G.R. No. 97626 March 14, 1997 PHILIPPINE BANK OF COMMERCE, now a !

or "# $ PHILIPPINE COMMERCIAL IN%ERNA%IONAL BANK, ROGELIO LAC&ON, 'IGNA 'E LEON, MARIA ANGELI%A PA&C(AL, ") a*., petitioners, vs. %HE CO(R% OF APPEAL&, ROMMEL+& MARKE%ING CORP., r",r"!"n)"# $ ROMEO LIPANA, -)! Pr"!-#"n) . G"n"ra* Mana/"r, respondents. HERMO&I&IMA, 0R., J.: Challenged in this petition for review is the Decision dated February 28, 1991 1 rendered by public respondent Court of Appeals which affir ed the Decision dated !ove ber 1", 198" of the #egional $rial Court, !ational Capital %udicial #egion, &ranch C'( )1*+,, -asig City, in Civil Case !o. 2.288 entitled /#o el0s 1ar2eting Corporation, etc. v. -hilippine &an2 of Co erce, now absorbed by -hilippine Co ercial and 3ndustrial &an2./ $he case ste ed fro a co plaint filed by the private respondent #o el0s 1ar2eting Corporation )#1C for brevity,, represented by its -resident and 4eneral 1anager #o eo 'ipana, to recover fro the for er -hilippine &an2 of Co erce )-&C for brevity,, now absorbed by the -hilippine Co ercial 3nternational &an2, the su of -5+6,9.9..6 representing various deposits it had ade in its current account with said ban2 but which were not credited to its account, and were instead deposited to the account of one &ienvenido Cotas, allegedly due to the gross and ine7cusable negligence of the petitioner ban2. #1C aintained two )2, separate current accounts, Current Account !os. "58+198+85 and "58+1.688., with the -asig &ranch of -&C in connection with its business of selling appliances. 3n the ordinary and usual course of ban2ing operations, current account deposits are accepted by the ban2 on the basis of deposit slips prepared and signed by the depositor, or the latter0s agent or representative, who indicates therein the current account nu ber to which the deposit is to be credited, the na e of the depositor or current account holder, the date of the deposit, and the a ount of the deposit either in cash or chec2s. $he deposit slip has an upper portion or stub, which is detached and given to the depositor or his agent9 the lower portion is retained by the ban2. 3n so e instances, however, the deposit slips are prepared in duplicate by the depositor.

$he original of the deposit slip is retained by the ban2, while the duplicate copy is returned or given to the depositor. Fro 1ay ", 19." to %uly 1*, 19.*, petitioner #o eo 'ipana clai s to have entrusted #1C funds in the for of cash totalling -5+6,9.9..6 to his secretary, 3rene :abut, for the purpose of depositing said funds in the current accounts of #1C with -&C. 3t turned out, however, that these deposits, on all occasions, were not credited to #1C0s account but were instead deposited to Account !o. "58+1.568. of :abut0s husband, &ienvenido Cotas who li2ewise aintains an account with the sa e ban2. During this period, petitioner ban2 had, however, been regularly furnishing private respondent with onthly state ents showing its current accounts balances. ;nfortunately, it had never been the practice of #o eo 'ipana to chec2 these onthly state ents of account reposing co plete trust and confidence on petitioner ban2. 3rene :abut0s modus operandi is far fro co plicated. <he would acco plish two )2, copies of the deposit slip, an original and a duplicate. $he original showed the na e of her husband as depositor and his current account nu ber. =n the duplicate copy was written the account nu ber of her husband but the na e of the account holder was left blan2. -&C0s teller, A>ucena 1abayad, would, however, validate and sta p both the original and the duplicate of these deposit slips retaining only the original copy despite the lac2 of infor ation on the duplicate slip. $he second copy was 2ept by 3rene :abut allegedly for record purposes. After validation, :abut would then fill up the na e of #1C in the space left blan2 in the duplicate copy and change the account nu ber written thereon, which is that of her husband0s, and a2e it appear to be #1C0s account nu ber, i.e., C.A. !o. "58+198+85. ?ith the daily re ittance records also prepared by 1s. :abut and sub itted to private respondent #1C together with the validated duplicate slips with the latter0s na e and account nu ber, she ade her co pany believe that all the while the a ounts she deposited were being credited to its account when, in truth and in fact, they were being deposited by her and credited by the petitioner ban2 in the account of Cotas. $his went on in a span of ore than one )1, year without private respondent0s 2nowledge. ;pon discovery of the loss of its funds, #1C de anded fro petitioner ban2 the return of its oney, but as its de and went unheeded, it filed a collection suit before the #egional $rial Court of -asig, &ranch 1*+. $he trial court found petitioner ban2 negligent and ruled as follows@

?AB#BF=#B, Cudg ent is hereby rendered sentencing defendant -hilippine &an2 of Co erce, now absorbed by defendant -hilippine Co ercial D 3ndustrial &an2, and defendant A>ucena 1abayad to pay the plaintiff, Cointly and severally, and without preCudice to any cri inal action which ay be instituted if found warranted@ 1. $he su of -5+6,9.9..2, representing plaintiffs lost deposit, plus interest thereon at the legal rate fro the filing of the co plaint9 2. A su eEuivalent to 16F thereof, as e7e plary da ages9 5. A su eEuivalent to 2"F of the total a ount due, as and for attorney0s fees9 and 6. Costs. Defendants0 counterclai of erit. 2 is hereby dis issed for lac2

of ore than one )1, year is the pro7i ate cause of the co ission of subseEuent frauds and isappropriation co itted by 1s. 3rene :abut. 5, $he duplicate copies of the deposit slips presented by respondent #o el 1ar2eting Corporation are falsified and are not proof that the a ounts appearing thereon were deposited to respondent #o el 1ar2eting Corporation0s account with the ban2, 6, $he duplicate copies of the deposit slips were used by 1s. 3rene :abut to cover up her fraudulent acts against respondent #o el 1ar2eting Corporation, and not as records of deposits she ade with the ban2. 4 $he petition has no erit.

<i ply put, the ain issue posited before us is@ ?hat is the pro7i ate cause of the loss, to the tune of -5+6,9.9..6, suffered by the private respondent #1C G petitioner ban20s negligence or that of private respondent0sH -etitioners sub it that the pro7i ate cause of the loss is the negligence of respondent #1C and #o eo 'ipana in entrusting cash to a dishonest e ployee in the person of 1s. 3rene :abut. 2 According to the , it was i possible for the ban2 to 2now that the oney deposited by 1s. 3rene :abut belong to #1C9 neither was the ban2 forewarned by #1C that :abut will be depositing cash to its account. $hus, it was i possible for the ban2 to 2now the fraudulent design of :abut considering that her husband, &ienvenido Cotas, also aintained an account with the ban2. For the ban2 to inEuire into the ownership of the cash deposited by 1s. 3rene :abut would be irregular. =therwise stated, it was #1C0s negligence in entrusting cash to a dishonest e ployee which provided 1s. 3rene :abut the opportunity to defraud #1C. 6 -rivate respondent, on the other hand, aintains that the pro7i ate cause of the loss was the negligent act of the ban2, thru its teller 1s. A>ucena 1abayad, in validating the deposit slips, both original and duplicate, presented by 1s. :abut to 1s. 1abayad, notwithstanding the fact that one of the deposit slips was not co pletely acco plished. ?e sustain the private respondent.

=n appeal, the appellate court affir ed the foregoing decision with odifications, viz@ ?AB#BF=#B, the decision appealed fro herein is 1=D3F3BD in the sense that the awards of e7e plary da ages and attorney0s fees specified therein are eli inated and instead, appellants are ordered to pay plaintiff, in addition to the principal su of -5+6,9.9..6 representing plaintiff0s lost deposit plus legal interest thereon fro the filing of the co plaint, -2",+++.++ attorney0s fees and costs in the lower court as well as in this Court. 1 Aence, this petition anchored on the following grounds@ 1, $he pro7i ate cause of the loss is the negligence of respondent #o el 1ar2eting Corporation and #o eo 'ipana in entrusting cash to a dishonest e ployee. 2, $he failure of respondent #o el 1ar2eting Corporation to cross8chec2 the ban20s state ents of account with its own records during the entire period

=ur law on Euasi8delicts states@ Art. 21.*. ?hoever by act or o ission causes da age to another, there being fault or negligence, is obliged to pay for the da age done. <uch fault or negligence, if there is no pre8e7isting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. $here are three ele ents of a Euasi8delict@ )a, da ages suffered by the plaintiff9 )b, fault or negligence of the defendant, or so e other person for whose acts he ust respond9 and )c, the connection of cause and effect between the fault or negligence of the defendant and the da ages incurred by the plaintiff. 7 3n the case at bench, there is no dispute as to the da age suffered by the private respondent )plaintiff in the trial court, #1C in the a ount of -5+6,9.9..6. 3t is in ascribing fault or negligence which caused the da age where the parties point to each other as the culprit. !egligence is the o ission to do so ething which a reasonable an, guided by those considerations which ordinarily regulate the conduct of hu an affairs, would do, or the doing of so ething which a prudent and reasonable an would do. $he seventy8eight ).8,8year8 old, yet still relevant, case of Picart v. Smith, 3 provides the test by which to deter ine the e7istence of negligence in a particular case which ay be stated as follows@ Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the sa e situationH 3f not, then he is guilty of negligence. $he law here in effect adopts the standard supposed to be supplied by the i aginary conduct of the discreet paterfamilias of the #o an law. $he e7istence of negligence in a given case is not deter ined by reference to the personal Cudg ent of the actor in the situation before hi . $he law considers what would be rec2less, bla eworthy, or negligent in the an of ordinary intelligence and prudence and deter ines liability by that. Applying the above test, it appears that the ban20s teller, 1s. A>ucena 1abayad, was negligent in validating, officially sta ping and signing all the deposit slips prepared and presented by 1s. :abut, despite the glaring fact that the duplicate copy was not co pletely acco plished contrary to the self8i posed procedure of the ban2 with respect to the proper validation of deposit slips, original or duplicate, as testified to by 1s. 1abayad herself, thus@

I@ !ow, as teller of -C3&, -asig &ranch, will you please tell us 1rs. 1abayad your i portant duties and functionsH A@ 3 accept current and savings deposits fro depositors and encash ents. I@ !ow in the handling of current account deposits of ban2 clients, could you tell us the procedure you followH A@ The client or depositor or the authorized representative prepares a deposit slip by filling up the deposit slip with the name, the account number, the date, the cash breakdown, if it is deposited for cash, and the check number, the amount and then he signs the deposit slip. I@ !ow, how any deposit slips do you nor ally reEuire in acco plishing current account deposit, 1rs. 1abayadH A@ The bank requires only one copy of the deposit although some of our clients prepare the deposit slip in duplicate . I@ !ow in acco plishing current account deposits fro your clients, what do you issue to the depositor to evidence the deposit adeH A@ ?e issue or we give to the clients the depositor0s stub as a receipt of the deposit. I@ And who prepares the deposit slipH A@ $he depositor representative sirH or the authori>ed

I@ ?here does the depositor0s stub co es )sic, fro 1rs. 1abayad, is it with the deposit slipH

A@ $he depositor0s stub is connected with the deposit slip or the ban20s copy. 3n a deposit slip, the upper portion is the depositor0s stub and the lower portion is the ban20s copy, and you can detach the ban20s copy fro the depositor0s stub by tearing it sir. I@ !ow what do you do upon present ent of the deposit slip by the depositor or the depositor0s authori>ed representativeH A@ We see to it that the deposit slip 9 is properly accomplished and then we count the money and then we tally it with the deposit slip sir. I@ ow is the depositor!s stub which you issued to your clients validated" A@ #es, sir.
14

!egligence here lies not only on the part of 1s. 1abayad but also on the part of the ban2 itself in its lac2adaisical selection and supervision of 1s. 1abayad. $his was e7e plified in the testi ony of 1r. #o eo &onifacio, then 1anager of the -asig &ranch of the petitioner ban2 and now its Lice8-resident, to the effect that, while he ordered the investigation of the incident, he never ca e to 2now that blan2 deposit slips were validated in total disregard of the ban20s validation procedures, viz@ I@ Did he ever tell you that one of your cashiers affi7ed the sta p ar2 of the ban2 on the deposit slips and they validated the sa e with the achine, the fact that those deposit slips were unfilled up, is there any report si ilar to thatH A@ !o, it was not the cashier but the teller. I@ $he teller validated the blan2 deposit slipH A@ !o it was not reported. I@ #ou did not know that any one in the bank tellers or cashiers validated the blank deposit slipH A@ $ am not aware of that. I@ $t is only now that you are aware of thatH A@ #es, sir. -rescinding fro observed@
11

JB phasis oursK

Clearly, 1s. 1abayad failed to observe this very i portant procedure. $he fact that the duplicate slip was not co pulsorily reEuired by the ban2 in accepting deposits should not relieve the petitioner ban2 of responsibility. $he odd circu stance alone that such duplicate copy lac2ed one vital infor ation G that of the na e of the account holder G should have already put 1s. 1abayad on guard. #ather than readily validating the inco plete duplicate copy, she should have proceeded ore cautiously by being ore probing as to the true reason why the na e of the account holder in the duplicate slip was left blan2 while that in the original was filled up. <he should not have been so naive in accepting hoo2, line and sin2er the too shallow e7cuse of 1s. 3rene :abut to the effect that since the duplicate copy was only for her personal record, she would si ply fill up the blan2 space later on. 11 A /reasonable an of ordinary prudence/ 12 would not have given credence to such e7planation and would have insisted that the space left blan2 be filled up as a condition for validation. ;nfortunately, this was not how ban2 teller 1abayad proceeded thus resulting in huge losses to the private respondent.

