3E Cited cases by Dean Albano during lectures 1st mtg 1. Mercury Drug v Hwang * 2. G A!

"eo#le$s umber % Hardware v &AC 3. 'ny( )inancial easing Cor# *+, -. Mandarin .illa v CA *card/older, 0. "1Com v CA *doctrine o2 last clear c/ance, 3. "!1 v C/ong * 4. Air )rance v Carrascoso * 5. "/oeni( Construction Cor# v &AC * 2nd mtg 1. 6alen v 1alce * 2. ibi v CA * 3. 7amargo v CA * -. Castile( &ndustrial Cor# v .as8ue9 *Mandaue, 0. )ilamer C/ristian &nstitute v &AC *:anitor, 3. Duavit v CA 4. Metro Manila 7ransit v CA *;osales< H6 student, 5. 6t. )rancis Hig/ 6c/ool v CA *#icnic, =. Amadora v CA *

1. A2ialda v Hisole * 2. Co v CA *+, 3. ambert *+, -. Coca>Cola 1ottlers &nc v CA 0. City o2 Manila v 7eotico *man/ole, 3. ?imene9 v City o2 Manila *man/ole, 4. Guilatco v City o2 Dagu#an *man/ole, 5. Hos#icio de 6an ?ose *+, =. oadmasters v Glodel 1ro@erage * * nasa case list *+, &m not sure< sounds li@e< di @o na@ita sa net 7/e rest o2 t/e cases na wala sa case list ay na@a>com#ile below. Aung nabangggit na #reviously ta#os binanggit ulit t/e succeeding meeting< di @o na nilagay ulit.

3rd mtg

G.R. No. 70493 May 18, 1989

GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELI LIM a!" PAUL #A$ARIAS y INFAN%E, petitioners, vs. IN%ERMEDIA%E APPELLA%E $OUR%, $E$ILIA ALFERE# &DA. DE $ALIBO, M'!o() RO*$E S%EPHEN, +O*$E +OAN, +ANISE MARIE, +A$,UELINE BRIGI%%E +O$ELINE $ORA#ON, +ULIE% GERALDINE, +ENNIFER +ILL, a-- ).(!a/0" $ALIBO, (01(0)0!20" 3y 240'( /o240(, $E$ILIA A. &DA. DE $ALIBO, respondents. Rufino Mayor and Isidro M. Ampig for petitioners. Manuel L. Hontanosas for private respondents. NAR&ASA, J.: There is a two-fold message in this judgment that bears stating at the outset. The first, an obvious one, is that it is the objective facts established by proofs presented in a controversy that determine the verdict, not the plight of the persons involved, no matter how deserving of sympathy and commiseration because, for example, an accident of which they are the innocent victims has brought them to. reduced circumstances or otherwise tragically altered their lives. The second is that the doctrine laid done many, many years ago in Picart vs. Smith 1 continues to be good law to this day. The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the Trial Court as follows: 5 ngineer !rlando T. Calibo, "gripino #oranes, and $aximo %atos were on the jeep owned by the &acnotan Consolidated 'ndustries, 'nc., with Calibo at the wheel, as it approached from the (outh )i*ada &ridge going towards the direction of +avao City at about ,:-. in the afternoon of /uly -,,010. "t about that time, the cargo trac2, loaded with cement bags, 3' sheets, plywood, driven by defendant %aul 4acarias y 'nfants, coming from the opposite direction of +avao City and bound for 3lan, (outh Cotabato, had just crossed said bridge. "t about .0 yards after crossing the bridge, the cargo truc2 and the jeep collided as a consequence of which ngineer Calibo died while #oranes and %atos sustained physical injuries. 4acarias was unhurt. "s a result of the impact, the left side of the truc2 was slightly damaged while the left side of the jeep, including its fender and hood, was extensively damaged. "fter the impact, the jeep fell and rested on its right side on the

asphalted road a few meters to the rear of the truc2, while the truc2 stopped on its wheels on the road. !n 5ovember 61, ,010, the instant case for damages was filed by the surviving spouse and children of the late ngineer Calibo who are residents of Tagbilaran City against the driver and owners of the cargo truc2. 7or failure to file its answer to the third party complaint, third party defendant, which insured the cargo truc2 involved, was declared in default. The case filed by the heirs of ngineer Calibo his widow and minor children, private respondents herein was doc2eted as Civil Case 5o. 8698 of the Court of 7irst 'nstance of &ohol. 3 5amed defendants in the complaint were :7elix (. "gad, 3eorge )im and 7elix )im . . . ;who< appear to be the co-owners of the 3lan %eople=s )umber and >ardware . . . ;and< %aul 4acarias y 'nfante.: 4 The defendants= answer however alleged that the lumber and hardware business was exclusively owned by 3eorge ?. )im, this being evidenced by the Certificate of #egistration issued by the &ureau of +omestic Trade@ 7abio (. "gad was not a co-owner thereof but :merely employed by . . . 3eorge ?. )im as boo22eeper:@ and 7elix )im had no connection whatever with said business, :he being a child only eight ;9< years of age.: 6 :"fter ;trial, and< a careful evaluation of the evidence, both testimonial and documentary,: the Court reached the conclusion :that the plaintiffs failed to establish by preponderance of evidence the negligence, and thus the liability, of the defendants.: "ccordingly, the Court dismissed the complaint ;and defendants= counterclaim< :for insufficiency of evidence.: )i2ewise dismissed was third-party complaint presented by the defendants against the insurer of the truc2. The circumstances leading to the Court=s conclusion just mentioned, are detailed in the Court=s decision, as follows: ,. $oments before its collission with the truc2 being operated by 4acarias, the jeep of the deceased Calibo was :*ig*agging.: 7 6. Anli2e 4acarias who readily submitted himself to investigation by the police, Calibo=s companions, #oranes ;an accountant<, and %atos, who suffered injuries on account of the collision, refused to be so investigated or give statements to the police officers. This, plus #oranes= waiver of the right to institute criminal proceedings against 4acarias,

and the fact that indeed no criminal case was ever instituted in Court against 4acarias, were :telling indications that they did not attribute the happening to defendant 4acarias= negligence or fault.: 7 8. #oranes= testimony, given in plaintiffs= behalf, was :not as clear and detailed as that of . . . 4acarias,: and was :uncertain and even contradicted by the physical facts and the police investigators +imaano and sparcia.: 8 -. That there were s2id mar2s left by the truc2=s tires at the scene, and none by the jeep, demonstrates that the driver of the truc2 had applied the bra2es and the jeep=s driver had not@ and that the jeep had on impact fallen on its right side is indication that it was running at high speed. Ander the circumstances, according to the Court, given :the curvature of the road and the descending grade of the jeep=s lane, it was negligence on the part of the driver of the jeep, ngr. Calibo, for not reducing his speed upon sight of the truc2 and failing to apply the bra2es as he got within collision range with the truc2.: .. ven if it be considered that there was some antecedent negligence on the part of 4acarias shortly before the collision, in that he had caused his truc2 to run some 6. centimeters to the left of the center of the road, ngr. Calibo had the last clear chance of avoiding the accident because he still had ample room in his own lane to steer clear of the truc2, or he could simply have bra2ed to a full stop. The Court of "ppeals saw things differently. 't rendered judgment 9 on the plaintiffs= appeal, -0 reversing the decision of the Trial Court. 't found 4acarias to be negligent on the basis of the following circumstances, to wit: ,< :the truc2 driven by defendant 4acarias occupied the lane of the jeep when the collision occurred,= and although 4acarias saw the jeep from a distance of about ,.B meters, he :did not drive his truc2 bac2 to his lane in order to avoid collision with the oncoming jeep . . .@: 11 what is worse, :the truc2 driver suddenly applied his bra2es even as he 2new that he was still within the lane of the jeep@: 15 had both vehicles stayed in their respective lanes, the collision would never have occurred, they would have passed :along side each other safely@: 13

6< 4acarias had no license at the time@ what he handed to %fc. sparcia, on the latter=s demand, was the =driver=s license of his co-driver )eonardo &aricuatro@: 14 8< the waiver of the right to file criminal charges against 4acarias should not be ta2en against :plaintiffs: #oranes and %atos who had the right, under the law, to opt merely to bring a civil suit. 16 The "ppellate Court opined that 4acarias= negligence :gave rise to the presumption of negligence on the part of his employer, and their liability is both primary and solidary.: 't therefore ordered :the defendants jointly and solidarily to indemnify the plaintiffs the following amounts: ;,< %8B,BBB.BB for the death of !rlando Calibo@ ;6< %819,BBB.BB for the loss of earning capacity of the deceased ;8< %,.,BBB.BB for attorney=s fees@ ;-< Cost of suit. 17 The defendants 3eorge )im, 7elix )im, 7abio (. "gad and %aul 4acarias have appealed to this Court on certiorariand pray for a reversal of the judgment of the 'ntermediate "ppellate Court which, it is claimed, ignored or ran counter to the established facts. " review of the record confirms the merit of this assertion and persuades this Court that said judgment indeed disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment, consequently, will have to be reversed. The finding that :the truc2 driven by defendant %aul 4acarias occupied the lane of the jeep when the collision occurred: is a loose one, based on nothing more than the showing that at the time of the accident, the truc2 driven by 4acarias had edged over the painted center line of the road into the opposite lane by a width of twenty-five ;6.< centimeters. 't ignores the fact that by the uncontradicted evidence, the actual center line of the road was not that indicated by the painted stripe but, according to measurements made and testified by %atrolman /uanita +imaano, one of the two officers who investigated the accident, correctly lay thirty-six ;8C< centimeters farther to the left of the truc2=s side of said stripe. The unimpugned testimony of %atrolman +imaano, a witness for the private respondents, is to the effect that the jeep=s lane was three ;8< meters and seventy-five ;1.< centimeters wide, and that of the truc2 three ;8< meters and

