should be twelve percent (12%) per
annum, in accordance with Central Bank (CB) Circular
No. 416, which reads:
By virtue of the authority granted to it under Section 1
of Act No. 2655, as amended, otherwise known as the
Usury Law, the Monetary Board, in its Resolution No.
1622 dated July 29, 1974, has prescribed that the rate
of interest for the loan or forbearance of any money,
goods or credits and the rate allowed in judgments, in
the absence of express contract as to such rate of
interest, shall be twelve per cent (12%) per
annum. (Emphasis supplied.)
She argues that the circular applies, since the money
sought to be recovered by her is in the form of
forbearance.
We agree with the petitioner. In Reformina v. Tomol
Jr., this Court stressed that the interest rate under CB
Circular No. 416 applies to (1) loans; (2) forbearance of
money, goods or credits; or (3) a judgment involving a
loan or forbearance of money, goods or credits. Cases
beyond the scope of the said circular are governed by
Article 2209 of the Civil Code, which considers interest a
form of indemnity for the delay in the performance of an
obligation.
In Eastern Shipping Lines, Inc. v. Court of Appeals, the
Court gave the following guidelines for the application of
the proper interest rates:
I. When an obligation, regardless of its source, i.e., law,
contracts, quasi-contracts, delicts or quasi-delicts is
breached, the contravenor can be held liable for
damages. The provisions under Title XVIII on Damages
of the Civil Code govern in determining the measure of
recoverable damages.
II. With regard particularly to an award of interest in the
concept of actual and compensatory damages, the rate
of interest, as well as the accrual thereof, is imposed, as
follows:
1. When the obligation is breached, and it consists in the
payment of a sum of money, i.e., a loan or forbearance
of money, the interest due should be that which may
have been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest from the time
it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 12% per annum to be
computed from default, i.e., from judicial or extrajudicial
demand under and subject to the provisions of Article
1169 of the Civil Code.
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at
the discretion of the court at the rate of 6% per
annum. No interest, however, shall be adjudged on
unliquidated claims or damages except when or until the
demand can be established with reasonable
certainty. Accordingly, where the demand is established
with reasonable certainty, the interest shall begin to run
from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code) but when such
certainty cannot be so reasonably established at the
time the demand is made, the interest shall begin to run
only from the date the judgment of the court is made
(at which time the quantification of damages may be
deemed to have been reasonably ascertained). The
actual base for the computation of legal interest shall, in
any case, be xxx the amount finally adjudged.
3. When the judgment of the court awarding a sum of
money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from such
finality until its satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance of
credit.
In Keng Hua Paper Products Co., Inc. v. CA, we also
ruled that the monetary award shall earn interest at
twelve percent (12%) per annum from the date of the
finality of the judgment until its satisfaction,
regardless of whether or not the case involves a loan or
forbearance of money. The interim period is deemed to
be equivalent to a forbearance of credit.
Because the amount due in this case arose from a
contract for a piece of work, not from a loan or
forbearance of money, the legal interest of six percent
(6%) per annum should be applied. Furthermore, since
the amount of the demand could be established with
certainty when the Complaint was filed, the six percent
(6%) interest should be computed from the filing of the
said Complaint. But after the judgment becomes final
and executory until the obligation is satisfied, the
interest should be reckoned at twelve percent (12%) per
year.
Private respondent maintains that the twelve percent
(12%) interest should be imposed, because the
obligation arose from a forbearance of money. This is
erroneous. In Eastern Shipping, the Court observed that
a forbearance in the context of the usury law is a
contractual obligation of lender or creditor to refrain,
during a given period of time, from requiring the
borrower or debtor to repay a loan or debt then due and
payable. Using this standard, the obligation in this case
was obviously not a forbearance of money, goods or
credit.
WHEREFORE, the appealed Decision is MODIFIED. The
rate of interest shall be six percent (6%) per annum,
computed from the time of the filing of the Complaint in
the trial court until the finality of the judgment. If the
adjudged principal and the interest (or any part thereof)
remain unpaid thereafter, the interest rate shall be
twelve percent (12%) per annum computed from the
time the judgment becomes final and executory until it is
fully satisfied. No pronouncement as to costs. SO
ORDERED.
 ART. 2203, 2204, 2214, 2215 NCC:
G.R. No. L-12907 August 1, 1918
VIVENCIO CERRANO, plaintiff-appellee, vs. TAN
CHUCO, defendant-appellant.
This is an action by plaintiff for damages alleged to have
been caused by the breach of a contract for the hiring of
a casco. The trial court gave judgment for plaintiff.
Defendant excepted to the judgment, moved for a new
trial, excepted to the order denying the motion, and
brought the case to this court by bill of exceptions.
The facts established by the evidence are that during
the month of January, 1916, the defendant, who was
then the owner of casco No. 1033, rented it to the
plaintiff at a monthly rental of P70. The contract was
made in Manila, and the casco was delivered to the
plaintiff in this city. There was no express agreement as
regards the duration of the contract. The rent was
payable at the end of each month. Some time during the
month of May, 1916, the defendant notified plaintiff that
in the following month it would be necessary to send the
casco to Malabon for repairs. Plaintiff then informed the
defendant that he would like to rent the casco again
after the repairs had been completed. Defendant
indicated that he was willing to rent it, but would expect
P80 a month for it. Plaintiff contends that it was agreed
that he was to take the casco at he increased rental
while defendant insists that his offer to lease it at the
higher rate was never accepted. It is admitted, however,
that there was no agreement between the parties
concerning the length of time for which the hire of the
casco was to continue. It is contended on behalf of
plaintiff, and denied by defendant, that according to the
custom prevailing in the port of Manila, a contract for
the rental of a casco, when made by the owner, is
deemed in the absence of an express stipulation to the
contrary, to run from the date of the contract until the
casco has to be docked for its annual overhauling and
repair. In this case it is contended by plaintiff that the
contract of hire was to commence as soon as the casco
came off the dock and that its term was to be ten
months, this being the period which is ordinarily allowed
from one docking to another. Defendant, on the
contrary, contends that in the absence of an express
stipulation regarding the duration of the hire, it is
deemed to be from month to month when a monthly
rental is agreed upon.
The casco was taken to Malabon by plaintiff in June,
1916, and delivered at the shipyard selected by
defendant. The casco remained there, undergoing
repairs, until the 24th of July, 1916. About one week
before the end of the repair period defendant sold the
casco to Siy Cong Bieng & Co. J. Santos, the man who
had been employed by plaintiff as patron of the casco
while it was in his possession, upon hearing that it had
been sold to Siy Cong Bieng & Co. went to the office of
the latter in Manila, and asked for employment in the
same capacity. He received from Siy Cong Bieng & Co.
P5 on account of his wages, and was instructed by them
to go to Malabon and bring the casco to Manila, which
he did, Siy Cong Bieng & Co. supplying the launch by
which the casco was towed. Upon the arrival of the
casco in Manila, however, the plaintiff, claiming that he
was entitled to the possession of the casco under his
contract with the defendant, regardless of its sale to Siy
Cong Bieng & Co. induced Santos to refuse to take
orders from the new owners. The result was that Siy
Cong Bieng & Co. were obliged to bring an action of
replevin against Santos for the recovery of the
possession of their casco. The sheriff took possession of
the casco under a writ of replevin, but redelivered it to
Santos upon a delivery bond executed by the present
plaintiff and his wife as sureties. After the casco had
been in possession of Santos for some three months,
the replevin suit was submitted to the court for decision
upon a written stipulation in which it was admitted that
the casco was the property of Siy Cong Bieng & Co. at
the time of the suit was commenced, and that the
"illegal detention" of the casco by Santos had caused
damages to Siy Cong Bieng & Co. in the sum of P457.98.
Upon this stipulation judgment was entered for the
delivery of the casco to Siy Cong Bieng & Co. and for
P457.98 as damages. Cerrano, the plaintiff in the
present action, paid the judgment in favor of Siy Cong
Bieng & Co. in the replevin suit, for which he had
become liable under the terms of the delivery bond. The
evidence shows that Santos was only a nominal
defendant in the replevin suit, which was entirely
controlled by the present plaintiff. In addition to paying
the judgment for damages rendered in favor of Siy Cong
Bieng & Co. in the replevin suit, the present plaintiff,
Cerrano, paid P500 to the attorney employed by him to
defend that action on behalf of the nominal defendant,
Santos. Plaintiff testified that the average profit derived
by him from other cascos rented by him during the
period during which he contends he should have had
possession of the casco in question was P60 a month of
each casco. Upon these facts, the trial court held that
the defendant had rented the casco in question to
plaintiff for a term of ten months, and for the breach of
contract he was liable to plaintiff in the sum of P600 for
the loss of the profits he would have derived from the
use of the casco, and that he is also liable to plaintiff for
the sum of P457.98 paid by him as damages to Siy Cong
Bieng & Co. in the replevin suit, and for the sum of P500
paid to the attorney employed by Cerrano to defend
Santos in that action.
The first question which arises on this appeal is whether
it was agreed between the plaintiff and defendant that
the casco was to be leased to the former again after it
had been repaired. It is contended by defendant that
the while he offered to rent the casco to plaintiff for P80
a month, this offer was never accepted. We are of the
opinion, however, that the evidence sustains the
conclusion of the lower court that it was understood
between the parties, when the casco was taken to
Malabon in June, that plaintiff was to have it again at
the increased rental as soon as the contemplated repairs
had been completed. That such was the understanding
is shown by the fact that plaintiff paid for the towage of
the casco to the dry dock at Malabon; that he left his
equipment in it; and that his patron stayed with the
casco in Malabon during the time it was on the dock.
There can be no doubt, in our opinion that the casco
had been rented to plaintiff, and that its sale to Siy Cong
Bieng & Co. was a breach of the contract.
Having concluded that the casco was under hire to
plaintiff at the time it was sold and delivered to Siy Cong
Bieng & Co. by defendant, the next inquiry relates to the
duration of the term. Plaintiff contends that in
accordance with the custom of the port of Manila it was
to be ten months from July 24, 1916, when the repairs
were completed. Defendant contends that in the
absence of express agreement for a definite period,
when a monthly rent is reversed, it is to be understood
that the hiring is from month to month. The court below
found that the custom of Manila with regard to such
agreements is as contended by plaintiff. The evidence
on this subject is very conflicting and unsatisfactory,
however, and is not sufficient, in our judgment, to
warrant a finding of the existence of such a custom.
There is no definite season of the year, of necessity,
when cascos are docked, nor is it possible, in the nature
of things, that the length of time which must transpire
from one overhauling to another can be fixed and
invariable with respect to any particular vessel. It must
depend, of course, upon the age and condition of the
vessel. If any such custom in fact existed it would
produce the absurd result that in one case the parties
might be bound for a year or more while in the next a
contract in the same terms might not last a month.
Furthermore, there is obviously no definite standard by
which to determine the precise period at which it
becomes necessary to dock a casco. One owner might
deem it essential to dock his casco and have her
overhauled, while the same casco in the hands of
another owner might be kept at work for several months
more. The uncertainty and the unreasonable character
of the alleged custom are such that we should be
unwilling to fasten it upon the port of Manila upon
evidence so unsatisfactory as that relied upon in this
case.
There being no rule of law, expressly applicable to the
hiring of personal property in general or of vessels in
particular, by which the duration of such a contract is to
be determined, and no local custom having been
satisfactorily proved, we are required to apply the
general principles of law. (Civil Code, art. 6.) Under this
authorization we may adopt and apply by analogy the
general rules established by the Code relating to the
lease of real property. We find that article 1581 of the
Civil Code provides that when no definite agreement has
been made regarding its duration, the lease of a house
is deemed to have been made from day to day, from
month to month, or from year to year, according to
whether a daily, monthly, or yearly rent is to be paid.
That is to say, this article establishes the reasonable
presumption that one who agrees to pay a monthly rent
intends that his tenancy is to endure for a like period,
subject to indefinite tacit renewals at the end of each
month as long as the arrangement is agreeable to both
parties. We are of the opinion that a similar presumption
arises under similar conditions with respect to the hire of
personal property, in the absence of special
circumstances showing a contrary intention. This is the
rule of the French law, stated by Dalloz (Jur. Gen., vol.
30, p. 482) as follows:
In the absence of any circumstance . . . which
indicate (s) that it was the intention of the
parties that the bailment should continue for a
definite term, if a chattel — a horse, for example
— is hired by the day to day or by the week, the
bailment ceases at the end of each day, or of
each week, if either of the parties so desires . . .
.
Our conclusion is, therefore, that under the terms of his
contract the defendant was bound to deliver the casco
to plaintiff for one month from the date upon which the
repairs were ended, but was under no obligation to
renew the contract at the end of the month. By selling
the casco to Siy Cong Bieng & Co. he broke his contract
with plaintiff and is responsible for the damages caused
by his failure to give plaintiff possession of the casco for
the term of one month. The only evidence on this
subject is the testimony of plaintiff to the effect that his
average profits from the rented casco were P60 a
month. The appellant contends that this does not furnish
the proper measure of damages, but that plaintiff's right
is limited to the recovery of the difference between the
contract price at which the casco was hired by him and
such higher rate as he might have been compelled to
pay for the hire of a similar casco in the open market to
take its place. Defendant further contends that it was
the duty of plaintiff to endeavor to obtain another casco
at the best rate possible, as soon as he was notified that
defendant would not perform his contract, and that the
burden rests upon plaintiff to show that he did so. We
are of opinion that the plaintiff is entitled to recover, as
damages for the breach of the contract by the
defendant, the profit which he would have been able to
make had the contract been performed. He has testified,
without contradiction, that the average net profit made
by him from the casco in question during the time it was
in his possession was P60 a month. During this period
he was paying rent for it at the rate of P70 a month.
Under the terms of the contract now under consideration
he was to have paid P80 a month for it, which we must
assume would have reduced the profit to P50 a month.
Article 1106 of the Civil Code establishes the rule that
prospective profits may be recovered as damages, while
article 1107 of the same Code provides that the
damages recoverable for the breach of obligations not
originating in fraud (dolo) are those which were or might
have been foreseen at the time the contract was entered
into. Applying these principles to the facts in this case,
we think that it is unquestionable that defendant must
be deemed to have foreseen at the time he made
contract that in the event of his failure perform it, the
plaintiff would be damaged by the loss of the profit he
might reasonably have expected to derive from its use.
When the existence of a loss is established, absolute
certainty as to its amount is not required. The benefit to
be derived from a contract which one of the parties has
absolutely failed to perform is of necessity to some
extent, a matter of speculation, but the injured party is
not to be denied all remedy for that reason alone. He
must produce the best evidence of which his case is
susceptible and if that evidence warrants the inference
that he has been damaged by the loss of profits which
he might with reasonable certainty have anticipated but
for the defendant's wrongful act, he is entitled to
recover. As stated in Sedgwick on Damages (Ninth Ed.,
par. 177):
The general rule is, then, that a plaintiff may
recover compensation for any gain which he can
make it appear with reasonable certainty the
defendant's wrongful act prevented him from
acquiring, . . . . (See also Algarra vs. Sandejas,
27 Phil. Rep., 284, 289; Hicks vs. Manila Hotel
Co., 28 Phil. Rep., 325.)
The uncontradicted testimony of the plaintiff as regards
the profits earned by him in the past from the use of the
casco in question is, in our judgment, sufficient to justify
the conclusion that had defendant complied with his
agreement, plaintiff would have earned a net profit of
P50 from the use of the casco in the month during
which he was entitled to its possession. It is contended
by defendant, however, that "it must be presumed" that
plaintiff could have secured another casco at the same
price had he looked for it. It is a well-recognized
principle of law that damages resulting from avoidable
consequences of the breach of a contract or other legal
duty are not recoverable. It is the duty of one injured by
the unlawful act of another to take such measures as
prudent men usually take under such circumstances to
reduce the damages as much as possible.
(Warren vs. Stoddart, 15 Otto, 224; Baird vs. U.S., 21 L.
ed. [17 Wallace], 519, No. 1.)
It is equally well-settled, however, that the burden of
proof rests upon the defendant to show that the plaintiff
might have reduced the damages. (Sedwick on
Damages, Ninth Ed., par. 227.) In this case the
defendant has made no effort whatever to show that
any other similar cascos were in fact available to
plaintiff, or the price at which he would have been able
to obtain the use of one. In the absence of evidence it
will not be presumed that plaintiff could have secured
another casco at the same price had he looked for one.
It is contended by appellant that the trial erred in
holding him liable for the money which plaintiff
expended in connection with the litigation between Siy
Cong Bieng & Co. and J. Santos. We are of the opinion
that this point is well-taken. The contract of lease or
hiring does not create a right in rem in favor of the
lessee, except in the case of a recorded lease of real
estate. It is admitted that the casco was sold to Siy
Cong Bieng & Co. and that Santos' attempt to retain
possession of it against the lawful owners by whom he
had been placed in charge of it, was unlawful. The
present plaintiff was not a party to that suit. In
becoming a surety upon Santos' bond and in paying the
attorney employed to defend the latter he acted
voluntarily and officiously. If he is unable to recover
from Santos the money paid by him upon latter's
account — as to which the record is silent — that fact
will not justify us in imposing the burden of repaying this
money upon the defendant. The latter is liable for the
damages which he might have foreseen as those
reasonably to be anticipated as the natural and probable
consequence of the breach of the contract, but the
damages suffered by plaintiff by reason of his voluntary
assumption of the liability incurred by Santos by reason
of his unlawful attempt to withhold possession of the
casco from its owners, by whom he was put in charge of
it, are not attributable to defendant and he is not
responsible for them. The proximate cause of the loss
incurred for the unlawful acts of Santos was not the
breach of his contract by defendant herein, but plaintiff's
own imprudence.
The judgment of the lower court is therefore reversed,
and it is adjudged and decreed that the plaintiff recover
from defendant P50 as damages, and his costs in the
Court of First Instance. No costs will be allowed in this
court. So ordered.
2. MORAL
(a) CONCEPT
  ART 2217 NCC
[G.R. No. 99301. March 13, 1997]
VICTOR KIERULF, LUCILA H. KIERULF and
PORFIRIO LEGASPI, petitioners, vs. THE COURT OF
APPEALS and PANTRANCO NORTH EXPRESS,
INCORPORATED, respondents.
[G.R. No. 99343. March 13, 1997]
PANTRANCO NORTH EXPRESS,
INCORPORATED, petitioner, vs. VICTOR KIERULF,
LUCILA H. KIERULF and PORFIRIO
LEGASPI, respondents.
How much moral, exemplary and actual damages are
victims of vehicular accidents entitled to?
In G.R. No. 99301, the victims of the vehicular mishap
pray for an increase in the award of damages, over and
above those granted by the appellate court. In this case,
the husband of the victim of the vehicular accident
claims compensation/damages for the loss of his right to
marital consortium which, according to him, has been
diminished due to the disfigurement suffered by his
wife. In G.R. No. 99343, the transport company, which
owned the bus that collided with the victims' pickup
truck, asks for exoneration by invoking an alleged
fortuitous event as the cause of the mishap.
Petitioners in both cases assail the Decision,[1] dated
March 13, 1991, in CA-GR CV No. 23361 of the Court of
Appeals, Sixth Division[2]ordering the following:[3]
"For reasons indicated and in the light of the law and
jurisprudence applicable to the case at bar, the
judgment of the trial court is hereby modified as follows:
Under the first cause of action, the defendant is hereby
ordered to pay Lucila H. Kierulf the following:
(1) For actual damages incurred for hospitalization, medical case (sic)
and doctor's fees, the sum of P241,861.81;
(2) For moral damages the sum of P200,000.00;
(3) For exemplary damages the amount of P100,000.00.
Under the second cause of action, to pay Victor Kierulf, by way of
indemnification damage to the Isuzu Carry All with plate No. UV PGS
798, the amount of P96,825.15.
Under the third cause of action, to pay Porfirio Legaspi the following:
(1) For moral damages in the amount of P25,000.00;
(2) To reimburse the plaintiff the amount of P6,328.19 for actual
damages incurred in the treatment and hospitalization of the driver
Porfirio Legaspi.
The defendant is further ordered to pay the amount of P50,000.00 as
fair and reasonable attorney's fees.
And to pay the costs of suit."
Respondent Court of Appeals modified the decision of
the Regional Trial Court of Quezon City, Branch
92, rendered on May 24, 1989 in Civil Case No. Q-50732
for damages. The dispositive portion of the said decision
is quoted below:
"WHEREFORE, in view of the foregoing, judgment is hereby rendered
against the defendant, ordering Pantranco to pay:
Under the First Cause of Action
1. In favor of plaintiff Lucila H. Kierulf actual damages in the amount
on ONE HUNDRED SEVENTY FOUR THOUSAND ONE HUNDRED and
77/100 (P174,100.77) PESOS;
2. To pay said plaintiff moral damages in the amount of ONE
HUNDRED THOUSAND and 00/100 (P100,000.00) PESOS;
3. To pay exemplary damages in the amount of TEN THOUSAND and
00/100 (P10,000.00) PESOS.
Under the Second Cause of Action
1. To pay plaintiff Victor Kierulf the amount of NINETY SIX THOUSAND
EIGHT HUNDRED TWENTY FIVE and 15/100 (P96,825.15) PESOS by
way of indemnification for the damages to the Isuzu Carry All with
plate No. UV PGS 796 registered in his name.
Under the Third Cause of Action
1. To pay the plaintiff spouses by way of reimbursement for actual
damages incurred for the treatment of injuries sustained by their driver
Porfirio Legaspi in the amount of SIX THOUSAND THREE HUNDRED
TWENTY EIGHT and 19/100 (P6,328.19) PESOS; and
2. To pay plaintiff Porfirio Legaspi moral damages in the amount of
TEN THOUSAND and 00/100 (P10,000.00) PESOS.
Defendant is further ordered to pay the amount of P25,000.00 for and
as attorney's fees, and to pay costs.
All other claims and counterclaims are dismissed."
The Facts
The following may be culled from the undisputed factual
findings of the trial court and Respondent Court of
Appeals:
The initial investigation conducted by Pfc. D.O. Cornelio
disclosed that at about 7:45 p.m. of 28 February 1987,
the Pantranco bus, bearing plate number AVE-845 (TB
PIL 86), was traveling along Epifanio de los Santos
Avenue (EDSA) from Congressional Avenue towards
Clover Leaf, Balintawak. Before it reached the corner of
Oliveros Drive, the driver lost control of the bus, causing
it to swerve to the left, and then to fly over the center
island occupying the east-bound lane of EDSA. The front
of the bus bumped the front portion of an Isuzu pickup
driven by Legaspi, which was moving along
Congressional Avenue heading towards Roosevelt
Avenue. As a result, the points of contact of both
vehicles were damaged and physical injuries were
inflicted on Legaspi and his passenger Lucila Kierulf,
both of whom were treated at the Quezon City General
Hospital. The bus also hit and injured a pedestrian who
was then crossing EDSA.
Despite the impact, said bus continued to move forward
and its front portion rammed against a Caltex gasoline
station, damaging its building and gasoline dispensing
equipment.
As a consequence of the incident, Lucila suffered
injuries, as stated in the medical report[6] of the
examining physician, Dr. Pedro P. Solis of the Quezon
City General Hospital. The injuries sustained by Lucila
required major surgeries like "tracheotomy, open
reduction, mandibular fracture, intermaxillary repair of
multiple laceration" and prolonged treatment by
specialists. Per medical report of Dr. Alex L. Castillo,
Legaspi also suffered injuries.[7]
The front portion of the pickup truck, owned by Spouses
Kierulf, bearing plate number UV PGS 798, was smashed
to pieces. The cost of repair was estimated
at P107,583.50.
Pantranco, in its petition,[8] adds that on said day, the
abovementioned bus was driven by Jose
Malanum. While cruising along EDSA, a used engine
differential accidentally and suddenly dropped from a
junk truck in front of the bus. Said differential hit the
underchassis of the bus, throwing Malanum off his seat
and making him lose control of said bus. The bus
swerved to the left, hit the center island, and bumped
the pickup of the spouses.
The Issues
Spouses Kierulf and their driver Legaspi raise the
following assignment of errors in this appeal:
A. The respondent court of appeals erred in awarding
only P200,000.00 and P25,000.00 as and for moral damages
for the petitioners Kierulf and Legaspi respectively when it
should at least have been P1,000,000.00 and P100,000.00
respectively.
B. The respondent court of appeals erred in awarding
only P100,000.00 to the petitioners Kierulf and nothing to
petitioner Legaspi as and for exemplary damages when it
should have at least been P500,000.00 and P50,000.00
respectively.
C. The respondent court of appeals erred in not awarding any
amount for the lost income due to the petitioner Lucila H.
Kierulf.
D. The respondent court of appeals erred in not awarding the
amount of P107,583.50 for the damages sustained by the
Isuzu carry-all pick-up truck.
E. The respondent court of appeals erred in not awarding any
legal interest on the sums awarded."
On the other hand, Pantranco raises the following
assignment of errors:
4.1 The Honorable Court of Appeals erred in holding that
the driver of Pantranco was negligent;
4.2 The Honorable Court of Appeals erred in holding that
the proximate cause of the accident was the negligence
of Pantranco and not a fortuitous event; and
4.2 (sic) The Honorable Court of Appeals erred in
awarding excessive damages."
In sum, Spouses Kierulf and Legaspi argue that the
damages awarded were inadequate while Pantranco
counters that they were astronomical, bloated and not
duly proved.
The Court's Ruling
First Issue: Negligence and Proximate Cause Are
Factual Issues
Even on appeal, Pantranco insists that its driver was not
negligent and that the mishap was due to a fortuitous
event. February 28, 1987, the date of the incident, was
a Saturday; hence, driving at the speed of 40-50
kilometers per hour (kph) was prudent. It contends that
the proximate cause was the accidental dropping of a
used engine differential by a junk truck immediately
ahead of the bus.[12]
As to what really caused the bus to careen to the
opposite lane of EDSA and collide with the pickup truck
driven by Legaspi is a factual issue which this Court
cannot pass upon. As a rule, the jurisdiction of this Court
is limited to the review of errors of law allegedly
committed by the appellate court. This Court is not
bound to analyze and weigh all over again the evidence
already considered in the proceedings below.
Although the Court may review factual issues in some
instances, the case at bar does not fall under any one of
them. The fact that there is no conflict between the
findings of the trial court and respondent Court bolsters
our position that a review of the facts found by
respondent Court is not necessary. There being no
conflict between the findings of the Court of Appeals and
the trial court that gross negligence was the real cause
of the collision, we see no reason to digress from the
standard rule.
We quote with concurrence the factual findings of the
appellate and trial courts, showing that the accident
was, contrary to the belief of Pantranco, the result of the
gross negligence of its driver. To wit:
"The vehicular accident was certainly not due to a
fortuitous event. We agree with the trial court's findings
that the proximate cause was the negligence of the
defendant's driver, such as: (1) Driving at that part of
EDSA at 7:45 P.M. from Congressional Avenue towards
Clover Leaf overpass in the direction of Balintawak at
40-50 kph is certainly not a manifestation of good
driving habit of a careful and prudent man exercising the
extraordinary diligence required by law. Traffic in that
place and at that time of the day is always heavy. (2)
Losing control of the wheel in such a place crowded with
moving vehicles, jumping over the island which
separates the East bound from the West bound lane of
EDSA indicate that the defendant's bus was traveling at
a speed limit beyond what a prudent and careful driver
is expected of, if such driver were exercising due
diligence required by law. (3) Finally, crossing over the
island and traversing the opposite lane and hitting an
oncoming vehicle with such force as to smash the front
of such vehicle and finally being forced to stop by
bumping against a Caltex service station -- all show not
only negligence, but recklessness of the defendant's
driver. (4) If defendant's driver was not driving fast, was
not recklessly negligent and had exercised due care and
prudence, with due respect to human life and to others
travelling in the same place, the driver could have
stopped the bus the moment it crossed the island, and
avoided crossing over to the other lane and bumping
against vehicles travelling in opposite direction. The
defendant's driver did not take any evasive action and
utterly failed to adopt any measure to avoid injuries and
damage to others because he 'lost control of the bus',
which was like a juggernaut, let loose in a big crowd,
smashing everything on its path."
Second Issue: Moral Damages
Complainants aver that the moral damages awarded by
Respondent Court are "clearly and woefully not enough."
The established guideline in awarding moral damages
takes into consideration several factors, some of which
are the social and financial standing of the injured
parties and their wounded moral feelings and personal
pride. The Kierulf spouses add that the Respondent
Court should have considered another factor: the loss of
their conjugal fellowship and the impairment or
destruction of their sexual life.
The spouses aver that the disfigurement of Lucila's
physical appearance cannot but affect their marital right
to "consortium" which would have remained normal
were it not for the accident. Thus the moral damages
awarded in favor of Lucila should be increased
to P1,000,000.00, not only for Lucila but also for her
husband Victor who also suffered "psychologically." A
California case, Rodriguez vs. Bethlehem Steel
Corporation, is cited as authority for the claim of
damages by reason of loss of marital consortium, i.e.
loss of conjugal fellowship and sexual relations.
Pantranco rebuts that Victor's claim of moral damages
on alleged loss of consortium is without legal
basis. Article 2219 of the Civil Code provides that only
the person suffering the injury may claim moral
damages. Additionally, no evidence was adduced to
show that the consortium had indeed been impaired and
the Court cannot presume that marital relations
disappeared with the accident.
The Courts notes that the Rodriguez case clearly
reversed the original common law view first enunciated
in the case of Deshotel vs. Atchison, that a wife could
not recover for the loss of her husband's services by the
act of a third party. Rodriguez ruled that when a person
is injured to the extent that he/she is no longer capable
of giving love, affection, comfort and sexual relations to
his or her spouse, that spouse has suffered a direct and
real personal loss. The loss is immediate and
consequential rather than remote and unforeseeable; it
is personal to the spouse and separate and distinct from
that of the injured person.
Rodriguez involved a couple in their early 20s, who were
married for only 16 months and full of dreams of
building a family of their own, when the husband was
struck and almost paralyzed by a falling 600-pound
pipe. The wife testified how her life had deteriorated
because her husband became a lifelong invalid, confined
to the home, bedridden and in constant need of
assistance for his bodily functions; and how her social,
recreational and sexual life had been severely
restricted. It also deprived her of the chance to bear
their children. As a constant witness to her husband's
pain, mental anguish and frustration, she was always
nervous, tense, depressed and had trouble sleeping,
eating and concentrating. Thus, the California court
awarded her damages for loss of consortium.
Whether Rodriguez may be cited as authority to support
the award of moral damages to Victor and/or Lucila
Kierulf for "loss of consortium," however, cannot be
properly considered in this case.
Victor's claim for deprivation of his right to consortium,
although argued before Respondent Court, is not
supported by the evidence on record. His wife might
have been badly disfigured, but he had not testified
that, in consequence thereof, his right to marital
consortium was affected. Clearly, Victor (and for that
matter, Lucila) had failed to make out a case for loss of
consortium, unlike the Rodriguez spouse.Again, we
emphasize that this claim is factual in origin and must
find basis not only in the evidence presented but also in
the findings of the Respondent Court. For lack of factual
basis, such claim cannot be ruled upon by this Court at
this time.
Third Issue: No Consideration of Social and
Financial Standing in this Case
The social and financial standing of Lucila cannot be
considered in awarding moral damages. The factual
circumstances prior to the accident show that no "rude
and rough" reception, no "menacing attitude," no
"supercilious manner," no "abusive language and highly
scornful reference" was given her. The social and
financial standing of a claimant of moral damages may
be considered in awarding moral damages only if he or
she was subjected to contemptuous conduct despite the
offender's knowledge of his or her social and financial
standing.
Be that as it may, it is still proper to award moral
damages to Petitioner Lucila for her physical sufferings,
mental anguish, fright, serious anxiety and wounded
feelings. She sustained multiple injuries on the scalp,
limbs and ribs. She lost all her teeth. She had to
undergo several corrective operations and
treatments. Despite treatment and surgery, her chin was
still numb and thick. She felt that she has not fully
recovered from her injuries. She even had to undergo a
second operation on her gums for her dentures to
fit. She suffered sleepless nights and shock as a
consequence of the vehicular accident. In this light and
considering further the length of time spent in
prosecuting the complaint and this appeal, we find the
sum of P400,000.00 as moral damages for Petitioner
Lucila to be fair and just under the circumstances.
Fourth Issue: Exemplary Damages
Complainants also pray for an increase of exemplary
damages to P500,000.00 and P50,000.00 for Spouses
Kierulf and Legaspi, respectively. This prayer is based on
the pronouncement of this Court in Batangas
Transportation Company vs. Caguimbal that "it is high
time to impress effectively upon public utility operators
the nature and extent of their responsibility in respect of
the safety of their passengers and their duty to exercise
greater care in the selection of drivers and conductors x
x x."
Pantranco opposes this, for under Article 2231 of the
Civil Code, "exemplary damages may be granted if the
defendant acted with gross negligence." And allegedly,
gross negligence is sorely lacking in the instant case.
Exemplary damages are designed to permit the courts to
mould behavior that has socially deleterious
consequences, and its imposition is required by public
policy to suppress the wanton acts of an offender.
However, it cannot be recovered as a matter of right. It
is based entirely on the discretion of the court.
Jurisprudence sets certain requirements before
exemplary damages may be awarded, to wit:
"(1) (T)hey may be imposed by way of example or
correction only in addition, among others, to
compensatory damages, and cannot be recovered as a
matter of right, their determination depending upon the
amount of compensatory damages that may be awarded
to the claimant;
(2) the claimant must first establish his right to moral,
temporate, liquidated or compensatory damages; and
(3) the wrongful act must be accompanied by bad faith,
and the award would be allowed only if the guilty party
acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner."
The claim of Lucila has been favorably considered in
view of the finding of gross negligence by Respondent
Court on the part of Pantranco. This is made clear by
Respondent Court in granting Lucila's claim of exemplary
damages:
"(P)ublic utility operators like the defendant, have made
a mockery of our laws, rules and regulations governing
operations of motor vehicles and have ignored either
deliberately or through negligent disregard of their
duties to exercise extraordinary degree of diligence for
the safety of the travelling public and their passengers. x
x x ."
To give teeth to this warning, the exemplary damages
awarded to Petitioner Lucila is increased to P200,000.00.
The fact of gross negligence duly proven, we believe
that Legaspi, being also a victim of gross negligence,
should also receive exemplary damages. Under the facts
proven, the Court awards him P25,000 as exemplary
damages.
Fifth Issue: Loss of Earnings as a Component of
Damages
Lost income in the amount of P16,500.00 is also claimed
by Legaspi stating that his "whole future has been
jeopardized." This, in turn, is not rebutted by Pantranco.
It should be noted that Respondent Court already
considered this when it stated that the award
of P25,000.00 included compensation for "mental
anguish and emotional strain of not earning anything
with a family to support." Moral damages, though
incapable of pecuniary estimation, are in the category of
an award designed to compensate the claimant for
actual injury and are not meant to enrich complainant at
the expense of defendant.
We find, however, the claim of Legaspi to be duly
substantiated. Pantranco failed to rebut the claim of
Porfirio that he had been incapacitated for ten (10)
months and that during said period he did not have any
income. Considering that, prior to the accident, he was
employed as a driver and was earning P1,650.00 a
month, his claim for P16,500.00 as compensation for
loss of earning capacity for said period is amply
supported by the records[33] and is demandable under
Article 2205 of the Civil Code.[34]
Complainants contend that Lucila is also entitled to
damages for "loss or impairment of earning capacity in
cases of temporary or permanent personal injury" under
Article 2205 of the Civil Code. Notably, both the trial
court and public respondent denied this prayer because
of her failure to produce her income tax returns for the
years 1985 and 1986, notwithstanding the production of
her 1983 and 1984 income tax returns.
Pantranco opposes the above claim for loss of earning
capacity on the ground that there is no proof "that for
the two years immediately preceding the accident Lucila
was indeed deriving income from some source which
was cut off by the accident."[35]
We agree with the findings of Respondent Court that
Lucila's claim of loss of earning capacity has not been
duly proven. The alleged loss must be established by
factual evidence for it partakes of actual damages. A
party is entitled to adequate compensation for such
pecuniary loss actually suffered and duly proved. Such
damages, to be recoverable, must not only be capable
of proof, but must actually be shown with a reasonable
degree of certainty. We have emphasized that these
damages cannot be presumed, and courts in making an
award must point out specific facts which can serve as
basis for measuring whatever compensatory or actual
damages are borne.[36] Mere proof of Lucila's earnings
consisting of her 1983 and 1984 income tax returns
would not suffice to prove earnings for the years 1985 action.[44] Its award is aimed at restoration, as much as
and 1986. The incident happened on February 28, possible, of the spiritual status quo ante; thus, it must
1987. If indeed Lucila had been earning P50,000.00 be proportionate to the suffering inflicted.[45] Since
every month prior to the accident, as she alleged, there each case must be governed by its own peculiar
are evidentiary proofs for such earnings other than circumstances, there is no hard and fast rule in
income tax returns such as, but not limited to, payroll determining the proper amount. The yardstick should be
receipts, payments to the SSS, or withholding tax paid that the amount awarded should not be so palpably and
every month. Sad to say, these other proofs have not scandalously excessive as to indicate that it was the
been presented, and we cannot presume that they exist result of passion, prejudice or corruption on the part of
on the strength of the word of Lucila alone. the trial judge.[46] Neither should it be so little or so
paltry that it rubs salt to the injury already inflicted on
Sixth Issue: Reduction of Actual Damages on the plaintiffs.
Pickup Based on an Estimate
WHEREFORE, premises considered, the petition for
Complainants contend that the reduction of 10% from review in G.R. No. 99301 is PARTIALLY GRANTED, while
the written estimate of the cost of repairs by the trial that of Pantranco North Express, Inc., in G.R. No. 99343
court is pure speculation.[37]Pantranco opposes this by is DISMISSED. The Decision appealed from
pointing out that judicial notice is made by respondent is AFFIRMED with MODIFICATION. The award of moral
Court of the propensity of motor repair shops to damages to Lucila and Legaspi is
exaggerate their estimates.[38] hereby INCREASED to P400,000.00 and P50,000.00
respectively; exemplary damages to Lucila
An estimate, as it is categorized, is not an actual is INCREASED to P200,000.00. Legaspi is awarded
expense incurred or to be incurred in the repair. The exemplary damages of P50,000.00. The amount
reduction made by respondent court is reasonable of P16,500.00 as actual or compensatory damages is
considering that in this instance such estimate was also GRANTED to Legaspi. All other awards of
secured by the complainants themselves. Respondent Court of Appeals are AFFIRMED. Pantranco
shall also PAY legal interest of 6% per annum on all
Epilogue
sums awarded from the date of promulgation of the
This Court cannot remind the bench and the bar often decision of the trial court, May 24, 1989, until actual
enough that in order that moral damages may be payment. SO ORDERED.
awarded, there must be pleading and proof of moral
suffering, mental anguish, fright and the like. While no
proof of pecuniary loss is necessary in order that moral
damages may be awarded, the amount of indemnity
being left to the discretion of the court,[39] it is
(b) PROOF AND PROXIMATE CAUSE
nevertheless essential that the claimant should
satisfactorily show the existence of the factual basis of
G.R. No. 171465 June 8, 2007
damages[40] and its causal connection to defendant's
AAA *, petitioner, vs. HON. ANTONIO A.
acts. This is so because moral damages, though
CARBONELL, in his capacity as Presiding Judge,
incapable of pecuniary estimation, are in the category of
Branch 27, Regional Trial Court, San Fernando
an award designed to compensate the claimant for
City, La Union and ENGR. JAIME O.
actual injury suffered and not to impose a penalty on the
ARZADON, respondents.
wrongdoer.[41] In Francisco vs. GSIS,[42] the Court
held that there must be clear testimony on the anguish
and other forms of mental suffering. Thus, if the plaintiff This petition for certiorari1 assails the December 16,
fails to take the witness stand and testify as to his/her 20052 Order of the Regional Trial Court, Branch 27, San
social humiliation, wounded feelings and anxiety, moral Fernando, La Union in Criminal Case No. 6983,
damages cannot be awarded. In Cocoland Development dismissing the rape case filed against private respondent
Corporation vs. National Labor Relations Jaime O. Arzadon for lack of probable cause; and its
Commission,[43] the Court held that "additional facts February 3, 20063 Order denying petitioner’s motion for
must be pleaded and proven to warrant the grant of reconsideration.
moral damages under the Civil Code, these being, x x x
social humiliation, wounded feelings, grave anxiety, etc., Petitioner worked as a secretary at the Arzadon
that resulted therefrom." Automotive and Car Service Center from February 28,
2001 to August 16, 2001. On May 27, 2001 at about
Moral damages are awarded to enable the injured party 6:30 p.m., Arzadon asked her to deliver a book to an
to obtain means, diversions or amusements that will office located at another building but when she returned
serve to alleviate the moral suffering he/she has to their office, the lights had been turned off and the
undergone, by reason of the defendant's culpable
gate was closed. Nevertheless, she went inside to get
her handbag.
On her way out, she saw Arzadon standing beside a
parked van holding a pipe. He told her to go near him
and upon reaching his side, he threatened her with the
pipe and forced her to lie on the pavement. He removed
her pants and underwear, and inserted his penis into her
vagina. She wept and cried out for help but to no avail
because there was nobody else in the premises.
Petitioner did not report the incident because Arzadon
threatened to kill her and her family. But when she
discovered that she was pregnant as a consequence of
the rape, she narrated the incident to her parents. On
July 24, 2002, petitioner filed a complaint for rape
against Arzadon.
On September 16, 2002, Assistant City Prosecutor
Imelda Cosalan issued a Resolution4 finding probable
cause and recommending the filing of an information for
rape. Arzadon moved for reconsideration and during the
clarificatory hearing held on October 11, 2002, petitioner
testified before the investigating prosecutor. However,
she failed to attend the next hearing hence, the case
was provisionally dismissed.
On March 5, 2003, petitioner filed another Affidavit-
Complaint5 with a comprehensive account of the alleged
rape incident. The case was assigned to 2nd Assistant
Provincial Prosecutor Georgina Hidalgo. During the
preliminary investigation, petitioner appeared for
clarificatory questioning. On June 11, 2003, the
investigating prosecutor issued a Resolution6 finding that
a prima facie case of rape exists and recommending the
filing of the information.
Arzadon moved for reconsideration and requested that a
panel of prosecutors be constituted to review the case.
Thus, a panel of prosecutors was created and after the
clarificatory questioning, the panel issued on October 13,
2003 a Resolution7 finding probable cause and denying
Arzadon’s motion for reconsideration.
An Information8 for rape was filed before the Regional
Trial Court, Branch 27, San Fernando, La Union on
February 6, 2004, docketed as Criminal Case No. 6415.
Thereafter, Arzadon filed a "Motion to Hold in Abeyance
All Court Proceedings Including the Issuance of a
Warrant of Arrest and to Determine Probable Cause for
the Purpose of Issuing a Warrant of Arrest."9 On March
18, 2004, respondent Judge Antonio A. Carbonell
granted the motion and directed petitioner and her
witnesses to take the witness stand for determination of
probable cause.
Arzadon also appealed the Resolution of the panel of
prosecutors finding probable cause before the
Department of Justice. On July 9, 2004, then Acting
Secretary of Justice Merceditas Gutierrez found no
probable cause and directed the withdrawal of the
Information in Criminal Case No. 6415.10
Upon motion for reconsideration by petitioner, however,
Secretary of Justice Raul Gonzales reversed the July 9,
2004 Resolution and issued another Resolution11 finding
that probable cause exists. Thus, a new
Information12 for rape was filed against Arzadon
docketed as Criminal Case No. 6983.
Consequently, Arzadon filed an "Urgent Motion for
Judicial Determination of Probable Cause for the Purpose
of Issuing a Warrant of Arrest."13 In an Order dated
August 11, 2005, respondent Judge Carbonell granted
the motion and directed petitioner and her witnesses to
take the witness stand.
Instead of taking the witness stand, petitioner filed a
motion for reconsideration claiming that the
documentary evidence sufficiently established the
existence of probable cause. Pending resolution thereof,
she likewise filed a petition14 with this Court for the
transfer of venue of Criminal Case No. 6983. The case
was docketed as Administrative Matter No. 05-12-756-
RTC and entitled Re: Transfer of Venue of Criminal Case
No. 6983, formerly Criminal Case No. 6415, from the
Regional Trial Court, Branch 27, San Fernando City, La
Union, to any Court in Metro Manila.
In a Resolution15 dated January 18, 2006, the Court
granted petitioner’s request for transfer of venue. The
case was raffled to the Regional Trial Court of Manila,
Branch 25, and docketed as Criminal Case No. 06-
242289. However, the proceedings have been
suspended pending the resolution of this petition.
Meanwhile, on December 16, 2005, respondent Judge
Carbonell issued the assailed Order dismissing Criminal
Case No. 6983 for lack of probable cause. Petitioner’s
motion for reconsideration was denied hence, this
petition.
Petitioner raises the following issues:16
I. RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO
LACK OF OR IN EXCESS OF JURISDICTION
WHEN IT GRANTED THE MOTION FOR
DETERMINATION OF PROBABLE CAUSE
FILED BY THE PRIVATE RESPONDENT AND
THE SUBSEQUENT DENIAL OF THE MOTION
FOR RECONSIDERATION
II. RESPONDENT JUDGE COMMITTED
FURTHER ACTS CONSTITUTING GRAVE
ABUSE OF DISCRETION AMOUNTING TO
LACK OR IN EXCESS OF JURISDICTION
 WHEN IT ORDERED THE COMPLAINANT
AND WITNESSES TO TAKE THE STAND FOR
THE PURPOSE OF DETERMINING PROBABLE
CAUSE
III. RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN HE REFUSED
TO INHIBIT FROM FURTHER HANDLING
THE CASE DESPITE WHISPERS OF DOUBT
ON HIS BIAS AND PARTIALITY
IV. RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN IT ISSUED
THE ORDER OF FEBRUARY 3, 2006,
DENYING THE MOTION FOR
RECONSIDERATION, DESPITE THE
SUPREME COURT RESOLUTION OF
JANUARY 18, 2006, GRANTING THE
TRANSFER OF VENUE
Petitioner contends that the judge is not required to
personally examine the complainant and her witnesses
in satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest. She argues that
respondent Judge Carbonell should have taken into
consideration the documentary evidence as well as the
transcript of stenographic notes which sufficiently
established the existence of probable cause.
Arzadon claims that the petition should be dismissed
outright for being the wrong mode of appeal, it
appearing that the issues raised by petitioner properly
fall under an action for certiorari under Rule 65, and not
Rule 45, of the Rules of Court.
Respondent Judge Carbonell argues in his
Comment17 that the finding of probable cause by the
investigating prosecutor is not binding or obligatory, and
that he was justified in requiring petitioner and her
witnesses to take the witness stand in order to
determine probable cause.
The issues for resolution are 1) whether the petition
should be dismissed for being the wrong mode of
appeal; and 2) whether respondent Judge Carbonell
acted with grave abuse of discretion in dismissing
Criminal Case No. 6983 for lack of probable cause.
The petition has merit.
A petition for review on certiorari under Rule 45 is
distinct from a petition for certiorari under Rule 65 in
that the former brings up for review errors of judgment
while the latter concerns errors of jurisdiction or grave
abuse of discretion amounting to lack or excess of
jurisdiction. Grave abuse of discretion is not an allowable
ground under Rule 45. However, a petition for review on
certiorari under Rule 45 may be considered a petition
for certiorari under Rule 65 where it is alleged that the
respondents abused their discretion in their questioned
actions, as in the instant case.18 While petitioner claims
to have brought the instant action under Rule 45, the
grounds raised herein involve an alleged grave abuse of
discretion on the part of respondent Judge Carbonell.
Accordingly, the Court shall treat the same as a petition
for certiorari under Rule 65.
However, we must point out the procedural error
committed by petitioner in directly filing the instant
petition before this Court instead of the Court of
Appeals, thereby violating the principle of judicial
hierarchy of courts. It is well-settled that although the
Supreme Court, Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs
of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such
concurrence does not give the petitioner unrestricted
freedom of choice of court forum.19 In this case,
however, the gravity of the offense charged and the
length of time that has passed since the filing of the
complaint for rape, compel us to resolve the present
controversy in order to avoid further delay.20
We thus proceed to the issue of whether respondent
Judge Carbonell acted with grave abuse of discretion in
dismissing Criminal Case No. 6983 for lack of probable
cause.
We rule in the affirmative.
Respondent Judge Carbonell dismissed Criminal Case
No. 6983 for lack of probable cause on the ground that
petitioner and her witnesses failed to comply with his
orders to take the witness stand. Thus –
In RESUME therefore, as indubitably borne out by the
case record and considering that the Private Prosecutor,
despite several admonitions contumaciously nay
contemptuously refused to comply/obey this Court’s
Orders of March 18, 2004, August 11, 2005 and eight
(8) other similar Orders issued in open Court that
directed the complainant/witnesses to take the witness
stand to be asked probing/clarificatory questions
consonant with cited jurisprudential rulings of the
Supreme Court, this Court in the exercise of its
discretion and sound judgment finds and so holds that
NO probable cause was established to warrant the
issuance of an arrest order and the further prosecution
of the instant case.
Record also shows in no unclear terms that in all the
scheduled hearings of the case, the accused had always
been present. A contrario, the private complainant failed
to appear during the last four (4) consecutive settings
despite due notice without giving any explanation, which
to the mind of the Court may indicate an apparent lack
of interest in the further prosecution of this case. That
failure may even be construed as a confirmation of the
Defense’s contention reflected in the case record, that
the only party interested in this case is the Private
prosecutor, prodded by the accused’s alleged hostile
siblings to continue with the case.
WHEREFORE, premises considered, for utter lack of
probable cause, the instant case is hereby ordered
DISMISSED.21
He claims that under Section 2, Article III of the 1987
Constitution, no warrant of arrest shall issue except
upon probable cause "to be determined personally by
the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce."
However, in the leading case of Soliven v.
Makasiar,22 the Court explained that this constitutional
provision does not mandatorily require the judge to
personally examine the complainant and her witnesses.
Instead, he may opt to personally evaluate the report
and supporting documents submitted by the prosecutor
or he may disregard the prosecutor’s report and require
the submission of supporting affidavits of witnesses.
Thus:
The addition of the word "personally" after the word
"determined" and the deletion of the grant of authority
by the 1973 Constitution to issue warrants to "other
responsible officers as may be authorized by law," has
apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally
examine the complainant and his witnesses in his
determination of probable cause for the issuance of
warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his
witnesses. Following established doctrine and procedure,
he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may disregard
the fiscal’s report and require the submission of
supporting affidavits of witnesses to aid him in arriving
at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges
would by unduly laden with the preliminary examination
and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before
their courts.23
We reiterated the above ruling in the case of Webb v.
De Leon,24 where we held that before issuing warrants
of arrest, judges merely determine the probability, not
the certainty, of guilt of an accused. In doing so, judges
do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review
the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial
evidence.25
It is well to remember that there is a distinction between
the preliminary inquiry which determines probable cause
for the issuance of a warrant of arrest and the
preliminary investigation proper which ascertains
whether the offender should be held for trial or be
released. The determination of probable cause for
purposes of issuing the warrant of arrest is made by the
judge. The preliminary investigation proper – whether or
not there is reasonable ground to believe that the
accused is guilty of the offense charged – is the function
of the investigating prosecutor.26
True, there are cases where the circumstances may call
for the judge’s personal examination of the complainant
and his witnesses. But it must be emphasized that such
personal examination is not mandatory and
indispensable in the determination of probable cause for
the issuance of a warrant of arrest. The necessity arises
only when there is an utter failure of the evidence to
show the existence of probable cause. 27 Otherwise, the
judge may rely on the report of the investigating
prosecutor, provided that he likewise evaluates the
documentary evidence in support thereof.
Indeed, what the law requires as personal
determination on the part of the judge is that he should
not rely solely on the report of the investigating
prosecutor. In Okabe v. Gutierrez,28 we stressed that the
judge should consider not only the report of the
investigating prosecutor but also the affidavit and the
documentary evidence of the parties, the counter-
affidavit of the accused and his witnesses, as well as the
transcript of stenographic notes taken during the
preliminary investigation, if any, submitted to the court
by the investigating prosecutor upon the filing of the
Information.29 If the report, taken together with the
supporting evidence, is sufficient to sustain a finding of
probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be
conducted.
In this case, respondent Judge Carbonell dismissed
Criminal Case No. 6983 without taking into consideration
the June 11, 2003 Resolution of 2nd Assistant Provincial
Prosecutor Georgina Hidalgo, the October 13, 2003
Resolution of the panel of prosecutors, and the July 1,
2005 Resolution of the Department of Justice, all of
which sustain a finding of probable cause against
Arzadon. Moreover, he failed to evaluate the evidence in
support thereof. Respondent judge’s finding of lack of
probable cause was premised only on the complainant’s
and her witnesses’ absence during the hearing
scheduled by the respondent judge for the judicial
determination of probable cause.
Petitioner narrated in detail the alleged rape incident
both in her Sinumpaang Salaysay30 dated July 24, 2002
and Complaint-Affidavit31 dated March 5, 2003. She
attended several clarificatory hearings that were
conducted in the instant case. The transcript of
stenographic notes32 of the hearing held on October 11,
2002 shows that she positively identified Arzadon as her
assailant, and the specific time and place of the incident.
She also claimed that she bore a child as a result of the
rape and, in support of her contentions, presented the
child and her birth certificate as evidence. In contrast,
Arzadon merely relied on the defense of alibi which is
the weakest of all defenses.
After a careful examination of the records, we find that
there is sufficient evidence to establish probable cause.
The gravamen of rape is the carnal knowledge by the
accused of the private complainant under any of the
circumstances provided in Article 335 of the Revised
Penal Code, as amended.33 Petitioner has categorically
stated that Arzadon raped her, recounting her ordeal in
detail during the preliminary investigations. Taken with
the other evidence presented before the investigating
prosecutors, such is sufficient for purposes of
establishing probable cause. It is well-settled that a
finding of probable cause need not be based on clear
and convincing evidence beyond reasonable doubt.
Probable cause is that which engenders a well-founded
belief that a crime has been committed and that the
respondent is probably guilty thereof and should be held
for trial. It does not require that the evidence would
justify conviction. 34
It is clear therefore that respondent Judge Carbonell
gravely abused his discretion in dismissing Criminal Case
No. 6983 for lack of probable cause on the ground that
petitioner and her witnesses failed to take the witness
stand. Considering there is ample evidence and
sufficient basis on record to support a finding of
probable cause, it was unnecessary for him to take the
further step of examining the petitioner and her
witnesses. Moreover, he erred in holding that petitioner’s
absences in the scheduled hearings were indicative of a
lack of interest in prosecuting the case. In fact, the
records show that she has relentlessly pursued the
same.
Needless to say, a full-blown trial is to be preferred to
ferret out the truth.35 As it were, the incidents of this
case have been pending for almost five years without
having even passed the preliminary investigation stage.
Suffice to say that the credibility of petitioner may be
tested during the trial where the respective allegations
and defenses of the complainant and the accused are
properly ventilated. It is only then that the truth as to
Arzadon’s innocence or guilt can be determined.
WHEREFORE, the petition is GRANTED. The Orders of
the Regional Trial Court, Branch 27, San Fernando, La
Union dated December 16, 2005, and February 3, 2006
dismissing Criminal Case No. 6983 for lack of probable
cause are REVERSED and SET ASIDE, and the
Information in the said case is hereby REINSTATED.
The Regional Trial Court, Branch 25, Manila
is DIRECTED to take cognizance of the case and let the
records thereof be REMANDED to the said court for
further proceedings. SO ORDERED.
[G.R. No. 115106. March 15, 1996]
ROBERTO L. DEL ROSARIO, petitioner, vs. COURT
OF APPEALS AND JANITO
CORPORATION, respondents.
Roberto del Rosario petitions this Court to review the
decision of the Court of Appeals[1] which set aside the
order of the Regional Trial Court of Makati granting a
writ of preliminary injunction in his favor.
The antecedents: On 18 January 1993 petitioner filed a
complaint for patent infringement against private
respondent Janito Corporation.[2] Roberto L. del Rosario
alleged that he was a patentee of an audio equipment
and improved audio equipment commonly known as the
sing-along system or karaoke under Letters Patent No.
UM-5269 dated 2 June 1983 as well as Letters Patent
No. UM-6237 dated 14 November 1986 issued by the
Director of Patents. The effectivity of both Letters
Patents was for five (5) years and was extended for
another five (5) years starting 2 June 1988 and 14
November 1991, respectively. He described his sing-
along system as a handy multi-purpose compact
machine which incorporates an amplifier speaker, one or
two tape mechanisms, optional tuner or radio and
microphone mixer with features to enhance ones voice,
such as the echo or reverb to stimulate an opera hall or
a studio sound, with the whole system enclosed in one
cabinet casing.
In the early part of 1990 petitioner learned that private
respondent was manufacturing a sing-along system
bearing the trademark miyata or miyata
karaoke substantially similar if not identical to the sing-
along system covered by the patents issued in his
favor. Thus he sought from the trial court the issuance
of a writ of preliminary injunction to enjoin private
respondent, its officers and everybody elsewhere acting
on its behalf, from using, selling and advertising
the miyata or miyata karaoke brand, the injunction to be
made permanent after trial, and praying for damages,
attorneys fees and costs of suit.
On 5 February 1993 the trial court temporarily restrained
private respondent from manufacturing, using and/or
selling and advertising the miyata sing-along system or
any sing-along system substantially identical to the sing-
along system patented by petitioner until further orders.
On 24 February 1993 the trial court issued a writ of
preliminary injunction upon a bond on the basis of its
finding that petitioner was a holder of a utility model
patent for a sing-along system and that without his
approval and consent private respondent was admittedly
manufacturing and selling its own sing-along system
under the brand name miyata which was substantially
similar to the patented utility model[3] of petitioner.
Private respondent assailed the order of 24 February
1993 directing the issuance of the writ by way of a
petition for certiorari with prayer for the issuance of a
writ of preliminary injunction and a temporary
restraining order before respondent Court of Appeals.
On 15 November 1993 respondent appellate court
granted the writ and set aside the questioned order of
the trial court. It expressed the view that there was no
infringement of the patents of petitioner by the fact
alone that private respondent had manufactured
the miyata karaoke or audio system, and that the
karaoke system was a universal product manufactured,
advertised and marketed in most countries of the world
long before the patents were issued to petitioner. The
motion to reconsider the grant of the writ was
denied;[4] hence, the instant petition for review.
This petition alleges that: (a) it was improper for the
Court of Appeals to consider questions of fact in a
certiorari proceeding; (b) the Court of Appeals erred in
taking judicial notice of private respondents self-serving
presentation of facts; (c) the Court of Appeals erred in
disregarding the findings of fact of the trial court; and,
(d) there was no basis for the Court of Appeals to grant
a writ of preliminary injunction in favor of private
respondent.[5]
Petitioner argues that in a certiorari proceeding,
questions of fact are not generally permitted the inquiry
being limited essentially to whether the tribunal has
acted without or in excess of jurisdiction or with grave
abuse of discretion; that respondent court should not
have disturbed but respected instead the factual findings
of the trial court; that the movant has a clear legal right
to be protected and that there is a violation of such right
by private respondent. Thus, petitioner herein claims, he
has satisfied the legal requisites to justify the order of
the trial court directing the issuance of the writ of
injunction. On the other hand, in the absence of a
patent to justify the manufacture and sale by private
respondent of sing-along systems, it is not entitled to
the injunctive relief granted by respondent appellate
court.
The crux of the controversy before us hinges on whether
respondent Court of Appeals erred in finding the trial
court to have committed grave abuse of discretion in
enjoining private respondent from manufacturing, selling
and advertising the miyata karaoke brand sing-along
system for being substantially similar if not identical to
the audio equipment covered by letters patent issued to
petitioner.
Injunction is a preservative remedy for the protection of
substantive rights or interests. It is not a cause of action
in itself but merely a provisional remedy, an adjunct to a
main suit. The controlling reason for the existence of the
judicial power to issue the writ is that the court may
thereby prevent a threatened or continuous irremediable
injury to some of the parties before their claims can be
thoroughly investigated and advisedly adjudicated. It is
to be resorted to only when there is a pressing necessity
to avoid injurious consequences which cannot be
remedied under any standard of compensation. The
application of the writ rests upon an alleged existence of
an emergency or of a special reason for such an order
before the case can be regularly heard, and the essential
conditions for granting such temporary injunctive relief
are that the complaint alleges facts which appear to be
sufficient to constitute a cause of action for injunction
and that on the entire showing from both sides, it
appears, in view of all the circumstances, that the
injunction is reasonably necessary to protect the legal
rights of plaintiff pending the litigation.[6]
A preliminary injunction may be granted at any time
after the commencement of the action and before
judgment when it is established that the defendant is
doing, threatens, or is about to do, or is procuring or
suffering to be done, some act probably in violation of
the plaintiffs rights. Thus, there are only two requisites
to be satisfied if an injunction is to issue, namely, the
existence of the right to be protected, and that the facts
against which the injunction is to be directed are
violative of said right.[7]
For the writ to issue the interest of petitioner in the
controversy or the right he seeks to be protected must
be a present right, a legal right which must be shown to
be clear and positive.