the above, public respondent Court of Appeals aptly

777 777 777 3t was in fact only when he testified in this case in February, 1985, or after the lapse of ore than seven )., years counted fro the period when the funds in Euestion were deposited in plaintiff0s accounts )1ay,

19." to %uly, 19.*, that ban2 anager &onifacio ad ittedly beca e aware of the practice of his teller 1abayad of validating blan2 deposit slips. ;ndoubtedly, this is gross, wanton, and ine7cusable negligence in the appellant ban20s supervision of its e ployees. 14 3t was this negligence of 1s. A>ucena 1abayad, coupled by the negligence of the petitioner ban2 in the selection and supervision of its ban2 teller, which was the pro7i ate cause of the loss suffered by the private respondent, and not the latter0s act of entrusting cash to a dishonest e ployee, as insisted by the petitioners. -ro7i ate cause is deter ined on the facts of each case upon i7ed considerations of logic, co on sense, policy and precedent. 12 Lda. 16 de &ataclan v. 1edina, reiterated in the case of %ank of the Phil. $slands v. &ourt of 'ppeals, 17 defines pro7i ate cause as /that cause, which, in natural and continuous seEuence, unbro2en by any efficient intervening cause, produces the inCury, and without which the result would not have occurred. . . ./ 3n this case, absent the act of 1s. 1abayad in negligently validating the inco plete duplicate copy of the deposit slip, 1s. 3rene :abut would not have the facility with which to perpetrate her fraudulent sche e with i punity. Apropos, once again, is the pronounce ent ade by the respondent appellate court, to wit@ . . . . Bven if :abut had the fraudulent intention to isappropriate the funds entrusted to her by plaintiff, she would not have been able to deposit those funds in her husband0s current account, and then a2e plaintiff believe that it was in the latter0s accounts wherein she had deposited the , had it not been for ban2 teller 1abayad0s aforesaid gross and rec2less negligence. $he latter0s negligence was thus the pro7i ate, i ediate and efficient cause that brought about the loss clai ed by plaintiff in this case, and the failure of plaintiff to discover the sa e soon enough by failing to scrutini>e the onthly state ents of account being sent to it by appellant ban2 could not have prevented the fraud and isappropriation which 3rene :abut had already co pleted when she deposited plaintiff0s oney to the account of her husband instead of to the latter0s accounts. 13 Further ore, under the doctrine of /last clear chance/ )also referred to, at ti es as /supervening negligence/ or as /discovered peril/,,

petitioner ban2 was indeed the culpable party. $his doctrine, in essence, states that where both parties are negligent, but the negligent act of one is appreciably later in ti e than that of the other, or when it is i possible to deter ine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the i pending har and failed to do so is chargeable with the conseEuences thereof. 19 <tated differently, the rule would also ean that an antecedent negligence of a person does not preclude the recovery of da ages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the i pending har by the e7ercise of due diligence. 24 Aere, assu ing that private respondent #1C was negligent in entrusting cash to a dishonest e ployee, thus providing the latter with the opportunity to defraud the co pany, as advanced by the petitioner, yet it cannot be denied that the petitioner ban2, thru its teller, had the last clear opportunity to avert the inCury incurred by its client, si ply by faithfully observing their self8i posed validation procedure. At this Cuncture, it is worth to discuss the degree of diligence ought to be e7ercised by ban2s in dealing with their clients. $he !ew Civil Code provides@ Art. 11.5. $he fault or negligence of the obligor consists in the o ission of that diligence which is reEuired by the nature of the obligation and corresponds with the circu stances of the persons, of the ti e and of the place. ?hen negligence shows bad faith, the provisions of articles 11.1 and 22+1, paragraph 2, shall apply. 3f the law or contract does not state the diligence which is to be observed in the perfor ance, that which is e7pected of a good father of a family shall be reEuired. )11+6a, 3n the case of ban2s, however, the degree of diligence reEuired is ore than that of a good father of a family. Considering the fiduciary nature of their relationship with their depositors, ban2s are duty bound to treat the accounts of their clients with the highest degree of care. 21 As elucidated in Sime( $nternational )*anila+, $nc. v. &ourt of 'ppeals, 22 in every case, the depositor e7pects the ban2 to treat his account with the ut ost fidelity, whether such account consists only

of a few hundred pesos or of illions. $he ban2 ust record every single transaction accurately, down to the last centavo, and as pro ptly as possible. $his has to be done if the account is to reflect at any given ti e the a ount of oney the depositor can dispose as he sees fit, confident that the ban2 will deliver it as and to who ever he directs. A blunder on the part of the ban2, such as the failure to duly credit hi his deposits as soon as they are ade, can cause the depositor not a little e barrass ent if not financial loss and perhaps even civil and cri inal litigation. $he point is that as a business affected with public interest and because of the nature of its functions, the ban2 is under obligation to treat the accounts of its depositors with eticulous care, always having in ind the fiduciary nature of their relationship. 3n the case before us, it is apparent that the petitioner ban2 was re iss in that duty and violated that relationship. -etitioners nevertheless aver that the failure of respondent #1C to cross8chec2 the ban20s state ents of account with its own records during the entire period of ore than one )1, year is the pro7i ate cause of the co ission of subseEuent frauds and isappropriation co itted by 1s. 3rene :abut. ?e do not agree. ?hile it is true that had private respondent chec2ed the onthly state ents of account sent by the petitioner ban2 to #1C, the latter would have discovered the loss early on, such cannot be used by the petitioners to escape liability. $his o ission on the part of the private respondent does not change the fact that were it not for the wanton and rec2less negligence of the petitioners0 e ployee in validating the inco plete duplicate deposit slips presented by 1s. 3rene :abut, the loss would not have occurred. Considering, however, that the fraud was co itted in a span of ore than one )1, year covering various deposits, co on hu an e7perience dictates that the sa e would not have been possible without any for of collusion between 1s. :abut and ban2 teller 1abayad. 1s. 1abayad was negligent in the perfor ance of her duties as ban2 teller nonetheless. $hus, the petitioners are entitled to clai rei burse ent fro her for whatever they shall be ordered to pay in this case. $he foregoing notwithstanding, it cannot be denied that, indeed, private respondent was li2ewise negligent in not chec2ing its onthly state ents of account. Aad it done so, the co pany would have been alerted to the series of frauds being co itted against #1C by its secretary. $he da age would definitely not have ballooned to

such an a ount if only #1C, particularly #o eo 'ipana, had e7ercised even a little vigilance in their financial affairs. $his o ission by #1C a ounts to contributory negligence which shall itigate the da ages that ay be awarded to the private respondent 21 under Article 21.9 of the !ew Civil Code, to wit@ . . . ?hen the plaintiff0s own negligence was the i ediate and pro7i ate cause of his inCury, he cannot recover da ages. &ut if his negligence was only contributory, the i ediate and pro7i ate cause of the inCury being the defendant0s lac2 of due care, the plaintiff ay recover da ages, but the courts shall itigate the da ages to be awarded. 3n view of this, we believe that the de ands of substantial Custice are satisfied by allocating the da age on a *+86+ ratio. $hus, 6+F of the da age awarded by the respondent appellate court, e7cept the award of -2",+++.++ attorney0s fees, shall be borne by private respondent #1C9 only the balance of *+F needs to be paid by the petitioners. $he award of attorney0s fees shall be borne e7clusively by the petitioners. ?AB#BF=#B, the decision of the respondent Court of Appeals is odified by reducing the a ount of actual da ages private respondent is entitled to by 6+F. -etitioners ay recover fro 1s. A>ucena 1abayad the a ount they would pay the private respondent. -rivate respondent shall have recourse against 1s. 3rene :abut. 3n all other respects, the appellate court0s decision is AFF3#1BD. -roportionate costs. <= =#DB#BD. %ellosillo, ,itug and -apunan, ../, concur/

&",ara)" O,-n-on!

PA'ILLA, J., dissenting@ 3 regret that 3 cannot Coin the aCority in ruling that the pro7i ate cause of the da age suffered by #o el0s 1ar2eting Corporation )#1C, is ainly /the wanton and rec2less negligence of the petitioner0s e ployee in validating the inco plete duplicate deposit slips presented by 1s. 3rene :abut/ )Decision, p. 1",. 1oreover, 3 find it difficult to agree with the ruling that /petitioners are entitled to clai rei burse ent fro her )the ban2 teller, for whatever they shall be ordered to pay in this case./ 3t see s that an innocent ban2 teller is being unduly burdened with what should fall on 1s. 3rene :abut, #1C0s own e ployee, who should have been charged with estafa or estafa through falsification of private docu ent. 3nterestingly, the records are silent on whether #1C had ever filed any cri inal case against 1s. 3rene :abut, aside fro the fact that she does not appear to have been i pleaded even as a party defendant in any civil case for da ages. ?hy is #1C insulating 1s. 3rene :abut fro liability when in fact she orchestrated the entire fraud on #1C, her e ployerH $o set the record straight, it is not co pletely accurate to state that fro " 1ay 19." to 1* %uly 19.*, 1iss 3rene :abut had transacted with -C3& )then -&C, through only one teller in the person of A>ucena 1abayad. 3n fact, when #1C filed a co plaint for estafa before the =ffice of the -rovincial Fiscal of #i>al, it indicted all the tellers of -C3& in the branch who were accused of conspiracy to defraud #1C of its current account deposits. )<ee Anne7 &, 0ollo p. 22 and 6.,. Bven private respondent #1C, in its Co ent, aintains that /when the petitioner0s tellers/ allowed 3rene :abut to carry out her modus operandi undetected over a period of one year, / their negligence cannot but be gross./ )0ollo, p. ""9 see also 0ollo pp. "8 to "9,. $his rules out the possibility that there ay have been so e for of collusion between :abut and ban2 teller 1abayad. 1abayad was Cust unfortunate that private respondent0s docu entary evidence showed that she was the attending teller in the bul2 of :abut0s transactions with the ban2. 4oing bac2 to :abut0s odus operandi, it is not disputed that each ti e :abut would transact business with -&C0s tellers, she would acco plish two )2, copies of the current account deposit slip. -&C0s deposit slip, as issued in 19.", had two parts. $he upper part was called the depositor0s stub and the lower part was called the ban2

copy. &oth parts were detachable fro each other. $he deposit slip was prepared and signed by the depositor or his representative, who indicated therein the current account nu ber to which the deposit was to be credited, the na e of the depositor or current account holder, the date of the deposit, and the a ount of the deposit either in cash or in chec2s. )0ollo, p. 15., <ince :abut deposited oney in cash, the usual ban2 procedure then was for the teller to count whether the cash deposit tallied with the a ount written down by the depositor in the deposit slip. 3f it did, then the teller proceeded to verify whether the current account nu ber atched with the current account na e as written in the deposit slip. 3n the earlier days before the age of full co puteri>ation, a ban2 nor ally aintained a ledger which served as a repository of accounts to which debits and credits resulting fro transactions with the ban2 were posted fro boo2s of original entry. $hus, it was only after the transaction was posted in the ledger that the teller proceeded to achine validate the deposit slip and then affi7 his signature or initial to serve as proof of the co pleted transaction. 3t should be noted that the teller validated the depositor0s stub in the upper portion and the ban2 copy on the lower portion on both the original and duplicate copies of the deposit slips presented by :abut. $he teller, however, detached the validated depositor0s stub on the original deposit slip and allowed :abut to retain the whole validated duplicate deposit slip that bore the sa e account nu ber as the original deposit slip, but with the account na e purposely left blan2 by :abut, on the assu ption that it would serve no other purpose but for a personal record to co ple ent the original validated depositor0s stub. $hus, when :abut wrote the na e of #1C on the blan2 account na e on the validated duplicate copy of the deposit slip, ta pered with its account nu ber, and superi posed #1C0s account nu ber, said act only served to cover8up the loss already caused by her to #1C, or after the deposit slip was validated by the teller in favor of :abut0s husband. <tated otherwise, when there is a clear evidence of ta pering with any of the aterial entries in a deposit slip, the genuineness and due e7ecution of the docu ent beco e an issue in resolving whether or not the transaction had been fair and regular and whether the ordinary course of business had been followed by the ban2.