three ;8< centimeters, measured from the center stripe to the corresponding side lines or outer edges of the road.17 The total width of the road being, therefore, six ;C< meters and seventy-eight ;19< centimeters, the true center line equidistant from both side lines would divide the road into two lanes each three ;meters< and thirty-nine ;80< centimeters wide. Thus, although it was not disputed that the truc2 overrode the painted stripe by twenty-five ;6.< centimeters, it was still at least eleven ;,,< centimeters away from its side of the true center line of the road and well inside its own lane when the accident occurred. &y this same rec2oning, since it was unquestionably the jeep that rammed into the stopped truc2, it may also be deduced that it ;the jeep< was at the time travelling beyond its own lane and intruding into the lane of the truc2 by at least the same ,,-centimeter width of space. 5ot only was the truc2=s lane, measured from the incorrectly located center stripe uncomfortably narrow, given that vehicle=s width of two ;6< meters and forty-six ;-C< centimeters@ the adjacent road shoulder was also virtually impassable, being about three ;8< inches lower than the paved surface of the road and :soft--not firm enough to offer traction for safe passage D besides which, it sloped gradually down to a three foot-deep ravine with a river below. 18 The truc2=s lane as erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance from the edge of the road and the dangerous shoulder and little room for maneuver, in case this was made necessary by traffic contingencies or road conditions, if it always 2ept to said lane. 't being also shown that the accident happened at or near the point of the truc2=s approach to a curve, 19 which called for extra precautions against driving too near the shoulder, it could hardly be accounted negligent on the part of its driver to intrude temporarily, and by only as small as a twenty-five centimeter wide space ;less than ten inches<, into the opposite lane in order to insure his vehicle=s safety. This, even supposing that said maneuver was in fact an intrusion into the opposite lane, which was not the case at all as just pointed out. 5or was the "ppellate Court correct in finding that %aulino 4acarias had acted negligently in applying his bra2es instead of getting bac2 inside his lane upon qqqespying the approaching jeep. &eing well within his own lane, as has already been explained, he had no duty to swerve out of the jeep=s way as said Court would have had him do. "nd even supposing that he was in fact partly inside the opposite lane, coming to a full stop with the jeep still thirty ;8B< meters away cannot be considered an unsafe or imprudent action, there also being uncontradicted evidence that the jeep was :*ig*agging: 50 and hence no way of telling in which direction it would go as it approached the truc2. "lso clearly erroneous is the finding of the 'ntermediate "ppellate Court that 4acarias had no driver=s license at the time. The traffic accident report attests to the proven fact that 4acarias voluntarily surrendered to the investigating

officers his driver=s license, valid for ,010, that had been renewed just the day before the accident, on /uly 8, ,010. 51 The Court was apparently misled by the circumstance that when said driver was first as2ed to show his license by the investigators at the scene of the collision, he had first inadvertently produced the license of a fellow driver, )eonardo &aricuatro, who had left said license in +avao City and had as2ed 4acarias to bring it bac2 to him in 3lan, Cotabato. 55 The evidence not only acquits 4acarias of any negligence in the matter@ there are also quite a few significant indicators that it was rather ngineer Calibo=s negligence that was the proximate cause of the accident. 4acarias had told %atrolman +imaano at the scene of the collision and later confirmed in his written statement at the police headquarters 53 that the jeep had been :*ig*agging,: which is to say that it was travelling or being driven erratically at the time. The other investigator, %atrolman /ose sparcia, also testified that eyewitnesses to the accident had remar2ed on the jeep=s :*ig*agging.: 54 There is moreover more than a suggestion that Calibo had been drin2ing shortly before the accident. The decision of the Trial Court adverts to further testimony of sparcia to the effect that three of Calibo=s companions at the beach party he was driving home from when the collision occurred, who, having left ahead of him went to the scene when they heard about the accident, had said that there had been a drin2ing spree at the party and, referring to Calibo, had remar2ed: :(abi na huag nang mag drive . . . . pumipilit,: ;loosely translated, :>e was advised not to drive, but he insisted.:< 't was Calibo whose driver=s license could not be found on his person at the scene of the accident, and was reported by his companions in the jeep as having been lost with his wallet at said scene, according to the traffic accident report, xhibit :/:. (aid license unexplainedly found its way into the record some two years later. #eference has already been made to the finding of the Trial Court that while 4acarias readily submitted to interrogation and gave a detailed statement to the police investigators immediately after the accident, Calibo=s two companions in the jeep and supposed eyewitnesses, "gripino #oranes and $aximo %atos, refused to give any statements. 7urthermore, #oranes who, together with %atos, had sustained injuries as a result of the collision, waived his right to file a criminal case against 4acarias. 56 ven, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming some antecedent negligence on the part of 4acarias in failing to 2eep within his designated lane, incorrectly demarcated as it was, the physical facts, either expressly found by the 'ntermediate "ppellate Court or which may be deemed conceded for lac2 of any dispute, would still absolve the latter of any actionable responsibility for the accident under the rule of the last clear chance.

&oth drivers, as the "ppellate Court found, had had a full view of each other=s vehicle from a distance of one hundred fifty meters. &oth vehicles were travelling at a speed of approximately thirty 2ilometers per hour. 57 The private respondents have admitted that the truc2 was already at a full stop when the jeep plowed into it. "nd they have not seen fit to deny or impugn petitioners= imputation that they also admitted the truc2 had been brought to a stop while the jeep was still thirty meters away. 57 7rom these facts the logical conclusion emerges that the driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while still at that distance of thirty meters from the truc2, by stopping in his turn or swerving his jeep away from the truc2, either of which he had sufficient time to do while running at a speed of only thirty 2ilometers per hour. 'n those circumstances, his duty was to sei*e that opportunity of avoidance, not merely rely on a supposed right to expect, as the "ppellate Court would have it, the truc2 to swerve and leave him a clear path. The doctrine of the last clear chance provides as valid and complete a defense to accident liability today as it did when invo2ed and applied in the ,0,9 case of Picart vs. Smith, supra, which involved a similar state of facts. !f those facts, which should be familiar to every student of law, it is only necessary to recall the summary made in thesyllabus of this Court=s decision that: ;t<he plaintiff was riding a pony on a bridge. (eeing an automobile ahead he improperly pulled his horse over to the railing on the right. The driver of the automobile, however guided his car toward the plaintiff without diminution of speed until he was only few feet away. >e then turned to the right but passed so closely to the horse that the latter being frightened, jumped around and was 2illed by the passing car. .... %laintiff %icart was thrown off his horse and suffered contusions which required several days of medical attention. >e sued the defendant (mith for the value of his animal, medical expenses and damage to his apparel and obtained judgment from this Court which, while finding that there was negligence on the part of both parties, held that that of the defendant was the immediate and determining cause of the accident and that of the plaintiff :. . . the more remote factor in the case:: 't goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. &ut as we have already stated, the defendant was also negligent@ and in such case the problem always is to discover which agent is immediately and directly responsible. 't will be noted that

the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Ander these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. (ince said ruling clearly applies to exonerate petitioner 4acarias and his employer ;and co-petitioner< 3eorge )im, an inquiry into whether or not the evidence supports the latter=s additional defense of due diligence in the selection and supervision of said driver is no longer necessary and wig not be underta2en. The fact is that there is such evidence in the record which has not been controverted. 't must be pointed out, however, that the 'ntermediate "ppellate Court also seriously erred in holding the petitioners %ablo (. "gad and 7elix )im solidarily liable for the damages awarded in its appealed decision, as alleged owners, with petitioner 3eorge )im, of 3lan %eople=s )umber and >ardware, employer of petitioner 4acarias. This manifestly disregarded, not only the certificate of registration issued by the &ureau of +omestic Trade identifying 3lan %eople=s )umber and >ardware as a business name registered by 3eorge )im, 58 but also unimpugned allegations into the petitioners= answer to the complaint that %ablo (. "gad was only an employee of 3eorge )im and that 7elix )im, then a child of only eight ;9< years, was in no way connected with the business. 'n conclusion, it must also be stated that there is no doubt of this Court=s power to review the assailed decision of the 'ntermediate "ppellate Court under the authority of precedents recogni*ing exceptions to the familiar rule binding it to observe and respect the latter=s findings of fact. $any of those exceptions may be cited to support the review here underta2en, but only the most obvious D that said findings directly conflict with those of the Trial Court D will suffice. 59 'n the opinion of this Court and after a careful review of the record, the evidence singularly fails to support the findings of the 'ntermediate "ppellate Court which, for all that appears, seem to have been prompted rather by sympathy for the heirs of the deceased ngineer Calibo than by an objective appraisal of the proofs and a correct application of the law to the established facts. Compassion for the plight of those whom an accident has robbed of the love and support of a husband and father is an entirely natural and understandable sentiment. 't should not, however, be allowed to stand in the way of, much less to influence, a just verdict in a suit at law.