In this regard Sec. 55 of R.A. 165 as amended, known
as The Patent Law, provides
Sec. 55. Design patents and patents for utility models. -
(a) Any new, original, and ornamental design for an
article of manufacture and (b) new model or implements
or tools or of any Industrial product or of part of the
same, which does not possess the quality of invention
but which is of practical utility by reason of its form,
configuration, construction or composition, may be
protected by the author thereof, the former by a patent
for a design and the latter by a patent for a utility
model, in the same manner and subject to the same
provisions and requirements as relate to patents for
inventions insofar as they are applicable, except as
otherwise herein provide x x x
Admittedly, petitioner is a holder of Letters Patent No.
UM-5629 dated 2 June 1985 issued for a term of
five (5) years from the grant of a Utility Model herein
described
The construction of an audio equipment comprising a
substantially cubical casing having a window at its rear
and upper corner fitted with a slightly inclined control
panel, said cubical (casing) having a vertical partition
wall therein defining a rear compartment and a front
compartment, and said front compartment serving as a
speaker baffle; a transistorized amplifier circuit having
an echo section and writhed in at least the printed
circuit boards placed inside said rear compartment of
said casing and attached to said vertical partition wall,
said transistorized amplifier circuit capable of being
operated from outside, through various controls
mounted on said control panel of such casing; a loud
speaker fitted inside said front compartment of said
casing and connected to the output of the main audio
amplifier section of said transistorized amplifier circuit
and a tape player mounted on the top wall of said casing
and said tape player being connected in conventional
manner to said transistorized amplifier circuit.[8]
Again, on 14 November 1986 petitioner was granted
Letters Patent No. UM-6237 for a term of five (5) years
from the grant of a Utility Model described as
In an audio equipment consisting of a first cubical casing
having an opening at its rear and upper rear portion and
a partition therein forming a rear compartment and a
front compartment serving as a loud speaker baffle, a
control panel formed by vertical and horizontal sections,
a transistorized amplifier circuit wired in at least two
printed circuit boards attached at the back of said
control panel, a first loud speaker fitted inside said first
compartment of such first casing and connected to the
output of said transistorized amplifier circuit; the
improvement wherein said control panel being
removably fitted to said first cubical casing and further
comprises a set of tape recorder and tape player
mounted on the vertical section of said control panel and
said recorder and player are likewise connected to said
transistorized amplifier circuit; a second cubical casing
having an opening at its rear, said second cubical casing
having (being ?) provided with a vertical partition therein
defining a rear compartment and a front compartment,
said rear compartment being provided with a door and
enclosing therein a set of tape racks and said front
compartment serving as loud speaker baffle, said second
cubical casing being adapted to said first cubical casing
so that said first and second casings are secured
together in compact and portable form; and a second
loud speaker fitted inside said front compartment of said
casing and connected to the output of said amplifier
circuit.[9]
The terms of both Letters Patents were extended for
another five (5) years each, the first beginning 2 June
1988 and the second, 14 November 1991.
The Patent Law expressly acknowledges that any new
model of implements or tools of any industrial product
even if not possessed of the quality of invention but
which is of practical utility is entitled to a patent for
utility model.[10] Here, there is no dispute that the
letters patent issued to petitioner are for utility models
of audio equipment.
In issuing, reissuing or withholding patents and
extensions thereof, the Director of Patents determines
whether the patent is new and whether the machine or
device is the proper subject of patent. In passing on an
application, the Director decides not only questions of
law but also questions of fact, i.e. whether there has
been a prior public use or sale of the article sought to be
patented.[11] Where petitioner introduces the patent in
evidence, if it is in due form, it affords a prima
facie presumption of its correctness and validity. The
decision of the Director of Patents in granting the patent
is always presumed to be correct, and the burden then
shifts to respondent to overcome this presumption by
competent evidence.[12]
Under Sec. 55 of The Patent Law a utility model shall not
be considered new if before the application for a patent
it has been publicly known or publicly used in this
country or has been described in a printed publication or
publications circulated within the country, or if it is
substantially similar to any other utility model so known,
used or described within the country. Respondent
corporation failed to present before the trial court
competent evidence that the utility models covered by
the Letters Patents issued to petitioner were not
new. This is evident from the testimony of Janito Cua,
President of respondent Janito Corporation, during the
hearing on the issuance of the injunction, to wit -
Q. Mr. Cua, you testified that there are (sic) so many other companies
which already have (sic) the sing-along system even before the patent
application of Mr. del Rosario and as a matter of fact you mentioned
Sanyo, Sony and Sharp, is that right?
A. Musicmate and Asahi.
Q. Now do you recall that your lawyer filed with this Honorable Court
an Urgent Motion to Lift Temporary Restraining Order of this
Honorable Court. I am sure you were the one who provided him with
the information about the many other companies selling the sing-along
system, is that right? These 18 which you enumerated here.
A. More than that because x x x
Q. Now you will agree with me that in your statement Sharp you put
the date as 1985 agreed?
A. No.
Q. You mean your lawyer was wrong when he put the word Sharp
1985?
A. Maybe I informed him already.
xxx xxx xxx
Q. You mean your lawyer was wrong in alleging to this Court that
Sharp manufactured and sold (in) 1985 as found in the Urgent Motion?
A. Since it is urgent it is more or less.
Q. The same also with Sanyo 1985 which you put, more or less?
A. Sanyo is wrong.
Q. It is not 1985?
A. Sanyo is 1979 I think.
Q. So this is also wrong. Panasonic 1986 is also wrong?
A. Panasonic I think.
Q. So you dont think this is also correct.
A. The date?
Q. So you dont think also that this allegation here that they
manufactured in 1986 is correct?
A. Wrong. Earlier.
Q. National by Precision Electronic 1986 this is also wrong?
A. I think earlier.
Q. So that means all your allegations here from 2 to 5 are wrong? OK.
By Philipps Philippines 1986, this is also correct or wrong?
A. More or less. We said more or less.
Q. Nakabutshi by Asahi Electronics that is also wrong?
A. No, that is 1979.
Q. Electone by DICO 1989 is this correct or wrong?
A. Correct. More or less.
Q. Skylers 1985 is that correct or wrong?
A. It is more or less because it is urgent. We dont have time to exact
the date.
Q. Musicmate of G.A. Yupangco 1981 this is more or less? You are not
also sure?
A. 95% sure.
Q. Now you are sure 1981.
A. This one because x x x
Q. Mr. Witness so you are now trying to tell this Honorable Court that
all your allegations here of the dates in this Urgent Motion except for
Musicmate which you are only 95% sure they are all wrong or they are
also more or less or not sure, is that right?
A. More or less.
Q. Now do you have any proof, any advertisement, anything in writing
that would show that all these instruments are in the market, do you
have it?
A. No, I dont have it because x x x
Q. No. I am satisfied with your answer. Now Mr. Witness, you dont
also have a proof that Akai instrument that you said was also in the
market before 1982? You dont have any written proof. any
advertisement?
A. I have the product.
Q. But you have not brought the product in (sic) this Honorable Court,
right?
A. No.
As may be gleaned herein, the rights of petitioner as a
patentee have been sufficiently established, contrary to
the findings and conclusions of respondent Court of
Appeals. Consequently, under Sec. 37 of The Patent law,
petitioner as a patentee shall have the exclusive right to
make, use and sell the patented machine, article or
product for the purpose of industry or commerce,
throughout the territory of the Philippines for the term of
the patent, and such making, using or selling by any
person without authorization of the patentee constitutes
infringement of his patent.
Petitioner established before the trial court that
respondent Janito Corporation was manufacturing a
similar sing-along system bearing the
trademark miyata which infringed his patented
models. He also alleged that both his own patented
audio equipment and respondents sing-along system
were constructed in a casing with a control panel, the
casing having a vertical partition wall defining the rear
compartment from the front compartment, with the
front compartment consisting of a loud speaker baffle,
both containing a transistorized amplifier circuit capable
of being operated from outside through various controls
mounted on the control panel, and that both had loud
speakers fitted inside the front compartment of the
casing and connected to the output of the main audio
amplifier section both having a tape recorder and a tape
player mounted on the control panel with the tape
recorder and tape player being both connected to the
transistorized amplifier circuit.[14]
Respondent Janito Corporation denied that there was
any violation of petitioners patent rights, and cited the
differences between its miyata equipment and
petitioners audio equipment. But, it must be
emphasized, respondent only confined its comparison to
the first model, Utility Model No. 5269, and completely
disregarded Utility Model No. 6237 which improved on
the first. As described by respondent corporation, these
differences are
First. Under Utility Model 5269, the unit is a substantially
cubical casing with a window at its rear and upper
corner fitted with slightly inclined control panel, while
the miyata equipment is a substantially rectangular
casing with panel vertically positioned.
Second. Under Utility Model 5269, the cubical casing has
a vertical partition wall defining a rear compartment and
a front compartment serving as a speaker baffle, while
the miyata equipment has no rear compartment and
front compartment in its rectangular casing; it has only a
front compartment horizontally divided into 3
compartments like a 3-storey building, the 1st
compartment being a kit, the 2nd also the speaker, and
the 3rd are kits.
Third. Under Utility Model No. 5269, a transistorized
amplifier circuit with an echo section wired in at least 2
printed circuit boards is placed inside the rear
compartment of the casing and attached to the vertical
partition wall, the printed circuit board having 1 amplifier
and 1 echo, while in the miyata equipment the amplifier
is mainly IC (Integrated Circuit) - powered with 8
printed circuit boards almost all of which are IC
controlled, with 1 amplifier with power supply, 1 main
tuner, 1 equalizer (3-band), 1 IC controlled volume
control, 1 echo IC, 1 tape pream, 1 instrument and 1
wireless microphone.
Fourth. Under Utility Model 5269, 4 printed circuits are
placed inside the compartment of its casing attached to
the vertical partition wall, while in the miyata, the 7
printed circuit boards (PCB) are attached to the front
panel and 1 attached to the horizontal divider.
Fifth. Under Utility Model 5269, there are various
controls mounted on the control panel of the casing,
while in miyata, the various controls are all separated
from the printed circuit boards and the various controls
are all attached thereto.
Sixth. Under Utility Model 5269, a loud speaker fitted
inside the front compartment of the casing is connected
to the output of the main audio amplifier section of the
transistorized amplifier circuit, while in miyata, there is
no other way but to use 2 loud speakers connected to
the amplifier.
Seventh. Under Utility Model 5269, a tape player is
mounted on the top wall of the casing, while
in miyata, 2 tape players are used mounted side by side
at the front.
It is elementary that a patent may be infringed where
the essential or substantial features of the patented
invention are taken or appropriated, or the device,
machine or other subject matter alleged to infringe is
substantially identical with the patented invention. In
order to infringe a patent, a machine or device must
perform the same function, or accomplish the same
result by identical or substantially identical means and
the principle or mode of operation must be substantially
the same.[16]
It may be noted that respondent corporation failed to
present before the trial court a clear, competent and
reliable comparison between its own model and that of
petitioner, and disregarded completely petitioners Utility
Model No. 6237 which improved on his first patented
model. Notwithstanding the differences cited by
respondent corporation, it did not refute and disprove
the allegations of petitioner before the trial court that:
(a) both are used by a singer to sing and amplify his
voice; (b) both are used to sing with a minus-one or
multiplex tapes, or that both are used to play minus-one
or standard cassette tapes for singing or for listening to;
(c) both are used to sing with a minus-one tape and
multiplex tape and to record the singing and the
accompaniment; (d) both are used to sing with live
accompaniment and to record the same; (e) both are
used to enhance the voice of the singer using echo
effect, treble, bass and other controls; (g) both are
equipped with cassette tape decks which are installed
with one being used for playback and the other, for
recording the singer and the accompaniment, and both
may also be used to record a speakers voice or
instrumental playing, like the guitar and other
instruments; (h) both are encased in a box-like cabinets;
and, (i) both can be used with one or more
microphones.[17]
Clearly, therefore, both petitioners and respondents
models involve substantially the same modes of
operation and produce substantially the same if not
identical results when used.
In view thereof, we find that petitioner had established
before the trial court prima facie proof of violation of his
rights as patentee to justify the issuance of a writ of
preliminary injunction in his favor during the pendency
of the main suit for damages resulting from the alleged
infringement.
WHEREFORE, the Decision of the Court of Appeals dated
15 November 1993 is REVERSED and SET ASIDE and the
Order of the trial court dated 24 February 1993 granting
petitioner the writ of injunction is REINSTATED.
The trial court is directed to continue with the
proceedings on the main action pending before it in
order to resolve with dispatch the issues therein
presented. SO ORDERED.
G.R. No. L-20081 February 27, 1968
MELQUIADES RAAGAS and ADELA LAUDIANO
RAAGAS, plaintiffs-appellees, vs. OCTAVIO TRAYA,
MRS. OCTAVIO TRAYA and BIENVENIDO
CANCILLER, defendants-appellants.
The complaint filed on April 1, 1960 with the Court of
First Instance of Leyte (civil case 2749) by the spouses
Melquiades Raagas and Adela Laudiano Raagas against
Octavio Traya, his wife, and Bienvenido Canciller, alleges
in essence that on or about April 9, 1958, while the
latter was "recklessly" driving a truck owned by his co-
defendants, along the public highway in MacArthur,
Leyte, the said vehicle ran over the plaintiffs' three-year
old son Regino causing his instantaneous death. The
plaintiffs ask for actual damages in the sum of P10,000,
moral, nominal and corrective damages in a sum to be
determined by the court, P1,000 as attorney's fees,
P1,000 for expenses of litigation, plus costs.
In their answer with counterclaim for moral and
actual damages and attorney's fees, filed on April 22,
the defendants specifically deny that Canciller was
"driving recklessly" at the time of the mishap, and assert
that the truck "was fully loaded and was running at a
very low speed and on the right side of the road"; that it
was the child who "rushed from an unseen position and
bumped the truck so that he was hit by the left rear tire
of the said truck and died", and consequently the
defendants are not to blame for the accident which was
"entirely attributable to an unforeseen event" or due to
the fault of the child and negligence of his parents; that
the defendant-spouses have exercised due diligence in
the selection and supervision of their driver Canciller,
whom they hired in 1946 only after a thorough study of
his background as a truck driver; and that each time
they allowed him to drive it was only after a check of his
physical condition and the mechanical fitness of the
truck assigned to him.
On May 4 the plaintiffs' moved for a judgment on
the pleadings, upon the claim that the defendants'
answer not only "failed to tender an issue" but as well
"admitted material allegations" of the complaint. This
motion was set for hearing on June 18. On the previous
day, however, the clerk of court received a telegram
from the defendants' counsel requesting for
postponement of the hearing to July 2 on the ground
that he was sick of influenza. The lower court denied the
request for lack of "proper notice to the adverse party",
and considered the case submitted for decision upon the
filing of the plaintiffs' memorandum.
On June 24 it rendered a judgment on the
pleadings, condemning the defendants, jointly and
severally, to pay "to the plaintiffs the sum of P10,000 for
the death of their child Regino Laudiano Raagas, P2,000
for moral damages, P1,000 actual damages, P1,000 for
attorney's fees, and the costs."
The court reasoned that the denial in the answer
of the charge of reckless driving "did not affect the
plaintiffs' positive allegation in their complaint that the
truck . . . did not have a current year registration plate .
. . for the year 1958 when the accident occurred that
"this failure . . . has the effect of admitting
hypothetically that they operated ... the said truck
without proper license . . . when the accident occurred,"
and that "unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has
been negligent if at the time of the mishap, he was
violating any traffic regulation (article 2185, new Civil
Code)." The court went on to conclude that under the
circumstances a judgment on the pleadings was
"irremediably proper and fitting."
The defendants appealed to the Court of Appeals,
which certified the case to this Court because the issues
raised are purely of law.
Section 10 of Rule 35 of the old Rules of
Court 1 authorized a judgment on the pleadings "where
an answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party's pleading."
The vital issue, therefore, to which the other
issues are subsidiary or intestinal, is whether the court a
quoacted correctly when it rendered judgment on the
pleadings. It is our view that the court erred.
The plaintiffs' claim for actual, moral, nominal
and corrective damages, was controverted by the
averment in the answer to the effect that the defendants
"have no knowledge or information sufficient to form a
belief as to the truth of the allegations" as to such
damages, "the truth of the matter being that the death
of Regino Raagas was occasioned by an unforeseen
event and/or by the fault of the small boy Regino
Raagas or his parents." Such averment has the effect of
tendering a valid issue. We so held in Philippine National
Bank vs. Lacson, L-9419, May 29, 1957 and in Benavides
vs. Alabastro, L-19762, Dec. 23, 1964. In Abubakar Tan
vs. Tian Ho, L-18820, December 29, 1962 and Lim Giok
vs. Bataan Cigar and Cigarette Factory, L-15861, April
16, 1960, we held that even if the allegations regarding
the amount of damages in the complaint are not
specifically denied in the answer, such damages are not
deemed admitted. In Tomassi vs. Villa-Abrille, L-7047,
August 21, 1968, Suntay Tanjangco vs. Jovellanos, et
al., L-12332, June 30, 1960, and Delfin vs. Court of
Agrarian Relations, et al., L-23348, March 14, 1967,
1967 A PHILD 453, we declared in no uncertain terms
that actual damages must be proved, and that a court
cannot rely on "speculation, conjecture or guesswork" as
to the fact and amount of damages, but must depend on
actual proof that damage had been suffered and on
evidence of the actual amount. Finally, in Malonzo vs.
Galang et. al., L-13851, July 27, 1960, we reaffirmed the
rule that although an allegation is not necessary in order
that moral damages may be awarded, "it is,
nevertheless, essential that the claimant satisfactorily
prove the existence of the factual basis of the damage
and its causal relation to defendant's acts."
The preceding disquisition points up the
inescapable need of a full-blown trial on the merits at
which the parties will be afforded every opportunity to
present evidence in support of their respective
contentions and defenses.
ACCORDINGLY, the judgment on the pleadings of
June 24, 1960 is set aside, and this case is hereby
remanded to the court of origin for trial on the merits.
No pronouncement as to costs.
G.R. No. L-38037 January 28, 1974
ROQUE ENERVIDA, petitioner, vs. LAURO DE LA
TORRE and ROSA DE LA TORRE, respondents.
In this appeal certified by the Court of Appeals to this
Court as involving purely a question of law, We affirm
the dismissal order dated March 29, 1966, of the Court
of First Instance of Davao in its Civil Case No. 3886,
entitled "Roque Enervida vs. Lauro de la Torre and Rosa
de la Torre," but modify the award of damages by
eliminating moral damages.
The dispositive portion of said Order reads as follows:
Considering the fact that the plaintiff
has no cause of action against the
defendants and has no legal capacity to
sue, and considering further that he is
prompted with malice and bad faith in
 taking this action to Court by alleging
false statements in his complaint, this
Court hereby orders the dismissal of the
case and also order the plaintiff to pay
unto the defendants the sum of TWO
THOUSAND (P2,000.00) PESOS in
concept of actual moral and exemplary
damages and also for payment of
attorney's fees. If the plaintiff has been
guided or advised by any attorney to
allege in the complaint the falsities
mentioned above, the latter should
deserve to be investigated for
malpractice and to be weeded out of the
profession, if, after due hearing the
facts and the law may warrant.
The essential facts that led to the filing of this action as
set forth by the Court of Appeals are as follows: Plaintiff-
appellant, now petitioner Roque Enervida, filed a
complaint against the defendant-spouses Lauro de la
Torre and Rosa de la Torre, praying that the deed of
sale executed on December 3, 1957, by his deceased
father, Ciriaco Enervida, over a parcel of land covered by
a Homestead Patent be declared null and void for having
been executed within the prohibited period of five years,
in violation of the provision, of Section 118 of
Commonwealth Act 141, otherwise known as the Public
Land Law. He further prayed that he be allowed to
repurchase said parcel of land for being the legitimate
son and sole heir of his deceased father.
In due time, defendants filed their answer, stating
among others that the plaintiff has no cause of action
against them as his father, Ciriaco Enervida, is still
living; that it is not true that plaintiff is the only son of
Ciriaco Enervida as he has also other living children,
namely, Juan, Filomena, Nieves and Antonio, all
surnamed "Enervida"; and that the sale of the property
in question did not take place within the prohibited
period provided for in Section 118 of the Public Land
Law, the sale having taken place on November 20, 1957,
although ratified and acknowledged on December 3,
1957, before a Notary Public.
On September 9, 1965, during the pre-trial conference
on the case, plaintiff-appellant reiterated what he
alleged in his reply to defendants' answer and admitted
that his father, Ciriaco Enervida, is still living and that he
has four other living brothers and sisters who were not
joined as party-plaintiffs. He also admitted that the sale
of the land in question actually took place on November
20, 1957, but was formalized only on December 3, 1957.
He likewise admitted the authenticity of a certified true
copy of Original Certificate of Title No. P-1744 covering
the land in question wherein it is stated that the
Homestead Patent No. H-169512 on which the title is
based was issued to Ciriaco Enervida way back on
November 17, 1952.
In view of plaintiff's admission of the material facts at
the pre-trial conference, the defendants spouses were
constrained to ask for summary judgment, pursuant to
Rule 34, in relation with Section 3, Rule 20 of the Rules
of Court, on the ground that there is no genuine issue
on the case because with plaintiff's admissions it is
evident that the sale in question was not executed
within the prohibited five-year period imposed by
Section 118 of Commonwealth Act
141.<äre||anº•1àw> They reasoned out that from
November 17, 1952, when the Homestead Patent was
issued in favor of the patentee, up to December 3, 1957,
when the alleged sale took place, more than five years
had already elapsed, so that even if the patentee
wanted to exercise his right to repurchase as provided
for in Section 119 of the Public Land Law, from
November 20, 1957, when the sale actually took place
up to December 3, 1962, when plaintiff's complaint was
filed he could not do so because the five-year period had
already elapsed. Defendants claim that plaintiff has no
cause of action against them because the patentee,
Ciriaco Enervida, is still living and plaintiff's right to
repurchase the homestead of his father could be availed
of only when the latter is already dead. Acting upon
defendants' motion for summary judgment, the Court a
quo issued the now questioned Order of March 29,
1966, dismissing the complaint. Hence the present
appeal.
Plaintiff-appellant maintains that the trial court erred:
1. In finding that the appellant made
untruthful statement of facts and that
he failed to correct the alleged falsity
regarding the death of his father and
that he is the only heir;
2. In finding that the appellant lacked
the legal capacity to sue because his
father is still very much alive and in
finding that his father is the only person
authorized to bring the action;
3. In finding that the sale of the
property in question was consummated
on November 20, 1957, and in holding
that the right to repurchase has expired
on November 20, 1962, and so the
complaint was filed beyond the time
required by law;
4. In finding that the appellant has no
cause of action and that he acted in bad
faith in filing the complaint and in
awarding damages and attorney's fees;
5. That the lower court erred in not
directing reconveyance and in not
 divesting appellees of their title to the
land upon payment of the repurchase
price.
Recapitulating the assigned errors, it results that the
main issue presented for determination is whether the
court a quo committed an error in dismissing the case
based on defendants' motion for summary judgment.
Section 2 and 3 of Rule 34 and Section 3 of Rule 20 of
the Rules of Court explicitly provide regarding the
matter:
Section 2 — Summary Judgment for defending
party — A party against whom a claim,
counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at anytime,
move with supporting affidavits for a summary
judgment in his favor as to all or any part
thereof. (Rule 34)
Section 3 — Motion and proceedings thereon —
The motion shall be served at least ten (10)
days before the time specified for the hearing.
The adverse party prior to the day of hearing
may serve opposing affidavits. After the hearing,
the judgment sought shall be rendered forthwith
if the pleadings, depositions, and admissions on
file together with the affidavits, show that,
except as to the amount of damages, there is no
genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law. (Rule 34)
Section 3 — Judgment on the pleadings and
summary judgment at pre-trial. If at the pre-trial
the court finds that facts exist upon which a
judgment on the pleadings or a summary
judgment may be made, it may render judgment
on the pleadings or a summary judgment as
justice may require. (Rule 20)
Summary Judgment should be availed of as an effective
method of disposing civil actions where there is no
genuine issue as to any material fact . Here it was clearly
shown at the pre-trial conference that plaintiff-appellant,
now petitioner, virtually admitted that his father, Ciriaco
Enervida, the patentee, is still living; that petitioner is
not the sole heir as he has other brothers and sisters
who were also living, contrary to his allegations in the
complaint under oath, that he was the sole heir. As the
patentee is still living, plaintiff-appellant could not have,
on his own right, sought the repurchase of the land as it
would be violative of Section 119 of the Public Land Law
which reads:
Section 110 — Every conveyance of land
acquired under the free patent or homestead
provisions, when proper, shall be subject to
repurchase by the applicant, his widow or legal
heirs, within a period of five years from the date
of conveyance.
This Court, through then Associate, now Chief Justice,
Makalintal, previously ruled that where the vendor is still
living, it is he alone who has the right of redemption. 1 It
is clear, therefore, that the complaint is without basis
and there is no cause of action and the plaintiff-
appellant has no legal capacity to sue. On this score
alone, the petition should be denied. But the petitioner
contends that the sale was made within the prohibitory
period, in contravention of Section 118 of the Public
Land Law,2 without recalling the fact that during the pre-
trial conference he never denied but admitted the fact
that the actual sale of the land in question was made on
November 20, 1957, albeit formalized only on December
3, 1957. In Soriano, et al. v. Latoño, 87 Phil. 757, 760,
this Court ruled:
The formal objection to the deed of sale is of no
moment. We agree with the trial Judge that had
not this instrument been notarized at all, the
same would have been fully effective as
between the parties under Art. 1261 of the old
civil code in force at the time of the conveyance.
All the elements of a valid contract were
present: subject matter, capacity and consent of
the parties and lawful consideration.
Also to be noted is the fact that appellant did not deny
the authenticity of a certified copy of Original Certificate
of Title No. P-1744 covering the land in question where
it appears that Homestead Patent No. H169512 was
issued to Ciriaco Enervida, appellant's father, way back
on November 17, 1952. In this connection, Recido v.
Refaso3 is pertinent. This Court speaking through then
Chief Justice Bengzon in said case said:
A Sale by Petra: There is no question that on
June 14, 1948, the Refasos bought her one-half
share in the homestead. Nevertheless, she now
attacks the validity of her conveyance, pointing
out to the legal prohibition against sales of
homesteads "from the date of application and
for a term of five years from and after the date
of issuance of the patent." To Petra, the law
prohibits the sale of the homestead not only
during the period between application and
issuance of the patent but also during the five
years after such issuance. And, she argues, my
sale was void because it was made in 1948
before the issuance of the patent in 1949.
Agreeing to her first legal proposition or
major premise, the Court of Appeals
held, contrary to her contention, that
issuance of the patent took place in
 1941. And as the sale had been made in
1948 - seven years afterwards — it was
valid. Said Court explained that the
issuance of the patent in this case
occurred in 1941, when the Director of
Lands signed the order for the issuance
of the patent. This opinion, Petra
challenged, insisting that the patent had
been issued in 1949 not 1941.
Her contention must be overruled in the light of
our decision in Tinio v. Frances, 51 Off. Gaz.
6205, wherein construing this identical
prohibition, we ruled that the patent is deemed
issued upon promulgation of the order of the
Director of Lands for the issuance thereof — in
this case 1941.
For the purpose of computing the five-year prohibition
against alienation of homesteads, it is to be reiterated
and emphasized that the patent is deemed issued upon
promulgation of the order for issuance thereof by the
Director of Lands. This being the case, We see no
violation of the provisions of either Section 118 or 119 of
the Public Land Law committed by herein respondents
because even assuming that the sale sought to be
nullified was made on December 3, 1957, as claimed by
appellant, still the same was made well beyond the five-
year period provided by Section 118 of Commonwealth
Act 141.
On the strength of the admissions by plaintiff-appellant
at the pre-trial conference which the latter never
bothered to oppose or deny in a later motion or by
counter-affidavits, the order granting summary
judgment was indeed proper (Jugador v. Vera).4
Lastly, the plaintiff-appellant assailed the award of
damages and attorney's fees by the court a quo to
respondents. Article 2208 of the New Civil Code on
attorney's fees specifically provides:
Article 2208 — In the absence of stipulation,
attorney's fees and expenses of litigation, other
than judicial costs, can not be recovered,
except:
xxx xxx xxx
(4) In case of a clearly unfounded civil action or
proceeding against the plaintiff;
xxx xxx xxx
As the case at bar is clearly an unfounded civil action,
the respondents may recover attorney's fees.
In Deogracias Malonzo vs. Gregoria Galang,5 this Court,
applying the above doctrine, said:
As to attorney's fees, the award is correct and
proper, in view of the finding of the trial court
and of the Court of Appeals that petitioner's
action against respondents is clearly unfounded,
since Article 2208, par. (4), of the New Civil
Code authorizes the recovery of attorney's fees
"in case of a clearly unfounded civil action or
proceeding against the plaintiff." This provision
applies equally in favor of a defendant under a
counter-claim for attorney's fees (as in this
case), considering that a counter-claim is a
complaint by the defendant against the original
plaintiff (Pongos vs. Hidalgo Enterprises, Inc., et
al., 84 Phil. 499) wherein the defendant is the
plaintiff and the original plaintiff the defendant.
However, with regard to the award of TWO THOUSAND
PESOS "in concept of actual, moral and exemplary
damages ...", the same is not proper for it would ran
counter to the decision of this Court in the case
aforecited where it was ruled:
Finally, with respect to moral damages,
we are inclined to agree with petitioner
that these damages are not recoverable
herein, notwithstanding the finding of
the trial court and the Court of Appeals
that his complaint against respondents
were clearly unfounded or
unreasonable. It will be observed that
unlike compensatory or actual damages
which are generally recoverable in tort
cases as long as there is satisfactory
proof thereof (Art. 2202), the Code has
chosen to enumerate the cases in which
moral damages, may be recovered (Art.
2219). A like enumeration is made in
regard to the recovery of attorney's fees
as an item of damage (Art. 2208). But
the two enumerations differ in the case
of a clearly unfounded suit, which is
expressly mentioned in Art. 2208 (par.
4), as justifying an award of attorney's
fees, but is not included in the
enumeration of Art. 2219 in respect to
moral damages. It is true that Art. 2219
also provides that moral damages may
be awarded in "analogous cases" to
those enumerated, but we do not think
the Code intended" a clearly unfounded
civil action or proceedings" to be one of
these analogous cases wherein moral
damages may be recovered, or it would
have expressly mentioned it in Art.
2219, as it did in Art. 2208; or else
incorporated Art. 2208 by reference in
Art. 2219. Besides, Art. 2219 Specifically
mentions "quasi-delicts causing physical
injuries", as an instance when moral
 damages may be allowed, thereby
implying that all other quasi-delicts not
resulting in physical injuries are
excluded (Strebel vs. Figueras, 96 Phil.
321), excepting, of course, the special
torts referred to in Art. 309, par. 9, Art.
2219) and in Arts. 21, 26, 27, 28, 29,
30, 32, and 34, 35 on the chapter on
human relations (par. 10, Art. 2219).
Furthermore, while no proof of
pecuniary loss is necessary in order that
moral damages may be awarded, the
amount of indemnity being left to the
discretion of the court (Art. 2216), it is,
nevertheless, essential that the claimant
satisfactorily prove the existence of the
factual basis of the damage (Art. 2217)
and its causal relation to defendant's
acts. This is so because moral damages,
though incapable of pecuniary
estimation, are in the category of an
award designed to compensate the
claimant for actual injury suffered and
not to impose a penalty on the
wrongdoer (Algara vs. Sandejas, 27 Phil.
294). The trial court and the Court of
Appeals both seem to be of the opinion
that the mere fact that respondent were
sued without any legal foundation
entitled them to an award of moral
damages, hence they made no definite
finding as to what the supposed moral
damages suffered consist of. Such a
conclusion would make of moral
damages a penalty, which they are not,
rather than a compensation for actual
injury suffered, which they are intended
to be. Moral damages, in other words,
are not corrective or exemplary
damages.
WHEREFORE, the dismissal order is hereby affirmed with
the modification that only attorney's fees in the amount
of P1,500 are hereby awarded to the respondents. No
Costs.
G.R. No. 126518 December 2, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
RODELIO BUGAYONG, accused-appellant.
The Information charged appellant with statutory rape
committed "before and until October 15, 1994 . . .
several times." In the instant appeal, he asserts that this
allegation regarding the date of the commission of the
offense violated his constitutional right "to be informed
of the nature and cause of the accusation against him."
The Case
This is the main question raised before the Court by the
appellant who seeks the reversal of the May 29, 1996
Decision1 of the Regional Trial Court of Baguio City,
which convicted him of rape and acts of lasciviousness.
On January 5, 1995, First Assistant City Prosecutor
Herminio C. Carbonell charged appellant with rape in an
Information2 which reads:
The undersigned 1st Asst. City
Prosecutor hereby accuses RODELIO
BUGAYONG a.k.a. "BOY" of the crime of
RAPE, at the instance, relation and
written complaint of ARLENE CAUAN, a
minor, 11 years of age. Copies of her
statement are hereto attached and
made an integral part of this
INFORMATION, committed as follows:
That sometime before and until October
15, 1994, in the City of Baguio,
Philippines, and within the jurisdiction of
this Honorable Court, the above-named
accused, did then and there wilfully,
unlawfully and feloniously, and by
means of force or intimidation, have
carnal knowledge of the said
complainant, several times, against her
will and consent.
When arraigned on July 10, 1995, 3 appellant, with the
assistance of counsel, entered a plea of not guilty. After
trial in due course, the court a quo rendered the assailed
Decision, the dispositive portion of which we quote
below:
WHEREFORE, premises considered, the
accused RODELIO BUGAYONG is hereby
found GUILTY of the crime of Acts of
Lasciviousness committed on October
15, 1994 and he is hereby sentenced to
suffer an indeterminate penalty of six
(6) months of arresto mayor as
minimum to four (4) years and two (2)
months of prision correccional as
maximum, and of the crime of Rape he
committed in 1993 for which he is
sentenced to suffer the penalty
of reclusion perpetua. 4
Hence, this appeal filed directly before this Court. 5
 The Facts
Common Version of the Prosecution
and the Defense
Adopted by the lower court and the prosecution,
appellant's summation of the facts of the case is
reproduced hereunder: 6
Alberto Cauan and Leticia Yu Cauan got married
on May 14, 1978. Out of this marital union they
begot three (3) children, namely: ALBERT,
HONEYLET and ARLENE[,] the private
complainant herein. The spouses Alberto and
Leticia Cauan separated way back in 1983.
Albert and Arlene stayed with their mother
Leticia while Honeylet stayed with her
grandmother Anita Yu at Slaughter Comp[o]und,
Baguio City. Later, Alberto and Leticia started
living together with another woman and another
man respectively, [with whom each of them]
raised another family . . . . Leticia cohabited
with the accused RODELIO BUGAYONG and had
one (1) child, a minor by the name of
CATHERINE BUGAYONG. For his part, ALBERTO
CAUAN lived in with another woman with whom
he has six (6) children.
In October 1994, Leticia, the accused RODELIO
BUGAYONG, ALBERT and the then 11 year old
ARLENE (who was born on November 19, 1982)
were residing at No. 13 MRR Queen of Peace,
Baguio City. On October 15, 1994 accused
RODELIO BUGAYONG had ARLENE hold his
penis inside the room he share[d] with Leticia,
At that time CATHERINE BUGAYONG who was
six (6) years old was also inside the same room
and her father, the accused was letting her
sleep. Bugayong threatened to maim Arlene if
she [did] not hold his penis. When the penis was
already hard and stiff, he placed it inside the
mouth of Arlene and a white substance came
out from the penis. The young girl CATHERINE
BUGAYONG saw this incident. Arlene testified
that her stepfather had been doing the same act
when she was still in Grade 3 and was nine
years old. She also said that there were
occasions when BUGAYONG played first with his
penis then touched her vagina with his penis
until a white substance [came] out [of] it and
that was the time BUGAYONG would pull back
his penis, or in the words of Arlene "idinidikit at
pag may lumabas saka inilalayo. When asked to
explain what she meant by "idinidikit", Arlene
said that the penis of BUGAYONG partly entered
[her] vagina and she got hurt.
In any event, when LETICIA arrived home that
day, CATHERINE reported to her that her father,
RODELIO BUGAYONG, had Arlene hold his penis
and put it inside the mouth of the former. Leticia
called for RODELIO BUGAYONG and they talked.
While the two (2) were talking, Alberto, the
elder brother of Arlene, called for the latter and
they went to the house of their grandmother
ANITA YU at Slaughter Compound for fear that
something [would] happen. Arlene reported the
incident to her grandmother. Anita Yu told
Arlene that she [would] not allow her to go to
her mother and that she (YU) [would] file a case
against Bugayong.
In the morning of October 27, 1994, Arlene
Cauan accompanied by her father Alberto Cauan
and her aunt Marilyn Yu, Carmelita Yu and Rosie
Yu went to the National Bureau of Investigation
to file a complaint. They were advised by an NBI
agent to go to the hospital to have Arlene
examined by a Medico-legal Officer. Dr.
HUMBELINA HARRIET M. LAZO examined Arlene
and issued a certification stating therein her
findings. The medical findings (EXH. "A") are
hereunder quoted:
CERTIFICATION
TO WHOM THIS MAY CONCERN:
This is to certify that I have personally seen and
examined ARLENE CAUAN, 11 years old, female,
child, a Grade V pupil from Slaughter Compound,
who was allegedly sexually assaulted, . . . by
father Alberto Cauan.
NOI: Alleged Sexual Assault
POI: #13 Queen of Peace Road, Baguio City
TOI: 3:15 P.M.
DOI: 15 October 1994
G/S: Conscious, coherent, ambulatory, afebrile.
Skin: No abrasion, no hematoma.
C/L: Clear breath sounds.
Extremities: No edema.
Perineal Inspection:
Posterior fourchette — not well
coaptated.
Labia majora — with erythema.
Labia minora — with erythema.
Hymen: open with old healed laceration
at 5 o'clock and 8 o'clock position[s].
V[a]gina: Admit one finger with ease.
Laboratory Result:
Sperm Cell Identification: Negative for sperm cell.
Gram Stain: Smear shows moderate gram (+)
cocci appearing singly and in pairs with rare (+)
rods.
Epithelial cells: few.
Pus cells: 5-8.
The following day, October 28, 1994 they went back to the NBI office.
Arlene gave her sworn statement (EXH. "C"). Alberto Cauan also gave
his sworn statement (EXH "E").
Pertinent portions of Arlene's statement given to the NBI read —
 4. Q. Of what nature [is the complaint you are] filing . . .
against your stepfather?
A. The nature of my . . . complaint against my "TATAY"
(RODELIO BUGAYONG) is [that] he raped me several times
ever since I was nine years old and while I was in Grade 3.
7. Q. Were there other instances that your father sexually
molested you?
A. I could no longer remember how many times and
everytime he sexually molested me he would threaten to
hurt me. There were even times that he would force me to
put his penis into my mouth until something sticky would
come out of his penis and inside my mouth. At times he
would play with his penis and when that sticky liquid already
c[a]me out [of] his penis, he would put his penis into my
vagina and force it inside and he [would] put the sticky
liquid inside my vagina. He did this when I was around 10
years old but lately he would only force me to lick and
swallow his penis until the sticky liquid which comes out of
his penis suddenly comes out.
Ruling of the Trial Court
The trial court held that the accused raped the victim in
1993, not in 1994. Notwithstanding the rather
encompassing allegation in the Information that the
crime was committed "before and until October 15,
1994," the trial court ruled that it could legally convict
the accused for the crime committed in 1993. The
primordial consideration in determining the sufficiency of
the averment in the Information as to time is whether
the accused was accorded the opportunity to prepare a
defense. In this case, the trial court observed that he
was not so deprived. Furthermore, it noted that the
Information charged more than one offense, but that
the accused failed to interpose an opposition.
The Issues
In his Brief, appellant raises the following issues:
I. The lower court erred in convicting the
accused-appellant [of] statutory rape that
was proved to have been committed in 1993
under an information alleging that the
offense was committed on or before October
15 of the year 1994.
II. The lower court erred [i]n convicting the
accused [of] statutory rape [on] an
unspecified date in 1993. 7
In fine, he poses the question of whether he may be
convicted of rape committed in 1993, under the present
Information, which accused him of committing the said
crime "before and until October 15, 1994 . . . several
times." In other words, the issue is whether appellant's
conviction for the said act is warranted under the
Information. In resolving this issue, the Court will
determine whether the averment in the Information in
respect to the time of the commission of the crime
sufficiently apprised appellant of the "nature and cause
of the accusation against him." 8
The Court's Ruling
The appeal is devoid of merit.
Main Issue: Sufficiency of the Information
Appellant argues that he cannot be convicted of a crime
committed in 1993 under the Information that accused
him of rape "before or until October 15, 1991." He
insists that the Information "refer[red] to dates shortly
before and until October 15, 1994," but that the trial
court "unnecessarily stretched the meaning of the
phrase . . . to include any date before it." 9 Thus,
appellant claims a violation of his constitutional right to
be informed of the nature and cause of the accusation
against him. He maintains that he was unable to prepare
properly for his defense or to anticipate the evidence to
be controverted. We disagree.
Precise Date Need Not Be Alleged in the
Information
Although the Information alleged that the crime was
committed "before and until October 15, 1994," the trial
court did not err in convicting appellant of rape
committed in 1993. It is doctrinal that the precise time
of the commission of an offense need not be alleged in
the complaint or information, unless time is an essential
element of the crime charged. 10 Section 11, Rule 110 of
the Rules of Court, buttresses this view.
Sec. 11. Time of the commission of the offense .
— It is not necessary to state in the complaint
or information the precise time at which the
offense was committed except when time is a
material ingredient of the offense, but the act
may be alleged to have been committed at any
time as near to the actual date at which the
offense was committed as the information or
complaint will permit.
It bears emphasis that the date is not an essential
element of rape, for the gravamen of the offense is
carnal knowledge of a woman. 11 The time-tested rule is
that "when the 'time' given in the complaint is not of the
essence of the offense, it need not be proven as alleged
and that the complaint will be sustained if the proof
shows that the offense was committed at any time
within the period of the statute of limitations and before
the commencement of the action." 12
Explaining that the specific date or time need not always
appear in the complaint or information, the Court held:
It is true that the complaint must allege a
specific time and place when and where the
offense was committed. The proof, however,
need not correspond to this allegation, unless
 the time and place [are] material and of the
essence of the offense as a necessary ingredient
in its description. The evidence is admissible and
sufficient if it shows that the crime was
committed at any time within the period of the
statute of limitations and before or after the
time stated in the complaint or indictment and
before the action is commenced. 13
In US v. Dichao, 14 the Court also ruled that "the
question [of] whether the allegations of the information
are sufficiently definite as to time and the question
which arises [from] a variance between the allegations
and the proof are different in nature and legal effect,
and are decided on different principles."
Applying the aforecited rule in People v.
Borromeo, 15
the Court elucidated: "[A] difference of one
(1) year or twelve (12) months [is] merely a matter of
form and does not prejudice the rights of the accused. .
. . . The phrase 'on or about' employed in the
information does not require the prosecution to prove
any precise date but may prove any date which is not so
remote as to surprise and prejudice the defendant."
Indeed, the determinative factor in the resolution of the
question involving a variance between allegation and
proof in respect of the date of the crime is the element
of surprise on the part of the accused and his corollary
inability to defend himself properly. The records of this
case belie appellant's claim of surprise.
No Surprise on the
Part of the Accused
The text of the Information filed in the court below
clearly alleged that appellant committed rape "before or
until October 15, 1994. . . . several times." If vagueness
afflicted the aforementioned text of the Information, it
was cured by the victim's Sworn Statement, which was
expressly made an integral part of the Information. The
victim categorically alleged that she had been raped by
appellant in 1993 when she was in grade three, as the
pertinent portions of the Sworn Statement indicate:
04. Q Of what nature [is the complaint you are] filing . . .
against your stepfather?
A The nature of my filing a complaint against my "TATAY" is
[that] he raped me several times ever since I was nine years
old and while I was in Grade 3.
05. Q Could your please narrate to me how this happened?
A Ever since I was [in] Grade 3, my stepfather always forced
me to play with his penis and whenever I refused, he would
threaten to hurt me by saying "KUNG HINDI KA PAPAYAG,
LULUMPUHIN KITA", so I played with his penis until it was
fully erect, then he [would] tell me to get out of their room.
06. Q Was your mother ever around, when he forced you to
play with his penis?
A No sir, he would always make it a point that my mother
was out of the house when be molested me.
07. Q [Were] there other instances that your father sexually
molested you?
A I could no longer remember how many times sir, the only
thing that I could remember is he did it to me many times
and ever[y]time he sexually molested me he would threaten
to hurt me. There were even times that he would force me
to put his penis into my mouth until something sticky would
come out of his penis and inside my mouth. At times he
would play with his penis and when that sticky liquid [would]
already come out [of] his penis, he would put his penis into
my vagina, and force it inside and he [would] put the sticky
liquid inside my vagina[;] he did this when I was around 10
years old but lately he would only force me to lick and
swallow his penis until the sticky liquid which comes out of
his penis suddenly comes out.
08. Q Did he ever repeat the forcing of his penis into your
vagina?
A Many times sir, he would always pin me down [o]n the
bed and force his penis in[to] my vagina.
09. Q When was the last time he molested you?
A The last time he sexually molested me was when my
younger sister, CATHERINE BUGAYONG caught us.
10. Q When was this?
A Last October 15, 1994 sir, my sister CATHERINE caught
me while my stepfather was forcing me to swallow his penis
and letting me play with it. My sister CATHERINE told my
mother about the incident when she arrive[d], then my
mother talked to me and asked me if it was true[;] at first I
denied it because my "TATAY" might hurt me, but after a
while confessed to her so she talked to my stepfather and
they had a fight. When my relatives learned of the incident,
they fetched me at home and brought me to my
grandmother's house at Slaughter House Compound."
(Emphasis supplied.)
In effect, the Sworn Statement substantiated the
averments in the Information. Hence, appellant was
sufficiently apprised that the "several" instances of rape
committed "before and until October 15, 1994," which
were asserted in the body of the Information, included
the sexual assault on the victim in 1993 as alleged in the
said Statement.
Furthermore, appellant could not have been oblivious to
the victim's Sworn Statement, for he requested and was
given an opportunity to rebut the same in his Motion for
Reinvestigation. Below, we repeat with approval the trial
court's astute refutation of appellant's feigned
ignorance:
Besides, it can not be said that the accused was
surprised and deprived of the chance to prepare
for trial because of the allegations of several
incidents of rape he committed "sometime
before and until October 15, 1994." The records
will show that before he was arraigned under
the present information the accused moved for
a reconsideration of the resolution of the City
Prosecutor of Baguio finding probable cause
against him and asked for a re-investigation of
the case. The Court granted his motion and
ordered the City Prosecutor to conduct a re-
investigation of the case. The accused was given
the chance to rebut the sworn statement of the
private complainant Arlene Cauan contained in
 Exhibit "C". And in this sworn statement, Arlene
narrated what happened not only on October
15, 1994; she also related other incidents
occurring before the said date, more specifically
the one that took place in 1993 when she was in
Grade 3. The accused, therefore, was fully
aware, or at least made aware, that he would be
charged with rape committed several times
before and until October 15, 1994. 16
In arguing that "before and until October 15, 1994"
could only mean "on October 15, 1994 or within a
reasonable time before such date" 17 and not 1993,
appellant asks rhetorically: "What if the prosecution
proved that the rape was committed in 1985?" 18 The
question, indeed, is academic. The Sworn Statement
alleged and the appellant is here convicted of a rape
committed in 1993, not 1985. There is basis to hold him
liable for the rape committed in 1993, but none for a
putative crime committed in 1985.
Waiver of the Right to Object
to the Duplicitous Information
It will be noted that appellant was charged with rape
committed "before and until October 15, 1994 . . .
several times." Said acts are alleged in only one
Information which as a general rule, is defective for
charging more than one offense. 19
Sec. 1, Rule 117 of the Rules of Court, states that the
accused may move to quash the information "at any
time before entering his plea." However, appellant
failed, within the prescribed period, to file such motion
on the ground of duplicity. He is thus deemed to have
waived the defect in the Information. It is axiomatic that
"when the accused fails, before arraignment, to move
for the quashal of such information and goes to trial
thereunder, he thereby waives the objection, and may
be found guilty of as many offenses as those charged in
the information and proved during the trial." 20
To recapitulate, appellant cannot be said to have been
deprived of his constitutional right to be informed of the
accusation against him. Despite the duplicitous nature of
the Information, he did not object to such defect.
Moreover, he was given the chance to defend himself in
court and to cross-examine the complainant. There was
no deprivation of due process here.
Sufficiency of Evidence
In his Brief, appellant did not challenge the sufficiency of
the evidence preferred to show that he committed rape
in 1993. Notwithstanding such failure, the Court
rigorously examined the records and arrived upon the
conclusion that his guilt had been established beyond
reasonable doubt. The victim's clear, categorical and
straightforward testimony indubitably demonstrated the
culpability of appellant for the dastardly acts committed
before and until October 15, 1994, viz.:
Q. Do you know Arlene, will you please tell the Court if in
the month of October Rodelio Bugayong did something to
you?
A. Yes, sir.
Q. What did he do to you?
A. He had his penis held by me, sir.
Q. Where did this happen?
A. At Queen of Peace, sir.
Q. In your house?
A. Yes, sir.
Q. Who were the persons there at the time when Bugayong
told you to hold his penis, in your house at the time?
A. I was with my younger stepsister.
PROS. DIZON: Q. How old is this younger sister?
A. Six (6) years old.
Q. In 1994, how old was she?
A. Five (5).
Q. So you mean to say younger stepsister, this stepsister is
the daughter of Bugayong?
A. Yes, sir.
Q. I see! Now, what did you do when Bugayong told you to
hold his penis?
A. I just held it.
Q. Why did you hold it?
A. Because I was afraid of him.
Q. Why, what did he say, if any, to make you afraid of him?
A. He told me that "lulumpuhin kita" (I will maim you).
Q. In what place of the house did this incident happen?
A. In their room with my mother.
Q. Who were in the room at the time aside from you and
Rodelio?
A. My stepsister.
Q. Your stepsister [was] inside the room at the time or she
was outside the room? A. She was inside the room
but my stepfather was letting her sleep.
Q. Was she asleep at that time?
A. Yes, sir.
Q. Now, so did you hold the penis of Bugayong the accused?
A. Yes, sir.
Q. What else did he tell you to do, if any?
A. He placed his penis in my mouth, sir.
Q. Was the penis hard at that time or stiff?
A. Yes, sir.
Q. And what did he do when his penis was already inside
your mouth?
A. Whenever his penis [was] . . . placed inside my mouth I
[would] go out to drink water because I [would feel] like
vomitting, sir.
PROS. DIZON: Q. You say whenever[;] you mean to say that
was not the only time he did that to you?
A. No, sir.
Q. How many times did he do that to you?
A. When I was still in Grade 3.
Q. And how young were you when you were in Grade 3?
ATTY. ESTRADA: At this point in time, Your Honor, we now
object to this line of questioning because this was never
stated in the information.
PROS. DIZON: This is preliminary, Your Honor.
ATTY. ESTRADA: Because what is being elicited now is that
incident when she was in Grade 3.
PROS. DIZON: We have to consider the tender age of the
accused.
COURT: I will allow the prosecution to propound additional
questions.
ATTY. ESTRADA: We submit, Your Honor.
PROS. DIZON: Q. How old were you when you were in
Grade 3?
A. Nine (9) years old.
Q. Now, why did you feel like vomitting whenever he did
that thing to you?
A. Because whenever he [put] his penis inside my mouth it
seem[ed] like pus [was] coming out [of] his penis.
Q. What [was] the color, if you know?
A. White.
Q. Now, aside from all those things, do you remember if in
the month of October, the same month, 1994, he did
anything else to you aside from what you have relayed
before this Court?
A. Sometimes he [put] his penis in my vagina and when
something sticky . . .
COURT: Agree on the translation.
ATTY. ESTRADA: We object to that translation.
INTERPRETER: Whenever the penis of Rodelio Bugayong
touche[d] my vagina something . . .
ATTY. ESTRADA: May we just have the word "idinidikit" . . .
COURT: All right! The word "dikit" will remain and [the]
translation — touch.
INTERPRETER: Whenever the penis of Rodelio touche[d] my
vagina something white [would come] out and he [would
take] his penis farther from me.
PROS. DIZON: Before [d]oing that he [would] first [play]
with his penis and then the moment . . .
COURT: You agree first on the translation.
PROS. DIZON: There were occasions when he brought out
his penis and touch[ed]
. . . my vagina [with it] but before doing so he played with
his penis until the sticky white substance . . . c[a]me out and
that [was] the time he touched my vagina, the penis
touched my vagina. I think that is the answer. I do not know
if counsel is agreeable.
COURT: Will you please read back the translation?
Stenographer reading back the answer, as follows:
There were occasions when he brought out his penis and
touch[ed]
. . . my vagina [with it] but before doing so he playe[d] with
his penis first until the sticky white substance . . . came out
and that [was] the time the penis touched my vagina.
COURT: If I remember correctly the testimony of the victim
and Tagalog was that "idinidikit at pag may lumabas saka
inilalayo".
PROS. DIZON: Okay, we submit.
INTERPRETER: Rodelio Bugayong touche[d] my vagina with
his penis until such time that a sticky substance [came] out
and that [was] the time that he pulled back.
COURT: Official translation, Mrs. Lockey?
Stenographer reading back the translation, as follows:
Rodelio Bugayong touche[d] my vagina with his penis until
such time that a sticky substance [came] out and that [was]
the time that he pull[ed] back.
ATTY. ESTRADA: I think the interpretation is not accurate.
PROS. DIZON: May we just be allowed to ask the witness?
Q. Aside from putting his penis in[to] your mouth, what
other things did he do to you in the month of October and
previous to that, if any?
COURT: Defense counsel please assist the interpreter.
INTERPRETER: The penis of Rodelio touche[d] my vagina
and sometimes he . . .
PROS. DIZON: We really have to ask the assistance of . . .
COURT: Again!
INTERPRETER: A Sometimes his penis touche[d] my vagina
but before doing that he played first with his penis until a
white substance [came] out of his penis and after that his
penis touche[d] my vagina.
PROS. DIZON: Q. I see! How may times did he do that to
you?
A. Maybe five (5) times or ten (10) times, sir.
Q. During th[o]se times he did that to you[,] were there
people in the house?
A. None, sir.
PROS. DIZON: Q. And in those five (5) or ten (10) times,
where did this happen, where did he do that to you, in what
place in the house?
A. In our house, sir.
Q. In what particular place in the house?
A. In their room, sir.
Q. The room of Bugayong and your mother?
A. Yes, sir.
Q. Why did you not object?
A. Because I was afraid of what he told me that . . .
"lulumpuhin niya ako".
Q. Now, every time he did that thing to you, that is the
touching of . . . your vagina [with his penis], what did you
feel, if any? Do you not feel any pain?
A. I got hurt, sir.
Q. Now, you remember the last time he had his penis touch
your vagina?
A. I could not remember, sir.
Q. Now, you said that his penis touched your vagina. You
mean to say the penis [—] we will withdraw that in the
meantime. We will rephrase it rather.
Q. You said that his penis touched your vagina. You said
"idinikit". Will you please tell the Court what do you mean by
"idinikit" or touched your vagina?
A. He had his penis partly enter my vagina that is why I got
hurt, sir. 21
The foregoing shows that appellant sexually assaulted
complainant in 1993 when she was 10 years old. Thus,
the trial court correctly convicted him of statutory rape
under Article 335 (3) of the Revised Penal Code.
Moreover, appellant is also guilty of acts of
lasciviousness committed on October 15, 1995.
The trial court correctly awarded P50,000 as
indemnity ex delicto, an amount which is automatically
granted to the offended party without need of further
evidence other than the fact of the commission of
rape. 22
Consistent with recent jurisprudence, appellant should
also be ordered to pay the victim the additional amount
of P50,000 as moral damages. In People v.
Prades, 23 the Court resolved that "moral damages may
additionally be awarded to the victim in the criminal
proceeding, in such amount as the Court deems just,
without the need for pleading or proof of the basis
thereof as has heretofore been the practice."
Republic Act 7659, which amended the Revised Penal
Code, prescribes, among others, the death penalty
where the rape victim is under is years of age and the
offender is the common-law spouse of her mother. The
amendatory law, however, cannot be applied in this
case, because there is no showing that the crime was
committed after the effectivity of the said law.
WHEREFORE, the appeal is hereby DENIED and the
assailed Decision is AFFIRMED, with the MODIFICATION
that Appellant Rodelio Bugayong is ordered to pay
Complainant Arlene Cauan P50,000 as indemnity and the
additional amount of P50,000 as moral damages, or a
total of P100,000. Costs against the appellant.
SO ORDERED.

(c) CASES WHERE ALLOWED
 ART 2219-2220 NCC
G.R. No. L-18287 March 30, 1963
TRINIDAD J. FRANCISCO, plaintiff-appellee, vs.
GOVERNMENT SERVICE INSURANCE
SYSTEM, defendant-appellant.
G.R. No. L-18155 March 30, 1963
TRINIDAD J. FRANCISCO, plaintiff-appellant, vs.
GOVERNMENT SERVICE INSURANCE
SYSTEM, defendant-appellee.
Appeal by the Government Service Insurance System
from the decision of the Court of First Instance of Rizal
(Hon. Angel H. Mojica, presiding), in its Civil Case No.
2088-P, entitled "Trinidad J. Francisco, plaintiff, vs.
Government Service Insurance System, defendant", the
dispositive part of which reads as follows:
WHEREFORE, judgment is hereby rendered: (a)
Declaring null and void the consolidation in the
name of the defendant, Government Service
Insurance System, of the title of the VIC-MARI
Compound; said title shall be restored to the
plaintiff; and all payments made by the plaintiff,
after her offer had been accepted by the
defendant, must be credited as amortizations on
her loan; and (b) Ordering the defendant to
abide by the terms of the contract created by
plaintiff's offer and it's unconditional acceptance,
with costs against the defendant.
The plaintiff, Trinidad J. Francisco, likewise appealed
separately (L-18155), because the trial court did not
award the P535,000.00 damages and attorney's fees she
claimed. Both appeals are, therefore, jointly treated in
this decision.
The following facts are admitted by the parties: On 10
October 1956, the plaintiff, Trinidad J. Francisco, in
consideration of a loan in the amount of P400,000.00,
out of which the sum of P336,100.00 was released to
her, mortgaged in favor of the defendant, Government
Service Insurance System (hereinafter referred to as the
System) a parcel of land containing an area of 18,232
square meters, with twenty-one (21) bungalows, known
as Vic-Mari Compound, located at Baesa, Quezon City,
payable within ten (10) years in monthly installments of
P3,902.41, and with interest of 7% per annum
compounded monthly.
On 6 January 1959, the System extrajudicially foreclosed
the mortgage on the ground that up to that date the
plaintiff-mortgagor was in arrears on her monthly
installments in the amount of P52,000.00. Payments
made by the plaintiff at the time of foreclosure
amounted to P130,000.00. The System itself was the
buyer of the property in the foreclosure sale.
On 20 February 1959, the plaintiff's father, Atty. Vicente
J. Francisco, sent a letter to the general manager of the
defendant corporation, Mr. Rodolfo P. Andal, the
material portion of which recited as follows:
Yesterday, I was finally able to collect what the
Government owed me and I now propose to pay said
amount of P30,000 to the GSIS if it would agree that
after such payment the foreclosure of my daughter's
mortgage would be set aside. I am aware that the
amount of P30,000 which I offer to pay will not cover
the total arrearage of P52,000 but as regards the
balance, I propose this arrangement: for the GSIS to
take over the administration of the mortgaged
property and to collect the monthly installments,
amounting to about P5,000, due on the unpaid
purchase price of more than 31 lots and houses
therein and the monthly installments collected shall
be applied to the payment of Miss Francisco's
arrearage until the same is fully covered. It is
requested, however, that from the amount of the
monthly installments collected, the sum of P350.00 be
deducted for necessary expenses, such as to pay the
security guard, the street-caretaker, the Meralco Bill
for the street lights and sundry items.