3t is logical, therefore, to conclude that the legal or pro7i ate cause of #1C0s loss was when :abut, its e ployee, deposited the oney of #1C in her husband0s na e and account nu ber instead of that of #1C, the rightful owner of such deposited funds. -recisely, it was the cri inal act of :abut that directly caused da age to #1C, her e ployer, not the validation of the deposit slip by the teller as the deposit slip was ade out by :abut in her husband0s na e and to his account. Bven if the ban2 teller had reEuired :abut to co pletely fill up the duplicate deposit slip, the original deposit slip would nonetheless still be validated under the account of :abut0s husband. 3n fine, the da age had already been done to #1C when :abut deposited its funds in the na e and account nu ber of her husband with petitioner ban2. 3t is then entirely left to speculation what :abut would have done afterwards G li2e ta pering both the account nu ber and the account na e on the stub of the original deposit slip and on the duplicate copy G in order to cover up her cri e. ;nder the circu stances in this case, there was no way for -&C0s ban2 tellers to reasonably foresee that :abut ight or would use the duplicate deposit slip to cover up her cri e. 3n the first place, the ban2 tellers were absolutely unaware that a cri e had already been consu ated by :abut when her transaction by her sole doing was posted in the ledger and validated by the teller in favor of her husband0s account even if the funds deposited belonged to #1C. $he teller)s, in this case were not in any way proven to be parties to the cri e either as accessories or acco plices. !or could it be said that the act of posting and validation was in itself a negligent act because the teller)s, si ply had no choice but to accept and validate the deposit as written in the original deposit slip under the account nu ber and na e of :abut0s husband. Aence, the act of validating the duplicate copy was not the pro7i ate cause of #1C0s inCury but erely a re ote cause which an independent cause or agency erely too2 advantage of to acco plish so ething which was not the probable or natural effect thereof. $hat e7plains why :abut still had to ta per with the account nu ber of the duplicate deposit slip after filling in the na e of #1C in the blan2 space. Co ing now to the doctrine of /last clear chance,/ it is y considered view that the doctrine assu es that the negligence of the defendant was subseEuent to the negligence of the plaintiff and the sa e ust be the pro7i ate cause of the inCury. 3n short, there ust be a last and a clear chance, not a last possible chance, to avoid the accident or inCury. 3t ust have been a chance as would have enabled a

reasonably prudent an in li2e position to have acted effectively to avoid the inCury and the resulting da age to hi self. 3n the case at bar, the ban2 was not re iss in its duty of sending onthly ban2 state ents to private respondent #1C so that any error or discrepancy in the entries therein could be brought to the ban20s attention at the earliest opportunity. -rivate respondent failed to e7a ine these ban2 state ents not because it was prevented by so e cause in not doing so, but because it was purposely negligent as it ad itted that it does not nor ally chec2 ban2 state ents given by ban2s. 3t was private respondent who had the last and clear chance to prevent any further isappropriation by :abut had it only reviewed the status of its current accounts on the ban2 state ents sent to it onthly or regularly. <ince a si>able a ount of cash was entrusted to :abut, private respondent should, at least, have ta2en ordinary care of its concerns, as what the law presu es. 3ts negligence, therefore, is not contributory but the i ediate and pro7i ate cause of its inCury. 3 vote to grant the petition.

&",ara)" O,-n-on! PA'ILLA, J., dissenting@ 3 regret that 3 cannot Coin the aCority in ruling that the pro7i ate cause of the da age suffered by #o el0s 1ar2eting Corporation )#1C, is ainly /the wanton and rec2less negligence of the petitioner0s e ployee in validating the inco plete duplicate deposit slips presented by 1s. 3rene :abut/ )Decision, p. 1",. 1oreover, 3 find it difficult to agree with the ruling that /petitioners are entitled to clai rei burse ent fro her )the ban2 teller, for whatever they shall be ordered to pay in this case./ 3t see s that an innocent ban2 teller is being unduly burdened with what should fall on 1s. 3rene :abut, #1C0s own e ployee, who should have been charged with estafa or estafa through falsification of private docu ent. 3nterestingly, the records are silent on whether #1C had ever filed any cri inal case against 1s. 3rene :abut, aside fro the fact that she does not appear to have been i pleaded even as a party defendant in any civil case for da ages. ?hy is #1C

insulating 1s. 3rene :abut fro liability when in fact she orchestrated the entire fraud on #1C, her e ployerH $o set the record straight, it is not co pletely accurate to state that fro " 1ay 19." to 1* %uly 19.*, 1iss 3rene :abut had transacted with -C3& )then -&C, through only one teller in the person of A>ucena 1abayad. 3n fact, when #1C filed a co plaint for estafa before the =ffice of the -rovincial Fiscal of #i>al, it indicted all the tellers of -C3& in the branch who were accused of conspiracy to defraud #1C of its current account deposits. )<ee Anne7 &, 0ollo p. 22 and 6.,. Bven private respondent #1C, in its Co ent, aintains that /when the petitioner0s tellers/ allowed 3rene :abut to carry out her modus operandi undetected over a period of one year, / their negligence cannot but be gross./ )0ollo, p. ""9 see also 0ollo pp. "8 to "9,. $his rules out the possibility that there ay have been so e for of collusion between :abut and ban2 teller 1abayad. 1abayad was Cust unfortunate that private respondent0s docu entary evidence showed that she was the attending teller in the bul2 of :abut0s transactions with the ban2. 4oing bac2 to :abut0s odus operandi, it is not disputed that each ti e :abut would transact business with -&C0s tellers, she would acco plish two )2, copies of the current account deposit slip. -&C0s deposit slip, as issued in 19.", had two parts. $he upper part was called the depositor0s stub and the lower part was called the ban2 copy. &oth parts were detachable fro each other. $he deposit slip was prepared and signed by the depositor or his representative, who indicated therein the current account nu ber to which the deposit was to be credited, the na e of the depositor or current account holder, the date of the deposit, and the a ount of the deposit either in cash or in chec2s. )0ollo, p. 15., <ince :abut deposited oney in cash, the usual ban2 procedure then was for the teller to count whether the cash deposit tallied with the a ount written down by the depositor in the deposit slip. 3f it did, then the teller proceeded to verify whether the current account nu ber atched with the current account na e as written in the deposit slip. 3n the earlier days before the age of full co puteri>ation, a ban2 nor ally aintained a ledger which served as a repository of accounts to which debits and credits resulting fro transactions with the ban2 were posted fro boo2s of original entry. $hus, it was only after the transaction was posted in the ledger that the teller

proceeded to achine validate the deposit slip and then affi7 his signature or initial to serve as proof of the co pleted transaction. 3t should be noted that the teller validated the depositor0s stub in the upper portion and the ban2 copy on the lower portion on both the original and duplicate copies of the deposit slips presented by :abut. $he teller, however, detached the validated depositor0s stub on the original deposit slip and allowed :abut to retain the whole validated duplicate deposit slip that bore the sa e account nu ber as the original deposit slip, but with the account na e purposely left blan2 by :abut, on the assu ption that it would serve no other purpose but for a personal record to co ple ent the original validated depositor0s stub. $hus, when :abut wrote the na e of #1C on the blan2 account na e on the validated duplicate copy of the deposit slip, ta pered with its account nu ber, and superi posed #1C0s account nu ber, said act only served to cover8up the loss already caused by her to #1C, or after the deposit slip was validated by the teller in favor of :abut0s husband. <tated otherwise, when there is a clear evidence of ta pering with any of the aterial entries in a deposit slip, the genuineness and due e7ecution of the docu ent beco e an issue in resolving whether or not the transaction had been fair and regular and whether the ordinary course of business had been followed by the ban2. 3t is logical, therefore, to conclude that the legal or pro7i ate cause of #1C0s loss was when :abut, its e ployee, deposited the oney of #1C in her husband0s na e and account nu ber instead of that of #1C, the rightful owner of such deposited funds. -recisely, it was the cri inal act of :abut that directly caused da age to #1C, her e ployer, not the validation of the deposit slip by the teller as the deposit slip was ade out by :abut in her husband0s na e and to his account. Bven if the ban2 teller had reEuired :abut to co pletely fill up the duplicate deposit slip, the original deposit slip would nonetheless still be validated under the account of :abut0s husband. 3n fine, the da age had already been done to #1C when :abut deposited its funds in the na e and account nu ber of her husband with petitioner ban2. 3t is then entirely left to speculation what :abut would have done afterwards G li2e ta pering both the account nu ber and the account na e on the stub of the original deposit slip and on the duplicate copy G in order to cover up her cri e.

;nder the circu stances in this case, there was no way for -&C0s ban2 tellers to reasonably foresee that :abut ight or would use the duplicate deposit slip to cover up her cri e. 3n the first place, the ban2 tellers were absolutely unaware that a cri e had already been consu ated by :abut when her transaction by her sole doing was posted in the ledger and validated by the teller in favor of her husband0s account even if the funds deposited belonged to #1C. $he teller)s, in this case were not in any way proven to be parties to the cri e either as accessories or acco plices. !or could it be said that the act of posting and validation was in itself a negligent act because the teller)s, si ply had no choice but to accept and validate the deposit as written in the original deposit slip under the account nu ber and na e of :abut0s husband. Aence, the act of validating the duplicate copy was not the pro7i ate cause of #1C0s inCury but erely a re ote cause which an independent cause or agency erely too2 advantage of to acco plish so ething which was not the probable or natural effect thereof. $hat e7plains why :abut still had to ta per with the account nu ber of the duplicate deposit slip after filling in the na e of #1C in the blan2 space. Co ing now to the doctrine of /last clear chance,/ it is y considered view that the doctrine assu es that the negligence of the defendant was subseEuent to the negligence of the plaintiff and the sa e ust be the pro7i ate cause of the inCury. 3n short, there ust be a last and a clear chance, not a last possible chance, to avoid the accident or inCury. 3t ust have been a chance as would have enabled a reasonably prudent an in li2e position to have acted effectively to avoid the inCury and the resulting da age to hi self. 3n the case at bar, the ban2 was not re iss in its duty of sending onthly ban2 state ents to private respondent #1C so that any error or discrepancy in the entries therein could be brought to the ban20s attention at the earliest opportunity. -rivate respondent failed to e7a ine these ban2 state ents not because it was prevented by so e cause in not doing so, but because it was purposely negligent as it ad itted that it does not nor ally chec2 ban2 state ents given by ban2s. 3t was private respondent who had the last and clear chance to prevent any further isappropriation by :abut had it only reviewed the status of its current accounts on the ban2 state ents sent to it onthly or regularly. <ince a si>able a ount of cash was entrusted to :abut, private respondent should, at least, have ta2en ordinary care of its concerns, as what the law presu es. 3ts negligence,

therefore, is not contributory but the i of its inCury. 3 vote to grant the petition. G.R. No!. 141442542 Ma$ 21, 1991

ediate and pro7i ate cause

NA%IONAL PO6ER CORPORA%ION, E% AL., petitioners, vs. %HE CO(R% OF APPEAL&, GA('ENCIO C. RA7O, E% AL., respondents. The Solicitor 1eneral for plaintiff-appellee/ Ponciano 1/ 2ernandez for private respondents/

'A8I'E, 0R., J.: $his is a petition for review on certiorari under #ule 6" of the #evised #ules of Court urging this Court to set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.84.#. CL !os. 2.29+895 1 which reversed the Decision of &ranch " of the then Court of First 3nstance )now #egional $rial Court, of &ulacan, and held petitioners !ational -ower Corporation )!-C, and &enCa in Chave> Cointly and severally liable to the private respondents for actual and oral da ages, litigation e7penses and attorney0s fees. $his present controversy traces its beginnings to four )6, separate co plaints 2 for da ages filed against the !-C and &enCa in Chave> before the trial court. $he plaintiffs therein, now private respondents, sought to recover actual and other da ages for the loss of lives and the destruction to property caused by the inundation of the town of !or>agaray, &ulacan on 2*82. =ctober 19.8. $he flooding was purportedly caused by the negligent release by the defendants of water through the spillways of the Angat Da )Aydroelectric -lant,. 3n said co plaints, the plaintiffs alleged, inter alia, that@ 1, defendant !-C operated and aintained a ulti8purpose hydroelectric plant in the Angat #iver at Ailltop, !or>agaray, &ulacan9 2, defendant &enCa in Chave> was the plant supervisor at the ti e of the incident in Euestion9 5, despite the defendants0 2nowledge, as early as 26 =ctober 19.8, of the i pending entry of typhoon /Mading,/ they failed to e7ercise due diligence in onitoring the water level at the da 9 6, when the said water level went beyond the a7i u

allowable li it at the height of the typhoon, the defendants suddenly, negligently and rec2lessly opened three )5, of the da 0s spillways, thereby releasing a large a ount of water which inundated the ban2s of the Angat #iver9 and ", as a conseEuence, e bers of the household of the plaintiffs, together with their ani als, drowned, and their properties were washed away in the evening of 2* =ctober and the early hours of 2. =ctober 19.8. 1 3n their Answers, the defendants, now petitioners, alleged that@ 1, the !-C e7ercised due care, diligence and prudence in the operation and aintenance of the hydroelectric plant9 2, the !-C e7ercised the diligence of a good father in the selection of its e ployees9 5, written notices were sent to the different unicipalities of &ulacan warning the residents therein about the i pending release of a large volu e of water with the onset of typhoon /Mading/ and advise the to ta2e the necessary precautions9 6, the water released during the typhoon was needed to prevent the collapse of the da and avoid greater da age to people and property9 ", in spite of the precautions underta2en and the diligence e7ercised, they could still not contain or control the flood that resulted and9 *, the da ages incurred by the private respondents were caused by a fortuitous event or force ma3eure and are in the nature and character of damnum absque in3uria. &y way of special affir ative defense, the defendants averred that the !-C cannot be sued because it perfor s a purely govern ental function. 4 ;pon otion of the defendants, a preli inary hearing on the special defense was conducted. As a result thereof, the trial court dis issed the co plaints as against the !-C on the ground that the provision of its charter allowing it to sue and be sued does not conte plate actions based on tort. $he parties do not, however, dispute the fact that this Court overruled the trial court and ordered the reinstate ent of the co plaints as against the !-C. 2 &eing closely interrelated, the cases were consolidated and trial thereafter ensued. $he lower court rendered its decision on 5+ April 199+ dis issing the co plaints /for lac2 of sufficient and credible evidence./ 6 ConseEuently, the private respondents seasonably appealed therefro to the respondent Court which then doc2eted the cases as CA84.#. CL !os. 2.29+895. 3n its Coint decision pro ulgated on 19 August 1991, the Court of Appeals reversed the appealed decision and awarded da ages in

favor of the private respondents. $he dispositive portion of the decision reads@ C=!F=#1A&': $= $AB F=#B4=3!4, the Coint decision appealed fro is hereby #BLB#<BD and <B$ A<3DB, and a new one is hereby rendered@ 1. 3n Civil Case !o. <189"+, ordering defendants8 appellees to pay, Cointly and severally, plaintiffs8 appellants, with legal interest fro the date when this decision shall beco e final and e7ecutory, the following@ A. Actual da ages, to wit@ 1, 4audencio C. #ayo, $wo Aundred $hirty =ne $housand $wo Aundred <i7ty -esos )-251,2*+.++,9 2, &ienvenido -. -ascual, $wo Aundred Four $housand Five Aundred -esos )-2+6."++.++,9 5, $o as 1anuel, =ne Aundred Fifty Five $housand -esos )-1"",+++.++,9 6, -edro C. &artolo e, =ne Aundred Forty <even $housand -esos )-16.,+++.++,9. ", &ernardino Cru>, =ne Aundred Forty $hree $housand Five Aundred Fifty $wo -esos and Fifty Centavos )-165,""2."+,9 *, %ose -alad, Fifty <even $housand Five Aundred -esos )-".,"++.++,9 ., 1ariano <. Cru>, Forty $housand -esos )-6+,+++.++,9 8, 'ucio FaCardo, $wenty nine $housand Bighty -esos )-29,+8+.++,9 and &. 'itigation )-1+,+++.++,9 e7penses of $en $housand -esos