E> # 7!# , the appealed judgment of the 'ntermediate "ppellate Court is hereby # F #( +, and the complaint against herein petitioners in Civil Case 5o. 8698 of the Court of 7irst 'nstance of &ohol, &ranch 'F, is +'($'(( +. 5o pronouncement as to costs. (! !#+ # +. ru!, "ancayco, "ri#o$A%uino and Medialdea, &&., concur. 8G.R. No. 119860. +.!0 50, 19979 MANDARIN &ILLA, IN$., petitioner, vs. $OUR% OF APPEALS a!" $LODUALDO DE +ESUS, respondents. RESOLU%ION FRAN$IS$O, J.: Eith ample evidentiary support are the following antecedent facts: 'n the evening of !ctober ,0, ,090, private respondent, Clodualdo de /esus, a practicing lawyer and businessman, hosted a dinner for his friends at the petitioner=s restaurant the $andarin Filla (eafoods Fillage, 3reenhills, $andaluyong City. "fter dinner the waiter handed to him the bill in the amount of %6,C.9..B. %rivate respondent offered to pay the bill through his credit card issued by %hilippine Commercial Credit Card 'nc. ;&"5G"#+<. This card was accepted by the waiter who immediately proceeded to the restaurant=s cashier for card verification. Ten minutes later, however, the waiter returned and audibly informed private respondent that his credit card had expired.H,I%rivate respondent remonstrated that said credit card had yet to expire on (eptember ,00B, as embossed on its face. H6I The waiter was unmoved, thus, private respondent and two of his guests approached the restaurant=s cashier who again passed the credit card over the verification computer. The same information was produced, i.e., C"#+ J%'# +. %rivate respondent and his guests returned to their table and at this juncture, %rofessor )irag, another guest, uttered the following remar2s: ' lody (referring to lodualdo de &esus), may problema ba* +a,a ,ailangang maghugas na ,ami ng pinggan*' H8I Thereupon, private respondent left the restaurant and got his &%' xpress Credit Card from his car and offered it to pay their bill. This was accepted and honored by the cashier after verification.H-I %etitioner and his companions left afterwards. The incident triggered the filing of a suit for damages by private respondent. 7ollowing a full-dress trial, judgment was rendered directing the petitioner and &"5G"#+ to pay jointly and severally the private respondent: ;a< moral damages in the amount of %6.B,BBB.BB@ ;b< exemplary damages in

the amount of %,BB,BBB.BB@ and ;c< attorney=s fees and litigation expenses in the amount of %.B,BBB.BB. &oth the petitioner and &"5G"#+ appealed to the respondent Court of "ppeals which rendered a decision, thus: :E> # 7!# , the decision appealed from is hereby $!+'7' + by: ,. 7inding appellant $"5+"#'5 solely responsible for damages in favor of appellee@ 6. "bsolving appellant &"5G"#+ of any responsibility for damages@ 8. #educing moral damages awarded to appellee to TE 5T? 7'F T>!A("5+ and BBK,BB ;%6.,BBB.BB< % (!(@ -. #educing exemplary damages awarded to appellee to T 5 T>!A("5+ and BBK,BB ;%,B,BBB.BB< % (!(@ .. #eversing and setting aside the award of %.B,BBB.BB for attorney=s fees as well as interest awarded@ and C. "77'#$'53 the dismissal of all counterclaims and cross-claims. Costs against appellant $andarin. (! !#+ # +.:H.I $andarin Filla, thus, interposed this present petition, faulting the respondent court with six ;C< assigned errors which may be reduced to the following issues, to wit: ;,< whether or not petitioner is bound to accept payment by means of credit card@ ;6< whether or not petitioner is negligent under the circumstances obtaining in this case@ and ;8< if negligent, whether or not such negligence is the proximate cause of the private respondent=s damage. %etitioner contends that it cannot be faulted for its cashier=s refusal to accept private respondent=s &"5G"#+ credit card, the same not being a legal tender. 't argues that private respondent=s offer to pay by means of credit card partoo2 of the nature of a proposal to novate an existing obligation for which petitioner, as creditor, must first give its consent otherwise there will be no binding contract between them. %etitioner cannot see2 refuge behind this averment.

Ee note that $andarin Filla (eafood Fillage is affiliated with &"5G"#+. 'n fact, an :"greement: HCI entered into by petitioner and &"5G"#+ dated /une 68, ,090, provides inter alia: :The $ #C>"5T shall honor validly issued %CCC' credit cards presented by their corresponding holders in the purchase of goods andKor services supplied by it provided that the card expiration date has not elapsed and the card number does not appear on the latest cancellation bulletin of lost, suspended and cancelled %CCC' credit cards and, no signs of tampering, alterations or irregularities appear on the face of the credit card.: H1I Ehile private respondent may not be a party to the said agreement, the above-quoted stipulation conferred a favor upon the private respondent, a holder of credit card validly issued by &"5G"#+. This stipulation is a stipulation pour autri and under "rticle ,8,, of the Civil Code private respondent may demand its fulfillment provided he communicated his acceptance to the petitioner before its revocation. H9I 'n this case, private respondent=s offer to pay by means of his &"5G"#+ credit card constitutes not only an acceptance of the said stipulation but also an explicit communication of his acceptance to the obligor. 'n addition, the record shows that petitioner posted a logo inside $andarin Filla (eafood Fillage stating that :&an2ard is accepted here.: H0I This representation is conclusive upon the petitioner which it cannot deny or disprove as against the private respondent, the party relying thereon. %etitioner, therefore, cannot disclaim its obligation to accept private respondent=s &"5G"#+ credit card without violating the equitable principle of estoppel.H,BI "nent the second issue, petitioner insists that it is not negligent. 'n support thereof, petitioner cites its good faith in chec2ing, not just once but twice, the validity of the aforementioned credit card prior to its dishonor. 't argues that since the verification machine flashed an information that the credit card has expired, petitioner could not be expected to honor the same much less be adjudged negligent for dishonoring it. 7urther, petitioner asseverates that it only followed the guidelines and instructions issued by &"5G"#+ in dishonoring the aforementioned credit card. The argument is untenable. The test for determining the existence of negligence in a particular case may be stated as follows: +id the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary prudent person would have used in the same situationL 'f not, then he is guilty of negligence.H,,I The %oint of (ale ;%!(< 3uidelines which outlined the steps that petitioner must follow under the circumstances provides: :x x x xxx xxx

:C"#+ J%'# + a. b. b.,. b.6. b.8. c. Chec2 expiry date on card. 'f unexpired, refer to C&. 'f valid, honor up to maximum of (%) only. 'f in C& as )ost, do procedures 6a to 6e., 'f in C& as (uspendedKCancelled, do not honor card. 'f expired, do not honor card.:H,6I

" cursory reading of said rule reveals that whenever the words C"#+ J%'# + flashes on the screen of the verification machine, petitioner should chec2 the credit card=s expiry date embossed on the card itself. 'f unexpired, petitioner should honor the card provided it is not invalid, cancelled or otherwise suspended. &ut if expired, petitioner should not honor the card. 'n this case, private respondent=s &"5G"#+ credit card has an embossed expiry date of (eptember ,00B.H,8I Clearly, it has not yet expired on !ctober ,0,,090, when the same was wrongfully dishonored by the petitioner. >ence, petitioner did not use the reasonable care and caution which an ordinary prudent person would have used in the same situation and as such petitioner is guilty of negligence. 'n this connection, we quote with approval the following observations of the respondent Court. :$andarin argues that based on the %!( 3uidelines ; supra<, it has three options in case the verification machine flashes =C"#+ J%'# +.= 't chose to exercise option ;c< by not honoring appellee=s credit card. >owever, appellant apparently intentionally glossed over option =;a< Chec2 expiry date on card: ;id.< which would have shown without any shadow of doubt that the expiry date embossed on the &"5G"#+ was =( % 0B.= ; xhibit :+:.< " cursory loo2 at the appellee=s &"5G"#+ would also reveal that appellee had been as of that date a cardholder since ,096, a fact which would have entitled the customer the courtesy of better treatment.: H,-I %etitioner, however, argues that private respondent=s own negligence in not bringing with him sufficient cash was the proximate cause of his damage. 't li2ewise sought exculpation by contending that the remar2 of %rofessor )iragH,.I is a supervening event and at the same time the proximate cause of private respondent=s injury. Ee find this contention also devoid of merit. Ehile it is true that private respondent did not have sufficient cash on hand when he hosted a dinner at petitioner=s restaurant, this fact alone does not constitute negligence on his