It will be noted that the collectible income each
month from the mortgaged property, which as I said
consists of installments amounting to about P5,000, is
more than enough to cover the monthly amortization
on Miss Francisco's loan. Indeed, had she not
encountered difficulties, due to unforeseen
circumstances, in collecting the said installments, she
could have paid the amortizations as they fell due and
there would have been really no need for the GSIS to
resort to foreclosure.
The proposed administration by the GSIS of the
mortgaged property will continue even after Miss
Francisco's account shall have been kept up to date.
However, once the arrears shall have been paid,
whatever amount of the monthly installments
collected in excess of the amortization due on the
loan will be turned over to Miss Francisco.
I make the foregoing proposal to show Francisco's
sincere desire to work out any fair arrangement for
the settlement of her obligation. I trust that the GSIS,
under the broadminded policies of your
administration, would give it serious consideration.
Sincerely,.
s/ Vicente J. Francisco
t/ VICENTE J. FRANCISCO
On the same date, 20 February 1959, Atty. Francisco
received the following telegram:.
VICENTE FRANCISCO
SAMANILLO BLDG. ESCOLTA.
GSIS BOARD APPROVED YOUR REQUEST RE REDEMPTION OF
FORECLOSED PROPERTY OF YOUR DAUGHTER
ANDAL"
On 28 February 1959, Atty. Francisco remitted to the System,
through Andal, a check for P30,000.00, with an accompanying
letter, which reads:
I am sending you herewith BPI Check No. B-299484
for Thirty Thousand Pesos (P30,000.00) in accordance with my
letter of February 20th and your reply thereto of the same
date, which reads:
GSIS BOARD APPROVED YOUR REQUEST RE
REDEMPTION OF FORECLOSED PROPERTY OF YOUR
DAUGHTER
xxx xxx xxx
The defendant received the amount of P30,000.00, and
issued therefor its official receipt No. 1209874, dated 4
March 1959. It did not, however, take over the
administration of the compound. In the meantime, the
plaintiff received the monthly payments of some of the
occupants thereat; then on 4 March 1960, she remitted,
through her father, the amount of P44,121.29,
representing the total monthly installments that she
received from the occupants for the period from March
to December 1959 and January to February 1960, minus
expenses and real estate taxes. The defendant also
received this amount, and issued the corresponding
official receipt.
Remittances, all accompanied by letters, corresponding
to the months of March, April, May, and June, 1960 and
totalling P24,604.81 were also sent by the plaintiff to the
defendant from time to time, all of which were received
and duly receipted for.
Then the System sent three (3) letters, one dated 29
January 1960, which was signed by its assistant general
manager, and the other two letters, dated 19 and 26
February 1960, respectively, which were signed by
Andal, asking the plaintiff for a proposal for the payment
of her indebtedness, since according to the System the
one-year period for redemption had expired.
In reply, Atty. Francisco sent a letter, dated 11 March
1960, protesting against the System's request for
proposal of payment and inviting its attention to the
concluded contract generated by his offer of 20 February
1959, and its acceptance by telegram of the same date,
the compliance of the terms of the offer already
commenced by the plaintiff, and the misapplication by
the System of the remittances she had made, and
requesting the proper corrections.
By letter, dated 31 May 1960, the defendant countered
the preceding protest that, by all means, the plaintiff
should pay attorney's fees of P35,644.14, publication
expenses, filing fee of P301.00, and surcharge of P23.64
for the foreclosure work done; that the telegram should
be disregarded in view of its failure to express the
contents of the board resolution due to the error of its
minor employees in couching the correct wording of the
telegram. A copy of the excerpts of the resolution of the
Board of Directors (No. 380, February 20, 1959) was
attached to the letter, showing the approval of
Francisco's offer —
... subject to the condition that Mr. Vicente J.
Francisco shall pay all expenses incurred by the
GSIS in the foreclosure of the mortgage.
Inasmuch as, according to the defendant, the
remittances previously made by Atty. Francisco were
allegedly not sufficient to pay off her daughter's arrears,
including attorney's fees incurred by the defendant in
foreclosing the mortgage, and the one-year period for
redemption has expired, said defendant, on 5 July 1960,
consolidated the title to the compound in its name, and
gave notice thereof to the plaintiff on 26 July 1960 and
to each occupant of the compound.
Hence, the plaintiff instituted the present suit, for
specific performance and damages. The defendant
answered, pleading that the binding acceptance of
Francisco's offer was the resolution of the Board, and
that Andal's telegram, being erroneous, should be
disregarded. After trial, the court below found that the
offer of Atty. Francisco, dated 20 February 1959, made
on behalf of his daughter, had been unqualifiedly
accepted, and was binding, and rendered judgment as
noted at the start of this opinion.
The defendant-appellant corporation assigns six (6)
errors allegedly committed by the lower court, all of
which, however, are resolvable on the single issue as to
whether or not the telegram generated a contract that is
valid and binding upon the parties.
Wherefore, the parties respectfully pray that the
foregoing stipulation of facts be admitted and approved
by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered
by this stipulation of facts.
1äw phï1.ñët
We find no reason for altering the conclusion reached by
the court below that the offer of compromise made by
plaintiff in the letter, Exhibit "A", had been validly
accepted, and was binding on the defendant. The terms
of the offer were clear, and over the signature of
defendant's general manager, Rodolfo Andal, plaintiff
was informed telegraphically that her proposal had been
accepted. There was nothing in the telegram that hinted
at any anomaly, or gave ground to suspect its veracity,
and the plaintiff, therefore, can not be blamed for
relying upon it. There is no denying that the telegram
was within Andal's apparent authority, but the defense is
that he did not sign it, but that it was sent by the Board
Secretary in his name and without his knowledge.
Assuming this to be true, how was appellee to know it?
Corporate transactions would speedily come to a
standstill were every person dealing with a corporation
held duty-bound to disbelieve every act of its responsible
officers, no matter how regular they should appear on
their face. This Court has observed in Ramirez vs.
Orientalist Co., 38 Phil. 634, 654-655, that —
In passing upon the liability of a corporation in
cases of this kind it is always well to keep in
mind the situation as it presents itself to the
third party with whom the contract is made.
Naturally he can have little or no information as
to what occurs in corporate meetings; and he
must necessarily rely upon the external
manifestations of corporate consent. The
integrity of commercial transactions can only be
maintained by holding the corporation strictly to
the liability fixed upon it by its agents in
accordance with law; and we would be sorry to
announce a doctrine which would permit the
property of a man in the city of Paris to be
whisked out of his hands and carried into a
remote quarter of the earth without recourse
against the corporation whose name and
authority had been used in the manner disclosed
in this case. As already observed, it is familiar
doctrine that if a corporation knowingly permits
one of its officers, or any other agent, to do acts
within the scope of an apparent authority, and
thus holds him out to the public as possessing
power to do those acts, the corporation will, as
against any one who has in good faith dealt with
the corporation through such agent, be
estopped from denying his authority; and where
it is said "if the corporation permits" this means
the same as "if the thing is permitted by the
directing power of the corporation."
It has also been decided that —
A very large part of the business of the country
is carried on by corporations. It certainly is not
the practice of persons dealing with officers or
agents who assume to act for such entities to
insist on being shown the resolution of the
board of directors authorizing the particular
officer or agent to transact the particular
business which he assumes to conduct. A
person who knows that the officer or agent of
the corporation habitually transacts certain kinds
of business for such corporation under
circumstances which necessarily show
knowledge on the part of those charged with
the conduct of the corporate business assumes,
as he has the right to assume, that such agent
or officer is acting within the scope of his
authority. (Curtis Land & Loan Co. vs. Interior
Land Co., 137 Wis. 341, 118 N.W. 853, 129 Am.
St. Rep. 1068; as cited in 2 Fletcher's
Encyclopedia, Priv. Corp. 263, perm. Ed.)
Indeed, it is well-settled that —
If a private corporation intentionally or
negligently clothes its officers or agents with
apparent power to perform acts for it, the
corporation will be estopped to deny that such
apparent authority is real, as to innocent third
persons dealing in good faith with such officers
or agents. (2 Fletcher's Encyclopedia, Priv. Corp.
255, Perm. Ed.)
Hence, even if it were the board secretary who sent the
telegram, the corporation could not evade the binding
effect produced by the telegram..
The defendant-appellant does not disown the telegram,
and even asserts that it came from its offices, as may be
gleaned from the letter, dated 31 May 1960, to Atty.
Francisco, and signed "R. P. Andal, general manager by
Leovigildo Monasterial, legal counsel", wherein these
phrases occur: "the telegram sent ... by this office" and
"the telegram we sent your" (emphasis supplied), but it
alleges mistake in couching the correct wording. This
alleged mistake cannot be taken seriously, because
while the telegram is dated 20 February 1959, the
defendant informed Atty. Francisco of the alleged
mistake only on 31 May 1960, and all the while it
accepted the various other remittances, starting on 28
February 1959, sent by the plaintiff to it in compliance
with her performance of her part of the new contract.
The inequity of permitting the System to deny its
acceptance become more patent when account is taken
of the fact that in remitting the payment of P30,000
advanced by her father, plaintiff's letter to Mr. Andal
quoted verbatim the telegram of acceptance. This was in
itself notice to the corporation of the terms of the
allegedly unauthorized telegram, for as Ballentine says:
Knowledge of facts acquired or possessed by an
officer or agent of a corporation in the course of
his employment, and in relation to matters
within the scope of his authority, is notice to the
corporation, whether he communicates such
knowledge or not. (Ballentine, Law on
Corporations, section 112.)
since a corporation cannot see, or know, anything
except through its officers.
Yet, notwithstanding this notice, the defendant System
pocketed the amount, and kept silent about the
telegram not being in accordance with the true facts, as
it now alleges. This silence, taken together with the
unconditional acceptance of three other subsequent
remittances from plaintiff, constitutes in itself a binding
ratification of the original agreement (Civil Code, Art.
1393).
ART. 1393. Ratification may be effected
expressly or tacitly. It is understood that there is
a tacit ratification if, with knowledge of the
reason which renders the contract voidable and
such reason having ceased, the person who has
a right to invoke it should execute an act which
necessarily implies an intention to waive his
right.
Nowhere else do the circumstances call more insistently
for the application of the equitable maxim that between
two innocent parties, the one who made it possible for
the wrong to be done should be the one to bear the
resulting loss..
The defendant's assertion that the telegram came from
it but that it was incorrectly worded renders unnecessary
to resolve the other point on controversy as to whether
the said telegram constitutes an actionable document..
Since the terms offered by the plaintiff in the letter of 20
February 1959 (Exhibit "A") provided for the setting
aside of the foreclosure effected by the defendant
System, the acceptance of the offer left the account of
plaintiff in the same condition as if no foreclosure had
taken place. It follows, as the lower court has correctly
held, that the right of the System to collect attorneys'
fees equivalent to 10% of the due (P35,694.14) and the
expenses and charges of P3,300.00 may no longer be
enforced, since by the express terms of the mortgage
contract, these sums were collectible only "in the event
of foreclosure."
The court a quo also called attention to the
unconscionability of defendant's charging the attorney's
fees, totalling over P35,000.00; and this point appears
well-taken, considering that the foreclosure was merely
extra-judicial, and the attorneys' work was limited to
requiring the sheriff to effectuate the foreclosure.
However, in view of the parties' agreement to set the
same aside, with the consequential elimination of such
incidental charges, the matter of unreasonableness of
the counsel fees need not be labored further.
Turning now to the plaintiff's separate appeal (Case G.R.
No. L-18155): Her prayer for an award of actual or
compensatory damages for P83,333.33 is predicated on
her alleged unrealized profits due to her inability to sell
the compound for the price of P750,000.00 offered by
one Vicente Alunan, which sale was allegedly blocked
because the System consolidated the title to the
property in its name. Plaintiff reckons the amount of
P83,333.33 by placing the actual value of the property
at P666,666.67, a figure arrived at by assuming that the
System's loan of P400,000.00 constitutes 60% of the
actual value of the security. The court a quo correctly
refused to award such actual or compensatory damages
because it could not determine with reasonable certainty
the difference between the offered price and the actual
value of the property, for lack of competent evidence.
Without proof we cannot assume, or take judicial notice,
as suggested by the plaintiff, that the practice of lending
institutions in the country is to give out as loan 60% of
the actual value of the collateral. Nor should we lose
sight of the fact that the price offered by Alunan was
payable in installments covering five years, so that it
may not actually represent true market values.
Nor was there error in the appealed decision in denying
moral damages, not only on account of the plaintiff's
failure to take the witness stand and testify to her social
humiliation, wounded feelings, anxiety, etc., as the
decision holds, but primarily because a breach of
contract like that of defendant, not being malicious or
fraudulent, does not warrant the award of moral
damages under Article 2220 of the Civil Code (Ventanilla
vs. Centeno, L-14333, 28 Jan. 1961; Fores vs. Miranda,
L-12163, 4 March 1959).
There is no basis for awarding exemplary damages
either, because this species of damages is only allowed
in addition to moral, temperate, liquidated, or
compensatory damages, none of which have been
allowed in this case, for reasons herein before discussed
(Art. 2234, Civil Code; Velayo vs. Shell Co. of P.I., L-
7817, Res. July 30, 1957; Singson, et al. vs. Aragon and
Lorza, L-5164, Jan. 27, 1953, 49 O.G. No. 2, 515).
As to attorneys' fees, we agree with the trial court's
stand that in view of the absence of gross and evident
bad faith in defendant's refusal to satisfy the plaintiff's
claim, and there being none of the other grounds
enumerated in Article 2208 of the Civil Code, such
absence precludes a recovery. The award of attorneys'
fees is essentially discretionary in the trial court, and no
abuse of discretion has been shown.
FOR THE FOREGOING REASONS, the appealed decision
is hereby affirmed, with costs against the defendant
Government Service Insurance System, in G.R. No.L-
18287.
[G.R. No. 130030. June 25, 1999]
EXPERTRAVEL & TOURS, INC., petitioner, vs. THE
HON. COURT OF APPEALS and RICARDO
LO, respondents.
Petitioner, Expertravel and Tours, Inc., seeks in the
instant petition for review on certiorari a modification of
the decision, dated 20 March 1997, of the Court of
Appeals affirming in toto the 07th November 1994
judgment of the Regional Trial Court (Branch 5) of
Manila, the dispositive portion of which reads:
"WHEREFORE, in view of all the foregoing, judgment is rendered
declaring the instant suit DISMISSED, and hereby orders the plaintiff
to pay defendant Ricardo Lo moral damages in the amount of
P30,000.00; attorney's fees in the amount of P10,000.00, and to pay
the costs of the suit.
"No pronouncement as to other damages for lack of evidence to
warrant the same."[1]
The factual and case settings of the controversy are
culled from the pleadings on record and the assailed
decision of the appellate court and that of the court a
quo.
On 07 October 1987, Expertravel & Tours, Inc.,
("Expertravel"), a domestic corporation engaged in the
travel agency business, issued to private respondent
Ricardo Lo four round-trip plane tickets for Hongkong,
together with hotel accommodations and transfers, for a
total cost of P39,677.20.Alleging that Lo had failed to
pay the amount due, Expertravel caused several
demands to be made. Since the demands were ignored
by Lo, Expertravel filed a court complaint for recovery of
the amount claimed plus damages.
Respondent Lo explained, in his answer, that his account
with Expertravel had already been fully paid. The
outstanding account was remitted to Expertravel
through its then Chairperson, Ms. Ma. Rocio de Vega,
who was theretofore authorized to deal with the clients
of Expertravel. The payment was evidenced by a Monte
de Piedad Check No. 291559, dated 06 October 1987,
for P42,175.20 for which Ms. de Vega, in turn, issued
City Trust Check No. 417920 in favor of Expertravel for
the amount of P50,000.00, with the notation "placement
advance for Ricardo Lo, etc." Per its own invoice,
Expertravel received the sum on 10 October 1987.
The trial court, affirmed by the appellate court, held that
the payment made by Lo was valid and binding on
petitioner Expertravel. Even on the assumption that Ms.
de Vega had not been specifically authorized by
Expertravel, both courts said, the fact that the amount
"delivered to the latter remain(ed) in its possession up
to the present, mean(t) that the amount redounded to
the benefit of petitioner Expertravel, in view of the
second paragraph of Article 1241 of the Civil Code to the
effect that payment made to a third person shall also be
valid in so far as it has redounded to the benefit of the
reditor.
In this recourse, petitioner confines itself to the
following related legal issues; viz:
"I. Can moral damages be recovered in a clearly
unfounded suit?
"II. Can moral damages be awarded for negligence or
quasi-delict that did not result to physical injury to the
offended party?"[2]
There is merit in the petition.
Moral damages are not punitive in nature but are
designed to compensate[3] and alleviate in some way
the physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury unjustly
caused to a person. Although incapable of pecuniary
computation, moral damages, nevertheless, must
somehow be proportional to and in approximation of the
suffering inflicted.[4]Such damages, to be recoverable,
must be the proximate result of a wrongful act or
omission the factual basis for which is satisfactorily
established by the aggrieved party.[5] An award of
moral damages would require certain conditions to be
met; to wit: (1) First, there must be an injury, whether
physical, mental or psychological, clearly sustained by
the claimant; (2) second, there must be a culpable act
or omission factually established; (3) third, the wrongful
act or omission of the defendant is the proximate cause
of the injury sustained by the claimant; and (4) fourth,
the award of damages is predicated on any of the cases
stated in Article 2219.[6] Under the provisions of this
law, in culpa contractual or breach of contract, moral
damages may be recovered when the defendant acted
in bad faith or was guilty of gross negligence
(amounting to bad faith) or in wanton disregard of his
contractual obligation and, exceptionally, when the act
of breach of contract itself is constitutive of tort resulting
in physical injuries.[7] By special rule in Article 1764, in
relation to Article 2206, of the Civil Code, moral
damages may also be awarded in case the death of a
passenger results from a breach of carriage.In culpa
aquiliana, or quasi-delict, (a) when an act or omission
causes physical injuries, or (b) where the defendant is
guilty of intentional tort,[8] moral damages may aptly be
recovered. This rule also applies, as aforestated, to
contracts when breached by tort. In culpa criminal,
moral damages could be lawfully due when the accused
is found guilty of physical injuries, lascivious acts,
adultery or concubinage, illegal or arbitrary detention,
illegal arrest, illegal search, or defamation. Malicious
prosecution can also give rise to a claim for moral
damages. The term "analogous cases," referred to in
Article 2219, following the ejusdem generis rule, must
be held similar to those expressly enumerated by the
law.[9]
Although the institution of a clearly unfounded civil suit
can at times be a legal justification for an award of
attorney's fees,[10] such filing, however, has almost
invariably been held not to be a ground for an award of
moral damages.[11] The rationale for the rule is that the
law could not have meant to impose a penalty on the
right to litigate. The anguish suffered by a person for
having been made a defendant in a civil suit would be
no different from the usual worry and anxiety suffered
by anyone who is haled to court, a situation that cannot
by itself be a cogent reason for the award of moral
damages.[12]If the rule were otherwise, then moral
damages must every time be awarded in favor of the
prevailing defendant against an unsuccessful
plaintiff.[13]
The Court confirms, once again, the foregoing rules.
WHEREFORE, the petition is GRANTED and the award of
moral damages to respondent Ricardo Lo under the
assailed decision is DELETED. In its other aspects, the
appealed decision shall remain undisturbed. No costs.
SO ORDERED.
(d) UNFOUDED SUITS
[G.R. No. 113558. April 18, 1997]
EDITHA M. MIJARES and GLICERIO T. MIJARES,
petitioners, vs. COURT OF APPEALS and METRO
DRUG, INC., respondents.
This petition for review on certiorari seeks the
reversal of (1) the August 31, 1992 Decision[1] of the
Court of Appeals which set aside the decision of the
Regional Trial Court of Manila, Branch 46,[2] and (2) the
January 10, 1994 Resolution of the Court of Appeals
denying the Motion for Reconsideration of its decision.
In its Complaint dated May 2, 1988 filed before the
Manila Regional Trial Court, herein private respondent,
Metro Drug, Inc., alleged that herein petitioners,
spouses Editha Mijares and Glicerio T. Mijares, while
doing business under the style "Aklan Drug," purchased
and received from Metro Drug various products the total
value of which amounted to P32,034.42.[3] Despite
Metro Drug's repeated demands however, petitioners
have failed and have refused to pay said
amount.[4] Metro Drug thus prayed that the Regional
Trial Court render judgment:
(a) Ordering the defendants to pay, jointly and severally, the
plaintiff the sum of P32,034.42 with interest thereon of 1% a
month from February, 1986 until fully paid;
(b) Ordering the defendants to pay, jointly and severally, the
plaintiff the sum equivalent to 25% of the amount claimed in
this suit as and for attorney's fees;
(c) Ordering the defendants to pay, jointly and severally, the
costs of this suit.[5]
In their "Answer With Compulsory Counterclaim,"
petitioners qualified Metro Drug's allegation that they
were doing business under the style "Aklan Drug,"
claiming that the same "is a sole proprietorship in the
name of defendant Editha M. Mijares."[6] The petitioners
denied the rest of Metro Drug's allegations. They
likewise interposed a counterclaim for malicious
prosecution and prayed that judgment be rendered:
A. Dismissing the Complaint in toto for utter lack of
merit; and
B. Ordering plaintiff to pay defendants as follows:
1. The sum of P200,000.00 each, or such other sum as the
Honorable Court may determine, as and by way of
moral damages;
2. The sum of P25,000.00 as and by way of attorney's
fees, plus all expenses of suit as may be proven in the
course of trial.[7]
On March 8, 1991, the trial court rendered its
Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the defendants. The Complaint is
ordered dismissed and the plaintiff is ordered to pay the
defendants the sum of
P30,000.00 for moral damages
P10,000.00 as attorney's fees and to pay the costs of suit. SO
ORDERED.[8]
The factual findings of the trial court are as follows:
Dioscoro Lamenta, salesman/collector of Metro Manila
Drug Inc. visits plaintiff's customers once a week, book
orders for pharmaceutical products and insure that
orders are received by customers. He also collects the
value of goods within 30 days after delivery to
customers. The defendants as owners of Aklan Drug had
been buying pharmaceutical products from Metro Drug
since 1976. They (defendants) had good record with the
plaintiff. However, there were eight (8) charge/sales
invoices (Exhs. A to H) which became a source of some
misunderstanding between the parties.
It appears that Editha Mijares, aside from being the
operator of Aklan Drug, was also an officer of the Ospital
Ng Maynila Consumers Cooperative, Inc. It was an
employees' cooperative and she was its pharmacist and
manager. Ospital ng Maynila Cooperative became a
concessionaire of a small area right inside the hospital
compound and it operated a drugstore under its
Certificate of Registration dated November 15, 1985
(Exh. 13). Obviously, Ospital ng Maynila Cooperative had
some transactions with the plaintiff as supplier of
pharmaceutical products. Subsequently, the Board of
Directors of the Cooperative decided to dissolve it and
stopped its operations. Operations stopped in October
1986. In a letter dated October 23, 1986, Solomon
Silverio, Jr. offered to lease from the City of Manila, thru
the Mayor, the site previously occupied by the
Cooperative. The offer having been accepted, a Contract
of Lease (Exh. 1) was entered into between the City of
Manila as Lessor and Solomon Silverio, Jr. as Lessee
effective November 1, 1986.
Thereafter, Solomon Silverio as the new lessee, put up a
drugstore on the same area occupied by the
Cooperative.
On November 26, 1986, delivery of pharmaceutical
products was made by plaintiff thru Dioscoro Lamenta,
to the said store. It was covered by Exhibit A. In 1987,
on seven other occasions, particularly on
March 6, 1987
March 11, 1987
July 29, 1987
July 30, 1987
August 3, 1987
August 11, 1987
August 24, 1987
more deliveries of pharmaceutical products were made
in the same place by the plaintiff. From the first to the
seventh deliveries (Exhs. A to G) they were received by
Luz Espares. The 8th delivery (Exh. H) was received by
Hilda Rodrigona. These two were never the employees
of the defendants.
The total value of these eight (8) deliveries under
charge invoices is in the sum of P32,034.42.
In partial payment of these receivables, plaintiff received
Check No. 264292 (Exh. J) dated November 27, 1987. It
was paid to Lamenta, when the latter went to the store
in the compound of the Ospital ng Maynila to collect. It
was drawn by Solomon Silverio, Jr. which check was
under the account name Farmacia delos Remedios under
Account No. 202-830126-2 in the amount
of P14,180.46. Metro Drug deposited said check with the
FEBTC in its account on December 3, 1987. On
December 4, 1987, it received a notice from the bank
that the check was returned to it on the ground of
insufficient fund.
On April 4, 1988, plaintiff filed a telegram (Exh. K)
addressed to Aklan Drug at 1711 Zamora St., Pandacan
Manila, demanding full redemption of the dishonored
check and full payment of outstanding account
for P27,938.06. About 4 to 5 days after the telegram
was sent, Lamenta was able to talk to Editha Mijares
who directed him to a certain Solomon Silverio to collect
the amount. He asked why as she was the owner of
Aklan Drug. But he was told by Editha that Silverio is the
one managing the store.
Lamenta felt that as salesman/collector of the plaintiff,
he has limited duties. He felt he has no duty to check
who is the owner of the drugstore to whom he delivers
the drugs. Hence in this case, that he went to the store
to collect and was given a check in that store is
enough. He did not care whoever was in that store. So
when he was told in his office that the check paid to him
bounced, he went back to that drugstore, to inform
them of the dishonor, without even recalling to whom he
gave said information. Based on such limiting attitude,
he has always perceived Editha Mijares as a debtor of
the plaintiff.
Editha Mijares and her husband do not acknowledged at
all that they have any outstanding account with the
plaintiff. Defendant Glicerio Mijares, as a doctor, never
had anything to do with the drugstore of his wife. It was
only Editha Mijares who operates and manages the
Aklan Drug located at 1711 Zamora St., Pandacan,
Manila (Exhs. 2 and 2-A.) And as far as Editha is
concerned, she never ordered the drugs Lamenta
brought to the Ospital ng Maynila on November 26,
1986 and in 1987 which are covered by the charge/sale
invoices (Exh. A to H). Neither has she, nor her
employees, received them. Luz Espares and Hilda
Rodrigona who received the goods in question from
Lamenta are not her employees.
While Editha Mijares has dealt with the plaintiff, but it
was always only thru Lamenta that they transacted
business. And all her purchases were paid for.In fact,
plaintiff acknowledges that defendants paid all accounts
incurred except the claim herein.
When Lamenta tried to collect from Editha Mijares for
the disputed claim, Editha Mijares referred him to Mr.
Silverio as the new operator and concessionaire of the
drugstore. She informed him verbally that they have no
more business inside the Ospital ng Maynila as the
cooperative drugstore has already stopped
operations. Despite said verbal notice, the demand
telegram addressed to Aklan Drug was still sent to
Editha Mijares. On Lamenta's follow-up of said telegram,
Editha Mijares again directed Lamenta to see Solomon
Silverio, the new owner of the drugstore. In fact on a
certain occasion, Lamenta told Mijares "nasabihan ko na,
bahala na sila" obviously referring to the information he
gave Metro Drug that Editha Mijares is no longer running
the drugstore at the Ospital ng Maynila.[9]
On the basis of the above findings, the trial court
concluded that:
x x x it is clear that the products covered by plaintiff's
Exh. A to H inclusive, were not purchased by, nor
delivered to, nor received by the defendants. As a
consequence, defendants are not liable to plaintiff for
the sums indicated in Exh. A to H inclusive [10]
 On appeal by Metro Drug, the Court of Appeals
reversed the decision of the Regional Trial Court
ratiocinating that:
DEFENDANTS-APPELLEES, however, want to convince
Us of certain details unknown to the plaintiff-appellant's
representative Dioscoro Lamenta that the cooperative
has already been dissolved or that the operation of the
cooperative drugstore has already been terminated, and
that there was a new lease which paved the way for the
entry into the picture of a certain Solomon Silverio, Jr.,
in order to avoid liability. But the undeniable and
unrebutted fact is that appellant's representative
Dioscoro Lamenta had been delivering pharmaceuticals
to the drugstore of the appellees from 1976-1986. There
were no significant changes in operational or personnel
scheme as well as the use of the old credit line. In fine,
the delivery of the pharmaceuticals was with the consent
of the defendants as owners of the drugstore. The
defendants' contention that Luz Espares and Hilda
Rodrigona were no longer employed with the
cooperative drugstore owned by the defendants cannot
absolve defendants from liability on appellant's claim.
TO repeat the basic liability of the defendants-appellees,
it should be made clear that this proceeds from the
obligation arising from the purchase by the appellee and
receipt of the pharmaceuticals delivered by the
appellant. This delivery was precipitated by the
appellees' order of the merchandise. The appellees'
order of the merchandise and the appellant's agreement
to deliver, as in fact it delivered said merchandise,
constitutes a contract of sale which is perfected (Art.
1475, NCC; Warner vs. Inza, 43 Phil. 404).[11]
Not satisfied with the decision of the Court of
Appeals, petitioners came to this Court by way of
petition for review, alleging that:
I. THE COURT OF APPEALS ERRED IN
REVERSING AND SETTING ASIDE
THE DECISION DATED MARCH 8,
1991 OF THE TRIAL COURT.
II. THE COURT OF APPEALS ERRED IN
CONCLUDING THAT THE
MERCHANDISE COVERED BY
EXHIBITS A TO H WERE
PURCHASED BY, DELIVERED TO,
AND RECEIVED BY PETITIONERS.
III. THE COURT OF APPEALS ERRED IN
ORDERING PETITIONERS TO PAY
RESPONDENT THE SUM
OF P32,034.43 WITH INTEREST
THEREON OF 1% A MONTH FROM
FEBRUARY 1986 UNTIL FULLY
PAID; TO PAY SUM EQUIVALENT
TO 25% OF THE AMOUNT
CLAIMED AS ATTORNEY'S FEES;
AND TO PAY THE COSTS OF
SUIT. [12]
We give due course to the petition.
As a general rule, the findings of fact of the Court
of Appeals are binding upon this Court. The rule,
however, is not absolute, and jurisprudence has carved
out several exceptions. Among these are when the
findings of the Court of Appeals are contrary to those of
the trial court.[13]
In the case at bar, the evidence as found by the
trial court conclusively shows that by October 1986,
Editha Mijares was no longer involved in the operation of
the drugstore. On November 1, 1986, a certain Solomon
Silverio, Jr. put up an entirely distinct drugstore, as the
new lessee of the area. It was this same Solomon
Silverio, Jr. who drew the bouncing check in partial
payment of the pharmaceutical products.
The only evidence alluding to petitioners' ownership
of the drugstore is Dioscoro Lamenta's testimony, to wit:
Q. You stated that that drug store located at Ospital Ng
Maynila has no sign [identifying the store as Aklan
Drug]?
A. I did not notice any sign, Sir.
Q. But you know for a fact that this drug-store is an
extension owned and operating by the defendant?
A. Yes, Sir.
Lamenta, however, did not explain how he reached
such a conclusion.
On the other hand, petitioner Editha Mijares
testified that the drugstore was currently owned by
Solomon Silverio, not by petitioners:
Q. Plaintiff's witness, in the person of Mr. Lamenta,
testified that the pharmaceutical products covered
by Exhibits A to H were delivered to a drugstore
situated at the Ospital ng Maynila Compound. Do
you know if such or if there is such a drugstore in
the Ospital Ng Maynila compound in November,
1986? Would you know if there was a drugstore
inside the Ospital Ng Maynila Compound?
A. I have a knowledge that there is a drugstore there but I
don't have any knowledge of the delivery or the
transaction between Metro Drug and the drugstore
located in the compound of the Ospital ng Maynila.
Q. Would you know the owner of the drugstore inside the
compound of Ospital ng Maynila?
A. Mr. Silverio.
Q. Can you please give us the full name of Mr. Silverio, if
you know?
A. Solomon Silverio.
Q. Was he the owner?
A. He was the concessionaire of the new drugstore.
Q. What is the name of the new drugstore?
A. Farmacia delos Remedios.[15]
To support Mrs. Mijares' testimony regarding the
new concession operating in the Hospital, petitioners
presented in evidence a "CONTRACT OF
LEASE"[16] involving a building "erected on the City lot
occupied by the Hospital ng Maynila" which the lessee
offered to lease "as site for a drugstore." Said contract
was executed on the "1 th (sic) day of November, 1986"
by the City of Manila, represented by then Acting Mayor
Gemiliano C. Lopez, Jr., as Lessor, and Solomon G.
Silverio, Jr., "who is doing business under the business
name and style of FARMACIA DE LOS REMEDIOS," as
Lessee.
Moreover, it may be noted that the
check[17] received by Metro Drug in partial payment of
the pharmaceutical products was drawn by Solomon
Silverio under the account name of Farmacia de los
Remedios.
We find the above testimony and documents more
than sufficient to overcome Dioscoro Lamenta's
uncorroborated testimony that petitioners were the
owners of the subject drugstore. The decision of the
Court of Appeals holding petitioners liable to Metro Drug
has therefore no leg to stand on.
Private respondent nonetheless faults petitioners
for failing to inform its "salesman/collector Dioscoro
Lamenta about the alleged change of ownership or
management of the drugstore inside the Ospital ng
Maynila when the questioned deliveries were
made." Private respondent also cites certain statements
allegedly made by Mrs. Mijares assuring Lamenta that
the amount claimed would be paid. These circumstances
construed in relation to the parties' past transactions
dating back to 1976, the use of the old credit line, and
the continuity of the operational scheme -- the last two
being attributed to petitioners -- supposedly led private
respondent's salesman/collector to believe that
petitioners were the owners of the subject drugstore. "If
petitioners did not actively operate by themselves said
drugstore," contends private respondent, "they at the
very least represented themselves as such." In short,
private respondent pleads estoppel on the part of the
petitioners.
We are not persuaded.
In Kalalo vs. Luz,[18] we held that:
As related to the party claiming the estoppel, the
essential elements are: (1) lack of knowledge and of the
means of knowledge of the truth as to the facts in
question; (2) reliance, in good faith, upon the conduct or
statements of the party to be estopped; and (3) action
or inaction based thereon of such character as to change
the position or status of the party claiming the estoppel,
to his injury, detriment or prejudice.[19]
The first element, as related to the party claiming
estoppel, is conspicuously absent in this case. Contrary
to Metro Drug's allegations, Mrs. Mijares testified that
she did inform Metro Drug salesman/collector Dioscoro
Lamenta of the change of ownership or management of
the drug store, thus:
Q. Mr. Lamenta testified that he went to see you to follow
up the letter of demand or telegram, what did you
do? Were you able to meet with Dr. Lamenta?
A. Yes, I did.
Q. What transpire during that meeting?
A. He asked me to pay that account but I referred him to
Solomon Silverio who is now the owner of the
Farmacia delos Remedios.
Q. Did you tell him to collect from Mr. Silverio?
A. Yes, I did tell him that we have no business anymore
there as the cooperative drugstore stopped
operation.
Q. You said that the Ospital ng Maynila Employees
Cooperative who was the concessionaire of the
drugstore in which you were the pharmacist and
manager was dissolved sometime in September and
October 1986 and considering that the drugstore
ceased to operate, did you had the occasion to talk
to Mr. Lamenta about the cessation of the business
operation of the drugstore?
A. I told him that we are no longer connected anymore
with said drugstore and that any collectibles should
be collected from Mr. Silverio because we are no
longer transacting business there. And, in fact, if my
memory serves me right, I told him already that . . .
ATTY. BASCONCILLO:
I object the answer. She is already narrating.
COURT:
Allowed.
A. Somebody is already awarded the concession to that
drugstore. I know that they have a knowledge of the
discontinuance of the Cooperative's Drugstore and
he told me that he has notified the office already.
COURT:
When you were quoting: "And he told me that he
has notified the office already," to whom do you
refer when you say "he"?
A. Mr. Lamenta has notified the office and he stated
further that: "Nasabihan ko na sila. Bahala na sila."
ATTY. QUIMPO:
Q. When you say "sila" to whom are you refer-
A. Metro Drug.[20]
Assuming that Mrs. Mijares never conveyed such
information to Metro Drug's salesman/collector and that
petitioners were indeed responsible for the acts
attributed to them by private respondent, estoppel
would still be unavailing against petitioners. The first
element as related to the party claiming estoppel not
only requires that there be lack of knowledge on the
part of the party invoking estoppel but also "the means
of knowledge of the truth as to the facts in question."
One who claims the benefit of an estoppel on the
ground that he has been misled by the representations
of another must not have been misled through his own
want of reasonable care and circumspection. A lack of
diligence by a party claiming an estoppel is generally
fatal. If the party conducts himself with careless
indifference to means of information reasonably at hand,
or ignores highly suspicious circumstances, he may not
invoke the doctrine of estoppel.Good faith is generally
regarded as requiring the exercise of reasonable
diligence to learn the truth, and accordingly estoppel is
denied where the party claiming it was put on inquiry as
to the truth and had available means for ascertaining it,
at least where actual fraud has not been practised on
the party claiming the estoppel x x x [21]
 Private respondent's salesman/collector Dioscoro
Lamenta testified thus:
COURT:
Clarificatory question.
Q. Mr. Witness, you tell the Court that after the telegram,
was sent by Mijares, about four (4) or five (5) days
thereafter, you saw Mijares, the question is, when
were told by Mijares that the one managing the
store is already a certain Solomon Silverio, and that
you should collect the account from Solomon
Silverio. When you were going still to her store
within the compound of Ospital Ng Maynila, did it
not occur to you to make some inquiries about this
Solomon Silverio, who has handed this check and
who is managing the drugstore?
A. I made inquiries, Your Honor.
Q. In this check which marked Exhibit J, which was
handed to you, the account name is very clear that
it is Farmacia delos Remedios, in the course of the
transaction that Metro Drugs have with Mijares, was
there any occasion for the defendant to issue check
in the name of Farmacia delos Remedios?
A. That check was issued within the drugstore.
Q. I am only asking, when you were still dealing with
Editha Mijares from 1986, was there any occasion
when Editha Mijares and husband issue a check in
the account of Farmacia delos Remedios?
A. None, Your Honor.
Q. Was this check drawn in your presence, this check
marked Exhibit J?
A. I cannot remember, Your Honor, when I went there
they already handed to me
Q. Considering that Metro Drugs is in business, was there
any occasion for Metro Drugs to check from the
office of domestic and bureau . . . who is the owner
of Farmacia delos Remedios, considering that Exhibit
J is very clear?
A. I cannot remember of the result of my inquiry.
Q. You testified to the Court that Editha Mijares told you
explicitly that you have to collect from Solomon
Silverio. Considering that Editha Mijares told you
that you would collect the amount you are trying to
collect from her to Solomon Silverio, and being
already armed with the check marked Exhibit J, did
it not occur to you or you company to verify,
considering that it is already at least denial of
liability, did you or your company?
A. There was, we did something.
Q. What did you do?
A. I went to the domestic to check who was the real
owner.
Q. You did not check about Farmacia delos Remedios,
which is the very check your company is claiming?
A. I did some inquiries regarding Farmacia delos
Remedios, but I cannot remember the result.[22]
As the trial court astutely observed, (1) Mrs.
Mijares' instructions to Dioscoro Lamenta to collect from
Solomon Silverio and (2) the subsequent receipt by
private respondent of the check drawn in the account of
Farmacia de los Reyes [and, may we add, (3) the abrupt
failure and refusal of petitioners to pay a relatively
measly sum of P32,034.42 notwithstanding their good
credit history] constituted highly suspicious
circumstances which should have prompted private
respondent to inquire with the proper government
agency as to the true ownership of the subject drugstore
as its salesman/collector in fact did. How Dioscoro
Lamenta could forget such an important piece of
information or why he did not bother to retrieve the
forgotten information is beyond our
comprehension. What is clear to us, though, is that
private respondent cannot invoke estoppel against
petitioners. Dioscoro Lamenta's testimony shows that
not only did private respondent have the means of
knowledge to ascertain the truth regarding the
ownership of the drugstore but that it actually availed of
such means.Estoppel is a shield against injustice; a party
invoking its protection should not be allowed to use the
same to conceal his or her own lack of diligence.
It is evident, therefore, that private respondent was
barking up the wrong tree when it sought to hold
petitioners liable for the value of the pharmaceutical
products delivered at the drugstore in question. The
evidence clearly shows that petitioners were not the
owners of said drugstore when the deliveries were
made. Hence, no meeting of the minds between them
and private respondent could have taken place; no
contract of sale could have arisen.[23] The absence of
any privity of relations between the parties at the time
of the deliveries precludes any cause of action in favor
of private respondent against petitioners. The Regional
Trial Court therefore did not err when it dismissed
private respondent's complaint against petitioners.
The trial court however erred when it awarded
moral damages in favor of petitioners. Petitioners have
failed to show that private respondent was motivated by
bad faith when it instituted the action for collection
below. In China Banking Corporation vs. Court of
Appeals,[24] we held that:
x x x Malicious prosecution, both in criminal and civil
cases, requires the presence of two elements, to wit: a)
malice; and b) absence of probable cause. Moreover,
there must be proof that the prosecution was prompted
by a sinister design to vex and humiliate a person, and
that it was initiated deliberately knowing that the charge
was false and baseless (Manila Gas Corporation v. Court
of Appeals, 100 SCRA 602 [1980]). Hence, mere filing of
a suit does not render a person liable for malicious
prosecution should he be unsuccessful, for the law could
not have meant to impose a penalty on the right to
litigate (Ponce v. Legaspi, 208 SCRA 377 [1992]; Saba v.
Court of Appeals, 189 SCRA 50 [1990]); Rubio v. Court
of Appeals, 141 SCRA 488 [1986]). Settled in our
jurisprudence is the rule that moral damages cannot be
recovered from a person who has filed a complaint
against another in good faith, or without malice or bad
faith (Philippine National Bank v. Court of Appeals, 159
SCRA 433 [1988]; R & B Surety and Insurance v.
Intermediate Appellate Court, 129 SCRA 736 [1984]). If
damage results from the filing of the complaint, it
is damnum absque injuria (Ilocos Norte Electrical
Company v. Court of Appeals, 179 SCRA 5 [1989]).
 For the same reasons, the award for attorney's fees
and expenses of litigation must likewise be deleted.[25]
WHEREFORE, the petition is hereby GRANTED,
and the Decision of August 31, 1992 and the Resolution
of January 10, 1994 of the Court of Appeals are
REVERSED and SET ASIDE. The Decision of the Regional
Trial Court of Manila dated March 8, 1991 is hereby
REINSTATED but only insofar as it dismisses Metro
Drug's complaint. SO ORDERED.
[G.R. No. 127823. January 29, 1998]
J MARKETING CORPORATION represented by
HECTOR L.
CALUDAC, petitioner vs. FELICIDAD SIA, JR. and
COURT OF APPEALS, respondents.
This is a case of damages and attorneys fees. The
undisputed facts are as follows:
(Petitioner) J. Marketing Corporation, a instituted the replevin case against private respondent
company engaged in the business of
appliances and motorcycles, received on April
24, 1983 from Kawasaki Motors (Phils.) a brand
new Kawasaki motorcycle, color Blue, Mode
HD-11 (1985) with Engine No. G7E-04848 and
Chassis No. KG-805535. Upon
receipt, petitioners representative placed
motorcycle in the bodega of YKS Bldg., Rizal
Avenue, Tacloban City. However, on April 20,
1987, (Petitioner) found out that the
motorcycle unit was missing in the bodega and
the loss immediately reported to the police
authorities specifically to the Headquarters
Constabulary Highway Patrol District No. 8,
Tacloban City. Subsequently, (petitioner) tried
to trace the lost motor cycle to one Felicidad
Sia, Jr., herein (private respondent), who
bought a motorcycle from one Renato Pelande,
Jr. on May 25, 1987. Allegedly, petitioners
representative went to the house of the private
respondent and examined the chassis and
motor numbers of the motorcycle in his
(private respondent) possession, and found out
that the chassis and motor numbers of the
motorcycle in private respondents possession
have been tampered to jibe with the
chassis and motor numbers of the motorcycle
unit previously purchased by Renato Pelande,
Jr. from petitioner. When petitioners
representative confronted private respondent
at the Constabulary Highway Patrol Group
office anent the questionable motorcycle,
private respondent refused to return the said
motorcycle to petitioner and instead told
petitioners representative to file a case in
court. Hence, on September 24, 1987,
petitioner filed a complaint for replevin with
damages against private respondent Felicidad
C. Sia, Jr. before the Regional Trial Court of
Tacloban City, Branch 8.
On April 14, 1988, private respondent Felicidad
C. Sia Jr. filed a third party complaint against
Renato Pelante Jr. from whom he purchased
his motorcycle. Said third party defendant was
subsequently declared as in default.[1]
After trial, the lower court rendered a decision
dismissing petitioners complaint but awarded damages
and attorneys fees to private respondent.[2] On appeal,
the CA affirmed the decision of the court a quo.[3] Hence
this petition where the sole issue raised is whether the
award of attorneys fees and damages (moral and
exemplary) is proper.
A persons right to litigate should not be penalized
by holding him liable for damages. This is especially true
when the filing of the case is to enforce what he
believes to be his rightful claim against another although
found to be erroneous. In this case, petitioner precisely
based on the latters own challenge to the former that if
they really had a right on the motorcycle, then they
should institute the necessary case in court. When
petitioner did sue private respondent and filed a third
party complaint against the person from whom private
respondent claims to have brought the motorcycle, it
cannot be said that the institution of the replevin suit
was tainted with gross and evident bad faith or was
done maliciously to harass, embarrass, annoy or ridicule
private respondent.
Moreover, the adverse result of an action dismissal
of petitioners complaint does not per se make an act
unlawful and subject the actor to the payment of moral
damages. It is not a sound public policy to place a
premium on the right to litigate.[4] No damages can be
charged on those who may exercise such precious right
in good faith, even if done erroneously.[5]
The award of exemplary damages has likewise no
factual basis. It is a requisite that the act must be
accompanied by bad faith or done in wanton, fraudulent
or malevolent manner[6] - circumstances which are
absent in this case. In addition, exemplary damages
cannot be awarded as the requisite element of
compensatory damages was not present.[7]
With respect to the attorneys fees, an adverse
decision does not ipso facto justify the award thereof to
the winning party.[8] All indications point to the fact that
petitioner honestly thought that they had a good cause
of action, so notwithstanding the dismissal of their case,
no attorneys fees can be granted to private
respondent.[9] Considering that the latter claims to be
the owner of the motorcycle, petitioner was compelled
to sue him. When the former necessarily became a party
defendant no attorneys fees and litigation expenses can
automatically be recovered even if he should win, a it is
not the fact of winning alone that entitles recovery of
such items but rather the attendance of special
circumstances[10] - the enumerated exceptions in Article
2208 of the New Civil Code.[11] There being no bad faith
reflected in petitioners persistence in pursuing its case,
other than an erroneous conviction of the righteousness
of its cause, attorneys fees cannot be recovered as
cost.[12]
WHEREFORE, premises considered, the decision
of the Court of Appeals is AFFIRMED WITH THE
MODIFICATION that the award of damages, attorneys
fees and cost to private respondent is deleted.
SO ORDERED.
D.1 TAKING OF LIFE
G.R. No. 121998. March 9, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. TEODORICO CLEOPAS and FLORENCIO
PIRAME, accused.
FLORENCIO PIRAME, accused-appellant. Ky
On appeal is the decision dated January 5, 1995, of the
Regional Trial Court of Tagbilaran City, Branch 1, in
Criminal Case No. 8343 finding the accused Teodorico
Cleopas and Florencio Pirame guilty of murder beyond
reasonable doubt.[1]
The facts of the case, as found by the trial court, are as
follows:
"The factual findings of the Court based on the
testimony of the witnesses for the prosecution
and the defense are, as follows, to wit:
a) That in the morning of March 18, 1993 near
the house of Demetrio Cleopas, father of the
accused Teodorico Cleopas and Epifanio Cleopas
at Barangay Tubog, Ubay, Bohol, the eye-
witness Cipriano Supero saw the victim in the
instant case Pedro Torrenueva while being held
by the accused Florencio Perame (sic) the
accused Epifanio Cleopas struck him with an iron
pipe and by the accused Teodorico Cleopas with
a piece of wood, hitting the aforementioned
victim Pedro Torrenueva on the forehead,
which, as a consequence, fell on the ground
dead;
b) That to cover the discovery of the
commission of the crime the dead body of the
victim Pedro Torrenueva was buried in the well
near the house of Demetrio Cleopas father of
the accused Epifanio Cleopas who is still at large
and the accused Teodorico Cleopas;
c) That the testimony of the other witnesses for
the prosecution SPO2 Sabeniano Atopan,
Candida Cosip, Evelyn Torrenueva and Pedro
Acquiat viewed in their totality with the
testimony of the eye-witness Cipriano Supero
points to the accused Teodorico Cleopas,
Epifanio Cleopas and Florencio Pirame as the
perepetrators (sic) of the crime as charged."[2]
On May 13, 1993, the three accused, Teodorico
Cleopas, Epifanio Cleopas and Florencio Pirame,
were charged with the crime of murder under
the following information:
"That on or about the 18th day of March, 1993,
in the municipality of Ubay, province of Bohol,
Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused
conspiring, confederating and mutually helping
one another, with intent to kill, armed with
stainless pipe and a piece of wood, with
treachery, evident premeditation and abuse of
superior strength, did then and there willfully,
unlawfully and feloniously, attack, assault and
strike one Pedro Torrenueva who was unarmed
and unaware thereof with the said stainless pipe
and piece of wood thereby inflicting fatal injuries
on the different parts of the victims body which
resulted to his immediate death; to the damage
and prejudice of the heirs of the deceased to be
proved during the trial of the case.
Acts committed contrary to the provisions of Art.
248 of the Revised Penal Code."[3] Kycalr
Upon arraignment, Florencio Pirame and Teodorico
Cleopas entered a plea of not guilty. Epifanio Cleopas
was not arraigned, being at large.[4] Thereafter, trial on
the merits ensued.
The prosecution presented the following witnesses: (1)
SPO2 Sabiniano Atupan, who led the police team that
conducted the investigation of the killing; (2) Dr. Arnold
Cagulada, the Municipal Health Officer of Ubay, Bohol,
who examined the cadaver of the victim; (3) Candida
Cusip,[5] an aunt of the victim, who testified why the
victim ventured towards the house of accused Teodorico
Cleopas on the day of the incident; (4) Evelyn
Torrenueva, the wife of the victim, who corroborated the
testimony of Cusip and testified as to the damages
incurred by her due to her husbands death; (5) Pedro
Acquiat, who joined the police in the search for the
victims body; and (6) Cipriano Supero, the alleged
eyewitness to the killing who identified all the three
accused as the victims assailants.
In turn, the defense presented accused Teodorico
Cleopas and appellant Florencio Pirame, who both
testified on their behalf.
On January 5, 1995, the Regional Trial Court of
Tagbilaran City, Branch I, rendered its decision finding
Teodorico Cleopas and Florencio Pirame guilty of the
crime of murder. It disposed:
"PREMISES CONSIDERED, the Court finds the
accused Teodorico Cleopas and Florencio Pirame
guilty of the crime of Murder punished under
Article 248 of the Revised Penal Code and
hereby sentences each one of them to suffer an
imprisonment of RECLUSION PERPETUA, with
the accessories of the law and to pay the cost.
The accused Teodorico Cleopas and Florencio
Pirame are further ordered to indemnify the
surviving spouse of the deceased victim Pedro
Torrenueva in the amount of Fifty Thousand
Pesos (P50,000.00) each and the amount of
Twenty Three Thousand Two Hundred Forteen
(sic) Pesos (P23,214.00) representing burial and
incidental expenses and Fifty Thousand Pesos
each (P50,000) representing moral and
exemplary damages and in all instances without
subsidiary imprisonment in case of
insolvency. Calrky
It appearing that the accused in the instant case
Teodorico Cleopas and Florencio Pirame have
undergone preventive imprisonment they are
entitled to the full time of their preventive
imprisonment to be deducted from their term of
sentence if they have executed a waiver
otherwise they will only be entitled to 4/5 of the
time they have undergone preventive
imprisonment to be deducted from their term of
sentence if they have not executed a waiver.
The foregoing separate Decision does not affect
the accused Epifanio Cleopas who is still at large
who will be tried separately as soon as he shall
have been arrested. SO ORDERED."[6]
Only Florencio Pirame appealed from the decision of the
trial court. He assigns the following errors in his brief:
I. THE TRIAL COURT COMMITTED GRAVE
ERROR IN RELYING ON THE WEAKNESS OF
THE DEFENSE EVIDENCE RATHER THAN ON
THE STRENGTH OF THE EVIDENCE FOR
THE PROSECUTION IN FINDING THE
ACCUSED-APPELLANT PIRAME GUILTY OF
MURDER BEYOND REASONABLE DOUBT.
II. THE TRIAL COURT COMMITTED GRAVE
ERROR IN GIVING CREDENCE TO THE
TESTIMONY OF PROSECUTION WITNESSES
CIPRIANO SUPERO AND CANDIDA CUCIP
IMPLICATING ACCUSED-APPELLANT
FLORENCIO PIRAME IN THE CRIME OF
MURDER DESPITE THEIR MANIFEST
UNBELIEVABLE, IMPROBABLE AND
UNRELIABLE TESTIMONY."[7]
In his brief, appellant alleges that the declaration of
Demetrio Cleopas, both in the course of police
investigation and in a sworn statement, to the effect
that his two sons were responsible for the killing did not
make any mention of him, hence, he should not have
been implicated. Such declaration, appellant contends,
as made in the sworn statement, should have been
considered by the trial court as part of the res gestae. In
addition, he urges that the trial court should have
considered the testimony of accused Teodorico Cleopas,
who testified that he did not see appellant on the date
of the incident. He also contends that contrary to the
trial courts view, there was no "uniting point" or
corroboration between the testimonies of Cipriano
Supero, the alleged eyewitness to the incident, and that
of the other prosecution witnesses. Superos testimony,
he further claims, should not have been considered by
the trial court as this witness was a coached and
rehearsed witness, who testified only two months after
the incident, and whose testimony is allegedly not
worthy of belief. Appellant also asserts that while he
invokes the weak defense of alibi, the evidence against
him is likewise weak, and did not prove his guilt beyond
reasonable doubt. Lastly, appellant contends that the
trial court erred in finding him to be a co-conspirator of
the other two accused. Mesm
In its brief, the Office of the Solicitor General contends
that the positive identification by prosecution witness
Cipriano Supero of appellant at the scene of the crime
should prevail over appellants denial and alibi. It further
argues that a conspiracy to kill the victim was present.
Taken together, these contentions of appellant and the
appellee point to one issue, which is the credibility of
witnesses in this case. We find that credibility
preponderates in favor of the prosecution, and against
the appellant.
Appellant makes much of the testimony of prosecution
witness SPO2 Atupan. This witness testified that in the
course of police investigation, Demetrio Cleopas, father
of accused Teodorico and Epifanio Cleopas, said that his
two sons were responsible for the killing. Demetrio
reiterated the same allegation in a sworn statement
made before the Ubay Police on March 24,
1993,[8] which appellant also relies upon to support his
claim of innocence. This particular allegation in the
sworn statement, appellant urges, should be considered
as part of the res gestae, as it "grew out of the main
fact, shed light upon it, and which are (sic)
unpremeditated, spontaneous, and made at a time so
near, subsequent to the main act, as to exclude the idea
of deliberation and fabrication."[9]
This assertion made by Demetrio Cleopas in his sworn
statement is not part of the res gestae. Res
gestae refers to those exclamations and statements
made by either the participants, victims, or spectators
immediately before, during, or immediately after the
commission of the crime, when the circumstances are
such that the statements were made as a spontaneous
reaction or utterance inspired by the excitement of the
occasion and there was no opportunity for the declarant
to deliberate and to fabricate a false statement. [10] The
allegations made by Demetrio Cleopas in his sworn
statement were not made immediately after the killing of
the victim. They were made on March 24, 1993, or six
days after the killing of the victim on March 18. As we
have held that a statement given a day after the incident
in answer to questions propounded in an investigation
cannot be considered part of the res gestae,[11] so too
with the declarations of Demetrio Cleopas in his sworn
statement. Scslx
Moreover, resort to the very sworn statement invoked
by appellant would reveal that Demetrio Cleopas himself
was in no position to identify all the perpetrators of the
crime. The pertinent portion of the statement reads as
follows:
"Q:.....Do you remember where were you on March 18,
1993?
A:.....Yes, I was in our nipa hut near our house.
Q:.....What were (sic) the unusual incident that you have
witnesses (sic) on that day: (sic)
A:.....On March 18, 1993 at 10:00 oclock in the morning
more or less, I heard a shout from my wife thats why I went
near to her and what I have seen was a man lying on the
ground which in my belief was already dead.
Q:.....What was the cause of death of that person?
A:.....When I asked my son Epifanio Cleopas alias Paning
what was that incident and he answered that they mutually
struck him because he boxed one on (sic) my son named
Teodorico Cleopas @ Tidoy."[12]
It is clear that Demetrio Cleopas did not see the actual
killing of the victim. He only learned of the details of the
killing from his son Epifanio. Thus, SPO2 Atupans
testimony that Demetrio Cleopas named his sons as the
perpetrators of the crime, without mention of appellant
Florencio Pirame, and which declaration was based on
Epifanio Cleopas admission of guilt for the killing, is in
effect hearsay twice removed. It cannot be used to
absolve appellant of his participation in the crime.
Further still, the testimony of accused Teodorico Cleopas
that he never saw appellant on the date of the
incident,[13] does not support the declarations of
Demetrio Cleopas, as Teodoricos testimony cannot be
expected to implicate a co-accused, being self-serving as
it is. Slxs c
Appellant next assails the trial courts dictum to the
effect that the testimonies of the prosecution witnesses,
viewed in their totality, point to the guilt of all three
accused, including appellant.[14] He claims that it was
only Cipriano Supero who testified that he saw appellant
hold the arms of the victim while the other two accused
hit him on the head with a stick and a steel pipe. This,
he asserts, was not corroborated by any other
prosecution witness, hence there was no "unifying point"
in their testimonies.
That the testimony of Supero was not corroborated by
any other witness is of no moment. It is axiomatic that
the testimonies of witnesses are weighed, not
numbered, and the testimony of a single witness may
suffice for conviction if found trustworthy and reliable.
That the prosecution had only one eyewitness to
implicate appellant hardly negates its cause. There is no
law, which requires that the testimony of a single
witness needs corroboration except where the law
expressly mandates such corroboration.[15] Indeed, the
testimony of a single witness, when positive and
credible, is sufficient to support a conviction even of
murder. Hence, a finding of guilt may be based on the
uncorroborated testimony of a single witness when the
trial court finds such testimony positive and credible.[16]
On this score, appellant contends that the testimony of
Cipriano Supero should not have been considered by the
trial court, as Supero is allegedly a coached and
rehearsed witness. In effect, appellant assails Superos
credibility. He points out that on direct examination,
Supero initially stated that the killing took place "inside
the house of Demetrio Cleopas", but later on modified
his answer to clarify that the victim was killed "outside
the house."[17] In addition, appellant emphasizes that it
took Supero two months after the death of the victim to
come out and volunteer to testify as to what he had
seen transpire on the morning of March 18, 1993.
Appellant asserts that this delay further proves that
Supero was a rehearsed witness. slx mis
These contentions are without merit. The initial lapse in
Superos testimony as to whether the crime was
committed inside or outside of the house of Demetrio
Cleopas was eventually settled by the trial court when it
asked clarificatory questions. Supero was nonetheless
able to testify on the actual killing of the victim, as well
as identify all the perpetrators of the crime. The earlier
inconsistency in his testimony, slight as it is, cannot
suffice to impeach this witness. Settled is the rule that
inconsistencies in the testimonies of witnesses when
referring only to minor details and collateral matters do
not affect either the substance of their declaration, their
veracity, or the weight of their testimony. Although
there may be inconsistencies on minor details, the same
do not impair the credibility of the witnesses where
there is consistency in relating the principal occurrence
and positive identification of the assailants. Slight
contradictions in fact even serve to strengthen the
sincerity of the witness and prove that his testimony is
not rehearsed. They are safeguards against memorized
perjury.[18]
Further still, the delay of Supero in volunteering to
testify on the incident is of little consequence. At the
time Supero witnessed the killing, all he saw was the
striking of the victim by the assailants while appellant
held the victims arms. The victim then fell to the ground,
motionless. Thereafter, Supero left, fearful of what he
had seen.[19] He did not divulge this to anyone else
except his mother, for they were afraid of being involved
in the matter.[20]
At the time he witnessed the incident, Supero was not
aware that the victim had died as a result of the assault.