2. 3n Civil case !o. <189"1, ordering defendants8 appellees to pay Cointly and severally, plaintiff8 appellant, with legal interest fro the date when this decision shall have beco e final and e7ecutory, the following @ A. Actual da ages of Five Aundred $wenty $housand -esos )-"2+,+++.++,9. &. 1oral da ages of five hundred $housand -esos )-"++,+++.++,9 and. C. 'itigation e7penses of $en $housand -esos )-1+,+++.++,9. 5. 3n Civil Case !o. <189"5, ordering defendants8 appellees to pay, Cointly and severally, with legal interest fro the date when this decision shall have beco e final and e7ecutory9 A. -laintiff8appellant Angel C. $orres@ 1, Actual da ages of =ne Aundred !inety !ine $housand =ne Aundred $wenty -esos )-199,12+.++,9 2, 1oral Da ages of =ne Aundred Fifty $housand -esos )-1"+,+++.++,9 &. -laintiff8appellant !orberto $orres@ 1, Actual da ages )-"+,+++.++,9 2, 1oral da ages )-"+,+++.++,9 of Fifty $housand -esos

D. -laintifsf8appellants litigation $housand -esos )-1+,+++.++,9

e7penses of $en

6. 3n Civil case !o. <18126., ordering defendants8 appellees to pay, Cointly and severally, with legal interest fro the date when this decision shall have beco e final and e7ecutory @ A. -laintiffs8appellants Clodualdo 'oren>o@ -resentacion 'oren>o and

1, Actual da ages of $wo Aundred Fifty <i7 $housand <i7 Aundred -esos )-2"*,*++.++,9 2, 1oral da ages of Fifty $housand -esos )-"+,+++.++,9 &. -laintiff8appellant Consolacion 4u> an @ 1, Actual da ages of =ne Aundred forty $housand -esos )-16+,+++.++,9 2, 1oral da ages of Fifty $housand -esos )-"+,+++.++,9 C. -laintiff8appellant Lirginia 4u> an @ 1, Actual da ages of $wo Aundred Five Aundred $wenty -esos )2+","2+.++,9 and D. -laintiffs8appellants litigation $housand -esos )1+,+++.++,. e7penses of $en

of

Fifty

$housand

-esos

C. -laintiff8appellant #odelio %oaEuin@ 1, Actual da ages of =ne Aundred $housand -esos )-1++,+++.++,9 2, 1oral da ages of =ne Aundred $housand -esos )-1++,+++.++,9 and

3n addition, in all the four )6, instant cases, ordering defendants8appellees to pay, Cointly and severally, plaintiffs8appellants attorney fees in an a ount eEuivalent to 1"F of the total a ount awarded. !o pronounce ent as to costs. 7 $he foregoing Cudg ent is based on the public respondent0s conclusion that the petitioners were guilty of@

. . . a patent gross and evident lac2 of foresight, i prudence and negligence . . . in the anage ent and operation of Angat Da . $he unholiness of the hour, the e7tent of the opening of the spillways, And the agnitude of the water released, are all but products of defendants8appellees0 headlessness, slovenliness, and carelessness. $he resulting flash flood and inundation of even areas )sic, one )1, 2ilo eter away fro the Angat #iver ban2 would have been avoided had defendants8appellees prepared the Angat Da by aintaining in the first place, a water elevation which would allow roo for the e7pected torrential rains. 3 $his conclusion, in turn, is anchored on its findings of fact, to wit@ As early as =ctober 21, 19.8, defendants8appellees 2new of the i pending onslaught of and i inent danger posed by typhoon /Mading/. For as alleged by defendants8appellees the selves, the co ing of said super typhoon was bannered by %ulletin Today, a newspaper of national circulation, on =ctober 2", 19.8, as /<uper Aowler to hit #.-./ $he ne7t day, =ctober 2*, 19.8, said typhoon once again erited a headline in said newspaper as /Mading0s &ig &low e7pected this afternoon/ )Appellee0s &rief, p. *,. Apart fro the newspapers, defendants8appellees learned of typhoon /Mading0 through radio announce ents )Civil Case !o. <189"+, $<!, &enCa in Chave>, Dece ber 6, 1986, pp. .89,. Defendants8appellees doubly 2new that the Angat Da can safely hold a nor al a7i u headwater elevation of 21. eters )Appellee0s brief, p. 129 Civil Case !o. <189"1, B7hibit /38*/9 Civil Case !o. <189"5, B7hibit /%8*/9 Civil Case !o. <18126., B7hibit /48*/,. :et, despite such 2nowledge, defendants8appellees aintained a reservoir water elevation even beyond its a7i u and safe level, thereby giving no sufficient allowance for the reservoir to contain the rain water that will inevitably be brought by the co ing typhoon. =n =ctober 26, 19.8, before typhoon /Mading/ entered the -hilippine area of responsibility, water elevation ranged fro 21..*1 to 21.."5, with very little opening

of the spillways, ranging fro 1N2 to 1 eter. =n =ctober 2", 19.8, when typhoon /Mading/ entered the -hilippine area of responsibility, and public stor signal nu ber one was hoisted over &ulacan at 1+@6" a. ., later raised to nu ber two at 6@6" p. ., and then to nu ber three at 1+@6" p. ., water elevation ranged fro 21..6. to 21.."., with very little opening of the spillways, ranging fro 1N2 to 1 eter. =n =ctober 2*, 19.8, when public stor signal nu ber three re ained hoisted over &ulacan, the water elevation still re ained at its a7i u level of 21..++ to 218.++ with very little opening of the spillways ranging fro 1N2 to 2 eters, until at or about idnight, the spillways were suddenly opened at " eters, then increasing swiftly to 8, 1+, 12, 12.", 15, 15.", 16, 16." in the early orning hours of =ctober 2., 19.8, releasing water at the rate of 6,"++ cubic eters per second, ore or less. =n =ctober 2., 19.8, water elevation re ained at a range of 218.5+ to 21..+" )Civil Case !o. <189"+, B7hibits /D/ and series, /'/, /1/, /!/, and /=/ and B7hibits /5/ and /6/9 Civil Case !o. <189"1, B7hibits /A/ and /A81/9 Civil Case !o. <18 9"5, B7hibits /3/ and /381/9 Civil Case !o. <1 126., B7hibits /F/ and /F81/,. 777 777 777 Fro the ass of evidence e7tant in the record, ?e are convinced, and so hold that the flash flood on =ctober 2., 19.8, was caused not by rain waters )sic,, but by stored waters )sic, suddenly and si ultaneously released fro the Angat Da by defendants8appellees, particularly fro idnight of =ctober 2*, 19.8 up to the orning hours of =ctober 2., 19.8. 9 $he appellate court reCected the petitioners0 defense that they had sent /early warning written notices/ to the towns of !or>agaray, Angat, &ustos, -laridel, &aliwag and Calu pit dated 26 =ctober 19.8 which read@ $= A'' C=!CB#! )sic,@ -lease be infor ed that at present our reservoir )da , is full and that we have been releasing water inter ittently for the past several days.

?ith the co ing of typhoon /#ita/ )Mading, we e7pect to release greater )sic, volu e of water, if it pass ) sic, over our place. 3n view of this 2indly advise people residing along Angat #iver to 2eep alert and stay in safe places.

denied by the public respondent in its #esolution of 2. Dece ber 1991. 14 -etitioners thus filed the instant petition on 21 February 1992.

After the Co ent to the petition was filed by the private respondents and the #eply thereto was filed by the petitioners, ?e &B!%A13! gave due '. courseCAALBO to the petition on 1. %une 1992 and directed the -ower parties -lant <uperintendent to sub it their respective 1e oranda, 12 which they subseEuently co plied with. $he petitioners raised the following errors allegedly co the respondent Court @ itted by

because@ <aid notice was delivered to the /towns of &ulacan/ on =ctober 2*, 19.8 by defendants8appellees driver, 'eonardo !epo uceno )Civil Case !o. <189"+, $<!, &enCa in Chave>, Dece ber 6, 1986, pp. .811 and $<!, 'eonardo !epo uceno, 1arch ., 198", pp. 1+8 12,. <aid notice is ineffectual, insufficient and inadeEuate for purposes of the opening of the spillway gates at idnight of =ctober 2*, 19.8 and on =ctober 2., 19.8. 3t did not prepare or warn the persons so served, for the volu e of water to be released, which turned out to be of such agnitude, that residents near or along the Angat #iver, even those one )1, 2ilo eter away, should have been advised to evacuate. <aid notice, addressed /$= A'' C=!CB#! )sic,,/ was delivered to a police an )Civil Case !o. <189"+, pp. 1+812 and B7hibit /28A/, for the unicipality of !or>agaray. <aid notice was not thus addressed and delivered to the proper and responsible officials who could have disse inated the warning to the residents directly affected. As for the unicipality of <ta. 1aria, where plaintiffs8appellants in Civil Case !o. <18126* reside, said notice does not appear to have been served. 11 #elying on .uan 4/ akpil 5 Sons vs/ &ourt of 'ppeals , 12 public respondent reCected the petitioners0 plea that the incident in Euestion was caused by force ma3eure and that they are, therefore, not liable to the private respondents for any 2ind of da age G such da age being in the nature of damnum absque in3uria. $he otion for reconsideration filed by the petitioners, as well as the otion to odify Cudg ent filed by the public respondents, 11 were

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hese sa e errors were raised by herein petitioners in 4.#. !o. 9*61+, entitled ational Power &orporation, et al/, vs/ &ourt of 'ppeals, et al/, 17 which this Court decided on 5 %uly 1992. $he said case involved the very sa e incident subCect of the instant petition. 3n no uncertain ter s, ?e declared therein that the pro7i ate cause of the loss and da age sustained by the plaintiffs therein G who were si ilarly situated as the private respondents herein G was the negligence of the petitioners, and that the 26 =ctober 19.8 /early warning notice/ supposedly sent to the affected unicipalities, the sa e notice involved in the case at bar, was insufficient. ?e thus cannot now rule otherwise not only because such a decision binds this Court with respect to the cause of the inundation of the town of !or>agaray, &ulacan on 2*82. =ctober 19.8 which resulted in the loss of lives and the destruction to property in both cases, but also

because of the fact that on the basis of its eticulous analysis and evaluation of the evidence adduced by the parties in the cases subCect of CA84.#. CL !os. 2.29+895, public respondent found as conclusively established that indeed, the petitioners were guilty of /patent gross and evident lac2 of foresight, i prudence and negligence in the anage ent and operation of Angat Da ,/ and that /the e7tent of the opening of the spillways, and the agnitude of the water released, are all but products of defendants8appellees0 headlessness, slovenliness, and carelessness./ 13 3ts findings and conclusions are biding upon ;s, there being no showing of the e7istence of any of the e7ceptions to the general rule that findings of fact of the Court of Appeals are conclusive upon this Court. 19 Blsewise stated, the challenged decision can stand on its own erits independently of =ur decision in 4.#. !o. 9*61+. 3n any event, ?e reiterate here in =ur pronounce ent in the latter case that .uan 4/ akpil 5 Sons vs/ &ourt of 'ppeals 24 is still good law as far as the concurrent liability of an obligor in the case of force ma3eure is concerned. 3n the akpil case, ?e held@ $o e7e pt the obligor fro liability under Article 11.6 of the Civil Code, for a breach of an obligation due to an /act of 4od,/ the following ust concur@ )a, the cause of the breach of the obligation ust be independent of the will of the debtor9 )b, the event ust be either unforseeable or unavoidable9 )c, the event ust be such as to render it i possible for the debtor to fulfill his obligation in a oral anner9 and )d, the debtor ust be free fro any participation in, or aggravation of the inCury to the creditor. )LasEue> v. Court of Appeals, 158 <C#A ""59 Bstrada v. Consolacion, .1 <C#A 6259 Austria v. Court of Appeals, 59 <C#A "2.9 #epublic of the -hil. v. 'u>on <tevedoring Corp., 21 <C#A 2.99 'asa v. < ith, 6" -hil. *".,. $hus, if upon the happening of a fortuitous event or an act of 4od, there concurs a corresponding fraud, negligence, delay or violation or contravention in any anner of the tenor of the obligation as provided for in Article 11.+ of the Civil Code, which results in loss or da age, the obligor cannot escape liability. $he principle e bodied in the act of 4od doctrine strictly reEuires that the act ust be one occasioned e7clusively by the violence of nature and all hu an agencies are to be e7cluded fro creating or entering