part. 5either can it be claimed that the same was the proximate cause of private respondent=s damage. Ee ta2e judicial noticeH,CI of the current practice among major establishments, petitioner included, to accept payment by means of credit cards in lieu of cash. Thus, petitioner accepted private respondent=s &%' xpress Credit Card after verifying its validity, H,1I a fact which all the more refutes petitioner=s imputation of negligence on the private respondent. 5either can we conclude that the remar2 of %rofessor )irag was a supervening event and the proximate cause of private respondent=s injury. The humiliation and embarrassment of the private respondent was brought about not by such a remar2 of %rofessor )irag but by the fact of dishonor by the petitioner of private respondent=s valid &"5G"#+ credit card. 'f at all, the remar2 of %rofessor )irag served only to aggravate the embarrassment then felt by private respondent, albeit silently within himself. WHEREFORE, the instant petition is hereby +'($'(( +. SO ORDERED. -avide, &r., Melo, and Panganiban, &&., concur. .arvasa, .&., / hairman0, no part, no participation in deliberations. 8G.R. No. 97757. Ma(;4 14, 19979 PHILIPPINE BAN< OF $OMMER$E, !o= a3)o(30" 3y PHILIPPINE $OMMER$IAL IN%ERNA%IONAL BAN<, ROGELIO LA$SON, DIGNA DE LEON, MARIA ANGELI%A PAS$UAL, et al., petitioners, vs. %HE $OUR% OF APPEALS, ROMMEL'S MAR<E%ING $ORP., (01(0)0!20" 3y ROMEO LIPANA, '2) P(0)'"0!2 > G0!0(a- Ma!a?0(, respondents. DE$ISION HERMOSISIMA, +R., J.: Challenged in this petition for review is the +ecision dated 7ebruary 69, ,00,H,I rendered by public respondent Court of "ppeals which affirmed the +ecision dated 5ovember ,., ,09. of the #egional Trial Court, 5ational Capital /udicial #egion, &ranch C)J ;,CB<, %asig City, in Civil Case 5o. 61699 entitled MRommel1s Mar,eting orporation, etc. v. Philippine +an, of ommerce, no2 absorbed by Philippine ommercial and Industrial +an,. The case stemmed from a complaint filed by the private respondent #ommel=s $ar2eting Corporation ;#$C for brevity<, represented by its %resident and 3eneral $anager #omeo )ipana, to recover from the former %hilippine &an2 of Commerce ;%&C for brevity<, now absorbed by the %hilippine Commercial 'nternational &an2, the sum of %8B-,010.1representing various deposits it had made 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 inexcusable negligence of the petitioner ban2. #$C maintained two ;6< separate current accounts, Current "ccount 5os. .8-B,09B-8 and .8-B,1-9-1, with the %asig &ranch of %&C in connection with its business of selling appliances. 'n 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 latter=s agent or representative, who indicates therein the current account number to which the deposit is to be credited, the name of the depositor or current account holder, the date of the deposit, and the amount of the deposit either in cash or chec2s. The deposit slip has an upper portion or stub, which is detached and given to the depositor or his agent@ the lower portion is retained by the ban2. 'n some instances, however, the deposit slips are prepared in duplicate by the depositor. The original of the deposit slip is retained by the ban2, while the duplicate copy is returned or given to the depositor. 7rom $ay ., ,01. to /uly ,C, ,01C, petitioner #omeo )ipana claims to have entrusted #$C funds in the form of cash totalling%8B-,010.1- to his secretary, 'rene ?abut, for the purpose of depositing said funds in the current accounts of #$C with %&C. 't turned out, however, that these deposits, on all occasions, were not credited to #$C=s account but were instead deposited to "ccount 5o. .8-B,18--1 of ?abut=s husband, &ienvenido Cotas who li2ewise maintains an account with the same ban2. +uring this period, petitioner ban2 had, however, been regularly furnishing private respondent with monthly statements showing its current accounts balances. Anfortunately, it had never been the practice of #omeo )ipana to chec2 these monthly statements of account reposing complete trust and confidence on petitioner ban2. 'rene ?abut=s modus operandi is far from complicated. (he would accomplish two ;6< copies of the deposit slip, an original and a duplicate. The original showed the name of her husband as depositor and his current account number. !n the duplicate copy was written the account number of her husband but the name of the account holder was left blan2. %&C=s teller, "*ucena $abayad, would, however, validate and stamp both the original and the duplicate of these deposit slips retaining only the original copy despite the lac2 of information on the duplicate slip. The second copy was 2ept by 'rene ?abut allegedly for record purposes. "fter validation, ?abut would then fill up the name of #$C in the space left blan2 in the duplicate copy and change the account number written thereon, which is that of her husband=s, and ma2e it appear to be #$C=s account number, i.e., C.". 5o. .8-B,09B-8. Eith the daily remittance records also prepared by $s. ?abut and submitted to private respondent #$C together with the validated duplicate slips with the latter=s name and account number, she made her company believe that all the while the amounts 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. This went on in a span of more than one ;,< year without private respondent=s 2nowledge. Apon discovery of the loss of its funds, #$C demanded from petitioner ban2 the return of its money, but as its demand went unheeded, it filed a collection suit before the #egional Trial Court of %asig, &ranch ,CB. The trial court found petitioner ban2 negligent and ruled as follows: :E> # 7!# , judgment is hereby rendered sentencing defendant %hilippine &an2 of Commerce, now absorbed by defendant %hilippine Commercial N 'ndustrial &an2, and defendant "*ucena $abayad to pay the plaintiff, jointly and severally, and without prejudice to any criminal action which may be instituted if found warranted: ,. The sum of %8B-,010.16, representing plaintiff=s lost deposit, plus interest thereon at the legal rate from the filing of the complaint@

6< The failure of respondent #ommel $ar2eting Corporation to cross-chec2 the ban2=s statements of account with its own records during the entire period of more than one ;,< year is the proximate cause of the commission of subsequent frauds and misappropriation committed by $s. 'rene ?abut. 8< The duplicate copies of the deposit slips presented by respondent #ommel $ar2eting Corporation are falsified and are not proof that the amounts appearing thereon were deposited to respondent #ommel $ar2eting Corporation=s account with the ban2. -< The duplicate copies of the deposit slips were used by $s. 'rene ?abut to cover up her fraudulent acts against respondent #ommel $ar2eting Corporation, and not as records of deposits she made with the ban2.H-I The petition has no merit. (imply put, the main issue posited before us is: Ehat is the proximate cause of the loss, to the tune of %8B-,010.1-, suffered by the private respondent #$C -- petitioner ban2=s negligence or that of private respondent=sL %etitioners submit that the proximate cause of the loss is the negligence of respondent #$C and #omeo )ipana in entrusting cash to a dishonest employee in the person of $s. 'rene ?abut. H.I "ccording to them, it was impossible for the ban2 to 2now that the money deposited by $s. 'rene ?abut belong to #$C@ neither was the ban2 forewarned by #$C that ?abut will be depositing cash to its account. Thus, it was impossible for the ban2 to 2now the fraudulent design of ?abut considering that her husband, &ienvenido Cotas, also maintained an account with the ban2 7or the ban2 to inquire into the ownership of the cash deposited by $s. 'rene ?abut would be irregular. !therwise stated, it was #$C=s negligence in entrusting cash to a dishonest employee which provided $s. 'rene ?abut the opportunity to defraud #$C. HCI %rivate respondent, on the other hand, maintains that the proximate cause of the loss was the negligent act of the ban2, thru its teller $s. "*ucena $abayad, in validating the deposit slips, both original and duplicate, presented by $s. ?abut to $s. $abayad, notwithstanding the fact that one of the deposit slips was not completely accomplished. Ee sustain the private respondent. !ur law on %uasi$delicts states: :"rt. 6,1C. Ehoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. (uch fault

6.

" sum equivalent to ,-O thereof, as exemplary damages@ 8. " sum equivalent to 6.O of the total amount due, as and for attorney=s fees@ and

-.

Costs.

+efendants= counterclaim is hereby dismissed for lac2 of merit.: H6I !n appeal, the appellate court affirmed the foregoing decision with modifications, vi*: :E> # 7!# , the decision appealed from herein is $!+'7' + in the sense that the awards of exemplary damages and attorney=s fees specified therein are eliminated and instead, appellants are ordered to pay plaintiff, in addition to the principal sum of %8B-,010.1- representing plaintiff=s lost deposit plus legal interest thereon from the filing of the complaint, %6.,BBB.BB attorney=s fees and costs in the lower court as well as in this Court.:H8I >ence, this petition anchored on the following grounds: ,< The proximate cause of the loss is the negligence of respondent #ommel $ar2eting Corporation and #omeo )ipana in entrusting cash to a dishonest employee.

or negligence if there is no pre-existing contractual relation between the parties, is called a %uasi$delict and is governed by the provisions of this Chapter.: There are three elements of a %uasi$delict: ;a< damages suffered by the plaintiff@ ;b< fault or negligence of the defendant, or some other person for whose acts he must respond@ and ;c< the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff.H1I 'n the case at bench, there is no dispute as to the damage suffered by the private respondent ;plaintiff in the trial court< #$C in the amount of %8B-, 010.1-. 't is in ascribing fault or negligence which caused the damage where the parties point to each other as the culprit. 5egligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. The seventy-eight ;19<-year-old, yet still relevant, case of %icart v. (mith,H9I provides the test by which to determine the existence of negligence in a particular case which may be stated as follows: +id the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situationL 'f not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the #oman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be rec2less, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. "pplying the above test, it appears that the ban2=s teller, $s. "*ucena $abayad, was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by $s. ?abut, despite the glaring fact that the duplicate copy was not completely accomplished contrary to the selfimposed procedure of the ban2 with respect to the proper validation of deposit slips, original or duplicate, as testified to by $s. $abayad herself, thus: :P: 5ow, as teller of %C'&, %asig &ranch, will you please tell us $rs. $abayad your important duties and functionsL ": ' accept current and savings deposits from depositors and encashments.

":

The client or depositor or the authori*ed representative prepares a deposit slip by filling up the deposit slip with the name, the account number, the date, the cash brea2down, if it is deposited for cash, and the chec2 number, the amount and then he signs the deposit slip.

P: 5ow, how many deposit slips do you normally require in accomplishing current account deposit, $rs. $abayadL ": The ban2 requires only one copy of the deposit although some of our clients prepare the deposit slip in duplicate.

P: 5ow in accomplishing current account deposits from your clients, what do you issue to the depositor to evidence the deposit madeL ": Ee issue or we give to the clients the depositor=s stub as a receipt of the deposit.

P: "nd who prepares the deposit slipL ": The depositor or the authori*ed representative sir.