He came to know that the victim died only two months
after, when word spread that the body of the victim was
discovered in the well of Demetrio Cleopas.[21] Upon
learning of the victims fate, he came forward to reveal
what he had seen when he testified in open court.
Hence, appellant cannot claim that Superos report and
testimony on the incident was belatedly made. Thus, the
two-month delay in reporting the account of the
eyewitness in this case does not give rise to any doubt
on the veracity thereof. As we have held, the belated
report and the reluctance of witnesses to testify in
criminal actions is a matter of judicial notice.[22] Missdaa
Against Superos positive identification of appellant as
the person who held the hands of the victim while
accused Teodorico and Epifanio Cleopas struck him,
appellant advanced the defense of alibi. He testified that
he was harvesting palay the whole day at Barangay
Corazon, San Miguel, Bohol on March 18, 1993.[23] The
distance of the house of Demetrio Cleopas from his
house, which is located at the center of Barangay
Corazon,[24] was estimated by him to be seven
kilometers.[25] We find this distance of seven kilometers
to be less than sufficient for purposes of an air-tight
alibi. Alibi is an affirmative defense and, considering that
it is easy to concoct, when an accused relies thereon, he
has the burden of proving it, i.e., that he could not have
been at the scene of the crime at the time of its
commission. For alibi to prosper, an accused must prove
that not only was he absent at the scene of the crime at
the time of its commission, but also that it was
physically impossible for him to be so situated at said
instance.[26] This, appellant failed to do, more so when
his claim that he was harvesting palay on the day the
killing took place was not corroborated by anyone else.
Appellant asserts that the trial court erred in finding
appellant a conspirator, hence guilty of murder beyond
reasonable doubt. We find the trial courts finding of the
existence of a conspiracy to kill the victim well-taken.
Cipriano Superos testimony discloses that appellant held
the victims arms in a cross-wise manner while Epifanio
and Teodorico Cleopas struck the victim on the forehead
with a steel pipe and a long piece of wood, respectively.
Thereafter, the victim fell to the ground.[27] These
concurrent actions of appellant and his co-accused
reveal a mutual intention and determination to kill the
victim, an indicator of conspiracy. Conspiracy, in order to
exist, does not require an agreement for an appreciable
period prior to the commission of the crime; it exists if,
at the time of the commission of the offense, the
accused had the same purpose and was united in its
execution.[28] The fact that appellant conspired in the
commission of the crime charged was sufficiently and
convincingly shown by his active participation in holding
the victim to render him immobile, thus enabling the
other two accused to consummate their dastardly act of
killing the victim.[29]
We note, however, that the trial court in its decision did
not make any definitive finding on the circumstances
which qualified the crime to murder. While the
information charging appellant and the other accused
alleged that the commission of the crime was attended
by treachery, evident premeditation and abuse of
superior strength, the court did not expound upon or
point to the existence of these aggravating
circumstances in the case at bar. In other words, it did
not state its basis for qualifying the crime to murder. We
are thus required to determine if the crime at bar could
be qualified to murder, to resolve this appeal. It is
axiomatic that an appeal, once accepted by this Court,
throws the entire case open to review, and that this
Court has the authority to review matters not specifically
raised or assigned as errors by the parties, if their
consideration is necessary in arriving at a just resolution
of the case.[30] Sda adsc
In the present case, the prosecution alleged the
attendance of treachery in the commission of the crime.
The requisites for treachery to be a qualifying
circumstance are: (1) the employment of means,
method, or manner of execution which will ensure the
safety of the malefactor from defensive or retaliating
acts on the part of the victim, no opportunity being
given to the latter to defend himself or to retaliate; and
(2) deliberate or conscious adoption of such means,
method, or manner of execution.[31]
Cipriano Supero testified that appellant Florencio Pirame
held the arms of the victim while Epifanio and Teodorico
Cleopas struck the victim on the head, causing his
death. The victim was defenseless during the attack as
his hands were restrained by appellant, facilitating the
beating of the victim by the other perpetrators. Clearly,
the manner by which the victim was restrained and
assaulted was deliberately and consciously adopted by
his assailants to ensure his demise. Thus, there was
treachery in the killing of the victim, as the offenders
employed means, methods or forms in the execution
thereof which tended directly and specially to insure its
execution, without risk to themselves arising from the
defense which the victim might take.[32]
The attendance of evident premeditation in the
commission of the crime, though alleged in the
information, is not supported by the evidence, as there
is no showing as to when appellant and his co-accused
determined to kill the victim. Likewise, abuse of superior
strength, being absorbed by treachery,[33] cannot be
considered as an aggravating circumstance in this case.
As treachery was present when the victim as killed, we
find that the crime of murder was committed by
appellant and his co-accused. At the time of the
commission of the crime, the imposable penalty for
murder was reclusion temporal in its maximum period to
death. There being no aggravating or mitigating
circumstances attending the killing, the applicable
penalty would thus be the medium period of the
imposable penalty, which is reclusion perpetua.[34] Rtc
spped
We concur with the trial courts award of P50,000.00
each from appellant Florencio Pirame and co-accused
Teodorico Cleopas as death indemnity to the victims
heirs, which is in line with current jurisprudence. We
also find the amount of P23,214.00 awarded by the trial
court as "burial and incidental expenses" supported by
the records.[35] The award of P50,000.00 from each
accused as moral and exemplary damages, however, is
unsupported. The widow of the victim did not testify on
any mental anguish or emotional distress, which she
suffered as a result of her husbands death. The absence
of any generic aggravating circumstance attending the
crime likewise precludes the award of exemplary
damages.
WHEREFORE, the instant appeal is DENIED. The
decision of the Regional Trial Court convicting appellant
Florencio Pirame of the crime of murder and sentencing
him to reclusion perpetua, and to pay the widow of the
victim P50,000.00 as civil indemnity and P23,214.00 as
actual damages, as well as the costs is AFFIRMED, but
the award of P50,000.00 as moral and exemplary
damages is hereby DELETED, there being no legal and
factual basis therefor. SO ORDERED.
[G.R. No. 134784. December 9, 2002]
CARLOS ARCONA y MOBAN, petitioner, vs. THE
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Petitioner Carlos Arcona y Moban[1] and his brother
Benito Arcona y Moban were charged with Murder and
Frustrated Murder[2] in separate information which
read:
Criminal Case No. 6408 (Murder)
That on or about the 27th day of June, 1986 at
Barangay Labog, Municipality of Brookes Point, Province
of Palawan, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused conspiring,
confederating together and mutually helping one
another, with intent to kill and with evident
premeditation and treachery, did then and there willfully,
unlawfully and feloniously attack, assault and stab one
NAPOLEON ONG with a bladed weapon to wit; a knife
hitting him in vital part of his body and inflicting upon
him injury which was the direct and immediate cause of
his death shortly thereafter.
Criminal Case No. 6409 (Frustrated Murder)
That on or about the 27th day of June 1986 at Barangay
Labog, Municipality of Brookes Point, Province of
Palawan, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused conspiring,
confederating together and mutually helping one
another, with evident premeditation and treachery and
with intent to kill did then and there willfully, unlawfully
and feloniously attack, assault, strike and beat with a
bamboo pole one EDGARDO TALANQUINES hitting him
on different parts of his body and inflicting upon him
injuries which would have caused his death thru
performing all the acts of execution which would have
produced the crime of murder as a consequence but
nevertheless did not produce it by reason of causes
independent of the will of the accused that is EDGARDO
TALANQUINES have parried the blows, escape away
from his assailant and by the timely and able medical
assistance rendered to said Edgardo Talanquines which
prevented his death.
On arraignment both accused pleaded not guilty.
Thereafter, the cases were jointly tried.
It appears that at around 7:30 in the evening of June
27, 1986, Napoleon Ong and Edgardo Talanquines were
walking along the national highway at Barangay Labog,
Brookes Point, Palawan, on their way home after coming
from a birthday party. When they were near the house
of Jerry Boston, Edgardo heard a loud thud. He turned
around saw Napoleon slump to the ground. Suddenly,
someone hit Edgardo from behind with a piece of
bamboo, causing him to fall. He saw no one in the
immediate premises except petitioner. Edgardo then
stood up and ran towards the house of Cesar Umapas to
ask for help.
Prosecution witness Leo Zaragoza testified that he was
standing in front of Jerry Boston house, about seven (7)
meters away, when he saw petitioner stab Napoleon.
Napoleon expired on the way to the hospital. Dr.
Joaquin Fabellon, who conducted the autopsy on
Napoleons body, certified that the cause of death was
the stab wound sustained at the stomach area just
above the waistline.
Petitioner voluntarily surrendered to T/Sgt. Romeo
Laging at the PC Detachment Command in Barangay
Lugod.
In his defense, petitioner alleged that in the evening of
June 27, 1986, he was walking alone when he met
Napoleon Ong and Edgardo Talanquines. Without any
provocation, Napoleon suddenly drew his bolo and
shouted, Caloy, I will kill you![3] Napoleon swung the
bolo at him twice but missed him. Petitioner then drew
out his knife and stabbed Napoleon. When he saw
Edgardo Talanquines rushing towards him, he grabbed a
piece of bamboo from the newly constructed culvert and
hit the former on the left arm. Talanquines ran away.
Petitioner also left the premises and went home. On the
way, he met his brother, Benito, and together they
proceeded to their house.[4]
After trial, the court a quo rendered judgment in
Criminal Case No. 6408 convicting petitioner of Homicide
and acquitting Benito Arcona. In Criminal Case No. 6409,
the trial court convicted Benito Arcona of Slight Physical
Injuries and acquitted petitioner. The dispositive portion
of the decision[5] reads:
WHEREFORE, premises considered, the Court renders
judgment in Criminal Case No. 6408 finding Carlos
Arcona y Moban GUILTY beyond reasonable doubt of the
crime of Homicide under Art. 249 of the Revised Penal
Code, with the mitigating circumstance of voluntary
surrender to authorities and no aggravating
circumstances. He is hereby sentenced to suffer the
indeterminate penalty of SIX (6) YEARS and ONE (1)
DAY of PRISION MAYOR as MINIMUM to FOURTEEN
(14) YEARS and ONE (1) DAY OF RECLUSION
TEMPORAL as MAXIMUM, and to indemnify the heirs of
Napoleon Ong the sum of THIRTY THOUSAND PESOS
(P30,000.00) for his death, TEN THOUSAND PESOS
(P10,000.00) as actual damages and TEN THOUSAND
PESOS (P10,000.00) as moral damages. Benito Arcona is
acquitted of the crime charged, for failure of Prosecution
to prove his guilt beyond reasonable doubt.
In Criminal Case No. 6409, Benito Arcona is found
GUILTY beyond reasonable doubt of the crime of Slight
Physical injuries and is sentenced to suffer imprisonment
of TWENTY (20) DAYS of ARRESTO MENOR and to
indemnify Edgardo Talanquines the sum of TEN
THOUSAND PESOS (P 10,000.00) as actual damages.
Carlos Arcona is ACQUITTED of the crime charged for
failure of Prosecution to prove his guilt beyond
reasonable doubt.
Only petitioner appealed to the Court of Appeals,
assailing his conviction for Homicide in Criminal Case No.
6408. On January 28, 1997, the Court of Appeals
affirmed the findings of the trial court but increased the
civil indemnity to P50,000.00, thus:
WHEREFORE, for all the foregoing, the decision of the
trial court finding appellant Carlos Arcona guilty of
Homicide mitigated by his voluntary surrender to the
authorities is hereby AFFIRMED, with the sole
modification that the civil indemnity Carlos Arcona shall
pay to the heirs of Napoleon Ong is hereby increased to
Fifty Thousand Pesos (P50,000.00).[6]
Petitioner filed the instant petition for review. He
maintains that he acted in self-defense when he stabbed
Napoleon and hit Edgardo with a bamboo stick. He
contends that Napoleon committed unlawful aggression
when drew an unsheathed bolo and attempted to hack
him with it twice. Moreover, petitioner invokes the
testimony of Jerry Boston, to the effect that before the
stabbing incident he heard somebody shout, Caloy,
patayon kita. (Caloy, I will kill you!)[7]
We are not persuaded. It is settled jurisprudence that
when an accused invokes self-defense, the onus
probandi to show that the killing was justified shifts to
him. Even if the prosecution evidence was weak, it could
not be readily dismissed considering that the accused
had openly admitted his responsibility for the killing.[8]
To prove self-defense, the accused must show with clear
and convincing evidence that: (1) he is not the unlawful
aggressor; (2) there was lack of sufficient provocation
on his part; and (3) he employed reasonable means to
prevent or repel the aggression. Self-defense, like alibi,
is a defense easy to concoct. It is axiomatic that once an
accused had admitted that he inflicted fatal injuries on
the deceased, it is incumbent upon him, in order to
avoid criminal liability, to prove the justifying
circumstance claimed by him with clear, satisfactory and
convincing evidence.[9]
The question whether accused-appellant acted in self-
defense is essentially a question of fact. In self-defense,
unlawful aggression is a primordial element.[10]
In the case at bar, the trial court was evidently not
satisfied and convinced with petitioners claim that
Napoleon was the unlawful aggressor, thus:
It has been established that a bolo identified as
belonging to Napoleon Ong was found at the scene of
the crime. The Court is also convinced that the stabbing
incident was preceded by the sounds of a scuffle or fight
because it was these unusual noises which led Leo
Zaragosa and Benito Arcona to go out of the house of
Jerry Boston in order to investigate what had happened.
However, the presence of the bolo of Napoleon Ong,
and the shout of Caloy, I will kill you allegedly uttered by
the deceased are circumstantial evidence and not
sufficient to conclude that the deceased had committed
acts of unlawful aggression which justified the stabbing
by accused Carlos Arcona.[11]
We agree with the findings of the trial court. The
presence of Napoleons unsheathed bolo at the crime
scene and the scattered bamboo sticks suggest a
number of scenarios. While the physical evidence may
suggest that Napoleon drew the bolo from its scabbard,
such fact alone would not in any way satisfactorily
support the conclusion that, indeed, Napoleon was the
unlawful aggressor.
Likewise, the trial court was correct in refusing to give
any weight to the shout, Caloy, I will kill you! which
Jerry Boston allegedly heard immediately prior to the
actual stabbing incident. Indeed, Jerry Boston testified
that somebody shouted those words. He did not
categorically say that it was Napoleon. Even granting
that Napoleon uttered those words, it was still possible
that he said it while being assaulted by petitioner.
Significantly, Jerry only heard the shouted words but
never saw the sequence of events preceding the
stabbing incident, thereby rendering doubtful the
contention that Napoleon was the unlawful aggressor.
Simply, these circumstances are insufficient to
conclusively establish that Napoleon was the unlawful
aggressor.
Parenthetically, the Court of Appeals concurred with the
findings of the trial court and even concluded that the
physical evidence only made petitioners claim
improbable, thus:
Accused-appellant miserably failed to convince the trial
court that the stabbing was indeed in self-defense.
Accused-appellants version that he was waylaid by
Edgardo Talanquines and the deceased Napoleon Ong is
highly improbable because he escaped the alleged
ambush without a single scratch considering that there
were allegedly two (2) attackers and one was even
armed with a bolo (TSN, March 27, 1990, pp. 3, 7 and
9). Moreover, accused-appellants claim that Edgardo
Talanquines rushed him is also questionable because
appellant who was then already armed with a knife was
purportedly attacked by Mr. Talanquines who was not at
all armed (Ibid, p. 10).[12]
In fine, the plea of self-defense cannot be justifiably
entertained where it is not only uncorroborated by any
separate competent evidence but also extremely
doubtful in itself. Accused-appellant having failed to
discharge the burden proving his defense, his conviction
shall of necessity follow, on the basis of his admission to
the killing.[13]
We have consistently ruled that the trial judge is the
best person to evaluate the veracity of a witnesss
testimony as he is in the most ideal position to see the
demeanor, actuation and countenance of a witness.
Hence, we do not generally disturb the findings of the
trial court except in cases where the judge acted
arbitrarily.[14] In the case at bar, petitioner failed to
point out any arbitrariness on the part of the trial court.
Thus, we find that the court a quo was correct in
convicting petitioner of Homicide attended by the
mitigating circumstance of voluntary surrender and no
aggravating circumstance. The penalty prescribed by law
for Homicide, reclusion temporal, shall be imposed in its
minimum period, pursuant to Article 64 (2) of the
Revised Penal Code. Under the Indeterminate Sentence
Law, petitioner shall be entitled to a minimum term of
imprisonment to be taken from the penalty next lower in
degree, prision mayor. Therefore, the indeterminate
sentence imposed on him by the trial court, ranging
from six (6) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years and one (1) day
of reclusion temporal, as maximum, is affirmed.
Likewise, the Court of Appeals was correct in increasing
the amount of civil indemnity to P50,000.00, in line with
existing jurisprudence.[15] In cases of murder,
homicide, parricide and rape, civil indemnity in the
amount of P50,000.00 is automatically granted to the
offended party or his heirs in case of his death, without
need of further evidence other than the fact of the
commission of the crime.[16]
On the other hand, the award of moral damages in the
sum of P 10,000.00 must be increased to P50,000.00. As
borne out by human nature and experience, a violent
death invariably and necessarily brings about emotional
pain and anguish on the part of the victims family. It is
inherently human to suffer sorrow, torment, pain and
anger when a loved one becomes the victim of a violent
or brutal killing. Such violent death or brutal killing not
only steals from the family of the deceased his precious
life, deprives them forever of his love, affection and
support, but often leaves them with the gnawing feeling
that an injustice has been done to them. For this reason,
moral damages must be awarded even in the absence of
any allegation and proof of the heirs emotional
suffering.[17]
Finally, the award of actual damages in the amount of
P10,000.00 does not appear to have been substantiated.
Only those expenses which are duly proven, or those
that appear to have been genuinely incurred in
connection with the death, wake or burial of the victim,
will be recognized in court.[18] Hence, the same must
be deleted.
WHEREFORE, in view of the foregoing, the petition for
review is DENIED. The decision of the Court of Appeals,
finding petitioner Carlos Arvuna y Morban guilty beyond
reasonable doubt of Homicide, attended by the
mitigating circumstance of voluntary surrender, and
sentencing him to suffer the indeterminate penalty of six
(6) years and one (1) day of prision mayor, as minimum,
to fourteen (14) years and one (1) day of reclusion
temporal, as maximum, and to pay the heirs of the
deceased Napoleon Ong the sum of P50,000.00 as civil
indemnity, is AFFIRMED with MODIFICATION. As
modified, petitioner is further ordered to pay the heirs of
the deceased moral damages in the increased amount of
P50,000.00. The award of actual damages is deleted for
lack of factual and legal basis. SO ORDERED.
(e) FACTORS IN DETERMINING AMOUNT
[G.R. No. 116181. January 6, 1997]
PHILIPPINE NATIONAL BANK, petitioner, vs.
COURT OF APPEALS and CARMELO H.
FLORES, respondents.
This refers to private respondents motion for
reconsideration dated 29 May 1996 of the Courts
decision promulgated on 17 April 1996, the dispositive
portion of which reads:
WHEREFORE, premises considered, the assailed decision is hereby
MODIFIED as follows:
1. The award of moral damages is reduced from P1,000,000.00
to P100,000.00; and
2. The award of exemplary damages is reduced from P1,000,000.00
to P25,000.00.
In all other respects, the assailed decision is hereby AFFIRMED.[1]
Private respondent contends that the award of
damages is too small considering that petitioner, to end
the dispute, was willing to enter into a compromise
agreement and offered the amount of P397,272.41 as
settlement. In addition, private respondent assails
petitioners malicious act of attacking his character by
alluding to his alleged reputation as a gambler and big
time casino player.
Carmelo H. Flores personality and character are
irrelevant to the issues at hand. Petitioners resort to
character assassination is thus unfair and uncalled for.
In its Brief dated 20 January 1993 filed with the
Court of Appeals, petitioner audaciously stated that:
xxx. Significantly, there is uncontradicted
evidence that Flores is a gambler and a big time
casino player at that; consequently, his self-
serving and uncorroborated evidence cannot be
fully believed for as to quote a scholarly treatise-
A common gambler is a common nuisance,
insensible to honor, deaf to pity, bent upon
plunder, he is human cormorant, more
destructible than the bird of prey itself. (VII, part
II, FRANCISCO, EVIDENCE [1991] citing
Smith v. Wilson, 31 How. Pr. [N.Y.] 272, 22 Fed. Cas.
No. 13,128 [at p. 721]).[2]
Similarly, in its memorandum
before this Court, petitioner asserted that Flores
used the proceeds of the managers checks on the
gaming table:
xxx.
The undeniable truth is that Flores was playing at the
gaming table before he transacted with Angelita Sotero,
Cashier of PNB Baguio Hyatt Casino Unit, for the
encashment of the P1 Million checks; that after he was
paid the first P500,000, in his way back to the gaming
table, he took from Sotero aP100,000 advance; and that
other three (3) P100,000 were separately paid to him by
Sotero in the interval of one to two hours while Flores
was playing at the gaming table (TSN, July 2, 1991, pp.
19-26, 34).
Thus, the embarrassment claimed by Flores is but a
figment of his imagination, as it is but natural to
conclude without fear of error that under the
circumstances Flores used the money for gambling.[3]
Petitioners allegation that it is allowed by Sec. 11,
Rule 132 of the Revised Rules on Evidence to impeach
the adverse partys witness by evidence that his general
reputation for truth, honesty, or integrity is bad is
undeserving of merit. Petitioner has not presented
adequate evidence to show that private respondent is
indeed a big time gambler. Mere allegations are not
equivalent to proof.
Petitioner has besmirched private respondents
reputation and has considerably caused him undue
humiliation. On this point, wereiterate with emphasis the
findings of the trial court and the Court of Appeals, to
wit:
Since there is no doubt as to the fact that the plaintiff
purchased from the defendant bank two (2) managers
check worth P500,000.00 each as this was evidenced by
an official receipt (Exhibit A), then, following the above
jurisprudential ruling, the existence of the managers
check (sic) created as (sic) fiduciary relationship
between the defendant bank and the plaintiff and
therefore any breach thereof must be borne by the
negligent party. In this case, the money counter who,
among her other duties, is in charge of counting the
money received from a client purchasing a managers
check did not perform her duty with diligence and due
care. This may be gathered from her testimony that she
did not wait for the counting machine to finish counting
the money for the plaintiff is a VIP client and he was in a
hurry as he was tapping the window (p. 37, T.S.N.,
August 28, 1990). Equally negligent is Reynaldo Castor
for not doing anything when he noticed that their
money counters who entertained the plaintiff were
rattled. From these unfolded facts, the so-called honest
mistake pleaded is therefore misplaced and perforced,
defendant must suffer the consequences of its own
negligent acts.
The records further show that plaintiff is a prominent
businessman, licensed and engaged in the real estate
business, buying and selling houses and lots under the
business name and style CMS Commercial. He is at the
same time a consultant of Dizon-Esguerra Real Estate
Company. Defendant treated him as a valued and VIP
client. Because of the banks refusal to encash the entire
one million face amount of his managers checks, he was
so embarrassed for he was not able to purchase a house
and lot in Monterroza Subdivision, Baguio
City. Significantly, the foregoing undisputed facts made
even more untenable defendants implicit supposition
that the subject managers checks were not intended for
the purchase of a house or for any business transaction
but for gambling.
Finally, since plaintiff was compelled to litigate to protect
its interest due to the non-compliance of defendants
obligation, he is therefore entitled to attorneys fees
(pars. 5, article 2208, Civil Code of the Philippines).
xxx xxx xxx.
Appellee Flores narrated his woes to the lower court
when appellant bank refused to honor his Managers
Checks worth P1 Million because of the alleged shortage
in appellees payment to the effect that he had to go
back and forth the bank to encash said checks (pp. 16-
18, t.s.n., July 2, 1990), and that he lost a deal of (sic) a
house for sale in Baguio City worth P1 Million as he
could not produce said amount withheld by the appellant
bank (p. 22, id.). Appellee Flores further testified as to
the effect of the incident on his integrity as a
businessman as follows:
Yes, my integrity and dependability as a businessman is
highly doubted in Baguio because of the PNB refusal to
honor the two (2) managers checks inspite of them
issuing me the receipt. So, whenever I make a deal in
house and they would now even doubt whether I have
the money to buy the house that I am buying, it greatly
affected my integrity as a businessman in Baguio. (p.
25, t.s.n., id.)
In the case of Makabali v. C.A., 157 SCRA 253, the
Supreme Court reiterated the doctrine on the grant of
moral and exemplary damages, as follows:
To begin with, there is no hard and fast rule in the
determination of what would be a fair amount of moral
damages, since each case must be governed by its own
peculiar circumstances.
Article 2217 of the Civil Code recognizes that moral
damages which include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and
similar injury, are incapable of pecuniary estimation.
As to exemplary damages, Article 2229 of the Civil Code
provides that such damages may be imposed by way of
example or correction for the public good. While
exemplary damages cannot be recovered as a matter of
right, they need not be proved, although 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.[4]
Accordingly, the moral and exemplary damages
awarded to private respondent are increased
by P100,000.00 and P25,000.00, respectively.
WHEREFORE, the award of moral damages to
private respondent is increased to P200,000.00 and the
award of exemplary damages is increased to
P50,000.00. SO ORDERED.
[G.R. No. 112212. March 2, 1998]
GREGORIO FULE, petitioner, vs. COURT OF
APPEALS, NINEVETCH CRUZ and JUAN
BELARMINO, respondents.
This petition for review on certiorari questions the
affirmance by the Court of Appeals of the decision[1] of
the Regional Trial Court of San Pablo City, Branch 30,
dismissing the complaint that prayed for the nullification
of a contract of sale of a 10-hectare property in Tanay,
Rizal in consideration of the amount of P40,000.00 and a
2.5 carat emerald-cut diamond (Civil Case No. SP-
2455). The lower courts decision disposed of the case as
follows:
WHEREFORE, premises considered, the Court hereby renders
judgment dismissing the complaint for lack of merit and ordering
plaintiff to pay:
1. Defendant Dra. Ninevetch M. Cruz the sum of P300,000.00 as and
for moral damages and the sum of P100,000.00 as and for exemplary
damages;
2. Defendant Atty. Juan Belarmino the sum of P250,000.00 as and for
moral damages and the sum of P150,000.00 as and for exemplary
damages;
3. Defendant Dra. Cruz and Atty. Belarmino the sum of P25,000.00
each as and for attorneys fees and litigation expenses; and
4. The costs of suit.
SO ORDERED.
 As found by the Court of Appeals and the lower
court, the antecedent facts of this case are as follows:
Petitioner Gregorio Fule, a banker by profession and a
jeweler at the same time, acquired a 10-hectare
property in Tanay, Rizal (hereinafter Tanay property),
covered by Transfer Certificate of Title No. 320725
which used to be under the name of Fr. Antonio
Jacobe. The latter had mortgaged it earlier to the Rural
Bank of Alaminos (the Bank), Laguna, Inc. to secure a
loan in the amount of P10,000.00, but the mortgage was
later foreclosed and the property offered for public
auction upon his default.
In July 1984, petitioner, as corporate secretary of
the bank, asked Remelia Dichoso and Oliva Mendoza to
look for a buyer who might be interested in the Tanay
property. The two found one in the person of herein
private respondent Dr. Ninevetch Cruz. It so happened
that at the time, petitioner had shown interest in buying
a pair of emerald-cut diamond earrings owned by Dr.
Cruz which he had seen in January of the same year
when his mother examined and appraised them as
genuine. Dr. Cruz, however, declined petitioners offer to
buy the jewelry for P100,000.00. Petitioner then made
another bid to buy them for US$6,000.00 at the
exchange rate of $1.00 to P25.00. At this point,
petitioner inspected said jewelry at the lobby of the
Prudential Bank branch in San Pablo City and then made
a sketch thereof. Having sketched the jewelry for twenty
to thirty minutes, petitioner gave them back to Dr. Cruz
who again refused to sell them since the exchange rate
of the peso at the time appreciated to P19.00 to a dollar.
Subsequently, however, negotiations for the barter
of the jewelry and the Tanay property ensued. Dr. Cruz
requested herein private respondent Atty. Juan
Belarmino to check the property who, in turn, found out
that no sale or barter was feasible because the one-year
period for redemption of the said property had not yet
expired at the time.
In an effort to cut through any legal impediment,
petitioner executed on October 19, 1984, a deed of
redemption on behalf of Fr. Jacobe purportedly in the
amount of P15,987.78, and on even date, Fr. Jacobe
sold the property to petitioner for P75,000.00. The haste
with which the two deeds were executed is shown by
the fact that the deed of sale was notarized ahead of the
deed of redemption. As Dr. Cruz had already agreed to
the proposed barter, petitioner went to Prudential Bank
once again to take a look at the jewelry.
In the afternoon of October 23, 1984, petitioner
met Atty. Belarmino at the latters residence to prepare
the documents of sale.[2] Dr. Cruz herself was not
around but Atty. Belarmino was aware that she and
petitioner had previously agreed to exchange a pair of
emerald-cut diamond earrings for the Tanay
property. Atty. Belarmino accordingly caused the
preparation of a deed of absolute sale while petitioner
and Dr. Cruz attended to the safekeeping of the jewelry.
The following day, petitioner, together with Dichoso
and Mendoza, arrived at the residence of Atty.
Belarmino to finally execute a deed of absolute sale.
Petitioner signed the deed and gave Atty. Belarmino the
amount of P13,700.00 for necessary expenses in the
transfer of title over the Tanay property. Petitioner also
issued a certification to the effect that the actual
consideration of the sale was P200,000.00 and
not P80,000.00 as indicated in the deed of absolute sale.
The disparity between the actual contract price and the
one indicated on the deed of absolute sale was
purportedly aimed at minimizing the amount of the
capital gains tax that petitioner would have to
shoulder. Since the jewelry was appraised only
at P160,000.00, the parties agreed that the balance
of P40,000.00 would just be paid later in cash.
As pre-arranged, petitioner left Atty. Belarminos
residence with Dichoso and Mendoza and headed for the
bank, arriving there at past 5:00 p.m. Dr. Cruz also
arrived shortly thereafter, but the cashier who kept the
other key to the deposit box had already left the
bank. Dr. Cruz and Dichoso, therefore, looked for said
cashier and found him having a haircut. As soon as his
haircut was finished, the cashier returned to the bank
and arrived there at 5:48 p.m., ahead of Dr. Cruz and
Dichoso who arrived at 5:55 p.m. Dr. Cruz and the
cashier then opened the safety deposit box, the former
retrieving a transparent plastic or cellophane bag with
the jewelry inside and handing over the same to
petitioner. The latter took the jewelry from the bag,
went near the electric light at the banks lobby, held the
jewelry against the light and examined it for ten to
fifteen minutes. After a while, Dr. Cruz asked, Okay na
ba iyan? Petitioner expressed his satisfaction by nodding
his head.
For services rendered, petitioner paid the agents,
Dichoso and Mendoza, the amount of US$300.00 and
some pieces of jewelry. He did not, however, give them
half of the pair of earrings in question which he had
earlier promised.
Later, at about 8:00 oclock in the evening of the
same day, petitioner arrived at the residence of Atty.
Belarmino complaining that the jewelry given to him was
fake. He then used a tester to prove the alleged
fakery. Meanwhile, at 8:30 p.m., Dichoso and Mendoza
went to the residence of Dr. Cruz to borrow her car so
that, with Atty. Belarmino, they could register the Tanay
property. After Dr. Cruz had agreed to lend her car,
Dichoso called up Atty. Belarmino. The latter, however,
instructed Dichoso to proceed immediately to his
residence because petitioner was there. Believing that
petitioner had finally agreed to give them half of the pair
of earrings, Dichoso went posthaste to the residence of
Atty. Belarmino only to find petitioner already
demonstrating with a tester that the earrings were
fake. Petitioner then accused Dichoso and Mendoza of
deceiving him which they, however, denied. They
countered that petitioner could not have been fooled
because he had vast experience regarding
jewelry. Petitioner nonetheless took back the US$300.00
and jewelry he had given them.
Thereafter, the group decided to go to the house of
a certain Macario Dimayuga, a jeweler, to have the
earrings tested. Dimayuga, after taking one look at the
earrings, immediately declared them counterfeit. At
around 9:30 p.m., petitioner went to one Atty. Reynaldo
Alcantara residing at Lakeside Subdivision in San Pablo
City, complaining about the fake jewelry. Upon being
advised by the latter, petitioner reported the matter to
the police station where Dichoso and Mendoza likewise
executed sworn statements.
On October 26, 1984, petitioner filed a complaint
before the Regional Trial Court of San Pablo City against
private respondents praying, among other things, that
the contract of sale over the Tanay property be declared
null and void on the ground of fraud and deceit.
On October 30, 1984, the lower court issued a
temporary restraining order directing the Register of
Deeds of Rizal to refrain from acting on the pertinent
documents involved in the transaction. On November 20,
1984, however, the same court lifted its previous order
and denied the prayer for a writ of preliminary
injunction.
After trial, the lower court rendered its decision on
March 7, 1989. Confronting the issue of whether or not
the genuine pair of earrings used as consideration for
the sale was delivered by Dr. Cruz to petitioner, the
lower court said:
The Court finds that the answer is definitely in the
affirmative. Indeed, Dra. Cruz delivered (the) subject
jewelries (sic) into the hands of plaintiff who even raised
the same nearer to the lights of the lobby of the bank
near the door. When asked by Dra. Cruz if everything
was in order, plaintiff even nodded his satisfaction
(Hearing of Feb. 24, 1988). At that instance, plaintiff did
not protest, complain or beg for additional time to
examine further the jewelries (sic). Being a professional
banker and engaged in the jewelry business plaintiff is
conversant and competent to detect a fake diamond
from the real thing. Plaintiff was accorded the
reasonable time and opportunity to ascertain and inspect
the jewelries (sic) in accordance with Article 1584 of the
Civil Code. Plaintiff took delivery of the subject jewelries
(sic) before 6:00 p.m. of October 24, 1984. When he
went at 8:00 p.m. that same day to the residence of
Atty. Belarmino already with a tester complaining about
some fake jewelries (sic), there was already undue delay
because of the lapse of a considerable length of time
since he got hold of subject jewelries (sic). The lapse of
two (2) hours more or less before plaintiff complained is
considered by the Court as unreasonable delay.[3]
The lower court further ruled that all the elements
of a valid contract under Article 1458 of the Civil Code
were present, namely: (a) consent or meeting of the
minds; (b) determinate subject matter, and (c) price
certain in money or its equivalent. The same elements,
according to the lower court, were present despite the
fact that the agreement between petitioner and Dr. Cruz
was principally a barter contract. The lower court
explained thus:
x x x. Plaintiffs ownership over the Tanay property
passed unto Dra. Cruz upon the constructive delivery
thereof by virtue of the Deed of Absolute Sale (Exh.
D). On the other hand, the ownership of Dra. Cruz over
the subject jewelries (sic) transferred to the plaintiff
upon her actual personal delivery to him at the lobby of
the Prudential Bank. It is expressly provided by law that
the thing sold shall be understood as delivered, when it
is placed in the control and possession of the vendee
(Art. 1497, Civil Code; Kuenzle & Straff vs. Watson & Co.
13 Phil. 26). The ownership and/or title over the
jewelries (sic) was transmitted immediately before 6:00
p.m. of October 24, 1984. Plaintiff signified his approval
by nodding his head. Delivery or tradition, is one of the
modes of acquiring ownership (Art. 712, Civil Code).
Similarly, when Exhibit D was executed, it was
equivalent to the delivery of the Tanay property in favor
of Dra. Cruz. The execution of the public instrument
(Exh. D) operates as a formal or symbolic delivery of the
Tanay property and authorizes the buyer, Dra. Cruz to
use the document as proof of ownership (Florendo v.
Foz, 20 Phil. 399). More so, since Exhibit D does not
contain any proviso or stipulation to the effect that title
to the property is reserved with the vendor until full
payment of the purchase price, nor is there a stipulation
giving the vendor the right to unilaterally rescind the
contract the moment the vendee fails to pay within a
fixed period (Taguba v. Vda. De Leon, 132 SCRA 722;
Luzon Brokerage Co. Inc. vs. Maritime Building Co. Inc.
86 SCRA 305; Froilan v. Pan Oriental Shipping Co. et al.
12 SCRA 276).[4]
Aside from concluding that the contract of barter or
sale had in fact been consummated when petitioner and
Dr. Cruz parted ways at the bank, the trial court likewise
dwelt on the unexplained delay with which petitioner
complained about the alleged fakery. Thus:
x x x. Verily, plaintiff is already estopped to come
back after the lapse of considerable length of time to
claim that what he got was fake.He is a Business
Management graduate of La Salle University, Class
1978-79, a professional banker as well as a jeweler in
his own right. Two hours is more than enough time to
make a switch of a Russian diamond with the real
diamond. It must be remembered that in July 1984
plaintiff made a sketch of the subject jewelries (sic) at
the Prudential Bank. Plaintiff had a tester at 8:00 p.m. at
the residence of Atty. Belarmino. Why then did he not
bring it out when he was examining the subject
jewelries (sic) at about 6:00 p.m. in the banks
lobby?Obviously, he had no need for it after being
satisfied of the genuineness of the subject jewelries
(sic). When Dra. Cruz and plaintiff left the bank both of
them had fully performed their respective
prestations. Once a contract is shown to have been
consummated or fully performed by the parties thereto,
its existence and binding effect can no longer be
disputed. It is irrelevant and immaterial to dispute the
due execution of a contract if both of them have in fact
performed their obligations thereunder and their
respective signatures and those of their witnesses
appear upon the face of the document (Weldon
Construction v. CA G.R. No. L-35721, Oct. 12, 1987).[5]
Finally, in awarding damages to the defendants, the
lower court remarked:
The Court finds that plaintiff acted in wanton bad
faith. Exhibit 2-Belarmino purports to show that the
Tanay property is worth P25,000.00. However, also on
that same day it was executed, the propertys worth was
magnified at P75,000.00 (Exh. 3-Belarmino). How could
in less than a day (Oct. 19, 1984) the value would (sic)
triple under normal circumstances? Plaintiff, with the
assistance of his agents, was able to exchange the
Tanay property which his bank valued only
at P25,000.00 in exchange for a genuine pair of emerald
cut diamond worth P200,000.00 belonging to Dra. Cruz.
He also retrieved the US$300.00 and jewelries (sic) from
his agents. But he was not satisfied in being able to get
subject jewelries for a song. He had to file a malicious
and unfounded case against Dra. Cruz and Atty.
Belarmino who are well known, respected and held in
high esteem in San Pablo City where everybody
practically knows everybody. Plaintiff came to Court with
unclean hands dragging the defendants and soiling their
clean and good name in the process. Both of them are
near the twilight of their lives after maintaining and
nurturing their good reputation in the community only to
be stunned with a court case. Since the filing of this
case on October 26, 1984 up to the present they were
living under a pall of doubt. Surely, this affected not only
their earning capacity in their practice of their respective
professions, but also they suffered besmirched
reputations. Dra. Cruz runs her own hospital and
defendant Belarmino is a well respected legal
practitioner.
The length of time this case dragged on during
which period their reputation were (sic) tarnished and
their names maligned by the pendency of the case, the
Court is of the belief that some of the damages they
prayed for in their answers to the complaint are
reasonably proportionate to the sufferings they
underwent (Art. 2219, New Civil Code). Moreover,
because of the falsity, malice and baseless nature of the
complaint defendants were compelled to litigate. Hence,
the award of attorneys fees is warranted under the
circumstances (Art. 2208, New Civil Code).[6]
From the trial courts adverse decision, petitioner
elevated the matter to the Court of Appeals. On October
20, 1992, the Court of Appeals, however, rendered a
decision[7]affirming in toto the lower courts decision. His
motion for reconsideration having been denied on
October 19, 1993, petitioner now files the instant
petition alleging that:
I. THE TRIAL COURT ERRED IN DISMISSING
PLAINTIFFS COMPLAINT AND IN HOLDING
THAT THE PLAINTIFF ACTUALLY RECEIVED
A GENUINE PAIR OF EMERALD CUT
DIAMOND EARRING(S) FROM DEFENDANT
CRUZ x x x;
II. THE TRIAL COURT ERRED IN AWARDING
MORAL AND EXEMPLARY DAMAGES AND
ATTORNEYS FEES IN FAVOR OF
DEFENDANTS AND AGAINST THE
PLAINTIFF IN THIS CASE; and
III.THE TRIAL COURT ERRED IN NOT
DECLARING THE DEED OF SALE OF THE
TANAY PROPERTY (EXH. `D) AS NULL AND
VOID OR IN NOT ANNULLING THE SAME,
AND IN FAILING TO GRANT REASONABLE
DAMAGES IN FAVOR OF THE PLAINTIFF.[8]
As to the first allegation, the Court observes that
petitioner is essentially raising a factual issue as it invites
us to examine and weigh anew the facts regarding the
genuineness of the earrings bartered in exchange for the
Tanay property. This, of course, we cannot do without
unduly transcending the limits of our review power in
petitions of this nature which are confined merely to
pure questions of law. We accord, as a general rule,
conclusiveness to a lower courts findings of fact unless it
is shown, inter alia, that: (1) the conclusion is a finding
grounded on speculations, surmises or conjectures;
(2) the inference is manifestly mistaken, absurd and
impossible; (3) when there is a grave abuse of
discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of fact
are conflicting; and (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case
and the same is contrary to the admission of both
parties.[9] We find nothing, however, that warrants the
application of any of these exceptions.
Consequently, this Court upholds the appellate
courts findings of fact especially because these concur
with those of the trial court which, upon a thorough
scrutiny of the records, are firmly grounded on evidence
presented at the trial.[10] To reiterate, this Courts
jurisdiction is only limited to reviewing errors of law in
the absence of any showing that the findings
complained of are totally devoid of support in the record
or that they are glaringly erroneous as to constitute
serious abuse of discretion.[11]
 Nonetheless, this Court has to closely delve into
petitioners allegation that the lower courts decision of
March 7, 1989 is a ready-made one because it was
handed down a day after the last date of the trial of the
case.[12] Petitioner, in this
regard, finds it incredible that Judge J. Ausberto
Jaramillo was able to write a 12-page single-spaced
decision, type it and release it on March 7, 1989, less
than a day after the last hearing on March 6, 1989. He
stressed that Judge Jaramillo replaced Judge Salvador
de Guzman and heard only his rebuttal testimony.
This allegation is obviously no more than a
desperate effort on the part of petitioner to disparage
the lower courts findings of fact in order to convince this
Court to review the same. It is noteworthy that Atty.
Belarmino clarified that Judge Jaramillo had issued the
first order in the case as early as March 9, 1987 or two
years before the rendition of the decision. In fact, Atty.
Belarmino terminated presentation of evidence on
October 13, 1987, while Dr. Cruz finished hers on
February 4, 1989, or more than a month prior to the
rendition of the judgment. The March 6, 1989 hearing
was conducted solely for the presentation of petitioner's
rebuttal testimony.[13] In other words, Judge Jaramillo
had ample time to study the case and write the decision
because the rebuttal evidence would only serve to
confirm or verify the facts already presented by the
parties.
The Court finds nothing anomalous in the said
situation. No proof has been adduced that Judge
Jaramillo was motivated by a malicious or sinister intent
in disposing of the case with dispatch. Neither is there
proof that someone else wrote the decision for him. The
immediate rendition of the decision was no more than
Judge Jaramillos compliance with his duty as a judge to
dispose of the courts business promptly and decide
cases within the required periods.[14] The two-year
period within which Judge Jaramillo handled the case
provided him with all the time to study it and even write
down its facts as soon as these were presented to
court. In fact, this Court does not see anything wrong in
the practice of writing a decision days before the
scheduled promulgation of judgment and leaving the
dispositive portion for typing at a time close to the date
of promulgation, provided that no malice or any
wrongful conduct attends its adoption.[15] The practice
serves the dual purposes of safeguarding the
confidentiality of draft decisions and rendering decisions
with promptness. Neither can Judge Jaramillo be made
administratively answerable for the immediate rendition
of the decision. The acts of a judge which pertain to his
judicial functions are not subject to disciplinary power
unless they are committed with fraud, dishonesty,
corruption or bad faith.[16] Hence, in the absence of
sufficient proof to the contrary, Judge Jaramillo is
presumed to have performed his job in accordance with
law and should instead be commended for his close
attention to duty.
Having disposed of petitioners first contention, we
now come to the core issue of this petition which is
whether the Court of Appeals erred in upholding the
validity of the contract of barter or sale under the
circumstances of this case.
The Civil Code provides that contracts are perfected
by mere consent. From this moment, the parties are
bound not only to the fulfillment of what has been
expressly stipulated but also to all the consequences
which, according to their nature, may be in keeping with
good faith, usage and law.[17] A contract of sale is
perfected at the moment there is a meeting of the minds
upon the thing which is the object of the contract and
upon the price.[18] Being consensual, a contract of sale
has the force of law between the contracting parties and
they are expected to abide in good faith by their
respective contractual commitments. Article 1358 of the
Civil Code which requires the embodiment of certain
contracts in a public instrument, is only for
convenience,[19] and registration of the instrument only
adversely affects third parties.[20] Formal requirements
are, therefore, for the benefit of third parties. Non-
compliance therewith does not adversely affect the
validity of the contract nor the contractual rights and
obligations of the parties thereunder.
It is evident from the facts of the case that there
was a meeting of the minds between petitioner and Dr.
Cruz. As such, they are bound by the contract unless
there are reasons or circumstances that warrant its
nullification. Hence, the problem that should be
addressed in this case is whether or not under the facts
duly established herein, the contract can be voided in
accordance with law so as to compel the parties to
restore to each other the things that have been the
subject of the contract with their fruits, and the price
with interest.[21]
Contracts that are voidable or annullable, even
though there may have been no damage to the
contracting parties are: (1) those where one of the
parties is incapable of giving consent to a contract; and
(2) those where the consent is vitiated by mistake,
violence, intimidation, undue influence or
fraud.[22] Accordingly, petitioner now stresses before this
Court that he entered into the contract in the belief that
the pair of emerald-cut diamond earrings was genuine.
On the pretext that those pieces of jewelry turned out to
be counterfeit, however, petitioner subsequently sought
the nullification of said contract on the ground that it
was, in fact, tainted with fraud[23] such that his consent
was vitiated.
There is fraud when, through the insidious words or
machinations of one of the contracting parties, the other
is induced to enter into a contract which, without them,
he would not have agreed to.[24] The records, however,
are bare of any evidence manifesting that private
respondents employed such insidious words or
machinations to entice petitioner into entering the
contract of barter. Neither is there any evidence showing
that Dr. Cruz induced petitioner to sell his Tanay
property or that she cajoled him to take the earrings in
exchange for said property. On the contrary, Dr. Cruz
did not initially accede to petitioners proposal to buy the
said jewelry. Rather, it appears that it was petitioner,
through his agents, who led Dr. Cruz to believe that the
Tanay property was worth exchanging for her jewelry as
he represented that its value was P400,000.00 or more
than double that of the jewelry which was valued only
at P160,000.00. If indeed petitioners property was truly
worth that much, it was certainly contrary to the nature
of a businessman-banker like him to have parted with
his real estate for half its price. In short, it was in fact
petitioner who resorted to machinations to convince Dr.
Cruz to exchange her jewelry for the Tanay property.
Moreover, petitioner did not clearly allege mistake
as a ground for nullification of the contract of sale. Even
assuming that he did, petitioner cannot successfully
invoke the same. To invalidate a contract, mistake must
refer to the substance of the thing that is the object of
the contract, or to those conditions which have
principally moved one or both parties to enter into the
contract.[25] An example of mistake as to the object of
the contract is the substitution of a specific thing
contemplated by the parties with another.[26] In his
allegations in the complaint, petitioner insinuated that
an inferior one or one that had only Russian diamonds
was substituted for the jewelry he wanted to exchange
with his 10-hectare land. He, however, failed to prove
the fact that prior to the delivery of the jewelry to him,
private respondents endeavored to make such
substitution.
Likewise, the facts as proven do not support the
allegation that petitioner himself could be excused for
the mistake. On account of his work as a banker-
jeweler, it can be rightfully assumed that he was an
expert on matters regarding gems. He had the
intellectual capacity and the business acumen as a
banker to take precautionary measures to avert such a
mistake, considering the value of both the jewelry and
his land. The fact that he had seen the jewelry before
October 24, 1984 should not have precluded him from
having its genuineness tested in the presence of Dr.
Cruz. Had he done so, he could have avoided the
present situation that he himself brought about. Indeed,
the finger of suspicion of switching the genuine jewelry
for a fake inevitably points to him. Such a mistake
caused by manifest negligence cannot invalidate a
juridical act.[27] As the Civil Code provides, (t)here is no
mistake if the party alleging it knew the doubt,
contingency or risk affecting the object of the
contract.[28]
Furthermore, petitioner was afforded the
reasonable opportunity required in Article 1584 of the
Civil Code within which to examine the jewelry as he in
fact accepted them when asked by Dr. Cruz if he was
satisfied with the same.[29] By taking the jewelry outside
the bank, petitioner executed an act which was more
consistent with his exercise of ownership over it. This
gains credence when it is borne in mind that he himself
had earlier delivered the Tanay property to Dr. Cruz by
affixing his signature to the contract of sale. That after
two hours he later claimed that the jewelry was not the
one he intended in exchange for his Tanay property,
could not sever the juridical tie that now bound him and
Dr. Cruz. The nature and value of the thing he had
taken preclude its return after that supervening period
within which anything could have happened, not
excluding the alteration of the jewelry or its being
switched with an inferior kind.
Both the trial and appellate courts, therefore,
correctly ruled that there were no legal bases for the
nullification of the contract of sale.Ownership over the
parcel of land and the pair of emerald-cut diamond
earrings had been transferred to Dr. Cruz and petitioner,
respectively, upon the actual and constructive delivery
thereof.[30] Said contract of sale being absolute in
nature, title passed to the vendee upon delivery of the
thing sold since there was no stipulation in the contract
that title to the property sold has been reserved in the
seller until full payment of the price or that the vendor
has the right to unilaterally resolve the contract the
moment the buyer fails to pay within a fixed
period.[31] Such stipulations are not manifest in the
contract of sale.
While it is true that the amount of P40,000.00
forming part of the consideration was still payable to
petitioner, its nonpayment by Dr. Cruz is not a sufficient
cause to invalidate the contract or bar the transfer of
ownership and possession of the things exchanged
considering the fact that their contract is silent as to
when it becomes due and demandable.[32]
Neither may such failure to pay the balance of the
purchase price result in the payment of interest
thereon. Article 1589 of the Civil Code prescribes the
payment of interest by the vendee for the period
between the delivery of the thing and the payment of
the price in the following cases:
(1) Should it have been so stipulated;
(2) Should the thing sold and delivered
produce fruits or income;
(3) Should he be in default, from the time of
judicial or extrajudicial demand for the
payment of the price.
Not one of these cases obtains here. This case should,
of course, be distinguished from De la Cruz v.
Legaspi,[33] where the court held that failure to pay the
consideration after the notarization of the contract as
previously promised resulted in the vendees liability for
payment of interest. In the case at bar, there is no
stipulation for the payment of interest in the contract of
sale nor proof that the Tanay property produced fruits or
income. Neither did petitioner demand payment of the
price as in fact he filed an action to nullify the contract
of sale.
All told, petitioner appears to have elevated this
case to this Court for the principal reason of mitigating
the amount of damages awarded to both private
respondents which petitioner considers as exorbitant. He
contends that private respondents do not deserve at all
the award of damages. In fact, he pleads for the total
deletion of the award as regards private respondent
Belarmino whom he considers a mere nominal party
because no specific claim for damages against him was
alleged in the complaint. When he filed the case, all that
petitioner wanted was that Atty. Belarmino should return
to him the owners duplicate copy of TCT No. 320725,
the deed of sale executed by Fr. Antonio Jacobe, the
deed of redemption and the check alloted for
expenses. Petitioner alleges further that Atty. Belarmino
should not have delivered all those documents to Dr.
Cruz because as the lawyer for both the seller and the
buyer in the sale contract, he should have protected the
rights of both parties. Moreover, petitioner asserts that
there was no firm basis for damages except for Atty.
Belarminos uncorroborated testimony.[34]
Moral and exemplary damages may be awarded
without proof of pecuniary loss. In awarding such
damages, the court shall take into account the
circumstances obtaining in the case and assess damages
according to its discretion.[35] To warrant the award of
damages, it must be shown that the person to whom
these are awarded has sustained injury. He must
likewise establish sufficient data upon which the court
can properly base its estimate of the amount of
damages.[36] Statements of facts should establish such
data rather than mere conclusions or opinions of
witnesses.[37] Thus:
x x x. For moral damages to be awarded, it is
essential that the claimant must have
satisfactorily proved during the trial the
existence of the factual basis of the damages
and its causal connection with the adverse
partys acts. If the court has no proof or
evidence upon which the claim for moral
damages could be based, such indemnity could
not be outrightly awarded. The same holds
true with respect to the award of exemplary
damages where it must be shown that the
party acted in a wanton, oppressive or
malevolent manner.[38]
In this regard, the lower court appeared to have
awarded damages on a ground analogous to malicious
prosecution under Article 2219(8) of the Civil Code [39] as
shown by (1) petitioners wanton bad faith in bloating
the value of the Tanay property which he exchanged for
a genuine pair of emerald-cut diamond
worth P200,000.00; and (2) his filing of a malicious and
unfounded case against private respondents who were
well known, respected and held in high esteem in San
Pablo City where everybody practically knows everybody
and whose good names in the twilight of their lives were
soiled by petitioners coming to court with unclean
hands, thereby affecting their earning capacity in the
exercise of their respective professions and besmirching
their reputation.
For its part, the Court of Appeals affirmed the
award of damages to private respondents for these
reasons:
The malice with which Fule filed this case is
apparent. Having taken possession of the
genuine jewelry of Dra. Cruz, Fule now wishes
to return a fake jewelry to Dra. Cruz and, more
than that, get back the real property, which his
bank owns. Fule has obtained a genuine
jewelry which he could sell anytime, anywhere
and to anybody, without the same being traced
to the original owner for practically
nothing. This is plain and simple, unjust
enrichment.[40]
While, as a rule, moral damages cannot be
recovered from a person who has filed a complaint
against another in good faith because it is not sound
policy to place a penalty on the right to litigate, [41] the
same, however, cannot apply in the case at
bar. The factual findings of the courts a quo to the effect
that petitioner filed this case because he was the victim
of fraud; that he could not have been such a victim
because he should have examined the jewelry in
question before accepting delivery thereof, considering
his exposure to the banking and jewelry businesses; and
that he filed the action for the nullification of the
contract of sale with unclean hands, all deserve full faith
and credit to support the conclusion that petitioner was
motivated more by ill will than a sincere attempt to
protect his rights in commencing suit against
respondents.
As pointed out earlier, a closer scrutiny of the chain
of events immediately prior to and on October 24, 1984
itself would amply demonstrate that petitioner was not
simply negligent in failing to exercise due diligence to
assure himself that what he was taking in exchange for
his property were genuine diamonds. He had rather
placed himself in a situation from which it
preponderantly appears that his seeming ignorance was
actually just a ruse. Indeed, he had unnecessarily
dragged respondents to face the travails of litigation in
speculating at the possible favorable outcome of his
complaint when he should have realized that his
supposed predicament was his own making. We,
therefore, see here no semblance of an honest and
sincere belief on his part that he was swindled by
respondents which would entitle him to redress in
court. It must be noted that before petitioner was able
to convince Dr. Cruz to exchange her jewelry for the
Tanay property, petitioner took pains to thoroughly
examine said jewelry, even going to the extent of
sketching their appearance. Why at the precise moment
when he was about to take physical possession thereof
he failed to exert extra efforts to check their
genuineness despite the large consideration involved has
never been explained at all by petitioner. His acts thus
failed to accord with what an ordinary prudent man
would have done in the same situation. Being an
experienced banker and a businessman himself who
deliberately skirted a legal impediment in the sale of the
Tanay property and to minimize the capital gains tax for
its exchange, it was actually gross recklessness for him
to have merely conducted a cursory examination of the
jewelry when every opportunity for doing so was not
denied him. Apparently, he carried on his person a tester
which he later used to prove the alleged fakery but
which he did not use at the time when it was most
needed. Furthermore, it took him two more hours of
unexplained delay before he complained that the jewelry
he received were counterfeit. Hence, we stated earlier
that anything could have happened during all the time
that petitioner was in complete possession and control
of the jewelry, including the possibility of substituting
them with fake ones, against which respondents would
have a great deal of difficulty defending themselves. The
truth is that petitioner even failed to successfully prove
during trial that the jewelry he received from Dr. Cruz
were not genuine. Add to that the fact that he had been
shrewd enough to bloat the Tanay propertys price only a
few days after he purchased it at a much lower value.
Thus, it is our considered view that if this slew of
circumstances were connected, like pieces of fabric sewn
into a quilt, they would sufficiently demonstrate that his
acts were not merely negligent but rather studied and
deliberate.
We do not have here, therefore, a situation where
petitioners complaint was simply found later to be based
on an erroneous ground which, under settled
jurisprudence, would not have been a reason for
awarding moral and exemplary damages.[42] Instead, the
cause of action of the instant case appears to have been
contrived by petitioner himself. In other words, he was
placed in a situation where he could not honestly
evaluate whether his cause of action has a semblance of
merit, such that it would require the expertise of the
courts to put it to a test. His insistent pursuit of such
case then coupled with circumstances showing that he
himself was guilty in bringing about the supposed
wrongdoing on which he anchored his cause of action
would render him answerable for all damages the
defendant may suffer because of it.This is precisely what
took place in the petition at bar and we find no cogent
reason to disturb the findings of the courts below that
respondents in this case suffered considerable damages
due to petitioners unwarranted action.
WHEREFORE, the decision of the Court of Appeals
dated October 20, 1992 is hereby AFFIRMED in toto. Dr.
Cruz, however, is ordered to pay petitioner the balance
of the purchase price of P40,000.00 within ten (10) days
from the finality of this decision. Costs against
petitioner. SO ORDERED.
[G.R. No. 120262. July 17, 1997]
PHILIPPINE AIRLINES, INC., petitioner,
vs. COURT OF APPEALS and LEOVIGILDO
A. PANTEJO, respondents.
In this appeal by certiorari, petitioner Philippine
Airlines, Inc. (PAL) seeks to set aside the decision of
respondent Court of Appeals,[1]promulgated on
December 29, 1994, which affirmed the award for
damages made by the trial court in favor of herein
private respondent Leovegildo A. Pantejo.
On October 23, 1988, private respondent Pantejo,
then City Fiscal of Surigao City, boarded a PAL plane in
Manila and disembarked in Cebu City where he was
supposed to take his connecting flight to Surigao
City. However, due to typhoon Osang, the connecting
flight to Surigao City was cancelled.
To accommodate the needs of its stranded
passengers, PAL initially gave out cash assistance
of P100.00 and, the next day, P200.00, for their
expected stay of two days in Cebu. Respondent Pantejo
requested instead that he be billeted in a hotel at PALs
expense because he did not have cash with him at that
time, but PAL refused. Thus, respondent Pantejo was
forced to seek and accept the generosity of a co-
passenger, an engineer named Andoni Dumlao, and he
shared a room with the latter at Sky View Hotel with the
promise to pay his share of the expenses upon reaching
Surigao.
On October 25, 1988 when the flight for Surigao
was resumed, respondent Pantejo came to know that
the hotel expenses of his co-passengers, one
Superintendent Ernesto Gonzales and a certain Mrs.
Gloria Rocha, an auditor of the Philippine National Bank,
were reimbursed by PAL. At this point, respondent
Pantejo informed Oscar Jereza, PALs Manager for
Departure Services at Mactan Airport and who was in
charge of cancelled flights, that he was going to sue the
airline for discriminating against him. It was only then
that Jereza offered to pay respondent Pantejo P300.00
which, due to the ordeal and anguish he had undergone,
the latter declined.
On March 18, 199l, the Regional Trial Court of
Surigao City, Branch 30, rendered judgment in the
action for damages filed by respondent Pantejo against
herein petitioner, Philippine Airlines, Inc., ordering the
latter to pay Pantejo P300.00 for actual
damages, P150,000.00 as moral damages, P100,000.00
as exemplary damages, P15,000.00 as attorneys fees,
and 6% interest from the time of the filing of the
complaint until said amounts shall have been fully paid,
plus costs of suit.[2] On appeal, respondent court
affirmed the decision of the court a quo, but with the
exclusion of the award of attorneys fees and litigation
expenses.