into the cause of the ischief. ?hen the effect, the cause of which is to be considered, is found to be in part the result of the participation of an, whether it be fro active intervention or neglect, or failure to act, the whole occurrence is thereby hu ani>ed, as it were, and re oved fro the rules applicable to the acts of 4od. )1 Corpus %uris, pp. 11.6811.",. $hus it has been held that when the negligence of a person concurs with an act of 4od in producing a loss, such person is not e7e pt fro liability by showing that the i ediate cause of the da age was the act of 4od. $o be e7e pt fro liability for loss because of an act of 4od, he ust be free fro any previous negligence or isconduct by which that loss or da age ay have been occasioned. )Fish D Blective Co. v. -hil. 1otors, "" -hil. 1299 $uc2er v. 1ilan, 69 =.4. 65.99 'i pangco D <ons v. :angco <tea ship Co., 56 -hil. "96, *+69 'asa v. < ith, 6" -hil. *".,. 21 Accordingly, petitioners cannot be heard to invo2e the act of 4od or force ma3eure to escape liability for the loss or da age sustained by private respondents since they, the petitioners, were guilty of negligence. $he event then was not occasioned e7clusively by an act of 4od or force ma3eure9 a hu an factor G negligence or i prudence G had intervened. $he effect then of the force ma3eure in Euestion ay be dee ed to have, even if only partly, resulted fro the participation of an. $hus, the whole occurrence was thereby hu ani>ed, as it were, and re oved fro the laws applicable to acts of 4od. ?AB#BF=#B, for want of erit, the instant petition is hereby D3<13<<BD and the Consolidated Decision of the Court of Appeals in CA84.#. CL !os. 2.29+895 is AFF3#1BD, with costs against the petitioners. <= =#DB#BD. 4eliciano, %idin, 0omero and *elo, ../, concur/ G.R. No. 126139 09*$ 14, 1993 &O(%HEA&%ERN COLLEGE INC., petitioner, vs.

CO(R% OF APPEAL&, 0(ANI%A 'E 0E&(& 8'A. 'E 'IMAANO, EMERI%A 'IMAANO, REME'IO& 'IMAANO, CON&OLACION 'IMAANO an# MILAGRO& 'IMAANO, respondents.

other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to the roof bea s. 3t then reco ended that /to avoid any further loss and da age to lives, li bs and property of persons living in the vicinity,/ the fourth floor of subCect school building be declared as a /structural ha>ard./ 3n their Co plaint 6 before the #egional $rial Court of -asay City, &ranch 11., for da ages based on culpa aquiliana, private respondents alleged that the da age to their house rendered the sa e uninhabitable, forcing the to stay te porarily in others0 houses. And so they sought to recover fro petitioner -11.,11*.++, as actual da ages, -1,+++,+++.++, as oral da ages, -5++,+++.++, as e7e plary da ages and -1++,+++.++, for and as attorney0s fees9 plus costs. 3n its Answer, petitioner averred that subCect school building had withstood several devastating typhoons and other cala ities in the past, without its roofing or any portion thereof giving way9 that it has not been re iss in its responsibility to see to it that said school building, which houses school children, faculty e bers, and e ployees, is /in tip8top condition/9 and further ore, typhoon /<aling/ was /an act of 4od and therefore beyond hu an control/ such that petitioner cannot be answerable for the da ages wrought thereby, absent any negligence on its part. $he trial court, giving credence to the ocular inspection report to the effect that subCect school building had a /defective roofing structure,/ found that, while typhoon /<aling/ was acco panied by strong winds, the da age to private respondents0 houses /could have been avoided if the construction of the roof of Jpetitioner0sK building was not faulty./ $he dispositive portion of the lower court0s decision 7 reads, thus@ ?AB#BF=#B, in view of the foregoing, the Court renders Cudg ent )sic, in favor of the plaintiff )sic, and against the defendants, )sic, ordering the latter to pay Cointly and severally the for er as follows@ a, -11.,11*.++, as actual da ages, plus litigation e7penses9

P(RI&IMA, J.: -etition for review under #ule 6" of the #ules of Court see2ing to set aside the Decision 1 pro ulgated on %uly 51, 199*, and #esolution 2 dated <epte ber 12, 199* of the Court of Appeals 1 in CA84.#. !o. 61622, entitled /%uanita de %esus vda. de Di aano, et al. vs. <outheastern College, 3nc./, which reduced the oral da ages awarded below fro -1,+++,+++.++ to -2++,+++.++. 4 $he #esolution under attac2 denied petitioner0s otion for reconsideration. -rivate respondents are owners of a house at 52* College #oad, -asay City, while petitioner owns a four8storey school building along the sa e College #oad. =n =ctober 11, 1989, at about *@5+ in the orning, a powerful typhoon /<aling/ hit 1etro 1anila. &uffeted by very strong winds, the roof of petitioner0s building was partly ripped off and blown away, landing on and destroying portions of the roofing of private respondents0 house. After the typhoon had passed, an ocular inspection of the destroyed building was conducted by a tea of engineers headed by the city building official, Bngr. %esus '. #eyna. -ertinent aspects of the latter0s #eport 2 dated =ctober 18, 1989 stated, as follows@ ". =ne of the factors that ay have led to this cala itous event is the for ation of the building in the area and the general direction of the wind. <ituated in the peripheral lot is an al ost ;8shaped for ation of 68storey building. $hus, with the strong winds having a westerly direction, the general for ation of the building beco es a big funnel8li2e structure, the one situated along College #oad, receiving the heaviest i pact of the strong winds. Aence, there are portions of the roofing, those located on both ends of the building, which re ained intact after the stor . *. Another factor and perhaps the ost li2ely reason for the dislodging of the roofing structural trusses is the i proper anchorage of the said trusses to the roof bea s. $he 1N20 dia eter steel bars e bedded on the concrete roof bea s which serve as truss anchorage are not bolted nor nailed to the trusses. <till, there are

b, -1,+++,+++.++ as da ages9 c, -1++,+++.++ attorney0s fees9

oral

as

$AB $#3A' C=;#$ B##BD 3! =#DB#3!4 $AB 3<<;A!CB =F $AB ?#3$ =F B(BC;$3=! 3!<-3$B =F $AB -B#FBC$3=! =F <=;$ABA<$B#!0< A--BA' ?AB! $AB#B 3< != C=1-B''3!4 #BA<=! F=# $AB 3<<;A!CB $AB#B$=. As entioned earlier, respondent Court of Appeals affir ed with odification the trial court0s disposition by reducing the award of oral da ages fro -1,+++,+++.++ to -2++,+++.++. Aence, petitioner0s resort to this Court, raising for resolution the issues of@ 1. ?hether or not the award of actual da ages J sicK to respondent Di aanos on the basis of speculation or conCecture, without proof or receipts of actual da age, JsicK legally feasible or Custified. 2. ?hether or not the award of oral da ages to respondent Di aanos, with the latter having suffered, actual da age has legal basis. 5. ?hether or not respondent Di aanos who are no longer the owner of the property, subCect atter of the case, during its pendency, has the right to pursue their co plaint against petitioner when the case was already oot and acade ic by the sale of the property to third party. 6. ?hether or not the award of attorney0s fees when the case was already oot acade ic JsicK legally Custified. ". ?hether or not petitioner is liable for da age caused to others by typhoon /<aling/ being an act of 4od. *. ?hether or not the issuance of a writ of e7ecution pending appeal, e(-parte or without hearing, has support in law. $he pivot of inEuiry here, deter inative of the other issues, is whether the da age on the roof of the building of private respondents resulting fro the i pact of the falling portions of the school building0s roof ripped off by the strong winds of typhoon /<aling/, was, within legal conte plation, due to fortuitous eventH 3f so, petitioner cannot be held liable for the da ages suffered by the

d, Costs of the instant suit. $he clai for e7e plary da ages is denied for the reason that the defendants )sic, did in a wanton fraudulent, rec2less, oppressive or alevolent anner. 3n its appeal to the Court of Appeals, petitioner assigned as errors, that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
3

private respondents. $his conclusion finds support in Article 11.6 of Civil Code, which provides@ Art 11.6. B7cept in cases e7pressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation reEuires the assu ption of ris2, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. $he antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as /an event which ta2es place by accident and could not have been foreseen./ 9 Bscriche elaborates it as /an une7pected event or act of 4od which could neither be foreseen nor resisted./ 14 Civilist Arturo 1. $olentino adds that /JfKortuitous events ay be produced by two general causes@ )1, by nature, such as earthEua2es, stor s, floods, epide ics, fires, etc. and )2, by the act of an, such as an ar ed invasion, attac2 by bandits, govern ental prohibitions, robbery, etc./ 11 3n order that a fortuitous event ay e7e pt a person fro liability, it is necessary that he be free fro any previous negligence or isconduct by reason of which the loss ay have been occasioned. 12 An act of 4od cannot be invo2ed for the protection of a person who has been guilty of gross negligence in not trying to forestall its possible adverse conseEuences. ?hen a person0s negligence concurs with an act of 4od in producing da age or inCury to another, such person is not e7e pt fro liability by showing that the i ediate or pro7i ate cause of the da ages or inCury was a fortuitous event. ?hen the effect is found to be partly the result of the participation of an G whether it be fro active intervention, or neglect, or failure to act G the whole occurrence is hereby hu ani>ed, and re oved fro the rules applicable to acts of 4od. 11 3n the case under consideration, the lower court accorded full credence to the finding of the investigating tea that subCect school building0s roofing had /no sufficient anchorage to hold it in position especially when battered by strong winds./ &ased on such finding, the trial court i puted negligence to petitioner and adCudged it liable for da ages to private respondents. After a thorough study and evaluation of the evidence on record, this Court believes otherwise, notwithstanding the general rule that factual findings by the trail court, especially when affir ed by the appellate court, are binding and conclusive upon this Court. 14 After a careful scrutiny of the records and the pleadings sub itted by the

parties, we find e7ception to this rule and hold that the lower courts isappreciated the evidence proffered. $here is no Euestion that a typhoon or stor is a fortuitous event, a natural occurrence which ay be foreseen but is unavoidable despite any a ount of foresight, diligence or care. 12 3n order to be e7e pt fro liability arising fro any adverse conseEuence engendered thereby, there should have been no hu an participation a ounting to a negligent act. 16 3n other words9 the person see2ing e7oneration fro liability ust not be guilty of negligence. !egligence, as co only understood, is conduct which naturally or reasonably creates undue ris2 or har to others. 3t ay be the failure to observe that degree of care, precaution, and vigilance which the circu stances Custify de and, 17 or the o ission to do so ething which a prudent and reasonable an, guided by considerations which ordinarily regulate the conduct of hu an affairs, would do. 13 Fro these pre ises, we proceed to deter ine whether petitioner was negligent, such that if it were not, the da age caused to private respondents0 house could have been avoidedH At the outset, it bears e phasi>ing that a person clai ing da ages for the negligence of another has the burden of proving the e7istence of fault or negligence causative of his inCury or loss. $he facts constitutive of negligence ust be affir atively established by co petent evidence, 19 not erely by presu ptions and conclusions without basis in fact. -rivate respondents, in establishing the culpability of petitioner, erely relied on the afore entioned report sub itted by a tea which ade an ocular inspection of petitioner0s school building after the typhoon. As the ter i parts, an ocular inspection is one by eans of actual sight or viewing. 24 ?hat is visual to the eye through, is not always reflective of the real cause behind. For instance, one who hears a gunshot and then sees a wounded person, cannot always definitely conclude that a third person shot the victi . 3t could have been self8inflicted or caused accidentally by a stray bullet. $he relationship of cause and effect ust be clearly shown. 3n the present case, other than the said ocular inspection, no investigation was conducted to deter ine the real cause of the partial unroofing of petitioner0s school building. -rivate respondents did not even show that the plans, specifications and design of said school building were deficient and defective. !either did they prove any substantial deviation fro the approved plans and specifications. !or did they conclusively establish that the construction of such building was basically flawed. 21