P: Ehere does the depositor=s stub comes ;sic< from $rs. $abayad, is it with the deposit slipL ": The depositor=s stub is connected with the deposit slip or the ban2=s copy. 'n a deposit slip, the upper portion is the depositor=s stub and the lower portion is the ban2=s copy, and you can detach the ban2=s copy from the depositor=s stub by tearing it sir.

P: 5ow what do you do upon presentment of the deposit slip by the depositor or the depositor=s authori*ed representativeL ": Ee see to it that the deposit slip H0I is properly accomplished and then we count the money and then we tally it with the deposit slip sir.

P: 5ow is the depositor=s stub which you issued to your clients validatedL ": ?es, sir. :H,BI H mphasis ours.I

P: 5ow in the handling of current account deposits of ban2 clients, could you tell us the procedure you followL

Clearly, $s. $abayad failed to observe this very important procedure. The fact that the duplicate slip was not compulsorily required by the ban2 in accepting deposits should not relieve the petitioner ban2 of responsibility. The odd circumstance alone that such duplicate copy lac2ed one vital information -- that of the name of the account holder -- should have already put $s. $abayad on guard. #ather than readily validating the incomplete duplicate copy, she should have proceeded more cautiously by being more

probing as to the true reason why the name 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 excuse of $s. 'rene ?abut to the effect that since the duplicate copy was only for her personal record, she would simply fill up the blan2 space later on. H,,I " :reasonable man of ordinary prudence: H,6I would not have given credence to such explanation and would have insisted that the space left blan2 be filled up as a condition for validation. Anfortunately, this was not how ban2 teller $abayad proceeded thus resulting in huge losses to the private respondent. 5egligence here lies not only on the part of $s. $abayad but also on the part of the ban2 itself in its lac2adaisical selection and supervision of $s. $abayad. This was exemplified in the testimony of $r. #omeo &onifacio, then $anager of the %asig &ranch of the petitioner ban2 and now its Fice%resident, to the effect that, while he ordered the investigation of the incident, he never came to 2now that blan2 deposit slips were validated in total disregard of the ban2=s validation procedures, vi*: :P: +id he ever tell you that one of your cashiers affixed the stamp mar2 of the ban2 on the deposit slips and they validated the same with the machine, the fact that those deposit slips were unfilled up, is there any report similar to thatL ": 5o, it was not the cashier but the teller.

gross, wanton, and inexcusable negligence in the appellant ban2=s supervision of its employees.:H,-I 't was this negligence of $s. "*ucena $abayad, coupled by the negligence of the petitioner ban2 in the selection and supervision of its ban2 teller, which was the proximate cause of the loss suffered by the private respondent, and not the latter=s act of entrusting cash to a dishonest employee, as insisted by the petitioners. %roximate cause is determined on the facts of each case upon mixed considerations of logic, common sense, policy and precedent. H,.IFda. de &ataclan v. $edina,H,CI reiterated in the case of &an2 of the %hil. 'slands v. Court of "ppeals,H,1I defines proximate cause as :that cause, which, in natural and continuous sequence, unbro2en by any efficient intervening cause, produces the injury, and without which the result would not have occurred. x x x.: 'n this case, absent the act of $s. $abayad in negligently validating the incomplete duplicate copy of the deposit slip, $s. 'rene ?abut would not have the facility with which to perpetrate her fraudulent scheme with impunity. "propos, once again, is the pronouncement made by the respondent appellate court, to wit: : x x x. ven if ?abut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff, she would not have been able to deposit those funds in her husband=s current account, and then ma2e plaintiff believe that it was in the latter=s accounts wherein she had deposited them, had it not been for ban2 teller $abayad=s aforesaid gross and rec2less negligence. The latter=s negligence was thus the proximate, immediate and efficient cause that brought about the loss claimed by plaintiff in this case, and the failure of plaintiff to discover the same soon enough by failing to scrutini*e the monthly statements of account being sent to it by appellant ban2 could not have prevented the fraud and misappropriation which 'rene ?abut had already completed when she deposited plaintiff=s money to the account of her husband instead of to the latter=s accounts.: H,9I 7urthermore, under the doctrine of :last clear chance: ;also referred to, at times as :supervening negligence: or as :discovered peril:<, petitioner ban2 was indeed the culpable party. This doctrine, in essence, states that where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. H,0I (tated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages 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 impending harm by the exercise of due

P: The teller validated the blan2 deposit slipL ": 5o it was not reported.

P: ?ou did not 2now that any one in the ban2 tellers or cashiers validated the blan2 deposit slipL ": ' am not aware of that.

P: 't is only now that you are aware of thatL ": ?es, sir.:H,8I

%rescinding from the above, public respondent Court of "ppeals aptly observed: xxx xxx xxx

't was in fact only when he testified in this case in 7ebruary, ,098, or after the lapse of more than seven ;1< years counted from the period when the funds in question were deposited in plaintiffs accounts ;$ay, ,01. to /uly, ,01C< that ban2 manager &onifacio admittedly became aware of the practice of his teller $abayad of validating blan2 deposit slips. Andoubtedly, this is

diligence.H6BI >ere, assuming that private respondent #$C was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, 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 injury incurred by its client, simply by faithfully observing their self-imposed validation procedure. "t this juncture, it is worth to discuss the degree of diligence ought to be exercised by ban2s in dealing with their clients. The 5ew Civil Code provides: :"#T. ,,18. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. Ehen negligence shows bad faith, the provisions of articles ,,1, and 66B,, paragraph 6, shall apply. 'f the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. ;,,B-a<: 'n the case of ban2s, however, the degree of diligence required is more 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.H6,I "s elucidated in Sime3 International /Manila0, Inc. v. ourt of Appeals , in every case, the depositor expects the ban2 to treat his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The ban2 must record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose as he sees fit, confident that the ban2 will deliver it as and to whomever he directs. " blunder on the part of the ban2, such as the failure to duly credit him his deposits as soon as they are made, can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal litigation.
H66I

commission of subsequent frauds and misappropriation committed by $s. 'rene ?abut. Ee do not agree. Ehile it is true that had private respondent chec2ed the monthly statements of account sent by the petitioner ban2 to #$C, the latter would have discovered the loss early on, such cannot be used by the petitioners to escape liability. This omission on the part of the private respondent does not change the fact that were it not for the wanton and rec2less negligence of the petitioners= employee in validating the incomplete duplicate deposit slips presented by $s. 'rene ?abut, the loss would not have occurred. Considering, however, that the fraud was committed in a span of more than one ;,< year covering various deposits, common human experience dictates that the same would not have been possible without any form of collusion between $s. ?abut and ban2 teller $abayad. $s. $abayad was negligent in the performance of her duties as ban2 teller nonetheless. Thus, the petitioners are entitled to claim reimbursement from her for whatever they shall be ordered to pay in this case. The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was li2ewise negligent in not chec2ing its monthly statements of account. >ad it done so, the company would have been alerted to the series of frauds being committed against #$C by its secretary. The damage would definitely not have ballooned to such an amount if only #$C, particularly #omeo )ipana, had exercised even a little vigilance in their financial affairs. This omission by #$C amounts to contributory negligence which shall mitigate the damages that may be awarded to the private respondentH68I under "rticle 6,10 of the 5ew Civil Code, to wit: :x x x. Ehen the plaintiff=s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. +ut if his negligence 2as only contributory, the immediate and proximate cause of the injury being the defendant=s lac2 of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be a2arded.' 'n view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a CB--B ratio. Thus, -BO of the damage awarded by the respondent appellate court, except the award of %6.,BBB.BB attorney=s fees, shall be borne by private respondent #$C@ only the balance of CBO needs to be paid by the petitioners. The award of attorney=s fees shall be borne exclusively by the petitioners. WHEREFORE, the decision of the respondent Court of "ppeals is modified by reducing the amount of actual damages private respondent is entitled to by -BO. %etitioners may recover from $s. "*ucena $abayad the amount they would pay the private respondent. %rivate respondent shall

The 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 meticulous care, always having in mind the fiduciary nature of their relationship. 'n the case before us, it is apparent that the petitioner ban2 was remiss in that duty and violated that relationship. %etitioners nevertheless aver that the failure of respondent #$C to cross-chec2 the ban2=s statements of account with its own records during the entire period of more than one ;,< year is the proximate cause of the

have recourse against $s. 'rene ?abut. 'n all other respects, the appellate court=s decision is "77'#$ +. %roportionate costs. SO ORDERED. +ellosillo, 4itug, and 5apunan, &&., concur. Padilla, &., / hairman0, dissents. 8G.R. No. 135577. D0;0/30( 51, 19999 $AS%ILE INDUS%RIAL $ORPORA%ION, petitioner, vs. &I$EN%E &AS,UE#, +R. a!" LUISA SO &AS,UE#, a!" $EBU DO$%ORS@ HOSPI%AL, IN$., respondents. DE$ISION DA&IDE, +R., C.J.: The pivotal issue in this petition is whether an employer may be held vicariously liable for the death resulting from the negligent operation by a managerial employee of a company-issued vehicle. The antecedents, as succinctly summari*ed by the Court of "ppeals, are as follows: !n 69 "ugust ,099, at around ,:8B to 6:BB in the morning, #omeo (o Fasque*, was driving a >onda motorcycle around 7uente !smeQa #otunda. >e was traveling counter-cloc2wise, ;the normal flow of traffic in a rotunda< but without any protective helmet or goggles. >e was also only carrying a (tudentRs %ermit to +rive at the time. Apon the other hand, &enjamin "bad Hwas aI manager of "ppellant Castilex 'ndustrial Corporation, registered owner HofI a Toyota >i-)ux %ic2-up with plate no. 3&E-10-. !n the same date and time, "bad drove the said company car out of a par2ing lot but instead of going around the !smeQa rotunda he made a short cut against HtheI flow of the traffic in proceeding to his route to 3eneral $axilom (t. or to &elvic (t. 'n the process, the motorcycle of Fasque* and the pic2-up of "bad collided with each other causing severe injuries to the former. "bad stopped his vehicle and brought Fasque* to the (outhern 'slands >ospital and later to the Cebu +octorRs >ospital. !n (eptember ., ,099, Fasque* died at the Cebu +octorRs >ospital. 't was there that "bad signed an ac2nowledgment of #esponsible %arty ; xhibit G< wherein he agreed to pay whatever hospital bills, professional fees and other incidental charges Fasque* may incur.