The main issue posed for resolution is whether
petitioner airlines acted in bad faith when it failed and
refused to provide hotel accommodations for respondent
Pantejo or to reimburse him for hotel expenses incurred
by reason of the cancellation of its connecting flight to
Surigao City due to force majeure.
To begin with, it must be emphasized that a
contract to transport passengers is quite different in kind
and degree from any other contractual relation, and this
is 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 carriers employees
naturally could give ground for an action for damages.[3]
In ruling for respondent Pantejo, both the trial
court and the Court of Appeals found that herein
petitioner acted in bad faith in refusing to provide hotel
accommodations for respondent Pantejo or to reimburse
him for hotel expenses incurred despite and in contrast
to the fact that other passengers were so favored.
In declaring that bad faith existed, respondent
court took into consideration the following factual
circumstances:
1. Contrary to petitioners claim that cash assistance was
given instead because of non-availability of rooms in
hotels where petitioner had existing tie-ups, the
evidence shows that Sky View Hotel, where respondent
Pantejo was billeted, had plenty of rooms available.
2. It is not true that the P300.00 paid to Ernesto
Gonzales, a co-passenger of respondent, was a refund
for his plane ticket, the truth being that it was a
reimbursement for hotel and meal expenses.
3. It is likewise not denied that said Gonzales and herein
respondent came to know about the reimbursements
only because another passenger, Mrs. Rocha, informed
them that she was able to obtain the refund for her own
hotel expenses.
4. Petitioner offered to pay P300.00 to private
respondent only after he had confronted the airlines
manager about the discrimination committed against
him, which the latter realized was an actionable wrong.
5. Service Voucher No. 199351, presented by petitioner
to prove that it gave cash assistance to its passengers,
was based merely on the list of passengers already
given cash assistance and was purportedly prepared at
around 10:00 A.M. of October 23, 1988. This was two
hours before respondent came to know of the
cancellation of his flight to Surigao, hence private
respondent could not have possibly refused the same.[4]
It must be stressed that these factual findings,
which are supported by substantial evidence, are
binding, final and conclusive upon this Court absent any
reason, and we find none, why this settled evidential
rule should not apply.
Petitioner theorizes that the hotel accommodations
or cash assistance given in case a flight is cancelled is in
the nature of an amenity and is merely a privilege that
may be extended at its own discretion, but never a right
that may be demanded by its passengers. Thus, when
respondent Pantejo was offered cash assistance and he
refused it, petitioner cannot be held liable for whatever
befell respondent Pantejo on that fateful day, because it
was merely exercising its discretion when it opted to just
give cash assistance to its passengers.
Assuming arguendo that the airline passengers
have no vested right to these amenities in case a flight
is cancelled due to force majeure, what makes petitioner
liable for damages in this particular case and under the
facts obtaining herein is its blatant refusal to accord the
so-called amenities equally to all its stranded passengers
who were bound for Surigao City. No compelling or
justifying reason was advanced for such discriminatory
and prejudicial conduct.
More importantly, it has been sufficiently
established that it is petitioners standard company
policy, whenever a flight has been cancelled, to extend
to its hapless passengers cash assistance or to provide
them accommodations in hotels with which it has
existing tie-ups. In fact, petitioners Mactan Airport
Manager for departure services, Oscar Jereza, admitted
that PAL has an existing arrangement with hotels to
accommodate stranded passengers,[5] and that the hotel
bills of Ernesto Gonzales were reimbursed[6] obviously
pursuant to that policy.
Also, two witnesses presented by respondent,
Teresita Azarcon and Nerie Bol, testified that sometime
in November, 1988, when their flight from Cebu to
Surigao was cancelled, they were billeted at Rajah Hotel
for two nights and three days at the expense of
PAL.[7] This was never denied by PAL.
Further, Ernesto Gonzales, the aforementioned co-
passenger of respondent on that fateful flight, testified
that based on his previous experience hotel
accommodations were extended by PAL to its stranded
passengers either in Magellan or Rajah Hotels, or even
in Cebu Plaza. Thus, we view as impressed with dubiety
PALs present attempt to represent such emergency
assistance as being merely ex gratiaand not ex debito.
 While petitioner now insists that the passengers
were duly informed that they would be reimbursed for
their hotel expenses, it miserably and significantly failed
to explain why the other passengers were given
reimbursements while private respondent was
not. Although Gonzales was subsequently given a
refund, this was only so because he came to know about
it by accident through Mrs. Rocha, as earlier explained.
Petitioner could only offer the strained and flimsy
pretext that possibly the passengers were not listening
when the announcement was made. This is absurd
because when respondent Pantejo came to know that
his flight had been cancelled, he immediately proceeded
to petitioners office and requested for hotel
accommodations. He was not only refused
accommodations, but he was not even informed that he
may later on be reimbursed for his hotel expenses. This
explains why his co-passenger, Andoni Dumlao, offered
to answer for respondents hotel bill and the latter
promised to pay him when they arrive in Surigao. Had
both known that they would be reimbursed by the
airline, such arrangement would not have been
necessary.
Respondent Court of Appeals thus correctly
concluded that the refund of hotel expenses was
surreptitiously and discriminatorily made by herein
petitioner since the same was not made known to
everyone, except through word of mouth to a handful of
passengers. This is a sad commentary on the quality of
service and professionalism of an airline company, which
is the countrys flag carrier at that.
On the bases of all the foregoing, the inescapable
conclusion is that petitioner acted in bad faith in
disregarding its duties as a common carrier to its
passengers and in discriminating against herein
respondent Pantejo. It was even oblivious to the fact
that this respondent was exposed to humiliation and
embarrassment especially because of his government
position and social prominence, which altogether
necessarily subjected him to ridicule, shame and
anguish. It remains uncontroverted that at the time of
the incident, herein respondent was then the City
Prosecutor of Surigao City, and that he is a member of
the Philippine Jaycee Senate, past Lt. Governor of the
Kiwanis Club of Surigao, a past Master of the Mount
Diwata Lodge of Free Masons of the Philippines, member
of the Philippine National Red Cross, Surigao Chapter,
and past Chairman of the Boy Scouts of the Philippines,
Surigao del Norte Chapter.[8]
It is likewise claimed that the moral and exemplary
damages awarded to respondent Pantejo are excessive
and unwarranted on the ground that respondent is not
totally blameless because of his refusal to accept
the P100.00 cash assistance which was inceptively
offered to him. It bears emphasis that respondent
Pantejo had every right to make such refusal since it
evidently could not meet his needs and that was all that
PAL claimed it could offer.
His refusal to accept the P300.00 proffered as an
afterthought when he threatened suit was justified by
his resentment when he belatedly found out that his co-
passengers were reimbursed for hotel expenses and he
was not. Worse, he would not even have known about it
were it not for a co-passenger who verbally told him that
she was reimbursed by the airline for hotel and meal
expenses. It may even be said that the amounts, the
time and the circumstances under which those amounts
were offered could not salve the moral wounds inflicted
by PAL on private respondent but even approximated
insult added to injury.
The discriminatory act of petitioner against
respondent ineludibly makes the former liable for moral
damages under Article 21 in relation to Article 2219 (10)
of the Civil Code.[9] As held in Alitalia Airways vs. CA, et
al.,[10] such inattention to and lack of care by petitioner
airline for the interest of its passengers who are entitled
to its utmost consideration, particularly as to their
convenience, amount to bad faith which entitles the
passenger to the award of moral damages.
Moral damages are emphatically not intended to
enrich a plaintiff at the expense of the defendant. They
are awarded only to allow the former to obtain means,
diversion, or amusements that will serve to alleviate the
moral suffering he has undergone due to the defendants
culpable action and must, perforce, be proportional to
the suffering inflicted.[11] However, substantial damages
do not translate into excessive damages.[12] Except for
attorneys fees and costs of suit, it will be noted that the
Court of Appeals affirmed point by point the factual
findings of the lower court upon which the award of
damages had been based.[13] We, therefore, see no
reason to modify the award of damages made by the
trial court.
Under the peculiar circumstances of this case, we
are convinced that the awards for actual, moral and
exemplary damages granted in the judgment of
respondent court, for the reasons meticulously analyzed
and thoroughly explained in its decision, are just and
equitable. It is high time that the travelling public is
afforded protection and that the duties of common
carriers, long detailed in our previous laws and
jurisprudence and thereafter collated and specifically
catalogued in our Civil Code in 1950, be enforced
through appropriate sanctions.
We agree, however, with the contention that the
interest of 6% imposed by respondent court should be
computed from the date of rendition of judgment and
not from the filing of the complaint. The rule has been
laid down in Eastern Shipping Lines, Inc. vs. Court of
Appeals, et al.[14] that:
When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum. No
interest, however, shall be adjudged on unliquidated
claims or damages except when or until the demand can
be established with reasonable certainty. Accordingly,
where the demand is established with reasonable
certainty, the interest shall begin to run from the time
the claim is made judicially or extrajudicially (Art. 1169,
Civil Code) but when such certainty cannot be so
reasonably established at the time the demand is made,
the interest shall begin to run only from the date the
judgment of the court is made (at which time the
quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the
computation of legal interest shall, in any case, be on
the amount finally adjudged.
This is because at the time of the filing of the
complaint, the amount of damages to which plaintiff
may be entitled remains unliquidated and not known,
until it is definitely ascertained, assessed and
determined by the court, and only after the presentation
of proof thereon.[15]
WHEREFORE, the challenged judgment of
respondent Court of Appeals is hereby AFFIRMED,
subject to the MODIFICATIONregarding the computation
of the 6% legal rate of interest on the monetary awards
granted therein to private respondent. SO ORDERED.
(f) WHO MAY RECOVER
[G.R. No. L-4722. December 29, 1954.]
EMILIO STREBEL, Plaintiff-Appellant, v. JOSE
FIGUERAS, Acting Secretary of Labor, FELIPE E.
JOSE, Director of Labor and CORNELIO S.
RUPERTO, Assistant City Fiscal of
Manila, Defendant-Appellees.
1. DAMAGES; MORAL DAMAGES; RECOVERY FOR MENTAL
SUFFERING IS PERSONAL; AS WELL AS FOR DISTRESS
CAUSED BY SYMPATHY FOR ANOTHER’S SUFFERING, OR
FOR FRIGHT DUE TO WRONG AGAINST A THIRD PERSON.
— "As a general rule, the right of recovery for mental
suffering resulting from bodily injuries is restricted to the
person who has suffered the bodily hurt, and there can be
no recovery for distress caused by sympathy for another’s
suffering, or for fright due to a wrong against a third person.
So the anguish of mind arising as to safety of others who
may be in personal peril from the same cause cannot be
taken into consideration." "In law, mental anguish is
restricted as a rule, to such mental pain or suffering as
arises from an injury or wrong to the person himself, as
distinguished from that form of mental suffering which the
accompaniment of sympathy or sorrow for another’s
suffering or which arises from a contemplation of wrongs
committed on the person of another. Pursuant to the rule
stated, a husband or wife cannot recover for mental
suffering caused by his sympathy for the other’s
suffering."cralaw virtua1aw library
2. ID.; MALICIOUS PROSECUTION; RECOVERY OF MORAL
DAMAGES; ACTS DONE BEFORE NEW CIVIL CODE. — By
specific mandate of Article 2219 of the Civil Code of the
Philippines, moral damages may not be recovered in cases
of crime or tort, unless either results or causes "physical
injuries," which are lacking in the case at bar. Although the
same article permits recovery of said damages in cases of
malicious prosecution, this feature of said provision may not
be availed of by the plaintiff herein, inasmuch as the acts set
forth in the complaint took place in 1949, or before said
code became effective.
3. ID.; MORAL DAMAGES; PRESS STATEMENTS EMANATED
FROM COURT RECORDS; NOT ACTIONABLE. — The news
item in question mentions, neither the number of the cases
referred to, nor the names of the persons accused therein.
Moreover, it merely contains a criticism of the action taken
by the court. The reference, therein imputed to the Director
of Labor, to the flagrant violation of the eight-hour labor law
by the accused, was a mere reiteration of the theory of the
Bureau of Labor, which the prosecution had adopted by
filing the information in said office. Being a matter of court
record, which had been taken up at the hearing held
publicly, and settled in a decision already promulgated, said
theory was open for public consumption, and hence, an
allusion thereto or statement thereof, in order to justify said
criticism, is not actionable.
DECISION
This is an appeal, taken by plaintiff, Emilio Strebel, from
an order of the Court of First Instance of Manila granting
a motion to dismiss filed by the defendants herein, Jose
Figueras, Felipe E. Jose and Cornelio S. Ruperto, and,
consequently, dismissing plaintiff’s complaint, without
special pronouncement as to costs, upon the ground
that the facts alleged in said pleading do not constitute a
cause of action.
The complaint purports to set forth three causes of
action. The alleged acts upon which plaintiff’s first cause
of action is predicated may be divided into four (4)
groups, namely:chanrob1es virtual 1aw library
1. That, as lessee of a lot situated at Nos. 735-737
Santa Mesa, Manila, plaintiff Strebel subleased part
thereof to the Standard Vacuum Oil Company; that the
latter constructed thereon a Mobilgas Station which was
operated by Eustaquio & Co., a partnership organized by
said plaintiff and one Primo Eustaquio, that, "out of spite
and with a view to the eventual acquisition of the said
property for himself and his men," defendant Jose
Figueras "tried all he could to built a drainage through"
the aforementioned property; that, in order to
accomplish this purpose, and, using his official and
political influence, defendant Figueras, then Under-
Secretary of Labor, caused. his co-defendant Cornelio S.
Ruperto, an Assistant City Fiscal of Manila, to prepare an
opinion, dated June 18, 1949, which was signed by the
City Fiscal, holding that the City of Manila has a right to
construct said drainage, and, to this effect, make the
necessary excavations, of about 70 centimeters in width,
at the boundary line of said lot leased to Strebel and the
lot belonging to Figueras; that, said opinion induced the
city engineer of Manila to write to plaintiff Strebel the
letter Exhibit B, dated June 22, 1949,
reading:jgc:chanrobles.com.ph
"Republic of the Philippines
City of Manila
DEPARTMENT OF ENGINEERING AND PUBLIC WORKS
June 22, 1949
Mr. Emilio Strebel
Manila
Sir:chanrob1es virtual 1aw library
In connection with the drainage of a certain dominant estate on
Buenos Aires which flows across a certain servient estate on Sta. Mesa
Boulevard and which was closed by the construction of a gasoline
station by the Standard Vacuum Oil Company on Santa Mesa
Boulevard, I have the honor to inform you that our men will make an
excavation on the strip of land lying between the lot of Mr. Jose
Figueras on Buenos Aires and the gasoline station of the Standard
Vacuum Oil Company on Sta. Mesa Boulevard for the purpose of laying
a pipe across the said strip of land to connect the drainage of the
dominant estate with the drainage of the servient estate occupied by
the gasoline station towards the storm sewers on the Sta. Mesa
Boulevard. The excavation will be backfilled and the ground restored
to its original condition by our men after the pipe had been laid.
"The ownership of the strip of land across which the excavation will be
made and a pipe will be laid by our men is, according to our
information, under litigation between you and Mr. Antonio Isaac. This
letter is being addressed to you as one of the litigating parties.
Respectfully,
s/ ALEJO AQUINO
t/ ALEJO AQUINO"
and that plaintiff and his partner Primo Eustaquio,
protested against the aforementioned proposed
excavation and drainage, which, accordingly, was not
made or construed;
2. That on September 14, 1949, defendant Figueras "by
making use of his official and political connections," was
able to induce the Secretary of Justice to transfer
temporarily, from the Bureau of Immigration to the
Bureau of Prisons, one Dr. Manuel Hernandez, the
husband of plaintiff’s step daughter; that, thereafter,
Figueras, "and/or his adviser," caused to be prepared
the following letter, Exhibit E:jgc:chanrobles.com.ph
"December 9, 1949
(CONFIDENTIAL)
Hon. Primitivo Lovina
Secretary of Labor
Manila
Dear Sir:chanrob1es virtual 1aw library
The undersigned have approached Secretary of Justice Ricardo
Nepomuceno with the idea of requesting him to intervene between us
and Under-Secretary of Labor Jose Figueras with the end in view of
settling family misunderstandings. Secretary Nepomuceno advised us
to appeal to you. The origin and cause of these cases were previous
personal affairs which led to serious family troubles and squabbles. In
addition, there were the party differences between us and
Undersecretary Figueras.
"As the election are now over and as we would like to be in peace with
Mr. Figueras, we desire to ask your good self, knowing your interest in
the welfare of common people like us, to intercede for us with Mr.
Figueras so that he may forget our differences. We also desire to ask
you to use your good offices looking towards the return of Dr. Manuel
Hernandez from the Bureau of Prisons to the Bureau of Immigration
where he is a regular Medical Officer. We are confident that, with your
influence and friendship with Mr. Figueras, he would consent to forget
the past and let bygones be bygones between us. On part, we promise
to treat and the members of his family as real friends and I hope that
his feelings towards us will be the same.
"Should you be as kind as to effect. This reconciliation, we will be ever
grateful to you.
Yours truly,
EMILIO STREBEL
LEONOR TIANGCO DE STREBEL
MANUEL HERNANDEZ
Conforme:chanrob1es virtual 1aw library
JOSE FIGUERAS"
which is said to be conceive in nature and derogatory not only to Dr.
Manuel Hernandez but also the herein plaintiff and his wife;" that upon
failure to secure plaintiff’s signature on said letter, "another one" —
copy of which is attached to the complaint as Exhibit F — "was
prepared and submitted at the instigation of defendant Figueras and at
the behest of the then Secretary of Justice, for the signature of the
herein plaintiff, his wife and Dr. Manuel Hernandez;" that said Exhibit F
is of the following tenor:jgc:chanrobles.com.ph
"AGREEMENT
We, JOSE FIGUERAS and MANUEL A. HERNANDEZ, OUT OF RESPECT
AND CONSIDERATION for our superior officers, the Honorable
Secretary of Justice and the Honorable Secretary of Labor, have this
date mutually agreed to bury whatever personal differences we may or
might have.
I, MANUEL A. HERNANDEZ, hereby promise to do all I can to inform
my in-laws E. Strebel and Leonor S. Tiangco of this mutual agreement
and to convince them that JOSE FIGUERAS IS amenable to the return
of their friendly relation and to ask them to follow the same spirit and
forget the past differences so that they can live together again as one
harmonious family. It is understood that if Leonor S. Tiangco and or E.
Strebel have heretofore filed any complaint in the Fiscal’s office or
elsewhere against Jose Figueras, they will from now on withdraw said
complaints;
"TO THIS END, WE HAVE SIGNED THIS AGREEMENT.
Manila, December 11th, 1949.
s/ MANUEL A. HERNANDEZ
t/ MANUEL A. HERNANDEZ
s/ LEONOR S. TIANGCO
t/ LEONOR S. TIANGCO
s/ E. STREBEL
t/ E. STREBEL
WITH MY CONFORMITY:chanrob1es virtual 1aw library
s/ JOSE FIGUERAS
t/ JOSE FIGUERAS
s/ OK.
Nepomuceno"
that after the foregoing "agreement" had been signed by
plaintiff "just to please defendant Figueras," said Dr.
Manuel Hernandez was, upon instructions of the
Secretary of Justice, returned to his former assignment
in the Bureau of Prisons;
3. That, on or about, September 15, 1949, "making use
of his official and political influence," and with the
cooperation of his former secretary, defendant Cornelio
S. Ruperto, an Assistant City Fiscal of Manila, as well as
"in connivance with the Director of Labor" which office
was then held by defendant Felipe E. Jose, "and other
employees in the Department and Bureau of Labor,"
defendant Figueras succeeded in securing the
institution, against plaintiff Strebel, and his partner,
Primo Eustaquio, of Criminal Case No. 11005 of the
Court of First Instance of Manila, for allegedly
compelling several employees to work more than eight
(8) hours a day, in violation of Commonwealth Act No.
444, in relation to Commonwealth Act No. 303, although
before the filing of the information "the defendants
collectively and singly knew that the allegations therein
are false;" that said criminal case was subsequently
dismissed by the Court of First Instance of Manila for
failure of the prosecution "to establish even a prima
facie case against the accused" ; and
4. That, prior thereto, defendant Cornelio Ruperto, in
connivance with his co-defendant Jose Figueras, had
secured the dismissal of two criminal cases against the
"bodyguards and cohorts" of the latter, "altho the
information in both cases were filed after careful
investigation of fiscals of proven integrity."cralaw
virtua1aw library
It is further alleged in the complaint that, through the
foregoing series of acts, the defendants have "caused
moral and mental suffering to the . . . plaintiff, his wife,
and his entire family, and damage to his business in the
amount of P15,000.00 besides actual damages in the
amount of P1,500.00 paid to his attorney in defending
himself from the malicious charge," which sums plaintiff
prays that the defendants be sentenced to pay jointly
and severally.
With reference to the first group, it should be noted,
that, according to the very allegations of the complaint,
defendant Figueras went no further than to secure the
opinion of the City Fiscal favorable to the construction of
a drainage between his (Figueras) lot and that of
Strebel, and a letter of the City Engineer informing
Strebel of said proposed construction, which was not
undertaken, or even began, in view of Strebel’s
opposition thereto. In other words, the plan to built said
drainage was seemingly abandoned before plaintiff’s
property rights could be violated. There was nothing
wrong, either legally or morally, in the desire of Figueras
to seek an outlet for the water coming from his
property. On the contrary, it is required by the
elementary principles of health and sanitation. Besides,
there is no allegation that any lot other than that of
plaintiff Strebel was better suited for the purpose.
Hence, we do not see how plaintiff could have a cause
of action on this count.
Neither could he have any arising from the assignment
of his wife’s son-in-law from the Bureau of Prisons - to
which he had been previously assigned temporarily,
pursuant to Section 79 (D) of the Revised Administrative
Code — to the Bureau of Immigration, for
1. The authority of the Secretary of Justice to make the
assignment in question and the validity thereof, under
said legal provision, are submitted. Hence, it is not
claimed that said officer may be held civilly liable for the
aforementioned assignment. This being the case, how
can such responsibility be exacted from Figueras who, it
is urged, merely instigated said assignment?
2. Even if we assumed the act complained of to be
wrong or to have caused injury, the right of action
hypotethically resulting therefrom, if any — on which we
need not, and do not, express any opinion — would
have accrued in favor of Dr. Hernandez — who is not a
party in the present action — not plaintiff herein.
"As a general rule, the right of recovery for mental
suffering resulting from bodily injuries is restricted to the
person who has suffered the bodily hurt, and there can
be no recovery for distress caused by sympathy for
another’s suffering, or for fright due to a wrong against
a third person. So the anguish of mind arising as to the
safety of others who may be in personal peril from the
same cause cannot be taken into consideration.
‘. . . damages are not recoverable for fright or shock
even when sustained as result of wilful act, unless such
act was directed toward person or property or person
seeking recovery; hence plaintiff is not entitled to
recover against administratrix of sister’s murderer for
fright or shock caused by viewing mutilated body of
murdered sister. (Koontz v. Keller, 3 N. E., 2d 694, 52
Ohio App., 265)" ’ (25 C. J. S. s 67 and footnote p.
554.)
The rule on this point, as stated in the American
Jurisprudence, is:jgc:chanrobles.com.ph
"Injury or Wrong to Another. — In law mental anguish is
restricted as a rule, to such mental pain or suffering as
arises from an injury or wrong to the person himself, as
distinguished from that form of mental suffering which is
the accompaniment of sympathy or sorrow for another’s
suffering or which arises from a contemplation of
wrongs committed on the person of another. Pursuant
to the rule stated, a husband or wife cannot recover for
mental suffering caused by his or her sympathy for the
other’s suffering." (15 Am. Jur., pp. 597-598) (Italics
supplied.)
In this connection, it should be noted that plaintiff is not
even related to Dr. Hernandez. The latter’s wife is a
daughter of Mrs. Strebel by a previous marriage. Hence
Dr. Hernandez is merely related by affinity, not to
Strebel, but to a relative by affinity of said plaintiff. It
would be extremely dangerous, apart from unjust, to
sanction a recovery, by the plaintiff, of moral damages
for the temporary transfer of Dr. Hernandez. If the
mental anguish allegedly suffered by plaintiff in
consequence thereof were sufficient to give him a cause
of action therefor, there would be no valid legal reason
to deny the same relief to any other person who might
have thus been inconvenienced, such as the friends of
Dr. Hernandez, and public officials similarly situated, as
well as those who may have been adversely affected by
the deterioration, if any, in the service of the office or
bureau which had been temporarily deprived of the
services of said physician.
For the rest, we find in the letter, Exhibit E, and the
"Agreement", Exhibit F, both of which are transcribed in
the foregoing pages, nothing "coercive" or "derogatory"
to plaintiff herein, or which may give occasion for any
material, mental or moral anguish or damage
whatsoever.
As regards the acts pertaining to the third group, the
allegations pertinent thereto purport to establish that the
defendants are guilty of the crime formerly known as
false or malicious prosecution, defined and punished in
Article 326 of the Penal Code of Spain, which
reads:jgc:chanrobles.com.ph
"The crime of false accusation or complaint is committed
by any person who falsely charges another with acts
which, if committed, would constitute an offense upon
which a prosecution might be instituted by the
Government on its own motion, If such charge be made
to any executive or judicial officer whose duty it is to
investigate or punish such felony.
"Nevertheless, no action shall be taken against the
person making the accusation or complaint except by
virtue of a final judgment or order of dismissal by the
court before which the offense charged shall have been
tried.
"The court shall order the prosecution of the person
making the accusation or complaint whenever the
principal case discloses facts sufficient to justify such
prosecution."cralaw virtua1aw library
It is noteworthy, however, that, pursuant to the said
Article 326, as construed by this Court (U.S. v. Rubal, 37
Phil., 577; U. S. v. Barrera, 4 Phil., 461), an action for
malicious prosecution may not be instituted unless the
court, in dismissing the first case, explicitly orders the
prosecuting attorney to proceed against the complainant
for violation of said provision, and that no such directive
has been made in the order dismissing Case No. 11005
of the Court of First Instance of Manila. Furthermore, in
People v. Rivera (59 Phil., 236, 240) the decision of a
lower court dismissing a case for malicious prosecution
was affirmed upon the ground that "article 326 of the
Codigo Penal does not appear in the Revised Penal Code
which contains no offense denominated ’acusacion o
denuncia falsa’ or its equivalent."cralaw virtua1aw library
In order to circumvent this feature of the case, plaintiff
says in his brief:jgc:chanrobles.com.ph
"Plaintiff is evidently suing the defendant not on the
ground of malicious prosecution arising from a criminal
act but for misconduct or malfeasance arising from an
action ex delicto or a tortious act." (p. 21, Brief for the
Plaintiff-Appellant.)
By specific mandate of Article 2219 of the Civil Code of
the Philippines, however, moral damages may not be
recovered in cases of crime or tort, unless either results
or causes "physical injuries," which are lacking in the
case at bar. Although the same article permits recovery
of said damages in cases of malicious prosecution, this
feature of said provision may not be availed of by the
plaintiff herein, inasmuch as the acts set forth in the
complaint took place in 1949, or before said Code
became effective, and Article 4 and 2257 thereof
declare:jgc:chanrobles.com.ph
"ART. 4. — Laws shall have no retroactive effect, unless
the contrary is provided."cralaw virtua1aw library
"ART. 2257. Provisions of this Code which attach a civil
sanction or penalty or a deprivation of rights to acts or
omissions which were not penalized by the former laws,
are not applicable to those who, when said laws were in
force, may have executed the act or incurred in the
omission forbidden or condemned by this Code.
"If the fault is also punished by the previous legislation,
the less severe sanction shall be applied.
"If a continuous or repeated act or omission was
commenced before the beginning of the effectivity of
this Code, and the same subsists or is maintained or
repeated after this body of laws has become operative,
the sanction or penalty prescribed in this Code shall be
applied, even though the previous laws may not have
provided any sanction or penalty therefore." (Italics
supplied.)
Little need be said relative to the acts falling under the
fourth group. The allegation in the complaint to the
effect that the informations in the cases against "the
bodyguards and cohorts" of Figueras "were filed after
careful investigation of fiscal of proven integrity," is not
enough to render the dismissal of said cases either
illegal or improper, for additional facts or evidence may
have been found or secured by the prosecution, after
the institution of said cases, to show that the same are
devoid of merit. Apart from this, there is no allegation
that plaintiff was the complainant or had any particular
interest in said cases. Hence, even if the dismissal
hereof were unlawful or wrongful, plaintiff would have
no cause of action by reason thereof.
It is clear, therefore, that the averments made in the so-
called first cause of action of plaintiff herein do not
entitle him to the relief prayed for thereunder.
In support of his second cause of action, plaintiff alleges
that, "with a view to further injuring" him "and
besmirching his good name in the community and
waging a cleavage in the harmonious relation between
Eustaquio & Co. and its laborers," defendants Felipe E.
Jose and Cornelio S. Ruperto issued a press statement
to the effect that plaintiff Strebel and his partner,
Eustaquio had flagrantly violated the provisions of the
Eight-Hour Law and that said Criminal Case No. 11005
had been dismissed by the court on a flimsy ground;
and that this statement had "caused moral and mental
suffering to the herein plaintiff and damage to his
business in the amount of P5,000.00," which he prays
"that the defendants, particularly Felipe Jose and
Cornelio S. Ruperto be condemned jointly and severally
to pay" to him. The aforementioned statement is
allegedly contained in the following news item, marked
Exhibit L, and published in the Evening news of
September 19, 1950:jgc:chanrobles.com.ph
"JOSE, FISCAL RAP DECISION
Director of Labor Felipe E. Jose branded this noon as
highly prejudicial to the interest of labor the decision of
the court of first instance dismissing the case filed by
five laborers against two owners of gasoline stations,
who according to the director flagrantly violated the
provisions of the eight-hour labor law.
"The director announced that he and the city fiscal will
appeal the case to the supreme court ’until the two
violators are punished accordingly.’
"Cornelio S. Ruperto, assistant city fiscal, charged that,
without taking into consideration the pertinent portions
of Commonwealth Act 444, the court dismissed the case
on the flimsy argument of the counsel for the
defendants that affidavits of the laborers showed the
latter never complained against the action of the
owners, Emilio Strebel and Primo Eustaquio to anybody,
including the department of labor.
"Ruperto declared that the argument which cause the
dismissal of the case ’is impertinent and immaterial in
the instant case’, because he said the provisions of the
law on the matter is clear implicit.
"Section 6 of the law says that ’any agreement or
contract between the employer and the laborer or
employee contrary to the provisions of this Act shall be
null and void ab initio.’ Therefore, Ruperto said, the
agreement between the five laborers and the owners is
illegal and that the action of the latter is subject to the
penal provision of the said law.
"According to the case, Eduardo Gonzales, Emilio
Samson, Rodolfo Quintos, Pedro Bensira, and Silversio
Trinidad were compelled to work more than the required
eight hours not secured from the department of labor
which requires overtime payment for work rendered in
excess of eight hours.
"It is recalled that in the celebrated Cuevo-Barredo case
the adverse decision of the judge who handled the case
was appealed to the supreme court which accordingly
reversed the decision in favor of the laborer. The action
of the judge aroused the ire of the late President
Quezon who ordered the immediate dismissal of the
judge." (Record on Appeal, pp. 131-133).
This news item mentions, neither the number of the
case referred to, nor the names of the persons accused
therein. Moreover, it merely contains a criticism of the
action taken by the court. The reference, therein
imputed to the Director of Labor, to the flagrant
violation of the eight-hour labor law by the accused, was
a mere reiteration of the theory of the Bureau of Labor,
which the prosecution had adopted by filing the
information in said case. Being a matter of court record,
which had been taken up at the hearing held publicly,
and settled in a decision already promulgated, said
theory was open for public consumption, and, hence, an
allusion thereto or statement thereof, in order to justify
said criticism, is not actionable.
Again, said allusion was not made by defendant
Ruperto, who, the news item shows, said nothing
against the plaintiff. It is apparent, therefore, that as a
whole, the allegations made in support of the second
cause of action do not establish a right of action against
him. Moreover, there is absolutely no allegation under
said cause of action connecting defendant Figueras with
the statement already referred to or rendering him liable
therefor.
The so-called third cause of action is premised upon
allegations to the effect that, acting in cooperation and
confabulation with Assistant City Fiscal, Andres Reyes,
and one Antonio P. Isaac, defendant Jose Figueras had
filed, on December 30, 1949, Criminal Case No. B-
53033-A of the Municipal Court of Manila against plaintiff
Strebel, his wife Leonor S. Tiangco and Primo Eustaquio
for unjust vexation, although there was no evidence in
support thereof, for which reason the case was
dismissed on March 18, 1950; and that said unjust,
malicious and frivolous acts had "caused moral and
mental suffering to the herein plaintiff to the tune of
P10,000 and actual damage of P500." Apart from
seeking judgment for these sums, plaintiffs
pray:jgc:chanrobles.com.ph
"(d) That all the defendants be condemned jointly and
severally to pay the plaintiff exemplary damages;
"(e) That an order be issued directing the proper
authorities to prosecute all of them for malicious
prosecution and libel or such other crime as this
Honorable Court may deem proper in filing and pressing
the false information and in issuing slanderous and
libelous language after his acquittal;
"(f) That thereafter proper recommendation be made to
the proper authorities for their immediate suspension
and/or dismissal from the service; and
"(g) That plaintiff be granted such other and further
relief as this Honorable Court may deem just and
equitable in the premises." (Record on Appeal, p. 23.)
It is not alleged in the complaint that defendants Felipe
Jose and Cornelio Ruperto had any participation
whatsoever in the filing of the information for unjust
vexation. Obviously, they are exempt from liability in
connection therewith. Upon the other hand, the
assistant city fiscal who signed said information and
Antonio Isaac, the offended party therein, have not been
included as defendants in the case at bar. At any rate,
insofar as defendant Figueras is concerned, the situation
as regards the third cause of action is substantially
identical to that obtaining under the third set of facts
alleged in support of the first cause of action. What has
been said above in relation to the aforementioned set of
facts is equally applicable, therefore, to the third cause
of action and suffices to demonstrate that the
allegations thereunder do not establish the existence of
a right of action in favor of plaintiff herein.
Wherefore, the order appealed from is hereby affirmed,
with the costs of this instance against plaintiff-appellant.
It is so ordered.
G.R. No. 128690 January 21, 1999
ABS-CBN BROADCASTING
CORPORATION, petitioner, vs. HONORABLE COURT
OF APPEALS, REPUBLIC BROADCASTING CORP,
VIVA PRODUCTION, INC., and VICENTE DEL
ROSARIO, respondents.
pp. 9-10). The titles ticked off by Mrs. Concio
are not the subject of the case at bar except the
film ''Maging Sino Ka Man."
For further enlightenment, this rejection letter
dated January 06, 1992 (Exh "3" - Viva) is
hereby quoted:
6 January 1992
Dear Vic,
This is not a very formal business letter I am writing to you as I would
like to express my difficulty in recommending the purchase of the
three film packages you are offering ABS-CBN.
In this petition for review on certiorari, petitioner ABS-
CBN Broadcasting Corp. (hereafter ABS-CBN) seeks to
reverse and set aside the decision 1 of 31 October 1996
and the resolution 2 of 10 March 1997 of the Court of
Appeals in CA-G.R. CV No. 44125. The former affirmed
with modification the decision 3 of 28 April 1993 of the
Regional Trial Court (RTC) of Quezon City, Branch 80, in
Civil Case No. Q-92-12309. The latter denied the motion
to reconsider the decision of 31 October 1996.
The antecedents, as found by the RTC and adopted by
the Court of Appeals, are as follows:
In 1990, ABS-CBN and Viva executed a Film
Exhibition Agreement (Exh. "A") whereby Viva
gave ABS-CBN an exclusive right to exhibit some
Viva films. Sometime in December 1991, in
accordance with paragraph 2.4 [sic] of said
agreement stating that —.
1.4 ABS-CBN shall have the right of first refusal
to the next twenty-four (24) Viva films for TV
telecast under such terms as may be agreed
upon by the parties hereto, provided, however,
that such right shall be exercised by ABS-CBN
from the actual offer in writing.
Viva, through defendant Del Rosario, offered
ABS-CBN, through its vice-president Charo
Santos-Concio, a list of three(3) film packages
(36 title) from which ABS-CBN may exercise its
right of first refusal under the afore-said
agreement (Exhs. "1" par, 2, "2," "2-A'' and "2-
B"-Viva). ABS-CBN, however through Mrs.
Concio, "can tick off only ten (10) titles" (from
the list) "we can purchase" (Exh. "3" - Viva) and
therefore did not accept said list (TSN, June 8,
1992,
From among the three packages I can only tick off 10 titles we can
purchase. Please see attached. I hope you will understand my position.
Most of the action pictures in the list do not have big action stars in
the cast. They are not for primetime. In line with this I wish to
mention that I have not scheduled for telecast several action pictures
in out very first contract because of the cheap production value of
these movies as well as the lack of big action stars. As a film producer,
I am sure you understand what I am trying to say as Viva produces
only big action pictures.
In fact, I would like to request two (2) additional runs for these movies
as I can only schedule them in our non-primetime slots. We have to
cover the amount that was paid for these movies because as you very
well know that non-primetime advertising rates are very low. These
are the unaired titles in the first contract.
1. Kontra Persa [sic].
 2. Raider Platoon.
3. Underground guerillas
4. Tiger Command
5. Boy de Sabog
6. Lady Commando
7. Batang Matadero
8. Rebelyon
I hope you will consider this request of mine.
The other dramatic films have been offered to us before and have
been rejected because of the ruling of MTRCB to have them aired at
9:00 p.m. due to their very adult themes.
Charo Santos-Concio
On February 27, 1992, defendant Del Rosario
approached ABS-CBN's Ms. Concio, with a list consisting
of 52 original movie titles (i.e. not yet aired on
television) including the 14 titles subject of the present
case, as well as 104 re-runs (previously aired on
television) from which ABS-CBN may choose another 52
titles, as a total of 156 titles, proposing to sell to ABS-
CBN airing rights over this package of 52 originals and
52 re-runs for P60,000,000.00 of which P30,000,000.00
will be in cash and P30,000,000.00 worth of television
spots (Exh. "4" to "4-C" Viva; "9" -Viva).
On April 2, 1992, defendant Del Rosario and ABS-CBN
general manager, Eugenio Lopez III, met at the
Tamarind Grill Restaurant in Quezon City to discuss the
package proposal of Viva. What transpired in that lunch
meeting is the subject of conflicting versions. Mr. Lopez
testified that he and Mr. Del Rosario allegedly agreed
that ABS-CRN was granted exclusive film rights to
fourteen (14) films for a total consideration of P36
million; that he allegedly put this agreement as to the
price and number of films in a "napkin'' and signed it
a counter-proposal covering 53 films, 52 of which came
from the list sent by defendant Del Rosario and one film
was added by Ms. Concio, for a consideration of P35
million. Exhibit "C" provides that ABS-CBN is granted
films right to 53 films and contains a right of first refusal
to "1992 Viva Films." The said counter proposal was
however rejected by Viva's Board of Directors [in the]
evening of the same day, April 7, 1992, as Viva would
not sell anything less than the package of 104 films for
P60 million pesos (Exh. "9" - Viva), and such rejection
was relayed to Ms. Concio.
On April 29, 1992, after the rejection of
ABS-CBN and following several
negotiations and meetings defendant
Del Rosario and Viva's President
Teresita Cruz, in consideration of P60
As for the 10 titles I have choosen [sic] from the 3 packages please
consider including all the other Viva movies produced last year. I have
quite an attractive offer to make.
Thanking you and with my warmest regards.
(Signed)
and gave it to Mr. Del Rosario (Exh. D; TSN, pp. 24-26,
77-78, June 8, 1992). On the other hand, Del Rosario
denied having made any agreement with Lopez
regarding the 14 Viva films; denied the existence of a
napkin in which Lopez wrote something; and insisted
that what he and Lopez discussed at the lunch meeting
was Viva's film package offer of 104 films (52 originals
and 52 re-runs) for a total price of P60 million. Mr.
Lopez promising [sic]to make a counter proposal which
came in the form of a proposal contract Annex "C" of the
complaint (Exh. "1"·- Viva; Exh. "C" - ABS-CBN).
On April 06, 1992, Del Rosario and Mr. Graciano Gozon
of RBS Senior vice-president for Finance discussed the
terms and conditions of Viva's offer to sell the 104 films,
after the rejection of the same package by ABS-CBN.
On April 07, 1992, defendant Del Rosario received
through his secretary, a handwritten note from Ms.
Concio, (Exh. "5" - Viva), which reads: "Here's the draft
of the contract. I hope you find everything in order," to
which was attached a draft exhibition agreement (Exh
"C''- ABS-CBN; Exh. "9" - Viva, p. 3)
million, signed a letter of agreement
dated April 24, 1992. granting RBS the
exclusive right to air 104 Viva-produced
and/or acquired films (Exh. "7-A" - RBS;
Exh. "4" - RBS) including the fourteen
(14) films subject of the present case. 4
On 27 May 1992, ABS-CBN filed before the RTC a
complaint for specific performance with a prayer for a
writ of preliminary injunction and/or temporary
restraining order against private respondents Republic
Broadcasting Corporation 5 (hereafter RBS ), Viva
Production (hereafter VIVA), and Vicente Del Rosario.
The complaint was docketed as Civil Case No. Q-92-
12309.
On 27 May 1992, RTC issued a temporary restraining
order 6 enjoining private respondents from proceeding
with the airing, broadcasting, and televising of the
fourteen VIVA films subject of the controversy, starting
with the film Maging Sino Ka Man, which was scheduled
to be shown on private respondents RBS' channel 7 at
seven o'clock in the evening of said date.
On 17 June 1992, after appropriate proceedings, the
RTC issued an
order 7 directing the issuance of a writ of preliminary
injunction upon ABS-CBN's posting of P35 million bond.
ABS-CBN moved for the reduction of the bond, 8 while
private respondents moved for reconsideration of the
order and offered to put up a counterbound. 9
In the meantime, private respondents filed separate
answers with counterclaim. 10 RBS also set up a cross-
claim against VIVA..
On 3 August 1992, the RTC issued an order 11 dissolving
the writ of preliminary injunction upon the posting by
RBS of a P30 million counterbond to answer for
whatever damages ABS-CBN might suffer by virtue of
such dissolution. However, it reduced petitioner's
injunction bond to P15 million as a condition precedent
for the reinstatement of the writ of preliminary
injunction should private respondents be unable to post
a counterbond.
At the pre-trial 12 on 6 August 1992, the parties, upon
suggestion of the court, agreed to explore the possibility
of an amicable settlement. In the meantime, RBS prayed
for and was granted reasonable time within which to put
up a P30 million counterbond in the event that no
settlement would be reached.
As the parties failed to enter into an amicable settlement
RBS posted on 1 October 1992 a counterbond, which the
RTC approved in its Order of 15 October 1992.13
On 19 October 1992, ABS-CBN filed a motion for
reconsideration 14 of the 3 August and 15 October 1992
Orders, which RBS opposed. 15
On 29 October 1992, the RTC conducted a pre-trial. 16
Pending resolution of its motion for reconsideration,
ABS-CBN filed with the Court of Appeals a
petition17challenging the RTC's Orders of 3 August and
15 October 1992 and praying for the issuance of a writ
of preliminary injunction to enjoin the RTC from
enforcing said orders. The case was docketed as CA-
G.R. SP No. 29300.
On 3 November 1992, the Court of Appeals issued a
temporary restraining order18 to enjoin the airing,
broadcasting, and televising of any or all of the films
involved in the controversy.
On 18 December 1992, the Court of Appeals
promulgated a decision 19 dismissing the petition in CA -
G.R. No. 29300 for being premature. ABS-CBN
challenged the dismissal in a petition for review filed
with this Court on 19 January 1993, which was docketed
as G.R. No. 108363.
In the meantime the RTC received the evidence for the
parties in Civil Case No. Q-192-1209. Thereafter, on 28
April 1993, it rendered a decision 20 in favor of RBS and
VIVA and against ABS-CBN disposing as follows:
WHEREFORE, under cool reflection and prescinding from the
foregoing, judgments is rendered in favor of defendants and
against the plaintiff.
(1) The complaint is hereby dismissed;
(2) Plaintiff ABS-CBN is ordered to pay defendant
RBS the following:
a) P107,727.00, the amount of premium
paid by RBS to the surety which issued
defendant RBS's bond to lift the
injunction;
b) P191,843.00 for the amount of print
advertisement for "Maging Sino Ka Man"
in various newspapers;
c) Attorney's fees in the amount of P1
million;
d) P5 million as and by way of moral
damages;
e) P5 million as and by way of
exemplary damages;
(3) For defendant VIVA, plaintiff ABS-CBN is
ordered to pay P212,000.00 by way of reasonable
attorney's fees.
(4) The cross-claim of defendant RBS against
defendant VIVA is dismissed.
(5) Plaintiff to pay the costs.
According to the RTC, there was no meeting of minds on
the price and terms of the offer. The alleged agreement
between Lopez III and Del Rosario was subject to the
approval of the VIVA Board of Directors, and said
agreement was disapproved during the meeting of the
Board on 7 April 1992. Hence, there was no basis for
ABS-CBN's demand that VIVA signed the 1992 Film
Exhibition Agreement. Furthermore, the right of first
refusal under the 1990 Film Exhibition Agreement had
previously been exercised per Ms. Concio's letter to Del
Rosario ticking off ten titles acceptable to them, which
would have made the 1992 agreement an entirely new
contract.
On 21 June 1993, this Court denied21 ABS-CBN's petition
for review in G.R. No. 108363, as no reversible error was
committed by the Court of Appeals in its challenged
decision and the case had "become moot and academic
in view of the dismissal of the main action by the court a
quo in its decision" of 28 April 1993.
Aggrieved by the RTC's decision, ABS-CBN appealed to
the Court of Appeals claiming that there was a perfected
contract between ABS-CBN and VIVA granting ABS-CBN
the exclusive right to exhibit the subject films. Private
respondents VIVA and Del Rosario also appealed seeking
moral and exemplary damages and additional attorney's
fees.
In its decision of 31 October 1996, the Court of Appeals
agreed with the RTC that the contract between ABS-CBN
and VIVA had not been perfected, absent the approval
by the VIVA Board of Directors of whatever Del Rosario,
it's agent, might have agreed with Lopez III. The
appellate court did not even believe ABS-CBN's evidence
that Lopez III actually wrote down such an agreement
on a "napkin," as the same was never produced in court.
It likewise rejected ABS-CBN's insistence on its right of
first refusal and ratiocinated as follows:
As regards the matter of right of first refusal, it
may be true that a Film Exhibition Agreement
was entered into between Appellant ABS-CBN
and appellant VIVA under Exhibit "A" in 1990,
and that parag. 1.4 thereof provides:
1.4 ABS-CBN shall have the
right of first refusal to the next
twenty-four (24) VIVA films for
TV telecast under such terms as
may be agreed upon by the
parties hereto, provided,
however, that such right shall
be exercised by ABS-CBN within
a period of fifteen (15) days
from the actual offer in writing
(Records, p. 14).
[H]owever, it is very clear that said right
of first refusal in favor of ABS-CBN shall
still be subject to such terms as may be
agreed upon by the parties thereto, and
that the said right shall be exercised by
ABS-CBN within fifteen (15) days from
the actual offer in writing.
Said parag. 1.4 of the agreement Exhibit
"A" on the right of first refusal did not
fix the price of the film right to the
twenty-four (24) films, nor did it specify
the terms thereof. The same are still left
to be agreed upon by the parties.
In the instant case, ABS-CBN's letter of
rejection Exhibit 3 (Records, p. 89)
stated that it can only tick off ten (10)
films, and the draft contract Exhibit "C"
accepted only fourteen (14) films, while
parag. 1.4 of Exhibit "A'' speaks of the
next twenty-four (24) films.
The offer of V1VA was sometime in
December 1991 (Exhibits 2, 2-A. 2-B;
Records, pp. 86-88; Decision, p. 11,
Records, p. 1150), when the first list of
VIVA films was sent by Mr. Del Rosario
to ABS-CBN. The Vice President of ABS-
CBN, Ms. Charo Santos-Concio, sent a
letter dated January 6, 1992 (Exhibit 3,
Records, p. 89) where ABS-CBN
exercised its right of refusal by rejecting
the offer of VIVA.. As aptly observed by
the trial court, with the said letter of
Mrs. Concio of January 6, 1992, ABS-
CBN had lost its right of first refusal.
And even if We reckon the fifteen (15)
day period from February 27, 1992
(Exhibit 4 to 4-C) when another list was
sent to ABS-CBN after the letter of Mrs.
Concio, still the fifteen (15) day period
within which ABS-CBN shall exercise its
right of first refusal has already
expired.22
Accordingly, respondent court sustained the award of
actual damages consisting in the cost of print
advertisements and the premium payments for the
counterbond, there being adequate proof of the
pecuniary loss which RBS had suffered as a result of the
filing of the complaint by ABS-CBN. As to the award of
moral damages, the Court of Appeals found reasonable
basis therefor, holding that RBS's reputation was
debased by the filing of the complaint in Civil Case No.
Q-92-12309 and by the non-showing of the film "Maging
Sino Ka Man." Respondent court also held that
exemplary damages were correctly imposed by way of
example or correction for the public good in view of the
filing of the complaint despite petitioner's knowledge
that the contract with VIVA had not been perfected, It
also upheld the award of attorney's fees, reasoning that
with ABS-CBN's act of instituting Civil Case No, Q-92-
1209, RBS was "unnecessarily forced to litigate." The
appellate court, however, reduced the awards of moral
damages to P2 million, exemplary damages to P2
million, and attorney's fees to P500, 000.00.
On the other hand, respondent Court of Appeals denied
VIVA and Del Rosario's appeal because it was "RBS and
not VIVA which was actually prejudiced when the
complaint was filed by ABS-CBN."
Its motion for reconsideration having been denied, ABS-
CBN filed the petition in this case, contending that the
Court of Appeals gravely erred in
 I. . . RULING THAT THERE WAS
NO PERFECTED CONTRACT
BETWEEN PETITIONER AND
PRIVATE RESPONDENT VIVA
NOTWITHSTANDING
PREPONDERANCE OF
EVIDENCE ADDUCED BY
PETITIONER TO THE
CONTRARY.
II. . . IN AWARDING ACTUAL AND
COMPENSATORY DAMAGES IN
FAVOR OF PRIVATE
RESPONDENT RBS.
III. . . IN AWARDING MORAL AND
EXEMPLARY DAMAGES IN
FAVOR OF PRIVATE
RESPONDENT RBS.
IV. . . IN AWARDING ATTORNEY'S
FEES IN FAVOR OF RBS.
ABS-CBN claims that it had yet to fully exercise its right
of first refusal over twenty-four titles under the 1990
Film Exhibition Agreement, as it had chosen only ten
titles from the first list. It insists that we give credence
to Lopez's testimony that he and Del Rosario met at the
Tamarind Grill Restaurant, discussed the terms and
conditions of the second list (the 1992 Film Exhibition
Agreement) and upon agreement thereon, wrote the
same on a paper napkin. It also asserts that the contract
has already been effective, as the elements thereof,
namely, consent, object, and consideration were
established. It then concludes that the Court of Appeals'
pronouncements were not supported by law and
jurisprudence, as per our decision of 1 December 1995
in Limketkai Sons Milling, Inc. v. Court of
Appeals, 23 which cited Toyota Shaw, Inc. v. Court of
Appeals, 24 Ang Yu Asuncion v. Court of
Appeals, 25 and Villonco Realty Company v. Bormaheco.
Inc.26
Anent the actual damages awarded to RBS, ABS-CBN
disavows liability therefor. RBS spent for the premium on
the counterbond of its own volition in order to negate
the injunction issued by the trial court after the parties
had ventilated their respective positions during the
hearings for the purpose. The filing of the counterbond
was an option available to RBS, but it can hardly be
argued that ABS-CBN compelled RBS to incur such
expense. Besides, RBS had another available option, i.e.,
move for the dissolution or the injunction; or if it was
determined to put up a counterbond, it could have
presented a cash bond. Furthermore under Article 2203
of the Civil Code, the party suffering loss or injury is also
required to exercise the diligence of a good father of a
family to minimize the damages resulting from the act or
omission. As regards the cost of print advertisements,
RBS had not convincingly established that this was a loss
attributable to the non showing "Maging Sino Ka Man";
on the contrary, it was brought out during trial that with
or without the case or the injunction, RBS would have
spent such an amount to generate interest in the film.
ABS-CBN further contends that there was no clear basis
for the awards of moral and exemplary damages. The
controversy involving ABS-CBN and RBS did not in any
way originate from business transaction between them.
The claims for such damages did not arise from any
contractual dealings or from specific acts committed by
ABS-CBN against RBS that may be characterized as
wanton, fraudulent, or reckless; they arose by virtue
only of the filing of the complaint, An award of moral
and exemplary damages is not warranted where the
record is bereft of any proof that a party acted
maliciously or in bad faith in filing an action. 27 In any
case, free resort to courts for redress of wrongs is a
matter of public policy. The law recognizes the right of
every one to sue for that which he honestly believes to
be his right without fear of standing trial for damages
where by lack of sufficient evidence, legal technicalities,
or a different interpretation of the laws on the matter,
the case would lose ground. 28 One who makes use of
his own legal right does no injury. 29 If damage results
front the filing of the complaint, it is damnum absque
injuria. 30 Besides, moral damages are generally not
awarded in favor of a juridical person, unless it enjoys a
good reputation that was debased by the offending
party resulting in social humiliation.31
As regards the award of attorney's fees, ABS-CBN
maintains that the same had no factual, legal, or
equitable justification. In sustaining the trial court's
award, the Court of Appeals acted in clear disregard of
the doctrines laid down in Buan v. Camaganacan 32 that
the text of the decision should state the reason why
attorney's fees are being awarded; otherwise, the award
should be disallowed. Besides, no bad faith has been
imputed on, much less proved as having been
committed by, ABS-CBN. It has been held that "where
no sufficient showing of bad faith would be reflected in a
party' s persistence in a case other than an erroneous
conviction of the righteousness of his cause, attorney's
fees shall not be recovered as cost." 33
On the other hand, RBS asserts that there was no
perfected contract between ABS-CBN and VIVA absent
any meeting of minds between them regarding the
object and consideration of the alleged contract. It
affirms that the ABS-CBN's claim of a right of first refusal
was correctly rejected by the trial court. RBS insist the
premium it had paid for the counterbond constituted a
pecuniary loss upon which it may recover. It was obliged
to put up the counterbound due to the injunction
procured by ABS-CBN. Since the trial court found that
ABS-CBN had no cause of action or valid claim against
RBS and, therefore not entitled to the writ of injunction,
RBS could recover from ABS-CBN the premium paid on
the counterbond. Contrary to the claim of ABS-CBN, the
cash bond would prove to be more expensive, as the
loss would be equivalent to the cost of money RBS
would forego in case the P30 million came from its funds
or was borrowed from banks.
RBS likewise asserts that it was entitled to the cost of
advertisements for the cancelled showing of the film
"Maging Sino Ka Man" because the print advertisements
were put out to announce the showing on a particular
day and hour on Channel 7, i.e., in its entirety at one
time, not a series to be shown on a periodic basis.
Hence, the print advertisement were good and relevant
for the particular date showing, and since the film could
not be shown on that particular date and hour because
of the injunction, the expenses for the advertisements
had gone to waste.
As regards moral and exemplary damages, RBS asserts
that ABS-CBN filed the case and secured injunctions
purely for the purpose of harassing and prejudicing RBS.
Pursuant then to Article 19 and 21 of the Civil Code,
ABS-CBN must be held liable for such
damages. Citing Tolentino,34 damages may be awarded
in cases of abuse of rights even if the act done is not
illicit and there is abuse of rights were plaintiff institutes
and action purely for the purpose of harassing or
prejudicing the defendant.
In support of its stand that a juridical entity can recover
moral and exemplary damages, private respondents
RBS cited People v. Manero,35 where it was stated that
such entity may recover moral and exemplary damages
if it has a good reputation that is debased resulting in
social humiliation. it then ratiocinates; thus:
There can be no doubt that RBS'
reputation has been debased by ABS-
CBN's acts in this case. When RBS was
not able to fulfill its commitment to the
viewing public to show the film "Maging
Sino Ka Man" on the scheduled dates
and times (and on two occasions that
RBS advertised), it suffered serious
embarrassment and social humiliation.
When the showing was canceled, late
viewers called up RBS' offices and
subjected RBS to verbal abuse
("Announce kayo nang announce, hindi
ninyo naman ilalabas," "nanloloko yata
kayo") (Exh. 3-RBS, par. 3). This alone
was not something RBS brought upon
itself. it was exactly what ABS-CBN had
planned to happen.
The amount of moral and exemplary
damages cannot be said to be
excessive. Two reasons justify the
amount of the award.
The first is that the humiliation suffered
by RBS is national extent. RBS
operations as a broadcasting company is
[sic] nationwide. Its clientele, like that
of ABS-CBN, consists of those who own
and watch television. It is not an
exaggeration to state, and it is a matter
of judicial notice that almost every other
person in the country watches
television. The humiliation suffered by
RBS is multiplied by the number of
televiewers who had anticipated the
showing of the film "Maging Sino Ka
Man" on May 28 and November 3, 1992
but did not see it owing to the
cancellation. Added to this are the
advertisers who had placed commercial
spots for the telecast and to whom RBS
had a commitment in consideration of
the placement to show the film in the
dates and times specified.
The second is that it is a competitor that
caused RBS to suffer the humiliation.
The humiliation and injury are far
greater in degree when caused by an
entity whose ultimate business objective
is to lure customers (viewers in this
case) away from the competition. 36
For their part, VIVA and Vicente del Rosario contend
that the findings of fact of the trial court and the Court
of Appeals do not support ABS-CBN's claim that there
was a perfected contract. Such factual findings can no
longer be disturbed in this petition for review under Rule
45, as only questions of law can be raised, not questions
of fact. On the issue of damages and attorneys fees,
they adopted the arguments of RBS.
The key issues for our consideration are (1) whether
there was a perfected contract between VIVA and ABS-
CBN, and (2) whether RBS is entitled to damages and
attorney's fees. It may be noted that the award of
attorney's fees of P212,000 in favor of VIVA is not
assigned as another error.
I.
The first issue should be resolved against ABS-CBN. A
contract is a meeting of minds between two persons
whereby one binds himself to give something or to
render some service to another 37 for a consideration.
there is no contract unless the following requisites
concur: (1) consent of the contracting parties; (2) object
certain which is the subject of the contract; and (3)
cause of the obligation, which is established. 38 A
contract undergoes three stages:
 (a) preparation, conception, or
generation, which is the period of
negotiation and bargaining, ending at
the moment of agreement of the
parties;
(b) perfection or birth of the contract,
which is the moment when the parties
come to agree on the terms of the
contract; and
(c) consummation or death, which is the
fulfillment or performance of the terms
agreed upon in the contract. 39
Contracts that are consensual in nature are perfected
upon mere meeting of the minds, Once there is
concurrence between the offer and the acceptance upon
the subject matter, consideration, and terms of payment
a contract is produced. The offer must be certain. To
convert the offer into a contract, the acceptance must
be absolute and must not qualify the terms of the offer;
it must be plain, unequivocal, unconditional, and without
variance of any sort from the proposal. A qualified
acceptance, or one that involves a new proposal,
constitutes a counter-offer and is a rejection of the
original offer. Consequently, when something is desired
which is not exactly what is proposed in the offer, such
acceptance is not sufficient to generate consent because
any modification or variation from the terms of the offer
annuls the offer.40
When Mr. Del Rosario of VIVA met with Mr. Lopez of
ABS-CBN at the Tamarind Grill on 2 April 1992 to discuss
the package of films, said package of 104 VIVA films
was VIVA's offer to ABS-CBN to enter into a new Film
Exhibition Agreement. But ABS-CBN, sent, through Ms.
Concio, a counter-proposal in the form of a draft
contract proposing exhibition of 53 films for a
consideration of P35 million. This counter-proposal could
be nothing less than the counter-offer of Mr. Lopez
during his conference with Del Rosario at Tamarind Grill
Restaurant. Clearly, there was no acceptance of VIVA's
offer, for it was met by a counter-offer which
substantially varied the terms of the offer.