=n the other hand, petitioner elicited fro one of the witnesses of private respondents, city building official %esus #eyna, that the original plans and design of petitioner0s school building were approved prior to its construction. Bngr. #eyna ad itted that it was a legal reEuire ent before the construction of any building to obtain a per it fro the city building official )city engineer, prior to the passage of the &uilding Act of 19..,. 3n li2e anner, after construction of the building, a certification ust be secured fro the sa e official attesting to the readiness for occupancy of the edifice. Aaving obtained both building per it and certificate of occupancy, these are, at the very least, prima facie evidence of the regular and proper construction of subCect school building. 22 Further ore, when part of its roof needed repairs of the da age inflicted by typhoon /<aling/, the sa e city official gave the go8signal for such repairs G without any deviation fro the original design G and subseEuently, authori>ed the use of the entire fourth floor of the sa e building. $hese only prove that subCect building suffers fro no structural defect, contrary to the report that its /;8shaped/ for was /structurally defective./ Aaving given his unEualified i pri atur, the city building official is presu ed to have properly perfor ed his duties 21 in connection therewith. 3n addition, petitioner presented its vice president for finance and ad inistration who testified that an annual aintenance inspection and repair of subCect school building were regularly underta2en. -etitioner was even willing to present its aintenance supervisor to attest to the e7tent of such regular inspection but private respondents agreed to dispense with his testi ony and si ply stipulated that it would be corroborative of the vice president0s narration. 1oreover, the city building official, who has been in the city govern ent service since 19.6, ad itted in open court that no co plaint regarding any defect on the sa e structure has ever been lodged before his office prior to the institution of the case at bench. 3t is a atter of Cudicial notice that typhoons are co on occurrences in this country. 3f subCect school building0s roofing was not fir ly anchored to its trusses, obviously, it could not have withstood long years and several typhoons even stronger than /<aling./ 3n light of the foregoing, we find no clear and convincing evidence to sustain the Cudg ent of the appellate court. ?e thus hold that petitioner has not been shown negligent or at fault regarding the construction and aintenance of its school building in Euestion and

that typhoon /<aling/ was the pro7i ate cause of the da age suffered by private respondents0 house. ?ith this disposition on the pivotal issue, private respondents0 clai for actual and oral da ages as well as attorney0s fees ust fail. 24 -etitioner cannot be ade to answer for a purely fortuitous event. 22 1ore so because no bad faith or willful act to cause da age was alleged and proven to warrant oral da ages. -rivate respondents failed to adduce adeEuate and co petent proof of the pecuniary loss they actually incurred. 26 3t is not enough that the da age be capable of proof but ust be actually proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for easuring whatever co pensatory da ages are borne. 27 -rivate respondents erely sub itted an esti ated a ount needed for the repair of the roof their subCect building. ?hat is ore, whether the /necessary repairs/ were caused =!': by petitioner0s alleged negligence in the aintenance of its school building, or included the ordinary wear and tear of the house itself, is an essential Euestion that re ains indeter inable. $he Court dee s unnecessary to resolve the other issues posed by petitioner. As regards the si7th issue, however, the writ of e7ecution issued on April 1, 1995 by the trial court is hereby nullified and set aside. -rivate respondents are ordered to rei burse any a ount or return to petitioner any property which they ay have received by virtue of the enforce ent of said writ. ?AB#BF=#B, the petition is 4#A!$BD and the challenged Decision is #BLB#<BD. $he co plaint of private respondents in Civil Case !o. .516 before the trial court a quo is ordered D3<13<<BD and the writ of e7ecution issued on April 1, 1995 in said case is <B$ A<3DB. Accordingly, private respondents are =#DB#BD to return to petitioner any a ount or property received by the by virtue of said writ. Costs against the private respondents. <= =#DB#BD. arvasa, &/./, 0omero and -apunan, ../, concur/

G.R. No. L521441 No:"; "r 6, 1939

%HE ILOCO& NOR%E ELEC%RIC COMPAN7, petitioner, vs. HONORABLE CO(R% OF APPEAL&, <F-r!) '-:-!-on= LILIAN 0(AN L(I&, 0ANE 0(AN 7ABE&, 8IRGINIA 0(AN CI', GLORIA 0(AN CARAG, an# P(RI&IMA 0(AN, respondents. 2erman :/ &oloma for petitioner/ 1licerio S/ 4errer for private respondents/

PARA&, J.: <ought to be reversed in this petition is the Decision P of the respondent Court of Appeals0 First Division, setting aside the Cudg ent of the then Court of First 3nstance )CF3, of 3locos !orte, with the following dispositive portion@ ?AB#BF=#B, the appealed Cudg ent is hereby set aside and another rendered in its stead whereby defendant is hereby sentenced to pay plaintiffs actual da ages of -5+,229.6"9 co pensatory da ages of -"+,+++.++9 e7e plary da ages of -1+,+++.++9 attorney0s fees of -5,+++.++9 plus the costs of suit in both instances. )p. 2. #ollo, &asically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the scenario fro which the disputed clai s originate. $he respondent Court of Appeals )CA, su ari>ed the evidence of the parties as follows@ Fro the evidence of plaintiffs it appears that in the evening of %une 28 until the early orning of %une 29, 19*. a strong typhoon by the code na e /4ening/ buffeted the province of 3locos !orte, bringing heavy rains and conseEuent flooding in its wa2e. &etween "@5+ and *@++ A.1. on %une 29, 19*., after the typhoon had abated and when the floodwaters were beginning to recede the deceased 3sabel 'ao %uan, fondly called !ana &elen, ventured out of the house of her son8in8 law, Antonio :abes, on !o. 19 4uerrero <treet, 'aoag City, and proceeded northward towards the direction of the Five <isters B poriu , of which she was the owner and proprietress, to loo2 after the erchandise therein

that ight have been da aged. ?ading in waist8deep flood on 4uerrero, the deceased was followed by Aida &ulong, a <alesgirl at the Five <isters 4rocery, also owned by the deceased, and by 'inda Alon>o Bstavillo, a tic2et seller at the :% Cine a, which was partly owned by the deceased. Aida and 'inda wal2ed side by side at a distance of between " and * eters behind the deceased, <uddenly, the deceased screa ed /Ay/ and Euic2ly san2 into the water. $he two girls atte pted to help, but fear dissuaded the fro doing so because on the spot where the deceased san2 they saw an electric wire dangling fro a post and oving in sna2e8li2e fashion in the water. ;pon their shouts for help, Brnesto dela Cru> ca e out of the house of Antonio :abes. Brnesto tried to go to the deceased, but at four eters away fro her he turned bac2 shouting that the water was grounded. Aida and 'inda prodded Brnesto to see2 help fro Antonio :abes at the :% Cine a building which was four or five bloc2s away. ?hen Antonio :abes was infor ed by Brnesto that his other8in law had been electrocuted, he acted i ediately. ?ith his wife %ane, together with Brnesto and one %oe #os, :abes passed by the City Aall of 'aoag to reEuest the police to as2 the people of defendant 3locos !orte Blectric Co pany or 3!B'C= to cut off the electric current. $hen the party waded to the house on 4uerrero <treet. $he floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in 4uerrero. :abes instructed his boys to fish for the body of the deceased. $he body was recovered about two eters fro an electric post. 3n another place, at about 6@++ A.1. on that fateful date, %une 29, 19*., Bngineer Antonio %uan, -ower -lant Bngineer of the !ational -ower Corporation at the 'aoag Diesel8Blectric -lant, noticed certain fluctuations in their electric eter which indicated such abnor alities as grounded or short8circuited lines. &etween *@++ and *@5+ A.1., he set out of the 'aoag !-C Co pound on an inspection. =n the way, he saw grounded and disconnected lines. Blectric lines were hanging fro the posts to the ground. <ince he could not see any 3!B'C= line an, he decided to go to the 3!B'C= =ffice at the 'ife $heatre on #i>al <treet by way of 4uerrero. As he turned right at the intersection

of 4uerrero and #i>al, he saw an electric wire about 5+ eters long strung across the street /and the other end was see ing to play with the current of the water./ )p. *6, $<!, =ct. 26, 19.2, Finding the =ffice of the 3!B'C= still closed, and seeing no line an therein, he returned to the !-C Co pound. At about 8@1+ A.1., Bngr. %uan went out of the co pound again on another inspection trip. Aaving learned of the death of 3sabel 'ao %uan, he passed by the house of the deceased at the corner of 4uerrero and 1.A. del -ilar streets to which the body had been ta2en. ;sing the resuscitator which was a standard eEuip ent in his Ceep and e ploying the s2ill he acEuired fro an in service training on resuscitation, he tried to revive the deceased. Ais efforts proved futile. 0igor mortis was setting in. =n the left pal of the deceased, Bngr. %uan noticed a hollow wound. -roceeding to the 3!B'C= =ffice, he et two line en on the way. Ae told the about the grounded lines of the 3!B'C= 3n the afternoon of the sa e day, he went on a third inspection trip preparatory to the restoration of power. $he dangling wire he saw on 4uerrero early in the orning of %une 29, 19*. was no longer there. 1any people ca e to the house at the corner of 4uerrero and 1.A. del -ilar after learning that the deceased had been electrocuted. A ong the sy pathi>ers was Dr. %ovencio Castro, 1unicipal Aealth =fficer of <arrat, 3locos !orte. ;pon the reEuest of the relatives of the deceased, Dr. Castro e7a ined the body at about 8@++ A.1. on %une 29, 19*.. $he s2in was grayish or, in edical parlance, cyanotic, which indicated death by electrocution. =n the left pal , the doctor found an /electrically charged wound/ )B7h. C8 1@ p. 1+1, $<!, !ov. 28, 19.2, or a first degree burn. About the base of the thu b on the left hand was a burned wound. )B7h. C82, pp. 1+281+5, $bid., $he certificate of death prepared by Dr. Castro stated the cause of0 death as ,0circulatory shoc2 electrocution/ )B7h. 39 p. 1+5, $bid/,. 3n defense and e7culpation, defendant presented the testi onies of its officers and e ployees, na ely, Conrado Asis, electric engineer9 'oreto AbiCero, collector8inspector9 Fabico AbiCero, line an9 and %ulio

Agcaoili, president8 anager of 3!B'C= $hrough the testi onies of these witnesses, defendant sought to prove that on and even before %une 29, 19*. the electric service syste of the 3!B'C= in the whole franchise area, including Area !o. 9 which covered the residence of Antonio :abes at !o. 18 4uerrero <treet, did not suffer fro any defect that ight constitute a ha>ard to life and property. $he service lines, devices and other 3!B'C= eEuip ent in Area !o. 9 had been newly8installed prior to the date in Euestion. As a public service operator and in line with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid inCuries to persons and da age to property in case of natural cala ities such as floods, typhoons, fire and others. Defendant had 12 lines en charged with the duty of a2ing a round8the8cloc2 chec28up of the areas respectively assigned to the . Defendant asserts that although a strong typhoon struc2 the province of 3locos !orte on %une 29, 19*., putting to streets of 'aoag City under water, only a few 2nown places in 'aoag were reported to have suffered da aged electric lines, na ely, at the southern approach of the 1arcos &ridge which was washed away and where the 3!B'C= lines and posts collapsed9 in the eastern part near the residence of the late 4overnor <i eon 1andac9 in the far north near the defendant0s power plant at the corner of <egundo and Castro <treets, 'aoag City and at the far northwest side, near the pre ises of the 3locos !orte !ational Aigh <chool. Fabico AbiCero, testified that in the early orning before * o0cloc2 on %une 29, 19*. he passed by the intersection of #i>al and 4uerrero <treets to switch off the street lights in Area !o. 9. Ae did not see any cut or bro2en wires in or near the vicinity. ?hat he saw were any people fishing out the body of 3sabel 'ao %uan. A witness in the person of Dr. Antonio &riones was presented by the defense to show that the deceased could not have died of electrocution <ubstantially, the testi ony of the doctor is as follows@ ?ithout an autopsy on the cadaver of the victi , no doctor, not even a edicolegal e7pert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the deceased three hours after

her death, because cyanosis which eans lac2 of o7ygen circulating in the blood and rendering the color of the s2in purplish, appears only in a live person. $he presence of the elongated burn in the left pal of the deceased )B7hibits C81 and C82, is not sufficient to establish her death by electrocution9 since burns caused by electricity are ore or less round in shape and with points of entry and e7it. Aad the deceased held the lethal wire for a long ti e, the laceration in her pal would have been bigger and the inCury ore assive. )CA Decision, pp. 18821, #ollo, An action for da ages in the aggregate a ount of -2"+,+++ was instituted by the heirs of the deceased with the aforesaid CF3 on %une 26, 19*8. 3n its Answer )Lide, #ecord on Appeal, p. "", #ollo,, petitioner advanced the theory, as a special defense, that the deceased could have died si ply either by drowning or by electrocution due to negligence attributable only to herself and not to petitioner. 3n this regard, it was pointed out that the deceased, without petitioner0s 2nowledge, caused the installation of a burglar deterrent by connecting a wire fro the ain house to the iron gate and fence of steel atting, thus, charging the latter with electric current whenever the switch is on. -etitioner then conCectures that the switch to said burglar deterrent ust have been left on, hence, causing the deceased0s electrocution when she tried to open her gate that early orning of %une 29, 19*.. After due trial, the CF3 found the facts in favor of petitioner and dis issed the co plaint but awarded to the latter -2",+++ in oral da ages and attorney0s fees of -6",+++. An appeal was filed with the CA which issued the controverted decision. 3n this petition for review the petitioner assigns the following errors co itted by the respondent CA@ 1. $he respondent Court of Appeals co itted grave abuse of discretion and error in considering the purely hearsay alleged declarations of Brnesto de la Cru> as part of the res gestae. 2. $he respondent Court of Appeals co itted grave abuse of discretion and error in holding that the strong typhoon /4ening/ which struc2 'aoag City and 3locos !orte on %une 29, 19*. and the flood and deluge it brought in its wa2e