"fter the police authorities had conducted the investigation of the accident, a Criminal Case was filed against "bad but which was subsequently dismissed for failure to prosecute. (o, the present action for damages was commenced by Ficente Fasque*, /r. and )uisa (o Fasque*, parents of the deceased #omeo (o Fasque*, against /ose &enjamin "bad and Castilex 'ndustrial Corporation. 'n the same action, Cebu +octorRs >ospital intervened to collect unpaid balance for the medical expense given to #omeo (o Fasque*. H,I The trial court ruled in favor of private respondents Ficente and )uisa Fasque* and ordered /ose &enjamin "bad ;hereafter "&"+< and petitioner Castilex 'ndustrial Corporation ;hereafter C"(T') J< to pay jointly and solidarily ;,< (pouses Fasque*, the amounts of %9,BBB.BB for burial expenses@%.B,BBB.BB as moral damages@ %,B,BBB.BB as attorneyRs fees@ and %119,1.6.BB for loss of earning capacity@ and ;6< Cebu +octorRs >ospital, the sum of%.B,061.98 for unpaid medical and hospital bills at 8O monthly interest from 61 /uly ,090 until fully paid, plus the costs of litigation.H6I C"(T') J and "&"+ separately appealed the decision. 'n its decisionH8I of 6, $ay ,001, the Court of "ppeals affirmed the ruling of the trial court holding "&"+ and C"(T') J liable but held that the liability of the latter is Monly vicarious and not solidaryS with the former. 't reduced the award of damages representing loss of earning capacity from%119,1.6.BB to %6,-,,.C.9B@ and the interest on the hospital and medical bills, from 8O per month to ,6O per annum from . (eptember ,099 until fully paid. Apon C"(T') JRs motion for reconsideration, the Court of "ppeals modified its decision by ;,< reducing the award of moral damages from%.B,BBB to %8B,BBB in view of the deceasedRs contributory negligence@ ;b< deleting the award of attorneyRs fees for lac2 of evidence@ and ;c< reducing the interest on hospital and medical bills to CO per annum from . (eptember ,099 until fully paid. H-I >ence, C"(T') J filed the instant petition contending that the Court of "ppeals erred in ;,< applying to the case the fifth paragraph of "rticle 6,9B of the Civil Code, instead of the fourth paragraph thereof@ ;6< that as a managerial employee, "&"+ was deemed to have been always acting within the scope of his assigned tas2 even outside office hours because he was using a vehicle issued to him by petitioner@ and ;8< ruling that petitioner had the burden to prove that the employee was not acting within the scope of his assigned tas2. /ose &enjamin "&"+ merely adopted the statement of facts of petitioner which holds fast on the theory of negligence on the part of the deceased.

!n the other hand, respondents (pouses Fasque* argue that their sonRs death was caused by the negligence of petitionerRs employee who was driving a vehicle issued by petitioner and who was on his way home from overtime wor2 for petitioner@ and that petitioner is thus liable for the resulting injury and subsequent death of their son on the basis of the fifth paragraph of "rticle 6,9B. ven if the fourth paragraph of "rticle 6,9B were applied, petitioner cannot escape liability therefor. They moreover argue that the Court of "ppeals erred in reducing the amount of compensatory damages when the award made by the trial court was borne both by evidence adduced during the trial regarding deceasedRs wages and by jurisprudence on life expectancy. $oreover, they point out that the petition is procedurally not acceptable on the following grounds: ;,< lac2 of an explanation for serving the petition upon the Court of "ppeals by registered mail, as required under (ection ,,, #ule ,8 of the #ules of Civil %rocedure@ and ;6< lac2 of a statement of the dates of the expiration of the original reglementary period and of the filing of the motion for extension of time to file a petition for review. 7or its part, respondent Cebu +octorRs >ospital maintains that petitioner C"(T') J is indeed vicariously liable for the injuries and subsequent death of #omeo Fasque* caused by "&"+, who was on his way home from ta2ing snac2s after doing overtime wor2 for petitioner. "lthough the incident occurred when "&"+ was not wor2ing anymore Mthe inescapable fact remains that said employee would not have been situated at such time and place had he not been required by petitioner to do overtime wor2.S $oreover, since petitioner adopted the evidence adduced by "&"+, it cannot, as the latterRs employer, inveigle itself from the ambit of liability, and is thus estopped by the records of the case, which it failed to refute. Ee shall first address the issue raised by the private respondents regarding some alleged procedural lapses in the petition. %rivate respondentRs contention of petitionerRs violation of (ection ,, of #ule ,8 and (ection - of #ule -. of the ,001 #ules of Civil %rocedure holds no water. (ection ,, of #ule ,8 provides: ( C. ,,. Priorities in modes of service and filing. -- Ehenever practicable, the service and filing of pleadings and other papers shall be done personally. xcept with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. " violation of this #ule may be cause to consider the paper as not filed.

The explanation why service of a copy of the petition upon the Court of "ppeals was done by registered mail is found on %age 69 of the petition. Thus, there has been compliance with the aforequoted provision. "s regards the allegation of violation of the material data rule under (ection - of #ule -., the same is unfounded. The material dates required to be stated in the petition are the following: ;,< the date of receipt of the judgment or final order or resolution subject of the petition@ ;6< the date of filing of a motion for new trial or reconsideration, if any@ and ;8< the date of receipt of the notice of the denial of the motion. Contrary to private respondentRs claim, the petition need not indicate the dates of the expiration of the original reglementary period and the filing of a motion for extension of time to file the petition. "t any rate, aside from the material dates required under (ection - of #ule -., petitioner C"(T') J also stated in the first page of the petition the date it filed the motion for extension of time to file the petition. 5ow on the merits of the case. The negligence of "&"+ is not an issue at this instance. %etitioner C"(T') J presumes said negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by "&"+. %etitioner contends that the fifth paragraph of "rticle 6,9B of the Civil Code should only apply to instances where the employer is not engaged in business or industry. (ince it is engaged in the business of manufacturing and selling furniture it is therefore not covered by said provision. 'nstead, the fourth paragraph should apply. %etitionerRs interpretation of the fifth paragraph is not accurate. The phrase Meven though the former are not engaged in any business or industryS found in the fifth paragraph should be interpreted to mean that it is not necessary for the employer to be engaged in any business or industry to be liable for the negligence of his employee who is acting within the scope of his assigned tas2.H.I " distinction must be made between the two provisions to determine what is applicable. &oth provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or enterprise@ and the fifth paragraph, to employers in general, whether or not engaged in any business or industry. The fourth paragraph covers negligent acts of employees committed either in the service of the branches or on the occasion of their functions, while the fifth paragraph encompasses negligent acts of employees acting within the scope of their assigned tas2. The latter is an expansion of the former in both employer coverage and acts included. 5egligent acts of employees, whether or not the employer is engaged in a business or industry, are

covered so long as they were acting within the scope of their assigned tas2, even though committed neither in the service of the branches nor on the occasion of their functions. 7or, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call of duty. This court has applied the fifth paragraph to cases where the employer was engaged in a business or industry such as truc2 operatorsHCI and ban2s.H1IThe Court of "ppeals cannot, therefore, be faulted in applying the said paragraph of "rticle 6,9B of the Civil Code to this case. Ander the fifth paragraph of "rticle 6,9B, whether or not engaged in any business or industry, an employer is liable for the torts committed by employees within the scope of his assigned tas2s. &ut it is necessary to establish the employer-employee relationship@ once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned tas2 when the tort complained of was committed. 't is only then that the employer may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee.H9I 't is undisputed that "&"+ was a %roduction $anager of petitioner C"(T') J at the time of the tort occurrence. "s to whether he was acting within the scope of his assigned tas2 is a question of fact, which the court a %uo and the Court of "ppeals resolved in the affirmative. Eell-entrenched in our jurisprudence is the rule that the factual findings of the Court of "ppeals are entitled to great respect, and even finality at times. This rule is, however, subject to exceptions such as when the conclusion is grounded on speculations, surmises, or conjectures.H0I (uch exception obtain in the present case to warrant review by this Court of the finding of the Court of "ppeals that since "&"+ was driving petitionerRs vehicle he was acting within the scope of his duties as a manager. &efore we pass upon the issue of whether "&"+ was performing acts within the range of his employment, we shall first ta2e up the other reason invo2ed by the Court of "ppeals in holding petitioner C"(T') J vicariously liable for "&"+Rs negligence, i.e., that the petitioner did not present evidence that "&"+ was not acting within the scope of his assigned tas2s at the time of the motor vehicle mishap. Contrary to the ruling of the Court of "ppeals, it was not incumbent upon the petitioner to prove the same. 't was enough for petitioner C"(T') J to deny that "&"+ was acting within the scope of his duties@ petitioner was not under obligation to prove this negative averment. 6i incumbit probatio %ui dicit, non %ui negat ;>e who asserts, not he who denies, must

prove<. The Court has consistently applied the ancient rule that if the plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner facts which he bases his claim, the defendant is under no obligation to prove his exception or defense.
H,BI