ABS-CBN's reliance in Limketkai Sons Milling, Inc.
v. Court of
Appeals 41 and Villonco Realty Company v. Bormaheco,
Inc., 42 is misplaced. In these cases, it was held that an
acceptance may contain a request for certain changes in
the terms of the offer and yet be a binding acceptance
as long as "it is clear that the meaning of the acceptance
is positively and unequivocally to accept the offer,
whether such request is granted or not." This ruling was,
however, reversed in the resolution of 29 March
1996, 43 which ruled that the acceptance of all offer
must be unqualified and absolute, i.e., it "must be
identical in all respects with that of the offer so as to
produce consent or meeting of the minds."
On the other hand, in Villonco, cited in Limketkai, the
alleged changes in the revised counter-offer were not
material but merely clarificatory of what had previously
been agreed upon. It cited the statement in Stuart
v. Franklin Life Insurance Co.44 that "a vendor's change
in a phrase of the offer to purchase, which change does
not essentially change the terms of the offer, does not
amount to a rejection of the offer and the tender of a
counter-offer." 45However, when any of the elements of
the contract is modified upon acceptance, such
alteration amounts to a counter-offer.
In the case at bar, ABS-CBN made no unqualified
acceptance of VIVA's offer. Hence, they underwent a
period of bargaining. ABS-CBN then formalized its
counter-proposals or counter-offer in a draft contract,
VIVA through its Board of Directors, rejected such
counter-offer, Even if it be conceded arguendo that Del
Rosario had accepted the counter-offer, the acceptance
did not bind VIVA, as there was no proof whatsoever
that Del Rosario had the specific authority to do so.
Under Corporation Code,46 unless otherwise provided by
said Code, corporate powers, such as the power; to
enter into contracts; are exercised by the Board of
Directors. However, the Board may delegate such
powers to either an executive committee or officials or
contracted managers. The delegation, except for the
executive committee, must be for specific
purposes, 47 Delegation to officers makes the latter
agents of the corporation; accordingly, the general rules
of agency as to the bindings effects of their acts would
apply. 48 For such officers to be deemed fully clothed by
the corporation to exercise a power of the Board, the
latter must specially authorize them to do so. That Del
Rosario did not have the authority to accept ABS-CBN's
counter-offer was best evidenced by his submission of
the draft contract to VIVA's Board of Directors for the
latter's approval. In any event, there was between Del
Rosario and Lopez III no meeting of minds. The
following findings of the trial court are instructive:
A number of considerations militate against ABS-
CBN's claim that a contract was perfected at
that lunch meeting on April 02, 1992 at the
Tamarind Grill.
FIRST, Mr. Lopez claimed that what was agreed
upon at the Tamarind Grill referred to the price
and the number of films, which he wrote on a
napkin. However, Exhibit "C" contains numerous
provisions which, were not discussed at the
Tamarind Grill, if Lopez testimony was to be
believed nor could they have been physically
written on a napkin. There was even doubt as to
whether it was a paper napkin or a cloth napkin.
In short what were written in Exhibit "C'' were
not discussed, and therefore could not have
been agreed upon, by the parties. How then
could this court compel the parties to sign
Exhibit "C" when the provisions thereof were not
previously agreed upon?
SECOND, Mr. Lopez claimed that what was
agreed upon as the subject matter of the
contract was 14 films. The complaint in fact
prays for delivery of 14 films. But Exhibit "C"
mentions 53 films as its subject matter. Which is
which If Exhibits "C" reflected the true intent of
the parties, then ABS-CBN's claim for 14 films in
its complaint is false or if what it alleged in the
complaint is true, then Exhibit "C" did not reflect
what was agreed upon by the parties. This
underscores the fact that there was no meeting
of the minds as to the subject matter of the
contracts, so as to preclude perfection thereof.
For settled is the rule that there can be no
contract where there is no object which is its
subject matter (Art. 1318, NCC).
THIRD, Mr. Lopez [sic] answer to
question 29 of his affidavit testimony
(Exh. "D") states:
We were able to reach an
agreement. VIVA gave us the
exclusive license to show these
fourteen (14) films, and we
agreed to pay Viva the amount
of P16,050,000.00 as well as
grant Viva commercial slots
worth P19,950,000.00. We had
already earmarked this P16,
050,000.00.
which gives a total consideration of P36
million (P19,950,000.00 plus
P16,050,000.00. equals
P36,000,000.00).
On cross-examination Mr. Lopez
testified:
Q. What was written in this
napkin?
A. The total price, the
breakdown the known Viva
movies, the 7 blockbuster
movies and the other 7 Viva
movies because the price was
broken down accordingly. The
none [sic] Viva and the seven
other Viva movies and the
sharing between the cash
portion and the concerned
spot portion in the total
amount of P35 million pesos.
Now, which is which? P36 million or P35
million? This weakens ABS-CBN's claim.
FOURTH. Mrs. Concio, testifying for
ABS-CBN stated that she transmitted
Exhibit "C" to Mr. Del Rosario with a
handwritten note, describing said Exhibit
"C" as a "draft." (Exh. "5" - Viva; tsn pp.
23-24 June 08, 1992). The said draft
has a well defined meaning.
Since Exhibit "C" is only a draft, or a
tentative, provisional or preparatory
writing prepared for discussion, the
terms and conditions thereof could not
have been previously agreed upon by
ABS-CBN and Viva Exhibit "C'' could not
therefore legally bind Viva, not having
agreed thereto. In fact, Ms. Concio
admitted that the terms and conditions
embodied in Exhibit "C" were prepared
by ABS-CBN's lawyers and there was no
discussion on said terms and conditions.
...
As the parties had not yet discussed the
proposed terms and conditions in Exhibit
"C," and there was no evidence
whatsoever that Viva agreed to the
terms and conditions thereof, said
document cannot be a binding contract.
The fact that Viva refused to sign
Exhibit "C" reveals only two [sic] well
that it did not agree on its terms and
conditions, and this court has no
authority to compel Viva to agree
thereto.
FIFTH. Mr. Lopez understand [sic] that
what he and Mr. Del Rosario agreed
upon at the Tamarind Grill was only
provisional, in the sense that it was
subject to approval by the Board of
Directors of Viva. He testified:
Q. Now, Mr. Witness, and after that
Tamarind meeting ... the second
meeting wherein you claimed that you
have the meeting of the minds between
you and Mr. Vic del Rosario, what
happened?
A. Vic Del Rosario was supposed to call
us up and tell us specifically the result
of the discussion with the Board of
Directors.
Q. And you are referring to the so-called
agreement which you wrote in [sic] a
piece of paper?
A. Yes, sir.
Q. So, he was going to forward that to
the board of Directors for approval?
A. Yes, sir. (Tsn, pp. 42-43, June 8,
1992)
Q. Did Mr. Del Rosario tell you that he
will submit it to his Board for approval?
A. Yes, sir. (Tsn, p. 69, June 8, 1992).
The above testimony of Mr. Lopez
shows beyond doubt that he knew Mr.
Del Rosario had no authority to bind
 Viva to a contract with ABS-CBN until
and unless its Board of Directors
approved it. The complaint, in fact,
alleges that Mr. Del Rosario "is the
Executive Producer of defendant Viva"
which "is a corporation." (par. 2,
complaint). As a mere agent of Viva, Del
Rosario could not bind Viva unless what
he did is ratified by its Board of
Directors. (Vicente vs. Geraldez, 52
SCRA 210; Arnold vs. Willetsand
Paterson, 44 Phil. 634). As a mere
agent, recognized as such by plaintiff,
Del Rosario could not be held liable
jointly and severally with Viva and his
inclusion as party defendant has no
legal basis. (Salonga vs. Warner
Barner [sic] , COLTA , 88 Phil. 125;
Salmon vs. Tan, 36 Phil. 556).
The testimony of Mr. Lopez and the
allegations in the complaint are clear
admissions that what was supposed to
have been agreed upon at the Tamarind
Grill between Mr. Lopez and Del Rosario
was not a binding agreement. It is as it
should be because corporate power to
enter into a contract is lodged in the
Board of Directors. (Sec. 23,
Corporation Code). Without such board
approval by the Viva board, whatever
agreement Lopez and Del Rosario
arrived at could not ripen into a valid
contract binding upon Viva (Yao Ka Sin
Trading vs. Court of Appeals, 209 SCRA
763). The evidence adduced shows that
the Board of Directors of Viva rejected
Exhibit "C" and insisted that the film
package for 140 films be maintained
(Exh. "7-1" - Viva ). 49
The contention that ABS-CBN had yet to fully exercise its
right of first refusal over twenty-four films under the
1990 Film Exhibition Agreement and that the meeting
between Lopez and Del Rosario was a continuation of
said previous contract is untenable. As observed by the
trial court, ABS-CBN right of first refusal had already
been exercised when Ms. Concio wrote to VIVA ticking
off ten films, Thus:
[T]he subsequent negotiation with ABS-
CBN two (2) months after this letter was
sent, was for an entirely different
package. Ms. Concio herself admitted on
cross-examination to having used or
exercised the right of first refusal. She
stated that the list was not acceptable
and was indeed not accepted by ABS-
CBN, (TSN, June 8, 1992, pp. 8-10).
Even Mr. Lopez himself admitted that
the right of the first refusal may have
been already exercised by Ms. Concio
(as she had). (TSN, June 8, 1992, pp.
71-75). Del Rosario himself knew and
understand [sic] that ABS-CBN has lost
its rights of the first refusal when his list
of 36 titles were rejected (Tsn, June 9,
1992, pp. 10-11) 50
II
However, we find for ABS-CBN on the issue of damages.
We shall first take up actual damages. Chapter 2, Title
XVIII, Book IV of the Civil Code is the specific law on
actual or compensatory damages. Except as provided by
law or by stipulation, one is entitled to compensation for
actual damages only for such pecuniary loss suffered by
him as he has duly proved. 51 The indemnification shall
comprehend not only the value of the loss suffered, but
also that of the profits that the obligee failed to
obtain. 52 In contracts and quasi-contracts the damages
which may be awarded are dependent on whether the
obligor acted with good faith or otherwise, It case of
good faith, the damages recoverable are those which
are the natural and probable consequences of the
breach of the obligation and which the parties have
foreseen or could have reasonably foreseen at the time
of the constitution of the obligation. If the obligor acted
with fraud, bad faith, malice, or wanton attitude, he
shall be responsible for all damages which may be
reasonably attributed to the non-performance of the
obligation. 53 In crimes and quasi-delicts, the defendant
shall be liable for all damages which are the natural and
probable consequences of the act or omission
complained of, whether or not such damages has been
foreseen or could have reasonably been foreseen by the
defendant.54
Actual damages may likewise be recovered for loss or
impairment of earning capacity in cases of temporary or
permanent personal injury, or for injury to the plaintiff's
business standing or commercial credit.55
The claim of RBS for actual damages did not arise from
contract, quasi-contract, delict, or quasi-delict. It arose
from the fact of filing of the complaint despite ABS-
CBN's alleged knowledge of lack of cause of action. Thus
paragraph 12 of RBS's Answer with Counterclaim and
Cross-claim under the heading COUNTERCLAIM
specifically alleges:
12. ABS-CBN filed the complaint
knowing fully well that it has no cause
of action RBS. As a result thereof, RBS
suffered actual damages in the amount
of P6,621,195.32. 56
Needless to state the award of actual damages cannot
be comprehended under the above law on actual
damages. RBS could only probably take refuge under
Articles 19, 20, and 21 of the Civil Code, which read as
follows:
Art. 19. Every person must, in the
exercise of his rights and in the
performance of his duties, act with
justice, give everyone his due, and
observe honesty and good faith.
Art. 20. Every person who, contrary to
law, wilfully or negligently causes
damage to another, shall indemnify the
latter for tile same.
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.
It may further be observed that in cases where a writ of
preliminary injunction is issued, the damages which the
defendant may suffer by reason of the writ are
recoverable from the injunctive bond. 57 In this case,
ABS-CBN had not yet filed the required bond; as a
matter of fact, it asked for reduction of the bond and
even went to the Court of Appeals to challenge the order
on the matter, Clearly then, it was not necessary for RBS
to file a counterbond. Hence, ABS-CBN cannot be held
responsible for the premium RBS paid for the
counterbond.
Neither could ABS-CBN be liable for the print
advertisements for "Maging Sino Ka Man" for lack of
sufficient legal basis. The RTC issued a temporary
restraining order and later, a writ of preliminary
injunction on the basis of its determination that there
existed sufficient ground for the issuance thereof.
Notably, the RTC did not dissolve the injunction on the
ground of lack of legal and factual basis, but because of
the plea of RBS that it be allowed to put up a
counterbond.
As regards attorney's fees, the law is clear that in the
absence of stipulation, attorney's fees may be recovered
as actual or compensatory damages under any of the
circumstances provided for in Article 2208 of the Civil
Code. 58
The general rule is that attorney's fees cannot be
recovered as part of damages because of the policy that
no premium should be placed on the right to
litigate.59 They are not to be awarded every time a party
wins a suit. The power of the court to award attorney's
fees under Article 2208 demands factual, legal, and
equitable justification.60Even when claimant is compelled
to litigate with third persons or to incur expenses to
protect his rights, still attorney's fees may not be
awarded where no sufficient showing of bad faith could
be reflected in a party's persistence in a case other than
erroneous conviction of the righteousness of his
cause. 61
As to moral damages the law is Section 1, Chapter 3,
Title XVIII, Book IV of the Civil Code. Article 2217
thereof defines what are included in moral damages,
while Article 2219 enumerates the cases where they
may be recovered, Article 2220 provides that moral
damages may be recovered in breaches of contract
where the defendant acted fraudulently or in bad faith.
RBS's claim for moral damages could possibly fall only
under item (10) of Article 2219, thereof which reads:
(10) Acts and actions referred to in
Articles 21, 26, 27, 28, 29, 30, 32, 34,
and 35.
Moral damages are in the category of an award
designed to compensate the claimant for actual injury
suffered. and not to impose a penalty on the
wrongdoer.62 The award is not meant to enrich the
complainant at the expense of the defendant, but to
enable the injured party to obtain means, diversion, or
amusements that will serve to obviate then moral
suffering he has undergone. It is aimed at the
restoration, within the limits of the possible, of the
spiritual status quo ante, and should be proportionate to
the suffering inflicted.63 Trial courts must then guard
against the award of exorbitant damages; they should
exercise balanced restrained and measured objectivity to
avoid suspicion that it was due to passion, prejudice, or
corruption on the part of the trial court. 64
The award of moral damages cannot be granted in favor
of a corporation because, being an artificial person and
having existence only in legal contemplation, it has no
feelings, no emotions, no senses, It cannot, therefore,
experience physical suffering and mental anguish, which
call be experienced only by one having a nervous
system. 65 The statement in People
v. Manero 66 and Mambulao Lumber Co. v. PNB 67 that a
corporation may recover moral damages if it "has a good
reputation that is debased, resulting in social
humiliation" is an obiter dictum. On this score alone the
award for damages must be set aside, since RBS is a
corporation.
The basic law on exemplary damages is Section 5,
Chapter 3, Title XVIII, Book IV of the Civil Code. These
are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated
or compensatory damages. 68 They are recoverable in
criminal cases as part of the civil liability when the crime
was committed with one or more aggravating
circumstances; 69 in quasi-contracts, if the defendant
acted with gross negligence; 70 and in contracts and
quasi-contracts, if the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent
manner.71
It may be reiterated that the claim of RBS against ABS-
CBN is not based on contract, quasi-contract, delict, or
quasi-delict, Hence, the claims for moral and exemplary
damages can only be based on Articles 19, 20, and 21 of
the Civil Code.
The elements of abuse of right under Article 19 are the
following: (1) the existence of a legal right or duty, (2)
which is exercised in bad faith, and (3) for the sole
intent of prejudicing or injuring another. Article 20
speaks of the general sanction for all other provisions of
law which do not especially provide for their own
sanction; while Article 21 deals with acts contra bonus
mores, and has the following elements; (1) there is an
act which is legal, (2) but which is contrary to morals,
good custom, public order, or public policy, and (3) and
it is done with intent to injure. 72
Verily then, malice or bad faith is at the core of Articles
19, 20, and 21. Malice or bad faith implies a conscious
and intentional design to do a wrongful act for a
dishonest purpose or moral obliquity. 73 Such must be
substantiated by evidence. 74
There is no adequate proof that ABS-CBN was inspired
by malice or bad faith. It was honestly convinced of the
merits of its cause after it had undergone serious
negotiations culminating in its formal submission of a
draft contract. Settled is the rule that the adverse result
of an action does not per se make the action wrongful
and subject the actor to damages, for the law could not
have meant to impose a penalty on the right to litigate.
If damages result from a person's exercise of a right, it
is damnum absque injuria.75
WHEREFORE, the instant petition is GRANTED. The
challenged decision of the Court of Appeals in CA-G.R.
CV No, 44125 is hereby REVERSED except as to
unappealed award of attorney's fees in favor of VIVA
Productions, Inc.1âwphi1.nêtNo pronouncement as to
costs. SO ORDERED.
G.R. No. 126204 November 20, 2001
NATIONAL POWER CORPORATION, petitioner, vs.
PHILIPP BROTHERS OCEANIC, INC., respondent.
Where a person merely uses a right pertaining to him,
without bad faith or intent to injure, the fact that
damages are thereby suffered by another will not make
him liable.1
This principle finds useful application to the present
case.
Before us is a petition for review of the Decision2 dated
August 27, 1996 of the Court of Appeals affirming in toto
the Decision3 dated January 16, 1992 of the Regional
Trial Court, Branch 57, Makati City.
The facts are:
On May 14, 1987, the National Power Corporation
(NAPOCOR) issued invitations to bid for the supply and
delivery of 120,000 metric tons of imported coal for its
Batangas Coal-Fired Thermal Power Plant in Calaca,
Batangas. The Philipp Brothers Oceanic, Inc. (PHIBRO)
prequalified and was allowed to participate as one of the
bidders. After the public bidding was conducted,
PHIBRO's bid was accepted. NAPOCOR's acceptance was
conveyed in a letter dated July 8, 1987, which was
received by PHIBRO on July 15, 1987.The "Bidding
Terms and Specifications"4provide for the manner of
shipment of coals, thus:
"SECTION V
SHIPMENT
The winning TENDERER who then becomes the
SELLER shall arrange and provide gearless bulk
carrier for the shipment of coal to arrive at
discharging port on or before thirty (30) calendar
days after receipt of the Letter of Credit by the
SELLER or its nominee as per Section XIV hereof to
meet the vessel arrival schedules at Calaca, Batangas,
Philippines as follows:
60,000 +/ - 10 % July 20, 1987
60,000 +/ - 10% September 4, 1987"5
On July 10, 1987, PHIBRO sent word to NAPOCOR that
industrial disputes might soon plague Australia, the
shipment's point of origin, which could seriously hamper
PHIBRO's ability to supply the needed coal. 6 From July
23 to July 31, 1987, PHIBRO again apprised NAPOCOR
of the situation in Australia, particularly informing the
latter that the ship owners therein are not willing to load
cargo unless a "strike-free" clause is incorporated in the
charter party or the contract of carriage.7 In order to
hasten the transfer of coal, PHIBRO proposed to
NAPOCOR that they equally share the burden of a
"strike-free" clause. NAPOCOR refused.
On August 6, 1987, PHIBRO received from NAPOCOR a
confirmed and workable letter of credit. Instead of
delivering the coal on or before the thirtieth day after
receipt of the Letter of Credit, as agreed upon by the
parties in the July contract, PHIBRO effected its first
shipment only on November 17, 1987.
Consequently, in October 1987, NAPOCOR once more
advertised for the delivery of coal to its Calaca thermal
plant. PHIBRO participated anew in this subsequent
bidding. On November 24, 1987, NAPOCOR disapproved
PHIBRO's application for pre-qualification to bid for not
meeting the minimum requirements. 8 Upon further
inquiry, PHIBRO found that the real reason for the
disapproval was its purported failure to satisfy
NAPOCOR's demand for damages due to the delay in the
delivery of the first coal shipment.
This prompted PHIBRO to file an action for damages
with application for injunction against NAPOCOR with
the Regional Trial Court, Branch 57, Makati City.9 In its
complaint, PHIBRO alleged that NAPOCOR's act of
disqualifying it in the October 1987 bidding and in all
subsequent biddings was tainted with malice and bad
faith. PHIBRO prayed for actual, moral and exemplary
damages and attorney's fees.
In its answer, NAPOCOR averred that the strikes in
Australia could not be invoked as reason for the delay in
the delivery of coal because PHIBRO itself admitted that
as of July 28, 1987 those strikes had already ceased.
And, even assuming that the strikes were still ongoing,
PHIBRO should have shouldered the burden of a "strike-
free" clause because their contract was "C and F Calaca,
Batangas, Philippines," meaning,
the cost and freight from the point of origin until the
point of destination would be for the account of PHIBRO.
Furthermore, NAPOCOR claimed that due to PHIBRO's
failure to deliver the coal on time, it was compelled to
purchase coal from ASEA at a higher price. NAPOCOR
claimed for actual damages in the amount of
P12,436,185.73, representing the increase in the price of
coal, and a claim of P500,000.00 as litigation
expenses.10
Thereafter, trial on the merits ensued.
On January 16, 1992, the trial court rendered a decision
in favor of PHIBRO, the dispositive portion of which
reads:
"WHEREFORE, judgment is hereby rendered in
favor of plaintiff Philipp Brothers Oceanic Inc.
(PHIBRO) and against the defendant National
Power Corporation (NAPOCOR) ordering the said
defendant NAPOCOR:
1. To reinstate Philipp Brothers Oceanic, Inc.
(PHIBRO) in the defendant National Power
Corporation's list of accredited bidders and allow
PHIBRO to participate in any and all future
tenders of National Power Corporation for the
supply and delivery of imported steam coal;
2. To pay Philipp Brothers Oceanic, Inc.
(PHIBRO);
a. The peso equivalent at the time of payment of
$864,000 as actual damages,
b. The peso equivalent at the time of payment of
$100,000 as moral damages;
c. The peso equivalent at the time of payment of
$50,000 as exemplary damages;
d. The peso equivalent at the time of payment of
$73,231.91 as reimbursement for expenses, cost
of litigation and attorney's fees;
3. To pay the costs of suit;
4. The counterclaims of defendant NAPOCOR
are dismissed for lack of merit.
SO ORDERED."11
Unsatisfied, NAPOCOR, through the Solicitor General,
elevated the case to the Court of Appeals. On August
27, 1996, the Court of Appeals rendered a Decision
affirming in toto the Decision of the Regional Trial Court.
It ratiocinated that:
"There is ample evidence to show that although
PHIBRO's delivery of the shipment of coal was
delayed, the delay was in fact caused by a)
Napocor's own delay in opening a workable
letter of credit; and b) the strikes which plaqued
the Australian coal industry from the first week
of July to the third week of September 1987.
Strikes are included in the definition of
force majeure in Section XVII of the Bidding
Terms and Specifications, (supra), so Phibro is
not liable for any delay caused thereby.
Phibro was informed of the acceptance of its bid
on July 8, 1987. Delivery of coal was to be
effected thirty (30) days from Napocor's opening
of a confirmed and workable letter of credit.
Napocor was only able to do so on August 6,
1987.
By that time, Australia's coal industry was in the
middle of a seething controversy and unrest,
occasioned by strikes, overtime bans, mine
stoppages. The origin, the scope and the effects
of this industrial unrest are lucidly described in
the uncontroverted testimony of James
Archibald, an employee of Phibro and member
of the Export Committee of the Australian Coal
Association during the time these events
transpired.
xxx xxx xxx
The records also attest that Phibro periodically
informed Napocor of these developments as
early as July 1, 1987, even before the bid was
approved. Yet, Napocor did not forthwith open
the letter of credit in order to avoid delay which
might be caused by the strikes and their after-
effects.
 "Strikes" are undoubtedly included in the
force majeure clause of the Bidding Terms and
Specifications (supra). The renowned civilist,
Prof. Arturo Tolentino, defines force majeure as
"an event which takes place by accident and
could not have been foreseen." (Civil Code of
the Philippines, Volume IV, Obligations and
Contracts, 126, [1991]) He further states:
"Fortuitous events may be produced by
two general causes: (1) by Nature, such
as earthquakes, storms, floods,
epidemics, fires, etc., and (2) by the act
of man, such as an armed invasion,
attack by bandits, governmental
prohibitions, robbery, etc."
Tolentino adds that the term generally applies,
broadly speaking, to natural accidents. In order
that acts of man such as a strike, may constitute
fortuitous event, it is necessary that they have
the force of an imposition which the debtor
could not have resisted. He cites a parallel
example in the case of Philippine National Bank
v. Court of Appeals, 94 SCRA 357 (1979),
wherein the Supreme Court said that the
outbreak of war which prevents performance
exempts a party from liability.
Hence, by law and by stipulation of the parties,
the strikes which took place in Australia from the
first week of July to the third week of
September, 1987, exempted Phibro from the
effects of delay of the delivery of the shipment
of coal."12
Twice thwarted, NAPOCOR comes to us via a petition for
review ascribing to the Court of Appeals the following
errors:
I. "Respondent Court of Appeals gravely and
seriously erred in concluding and so holding
that PHIBRO's delay in the delivery of
imported coal was due to NAPOCOR's
alleged delay in opening a letter of credit
and to force majeure, and not to PHIBRO's
own deliberate acts and faults."13
II. "Respondent Court of Appeals gravely and
seriously erred in concluding and so holding
that NAPOCOR acted maliciously and
unjustifiably in disqualifying PHIBRO from
participating in the December 8, 1987 and
future biddings for the supply of imported
coal despite the existence of valid grounds
therefor such as serious impairment of its
track record."14
III. "Respondent Court of Appeals gravely and
seriously erred in concluding and so holding
that PHIBRO was entitled to injunctive relief,
to actual or compensatory, moral and
exemplary damages, attorney's fees and
litigation expenses despite the clear absence
of legal and factual bases for such award."15
IV. "Respondent Court of Appeals gravely and
seriously erred in absolving PHIBRO from
any liability for damages to NAPOCOR for its
unjustified and deliberate refusal and/or
failure to deliver the contracted imported
coal within the stipulated period."16
V. "Respondent Court of Appeals gravely and
seriously erred in dismissing NAPOCOR's
counterclaims for damages and litigation
expenses."17
It is axiomatic that only questions of law, not questions
of fact, may be raised before this Court in a petition for
review under Rule 45 of the Rules of Court. 18 The
findings of facts of the Court of Appeals are conclusive
and binding on this Court19 and they carry even more
weight when the said court affirms the factual findings
of the trial court.20 Stated differently, the findings of the
Court of .Appeals, by itself, which are supported by
substantial evidence, are almost beyond the power of
review by this Court.21
With the foregoing settled jurisprudence, we find it
pointless to delve lengthily on the factual issues raised
by petitioner. The existence of strikes in Australia having
been duly established in the lower courts, we are left
only with the burden of determining whether or not
NAPOCOR acted wrongfully or with bad faith in
disqualifying PHIBRO from participating in the
subsequent public bidding.
Let us consider the case in its proper perspective.
The Court of Appeals is justified in sustaining the
Regional Trial Court's decision exonerating PHIBRO from
any liability for damages to NAPOCOR as it was clearly
established from the evidence, testimonial and
documentary, that what prevented PHIBRO from
complying with its obligation under the July 1987
contract was the industrial disputes which besieged
Australia during that time. Extant in our Civil Code is the
rule that no person shall be responsible for those events
which could not be foreseen, or which, though foreseen,
were inevitable.22 This means that when an obligor is
unable to fulfill his obligation because of a fortuitous
event or force majeure, he cannot be held liable for
damages for non-performance.23
In addition to the above legal precept, it is worthy to
note that PHIBRO and NAPOCOR explicitly agreed in
Section XVII of the "Bidding Terms and
Specifications"24 that "neither seller (PHIBRO) nor buyer
(NAPOCOR) shall be liable for any delay in or failure of
the performance of its obligations, other than the
payment of money due, if any such delay or failure is
due to Force Majeure." Specifically, they defined
force majeure as "any disabling cause beyond the
control of and without fault or negligence of the party,
which causes may include but are not restricted to Acts
of God or of the public enemy; acts of the Government
in either its sovereign or contractual capacity;
governmental restrictions; strikes, fires, floods, wars,
typhoons, storms, epidemics and quarantine
restrictions."
The law is clear and so is the contract between
NAPOCOR and PHIBRO. Therefore, we have no reason
to rule otherwise.
However, proceeding from the premise that PHIBRO was
prevented by force majeure from complying with its
obligation, does it necessarily follow that NAPOCOR
acted unjustly, capriciously, and unfairly in disapproving
PHIBRO's application for pre-qualification to bid?
First, it must be stressed that NAPOCOR was not bound
under any contract to approve PHIBRO's pre-
qualification requirements. In fact, NAPOCOR had
expressly reserved its right to reject bids. The
Instruction to Bidders found in the "Post-Qualification
Documents/Specifications for the Supply and Delivery of
Coal for the Batangas Coal-Fired Thermal Power Plant I
at Calaca, Batangas Philippines,"25 is explicit, thus:
"IB-17 RESERVATION OF NAPOCOR TO REJECT
BIDS
NAPOCOR reserves the right to reject any or all
bids, to waive any minor informality in the bids
received. The right is also reserved to reject the
bids of any bidder who has previously failed to
properly perform or complete on time any and
all contracts for delivery of coal or any supply
undertaken by a bidder."26(Emphasis supplied)
This Court has held that where the right to reject is so
reserved, the lowest bid or any bid for that matter may
be rejected on a mere technicality. 27 And where the
government as advertiser, availing itself of that right,
makes its choice in rejecting any or all bids, the losing
bidder has no cause to complain nor right to dispute that
choice unless an unfairness or injustice is shown.
Accordingly, a bidder has no ground of action to compel
the Government to award the contract in his favor, nor
to compel it to accept his bid. Even the lowest bid or any
bid may be rejected.28In Celeste v. Court of
Appeals,29 we had the occasion to rule:
"Moreover, paragraph 15 of the Instructions to
Bidders states that 'the Government hereby
reserves the right to reject any or all bids
submitted.' In the case of A.C. Esguerra and
Sons v. Aytona, 4 SCRA 1245, 1249 (1962), we
held:
'x x x [I]n the invitation to bid, there is a
condition imposed upon the bidders to
the effect that the bidders shall be
subject to the right of the government
to reject any and all bids subject to its
discretion. Here the government has
made its choice, and unless an
unfairness or injustice is shown, the
losing bidders have no cause to
complain, nor right to dispute that
choice.'
Since there is no evidence to prove bad faith
and arbitrariness on the part of the petitioners in
evaluating the bids, we rule that the private
respondents are not entitled to damages
representing lost profits." (Emphasis supplied)
Verily, a reservation of the government of its right to
reject any bid, generally vests in the authorities a wide
discretion as to who is the best and most advantageous
bidder. The exercise of such discretion involves inquiry,
investigation, comparison, deliberation and decision,
which are quasi-judicial functions, and when honestly
exercised, may not be reviewed by the
court.30 In Bureau Veritas v. Office of the President,31 we
decreed:
"The discretion to accept or reject a bid and
award contracts is vested in the Government
agencies entrusted with that function. The
discretion given to the authorities on this matter
is of such wide latitude that the Courts will not
interfere therewith, unless it is apparent that it
is used as a shield to a fraudulent award.
(Jalandoni v. NARRA, 108 Phil. 486 [1960]) x x
x. The exercise of this discretion is a policy
decision that necessitates prior inquiry,
investigation, comparison, evaluation, and
deliberation. This task can best be discharged by
the Government agencies concerned, not by the
Courts. The role of the Courts is to ascertain
whether a branch or instrumentality of the
Government has transgresses its constitutional
boundaries. But the Courts will not interfere with
executive or legislative discretion exercised
within those boundaries. Otherwise, it strays
into the realm of policy decision-making. x x x."
(Emphasis supplied)
Owing to the discretionary character of the right
involved in this case, the propriety of NAPOCOR's act
should therefore be judged on the basis of the general
principles regulating human relations, the forefront
provision of which is Article 19 of the Civil Code which
provides that "every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and
good faith."32Accordingly, a person will be protected only
when he acts in the legitimate exercise of his right, that
is, when he acts with prudence and in good faith; but
not when he acts with negligence or abuse.33
Did NAPOCOR abuse its right or act unjustly in
disqualifying PHIBRO from the public bidding?
We rule in the negative.
In practice, courts, in the sound exercise of their
discretion, will have to determine under all the facts and
circumstances when the exercise of a right is unjust, or
when there has been an abuse of right.34
We went over the record of the case with painstaking
solicitude and we are convinced that NAPOCOR's act of
disapproving PHIBRO's application for pre-qualification
to bid was without any intent to injure or a purposive
motive to perpetrate damage. Apparently, NAPOCOR
acted on the strong conviction that PHIBRO had a
"seriously-impaired" track record. NAPOCOR cannot be
faulted from believing so. At this juncture, it is worth
mentioning that at the time NAPOCOR issued its
subsequent Invitation to Bid, i.e., October 1987, PHIBRO
had not yet delivered the first shipment of coal under
the July 1987 contract, which was due on or before
September 5, 1987. Naturally, NAPOCOR is justified in
entertaining doubts on PHIBRO's qualification or
capability to assume an obligation under a new contract.
Moreover, PHIBRO's actuation in 1987 raised doubts as
to the real situation of the coal industry in Australia. It
appears from the records that when NAPOCOR was
constrained to consider an offer from another coal
supplier (ASEA) at a price of US$33.44 per metric ton,
PHIBRO unexpectedly offered the immediate delivery of
60,000 metric tons of Ulan steam coal at US$31.00 per
metric ton for arrival at Calaca, Batangas on September
20-21, 1987."35 Of course, NAPOCOR had reason to
ponder — how come PHIBRO could assure the
immediate delivery of 60,000 metric tons of coal from
the same source to arrive at Calaca not later than
September 20/21, 1987 but it could not deliver the coal
it had undertaken under its contract ?
Significantly, one characteristic of a fortuitous event, in a
legal sense, and consequently in relations to contracts,
is that "the concurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a
normal manner."36 Faced with the above circumstance,
NAPOCOR is justified in assuming that, may be, there
was really no fortuitous event or force majeure which
could render it impossible for PHIBRO to effect the
delivery of coal. Correspondingly, it is also justified in
treating PHIBRO's failure to deliver a serious impairment
of its track record. That the trial court, thereafter, found
PHIBRO's unexpected offer actually a result of its desire
to minimize losses on the part of NAPOCOR is
inconsequential. In determining the existence of good
faith, the yardstick is the frame of mind of the actor at
the time he committed the act, disregarding actualities
or facts outside his knowledge. We cannot fault
NAPOCOR if it mistook PHIBRO's unexpected offer a
mere attempt on the latter's part to undercut ASEA or an
indication of PHIBRO's inconsistency. The circumstances
warrant such contemplation.
That NAPOCOR believed all along that PHIBRO's failure
to deliver on time was unfounded is manifest from its
letters37 reminding PHIBRO that it was bound to deliver
the coal within 30 days from its (PHIBRO's) receipt of
the Letter of Credit, otherwise it would be constrained to
take legal action. The same honest belief can be
deduced from NAPOCOR's Board Resolution, thus:
"On the legal aspect, Management stressed that
failure of PBO to deliver under the contract
makes them liable for damages, considering that
the reasons invoked were not valid. The
measure of the damages will be limited to actual
and compensatory damages. However, it was
reported that Philipp Brothers advised they
would like to have continuous business relation
with NPC so they are willing to sit down or even
proposed that the case be submitted to the
Department of Justice as to avoid a court action
or arbitration.
xxx xxx xxx
On the technical-economic aspect, Management
claims that if PBO delivers in November 1987
and January 1988, there are some advantages.
If PBO reacts to any legal action and fails to
deliver, the options are: one, to use 100%
Semirara and second, to go into urgent coal
order. The first option will result in a 75 MW
derating and oil will be needed as
supplement. We will stand to lose around P30
M. On the other hand, if NPC goes into an
urgent coal order, there will be an additional
expense of $786,000 or P16.11 M, considering
the price of the latest purchase with ASEA. On
both points, reliability is decreased."38
The very purpose of requiring a bidder to furnish the
awarding authority its pre-qualification documents is to
ensure that only those "responsible" and "qualified"
bidders could bid and be awarded with government
contracts. It bears stressing that the award of a contract
is measured not solely by the smallest amount of bid for
its performance, but also by the "responsibility" of the
bidder. Consequently, the integrity, honesty, and
trustworthiness of the bidder is to be considered. An
awarding official is justified in considering a bidder not
qualified or not responsible if he has previously
defrauded the public in such contracts or if, on the
evidence before him, the official bona fide believes the
bidder has committed such fraud, despite the fact that
there is yet no judicial determination to that
effect.39Otherwise stated, if the awarding body bona fide
believes that a bidder has seriously impaired its track
record because of a particular conduct, it is justified in
disqualifying the bidder. This policy is necessary to
protect the interest of the awarding body against
irresponsible bidders.
Thus, one who acted pursuant to the sincere belief that
another willfully committed an act prejudicial to the
interest of the government cannot be considered to have
acted in bad faith. Bad faith has always been a question
of intention. It is that corrupt motive that operates in
the mind. As understood in law, it contemplates a state
of mind affirmatively operating with furtive design or
with some motive of self-interest or ill-will or for ulterior
purpose.40While confined in the realm of thought, its
presence may be ascertained through the party's
actuation or through circumstantial evidence.41 The
circumstances under which NAPOCOR disapproved
PHIBRO's pre-qualification to bid do not show an
intention to cause damage to the latter. The measure it
adopted was one of self-protection. Consequently, we
cannot penalize NAPOCOR for the course of action it
took. NAPOCOR cannot be made liable for actual, moral
and exemplary damages.
Corollarily, in awarding to PHIBRO actual damages in the
amount of $864,000, the Regional Trial Court computed
what could have been the profits of PHIBRO had
NAPOCOR allowed it to participate in the subsequent
public bidding. It ruled that "PHIBRO would have won
the tenders for the supply of about 960,000 metric tons
out of at least 1,200,000 metric tons" from the public
bidding of December 1987 to 1990. We quote the trial
court's ruling, thus:
". . . PHIBRO was unjustly excluded from
participating in at least five (5) tenders
beginning December 1987 to 1990, for the
supply and delivery of imported coal with a total
volume of about 1,200,000 metric tons valued at
no less than US$32 Million. (Exhs. "AA," "AA-1-
1," to "AA-2"). The price of imported coal for
delivery in 1988 was quoted in June 1988 by
bidders at US$41.35 to US$43.95 per metric ton
(Exh. "JJ"); in September 1988 at US$41.50 to
US$49.50 per metric ton (Exh. "J-1"); in
November 1988 at US$39.00 to US$48.50 per
metric ton (Exh. "J-2") and for the 1989
deliveries, at US$44.35 to US$47.35 per metric
ton (Exh. "J-3") and US$38.00 to US$48.25 per
metric ton in September 1990 (Exh. "JJ-6" and
"JJ-7"). PHIBRO would have won the tenders for
the supply and delivery of about 960,000 metric
tons of coal out of at least 1,200,000 metric tons
awarded during said period based on its proven
track record of 80%. The Court, therefore finds
that as a result of its disqualification, PHIBRO
suffered damages equivalent to its standard 3%
margin in 960,000 metric tons of coal at the
most conservative price of US$30,000 per metric
ton, or the total of US$864,000 which PHIBRO
would have earned had it been allowed to
participate in biddings in which it was
disqualified and in subsequent tenders for
supply and delivery of imported coal."
We find this to be erroneous.
Basic is the rule that to recover actual damages, the
amount of loss must not only be capable of proof but
must actually be proven with reasonable degree of
certainty, premised upon competent proof or best
evidence obtainable of the actual amount thereof. 42 A
court cannot merely rely on speculations, conjectures, or
guesswork as to the fact and amount of damages. Thus,
while indemnification for damages shall comprehend not
only the value of the loss suffered, but also that of the
profits which the obligee failed to obtain, 43 it is
imperative that the basis of the alleged unearned profits
is not too speculative and conjectural as to show the
actual damages which may be suffered on a future
period.
In Pantranco North Express, Inc. v. Court of
Appeals,44 this Court denied the plaintiff's claim for
actual damages which was premised on a contract he
was about to negotiate on the ground that there was
still the requisite public bidding to be complied with,
thus:
"As to the alleged contract he was about to
negotiate with Minister Hipolito, there is no
showing that the same has been awarded to
him. If Tandoc was about to negotiate a
contract with Minister Hipolito, there was no
assurance that the former would get it or that
the latter would award the contract to him since
there was the requisite public bidding. The
claimed loss of profit arising out of that alleged
contract which was still to be negotiated is a
mere expectancy. Tandoc's claim that he could
have earned P2 million in profits is highly
speculative and no concrete evidence was
presented to prove the same. The only
unearned income to which Tandoc is entitled to
from the evidence presented is that for the one-
month period, during which his business was
 interrupted, which is P6,125.00, considering that
his annual net income was P73,500.00."
In Lufthansa German Airlines v. Court of Appeals,45 this
Court likewise disallowed the trial court's award of actual
damages for unrealized profits in the amount of
US$75,000.00 for being highly speculative. It was held
that "the realization of profits by respondent . . . was
not a certainty, but depended on a number of factors,
foremost of which was his ability to invite investors
and to win the bid." This Court went further saying that
actual or compensatory damages cannot be presumed,
but must be duly proved, and proved with reasonable
degree of certainty.
And in National Power Corporation v. Court of
Appeals,46 the Court, in denying the bidder's claim for
unrealized commissions, ruled that even if NAPOCOR
does not deny its (bidder's) claims for unrealized
commissions, and that these claims have been
transmuted into judicial admissions, these admissions
cannot prevail over the rules and regulations governing
the bidding for NAPOCOR contracts, which necessarily
and inherently include the reservation by the NAPOCOR
of its right to reject any or all bids.
The award of moral damages is likewise improper. To
reiterate, NAPOCOR did not act in bad faith. Moreover,
moral damages are not, as a general rule, granted to a
corporation.47 While it is true that besmirched reputation
is included in moral damages, it cannot cause mental
anguish to a corporation, unlike in the case of a natural
person, for a corporation has no reputation in the sense
that an individual has, and besides, it is inherently
impossible for a corporation to suffer mental
anguish.48 In LBC Express, Inc. v. Court of Appeals,49 we
ruled:
"Moral damages are granted in recompense for
physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, and similar injury. A corporation,
being an artificial person and having existence
only in legal contemplation, has no feelings, no
emotions, no senses; therefore, it cannot
experience physical suffering and mental
anguish. Mental suffering can be experienced
only by one having a nervous system and it
flows from real ills, sorrows, and griefs of life —
all of which cannot be suffered by respondent
bank as an artificial person."
Neither can we award exemplary damages under Article
2234 of the Civil Code. Before the court may consider
the question of whether or not exemplary damages
should be awarded, the plaintiff must show that he is
entitled to moral, temperate, or compensatory damages.
NAPOCOR, in this petition, likewise contests the
judgment of the lower courts awarding PHIBRO the
amount of $73,231.91 as reimbursement for expenses,
cost of litigation and attorney's fees.
We agree with NAPOCOR.
This Court has laid down the rule that in the absence of
stipulation, a winning party may be awarded attorney's
fees only in case plaintiff's action or defendant's stand is
so untenable as to amount to gross and evident bad
faith.50This cannot be said of the case at bar. NAPOCOR
is justified in resisting PHIBRO's claim for damages. As a
matter of fact, we partially grant the prayer of NAPOCOR
as we find that it did not act in bad faith in disapproving
PHIBRO's pre-qualification to bid.
Trial courts must be reminded that attorney's fees may
not be awarded to a party simply because the judgment
is favorable to him, for it may amount to imposing a
premium on the right to redress grievances in court. We
adopt the same policy with respect to the expenses of
litigation. A winning party may be entitled to expenses
of litigation only where he, by reason of plaintiff's clearly
unjustifiable claims or defendant's unreasonable refusal
to his demands, was compelled to incur said
expenditures. Evidently, the facts of this case do not
warrant the granting of such litigation expenses to
PHIBRO.
At this point, we believe that, in the interest of fairness,
NAPOCOR should give PHIBRO another opportunity to
participate in future public bidding. As earlier mentioned,
the delay on its part was due to a fortuitous event.
But before we dispose of this case, we take this occasion
to remind PHIBRO of the indispensability of coal to a
coal-fired thermal plant. With households and
businesses being entirely dependent on the electricity
supplied by NAPOCOR, the delivery of coal cannot be
venturesome. Indeed, public interest demands that one
who offers to deliver coal at an appointed time must
give a reasonable assurance that it can carry through.
With the deleterious possible consequences that may
result from failure to deliver the needed coal, we believe
there is greater strain of commitment in this kind of
obligation.
WHEREFORE, the decision of the Court of Appeals in CA-
G.R. CV No. 126204 dated August 27, 1996 is hereby
MODIFIED. The award, in favor of PHIBRO, of actual,
moral and exemplary damages, reimbursement for
expenses, cost of litigation and attorney's fees, and
costs of suit, is DELETED. SO ORDERED.
 3. NOMINAL
 ART 2221, 2223 NCC
G.R. No. L-14333 January 28, 1961
OSCAR VENTANILLA, plaintiff-appellant, vs.
GREGORIO CENTENO, defendant-appellee.
This is an action to recover damages claimed to have
been suffered by the plaintiff due to the defendant's
neglect in perfecting within the reglementary period his
appeal from an adverse judgment rendered by the Court
of First Instance of Manila in civil case No. 18833,
attorney's fees and costs (civil No. 2063, Court of First
Instance of Nueva Ecija). After trial, the Court rendered
judgment in favor of the plaintiff and against the
defendant, ordering the latter to pay the former the sum
of P200 as nominal damages and the costs. The plaintiff
appealed to the Court of Appeals, which certified the
case to this Court on the ground that only questions of
law are raised. The defendant did not appeal.
The facts, as found by the trial court, are:
In Civil Case No. 18833 of the Court of First
Instance of Manila, entitled Oscar Ventanilla vs.
Edilberto Alejandrino and Aida G. Alejandrino,
plaintiff retained the service of Atty. Gregorio
Centeno to represent him and prosecute the
case. Civil Case No. 19833 was an action for the
recovery of P4,000.00 together with damages.
Decision unfavorable to the plaintiff was
received by Atty. Gregorio Centeno on July 21,
1955, and a notice of appeal was filed by Atty.
Centeno on July 25, 1955. On July 30, 1955,
Atty. Centeno wrote to the plaintiff the letter,
Exhibit A, enclosing copies of the decision and
that notice of appeal, and stating that he was
not conformable to the decision and had not
hesitated to file the notice of appeal. Plaintiff
Oscar Ventanilla after receiving the letter and
copy of the decision went to see Atty. Centeno
in his office in Manila about August 5, 1955.
Atty. Centeno informed him that he intended to
appeal and plaintiff agreed. Plaintiff, however,
did not leave with Atty. Centeno at that time the
amount for the appeal bond. About the middle
of Aug. 1955, Atty. Centeno wrote a letter to the
plaintiff enclosing therein forms for an appeal
bond. The plaintiff Ventanilla, however, instead
of executing an appeal bond, and because use
of his reluctance to pay the premium on the
appeal bond, decided to file a cash appeal bond
of P60.00. He went to the office of Atty.
Centeno at about 4 o'clock on August 18,1955,
but was informed by the clerk, Leonardo
Sanchez, that Atty. Centeno was in Laguna
campaigning for his candidacy as member of the
Provincial Board. Plaintiff then issued the check
Exhibit 1, for P60.00 as appeal bond and
delivered the same to Leonardo Sanchez with
instruction to give the same to Atty. Centeno
upon his arrival. The Court does not believe
plaintiff's testimony that Sanchez had contacted
Atty. Centeno by telephone and that he issued
the cheek upon instruction of Atty. Centeno.
Leonardo Sanchez had informed the plaintiff
that Atty. Centeno was in Laguna, and if he
were in Manila, Sanchez could not have known
the whereabouts of Atty, Centeno. It was
therefore improbable that he could contact Atty.
Centeno that afternoon. On August 17, Atty.
Centeno prepared the motion for extension of
time to file the record on appeal, Exhibit D,
which was filed only on August 20, 1955. Atty.
Centeno returned to Manila and went to his
office at about 10 o'clock in the morning of
August 22. He cash the check, Exhibit 1, with
the Marvel Building Corporation and then went
to the office of the Clerk of Court to file the
appeal bond. According to Atty. Centeno it was
not accepted because the period of appeal had
already expired, and that it was only at that
time he came to know that the period of appeal
had expired. The court does not likewise believe
the testimony of Atty. Centeno. Neither the
Clerk of Court, or any of the employees had the
right to refuse an appeal bond that is being
filed, for it is not in his power to determine
whether or not the appeal bond has been filed
within the time prescribed by law. In fact the
record on appeal was accepted and filed on
September 5, 1955, but no appeal bond has
been filed by Atty. Centeno. The fact that the
record on appeal was admitted for filing is the
best evidence that Atty. Centeno had not in fact
filed any appeal bond. The record on appeal was
disapproved because it was filed out of time and
no appeal bond had been filed by the plaintiff.
(pp. 33-36, rec. on app.)
The appellant claims that the trial court erred in not
ordering the appellee to pay him actual or
compensatory, moral, temperate or moderate, and
exemplary or corrective damages; in ordering the
appellee to pay the appellant only the sum of P200, and
not P2,000 as nominal damages; and in not ordering the
appellee to pay the appellant the sum of P500 as
attorney's fee.
Article 2199 of the new Civil Code provides:
Except as provided by law or by stipulation, one
is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to
as actual or compensatory damages.
He who claims actual or compensatory damages must
establish and prove by competent evidence actual
pecuniary loss.1 The appellant's bare allegation that by
reason of the appellee's indifference, negligence and
failure to perfect within the reglementary period his
appeal from an adverse judgment rendered in civil case
No. 18833, by not paying the appeal bond of P60, he
lost his chance to recover from the defendants therein
the sum of P4,000 and moral and actual damages, which
he could have recovered if the appeal had duly been
perfected, indicates that his claim for actual or
compensatory damages is highly speculative. Hence he
is not entitled to such damages.
The appellant claims that he suffered mental anguish
upon learning that his appeal had not been perfected
within the reglementary period due to the appellee's
negligence; serious anxiety upon learning that his
adversary had won by a mere technicality; besmirched
reputation for losing the opportunity to substantiate his
claim made while testifying in open court that he was
entitled to collect the sum of P4,000 and damages from
the defendants in civil No. 18833; and wounded feelings
for the appellee's failure to remain faithful to his client
and worthy of his trust and confidence. The provisions
of the new Civil Code on moral damages state:
Art. 2217. Moral damages include physical
suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded
feelings, moral shocks, social humiliation, and
similar injury. Though incapable of pecuniary
computation, moral damages may be recovered
if they are the proximate result of the
defendant's wrongful act or omission.
Art. 2219. Moral damages may be recovered in
the following and analogous cases:
(1) A criminal offense resulting in physical
injuries; .
(2) Quasi-delicts causing physical injuries; .
(3) Seduction, abduction, rape, or other
lascivious acts; .
(4) Adultery or concubinage; .
(5) Illegal or arbitrary detention or arrest; .
(6) Illegal search; .
(7) Libel, slander or any other form of
defamation; .
(8) Malicious prosecution .
(9) Acts mentioned in article 309; .
(10) Acts and actions referred to in articles 21,
26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted,
raped, or abused, referred to in No. 3 of this
article, may also recover moral damages.
The spouse, descendants, ascendants, and
brothers and sister may bring action mentioned
in No. 9 of this article, in the order named.
Art. 2220. Willful injury to property may be legal
ground for awarding moral damages if the court
should find that, under the circumstances, such
damages are justly due. The same rule applies
to breaches of contract where the defendant
acted fraudulently or in bad faith.
Moral damages are recoverable only when physical
suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shocks,
social humiliation, and similar injury are the proximate
result of a criminal offense resulting in physical injuries,
quasi-delicts causing physical injuries, seduction,
abduction, rape or other lascivious acts, adultery or
concubinage, illegal or arbitrary detention or arrest,
illegal search, libel, slander or any other form of
defamation, malicious prosecution, disrespect for the
dead or wrongful interference with funerals, violation of
specific provisions of the Civil Code on human relations,
and willful injury to property. To this we may add that
where a mishap occurs resulting in the death of a
passenger being transported by a common carrier, the
spouse, descendants and ascendants of the deceased
passenger are entitled to demand moral damages for
mental anguish by reason of the passenger's
death.2 In Malonzo vs. Galang, supra, this Court
categorically stated that —
. . .Art. 2219 specifically mentions "quasi-delicts
causing physical injuries," as an instance when
moral damages may be allowed, thereby
implying that all other quasi-delicts not resulting
in physical injuries are excluded (Strebel vs.
Figueras, G.R. L-4722, Dec. 29, 1954),
excepting, of course, the special torts referred to
in Art. 309 (par. 9, Art. 2219) and in Arts. 21,
26, 27, 28, 29, 30, 32, 34 and 35 on the chapter
on human relations (par. 10, Art. 2219). 3
Since the appellant's cause of action for recovery of
moral damages is not predicated upon any of those
specifically enumerated, the trial court did not err in
declining to award moral damages to him.
Concerning temperate or moderate damages claimed by
the appellant, considering that he is not entitled to
actual or compensatory damages but has been awarded
nominal damages by the trial court, such award
precludes the recovery of temperate or moderate
damages,4 and so the trial court did not err in refusing
to award temperate or moderate damages to the
appellant .
As regards exemplary or corrective damages also
claimed by the appellant, since it cannot be recovered as
a matter of right and the court will decide whether or
not they should be adjudicated,5 if the defendant acted
in a wanton, fraudulent, reckless, oppressive or
malevolent manner,6 the trial court has judiciously,
wisely and correctly exercised its discretion in not
awarding them to the appellant.
Relative to the sufficiency of the sum of P200 as nominal
damages awarded by the trial court to the appellant,
article 2221 of the new Civil Code provides:
Nominal damages are adjudicated in order that
a right of the plaintiff, which has been violated
or invaded by the defendant, may be vindicated
or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered
by him.
The assessment of nominal damages is left to the
discretion of the court, according to the circumstances of
the case.7 Considering the circumstances, as found by
the trial court, and the degree of negligence committed
by the appellee, a lawyer, in not depositing on time the
appeal bond and filing the record on appeal within the
extension period granted by the court, which brought
about the refusal by the trial court to allow the record
on appeal, the amount of P200 awarded by the trial
court to the appellant as nominal damages may seem
exiguous. Nevertheless, considering that nominal
damages are not for indemnification of loss suffered but
for the vindication or recognition of a right violated or
invaded; and that even if the appeal in civil case No.
18833 had been duly perfected, it was not an assurance
that the appellant would succeed in recovering the
amount he had claimed in his complaint, the amount of
P2,000 the appellant seeks to recover as nominal
damages is excessive. After weighing carefully all the
considerations, the amount awarded to the appellant for
nominal damages should not be disturbed.
As regards attorney's fees, since the appellant's claim
does not fall under any of those enumerated in article
2208, new Civil Code, the appellee may not be
compelled to satisfy it.
The judgment appealed from is affirmed, without special
pronouncement as to costs.
G.R. No. L-41093 October 30, 1978
ROBES-FRANCISCO REALTY & DEVELOPMENT
CORPORATION, petitioner, vs. COURT OF FIRST
INSTANCE OF RIZAL (BRANCH XXXIV), and
LOLITA MILLAN, respondents.
This is a direct appeal on questions of law from a
decision of the Court of First Instance of Rizal, Branch
XXXIV, presided by the Honorable Bernardo P. Pardo,
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered commanding the
defendant to register the deed of absolute sale it had
executed in favor of plaintiff with the Register of Deeds of
Caloocan City and secure the corresponding title in the name
of plaintiff within ten (10) days after finality of this decision;
if, for any reason, this not possible, defendant is hereby
sentenced to pay plaintiff the sum of P5,193.63 with interest
at 4% per annum from June 22, 1972 until fully paid.
In either case, defendant is sentenced to pay plaintiff
nominal damages in the amount of P20,000.00 plus
attorney's fee in the amount of P5,000.00 and costs.
SO ORDERED.
Caloocan City, February 11, 1975. (rollo, p. 21)
Petitioner corporation questions the award for nominal
damages of P20,000.00 and attorney's fee of P5,000.00
which are allegedly excessive and unjustified.
In the Court's resolution of October 20, 1975, We gave
due course to the Petition only as regards the portion of
the decision awarding nominal damages. 1
The following incidents are not in dispute:
In May 1962 Robes-Francisco Realty & Development
Corporation, now petitioner, agreed to sell to private
respondent Lolita Millan for and in consideration of the
sum of P3,864.00, payable in installments, a parcel of
land containing an area of approximately 276 square
meters, situated in Barrio Camarin, Caloocan City,
known as Lot No. 20, Block No. 11 of its Franville
Subdivision. 2
Millan complied with her obligation under the contract
and paid the installments stipulated therein, the final
payment having been made on December 22, 1971. The
vendee made a total payment of P5,193.63 including
interests and expenses for registration of title.3
Thereafter, Lolita Millan made repeated demands upon
the corporation for the execution of the final deed of
sale and the issuance to her of the transfer certificate of
title over the lot. On March 2, 1973, the parties executed
a deed of absolute sale of the aforementioned parcel of
land. The deed of absolute sale contained, among
others, this particular provision:
 That the VENDOR further warrants that the
transfer certificate of title of the above-
described parcel of land shall be transferred in
the name of the VENDEE within the period of six
(6) months from the date of full payment and in
case the VENDOR fails to issue said transfer
certificate of title, it shall bear the obligation to
refund to the VENDEE the total amount already
paid for, plus an interest at the rate of 4% per
annum. (record on appeal, p. 9)
Notwithstanding the lapse of the above-mentioned
stipulated period of six (6) months, the corporation
failed to cause the issuance of the corresponding
transfer certificate of title over the lot sold to Millan,
hence, the latter filed on August 14, 1974 a complaint
for specific performance and damages against Robes-
Francisco Realty & Development Corporation in the
Court of First Instance of Rizal, Branch XXXIV, Caloocan
City, docketed therein as Civil Case No. C-3268. 4
The complaint prayed for judgment (1) ordering the
reformation of the deed of absolute sale; (2) ordering
the defendant to deliver to plaintiff the certificate of title
over the lot free from any lien or encumbrance; or,
should this be not possible, to pay plaintiff the value of
the lot which should not be less than P27,600.00
(allegedly the present estimated value of the lot); and
(3) ordering the defendant to pay plaintiff damages,
corrective and actual in the sum of P15 000.00. 5
The corporation in its answer prayed that the complaint
be dismissed alleging that the deed of absolute sale was
voluntarily executed between the parties and the
interest of the plaintiff was amply protected by the
provision in said contract for payment of interest at 4%
per annum of the total amount paid, for the delay in the
issuance of the title. 6
At the pretrial conference the parties agreed to submit
the case for decision on the pleadings after defendant
further made certain admissions of facts not contained
in its answer. 7
Finding that the realty corporation failed to cause the
issuance of the corresponding transfer certificate of title
because the parcel of land conveyed to Millan was
included among other properties of the corporation
mortgaged to the GSIS to secure an obligation of P10
million and that the owner's duplicate certificate of title
of the subdivision was in the possession of the
Government Service Insurance System (GSIS), the trial
court, on February 11, 1975, rendered judgment the
dispositive portion of which is quoted in pages 1 and 2
of this Decision. We hold that the trial court did not err
in awarding nominal damages; however, the
circumstances of the case warrant a reduction of the
amount of P20,000.00 granted to private respondent
Millan.
There can be no dispute in this case under the pleadings
and the admitted facts that petitioner corporation was
guilty of delay, amounting to nonperformance of its
obligation, in issuing the transfer certificate of title to
vendee Millan who had fully paid up her installments on
the lot bought by her. Article 170 of the Civil Code
expressly provides that those who in the performance of
their obligations are guilty of fraud, negligence, or delay,
and those who in any manner contravene the tenor
thereof, are liable for damages.
Petitioner contends that the deed of absolute sale
executed between the parties stipulates that should the
vendor fail to issue the transfer certificate of title within
six months from the date of full payment, it shall refund
to the vendee the total amount paid for with interest at
the rate of 4% per annum, hence, the vendee is bound
by the terms of the provision and cannot recover more
than what is agreed upon. Presumably, petitioner in
invoking Article 1226 of the Civil Code which provides
that in obligations with a penal clause, the penalty shall
substitute the indemnity for damages and the payment
of interests in case of noncompliance, if there is no
stipulation to the contrary.