were not fortuitous events and did not e7onerate petitioner8co pany fro liability for the death of 3sabel 'ao %uan. 5. $he respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of /assu ption of ris2/ in the present case to bar private respondents fro collecting da ages fro petitioner co pany. 6. $hat the respondent Court of Appeals gravely erred and abused its discretion in co pletely reversing the findings of fact of the trial court. ". $he findings of fact of the respondent Court of Appeals are reversible under the recogni>ed e7ceptions. *. $he trial court did not err in awarding oral da ages and attorney0s fees to defendant corporation, now petitioner co pany. .. Assu ing arguendo that petitioner co pany ay be held liable fro the death of the late 3sabel 'ao %uan, the da ages granted by respondent Court of Appeals are i proper and e7horbitant. )-etitioners 1e orandu , p. 155, #ollo, &asically, three ain issues are apparent@ )1, whether or not the deceased died of electrocution9 )2, whether or not petitioner ay be held liable for the deceased0s death9 and )5, whether or not the respondent CA0s substitution of the trial court0s factual findings for its own was proper. 3n considering the first issue, it is =ur view that the sa e be resolved in the affir ative. &y a preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be pri arily derived fro the photographed burnt wounds )B7hibits /C/, /C81/, /C82/, on the left pal of the for er. <uch wounds undoubtedly point to the fact that

the deceased had clutched a live wire of the petitioner. $his was corroborated by the testi ony of Dr. %ovencio Castro who actually e7a ined the body of the deceased a few hours after the death and described the said burnt wounds as a /first degree burn/ )p. 166, $<!, Dece ber 11, 19.2, and that they were /electrically charged/ )p. 1+2, $<!, !ove ber 28, 19.2,. Further ore, witnesses 'inda Alon>o Bstavillo and Aida &ulong added that after the deceased screa ed /Ay/ and san2 into the water, they tried to render so e help but were overco e with fear by the sight of an electric wire dangling fro an electric post, oving in the water in a sna2e8li2e fashion )supra,. $he foregoing therefore Custifies the respondent CA in concluding that /)t,he nature of the wounds as described by the witnesses who saw the can lead to no other conclusion than that they were /burns,/ and there was nothing else in the street where the victi was wading thru which could cause a burn e7cept the dangling live wire of defendant co pany/ )CA Decision, p. 22, #ollo,. &ut in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. -etitioner suggests that the switch to said burglar alar was left on. &ut this is ere speculation, not bac2ed up with evidence. As reEuired by the #ules, /each party ust prove his own affir ative allegations./ )#ule 151, <ec. 1,. !evertheless, the CA significantly noted that /during the trial, this theory was abandoned/ by the petitioner )CA Decision, p. 25, #ollo,. Further ore the CA properly applied the principle of res gestae. $he CA said@ 'inda Alon>o Bstavillo, a tic2et seller, and Aida &ulong, a salesgirl, were with the deceased during that fateful orning of %une 29, 19*.. $his Court has not been offered any sufficient reason to discredit the testi onies of these two young ladies. $hey were one in the affir ation that the deceased, while wading in the waist8deep flood on 4uerrero <treet five or si7 eters ahead of the , suddenly screa ed /Ay/ and Euic2ly san2 into the water. ?hen they approached the deceased to help, they were stopped by the sight of an electric wire dangling fro a post and oving in sna2e8li2e fashion in the water. Brnesto dela Cru> also tried to approach the deceased, but he turned bac2 shouting that the water was grounded. $hese bits of evidence carry uch weight. For the subCect of the

testi onies was a startling occurrence, and the declarations ay be considered part of the res gestae. )CA Decision, p. 21, #ollo, For the ad ission of the res gestae in evidence, the following reEuisites ust be present@ )1, that the principal act, the res gestae, be a startling occurrence9 )2, that the state ents were ade before the declarant had ti e to contrive or devise9 )5, that the state ents ade ust concern the occurrence in Euestion and its i ediately attending circu stances )-eople vs. !er, 28 <C#A 11"19 -eople vs. &albas, 122 <C#A 9"9,. ?e do not find any abuse of discretion on the CA0 part in view of the satisfaction of said reEuisites in the case at bar. $he state ents ade relative to the startling occurrence are ad itted in evidence precisely as an e7ception to the hearsay rule on the grounds of trustworthiness and necessity. /$rustworthiness/ because the state ents are ade instinctively )?esley vs. <tate, "5 Ala. 182,, and /necessity/ because such natural and spontaneous utterances are ore convincing than the testi ony of the sa e person on the stand )1obile vs. Ascraft 68 Ala. 51,. $herefore, the fact that the declarant, Brnesto de la Cru>, was not presented to testify does not a2e the testi ony of 'inda Alon>o Bstavillo and Aida &ulong hearsay since the said declaration is part of the res gestae. <i ilarly, ?e considered part of the res gestae a conversation between two accused i ediately after co ission of the cri e as overheard by a prosecution witness )-eople vs. #eyes, 82 -hil. "*5,. ?hile it ay be true that, as petitioner argues )vide petitioner0s 1e orandu , p. 15", #ollo,, Brnesto de la Cru> was not an actual witness to the instant when the deceased san2 into the waist8deep water, he acted upon the call of help of Aida &ulong and 'inda Alon>o Bstavillo with the 2nowledge of, and i ediately after, the sin2ing of the deceased. 3n fact the startling event had not yet ceased when Brnesto de la Cru> entered the scene considering that the victi re ained sub erged. ;nder such a circu stance, it is undeniable that a state of ind characteri>ed by nervous e7cite ent had been triggered in Brnesto de la Cru>0s being as anybody under the sa e contingency could have e7perienced. As such, ?e cannot honestly e7clude his shouts that the water was grounded fro the res gestae Cust because he did not actually see the sin2ing of the deceased nor hear her screa /Ay./ !either can ?e dis iss the said declaration as a ere opinion of Brnesto de la Cru>. ?hile ?e concede to the sub ission that the

state ent ust be one of facts rather than opinion, ?e cannot agree to the proposition that the one ade by hi was a ere opinion. =n the contrary, his shout was a translation of an actuality as perceived by hi through his sense of touch. Finally, ?e do not agree that the ta2ing of Brnesto de la Cru>0 testi ony was suppressed by the private respondents, thus, is presu ed to be adverse to the pursuant to <ection ")e,, #ule 151. For the application of said #ule as against a party to a case, it is necessary that the evidence alleged to be suppressed is available only to said party )-eople vs. $ulale, '8.255, 18 1ay 19"", 9. -hil. 9"5,. $he presu ption does not operate if the evidence in Euestion is eEually available to both parties )<taplesAowe -rinting Co. vs. &ldg. and 'oan Assn., 5* -hil. 621,. 3t is clear fro the records that petitioner could have called Brnesto de la Cru> to the witness stand. $his, precisely, was 'inda Alon>o Bstavillo0s suggestion to petitioner0s counsel when she testified on cross e7a ination@ I. And that Brning de la Cru>, how far did he reach fro the gate of the houseH A. ?ell, you can as2 that atter fro hi sir because he is here. )$<!, p. 5+, 2* <ept. 19.2, $he foregoing shows that petitioner had the opportunity to verify the declarations of Brnesto de la Cru> which, if truly adverse to private respondent, would have helped its case. Aowever, due to reasons 2nown only to petitioner, the opportunity was not ta2en. Co ing now to the second issue, ?e tip the scales in the private respondents0 favor. $he respondent CA acted correctly in disposing the argu ent that petitioner be e7onerated fro liability since typhoons and floods are fortuitous events. ?hile it is true that typhoons and floods are considered Acts of 4od for which no person ay be held responsible, it was not said eventuality which directly caused the victi 0s death. 3t was through the intervention of petitioner0s negligence that death too2 place. ?e subscribe to the conclusions of the respondent CA when it found@ =n the issue whether or not the defendant incurred liability for the electrocution and conseEuent death of the late 3sabel 'ao %uan, defendant called to the witness8stand its electrical engineer, chief line an, and line an to show e7ercise of e7traordinary diligence and to negate the charge of negligence. $he witnesses testified in a general way about their duties

and the easures which defendant usually adopts to prevent ha>ards to life and li b. Fro these testi onies, the lower court found /that the electric lines and other eEuip ent of defendant corporation were properly aintained by a well8trained tea of line an, technicians and engineers wor2ing around the cloc2 to insure that these eEuip ents were in e7cellent condition at all ti es./ )-. 6+, #ecord on Appeal, $he finding of the lower court, however, was based on what the defendant0s e ployees were supposed to do, not on what they actually did or failed to do on the date in Euestion, and not on the occasion of the emergency situation brought about by the typhoon. $he lower court ade a ista2e in assu ing that defendant0s e ployees wor2ed around the cloc2 during the occurrence of the typhoon on the night of %une 28 and until the early orning of %une 29, 19*., Bngr. Antonio %uan of the !ational -ower Corporation affir ed that when he first set out on an inspection trip between *@++ and *@5+ A.1. on %une 29, 19*., he saw grounded and disconnected electric lines of the defendant but he saw no $ 96&7 lineman. $he 3!B'C= =ffice at the 'ife theatre on #i>al <treet was still closed. )pp. *58*6, $<!, =ct. 26, 19.2, Bven the witnesses of defendant contradict the finding of the lower court. Conrado Asis, defendant0s electrical engineer, testified that he conducted a general inspection of the franchise area of the 3!B'C= only on .une <=, >?@A, the day following the typhoon. $he reason he gave for the delay was that all their vehicles were sub erged. )p. 55., $<!, %uly 2+, 19.5, According to Asis, he arrived at his office at 8@++ A.1. on .une <= and after briefing his en on what to do they started out. )p. 558, lbid, =ne or two days after the typhoon, the 3!B'C= people heard /ru ors that so eone was electrocuted/ so he sent one of his en to the place but his an reported bac2 that there was no da aged wire. )p. 58", $d., 'oreto AbiCero, chief line an of defendant, corroborated Bngr. %uan. Ae testified that at about 8@++ A.1. on %une 29, 19*. Bngr. %uan ca e to the 3!B'C= plant and as2ed the 3!B'C= people to inspect their lines. Ae went with Bngr. %uan and their inspection lasted fro 8@++ A.1. to 12@++ noon. )pp. 6*+, 6*", $<!, %an. 28, 19.", Fabico AbiCero line an of defendant, testified that at about *@++ on

%une 29, 19*. the typhoon ceased. At that ti e, he was at the ain building of the Divine ?ord College of 'aoag where he had ta2en his fa ily for refuge. )pp. "1+8"11, $bid/, 3n ti es of cala ities such as the one which occurred in 'aoag City on the night of %une 28 until the early hours of %une 29, 19*., e7traordinary diligence reEuires a supplier of electricity to be in constant vigil to prevent or avoid any probable incident that ight i peril life or li b. $he evidence does not show that defendant did that. =n the contrary, evidence discloses that there were no en )line en or otherwise, policing the area, nor even anning its office. )CA Decision, pp. 2682", #ollo, 3ndeed, under the circu stances of the case, petitioner was negligent in seeing to it that no har is done to the general public/... considering that electricity is an agency, subtle and deadly, the easure of care reEuired of electric co panies ust be co ensurate with or proportionate to the danger. $he duty of e7ercising this high degree of diligence and care e7tends to every place where persons have a right to be/ )Astudillo vs. 1anila Blectric, "" -hil. 62.,. $he negligence of petitioner having been shown, it ay not now absolve itself fro liability by arguing that the victi 0s death was solely due to a fortuitous event. /?hen an act of 4od co bines or concurs with the negligence of the defendant to produce an inCury, the defendant is liable if the inCury would not have resulted but for his own negligent conduct or o ission/ )58 A . %ur., p. *69,. 'i2ewise, the a7i /volenti non fit inCuria/ relied upon by petitioner finds no application in the case at bar. 3t is i perative to note the surrounding circu stances which i pelled the deceased to leave the co forts of a roof and brave the subsiding typhoon. As testified by 'inda Alon>o Bstavillo )see $<!, p. ", 2* <ept. 19.2, and Aida &ulong )see $<!, p. 65, 2* <ept. 19.2,, the deceased, acco panied by the for er two, were on their way to the latter0s grocery store /to see to it that the goods were not flooded./ As such, shall ?e punish her for e7ercising her right to protect her property fro the floods by i puting upon her the unfavorable presu ption that she assu ed the ris2 of personal inCuryH Definitely not. For it has been held that a person is e7cused fro the force of the rule, that when he voluntarily assents to a 2nown danger he ust abide by the conseEuences, if an e ergency is found to e7ist or if the life or property of another is in peril )*"A C.<.C. !egligence)1.6)",, p. 5+1,, or when he see2s to rescue his endangered property )Aarper and %a es, /$he 'aw of