5ow on the issue of whether the private respondents have sufficiently established that "&"+ was acting within the scope of his assigned tas2s. "&"+, who was presented as a hostile witness, testified that at the time of the incident, he was driving a company-issued vehicle, registered under the name of petitioner. >e was then leaving the restaurant where he had some snac2s and had a chat with his friends after having done overtime wor2 for the petitioner. 5o absolutely hard and fast rule can be stated which will furnish the complete answer to the problem of whether at a given moment, an employee is engaged in his employerRs business in the operation of a motor vehicle, so as to fix liability upon the employer because of the employeeRs action or inaction@ but rather, the result varies with each state of facts.H,,I 'n 7ilamer hristian Institute v. Intermediate Appellate ourt , this Court had the occasion to hold that acts done within the scope of the employeeRs assigned tas2s includes Many act done by an employee in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damages.S
H,6I

The court a %uo and the Court of "ppeals were one in holding that the driving by a manager of a company-issued vehicle is within the scope of his assigned tas2s regardless of the time and circumstances. Ee do not agree. The mere fact that "&"+ was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge petitioner with liability for the negligent operation of said vehicle unless it appears that he was operating the vehicle within the course or scope of his employment. The following are principles in "merican /urisprudence on the employerRs liability for the injuries inflicted by the negligence of an employee in the use of an employerRs motor vehicle:

I. O10(a2'o! oA E/1-oy0(@) Mo2o( &04';-0 '! Go'!? 2o o( A(o/ M0a-)

't has been held that an employee who uses his employerRs vehicle in going from his wor2 to a place where he intends to eat or in returning to wor2 from a meal is not ordinarily acting within the scope of his employment in the absence of evidence of some special business benefit to the employer. vidence that by using the employerRs vehicle to go to and from meals, an employee is enabled to reduce his time-off and so devote more time to the performance of his duties supports the finding that an employee is acting within the scope of his employment while so driving the vehicle.H,8I

period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. ven where the employeeRs personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally 2ept, it has been held that he has not resumed his employment, and the employer is not liable for the employeeRs negligent operation of the vehicle during the return trip.H,.I The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondeat superior, not on the principle of bonus pater familias as in ours. Ehether the fault or negligence of the employee is conclusive on his employer as in "merican law or jurisprudence, or merely gives rise to the presumption 8uris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employerRs business or within the scope of his assigned tas2. H,CI 'n the case at bar, it is undisputed that "&"+ did some overtime wor2 at the petitionerRs office, which was located in Cabangcalan, $andaue City. Thereafter, he went to 3oldieRs #estaurant in 7uente !smeQa, Cebu City, which is about seven 2ilometers away from petitionerRs place of business.H,1I " witness for the private respondents, a sidewal2 vendor, testified that 7uente !smeQa is a Mlively placeS even at dawn because 3oldieRs #estaurant and &ac2 (treet were still open and people were drin2ing thereat. $oreover, prostitutes, pimps, and drug addicts littered the place.H,9I "t the 3oldieRs #estaurant, "&"+ too2 some snac2s and had a chat with friends. 't was when "&"+ was leaving the restaurant that the incident in question occurred. That same witness for the private respondents testified that at the time of the vehicular accident, "&"+ was with a woman in his car, who then shouted: M+addy, +addyTSH,0I This woman could not have been "&"+Rs daughter, for "&"+ was only 60 years old at the time. To the mind of this Court, "&"+ was engaged in affairs of his own or was carrying out a personal purpose not in line with his duties at the time he figured in a vehicular accident. 't was then about 6:BB a.m. of 69 "ugust ,099, way beyond the normal wor2ing hours. "&"+Rs wor2ing day had ended@ his overtime wor2 had already been completed. >is being at a place which, as petitioner put it, was 2nown as a Mhaven for prostitutes, pimps, and drug pushers and addicts,S had no connection to petitionerRs business@ neither had it any relation to his duties as a manager. #ather, using his service vehicle even for personal purposes was a form of a fringe benefit or one of the per2s attached to his position.

II. O10(a2'o! oA E/1-oy0(@) &04';-0 '! Go'!? 2o o( A(o/ Wo(B

'n the same vein, traveling to and from the place of wor2 is ordinarily a personal problem or concern of the employee, and not a part of his services to his employer. >ence, in the absence of some special benefit to the employer other than the mere performance of the services available at the place where he is needed, the employee is not acting within the scope of his employment even though he uses his employerRs motor vehicle.H,-I The employer may, however, be liable where he derives some special benefit from having the employee drive home in the employerRs vehicle as when the employer benefits from having the employee at wor2 earlier and, presumably, spending more time at his actual duties. Ehere the employeeRs duties require him to circulate in a general area with no fixed place or hours of wor2, or to go to and from his home to various outside places of wor2, and his employer furnishes him with a vehicle to use in his wor2, the courts have frequently applied what has been called the Mspecial errandS or Mroving commissionS rule, under which it can be found that the employee continues in the service of his employer until he actually reaches home. >owever, even if the employee be deemed to be acting within the scope of his employment in going to or from wor2 in his employerRs vehicle, the employer is not liable for his negligence where at the time of the accident, the employee has left the direct route to his wor2 or bac2 home and is pursuing a personal errand of his own.

III. U)0 oA E/1-oy0(@) &04';-0 O.2)'"0 R0?.-a( Wo(B'!? Ho.()

"n employer who loans his motor vehicle to an employee for the latterRs personal use outside of regular wor2ing hours is generally not liable for the employeeRs negligent operation of the vehicle during the

(ince there is paucity of evidence that "&"+ was acting within the scope of the functions entrusted to him, petitioner C"(T') J had no duty to show that it exercised the diligence of a good father of a family in providing "&"+ with a service vehicle. Thus, justice and equity require that petitioner be relieved of vicarious liability for the consequences of the negligence of "&"+ in driving its vehicle. H6BI WHEREFORE, the petition is 3#"5T +, and the appealed decision and resolution of the Court of "ppeals is "77'#$ + with the modification that petitioner Castilex 'ndustrial Corporation be absolved of any liability for the damages caused by its employee, /ose &enjamin "bad. SO ORDERED. Puno, 5apunan, Pardo, and 9nares$Santiago, &&., concur. G.R. No. 76115 A.?.)2 17, 1995 FILAMER $HRIS%IAN INS%I%U%E, petitioner, vs. HON. IN%ERMEDIA%E APPELLA%E $OUR%, HON. ENRI,UE P. SUPLI$O, '! 4') ;a1a;'2y a) +."?0 oA 240 R0?'o!a- %('a- $o.(2, B(a!;4 I&, RoCa) $'2y a!" PO%EN$IANO <APUNAN, SR., respondents. +edona : +edona La2 ;ffice for petitioner. Rhodora ". 5apunan for private respondents.

The private respondents assert that the circumstances obtaining in the present case call for the application of "rticle 6,9B of the Civil Code since 7untecha is no doubt an employee of the petitioner. The private respondents maintain that under "rticle 6,9B an injured party shall have recourse against the servant as well as the petitioner for whom, at the time of the incident, the servant was performing an act in furtherance of the interest and for the benefit of the petitioner. 7untecha allegedly did not steal the school jeep nor use it for a joy ride without the 2nowledge of the school authorities. "fter a re-examination of the laws relevant to the facts found by the trial court and the appellate court, the Court reconsiders its decision. Ee reinstate the Court of "ppeals= decision penned by the late /ustice +esiderio /urado and concurred in by /ustices /ose C. Campos, /r. and (erafin . Camilon. "pplying Civil Code provisions, the appellate court affirmed the trial court decision which ordered the payment of the %6B,BBB.BB liability in the 4enith 'nsurance Corporation policy, %,B,BBB.BB moral damages, %-,BBB.BB litigation and actual expenses, and %8,BBB.BB attorney=s fees. 't is undisputed that 7untecha was a wor2ing student, being a part-time janitor and a scholar of petitioner 7ilamer. >e was, in relation to the school, an employee even if he was assigned to clean the school premises for only two ;6< hours in the morning of each school day. >aving a student driver=s license, 7untecha requested the driver, "llan $asa, and was allowed, to ta2e over the vehicle while the latter was on his way home one late afternoon. 't is significant to note that the place where "llan lives is also the house of his father, the school president, "gustin $asa. $oreover, it is also the house where 7untecha was allowed free board while he was a student of 7ilamer Christian 'nstitute. "llan $asa turned over the vehicle to 7untecha only after driving down a road, negotiating a sharp dangerous curb, and viewing that the road was clear. ;T(5, "pril -, ,098, pp. 19-10< "ccording to "llan=s testimony, a fast moving truc2 with glaring lights nearly hit them so that they had to swerve to the right to avoid a collision. Apon swerving, they heard a sound as if something had bumped against the vehicle, but they did not stop to chec2. "ctually, the %inoy jeep swerved towards the pedestrian, %otenciano Gapunan who was wal2ing in his lane in the direction against vehicular traffic, and hit him. "llan affirmed that 7untecha followed his advise to swerve to the right. ;Ibid., p. 10< "t the time of the incident ;C:8B %.$.< in #oxas City, the jeep had only one functioning headlight. "llan testified that he was the driver and at the same time a security guard of the petitioner-school. >e further said that there was no specific time for him to be off-duty and that after driving the students home at .:BB in the