The foregoing argument of petitioner is totally devoid of
merit. We would agree with petitioner if the clause in
question were to be considered as a penal clause.
Nevertheless, for very obvious reasons, said clause does
not convey any penalty, for even without it, pursuant to
Article 2209 of the Civil Code, the vendee would be
entitled to recover the amount paid by her with legal
rate of interest which is even more than the 4%
provided for in the clause. 7-A
It is therefore inconceivable that the aforecited provision
in the deed of sale is a penal clause which will preclude
an award of damages to the vendee Millan. In fact the
clause is so worded as to work to the advantage of
petitioner corporation.
Unfortunately, the vendee, now private respondent,
submitted her case below without presenting evidence
on the actual damages suffered by her as a result of the
nonperformance of petitioner's obligation under the
deed of sale. Nonetheless, the facts show that the right
of the vendee to acquire title to the lot bought by her
was violated by petitioner and this entitles her at the
very least to nominal damages.
The pertinent provisions of our Civil Code follow:
Art. 2221. Nominal damages are adjudicated in
order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be
 vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss
suffered by him.
Art. 2222. The court may award nominal
damages in every obligation arising from any
source enumerated in article 1157, or in every
case where any property right has been
invaded.
Under the foregoing provisions nominal damages are not
intended for indemnification of loss suffered but for the
vindication or recognition of a right violated or invaded.
They are recoverable where some injury has been done
the amount of which the evidence fails to show, the
assessment of damages being left to the discretion of
the court according to the circumstances of the case. 8
It is true as petitioner claims that under American
jurisprudence nominal damages by their very nature are
small sums fixed by the court without regard to the
extent of the harm done to the injured party.
It is generally held that a nominal damage is a
substantial claim, if based upon the violation of
a legal right; in such case, the law presumes a
damage, although actual or compensatory
damages are not proven; in truth nominal
damages are damages in name only and not in
fact, and are allowed, not as an equivalent of a
wrong inflicted, but simply in recogniton of the
existence of a technical injury. (Fouraker v. Kidd
Springs Boating and Fishing Club, 65 S. W. 2d
796-797, citing 17 C.J. 720, and a number of
authorities).9
In this jurisdiction, in Vda. de Medina, et al. v.
Cresencia, et al. 1956, which was an action for damages
arising out of a vehicular accident, this Court had
occasion to eliminate an award of P10,000.00 imposed
by way of nominal damages, the Court stating inter
alia that the amount cannot, in common sense, be
demeed "nominal".10
In a subsequent case, viz: Northwest Airlines, Inc. v.
Nicolas L. Cuenca, 1965, this Court, however, through
then Justice Roberto Concepcion who later became Chief
Justice of this Court, sustained an award of P20,000.00
as nominal damages in favor of respnodent Cuenca.
The Court there found special reasons for considering
P20,000.00 as "nominal". Cuenca who was the holder of
a first class ticket from Manila to Tokyo was rudely
compelled by an agent of petitioner Airlines to move to
the tourist class notwithstanding its knowledge that
Cuenca as Commissioner of Public Highways of the
Republic of the Philippines was travelling in his official
capacity as a delegate of the country to a conference in
Tokyo." 11
Actually, as explained in the Court's decision
in Northwest Airlines, there is no conflict between that
case and Medina, for in the latter, the P10,000.00 award
for nominal damages was eliminated principally because
the aggrieved party had already been awarded
P6,000.00 as compensatory damages, P30,000.00 as
moral damages and P10,000.00 as exemplary damages,
and "nominal damages cannot coexist with
compensatory damages," while in the case of
Commissioner Cuenca, no such compensatory, moral, or
exemplary damages were granted to the latter. 12
At any rate, the circumstances of a particular case will
determine whether or not the amount assessed as
nominal damages is within the scope or intent of the
law, more particularly, Article 2221 of the Civil Code.
In the situation now before Us, We are of the view that
the amount of P20,000.00 is excessive. The admitted
fact that petitioner corporation failed to convey a
transfer certificate of title to respondent Millan because
the subdivision property was mortgaged to the GSIS
does not in itself show that there was bad faith or fraud.
Bad faith is not to be presumed. Moreover, there was
the expectation of the vendor that arrangements were
possible for the GSIS to make partial releases of the
subdivision lots from the overall real estate mortgage. It
was simply unfortunate that petitioner did not succeed
in that regard.
For that reason We cannot agree with respondent Millan
Chat the P20,000.00 award may be considered in the
nature of exemplary damages.
In case of breach of contract, exemplary damages may
be awarded if the guilty party acted in wanton,
fraudulent, reckless, oppressive or malevolent
manner. 13 Furthermore, exemplary or corrective
damages are to be imposed by way of example or
correction for the public good, only if the injured party
has shown that he is entitled to recover moral,
temperate or compensatory damages."
Here, respondent Millan did not submit below any
evidence to prove that she suffered actual or
compensatory damages. 14
To conclude, We hold that the sum of Ten Thousand
Pesos (P10,000.00) by way of nominal damages is fair
and just under the following circumstances, viz:
respondent Millan bought the lot from petitioner in May,
1962, and paid in full her installments on December 22,
1971, but it was only on March 2, 1973, that a deed of
absolute sale was executed in her favor, and
notwithstanding the lapse of almost three years since
she made her last payment, petitioner still failed to
convey the corresponding transfer certificate of title to
Millan who accordingly was compelled to file the instant
complaint in August of 1974.
PREMISES CONSIDERED, We modify the decision of the
trial court and reduce the nominal damages to Ten
Thousand Pesos (P10,000.00). In all other respects the
aforesaid decision stands. Without pronouncement as to
costs. SO ORDERED.
[G.R. No. 133925. November 29, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. AGUSTIN GOPIO, accused-appellant.
This is an appeal from the decision[1] of the
Regional Trial Court, Branch 12, Bulacan, finding
accused-appellant Agustin Gopio guilty of statutory rape
and sentencing him to suffer the penalty of reclusion
perpetua and to indemnify the heirs of the victim in the
amount of P3,727.00 as actual damages, P30,000.00, as
moral damages, and to pay the costs of the suit.
The information against accused-appellant
charged:[2]
That sometime in the year 1995, in the municipality of
Obando, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused
Agustin Gopio y Arcillas, by means of violence, force and
intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge of the said Ma.
Princess Millano y San Diego, 11 years of age, against
her will.
Contrary to law.
Trial proceeded as accused-appellant pleaded not
guilty when arraigned on March 7, 1997. The
prosecution presented as witnesses the victim, Ma.
Princess Millano, her mother, Luzviminda Millano, and
the Municipal Health Officer of Obando, Bulacan, Dr.
Rufino Bautista.
The offense charged was committed by Agustin
Gopio,[3] in Brgy. San Pascual, Obando, Bulacan
sometime between the months of May and June
1995. At that time, the barangay was celebrating its
fiesta. The victim stepped out of their house around
10:00 a.m. to buy cooking oil from accused-appellants
store. However, it was closed.[4] As she was about to
leave the store, accused-appellant called her. When she
came near him, he suddenly seized her and brought her
inside the house. There was nobody inside the house
when the victim was taken by accused-appellant to the
bedroom. The victim resisted and screamed but
accused-appellant threatened to hurt her and her
family.Accused-appellant laid the victim on the bed in
such a way that her feet were dangling on the
floor. Then, he removed her underwear, bent over the
victim, and started licking her vagina. Later on, accused-
appellant removed his briefs, knelt on the floor, and
placed his penis in the victims vagina. The victim cried in
pain as accused-appellant penetrated her. As the victim
would not stop crying, accused-appellant let her go.[5]
The victim immediately went outside accused-
appellants house and rushed home. On the way to her
house, she felt intense pain in her vagina and noticed
that she was bleeding. As soon as she reached home,
she changed her clothes. She was confused and afraid
her mother would get angry because of what happened
to her. When her mother saw her inside the house and
asked her if she was able to buycooking oil, the victim
told her mother that the store was closed. So, she was
again sent out to buy cooking oil from another store.
The victim related that on two other occasions after
the incident, also in 1995, she was again molested by
accused-appellant. On one occasion, the victim stated
that she went to the house of her godsister, Rachel, also
in San Pascual, Bulacan, to invite the latter to play, but
Rachel was not around. Inside the house were several
men playing tong-its. Among them was accused-
appellant. When the victim was about to leave, she saw
Rachels younger brother inside the bedroom crying, so
she went there and picked him up. To the victims
surprise, accused-appellant went to the bedroom and
closed the door behind him. The victim tried to cry out
for help but accused-appellant tightly covered her mouth
and ordered her to put the child down. When she did so,
he lowered her shorts and panty and started caressing
her vagina. After more or less one month had elapsed,
accused-appellant once again molested the victim when
she went to her grandfathers abandoned house to get
the pail requested by her aunt. She did not know that
accused-appellant followed her to the house and she
was too afraid to resist the sexual advances by accused-
appellant.
The victim did not confide to her family about these
incidents because she was very afraid of accused-
appellant and of what her parents would do to
her. Likewise, the victim was ashamed and worried that
her friends would spread the news regarding her
unfortunate experience.[6]
To corroborate the testimony of the victim,
Luzviminda Millano initially testified that her daughter,
who was born on February 7, 1985, was 10 years old at
the time of the rape incident, as evidenced by the
victims birth certificate (Exh. D).[7] On cross-
examination, Luzviminda recalled that when the victim
came back from the store, she observed that her
daughter looked pale and worried. She also noticed that
her daughter had changed her clothes. However,
Luzviminda did not bother to ask her daughter what
happened to her because she had several things to do
and was very busy preparing for lunch. The victim did
not eat lunch on that day and ate supper ahead of
them. Luzviminda added that since the time of the
incident, the victim had become inattentive and
withdrawn. She started getting noticeably low grades in
school.[8]
In November 1996, Luzviminda brought the victim
to the Municipal Health Center of Obando, Bulacan
because the latter had been experiencing pain in her
navel. The health officer of Obando, Dr. Rufino Bautista,
conducted the physical examination of the victim and
made the following findings in his report: [9]
On external examination of the genital organ -
Presence of irregular and hardened surface of both labia majora and
labia minora, around the edges of both labia
On internal examination –
a) easily admits size of thumb without any resistant (sic)
b) ruptured hymen with hard edges (scar)
Medical Opinion:
Virginity was destroyed, sexual intercourse was consummated.
Dr. Bautistas findings showed that the victims
hymen had been ruptured, caused possibly by the
insertion of a male organ. He concluded that the victim
had already lost her virginity and explained that the
looseness of the vaginal canal could not have been
caused by strenuous physical activities or accidental
falling.[10]
Based on the result of the physical examination,
Luzviminda, with the help of her brother-in-law, asked
her daughter if somethinghappened to her. At first, the
victim was hesitant but, later on, she finally told them
that she was raped by their neighbor, accused-appellant
Agustin Gopio.[11] Thereafter, on November 25, 1996,
Luzviminda filed a criminal complaint in behalf of the
victim charging accused-appellant with rape. The
information for rape was formally filed on February 12,
1997.
Luzviminda presented several receipts covering
medical, transportation, food, and other expenses which
she allegedly incurred on account of the incident.[12]
The defense, on the other hand, presented
accused-appellant Agustin Gopio and his wife, Susita
Gopio, as witnesses. Accused-appellant testified that he
knew the victim and her family because they were
neighbors in Obando, Bulacan. He testified that it was
impossible for him to commit the crime of rape against
the victim in May and June of 1995 because he was then
in Novaliches, Quezon City.Accused-appellant explained
that he has been selling fish there almost everyday since
1994. He said that he usually left his house at 1:00 a.m.
to buy fish from the pondohan and sell them in the
market from 7:00 a.m. until 11:00 a.m. Accused-
appellant would then go home and reach his house
between 12:00 noon to 1:00 p.m. Afterwards he would
usually go to the cockpit between 1:00 p.m. to 2:00
p.m. Moreover, accused-appellant alleged that the
victims father told him that, sometime in 1995, the
victim and the other members of her family were in
Quezon. Accused-appellant stated that he last saw the
victim in 1994 although he admitted that she used to go
to their store either to buy food or play with one of his
daughters.
Accused-appellant further declared that at one time
he failed to bring along the victims mother to the market
to sell fish and his failure to do so started the animosity
between their families. Accused-appellant testified that it
could be why the victims family filed a case against him.
Accused-appellants wife, Susita Gopio, testified that
they had a retail store at home. She opened the store at
around 7:00 a.m. and closes it at 10:00 p.m.
everyday. Hence, it was unlikely that there was nobody
in the house at the time of the alleged incident.[13]
On November 23, 1996, several policemen came
looking for accused-appellant in his house. When
accused-appellant arrived and learned about this, he
went to their barangay captain for
assistance. Thereafter, the barangay captain
accompanied accused-appellant to the police station to
clear his name. However, when they arrived at the
police station, accused-appellant was informed of the
charges against him. He was then placed in jail despite
his protests. Moreover, while he was imprisoned,
accused-appellant executed a sworn statement denying
the charges against him.[14]
After trial, the court a quo rendered its decision,
dated April 6, 1998, finding accused-appellant guilty of
rape. The dispositive portion of its decision reads:[15]
WHEREFORE, finding accused Agustin Gopio y Arcillas
guilty as principal beyond reasonable doubt of the crime
of statutory rape as charged in the information, there
being no aggravating or mitigating circumstance
attending the commission of said crime, he is hereby
sentenced to suffer the penalty of reclusion perpetua, to
indemnify the private offended party in the amount of
P3,727.00 as actual damage, and in the further sum of
P30,000.00 as moral damages, and pay the costs of the
proceedings.
In the award of the above moral damages the filing fee
corresponding thereto shall constitute a first lien on said
judgment.
In the service of his sentence the accused who is a
detention prisoner shall be credited with the time during
which he has undergone preventive imprisonment,
pursuant to Art. 29 of the Revised Penal Code. SO
ORDERED.
Hence this appeal. Accused-appellant assigns the
following errors as having been allegedly committed by
the trial court:
I. THE TRIAL COURT ERRED IN NOT FINDING
THAT THE INFORMATION IS INSUFFICIENT
TO SUPPORT A JUDGMENT OF CONVICTION
 FOR ITS FAILURE TO STATE THE PRECISE
DATE OF THE OFFENSE CHARGED.
II. THE TRIAL COURT GRAVELY ERRED IN
FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE
CRIME CHARGED.
In the prosecution for rape cases, this Court has
been guided by the following principles in its review of
trial court decisions: (1) an accusation for rape can be
made with facility; it is difficult to prove but more
difficult for the person accused, though innocent, to
disprove; (2) in view of the nature of the crime of rape
where only two persons are usually involved, the
testimony of the complainant is scrutinized with extreme
caution; and (3) the evidence for the prosecution stands
or falls on its own merits and cannot be allowed to draw
strength from the weakness of the defense.[16]
In the case at bar, our review of the evidence
confirms the finding of the trial court that accused-
appellant is guilty of statutory rape. The two elements
that must be established to hold the accused guilty of
statutory rape are: (1) that the accused had carnal
knowledge of a woman, and (2) that the woman is
below 12 years of age. Thus, the age of the victim, as
an essential element for the conviction thereof, must
unquestionably be proved by the prosecution.[17]
The evidence presented by the prosecution shows
that accused-appellant had carnal knowledge of the
victim. In the sworn statement, dated November 23,
1996, which the victim executed and properly identified
during the trial, she stated:[18]
T: Ano ba ang ginawa sa yo ni Jhun Gopio at gusto mong
makulong ito?
S: Dahil po sa ginawang panghahalay niya sa akin.
T: Ano bang klaseng panghahalay ang ginawa sa iyo ni Jhun?
S: Ginahasa po niya ako.
T: Maaari mo bang sabihin sa pagsisiyasat na ito kung paano ka
ginahasa ni Jhun?
S: Opo, hinubaran po ako ng panty, pinahiga po ako sa kama,
dinila-dilaan po ang ari ko (kiki) at tapos po ay naghubad po
siya ng short at brief pinasok po niya ang ari (titi) niya sa
kiki ko.
T: Ano pa ang ginawa ni Jhun ng nakapasok na ang titi niya sa ari
mo?
S: Hindi ko na po matandaan.
T: Ano ang ginawa mo ng nakapasok na ang titi ni Jhun sa ari mo?
S: Umiiyak po ako at sinasabi ko na Huwag po, tama na po, pero
hindi po siya nakikinig sa akin.
T: Ang ibig mo bang sabihin ng ikaw ay pinahiga sa kama ay
pumatong ba ang katawan ni Jhun sa katawan mo?
S: Hindi po, nakaluhod po siya sa sahig at ang dalawa ko pong paa
ay nasa sahig.
T: Ikaw ba ay nakakaintindi sa orasan?
S: Opo.
T: Humigit-kumulang, gaano ba katagal na ginawa sa iyo ni Jhun
ang bagay na yun?
S: Humigit kumulang po sa isang (1) minuto.
T: Nang pinasok ni Jhun ang kanyang ari sa iyong ari ano ang
naramdaman mo?
S: Masakit po ang ari ko.
T: Hindi ka ba sumigaw o humingi ng saklolo para matigil ang
gingawa sa iyo ni Jhun?
S: Hindi po dahil natakot po ako sa kanya.
T: Hindi ka ba tinakot ni Jhun?
S: Tinakot po ako pagkatapos ng ginawa sa akin ng Huwag daw
po akong magsusumbong kahit kanino dahil may masamang
mangyayari sa akin.
T: Papaanong natapos ang ginawa sa iyo ni Jhun?
S: Yun pong kahulihulihan ko pong sinabi sa kanya na Tama na po
tapos saka lang po siya tumigil, pinagbihis po niya ako ng
short ko at panty at tapos pinauwi na po ako.
T: Paano ka naman ba napunta sa bahay ni Jhun?
S: Bibili po ako sa tindahan nila at nakita ko po na sarado ang
tindahan tapos po pauwi na po ako tinawag po ako ni Jhun
at pinapasok ako sa bahay nila at may sasabihin daw po siya
sa akin.
T: Natatandaan mo ba kung saan, kailan at kung anong oras
nangyari ito?
S: Natatandaan ko po nangyari ito duon po sa bahay nila sa Brgy.
San Pascual, Obando, Bulacan, hindi ko na po matandaan
ang buwan, araw pero ang oras po ay alas 10:00 ng umaga
noon pong 1995.
....
T: Minsan lang ba ito ginawa sa iyo ni Jhun Gopio?
S: Isang (1) beses lang po yun panghahalay sa akin pero
dalawang (2) beses pong naulit ang panghihipo po sa ari ko
(kiki).
The victim consistently testified:[19]
FISCAL:
Q: Madam witness, do you know of any unusual incident or any
unusual thing that has been done to you by this accused if
any?
A: Yes, Maam.
Q: What was that?
A: When he inserted his penis inside my vagina, Maam.
Q: Do you know as to when was this or when did this take place?
A: That was in 1995, Maam.
Q: Around what month?
A: Between the months of May and June, Maam.
Q: Why do you know that this incident took place between the
months of May and June, 1995?
A: Because there was an occasion then, Maam.
Q: What occasion?
A: Our barangay fiesta, Maam.
....
Q: So what happened when he dragged you inside his bedroom?
A: He advised me to undress, Maam.
Q: When he advised you to undress, did you follow his order?
A: Yes, Maam, because he threatened me.
Q: What did he tell you as a means of threatening?
A: He told me not to tell that matter to anybody or else something
bad would happen to my family, Maam.
Q: After he threatened you with those words and after ordering
you to undress which according to you, you followed, what
happened next?
A: He inserted his penis inside my vagina, Maam.
Q: What did you do when he inserted his penis inside you vagina?
A: I was then crying.
Q: Why were you crying?
A: Because it was painful, Maam.
Q: What happened next after that?
A: When I was then crying and told him to stop it, he stopped and
he let me go outside his house, Maam.
....
Q: What happened to your vagina after the accused finished
inserting his penis in your vagina?
A: There was blood, Maam.
The victim was unshaken by her cross-examination. She
testified:[20]
ATTY. JOSON:
Q: Madam witness, you also stated that you are going to buy
cooking oil and you saw that the house of the accused was
closed. Now, why despite the fact that the house of the
accused was closed then you still went there at his store?
A: I was about to go back home when he called me and when I
came to him, he suddenly pulled me inside his house, sir.
 Q: Miss witness, you said that the accused called you. Where was
the accused then when he called you at that time?
A: By the door of his house, sir.
....
Q: Madam witness, you also stated that your vagina bled. Is it not
a fact that you were very afraid at that time?
A: I became afraid because of his threat not to tell my family or
bad things will happen to me and to my family, sir.
Q: What did you think of your blood coming from your vagina at
that time, Madam witness?
A: I became very afraid worried that something might happen to
me which was bad, sir.
....
Q: Madam witness, when you went back home and bought again
another cooking oil as your mother have told you at that
time, were you wearing the same clothes at that time - were
you wearing the same clothes when you came from the
house of Gopio back to your house and then went out again
to buy cooking oil?
A: No, sir, I changed my clothes.
COURT:
Q: Why did you change your clothes?
A: My mother might notice the blood on my panty and she might
scold me, your honor.
The age of the victim at the time was likewise
proven by the prosecution. In fact, it has not been
raised as an issue in this case.
The trial court in its decision observed:[21]
. . . . The penal code penalizes carnal knowledge by a
man of a woman under twelve years of age, under any
circumstance, whether force or intimidation is used or
not, whether or not she is deprived of reason or
consciousness, or even if the girl consented or herself
was the one who initiated the act. She is presumed by
law not in any position to give either consent or
resistance because of her young age, and no man is
allowed by law to have sex with her unpunished.
In People v. Alegado,[22] it was held that, under 39
and 40 of the Revised Rules on Evidence, the reputation
or tradition existing in a family previous to the
controversy in respect to the pedigree of any of its
members may be received in evidence if the witness
testifying thereon be also a member of the family, either
by consanguinity or affinity. The word pedigree includes
relationship, family genealogy, birth, marriage, death,
and the dates when, the places where these facts
occurred, and the names of the relatives. Hence, the
testimonies of the victim and her mother are sufficient
to prove the victims age. In addition, aside from the
testimonies of the victim and her mother that the former
was born on February 7, 1985 and was 10 years old
when the incident took place, the prosecution also
presented the birth certificate of the victim.
Accused-appellant interposes a number of
defenses.
First. Accused-appellant claims that in May and
June of 1995, he was in Novaliches selling fish. This
defense merits no consideration. Accused-appellant has
not shown that it was physically impossible for him to
have been at the scene of the crime at the time of its
commission. Moreover, other than the testimony of
accused-appellant and his wife that the latter never
leaves their house, no evidence was presented to
substantiate his defense of alibi.
In contrast, the victim positively identified accused-
appellant as the perpetrator of the crime and
categorically testified that she had been raped by
accused-appellant in the latters house to which she was
taken between the months of May and June 1995. It has
been held that when a rape victims testimony is
straightforward and candid, unshaken by rigid cross-
examination and unflawed by inconsistencies or
contradictions in its material points, the same must be
given full faith and credit.[23] Thus, this Court said in one
case:[24]
Alibi as a means of defense is weak when not
substantiated by the testimony of a credible
witness. Courts have always looked upon the defense of
alibi with suspicion and have always received it with
caution not only because it is inherently weak and
unreliable but also because it is easily fabricated. Alibi as
basis for acquittal must be established with clear and
convincing evidence. The accused must convincingly
demonstrate that it was physically impossible for him to
have been at the scene of the crime at the time of its
commission. And, where accused was positively
identified by the victim herself who harbored no ill
motive against the rapist, as in this case, the defense of
alibi must fail.
Between the positive assertions of the prosecution
witnesses and the negative averments of accused-
appellant, the former indisputably deserve more
credence and are entitled to greater evidentiary
weight.[25]
The defense further argues that accused-appellant
could not have committed the crime in his house
between those months because, as testified to by
accused-appellants wife, she was always there tending
the store and taking care of their two small children. The
trial court correctly gave credence to the victims
testimony that there was no one in accused-appellants
house when she was raped by the latter. As she
testified:[26]
FISCAL:
....
Q: You said that he inserted his penis inside your vagina and you
said that it took place between May and June. My question
to you now is, where did this takes place?
A: In his house, Maam.
Q: And when you said in his house, where is his house? Where is
this house located?
A: At Brgy. San Pascual, Obando, Bulacan, Maam.
Q: Now, how come that you were in his house at this time?
A: I was then going to his house because he has a store, Maam.
Q: And what will you suppose to do in that store?
A: I would buy something, Maam.
Q: And do you still remember what you were suppose to buy that
time?
 A: Yes, Maam.
Q: What will you suppose to buy?
A: Cooking oil, Maam.
Q: Were you able to buy this cooking oil?
A: No, Maam.
Q: Why were you not able to buy the cooking oil?
A: Because his house was then closed and nobody [was] inside,
Maam.
Q: How were you able to go inside his house which according to
you were just to buy from the store? (sic)
A: When I was about to leave the store, I did not see him but he
immediately grabbed me inside the house, Maam.
Q: When you were immediately grabbed inside his house, to what
part of his house were you brought to?
A: At his bedroom, Maam.
Q: Did you notice if there were other persons inside the house or
in the bedroom?
A: Nobody, Maam.
The evaluation of testimonies rests primarily on trial
courts. Our function is to review the testimonies only if it
is shown that the trial court has overlooked a matter of
substance which, if considered, is likely to result in a
different conclusion. We have not been shown any such
evidence in this case.
And even assuming that accused-appellants family
members were around at the time, this does not
discount the possibility that a rape was perpetrated
inside the house. It has time and again been said that
rape is no respecter of time or place as it can be
committed in small, confined places or in places which
many would consider as unlikely and inappropriate, or
even in the presence of other family members.[27]
Indeed, the testimony of Susita Gopio is rendered
suspect because of her relationship to accused-
appellant. In one case, it was contended that the trial
court should have given more weight to the testimonies
of the defense witnesses which uniformly provided them
with convenient alibis. This Court held that these
witnesses were either wives or mothers of the accused
who, in almost all instances, would freely perjure
themselves for the sake of their loved ones. The defense
of alibi may not prosper if it is established mainly by the
accused themselves and their relatives and not by
credible persons.[28]
Second. Accused-appellant likewise questions the
veracity of the victims charges against him because of
her failure to immediately report the incident to the
authorities. This, too, deserves scant consideration. It
has been ruled that the victims delay in reporting the
offense is not an indication of a fabricated charge.[29] In
this case, it has not been established that the victim, of
tender age, has any ill motive to falsely testify against
accused-appellant.[30] As the records show, the victim
had no intention at all to report the incident even to her
parents for fear that accused-appellant would hurt her
and her family and that her friends would spread the
news about her plight. In fact, by reason of such
immense fear on the part of the victim, accused-
appellant succeeded in molesting her on two other
occasions after the incident.
What accused-appellant did to complainant would
not have been discovered by the latters parents were it
not for the fact that she complained of pains in her navel
which prompted her mother to bring her to Dr. Bautista
for a medical check-up. There it was found that the
victim was no longer a virgin. Only then did the victim
confess that she was raped by accused-appellant. Had it
not been for that medical examination, the victim would
not have told them about the rape committed by
accused-appellant. This explains the delay in reporting
the crime in this case.
Nor can this Court consider the victims charges as
purely fabricated or maliciously motivated. A young girls
revelation that she has been raped, coupled with her
willingness to undergo public trial where she could be
compelled to give out details of an assault on her
dignity, cannot be easily dismissed as a mere
concoction. For it is difficult to imagine that she would
undergo the indignities and hardships concomitant to a
prosecution for rape unless she was motivated by a
desire to have the offender apprehended and
punished.[31]
Neither can any ill motive be ascribed against the
victims mother based on accused-appellants testimony
that he was being charged because he failed to bring
along the victims mother at his place of business. No
mother would sacrifice her own daughter, a child of
tender years at that, and subject her to the rigors and
humiliation of a public trial for rape if she was not driven
by an honest desire to have her daughters transgressor
punished accordingly.[32] This futile effort to extricate
himself from the charge is so lame for such omission on
the part of accused-appellant would not have impelled
the victim and her family to impute so grave a crime
against accused-appellant were it not the truth. Thus, in
one case, this Court ruled:[33]
The absence of any ill motive on the part of a rape
victim to institute charges does not render her testimony
less credible, for no woman, especially one of tender
age, will agree to undergo the trouble of having her
private parts medically examined and the humiliation of
a public trial if she had not been raped. The only clear
and evident reason for her to institute rape charges is to
get justice for her plight. Besides, a mother like Thelma
Penafiel herein would not subject her child to a public
trial, with its accompanying stigma as the victim of rape,
if the charges filed were not true.
Time and again when the issue is one of credibility
of witnesses, we have held that appellate courts will
generally not disturb the findings of the trial courts,
considering that the latter are in a better position to
decide the question as they have heard the witnesses
and observed their deportment and manner of testifying
during trial.[34] This Court has said:[35]
We have consistently adhered to the rule that where the
culpability or innocence of an accused would hinge on
the issue of credibility of witnesses and the veracity of
their testimonies, findings of the trial court are given the
highest degree of respect. These findings will not
ordinarily be disturbed by an appellate court absent any
clear showing that the trial court has overlooked,
misunderstood or misapplied some facts or
circumstances of weight or substance which could very
well affect the outcome of the case. The reason for the
rule is an excellent chance on the part of the trial court,
an opportunity that is not equally open to an appellate
court, of being able to personally observe the expression
of declarants on the witness stand and their demeanor
under questioning. And the Court agrees with the
observation of the trial court that the testimony of
Maricris was straightforward, guileless and credible. She
gave a plain and candid account of her harrowing
experience in a manner reflective of honest and
unrehearsed testimony. The rule is well settled that
when the question of credence as to which of the
conflicting versions of the prosecution and the defense
where a rape as committed is in issue, the trial courts
answer is generally viewed as correct.
Third. Accused-appellant claims that he was denied
his constitutional right to be informed of the nature and
cause of accusation against him for failure of the
information to indicate the approximate time of the
commission of the offense. This claim is not tenable. The
phrase in the information, that sometime in 1995. . . has
sufficiently apprised accused-appellant of the crime
which he allegedly committed in 1995. It bears stressing
that, in the case of rape, the date of commission is not
an essential element of the offense, what is material
being the occurrence thereof and not the time of its
commission. In the case at bar, a reading of the
information would readily reveal satisfactory compliance
with the rules and that appellant unquestionably has
been properly apprised of the charges proffered against
him. Thus, in People v. Isug Magbanua,[36] it was held:
Although the information did not state with particularity
the dates when the sexual attacks took place, we believe
that the allegations therein that the acts were
committed on (sic) the year 1991 and the days
thereafter substantially apprised appellant of the crime
he was charged with since all the essential elements of
the crime of rape were stated in the information. As
such, appellant cannot complain that he was deprived of
the right to be informed of the nature of the case filed
against him. An information can withstand the test of
judicial scrutiny as long as it distinctly states the
statutory designation of the offense and the acts or
omissions constitutive thereof.
The above ruling was reiterated in the case
of People v. Pambid,[37] where it was held that, under
Rule 110, 6 and 11 of the Rules on Criminal Procedure,
an information is sufficient as long as it states the
statutory designation of the offense and the acts or
omissions constituting the same, since in rape cases, the
time of commission of the crime is not a material
ingredient of the offense. It is thus sufficient if it is
alleged that the crime took place as near to the actual
date at which the offense(s) are committed as the
information or complaint will permit. In this connection,
this Court also ruled that in rape cases, victims of rape
hardly retain in their memories the dates, number of
times, and manner they were violated. In the same vein,
to be material, discrepancies in the testimony of the
victim should refer to significant facts which are
determinative of the guilt or innocence of the accused,
not to mere details which are irrelevant to the elements
of the crime, such as the exact time of its commission in
a case of rape.
In any event, it is now too late in the day to
question the form or substance of the information
because when he entered his plea at his arraignment,
accused-appellant did not object to the sufficiency of the
information against him. The rule is that, at any time
before entering his plea, the accused may move to
quash the information on the ground that it does not
conform substantially to the prescribed form. The failure
of accused-appellant to assert any ground for a motion
to quash before he pleads to the information, either
because he did not file a motion to quash or failed to
allege the same in said motion, shall be deemed a
waiver of the grounds for a motion to quash, except
when the grounds are that no offense was charged, the
court trying the case has no jurisdiction over the offense
charged, the offense or penalty has been extinguished,
and the accused would be twice put in jeopardy.[38]
Regarding his arrest, while accused-appellant
claimed that he protested when he was imprisoned by
the police authorities, he failed to raise objections to his
arrest at the earliest possible opportunity. The record
shows that he voluntarily entered a plea of not guilty
when he was arraigned on March 7, 1997, thereby
waiving his right to question any irregularity in his
arrest. By pleading guilty, accused-appellant submitted
to the jurisdiction of the trial court, thereby curing any
defect in his arrest, for the legality of an arrest affects
only the jurisdiction of the court over his
person. Furthermore, any such irregularity will not
negate the validity of his conviction duly proven beyond
reasonable doubt by the prosecution.[39]
Therefore, the trial court correctly ruled that
accused-appellant Agustin Gopio is guilty beyond
reasonable doubt of the crime of statutory rape.
The award of damages by the trial court in favor of
the victim should, however, be modified. The award of
actual damages, in the sum of P3,727.00, must be
deleted in the absence of proof required by Art. 2199 of
the Civil Code. To be entitled to actual and
compensatory damages, there must be competent proof
constituting evidence of the actual amount thereof, such
as receipts showing the expenses incurred on account of
the rape incident.[40] In this case, only the laboratory fee
issued by Our Lady of Salambao Hospital in Bulacan
amounting to P350.00 was duly receipted. The rest of
the documents, which the prosecution presented to
prove the actual expenses incurred by the victim, were
merely a doctors prescription and a handwritten list of
food expenses. Nevertheless, under Article 2221 of the
Civil Code, nominal damages are adjudicated in order
that the right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him. As has been
held,whenever there has been a violation of an
ascertained legal right, although no actual damages
resulted or none are shown, the award of nominal
damages is proper.[41] In this case, the victims family
clearly incurred medical expenses due to the rape
committed by accused-appellant. The victim suffered
from pains in her navel which required her physical
examination. An award of P2,000.00 as nominal
damages is thus appropriate under the circumstances.
On the other hand, based on our current rulings,
the award of P30,000.00 as moral damages should be
increased to P50,000.00irrespective of proof
thereof.[42] In addition, the victim is entitled to the
award of P50,000.00 as civil indemnity which must be
given even if there is neither allegation nor evidence
presented as basis therefor.[43]
WHEREFORE, the decision of the Regional Trial
Court, Branch 12, Bulacan, finding accused-appellant
Agustin Gopio guilty of statutory rape and sentencing
him to reclusion perpetua is AFFIRMED with the
MODIFICATION that accused-appellant is ordered to pay
the victim the amounts of P2,000.00, by way of nominal
damages, P50,000.00, as moral damages, and the
additional amount of P50,000.00, as civil indemnity, plus
the costs of the suit. SO ORDERED.
G.R. No. 90983 September 27, 1991
LAW FIRM OF RAYMUNDO A. ARMOVIT, petitioner
vs. COURT OF APPEALS, JUDGE GENARO C.
GINES, Presiding Judge of Branch XXVI, Regional
Trial Court, First Judicial Region, San Fernando,
La Union, and BENGSON COMMERCIAL
BUILDING, INC., respondents.
Before the Court is Atty. Raymundo Armovit's claim for
attorney's fees against the private respondent.
It appears that Atty. Armovit was engaged as counsel
for the private respondent in a complaint to have an
extrajudicial foreclosure of certain properties by the
Government Service Insurance System declared null and
void; that the parties allegedly agreed that the private
respondent shall pay P15,000.00 as initial compensation
and twenty percent in contingent fees; that after trial,
the defunct Court of First Instance rendered judgment
annulling foreclosure and ordering the Government
Service Insurance System to restructure the private
respondent's loan; that thereafter, the System appealed;
the on appeal, the Court of Appeals affirmed the
decision of lower court; and that the Appellate Court's
judgment has since attained finality.
It also appears that when Atty. Armovit sought
execution with the court a quo, he was informed by
Romualdo Bengson president of the respondent
corporation, that the firm has retained the services of
Atty. Pacifico Yadao. He was also informed that the
company would pay him the agreed compensation and
that Atty. Yadao's fees were covered by a separate
agreement. The private respondent, however, later
ignored his billings and over the phone, directed him
allegedly not to take part in the execution proceedings.
Forthwith, he sought the entry of an attorney's lien in
the records of the case. The lower court allegedly
refused to make the entry and on the contrary issued an
order ordering the Philippine National Bank to "release
to the custody of Mr. Romualdo F. Bengzon and/or Atty
Pacifico Yadao"1 the sum of P2,760,000.00 (ordered by
the Court of Appeals as rentals payable by the
Government Service Insurance System).
Atty. Armovit then moved, apparently for the hearing of
hi motion to recognize attorney's lien, and thereafter,
the trial court. issued an order in the tenor as follows:
When this case was called for hearing on the
petition to record attorney's charging lien, Attys.
Armovit and Aglipay appeared for the
petitioners.
Atty. Armovit informed the Court that they are
withdrawing the petition considering that they
are in the process of amicably settling their
differences with the plaintiff, which
manifestation was confirmed by Atty. Yadao as
well as the plaintiffs, Romualdo Bengson and
Brenda Bengson, who are present today.
In view of this development, the petition to
record attorney charging lien, the same being in
order and not contrary to law, moral and public
policy, as prayed for by Attys. Armovit and
Aglipay, it hereby withdrawn. The parties,
therefore are hereby directed to co ply faithfully
with their respective obligations.
SO ORDERED.2
However, upon the turnover of the money to the private
respondent, Mrs. Brenda Bengson (wife of Romualdo
Bengzon delivered to Atty. Armovit the sum of
P300,000.00 only. Armovit protested and demanded the
amount of P552,000.0 twenty percent of
P2,760,000.00), for which Mrs. Bengzon made
assurances that he will be paid the balance.
On November 4, 1988, however, Atty. Armovit received
a order emanating from the trial court in the tenor as
follows:
During the hearing on the petition to record attorney's
charge lien on October 11, 1988, Attys. Armovit and Aglipay
withdrew their petition to record attorney's charging lien,
which was duly approve petition to recordby the Court, after
which the Court directed the parties to comp faithfully with
their respective obligations.
In compliance with the Order of this Court, the plaintiff
submitted a pleading denominated as compliance alleging
that petition (Atty. Armovit) has already received from the
plaintiff the sum P300,000.00, Philippine Currency, as and by
way of attorney's fees With the receipt by the petitioner
from the plaintiff of this amount, the latter has faithfully
complied with its obligation.
WHEREFORE, the Order of this Court dated October 11,
1988 approving the withdrawal of the petition to record
attorney's charging lien, on motion of the petitioner, is now
final.
SO ORDERED.3
Reconsideration having been denied, Atty. Armovit went
the Court of Appeals on a petition for certiorari and
prohibition.
On August 25, 1989, the Court of Appeals4 rendered
judgment dismissing the petition. Reconsideration
having been likewise denied by the Appellate Court,
Atty. Armovit instituted the instant appeal.
Shortly thereafter, we required the private respondent
comment.
The private respondent did not materially traverse Atty.
Armorvit's chronicle of events but added: that the
private respondent hired the petitioner after the
Government Service Insurance System had answered
and that it was Atty. Benjam Bernardino who prepared
the complaint; that for his appearances, Atty. Armovit
was paid a total of P108,000.00, not to mention "beach
resort accommodations";5 that Atty. Armovit did not
inform the private respondent that the court had
rendered judgment which they would have appealed;
that they lost an appeal on account of Atty. Armovit's
indiscretion; that the forthwith engaged the services of
another lawyer, Atty. Yadao; and that it was the latter
who prepared the brief in the Court Appeals (on GSIS's
appeal).
The private respondent also alleged that it opposed Atty.
Armovit's effort to record his attorney's lien on grounds
of allege nullity of the retainer agreement, Atty.
Armovit's negligence and because of excessive fees
demanded.
The private respondent also insisted that the retainer
agreement was signed by only one of seven directors,
and it could no bind the corporation. Atty. Armovit, in
any event, had also been allegedly more than sufficiently
compensated.
The private respondent alleged that Atty. Armovit had
bee paid P300,000.00 — an amount approved by the
court, and an amount he accepted and for which he is
allegedly estoppel from claiming a higher amount. The
order of the court has the effect of res judicata, the
private respondent claimed, as well as a compromise
agreement which is immediately executory.
The disposition of the Court of Appeals was that since
the receipt evidencing payment to Atty. Armovit of the
sum P300,000.00 "was without any qualification as
'advance' 'partial' or 'incomplete',"6 the intention of the
parties was that was full payment. The Appellate Court
also noted Atty. Armorvit's withdrawal of his motion to
record attorney's lien and figured that Atty. Armovit was
satisfied with the payment P300,000,00.
The only issue is whether or not Atty. Armovit is entitled
to the sum of P252,000.00 more, in addition to the sum
P300,000.00 already paid him by the private
respondent.There is no question that the parties had
agreed on a compensation as follows:
a) P15,000.00 by way of acceptance and study
fee, payable within five (5) days from date;
b) 20% contingent fee computed on the value
to be recovered b favorable judgment in the
cases; and
c) the execution and signing of a final retainer
agreement complete with all necessary details.7
(While the parties' agreement speaks of "a final retain
agreement"8 to be executed later, it does not appear
that the parties did enter into a "final" agreement
thereafter.)
The private respondent's version however is that while it
may be true that the agreed compensation was twenty
percent of all recoveries, the parties later agreed on a
compromise sum approved allegedly by the trial court,
per its Order of October 11, 1988.
The Court is inclined to believe that Atty. Armovit never
agreed on the compromise sum of P300,000.00. It is
true that he did agree to withdraw his motion to
annotate attorney's lien, but because the parties were
"in the process of amicably settling their
differences"9 and not because Atty. Armovit had agreed
to accept a lower amount as full payment. There is
nothing, on top of that, Atty. Armovit's manifestation
that would suggest that he was accepting the sum of
P300,00.00 as agreed final payment, other than the fact
that an agreement was supposedly certain. We quote:
ATTY. ARMOVIT:
Your Honor, we would like to manifest in Court that we
served notice to the counsel of the plaintiff, Bengson
Commercial Building, a copy of the petition to record
attorney's charging lien, and together with the president of
the corporation, Mr. Romualdo Bengson, and his wife, Mrs.
Brenda Bengson, we have discussed the problem and we all
agreed upon is an earnest one at this time, this
representation is withdrawing his petition to record charging
lien.
ATTY. YADAO:
No objection, Your Honor, because we have to agree with
Atty. Armovit. I am in full accord with this.10
There is nothing there that would indicate Atty.
Armovit's willingness to accept, in fact, a lower figure in
consideration of his withdrawal of his request to enter
attorney's lien. What the Court takes his statement to
mean is that he was withdrawing his request on the
certainty that the private respondent would pay him the
money, presumably, under more becoming
circumstances.
The Court does not therefore see how the private
respondent can hold Atty. Armovit to have been in
estoppel.
The fact that Atty. Armovit did not, after all, accept the
sum of P300,000.00 as final compensation is indeed
indicated by the behavior of the private respondent,
through Mrs. Romualdo Bengson, when she assured
Atty. Armovit that the balance was
forthcoming.11 According to Mrs. Bengson, she wished
the rest of the Bengsons to witness the final payment
and when the occasion was present, wished for a
postponement on account of "All Saints Day."12
The parties never therefore amended their original
agreement, and what appears to the Court is a clear
effort on the part of a client, with the apparent approval
of the trial court, to renege on a valid agreement with its
lawyer.
The Court believes that the trial court, in accepting the
private respondent's "compliance" as a final payment of
Atty. Armovit's fees, was guilty of a grave abuse of
discretion. The private respondent had nothing with
which to comply, and the parties, as manifested by Atty.
Armovit, were "in the process [merely] of amicably
settling their differences."13
It is apparent furthermore that the trial judge himself
was out to deny Atty. Armovit the agreed compensation.
In his order of October 4, 1988, he commanded:
The PNB is hereby ordered and directed to
release to the custody of Mr. Romualdo F.
Bengson and /or Atty. Pacifico Yadao, counsel
for the plaintiff, the sum of Two Million Seven
Hundred Sixty Thousand Pesos (P2,760,000.00),
Philippine Currency for the satisfaction of the
rentals of the Bengson Building against the
GSIS.14
in spite of the fact that Atty. Armovit had remained the
private respondent's counsel of record. It is fundamental
that unless a lawyer has been validly discharged, his
authority to act for his client continues and should be
recognized by the court.15
The fact that the receipt evidencing payment by the
private respondent of the amount of P300,000.00 "was
without any qualification as 'advance' or 'partial' or
'incomplete',"16 as the Court of Appeals noted and the
Court of Appeals took to mean "full payment", will not
weaken Atty. Armovit's demand for the balance. There is
nothing in the receipt that will suggest that will suggest
that it was full payment either, and the fact that Atty.
Armovit accepted it does not mean that he was satisfied
that it was final payment. The fact of the matter is that
the private respondent had assured him that the balance
was forthcoming.
The private respondent can not justifiably downplay
Atty. Armovit as negligent (for failing to appeal) or his
demand for fees excessive (that he had been paid
enough). Atty. Armovit, after all, succeeded in obtaining
a favorable decision for his client, an although his prayer
for various damages were denied, he secceeded in
obtaining a substantial award (P1,900,00.00 in unpaid
rentals) for his client. On appeal, the Court of Appeals
sustained his theory. It should be noted that the private
respondent had in fact stood to lose substantial
properties on foreclosure — Atty. Armovit not only
restored to the private respondent its foreclosured
properties, he succeeded in having the private
respondent's loans restructed and the Government
Service Insurance System pay rentals. No client can ask
a better result from a lawyer.
Obviously, the private respondent's effort to downgrade
Atty. Armovit's performance is a wild, if not cheap, shot
of a client out to evade its obligations to its lawyer. The
fact that Atty. Armovit may have been paid substantially
(in initial fees) while the case was dragging is no
justification for denying him the full amount under their
agreement. It has been held that initial fees and fees
paid in the progress of litigation are independent of the
contingent fees.17
That the retainer agreement was never approved by the
board of the corporation is also a poor excuse because
the fact of the matter is that the private respondent did
deliver to Atty. Armovit the sum of P300,000.00 in
partial payment, and the private respondent can not
now deny him the balance bay alleging lack of authority
of the Bengson spouses.
Contingent fees are valid in this jurisdiction. 18 It is true
that attorney's fees must at all times be
reasonable;19however, we do not find Atty. Armovit's
claim for "twenty percent of all recoveries" to be
unreasonable. In the case of Aro v. Nañawa,20 decided
in 1969, this Court awarded the agreed fees amid the
efforts of the client to deny him fees by terminating his
services. In parallel vein, we are upholding Atty.
Armovit's claim for P252,000.00 more — pursuant to the
contingent fee agreement — amid the private
respondent's own endeavours to evade its obligations.
Several times, we have come down hard on erring
practitioners. We will not however be slow either, in
coming to the rescue of aggrieved brother-lawyers in
protecting the integrity of the bar from unscrupulous
litigants.
WHEREFORE, premises considered, the petition is
GRANTED. The private respondent is ORDERED to pay
the petitioner the sum of P252,000.00. Costs against the
private respondent. IT IS SO ORDERED.
4. TEMPERATE
 ART 2224, 2225 NCC
G.R. No. L-56505 May 9, 1988
MAXIMO PLENO, petitioner, vs. THE HONORABLE
COURT OF APPEALS, PHILIPPINE PAPER
PRODUCTS, INC., and FLORANTE DE
LUNA respondents.
This is a petition for review on certiorari of the decision
of the Court of Appeals in CA-G.R. No. 64497 which
modified the decision of the Court of First Instance of
Rizal in a vehicular accident case and reduced by one-
half the award for temperate damages, moral damages,
and attorney's fees from a total of P430,000.00 to
P215,000.00. The awards for actual damages in the
amount of P48,244.08 and exemplary damages in the
amount of P50,000.00 were affirmed.
The facts of the case are summarized as follows:
On April 11, 1972, plaintiff commenced an
action for damages in the Court of First Instance
of Rizal (Pasig) against defendants Philippine
Paper Products, Inc., and Florante de Luna.
The material allegations of the complaint are to
the following effect. That the Philippine Paper
Products, Inc., is the owner of a delivery truck
(Ford Stake) with Plate No. 30-51 Y/Y T-Rizal
'71, having in its regular employ in conducting
business several motor vehicle drivers, one of
them being Florante de Luna who, on December
21, 1971, at about 12:45 P.M., was in charge of
and driving said delivery truck (Ford Stake) on
the right lane of the South Super Highway in
Taguig, Rizal, in a careless, reckless and
imprudent manner, by driving the vehicle at a
speed greater than what is reasonable and
proper at the time without taking necessary
precaution to avoid accident to persons and
damage to property, that as a consequence of
the said driver's reckless and imprudent driving,
said vehicle of the defendant Philippine Paper
Products, Inc., hit, bumped and sideswiped
plaintiffs Volkswagen Delivery Van, with Plate
No. 52-50 Y/Y, Manila '71, driven by said
plaintiff causing the Volkswagen Delivery Van to
swerve to the right that it rammed into the rear
part of a truck with Plate No. 8157W T-Manila
'71 parked at the shoulder of the road; that as a
result of the vehicular accident, plaintiff suffered
various serious injuries, was hospitalized, and
because he suffered injuries affecting his brain,
he acted beyond normalcy at times, that as a
consequence he suffered actual and
compensatory damages of approximately
P100,000.00; moral damages of P500,000.00 for
suffering from bodily pain, mental anguish,
serious anxiety for Florante de Luna's wanton
and brazen disregard of traffic laws and
regulations aggravated by his running away
from the scene of the accident, without
rendering aid to the victim, plaintiff should be
adjudged as exemplary or corrective damages of
P 300,000.00 as an example to all, owners,
operators and drivers of motor vehicles and in
the interest of public safety and welfare, as well
as the sum of P100,000.00 for the payment of
attorney's fees. Plaintiff prays that defendants
be jointly and severally ordered to pay him
P100,000.00 for actual and compensatory
damages; for moral damages P500,000.00;
P300,000.00 as exemplary damages; for
attorney's fees P100,000.00, interest at the rate
of 6% on the actual and moral damage ages
and loss of earnings computed from the filing of
the complaint until the P100,000.00 and the
P500,000.00 are fully paid and the costs of suit.
On May 19, 1972, defendant Philippine Paper
Products., Inc., filed its answer with
counterclaim. While it admits the allegation of
paragraph 1 of the complaint pertaining to it,
the Id defendant denies the substantial
allegations of the complaint and alleges as
defenses that it exercises and continues to
exercise the requisite diligence in the
employment and supervision of its employees
and laborers as well as in keeping in constant
repair and in good condition all its vehicles; and
that plaintiff is the one grossly negligent,
careless and imprudent in driving and operating
his vehicle who has neither the license nor the
permit to drive the said vehicle. It prays that
plaintiffs complaint be dismissed with cost
against him; and on the counterclaim, that
plaintiff be ordered to pay to the herein
defendant actual damages and other expenses
of litigation as shall be proved in the course of
the proceedings as well as exemplary damages
sufficient for the purposes sought to be attained
The facts, as related by the trial court and as borne out
thereby apart from reasonable attorney's fees.
by the records, are as follows:
On May 24, 1972, plaintiff filed his Answer to
Counterclaim denying the allegations of the
counterclaim of defendant.
On May 25, 1972, defendant Florante de Luna
filed his answer with counterclaim. While he
admits the allegations of paragraphs 1, 2 and 3
of the complaint, he denies the substantial
allegations of the same and, as affirmative
and/or special defenses, avers that plaintiff
without proper license to drive a Volkswagen
Kombi delivery van drove said vehicle along a
portion of the east service road of the South
Super Highway in Taguig, Rizal in a reckless and
imprudent manner by operating and driving said
kombi delivery van at a speed very much more
than reasonable without taking the precautions
to prevent injury to persons and damage to
property and without considering the traffic
condition at the place and time that as a
consequence the delivery van titled to its left
side of the road following its travel direction that
somewhere in the front part of the vehicle being
driven by him made a slight contact with the
rear left side of the vehicle driven by plaintiff
and despite the same, plaintiff did not bother to
put to a stop his vehicle instead and continued
to drive that his vehicle smashed against
another vehicle driven by a certain Ruben Rivera
and that in view of the circumstance plaintiff is
not entitled from defendant even if only
attorney's fees. As counterclaim, he avers that
as a result of the filing of the unwarranted
complaint he suffered mental anguish, serious
anxiety besides forcing himself to retain the
services of counsel. He prays for the dismiss of
the complaint in addition for payment for moral
damages and attorney's fees and costs of suit.
On June 1, 1972, plaintiff filed his answer to
defendant Florante de Luna's counterclaim by
denying the substantial allegations of said
counterclaim with the averment that the
complaint was initiated and filed for a just
cause.
After due trial, on August 30, 1977, the Court a
quo rendered its decision sentencing jointly and
severally defendants to pay plaintiff (1) P
48,244.08 actual damages: (2) temperate or
moderate damage of P200,000.00; (3) moral
damages of P200,000.00; (4) exemplary
damages of P50,000.00; (5) attorney's fees of
P30,000.00; and (6) costs of suit.
As brought out in the trial, the incident which is
the basis of this complaint involves a three
vehicle collision which happened about past
noon of December 21,1971 at the South Super
Highway in the portion of Taguig, Rizal. At about
12:45 in the afternoon of said date, a snub-
nosed volkswagen kombi with plate No. 52-50,
Manila '71, was cruising towards Manila along
the asphalt pavement of the service road of the
South Super Highway. The kombi had two
passengers, Maximo Pleno who was at the
wheel, and, a New Zealander, James Arthur
Longley, who was sitting beside Mr. Pleno on
the front seat. The volkswagen was suddenly
and without warning hit on its left rear corner by
a red colored cargo truck. Due to the impact,
the volkswagen moved faster veering to the
right and smashing unto the right rear portion of
a truck with plate No. 81-87, T-Manila '71,
parked along the shoulder of the road in front of
the National Manpower Building. The parked
truck was also moved forward when it was hit
on its back by the Volkswagen and the driver of
the parked truck, Ruben Rivera who was at that
time standing in front of his parked truck
urinating was bumped by his own truck. Witness
to all these was Diego Orca, a gardener, who at
such time, was watering his plants in front of
the National Manpower Building.
Having been hit from behind by the red colored
cargo truck and having smashed into the rear
portion of the parked truck, the right front
portion of the volkswagen on the driver's side
was reduced to a pulp. At impact, the front door
on the right side burst open and Langley, who
was seated on that side, was thrown out of the
vehicle and landed on a ditch. Pleno, the driver
of the volkswagen was crushed in the driver's
seat since the kombi's front portion offered no
protection, being the snub-nosed type, with the
motor at the back. His legs were trapped in the
wreckage. The red cargo truck stopped for a
while and then spead away. Ruben Rivera, the
driver of the parked truck, was brought by a
passing jeepney to the hospital. Langley who
was thrown out of the volkswagen but was not
seriously hurt, with the help of a few persons
nearby, extricated Pleno from the volkswagen
after pushing the truck away and thereafter took
him to the Makati Medical Center. Pleno suffered
extensive injuries on his head and legs and
affected his eyesight and stayed in the hospital
for almost five (5) months.
The hit and run incident was reported to the
Taguig Police Department several hours later or
about 3:15 in the afternoon of the same day by
Manuel Pleno, son of plaintiff Maximo Pleno. An
investigator was sent by the Taguig Police
Department at the scene of the incident where
an initial report was submitted containing a
description of the suspect vehicle as a delivery
truck colored red all over with yellow, canvass at
the top. A team to investigate this hit and run
incident was formed thereafter by Patrolman
Maximo de Guzman of the Taguig Police
Department.
Days later or on January 8, 1972, a certain Atty.
Tagumpay Eusebio, who is connected with the
Philippine Paper Products, Inc., went to Pat. de
Guzman's precinct at Taguig, Rizal inquiring why
one of the Taguig's Police Traffic Officers at the
service road of the South Super Highway
stopped and investigated Florante de Luna,
driver of the said company. Pat. de Guzman told
Atty. Eusebio that De Luna was stopped and
investigated because the delivery truck he was
driving matched the description of the delivery
truck in a hit and run incident which occured at
about 12:45 p.m. of December 21, 1971. Atty.
Eusebio promised to bring De Luna to the police
precinct. After receiving such information, Pat.
de Guzman and his team proceeded to the
compound of the Philippine Paper Products, Inc.,
at Sun Valley Subdivision, South Super Highway,
Paranaque, Rizal on the same day, January 8,
1972. Pat. de Guzman and his team made
further visits at said compound and during these
visits, they discovered that the suspect vehicle
exmbited plate No. 3- 51 Taguig, Rizal, T-Manila
'71 and was painted red all over. The team also
discovered a'dented'or'depressed'portion of the
right front portion of the vehicle. The distance
from the ground to the 'denied' or 'depressed'
portion of the truck was three feet and 3 inches,
the same distance from the ground to the
depressed portion of the volkswagen on its left
rear portion. The paint was scratched off and
there were blue colored stains. The volkswagen
was blue colored. On one of the visits by Pat. de
Guzman, he brought with him Dr. Diego Orca,
the gardener who, at the time of the incident on
December 21, 1971, was tending to his plants in
front of the National Manpower Corporation and
who witnessed the 3 vehicle collision, Orca
positively Identified the vehicle of the defendant
corporation as the one involved in the incident.
Also brought along the team in one of their
visits was a photographer, Bernardo Beduya
who took photographs of the suspect vehicle
(Exhibits "D-l" to "D- 2").<äre||anº•1àw> Pat.
de Guzman was also able to look into the
logbook of the Philippine Paper Products, Inc.,
which showed that the suspect vehicle with
Florante de Luna driving it, left the compound of
the company on December 21, 1971 at 12:00
p.m. or barely 25 minutes before the incident. A
photograph of the log book with a finger
pointing at the above entry was taken by
photographer Beduya (Exh. "F-a").
On January 12, 1972, while Patrolman de
Guzman and his team were in the compound of
the Philippine Paper Products, Inc., they met
Atty. Eusebio with two companions who later
turned out to be Florante de Luna and an
insurance adjuster. Atty. Eusebio invited Pat. de
Guzman in Ms office and asked him about the
progress of the investigation to which de
Guzman informed him that 99% of the evidence
in their hands pointed to the delivery truck of
the defendant company as the vehicle involved
in the accident. Atty. Eusebio then took Pat. de
Guzman aside and revealed to him that it was
only sometime that their driver, Florante de
Luna, admitted to him the involvement of the
company truck in the incident and that was the
reason why a representative or adjuster of the
insurance company was with them so that they
can settle the case. Thereafter, Pat. de Guzman,
together with Atty. Eusebio, Florante de Luna
and the adjuster, went to De Guzman's precinct
where De Luna executed a written statement
(Exhibits "G" and "G-l"). De Luna's statement,
although admitting that the delivery truck of the
company was involved in the incident, however,
claimed that the fault lay in Mr. Pleno because
while a truck was moving on its way to the main
road, Pleno who was driving the volkswagen
applied his brakes and his left rear portion
veered towards the right and came in contact
with the delivery truck being driven by De Luna.
Thereafter, the volkswagen accelerated and
went out of control veering further towards the
right and hitting the truck which was then
moving towards the direction of the highway. In
other words, De Guzman claimed that the
braked track was no longer parked at the time
of the collision but that it was already moving,
and the fault in the collision was on the part of
Mr. Maximo Pleno. Before the written statement
of Pleno was sub-scribed before the mayor of
Taguig, Rizal, an incident transpired as testified
by Pat. De Guzman:
WITNESS (Pat. de Guzman)
A. Before you went to the Municipal Building of
Taguig, Rizal, for the subscription of the statement
of Mr. de Luna, while I was along inside your
investigation room, Atty. Eusebio with a certain
adjuster of the insurance company approached me
and offered me something.
ATTY. OBEN:
Q. What is that something?
A. He told me in vernacular, to wit ;
Tsip, iyon pala naman ay hindi pa nalalaman ng
pamilya ng victim ang pagkakadeskobre ninyo nito
tungkol sa involvement ni De Luna sa kasong ito.
Kung maari ay pag-usapan na lang natin ito.' And
I answered: Ano ang ibig mong sabihin ng
pagusapan?