$orts./ 'ittle, &rown and Co., 19"*, v. 2, p. 11*.,. Clearly, an e ergency was at hand as the deceased0s property, a source of her livelihood, was faced with an i pending loss. Further ore, the deceased, at the ti e the fatal incident occurred, was at a place where she had a right to be without regard to petitioner0s consent as she was on her way to protect her erchandise. Aence, private respondents, as heirs, ay not be barred fro recovering da ages as a result of the death caused by petitioner0s negligence ) ibid., p. 11*", 11**,. &ut petitioner assails the CA for having abused its discretion in co pletely reversing the trial court0s findings of fact, pointing to the testi onies of three of its e ployees its electrical engineer, collector8inspector, line an, and president8 anager to the effect that it had e7ercised the degree of diligence reEuired of it in 2eeping its electric lines free fro defects that ay i peril life and li b. 'i2ewise, the said e ployees of petitioner categorically disowned the fatal wires as they appear in two photographs ta2en on the afternoon of %une 29, 19*. )B7hs. /D/ and /B/,, suggesting that said wires were Cust hoo2ed to the electric post )petitioner0s 1e orandu , p. 1.+, #ollo,. Aowever, as the CA properly held, /)t,he finding of the lower court ... was based on what the defendant0s e ployees were supposed to do, not on what they actually did or failed to do on the date in Euestion, and not on the occasion of the emergency situation brought about by the typhoon/ )CA Decision, p. 2", #ollo,. And as found by the CA, which ?e have already reiterated above, petitioner was in fact negligent. 3n a li2e anner, petitioner0s denial of ownership of the several wires cannot stand the logical conclusion reached by the CA when it held that /)t,he nature of the wounds as described by the witnesses who saw the can lead to no other conclusion than that they were 0burns0, and there was nothing else in the street where the victi was wading thru which could cause a burn e7cept the dangling live wire of defendant co pany/ )supra,. /?hen a stor occurs that is liable to prostrate the wires, due care reEuires pro pt efforts to discover and repair bro2en lines/ )Cooley on $orts, 6th ed., v. 5, p. 6.6,. $he fact is that when Bngineer Antonio %uan of the !ational -ower Corporation set out in the early orning of %une 29, 19*. on an inspection tour, he saw grounded and disconnected lines hanging fro posts to the ground but did not see any 3!B'C= line an either in the streets or at the 3!B'C= office )vide, CA Decision, supra,. $he foregoing shows that petitioner0s duty to e7ercise e7traordinary diligence under the circu stance was not observed, confir ing the negligence of petitioner. $o aggravate atters, the CA found@

. . .even before %une 28 the people in 'aoag were already alerted about the i pending typhoon, through radio announce ents. Bven the fire depart ent of the city announced the co ing of the big flood. )pp. "528 "56, $<!, 1arch 15, 19.", At the 3!B'C= irregularities in the flow of electric current were noted because /a peres of the switch volts were oving/. And yet, despite these danger signals, 3!B'C= had to wait for Bngr. %uan to reEuest that defendant0s switch be cut off but the har was done. As2ed why the delay, 'oreto AbiCero answered that he /was not the achine tender of the electric plant to switch off the current./ )pp. 6*.8 6*8, $bid., Aow very characteristic of gross inefficiencyQ )CA Decision, p. 2*, #ollo, Fro the preceding, ?e find that the CA did not abuse its discretion in reversing the trial court0s findings but tediously considered the factual circu stances at hand pursuant to its power to review Euestions of fact raised fro the decision of the #egional $rial Court, for erly the Court of First 3nstance )see sec. 9, &- 129,. 3n considering the liability of petitioner, the respondent CA awarded the following in private respondent0s favor@ -5+,229.6" in actual da ages )i.e., -12,+++ for the victi 0s death and -18,229.6" for funeral e7penses,9 -"+,+++ in co pensatory da ages, co puted in accordance with the for ula set in the Lilla8#ey $ransit case )51 <C#A "11, with the base of -1",+++ as average annual inco e of the deceased9 -1+,+++ in e7e plary da ages9 -5,+++ attorney0s fees9 and costs of suit. B7cept for the award of -12,+++ as co pensation for the victi 0s death, ?e affir the respondent CA0s award for da ages and attorney0s fees. -usuant to recent Curisprudence )-eople vs. 1ananEuil, 152 <C#A 19*9 -eople vs. $raya, 16. <C#A 581,, ?e increase the said award of -12,+++ to -5+,+++, thus, increasing the total actual da ages to -68,229.6". $he e7clusion of oral da ages and attorney0s fees awarded by the lower court was properly ade by the respondent CA, the charge of alice and bad faith on the part of respondents in instituting his case being a ere product of wishful thin2ing and speculation. Award of da ages and attorney0s fees is unwarranted where the action was filed in good faith9 there should be no penalty on the right to litigate )Bspiritu vs. CA, 15. <C#A "+,. 3f da age results fro a person0s e7ercising his legal rights, it is damnum absque in3uria )Auyong Aian vs. C$A, "9 <C#A 11+,.

?AB#BF=#B, the Euestioned decision of the respondent, e7cept for the slight odification that actual da ages be increased to -68,229.6" is hereby AFF3#1BD. <= =#DB#BD. *elencio-2errera )&hairperson+, Padilla, Sarmiento and 0egalado, ../, concur/

G.R. No. L513614

'"c"; "r 17, 1966

APOLONIO %AN0ANCO, petitioner, vs. HON. CO(R% OF APPEAL& an# ARACELI &AN%O&, respondents. P/ &arreon and 1/ 7/ ,eneracion, 'ntonio ,/ %onoan for respondents/ RE7E&, 0.B.L., J.: Appeal fro a decision of the Court of Appeals )in its Case !o. 2.21+8#, revo2ing an order of the Court of First 3nstance of #i>al )in Civil Case !o. I86.9., dis issing appellant0s action for support and da ages. $he essential allegations of the co plaint are to the effect that, fro Dece ber, 19"., the defendant )appellee herein,, Apolonio $anCanco, courted the plaintiff, Araceli <antos, both being of adult age9 that /defendant e7pressed and professed his undying love and affection for plaintiff who also in due ti e reciprocated the tender feelings/9 that in consideration of defendant0s pro ise of arriage plaintiff consented and acceded to defendant0s pleas for carnal 2nowledge9 that regularly until Dece ber 19"9, through his protestations of love and pro ises of arriage, defendant succeeded in having carnal access to plaintiff, as a result of which the latter conceived a child9 that due to her pregnant condition, to avoid e barrass ent and social hu iliation, plaintiff had to resign her Cob as secretary in 3&1 -hilippines, 3nc., where she was receiving -25+.++ a onth9 that thereby plaintiff beca e unable to support herself and her baby9 that due to defendant0s refusal to arry plaintiff, as pro ised, the latter suffered ental anguish, bes irched reputation, wounded feelings, oral shoc2, and social hu iliation. $he prayer was for a decree co pelling the defendant to recogni>e .r/ for petitioner/

the unborn child that plaintiff was bearing9 to pay her not less than -65+.++ a onth for her support and that of her baby, plus -1++,+++.++ in oral and e7e plary da ages, plus -1+,+++.++ attorney0s fees. ;pon defendant0s otion to dis iss, the court of first instance dis issed the co plaint for failure to state a cause of action. -laintiff <antos duly appealed to the Court of Appeals, and the latter ulti ately decided the case, holding with the lower court that no cause of action was shown to co pel recognition of a child as yet unborn, nor for its support, but decreed that the co plaint did state a cause of action for da ages, pre ised on Article 21 of the Civil Code of the -hilippines, prescribing as follows@ A#$. 21. Any person who wilfully causes loss or inCury to another in a anner that is contrary to orals, good custo s or public policy shall co pensate the latter for the da age. $he Court of Appeals, therefore, entered Cudg ent setting aside the dis issal 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 pro ise to arry are not per issible in this Curisdiction, and invo2ing the rulings of this Court in 9stopa vs/ Piansay, '816.55, <epte ber 5+, 19*+9 2ermosisima vs/ &ourt of 'ppeals, '816*28, %anuary 29, 19*29 and :e .esus vs/ Sy;uia, "8 -hil. 88*. ?e find this appeal eritorious.

/A#$. 25. Any person who wilfully causes loss or inCury to another in a anner that is contrary to orals, good custo s or public policy shall co pensate the latter for the da age./ An e7a ple will illustrate the purview of the foregoing nor @ /A/ seduces the nineteen8year old daughter of /(/. A pro ise of arriage either has not been ade, or can not be proved. $he girl beco es pregnant. ;nder the present laws, there is no cri e, as the girl is above eighteen years of age. !either can any civil action for breach of pro ise of arriage be filed. $herefore, though the grievous oral wrong has been co itted, and though the girl and her fa ily have suffered incalculable oral da age, she and her parents cannot bring any action for da ages. &ut under the proposed article, she and her parents would have such a right of action. $he Court of Appeals see s to have overloo2ed that the e7a ple set forth in the Code Co ission0s e orandu refers to a tort upon a inor who has been seduced. $he essential feature is seduction, that in law is ore than ere se7ual intercourse, or a breach of a pro ise of arriage9 it connotes essentially the idea of deceit, entice ent, superior power or abuse of confidence on the part of the seducer to which the wo an has yielded );.<. vs. &uenaventura, 2. -hil. 1219 ;.<. vs. Arlante, 9 -hil. "9",. 3t has been ruled in the &uenaventura case )supra, that G $o constitute seduction there ust in all cases be so e sufficient pro ise or induce ent and the woman must yield because of the promise or other inducement. 3f she consents erely fro carnal lust and the intercourse is fro utual desire, there is no seduction )65 Cent. Dig. tit. <eduction, par. "*,. <he ust be induced to depart fro the path of virtue by the use of so e species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her ulti ately sub itting her person to the se7ual e braces of her seducer )2. -hil. 125,. And in A erican %urisprudence we find@ =n the other hand, in an action by the wo an, the entice ent, persuasion or deception is the essence of the inCury9 and a ere proof of intercourse is insufficient to warrant a recover.

3n holding that the co plaint stated a cause of action for da ages, under Article 21 above entioned, the Court of Appeals relied upon and Euoted fro the e orandu sub itted by the Code Co ission to the 'egislature in 1969 to support the original draft of the Civil Code. #eferring to Article 25 of the draft )now Article 21 of the Code,, the Co ission stated@ &ut the Code Co ission has gone farther than the sphere of wrongs defined or deter ined by positive law. Fully sensible that there are countless gaps in the statutes, which leave so any victi s of oral wrongs helpless, even though they have actually suffered aterial and oral inCury, the Co ission has dee ed it necessary, in the interest of Custice, to incorporate in the proposed Civil Code the following rule@

Accordingly it is not seduction where the willingness arises out of se7ual desire or curiosity of the fe ale, and the defendant erely affords her the needed opportunity for the co ission of the act. 3t has been e phasi>ed that to allow a recovery in all such cases would tend to the de orali>ation of the fe ale se7, and would be a reward for unchastity by which a class of adventuresses would be swift to profit./ )6. A . %ur. **2, &earing these principles in ind, let us e7a ine the co plaint. $he aterial allegations there are as follows@ 3. $hat the plaintiff is of legal age, single, and residing at "* <outh B. Dili an, Iue>on City, while defendant is also of legal age, single and residing at "2" -adre Faura, 1anila, where he ay be served with su ons9 33. $hat the plaintiff and the defendant beca e acEuainted with each other so eti e in Dece ber, 19". and soon thereafter, the defendant started visiting and courting the plaintiff9 333. $hat the defendant0s visits were regular and freEuent and in due ti e the defendant e7pressed and professed his undying love and affection for the plaintiff who also in due ti e reciprocated the tender feelings9 3L. $hat in the course of their engage ent, the plaintiff and the defendant as are wont of young people in love had freEuent outings and dates, beca e very close and inti ate to each other and so eti e in %uly, 19"8, in consideration of the defendant0s pro ises of arriage, the plaintiff consented and acceded to the for er0s earnest and repeated pleas to have carnal 2nowledge with hi 9 L. $hat subseEuent thereto and regularly until about %uly, 19"9 e7cept for a short period in Dece ber, 19"8 when the defendant was out of the country, the defendant through his protestations of love and pro ises of arriage succeeded in having carnal 2nowledge with the plaintiff9 L3. $hat as a result of their inti ate relationship, the plaintiff started conceiving which was confir ed by a doctor so eti e in %uly, 19"99

L33. $hat upon being certain of her pregnant condition, the plaintiff infor ed the defendant and pleaded with hi to a2e good his pro ises of arriage, but instead of honoring his pro ises and righting his wrong, the defendant stopped and refrained fro seeing the plaintiff since about %uly, 19"9 has not visited the plaintiff and to all intents and purposes has bro2en their engage ent and his pro ises. =ver and above the partisan allegations, the facts stand out that for one whole year, fro 19"8 to 19"9, the plaintiff8appellee, a wo an of adult age, aintained inti ate se7ual relations with appellant, with repeated acts of intercourse. <uch conduct is inco patible with the idea of seduction. -lainly there is here voluntariness and utual passion9 for had the appellant been deceived, had she surrendered e7clusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his e braces, uch less for one year, without e7acting early fulfill ent of the alleged pro ises of arriage, and would have cut chart all se7ual relations upon finding that defendant did not intend to fulfill his pro ises. Aence, we conclude that no case is ade under Article 21 of the Civil Code, and no other cause of action being alleged, no error was co itted by the Court of First 3nstance in dis issing the co plaint. =f course, the dis issal ust be understood as without preCudice to whatever actions ay correspond to the child of the plaintiff against the defendant8appellant, if any. =n that point, this Court a2es no pronounce ent, since the child0s own rights are not here involved. F=# $AB F=#B4=3!4 #BA<=!<, the decision of the Court of Appeals is reversed, and that of the Court of First 3nstance is affir ed. !o costs. &oncepcion, &/./, %arrera, :izon, 0egala, *akalintal, %engzon, ./P/, Baldivar, Sanchez and &astro, ../, concur.