Q. What did Atty. Eusebio tell you?
A. He told me that if you will not divulge this
incident to the family of the victim, we will just
give you the amount, all the expenses that may be
incurred by the Philippine Paper Products, Inc., in
this case.
Q. If Atty. Eusebio is in the courtroom, can you
point to him up in the courtroom?
A. He is in the middle. (witness pointing to Atty.
Eusebio who is seated in the courtroom). (TSN.,
Nov. 21, 1972, pp. 5-9).
As regards the injuries suffered by Maximo Pleno,
it may be seen from the exhibits shown
particularly the photographs of the volkswagen
that it is the driver's side which was severely
damaged considering that the vehicle is the snub-
nosed type with its motor at the back. Due to the
impact, Pleno's head was dashed and he lost
consciousness with his legs trapped in the
wreckage. It took several persons to extricate him
therefrom. And they have to push the parked
truck away before they could do so. Pleno was
brought to the Makati Medical Center in the
afternoon of December 21, 1971 and he left the
hospital almost five (5) months later or on May 9,
1972. The orthopedic surgeon who treated Pleno
at the emergency room of the Makati Medical
Hospital testified that Pleno sustained multiple
fractures of both thigh bones and the left shin
bone or tibia He sustained multiple lacerations in
his forehead and left thigh. There was evidence of
head injury, according to the surgeon. Pleno was
incoherent in pain and disabled, Pleno had to
undergo about five surgical operations of his
thighs one of which involving the insertion of
these many operations, he still finds it difficult to
stand up even with the aid of crutches or a cane.
He walks with a limp and his left is shorter than
the right.
As regards his eyesight, Pleno complained that his
left eye suffers from double vision so that
whenever he looks to the left, he sees two objects
of the same thing The injuries above mentioned
affected his social and business life for he could
not longer attend social gatherings nor could he
concentrate on his business ventures.'(at pp. 30-
39, Panted Amended Joint Record on Appeal). (pp.
39-47)
Upon appeal, the Court of Appeals affirmed the factual
findings of the lower court, to wit:
We find the findings of the lower court after
hearing the parties to be more in consonance to
the truth and what actually occurred. We fully
agree that the Kombi delivery panel was hit by
the cargo truck driven by the driver at the left
rear corner when the cargo truck of the driver
was overtaking it. Naturally, when one overtakes
another vehicle the overtaking vehicle must run
faster than the vehicle to be overtaken. The
impact caused the Kombi delivery panel upon
being hit to swerve to the light at the same time
due to the force and suddenness of impact
Pleno lost control of his vehicle, as it happened
in this case it accelerated towards the parked
cargo truck with chairs.
A table re-enactment of the incident convinces
us that the claim of the driver that he saw a
cargo truck moving out from the curve into the
road a moment before the collision is false. It is
a fact that the driver appellant was about to
overtake the Kombi delivery panel momentt
before the accident. Therefore, he must have
been only about 2 to 5 meters to the left behind
the Kombi delivery panel. At this position and
distance, it is impossible for the driver to see the
cargo truck with chairs he claimed to be moving
out of the curve as his vision or view to the right
is covered by the Kombi delivery panel which he
was about to overtake.
We likewise refuse to behave the driver's claim
that the Kombi delivery panel swerved to the left
towards his (driver's) lane to avoid the cargo
truck with chairs then moving out of the
shoulder of the road. Ruben Rivera, driver of the
cargo truck with chairs, testified that his truck
was parked and was not about to move out of
the showder. Rivera testified that he was
standing in front of his truck. Witness Diego
Orca corroborated Ruben Rivera.
Efforts of appellants to discredit Rivera
notwithstanding, we are convinced that the
driver hitting the left rear corner of the Kombi
delivery panel in the manner to overtake it was
the proximate cause of the accident.
It is also unbelievable that the driver did not feel
or notice any contact between his cargo truck
and the Kombi delivery panel. After all, it has
 been established and admitted after police
investigation that the protruding front right edge
of the loading platform of the cargo truck,
establishrd by the telltale marks and
measurement, hit the left rear corner of the
Kombi delivery panel.
Considering the accelerated speed of the cargo
truck of the driver in attempting to overtake the
Kombi delivery panel, in all probability upon
contact there would have emitted an impact
sound similar to a sound of a hard object hit by
another hard object. This kind of sound one
cannot miss to feel or notice. We are not,
therefore, persuaded by the pretense of the
driver.
We are in full accord with the Court a quo when it said:
Having been hit from behind by the red colored
cargo truck and having smashed unto the rear
portion of the parked car the right front portion
of the volkswagen on the driver's truck side was
reduced to a pulp. At impact, the front door on
the right side burst open and Langley, who was
seated on that side, was thrown out of the
vehicle and landed on a ditch. Pleno, the driver
of the volkswagen was crushed in the driver's
seat since the Kombi's front portion offered no
protection being the snub-nosed type, with the
motor at the back. His legs were trapped in the
wreckage. The red cargo truck stopped for a
while and then sped away. Ruben Rivera, the
driver of the parked truck, was brought by a
passing jeepney to the hospital. Langley who
was thrown out of the volkswagen but was not
seriously hurt, with the help of a few persons
nearby, extricated Pleno from the volkswagen
after pushing the truck away and thereafter took
him to the Makati Medical Center. Pleno suffered
extensive injuries on his head and legs and
affected his eyesight and stayed in the hospital
for almost five (5) months. (at pp. 31-32,
Printed Record on Appeal).
The immediately preceding discussion disposes
of the second, third, fourth, and fifth errors
assigned by appellant driver.
From the reconstruction of the incident, we find
the driver the one negligent and not the
plaintiff-appellee as assailed by the appellants.
Neither do we find any contributory negligence
attributable to plaintiff-appellee. The proximate
cause as hereintofore discussed above was the
recklessness of the driver De Luna in
miscalculate his distance to and from the Kombi
delivery panel on overtaking. So much so that
the front right edge of his loading platform hit
the left rear corner of the Kombi delivery panel
Causing the Kombi delivery panel to swerve to
the right forcing it to run smack into the parked
cargo truck with chairs. Having been found
negligent, which negligence resulted to serious
injuries, the lower court did not err in
sentencing defendant driver De Luna to pay
actual, moral, temperate and exemplary
damages, likewise to pay attorney's fees.
To justify these awards, we consider the
established fact that it is beyond dispute,
despite driver's protestation that he did not hit
the Kombi delivery panel at the left rear corner;
that he did not attempt to evade responsibility;
even knowingly realizing that he caused the
accident, he merely stopped a while (which we
doubt if he did); and, upon seeing the
extensiveness of the resulting damage and the
seriousness of the injury, left the scene of the
accident and kept quiet all about it until
discovered thru police investigation — thus
making it a hit and run case, pure and simple.
Appellant chiver De Luna's seventh, eight and
ninth errors will be treated together with the
errors assigned by appellant corporation.
Appellant Corporation asserts that it exercised
due diligence in the selection and supervision of
its employees. Therefore, it claimed it was error
for the trial court not to so hold and further
claimed that it erred in holding the Corporation
able to plaintiff appellee.
Contending that at the time of the accident its
employee driver De Luna, a duly licensed
professional driver, had been driving for five
years before his employment with the
Corporation in 1970; that he was given
examination in driving and found fit; that he was
assigned to drive small vehicles before being
assigned to drive cargo trucks for two months
and after being tested for his driving ability,
appellant Corporation professes that it had
exercised the due diligence of a good father of a
family in the selection and supervision of its
employee driver De Luna. One of the overriding
circumstances considered by the court a quo in
disregarding the defense of exercise of due
diligence interposed by appellant Corporation is
the record of defendant driver De Luna that he
was once accused of serious physical injuries
thru reckless imprudence. Appellant Corporation
argued that in that case driver De Luna was
acquitted. True. But the records did not show
that his acquittal was in a trial on the merits.
The case may have been dismissed and he was
acquitted for failure of the prosecution to
prosecute thru desistance of the aggrieved
party. his innocence was not therefore proven.
It is not enough that defendant Corporation hold
high and waves driver's acquittal of that charge
but Corporation should have presented evidence
that in the trial on the merits his employed
defendant driver was declared innocent. A
diligent and thorough inquiry of the background
of driver De Luna was not undertaken.
Otherwise, defendant-appellant Corporation
should not have hired De Luna had it exercised
the due diligence it is required by law in hiring
the driver, the accident would not have occurred
in the manner it happened and would have been
avoided.
The lower court, as we are, was not satisfied
with the testimonies of Manuel Zurbano and
Benjamin Francisco, both employees of
appellant Corporation. Their testimonies, aside
from dealing merely on generalities and mere
observations on defendant driver De Luna's
driving were not thorough. It war, not enough.
They should have declared on the different
company procedures in hiring its employees,
particularly its drivers. There are steps, manual
of procedures to be followed strictly by
employers before hiring its employees. In the
case at bar, evidence has it that there was
unexcusable laxity in the supervision of its driver
by the Corporation. Proof of this is that the
accident happened on December 21, 1972 and
not until January 8, 1972 when the defendant-
appellant Corporation, thru Atty. Tagumpay
Eusebio, came to know that one of its vehicles
was involved in an accident. Indeed, if there
was close supervision exercised by the
defendant-appellant Corporation on its
employees and proper care of its equipments, it
would have known of the involvement of its
driver De Luna in the accident in question. As it
was lax in its supervision, it did not know until
confronted that its cargo truck met an accident
and caused the damage and injury in question.
It is very difficult for us to believe the claim of
the appellant that it did not report the accident
because no one in its company knew about the
accident. That even De Luna himself did not
realize that the truck he was driving came in
contact with the plaintiffs Kombi delivery panel.
We have discarded driver De Luna's pretense
that he did not realize that his truck came in
contact with the Kombi delivery panel of
plaintiff. His pretense is contrary to human and
factual experience. A carefull driver can even
detect a small pebble hitting his vehicle. Even a
slight nudge becomes discernible. How much
more with the contact and impact which have
been established beyond doubt and ultimately
admitted by driver De Luna that his truck, after
all, hit the Kombi at its rear left corner which
sent the Kombi delivery panel careening to the
right smack against the parked cargo truck with
chairs. Not only did the defendant-appellant
corporation not report the accident to the
authorities, but we are convinced by the
conclusion arrived at by the trial court that
defendant-appellant Corporation thru its
representative and counsel, Atty. Eusebio,
attempted to cover up the involvement of its
driver and truck in the accident from the victim's
family (Testimony of Pat. de Guzman). (pp. 49-
54, Rollo)
The court, however, modified the award on damages
such that temperate damages were reduced from
P200,000.00 to P100,000.00; moral damages were
reduced from P200,000.00 to Pl00,000.00; and
attorney's fees were reduced from P30,000.00 to
P15,000.00. It further ruled that the employer's ability is
subsidiary.
All the parties assailed the decision by filing two
separate petitions before us. Philippine Paper Products,
Inc., sought the reversal of the factual findings of the
appellate court as regards their lialibility The case was
docketed as G.R. No. 56511. On the other hand, Maximo
Pleno filed G.R. No. 56505 questioning the reduction of
the damages awarded to him and the court's ruling that
the ability of Philippine Paper Products, Inc., as
employer is only subsidiary.
On May 20, 1981, we issued a resolution in both
petitions. G.R. No. 56511 was denied, "the questions
raised being factual and for insufficient showing that
findings of facts by respondent court are unsupported by
substantial evidence." G.R. No. 56505, was given due
course and it is the petition which we now resolve. In
this same resolution, we declared "that with respect to
the affirmed judgment of the Court of Appeals ordering
respondents to pay jointly and severally the petitioner
P48,244.08, actual damages, P100,000.00 temperate or
moderate damages, P100,000.00 moral damages,
P50,000.00 exemplary damages, and P15,000.00
attorney's fees, and the costs of suit, (with reduction of
a total of P215,000.00) wherein the petition for review in
G.R. No. 56511 has been herein DENIED, execution may
issue immediately by the court a quo upon receipt of this
resolution." (p. 79, Rollo)
The resolution became final and executory on
September 7, 1981 and an entry of judgment was made.
The issues raised in this petition are two-fold. They are:
(1) whether or not the employer's liability in quasi-delict
is subsidiary, and (2) whether or not the appellant court
was correct in reducing the amount of damages
awarded to the petitioner.
We sustain the view of the petitioner that the ability of
an employer in quasi-delict is primary and solidary and
not subsidiary. This, we have ruled in a long line of
cases. (See Bachrach Motor Co. v. Gamboa, L-110296,
May 21, 1957; Malipol v. Tan, 55 SCRA 202; Barredo v.
Garcia and Almario, 73 Phil. 607; Vinluan v. Court of
Appeals, et al., 16 SCRA 742; Anuran, et al. v. Buno, et
al., 17 SCRA 224; Poblete v. Fabros, 93 SCRA 20;
Lanuzo v. Ping, 100 SCRA 205; Prudenciado v. Alliance
Transport System, Inc., 148 SCRA 440)
The Court of Appeals affirmed the awards of damages
based on its findings, as follows:
Both appellants assailed the awards of damages.
Appellant Corporation claims that damages were
not alleged in the complaint nor competent
evidence adduced to prove the damages
Dr. Ramon Borromeo, the orthopedic surgeon who
treated Mr. Pleno and saw him at the emergency room
of the Makati Medical Center on the day of the accident,
testified that Mr. Pleno sustained multiple fractures
involving both thigh bones and the left shin bone or tibia
multiple laceration involving wound in his forehead and
left thigh; and, evidence of head injury (t.s.n. Borromeo,
February 22, 1974, p. 10 and 11). Mr. Pleno was
incoherent when he first saw him (ibid, p. 11). He was in
pain (ibid); limited in leg motion because of the
fractures and disabled (ibid, pp. 11-12). On that same
day, Mr. Pleno's wound in the thighs were cleaned
followed by skeletal traction to both legs by which a wire
is inserted to the bone to obtain more or less
sittisfactory ent a temporary procedure, Dr. Borromeo
explained, to relieved swelling and spasm of the muscles
(ibid, pp. 13 and 14). Two weeks thereafter, Dr.
Borromeo conducted another operation, this time what
he described to be an open surgery on the left thigh
bone, the purpose of which was to obtain an accurate
alignment of the fractures (ibid, p. 15). Dr. Borromeo
performed still another operation three weeks
thereafter, this time on the right thigh bone (ibid, p. 16).
This was not to be the last of the operations Mr. Pleno
underwent. A year later, Mr. Pleno developed foreign
body reaction, which according to Dr. Borromeo,
necessitated another surgery, this time the action of the
metallic appliance (Exh. I) on both thighs (ibid, P. 16).
Then, again, several months later he developed rejection
of the metallic appliance with secondary infection of the
bones which required another operation (ibid, p.
17).<äre||anº•1àw> The metallic appliance, the
surgeon explained, is inserted throughout the whole
canal of the thigh bone to obtain adequate alignment
and in the case of Mr. Pleno, the appliance was inserted
on both thigh bones (ibid, p. 18). Mr. Pleno had to use
crutches because the fracture was not just an ordinary
awarded. This is a sweeping statement. We find
on record sufficient evidence supporting the
adjudication of damages in favor of the plaintiff-
appellee. Maximo Pleno is a mechanical
engineer, a topnotcher, and at the time of the
accident was a director, vice-president and
general manager of Mayon Ceramics
Corporation. He was confined from the date of
the accident up to May, 1972. He could not work
immediately. He sustained serious wounds on
his forehead and legs. In short, he became an
invalid. According to Dr. Ramon Borromeo,
plaintiff-appellee Maximo Pleno sustained
multiple fractures involving both thigh bones
and the left shin bone or tibia and there is
evidence of head imjury. Dr. Borromeo
conducted a series of operations. In order to be
more detailed, we quote from the brief of the
appellee the condition of the plaintiff-appellee
Mr. Pleno, borne by the records and remained
unrefuted as follows:
fracture; it was what the doctor called 'comminute
fractures,' meaning the bone was broken up into several
fragments, multiple fragments which naturally would
prolong the healing period (ibid, p. 19). After Identifying
the various x-ray Films presented (Exhibits M, M-1, M-2
and M-4), Dr. Borromeo testified that definitely there is
shortening of oneleg of Mr. Pleno, the left leg, despite
the surgery (ibid, pp. 23 and 24).
Mr. Pleno had complained of defective eyesight
(t.s.n., Pleno, July 13,1973, pp. 28 and 29). On the
witness stand, an eye specialist, Dr. Reynaldo Bordador
testified that Mr. Pleno was suffering from horizontal
deplopia or double vision of the left eye which can be
caused by injury resulting from a blunt instrument
hitting the forehead or any part of the head (t.s.n.
Bordador, April looks to the left, he would be seeing two
objects (ibid, p. 8). Prolonged reading Will result in
headache (ibid). Dr. Bordador described Mr. Pleno's eye
condition as one which resulted from paralysis of one of
the occular musde (ibid, p. 9). While surgery could be
performed, the outcome is not guaranteed there will
also be double vision no matter how good the surgery is,
the doctor concluded (ibid, p. 9). (at pp. 14-17)
There is clear and convinced evidence
establishing actual and compensatory damages.
The gravity of the injuries Mr. Pleno received
and the result pain and mental suffer is very much
evident from the medical diaganosis and prognosis
initated above. pp. 54-57, Rollo)
Nevertheless, as stated earlier, the appellate court
reduced the amount of temperate and moral damages
as well as the amount of attorney's fees on the ground
that the awards were "too high" .The award of
temperate damages was reduced by the appellate court
on the ground that the amount of P200,000.00 is rather
"too high" especially considering the fact that the driver
De Luna is a mere driver and defendant-appellant
Corporation is only subsidiarily liable thereof. The award
was reduced to P100,000.00.
The petitioner now assails the reduction of the damages
as without justification. It specifically mentions the
findings of the trial court which were affirmed by the
appellate court regarding the gravity of the injuries
suffered by the petitioner, the effect of the injuries upon
The court's discretion is, of course, subject to the
condition that the award for damages is not excessive
under the attendant facts and circumstance of the case.
Temperate damages are included within the context of
compensatory damages (Radio Communications of the
Philippines, Inc. (RCPI) v. Court of Appeals, supra.). In
arriving at a reasonable level of temperate damages to
be awarded, trial courts are guided by our ruling that:
... There are cases where from the nature of the
case, defenite proof of pecuniary loss cannot be
offered, although the court is convinced that
there has been such loss. For instance, injury to
one's commercial credit or to the goodwill of a
business firm is often hard to show certainty in
terms of money. Should damages be denied for
that reason? The judge should be empowered to
calculate moderate damages in such cases,
rather than that the plaintiff should suffer,
without redress from the defendant's wrongful
act. (Araneta v. Bank of America, 40 SCRA
144,145)
In the case of moral damages, the yardstick shaould be
that the "amount awarded should not be palpably and
scandalously excessive" so as to indicate that it was the
result of passion, prejudice or corruption on the part of
the trial court (Gerada v. Warner Barnes & Co., Inc., 57
O.G. (4) 7347, 7358; Sadie v. Bachrach Motor Co., Inc.,
57 O.G. (4) 636; Adone v. Bachrach Motor Co., Inc., 656
cited in Prudenciado v. Alliance Transport System,
Inc., supra.).<äre||anº•1àw>Moreover, the actual
losses sustained by the aggrieved parties and the gravity
of the injuries must be considered in arriving at
reasonable levels (Siquenza v. Court of
Appeals, supra, cited in Prudenciado v. Alliance
Transport System, Inc., supra.).
The trial court based the amounts of damages awarded
to the petitioner on the following circumstances:
Coming now to the damages suffered by plaintiff
Maximo Pleno, it is not controverted that Pleno
was hospitalized for about five months
him as a person, and his business as well as his standing
in society. And yet, it reduced the amount of damages.
As stated earlier, the employer's liability in quasi-delict is
primary and solidary. The award of temperate, moral,
and exemplary damages as well as attorney's fees lies
upon the discretion of the court based on the facts and
circumstances of each case. (See Magbanua v.
Intermediate Appellate Court, 137 SCRA 328; Siquenza
v. Court of Appeals, 137 SCRA 570; San Andres v. Court
of Appeals, 116 SCRA 81; Sarkies Tours Phil., Inc. v.
Intermediate Appellate Court, 124 SCRA 588;
Prudenciado v. Alliance Transport System, Inc., supra.).
beginning December 21, 1971, the day of the
incident, up to May 9, 1972. While in the
hospital, he underwent several major operations
on his legs and in spite of Id operations, a
deformity still resulted and that his left leg is
shorter than the right. The medical expenses,
hospital bills and doctor's fees were properly
exhibited and not rebutted by defendants. This
being the case, actual expenses of P48,244.08
may be awarded.
As to the loss or impairment of earning capacity,
there is no doubt that Pleno is an enterpreneur
and the founder of his own corporation, the
Mayon Ceramics Corporation. It appears also
that he is an industrious and resourceful person
with several projects in line and were it not for
the incident, might have pushed them through.
On the day of the incident, Pleno was driving
homeward with geologist Langley after an ocular
inspection of the site of the Mayon Ceramics
Corporation. His actual income however has not
been sufficiently established so that this Court
cannot award actual damages, but, an award of
temperate or moderate damages may still be
made on loss or impairment of earning capacity.
That Pleno sustained a permanent deformity
due to a shortened left leg and that he also
suffers from double vision in his left eye is also
established. Because of this, he suffers from
some inferiority complex and is no longer active
in business as well as in social life. In similar
cases as in Borromeo v. Manila Electric Railroad
Co., 44 Phil 165; Cordage, et al. v. LTB Co., et
al., L-11037, Dec. 29,1960, and in Araneta, et
al. v. Arreglado, et al., L-11394, Sept. 9, 1958,
the proper award of damages were given.
There is also no doubt that due to the incident,
Pleno underwent physical suffering, mental
anguish, fight, severe arudety and that he also
underwent several major operations. As
previously stated, Pleno is the founder of Mayon
Ceramics Corporation, manufacturer of the now
famous Crown Lynn ceramic wares. He is a
mechanical engineer and the topnotcher of the
 professional examination for mechanical
engineering in 1938. From the record, most if
not all of his children excelled in academic
studies here and abroad. The suffering, both
mental and physical, which he experienced, the
anxiety and fright that he underwent are
sufficiently proved, if not patent. He is therefore
entitled to moral damages. Pleno is also entitled
to exemplary damages since it appears that
gross negligence was committed in the hiring of
driver de Luna. In spite of his past record, he
was still hired by the corporation. As regards de
Luna, the very fact that he left the scene of the
incident without assisting the victims and
without reporting to the authorities entitles an
award of exemplary damages, so as to serve as
an example that in cases of accidents of this
kind, the drivers involved should not leave their
victims behind but should stop to assist the
victims or if this is not possible, to report the
matter immediately to the authorities. That the
corporation did not also report the matter to the
authorities and that their lawyer would attempt
to bribe the police officers in order that the
incident would be kept a secret shows that the
corporation ratified the act of their employees
and such act also shows bad faith. Hence, Id
corporation is able to pay exemplary damages.
The award of attorney's fees is also proper in
this case considering the circumstances and that
it took more than five years of trial to finish this
case. Also, plaintiffs counsel prepared lengthy
and exhausive memorandum. (pp- 48-50,
Amended Joint Record on Appeal)
We rule that the lower court's awards of damages are
more consonant with the factual circumstances of the
instant case. The trial court's findings of facts are clear
and well-developed. Each item of damages is adequately
supported by evidence on record. On the other hand,
there are no substantial reasons and no references to
any misimpressions of facts in the appellate decision.
The Court of Appeals has shown no sufficient reasons
for altering factual findings which appear correct. We,
therefore, affirm the lower court's awards of damages
and hold that the appellate court's reduction of the
amounts of temperate and moral damages is not
justified. However, we modify the award of attorney's
fees to P20,000.00 which we deem to be just and
equitable under the circumstances of the case.
WHEREFORE, the instant petition is GRANTED. The
questioned decision is REVERSED and SET ASIDE. The
decision of the Court of First Instance of Rizal (Pasig) in
Civil Case No. 16024 is AFFIRMED in all respects, except
for the award of attorney's fees which is reduced to
P20,000.00. SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff and appellee,
vs. BALWINDER SINGH, GURMOK SINGH,
DALVIR SINGH, DIAL SINGH, AMARJIT
SINGH, MOHINDER SINGH, MALKIT
SINGH DHILLON, JOHINDER SINGH and
KULDIP SINGH, defendant,
BALWINDER SINGH, MALKIT, SINGH, MOHINDER
SINGH and DALVIR SINGH, defendants-appellants.
Appellants Balwinder, Malkit, Mohinder and Dalvir,
all surnamed Singh, were convicted of the crime of
Murder in Criminal Case No. 8683 for killing Surinder
Singh, and Frustrated Murder in Criminal Cases No. 8682
for stabbing Dilbag Singh. Each of them were sentenced
to suffer the penalty of reclusion perpetua for murder,
and the indeterminate penalty of 8 years and one (1)
day of prision mayor as minimum, to twelve (12) years
and one (1) day of reclusion temporal as maximum for
frustrated murder.
It appears that these four (4) appellants, who are
Indian nationals, were charged with murder and
frustrated murder along with their six (6) compatriots,
namely: Gurmok, Dalvir, Dial, Johinder, Kuldip and
Amarjit Singh. Only these four (4) appellants were
prosecuted because the rest of their co-accused are at-
large, except for Dial Singh, who died while under
detention.
Dilbag Singh, private complainant for frustrated
murder in Criminal Case No. 8682, recounts that on
November 26, 1993, at around 7:30 in the morning
while he was cleaning his motorbike in front of the
Mendiola Apartment in Barangay Canlalay, Bian, Laguna,
Dalvir, Balwinder, Gurmok, Jarnail, Amarjit, Mohinder,
Dial, Kuldip- all surnamed Singh-Johander Singh Dhillon,
and Malkit Singh Dhillon arrived, shouting foul remarks
in their native language and demanding Surinder Singh
to come out of the apartment. When Surinder Singh
came out of his apartment, Dalvir Singh tried to stab
him but Surinder Singh was able to move away. Dalvir
Singh told his companions to hold Surinder Singh as he
will kill him. Thereafter, Dial Singh and Johinder Singh
each held the right and left arms of Surinder Singh, with
Kuldip Singh pushing Surinder Singh on his back. Dalvir
Singh then stabbed Surinder Singh, hitting him on the
right side of his stomach, and causing him to fall on the
ground. Dial Singh remarked that Surinder Singh failed
to give money and if others will likewise refuse, the
same fate will befall them. As Surinder Singh tried to get
up, Malkit Singh Dhillon and Jarnail Singh started hitting
him with lead pipes all over his body, while Johinder
Singh and Dial Singh punched and kicked Surinder.
Amarjit Singh, who was holding a gun, warned everyone
not to help Surinder Singh or else he will shoot. Thereat,
when all these things were going on, private
complainant Dilbag Singh tried to stop them but
Balwinder Singh stabbed him on the left side of his back.
Gurmok Singh likewise stabbed him with a bolo, but he
was not hit as he was able to move to one side. After
that, the ten (10) accused Indians left.
Dilbag Singh and Surinder Singh, both injured, were
brought to the Perpetual Help Hospital, Bian, Laguna, by
Jaswinder Singh, Johinder Singh Gill, Balwinder Singh
Gill and Alwan Singh, for treatment. There, Surinder
Singh was pronounced dead on arrival.
From the hospital, private complainant Dilbag
Singh, Jaswinder Singh, Balwinder Singh Gill, a lady
named Vilma, and other companions went to the police
station in Bian, Laguna, and reported the incident. Both
Dilbag Singh and Jaswinder Singh executed a sworn
statement.
On the basis of the sworn statement, the Chief
Investigator of the Bian Police Station filed on November
28, 1993, a complaint for the crime of homicide with the
Municipal Trial Court (MTC) of Bian, Laguna for purposes
of preliminary investigation.
On January 7, 1994,[1] after finding probable cause,
the MTC recommended to upgrade the charges to
Murder and Frustrated Murder, and forwarded the
records of the case to the Provincial Prosecutor.[2]
On February 17, 1994, 3rd Assistant Prosecutor of
Laguna, Fernando V. Balinado, rendered a resolution
recommending that only Dalvir Singh be charged with
homicide, and that frustrated homicide be filed against
Balwinder and Gurmok Singh.[3] Thereafter, the
Information for homicide was filed against Dalvir Singh,
and frustrated homicide against Balwinder and Gurmok
Singh[4] with the Regional Trial Court of Laguna. Before
arraignment, private complainants Dilbag Singh and
their heirs of Surinder Singh, thru their counsel, moved
for reinvestigation.[5]
On June 30, 1994, a resolution on
reinvestigation[6] resulted in the filing of two (2)
Informations for Murder and Frustrated Murder against
all ten (10) Indian nationals, to wit:
CRIMINAL CASE No. 8683[7] For Murder
That on or about November 26, 1993, in the Municipality
of Bian, Province of Laguna, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and mutually helping
with one another, and armed with a fan knife, hand gun
and lead pipes, did then and there willfully, unlawfully
and feloniously attack, assault, stab and wound and hit
with said knife and lead pipes one SURINDER SINGH
thereby inflicting upon him fatal wounds, with abuse of
superior strength, treachery and with evident
premeditation, the said accused, having inflicted the
wounds upon SURINDER SINGH while being held by the
other accused, and as a result thereof, the said wounds
being necessarily mortal/fatal, thereby causing the direct
and immediate death of said SURINDER SINGH, to the
damage and prejudice of his surviving heirs.
All contrary to law and with the qualifying/aggravating
circumstances of abuse of superior strength, evident
premeditation and alevosia, and the generic aggravating
circumstance of known conspiracy.
Criminal Case No. 8682[8] Frustrated Murder
That on or about November 26, 1993 in the Municipality
of Bian, Province of Laguna, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and mutually helping
with one another, did then and there willfully, unlawfully
and feloniously, with abuse of superior strength,
treachery and evident premeditation, while armed with
bolos, lead pipes, fan knife and hand-gun, with the
intent of taking the life of DILBAG SINGH, attack, assault
thereby inflicting upon him mortal wound on the left side
of his body directly by overt acts thus, performing all the
acts of execution which would have nevertheless did not
produce it, by reason of causes independent of their will,
that is: the able and timely medical assistance given the
said DILBAG SINGH which prevented his death.
CONTRARY TO LAW.
Initially, the case was filed with the Regional Trial
Court of Bian, Laguna and was raffled to Branch 24.
Both cases were tried jointly.
Upon arraignment, on September 23, 1994, three
(3) appellants, Balwinder, Malkit and Mohinder Singh,
manifested that they are not entering any plea. Thus,
the court entered for them a plea of not guilty pursuant
to Section 1(c), Rule 116 of the Rules of Court.[9] The
arraignment of Dalvir and Dial Singh followed on
October 25, 1994.[10]
On October 6, 1994, appellants filed a petition for
bail.[11] While hearing the petition for bail, appellants
filed a motion to inhibit and a petition for change of
venue.[12] Subsequently, on May 30, 1995, the hearing
on the petition for bail was continued before the
Regional Trial Court of San Pedro, Laguna. On December
13, 1995, RTC of San Pedro, Laguna denied the petition
for bail.[13]
The evidence presented during the bail hearings
were automatically reproduced at the trial.
The events, according to appellants, happened in
this wise. Appellant Dalvir Singh testified that on
November 26, 1993, at around 7:30 in the morning, he
was conducting his buy and sell business along Brgy.
Canlalay, Bian, Laguna. While collecting from his
customers, he was accosted by Jaswinder, Dilbag and
Surinder Singh to stop at the corner of the street. When
he stopped, he alighted from his motorcycle. Jaswinder,
Dilbag and Surinder Singh accused him of squealing
their status to the immigration authorities. Then,
Jaswinder Singh punched him. Appellant Dalvir Singh
retaliated by slapping Jaswinder Singh afterwhich,
Jaswinder Singh, went inside his apartment to get a
pipe. When Surinder Singh was about to stab him, he
wrestled the knife from him and, in the process, private
complainant Dilbag Singh was stabbed on his back with
the same knife.[14] As Dalvir Singh grappled for the
possession of the knife from Surinder Singh, both of
them fell down, with him landing on top of Surinder
Singh and that was the time when Surinder Singh was
stabbed on the right portion of his stomach. Then,
Surinder Singh lost his grip and appellant Dalvir Singh
was able to get hold of the knife. Appellant Dalvir Singh
was so nervous that he left the place on his motorcycle
while holding the knife. He threw the knife along the
highway of Bian, Laguna.[15]
To bolster this version, appellants offered the
testimonies of Wilfredo Rivera and SPO4 Manuel
Francisco. Wilfredo Rivera corroborated the testimonies
of appellant Dalvir Singh. According to him, he testified
in court in exchange for the favor extended to him by an
Indian national who is a friend of appellant Dalvir
Singh. With respect to the testimonies of SPO4 Manuel
Francisco, then chief investigator of the PNP, Bian,
Laguna, the same were confined to the fact that private
complainants Dilbag Singh and Jaswinder Singh
executed their respective sworn statements of the
incident.
After trial, appellants were convicted of the crime
charged, thus
WHEREFORE, the guilt of accused Balwinder Singh,
Malkit Singh Dhillon, Mohinder Singh, Dalvir Singh and
Dial Singh having been established beyond reasonable
doubt of the crimes of frustrated murder in Criminal
Case No. 8282 and murder in Criminal Case 8683
defined and penalized in Articles 248 and 250 of the
Revised Penal Code, this Court hereby sentences them
(except Dial Singh who died during the presentation of
defense evidence on the main case) as follows:
Criminal Case No. 8682
1. each to suffer an indeterminate penalty of
imprisonment of from eight (8) years and one (1) day
of prision mayor as minimum, to twelve (12) years
and one (1) day of reclusion temporal maximum;
2. jointly and severally, to pay private complainant Dilbag
Singh the amounts of P16,000 representing his
hospitalization and medical expenses, and P30,000 for
and as attorneys fees; and
3. jointly and severally, to pay the costs of suit.
Criminal Case No. 8683
1. each to suffer the penalty of reclusion perpetua;
2. jointly and severally, to pay the heirs of Surinder Singh
the following sums:
a) P50,000.00 as civil indemnity;
b) P41,500.00 representing funeral, wake and transportation
expenses;
c) P5,760,000.00 for lost earnings/income;
d) P400.00 for hospitalization expenses;
e) P50,000.00 for moral damages; and
f) P500,000.00 for and as attorneys fees; and
3. jointly and severally, to pay the costs of suit.
Since accused Jarnail Singh, Gurmok Singh, Amarjit
Singh, Johinder Singh and Kuldip Singh have remained
at-large to date, in order not to clog the docket of this
court, let the records of these two cases be sent to the
files and warrant be issued for their immediate arrest.
SO ORDERED.[16]
Due to the penalty of reclusion perpetua imposed in
murder, the case is now before us on appeal.
Appellants challenge their conviction and interpose
the following errors allegedly committed by the trial
court-[17]
1. The court a quo erred in sanctioning errors and
irregularities of procedure which resulted in denial of
due process to accused-appellants.
2. The court a quo erred in accepting the prosecutions
version of the incident which gave rise to these cases,
overlooking the testimonies of the three (3) unbiased
witnesses thereto.
3. The court a quo erred in awarding excessive damages
against accused-appellants.
First error
According to appellants, an irregularity attended the
admission of the amended Informations. They claim that
the prosecution failed to conduct a preliminary
investigation for the upgraded crime of murder and
frustrated murder. This claim lacks basis.
Evidence on record reveals that when private
complainants filed a motion for re-investigation to
upgrade the charge to murder and frustrated murder, in
the course thereof, the prosecutor who handled the
reinvestigation[18] conducted another preliminary
investigation. Subpoenas were issued and sent to both
contending parties requiring them to appear and be
present on the scheduled date and time for the said re-
investigation, and to present, or submit, their evidence
in support of their complaints and defense,
respectively."[19] The prosecutor propounded clarificatory
questions to the prosecution witnesses revealing the
necessity to raise the category of the criminal charge to
murder and frustrated murder.
Appellants likewise alleged that the procedure
followed by the trial court in resolving their petitions for
bail departed from the usual course of judicial
proceedings, because the prosecution presented its
evidence ahead of appellants, and the presentation of
the prosecution took 10 months from January 27 to
October 30, 1995, while the accused were afforded only
two days to rebut the prosecution evidence. This
allegation is misplaced.
In hearing the petition for bail, the prosecution has
the burden of showing that the evidence of guilt is
strong. Section 8, Rule 114 of the Rules of Court
specifically provides that the burden of proof in bail
application lies in the prosecution, thus-
Section 8, Burden of proof in bail application.- At the
hearing of an application for admission to bail filed by
any person who is in custody for the commission of an
offense punishable by death, reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong. The evidence
presented during the bail hearings shall be considered
automatically reproduced at the trial, but upon motion of
either party, the court may recall any witness for
additional examination unless the witness is dead,
outside of the Philippines or otherwise unable to testify.
In bail proceedings, the prosecution must be given
ample opportunity to show that the evidence of guilt is
strong. While the proceeding is conducted as a regular
trial, it must be limited to the determination of the
bailability of the accused. It should be brief and speedy,
lest the purpose for which it is available is rendered
nugatory. Antecedents of this case show that the case
was initially raffled to Branch 24, RTC, Bian, Laguna,
and then transferred to RTC San Pedro, Laguna. From
the filing of the two (2) criminal Informations, several
motions and petitions were received by the trial court,
which include, among others, application for bail, motion
for re-investigation, motion to inhibit and change of
venue, motion to transfer appellants from the municipal
jail to Sta. Cruz provincial jail, petition for review filed
with the Department of Justice and motion for
postponements. In the course of hearing the petition for
bail, several petitions and motions cluttered the records
of the trial court. In fact, the records of the case were
not immediately forwarded to RTC San Pedro, Laguna
when the hearing was transferred. We have scoured the
records of this case and we found that the delay was
caused by these factors. These, however, did not justify
the length of time consumed by the prosecution in the
presentation of its evidence because the trial court,
exercising its discretion, ought to control the course of
bail proceedings, avoiding unnecessary thoroughness in
the examination and cross-examination of witnesses,
and reducing to a reasonable minimum the amount of
corroboration particularly on details that are not
essential to the purpose of the hearing.[20] While the
prosecution tarried too long, such fact did not amount to
a denial of due process because bail is granted only
where it is uncertain whether the accused is guilty or
innocent,[21] which is not attendant in this case.
Appellants also challenge their transfer from the
municipal jail in Bian, Laguna, to the provincial jail in
Sta. Cruz, Laguna. The transfer of appellants to the Sta.
Cruz provincial jail was sought for because during the
scheduled hearings, appellants were always
late.[22] Considering that the jail guards in the municipal
jail at Bian reasoned that they are undermanned, thus,
late in going to court, the trial court deemed it best to
transfer appellants to the provincial jail. Besides, the trial
court took cognizance of the fact that appellants
complained of poor jail facilities in Bian,
Laguna.[23] Circumstances surrounding this case justify
appellants transfer to the provincial jail for the purpose
of insuring the speedy disposition of the case.
Appellants claim that no evidence was presented by
the prosecution to prove the allegations in the amended
information, and that there is nothing in the records of
these cases which support the statement of the court a
quo that the documentary evidence, as well as the
testimonies of the xxx witnesses presented by the
prosecution in a petition for bail, was considered as
automatically reproduced at the trial on the main
cases,[24] is misleading.
On May 30, 1995, the trial court declared that the
evidence presented during the bail hearings are
considered automatically reproduced at the trial of the
main case.[25] In fact, Section 8, Rule 114 of the Rules of
Court specifically provides that the evidence presented
during the bail hearings shall be considered
automatically reproduced at the trial. The mandate of
the Rules is clear and there is no need for the trial court
to issue an order so that the evidence presented in the
bail proceedings may be considered automatically
reproduced at the trial.
Appellants contend that they were deprived of their
rights to be heard and to present evidence with the
issuance of the trial court Order dated February 24,
1997. As culled from the records, appellants were
protracting the trial by filing motions for postponement
on scheduled hearings. On February 24,1997, the
scheduled date for appellants presentation of additional
evidence, appellants filed a motion for leave to file
demurrer to evidence and set the same for hearing on
that same day.[26] It bears stressing that judicial action
on a motion to dismiss, or demurrer to evidence, is left
to the exercise of sound judicial discretion.[27] The trial
court, mindful of the violation of the three-day notice
rule by appellants, declared that the trial court must be
given time to resolve the motion, and ordered the
parties to proceed with the hearing, without prejudice to
the outcome of the motion. The trial court emphasized
that there should be a limitation or an end to
unnecessary postponements. Thus, it disclosed that
when the Court of Appeals denied appellants Petition for
Certiorari with a prayer for temporary restraining
order,[28] no legal hindrance existed to defer the
scheduled hearings. Appellants were given all the
opportunity to be heard and defend their cause but
opted not to utilize the same by its continued refusal to
proceed with the trial.Nevertheless, appellants were
given time to file their formal offer of exhibits to bolster
their defense.[29] This negates the appellants claim of
denial of due process.
Second error
Appellants fault the trial court in accepting the
prosecutions version. This Court is convinced that
appellants are guilty of the crime charged.Appellants
Dalvir Singh admitted stabbing the deceased and
wounding Dilbag Singh, which was claimed to have been
caused while grappling for the possession of the
knife. This version invoking the justifying circumstance
of self-defense must be proven by clear and convincing
evidence.[30] After invoking self-defense, for exculpation,
appellants have the burden of proving their allegation to
substantiate such assertion, which they failed to do
so. In addition, their imputation of alleged discrepancy
between the sworn statement executed by private
complainants Dilbag and Jaswinder Singh on November
26, 1993, and their joint sworn statement executed on
December 13, 1993,[31] is not impressed with
merit. Reviews of both sworn statements negate any
inconsistency. Immediately after the incident, private
complainants Dilbag and Jaswinder Singh, reported the
circumstances surrounding the death of Surinder Singh,
and the stab wound sustained by Dilbag Singh to police
authorities.[32] Both of them revealed the presence of all
the appellants and disclosed their participation in the
incident. On November 26, 1993, their narrations
collectively and individually demonstrate appellants
concerted action to inflict injury upon private
complainant Dilbag Singh and the deceased Surinder
Singh. In fine, we quote with approval, the trial courts
findings, holding all the appellants guilty of murder and
frustrated murder, thus-
x x x prosecution evidence has established that Surinder
Singh was stabbed in the stomach by accused Dalvir
Singh while the former was being held on his arms by
accused Dial Singh and Johinder Singh, and pushed on
his back by accused Kuldip Singh. At that juncture,
accused Malkit Singh Dhillon and Jarnail Singh held lead
pipes, accused Balwinder Singh, a big bolo-like knife,
accused Gurmok Singh, a small bolo-like knife, and
Amarjit Singh, a hand gun. Also, accused Mohinder
Singh shouted kill him, Im responsible, I will bring you
out of trouble in Punjabi and the rest of the accused
remarked come on, kill him, kill him also in
Punjabi. While all these acts were transpiring, accused
Amarjit Singh threatened to shoot anybody who will help
with the gun that he was holding. After he was stabbed,
Surinder Singh was still hit with lead pipes by accused
Malkit Singh Dhillon and Jarnail Singh and boxed and
kicked by Johinder Singh and Dial Singh and pushed at
his back by Kuldip Singh. When Dilbag pleaded with the
accused not to hit anymore (sic) Surinder Singh, he, too,
was stabbed on his back by Balwinder Singh followed by
an attempt to stab him also by Gurmok Singh. Evidently,
the foregoing concerted acts sufficiently demonstrated a
common purpose or design to kill Surinder Singh and
Dilbag Singh with treachery. As held in a number of
cases, there is treachery when offender commits any of
the crimes against person, employing means, methods
or forms in the execution thereof, without risk to himself
from the defense which the offended party might
make. xxx xxx xxx Thus, treachery which was alleged in
the informations, qualifies the killing of Surinder Singh to
murder and the inflicting of a mortal wound on Dilbag
Singh with intent to kill to frustrated murder. Where
criminal conspiracy is shown to exist, all the conspirators
are liable as co-principals regardless of the extent and
character of their participation, in contemplation of law,
the act of one conspirator is the act of all xxx xxx xxx
and the participation in all details of execution of the
crime is not necessary for such a finding.xxx xxx xxx
Although superior strength is found to be attendant in
the killing of Surinder Singh and wounding of Dilbag
Singh, it is deemed absorbed in treachery and is not
appreciated as a separate aggravating circumstances. As
regards the circumstance of evident premeditation,
prosecution evidence failed to show when accused
meditated and reflected upon their decision to kill their
victims. In short, it cannot also be appreciated because
there is wanting of any direct evidence of the planning
and the preparation to kill.[33]
The other errors allegedly committed by the trial
court call for the calibration of credibility of witnesses,
which we find no reason to disturb since it is best left to
the trial court to pass upon, having had the opportunity
to observe firsthand the demeanor and actuation of the
witnesses while on the witness stand.[34]
Third error
In Criminal Case No. 8682 for frustrated murder,
the trial court awarded private complainant Dilbag Singh
the amount of P16,000.00 representing his
hospitalization and medical expenses, and P 30,000.00
as attorneys fees. For his hospitalization and medical
expenses, the receipts submitted to support said claim
amounted only to P370.50.[35] Hence, private
complainant Dilbag Singh is entitled only to the said
amount.[36] The award of attorneys fees is hereby
deleted.[37] Nonetheless, private complaint is entitled to
moral damages[38] in the amount of P50,000.00 for the
suffering he endured from appellants felonious acts.
In Criminal Case No. 8683 for murder, the following
amount of actual damages were duly proven P16,500.00
funeral expenses[39] and air ticket/freight of the cadaver
$600.27.[40] The amount of P400.00 for hospitalization
expenses should be deleted for not being supported by
evidence. The trial courts award of P50,000.00 as civil
indemnity, and P50,000.00 moral damages are
affirmed. The award of P500,000.00 as attorneys
fees[41] and P5,760,000 as compensation for loss of
earning capacity, are likewise deleted for lack of
basis. Awards for loss of earning capacity partake of
damages which must be proven not only by credible and
satisfactory evidence, but also by unbiased proof.[42] The
testimony of Balwinder Singh Gill, first cousin of the
deceased, on the alleged income of the deceased while
in the Philippines, is not enough. The best evidence to
substantiate income earned by foreigners while in the
Philippines is the payment of taxes with the Bureau of
Internal Revenue. Absent such proof, bare allegation is
insufficient.Nevertheless, considering that the definite
proof of pecuniary loss cannot be offered, and the fact
of loss has been established, appellants shall pay the
heirs of Surinder Singh temperate damages[43] in the
amount of P200,000.00.
WHEREFORE, in accordance with the foregoing
disquisition, the decision appealed from is hereby
affirmed subject to the following modifications-
1. In Criminal Case No. 8682 for frustrated murder, appellants
shall only be liable to pay
a. P370.50 for hospitalization expenses;
b. P50,000.00, as moral damages, plus costs; and,
2. In Criminal Case No. 8683 for murder, in addition to the civil
indemnity, moral damages and attorneys fees awarded by the trial
court, appellants shall pay-
a. P16,500.00, as funeral expenses;
b. $600.27, as air ticket/freight of the cadaver, to be
computed at the prevailing rate of exchange at the
time of the promulgation of this decision; and,
c. P200,000.00, as temperate damages, plus costs.
SO ORDERED.
5. LIQUIDATED
 ART 2226-2228
6. EXEMPLARY OR CORRECTIVE
 ART 2229-2235
[G.R. No. 108630. April 2, 1996]
PHILIPPINE NATIONAL BANK, petitioner,
vs. COURT OF APPEALS and
LORETO TAN,respondents.
SYLLABUS
1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; A DEBT IS
PAID BY COMPLETE DELIVERY OF THE THING OR
RENDITION OF SERVICE. - There is no question that no
payment had ever been made to private respondent as the
check was never delivered to him. When the court ordered
petitioner to pay private respondent the amount of P32,480.00,
it had the obligation to deliver the same to him. Under Art. 1233
of the Civil Code, a debt shall not be understood to have been
paid unless the thing or service in which the obligation consists
has been completely delivered or rendered, as the case may be.
2. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF OF
PAYMENT OF OBLIGATION LIES WITH THE DEBTOR;
PAYMENT NOT PROVED IN CASE AT BAR. - The burden of
proof of such payment lies with the debtor. In the instant case,
neither the SPA nor the check issued by petitioner was ever
presented in court. The testimonies of petitioners own witnesses
regarding the check were conflicting. Tagamolila testified that
the check was issued to the order of Sonia Gonzaga as attorney-
in-fact of Loreto Tan, while Elvira Tibon, assistant cashier of PNB
(Bacolod Branch), stated that the check was issued to the order
of Loreto Tan. Furthermore, contrary to petitioners contention
that all that is needed to be proved is the existence of the SPA,
it is also necessary for evidence to be presented regarding the
nature and extent of the alleged powers and authority granted
to Sonia Gonzaga; more specifically, to determine whether the
document indeed authorized her to receive payment intended for
private respondent. However, no such evidence was ever
presented.
3. ID.; ID.; BEST EVIDENCE RULE; WHEN SECONDARY
EVIDENCE IS ALLOWED. - Section 4, Rule 130 of the Rules of
Court allows the presentation of secondary evidence when the
original is lost or destroyed.
4. ID.; ID.; ID.; PAYMENT OF OBLIGATION NEGATED BY
FAILURE TO PRESENT SPECIAL POWER OF ATTORNEY IN
CASE AT BAR. - Considering that the contents of the SPA are
also in issue here, the best evidence rule applies. Hence, only
the original document (which has not been presented at all) is
the best evidence of the fact as to whether or not private
respondent indeed authorized Sonia Gonzaga to receive the
check from petitioner. In the absence of such document,
petitioners arguments regarding due payment must fail.
5. CIVIL LAW; DAMAGES; ATTORNEYS FEES; AVAILABLE TO
PARTY WHO WAS COMPELLED TO LITIGATE. - Regarding
the award of attorneys fees, we hold that private respondent
Tan is entitled to the same. Art. 2208 of the Civil Code allows
attorneys fees to be awarded if the claimant is compelled to
litigate with third persons or to incur expenses to protect his
interest by reason of an unjustified act or omission of the party
from whom it is sought.
6. ID.; ID.; EXEMPLARY DAMAGES; WHEN RECOVERABLE. -
Under Art. 2232 of the Civil Code, exemplary damages may be
awarded if a party acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner. However, they cannot be
recovered as a matter of right; the court has yet to decide
whether or not they should be adjudicated.
7. ID.; ID.; ID.; REQUIREMENTS FOR GRANT. - Jurisprudence
has set down the requirements for exemplary damages to be
awarded: 1. they may be imposed by way of example in addition
to compensatory damages, and only after the claimants right to
them has been established; 2. they cannot be recovered as a
matter of right, their determination depending upon the amount
of compensatory damages that may be awarded to the claimant;
3. the act must be accompanied by bad faith or done in a
wanton, fraudulent, oppressive or malevolent manner.
8. ID.; ID.; ID.; CANNOT BE RECOVERED WHERE THERE IS NO
CLEAR BREACH OF OBLIGATION TO PAY OR THAT A
PARTY ACTED IN FRAUDULENT, WANTON, RECKLESS OR
OPPRESSIVE MANNER. - As for the award of exemplary
damages, we agree with the appellate court that the same
should be deleted. In the case at bench, while there is a clear
breach of petitioners obligation to pay private respondents, there
is no evidence that it acted in a fraudulent, wanton, reckless or
oppressive manner. Furthermore, there is no award of
compensatory damages which is a prerequisite before exemplary
damages may be awarded. Therefore, the award by the trial
court of P5,000.00 as exemplary damages is baseless.
DECISION
 Petitioner Philippine National Bank (PNB) questions
the decision1 of the Court of Appeals partially affirming
the judgment of the Regional Trial Court, Branch 44,
Bacolod City. The dispositive portion of the trial courts
decision states:
WHEREFORE, premises considered, the Court hereby
renders judgment in favor of the plaintiff and against the
defendants as follows:
1) Ordering defendants to pay plaintiff jointly and severally the sum
P32,480.00, with legal rate of interest to be computed from May
1979, date of filing of this complaint until fully paid;
2) Ordering defendants to pay plaintiff jointly and severally the sum
P5,000.00 as exemplary damages;
3) Ordering defendants to pay plaintiff jointly and severally the sum
P5,000.00 as attorneys fees;
4) To pay the costs of this suit.
SO ORDERED.2
The facts are the following:
Private respondent Loreto Tan (Tan) is the owner
of a parcel of land abutting the national highway in
Mandalagan, Bacolod City. Expropriation proceedings
were instituted by the government against private
respondent Tan and other property owners before the
then Court of First Instance of Negros Occidental,
Branch IV, docketed as Civil Case No. 12924.
Tan filed a motion dated May 10, 1978 requesting
issuance of an order for the release to him of the
expropriation price of P3 2,480.00.
On May 22, 1978, petitioner PNB (Bacolod Branch)
was required by the trial court to release to Tan the
amount of P32,480.00 deposited with it by the
government.
On May 24, 1978, petitioner, through its Assistant
Branch Manager Juan Tagamolila, issued a managers
check for P3 2,480.00 and delivered the same to one
Sonia Gonzaga without Tans knowledge, consent or
authority. Sonia Gonzaga deposited it in her account
with Far East Bank and Trust Co. (FEBTC) and later on
withdrew the said amount.
Private respondent Tan subsequently demanded
payment in the amount of P32,480.00 from petitioner,
but the same was refused on the ground that petitioner
had already paid and delivered the amount to Sonia
Gonzaga on the strength of a Special Power of Attorney
(SPA) allegedly executed in her favor by Tan.
On June 8, 1978, Tan executed an affidavit before
petitioners lawyer, Alejandro S. Somo, stating that:
1) he had never executed any Special Power of Attorney
in favor of Sonia S. Gonzaga;
2) he had never authorized Sonia Gonzaga to receive
the sum of P32,480.00 from petitioner;
3) he signed a motion for the court to issue an Order to
release the said sum of money to him and gave the
same to Mr. Nilo Gonzaga (husband of Sonia) to be filed
in court. However, after the Order was subsequently
issued by the court, a certain Engineer Decena of the
Highway Engineers Office issued the authority to release
the funds not to him but to Mr. Gonzaga.
When he failed to recover the amount from PNB,
private respondent filed a motion with the court to
require PNB to pay the same to him.
of Petitioner filed an opposition contending that Sonia
2,
Gonzaga presented to it a copy of the May 22, 1978
of order and a special power of attorney by virtue of which
petitioner delivered the check to her.
of
The matter was set for hearing on July 21, 1978
and petitioner was directed by the court to produce the
said special power of attorney thereat. However,
petitioner failed to do so.
The court decided that there was need for the
matter to be ventilated in a separate civil action and
thus private respondent
filed a complaint with the Regional Trial Court in
Bacolod City (Branch 44) against petitioner and Juan
Tagamolila, PNBs Assistant Branch Manager, to recover
the said amount.
In its defense, petitioner contended that private
respondent had duly authorized Sonia Gonzaga to act as
his agent.
On September 28, 1979, petitioner filed a third-
party complaint against the spouses Nilo and Sonia
Gonzaga praying that they be ordered to pay private
respondent the amount of P32,480.00. However, for
failure of petitioner to have the summons served on the
Gonzagas despite opportunities given to it, the third-
party complaint was dismissed.
Tagamolila, in his answer, stated that Sonia
Gonzaga presented a Special Power of Attorney to him
but borrowed it later with the promise to return it,
claiming that she needed it to encash the check.
On June 7, 1989, the trial court rendered judgment
ordering petitioner and Tagamolila to pay private
respondent jointly and severally the amount of
P32,480.00 with legal interest, damages and attorneys
fees.
Both petitioner and Tagamolila appealed the case
to the Court of Appeals.
In a resolution dated April 8, 1991, the appellate
court dismissed Tagamolilas appeal for failure to pay the
docket fee within the reglementary period.
On August 31, 1992, the Court of Appeals affirmed
the decision of the trial court against petitioner, with the
modification that the award of P5,000.00 for exemplary
damages and P5,000.00 for attorneys fees by the trial
court was deleted.
Hence, this petition.
Petitioner PNB states that the issue in this case is
whether or not the SPA ever existed. It argues that the
existence of the SPA need not be proved by it under the
best evidence rule because it already proved the
existence of the SPA from the testimonies of its
witnesses and by the certification issued by the Far East
Bank and Trust Company that it allowed Sonia Gonzaga
to encash Tans check on the basis of the SPA.
We find the petition unmeritorious.
There is no question that no payment had ever
been made to private respondent as the check was
never delivered to him. When the court ordered
petitioner to pay private respondent the amount of P3
2,480.00, it had the obligation to deliver the same to
him. Under Art. 1233 of the Civil Code, a debt shall not
be understood to have been paid unless the thing or
service in which the obligation consists has been
completely delivered or rendered, as the case may be.
The burden of proof of such payment lies with the
debtor.3 In the instant case, neither the SPA nor the
check issued by petitioner was ever presented in court.
The testimonies of petitioners own witnesses
regarding the check were conflicting. Tagamolila
testified that the check was issued to the order of Sonia
Gonzaga as attorney-in-fact of Loreto Tan,4 while Elvira
Tibon, assistant cashier of PNB (Bacolod Branch), stated
that the check was issued to the order of Loreto Tan.5
Furthermore, contrary to petitioners contention that
all that is needed to be proved is the existence of the
SPA, it is also necessary for evidence to be presented
regarding the nature and extent of the alleged powers
and authority granted to Sonia Gonzaga; more
specifically, to determine whether the document indeed
authorized her to receive payment intended for private
respondent. However, no such evidence was ever
presented.
Section 2, Rule 130 of the Rules of Court states
that:
SEC. 2. Original writing must be produced; exceptions.
- There can be no evidence of a writing the contents of
which is the subject of inquiry, other than the original
writing itself, except in the following cases:
(a) When the original has been lost, destroyed, or
cannot be produced in court;
(b) When the original is in the possession of the party
against whom the evidence is offered, and the latter fails
to produce it after reasonable notice;
(c) When the original is a record or other document in
the custody of a public officer;
(d) When the original has been recorded in an existing
record a certified copy of which is made evidence by
law;
(e) When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole.
Section 4, Rule 130 of the Rules of Court allows the
presentation of secondary evidence when the original is
lost or destroyed, thus:
SEC. 4. Secondary evidence when original is lost or
destroyed. - When the original writing has been lost or
destroyed, or cannot be produced in court, upon proof
of its execution and loss or destruction, or unavailability,
its contents may be proved by a copy, or by a recital of
its contents in some authentic document, or by the
recollection of witnesses.
Considering that the contents of the SPA are also in
issue here, the best evidence rule applies. Hence, only
the original document (which has not been presented at
all) is the best evidence of the fact as to whether or not
private respondent indeed authorized Sonia Gonzaga to
receive the check from petitioner. In the absence of
such document, petitioners arguments regarding due
payment must fail.
Regarding the award of attorneys fees, we hold
that private respondent Tan is entitled to the same. Art.
2208 of the Civil Code allows attorneys fees to be
awarded if the claimant is compelled to litigate with third
persons or to incur expenses to protect his interest by
reason of an unjustified act or omission of the party
from whom it is sought.6
In Rasonable v. NLRC, et al.,7 we held that when a
party is forced to litigate to protect his rights, he is
entitled to an award of attorneys fees.
As for the award of exemplary damages, we agree
with the appellate court that the same should be
deleted.
Under Art. 2232 of the Civil Code, exemplary
damages may be awarded if a party acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.
However, they cannot be recovered as a matter of right;
the court has yet to decide whether or not they should
be adjudicated.8
Jurisprudence has set down the requirements for
exemplary damages to be awarded:
1. they may be imposed by way of example in addition
to compensatory damages, and only after the claimants
right to them has been established;

2. they cannot be recovered as a matter of right, their

determination depending upon the amount of
compensatory damages that may be awarded to the
claimant;

3. the act must be accompanied by bad faith or done in

a wanton, fraudulent, oppressive or malevolent manner.9

In the case at bench, while there is a clear breach

of petitioners obligation to pay private respondents,
there is no evidence that it acted in a fraudulent,
wanton, reckless or oppressive manner. Furthermore,
there is no award to compensatory damages which is a
prerequisite before exemplary damages may be
awarded. Therefore, the award by the trial court of
P5,000.00 as exemplary damages is baseless.
WHEREFORE, the decision of the Court of Appeals
is AFFIRMED with the modification that the award by the
Regional Trial Court of P5,000.00 as attorneys fees is
REINSTATED. SO ORDERED.

(DEL ROSARIO vs. CA **PREVIOUS CASE*)