GU%IERRE#, +R., J.: The private respondents, heirs of the late %otenciano Gapunan, see2 reconsideration of the decision rendered by this Court on !ctober ,C, ,00B ;7ilamer Christian 'nstitute v. Court of "ppeals, ,0B (C#" -11< reviewing the appellate court=s conclusion that there exists an employer-employee relationship between the petitioner and its co-defendant 7untecha. The Court ruled that the petitioner is not liable for the injuries caused by 7untecha on the grounds that the latter was not an authori*ed driver for whose acts the petitioner shall be directly and primarily answerable, and that 7untecha was merely a wor2ing scholar who, under (ection ,-, #ule J, &oo2 ''' of the #ules and #egulations 'mplementing the )abor Code is not considered an employee of the petitioner.

afternoon, he still had to go bac2 to school and then drive home using the same vehicle. +riving the vehicle to and from the house of the school president where both "llan and 7untecha reside is an act in furtherance of the interest of the petitioner-school. "llan=s job demands that he drive home the school jeep so he can use it to fetch students in the morning of the next school day. 't is indubitable under the circumstances that the school president had 2nowledge that the jeep was routinely driven home for the said purpose. $oreover, it is not improbable that the school president also had 2nowledge of 7untecha=s possession of a student driver=s license and his desire to undergo driving lessons during the time that he was not in his classrooms. 'n learning how to drive while ta2ing the vehicle home in the direction of "llan=s house, 7untecha definitely was not having a joy ride. 7untecha was not driving for the purpose of his enjoyment or for a :frolic of his own: but ultimately, for the service for which the jeep was intended by the petitioner school. ;(ee ). &attistoni v. Thomas, Can (C ,--, , +.).#. .11, 9B ")# 166 H,086I@ (ee also "ssociation of &aptists for Eorld vangelism, 'nc. v. 7ieldmen=s 'nsurance Co., 'nc. ,6- (C#" C,9 H,098I<. Therefore, the Court is constrained to conclude that the act of 7untecha in ta2ing over the steering wheel was one done for and in behalf of his employer for which act the petitioner-school cannot deny any responsibility by arguing that it was done beyond the scope of his janitorial duties. The clause :within the scope of their assigned tas2s: for purposes of raising the presumption of liability of an employer, includes any act done by an employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damage. ;$anuel Casada, ,0B Fa 0BC, .0 ( 6d -1 H,0.BI< ven if somehow, the employee driving the vehicle derived some benefit from the act, the existence of a presumptive liability of the employer is determined by answering the question of whether or not the servant was at the time of the accident performing any act in furtherance of his master=s business. ;Gohlman v. >yland, 6,B 5E C-8, .B ")# ,-81 H,06CI@ /ameson v. 3avett, 1, % 6d 081 H,081I< (ection ,-, #ule J, &oo2 ''' of the #ules implementing the )abor Code, on which the petitioner anchors its defense, was promulgated by the (ecretary of )abor and mployment only for the purpose of administering and enforcing the provisions of the )abor Code on conditions of employment. %articularly, #ule J of &oo2 ''' provides guidelines on the manner by which the powers of the )abor (ecretary shall be exercised@ on what records should be 2ept@ maintained and preserved@ on payroll@ and on the exclusion of wor2ing scholars from, and inclusion of resident physicians in the employment coverage as far as compliance with the substantive labor provisions on wor2ing conditions, rest periods, and wages, is concerned.

'n other words, #ule J is merely a guide to the enforcement of the substantive law on labor. The Court, thus, ma2es the distinction and so holds that (ection ,-, #ule J, &oo2 ''' of the #ules is not the decisive law in a civil suit for damages instituted by an injured person during a vehicular accident against a wor2ing student of a school and against the school itself. The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an alleged employer. 't invo2es a claim brought by one for damages for injury caused by the patently negligent acts of a person, against both doer-employee and his employer. >ence, the reliance on the implementing rule on labor to disregard the primary liability of an employer under "rticle 6,9B of the Civil Code is misplaced. "n implementing rule on labor cannot be used by an employer as a shield to avoid liability under the substantive provisions of the Civil Code. There is evidence to show that there exists in the present case an extracontractual obligation arising from the negligence or rec2less imprudence of a person :whose acts or omissions are imputable, by a legal fiction, to other;s< who are in a position to exercise an absolute or limited control over ;him<.: ;&ahia v. )itonjua and )eynes, 8B %hil. C6- H,0,.I< 7untecha is an employee of petitioner 7ilamer. >e need not have an official appointment for a driver=s position in order that the petitioner may be held responsible for his grossly negligent act, it being sufficient that the act of driving at the time of the incident was for the benefit of the petitioner. >ence, the fact that 7untecha was not the school driver or was not acting within the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the presumption 8uris tantum that there was negligence on its part either in the selection of a servant or employee, or in the supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good father of a family over its employees 7untecha and "llan. The Court reiterates that supervision includes the formulation of suitable rules and regulations for the guidance of its employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his employees. ;&ahia v. )itonjua and )eynes, supra, at p. C69@ %hoenix Construction, v. 'ntermediate "ppellate Court, ,-9 (C#" 8.8 H,091I< "n employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer.

'n the present case, the petitioner has not shown that it has set forth such rules and guidelines as would prohibit any one of its employees from ta2ing control over its vehicles if one is not the official driver or prohibiting the driver and son of the 7ilamer president from authori*ing another employee to drive the school vehicle. 7urthermore, the petitioner has failed to prove that it had imposed sanctions or warned its employees against the use of its vehicles by persons other than the driver. The petitioner, thus, has an obligation to pay damages for injury arising from the uns2illed manner by which 7untecha drove the vehicle. ;Cangco v. $anila #ailroad Co., 89 %hil. 1C9, 116 H,0,9I<. 'n the absence of evidence that the petitioner had exercised the diligence of a good father of a family in the supervision of its employees, the law imposes upon it the vicarious liability for acts or omissions of its employees. ;Amali v. &acani, C0 (C#" 6C8 H,01CI@ %oblete v. 7abros, 08 (C#" 6BB H,010I@ Gapalaran &us )iner v. Coronado, ,1C (C#" 106 H,090I@ 7ranco v. 'ntermediate "ppellate Court, ,19 (C#" 88, H,090I@ %antranco 5orth xpress, 'nc. v. &aesa, ,10 (C#" 89- H,090I< The liability of the employer is, under "rticle 6,9B, primary and solidary. >owever, the employer shall have recourse against the negligent employee for whatever damages are paid to the heirs of the plaintiff. 't is an admitted fact that the actual driver of the school jeep, "llan $asa, was not made a party defendant in the civil case for damages. This is quite understandable considering that as far as the injured pedestrian, plaintiff %otenciano Gapunan, was concerned, it was 7untecha who was the one driving the vehicle and presumably was one authori*ed by the school to drive. The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the petitioner for the consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while. 7or the purpose of recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private respondent heirs were able to establish the existence of employer-employee relationship between 7untecha and petitioner 7ilamer and the fact that 7untecha was engaged in an act not for an independent purpose of his own but in furtherance of the business of his employer. " position of responsibility on the part of the petitioner has thus been satisfactorily demonstrated. E> # 7!# , the motion for reconsideration of the decision dated !ctober ,C, ,00B is hereby 3#"5T +. The decision of the respondent appellate court affirming the trial court decision is # '5(T"T +. (! !#+ # +. 7eliciano, +idin, -avide, &r. and Romero, &&., concur.

G.R. No. 85318 May 18, 1989 GILBER%O M. DUA&I%, petitioner, vs. %HE HON. $OUR% OF APPEALS, A;2'!? 24(o.?4 240 %4'(" D'D')'o!, a) P.3-'; R0)1o!"0!2, a!" AN%ONIO SARMIEN%O, SR. > &IRGILIO $A%UAR respondents. Rodolfo d. -ela ru! for petitioner.

+ito, Lo!ada, ;rtega : astillo for respondents. GU%IERRE#, +R., J.: This petition raises the sole issue of whether or not the owner of a private vehicle which figured in an accident can be held liable under "rticle 6,9B of the Civil Code when the said vehicle was neither driven by an employee of the owner nor ta2en with the consent of the latter. The facts are summari*ed in the contested decision, as follows: 7rom the evidence adduced by the plaintiffs, consisting of the testimonies of witnesses Firgilio Catuar, "ntonio (armiento, /r., #uperto Catuar, /r. and 5orberto &ernarte it appears that on /uly 69, ,01, plaintiffs "ntonio (armiento, (r. and Firgilio Catuar were aboard a jeep with plate number 11-00-7-' $anila, ,01,, owned by plaintiff, #uperto Catuar was driving the said jeep on !rtigas "venue, (an /uan, #i*al@ that plaintiff=s jeep, at the time, was running moderately at 6B to 8. 2ilometers per hour and while approaching #oosevelt "venue, Firgilio Catuar slowed down@ that suddenly, another jeep with plate number 00-017-/ $anila ,01, driven by defendant !scar (abiniano hit and bumped plaintiff=s jeep on the portion near the left rear wheel, and as a result of the impact plaintiff=s jeep fell on its right and s2idded by about 8B yards@ that as a result plaintiffs jeep was damaged, particularly the windshield, the differential, the part near the left rear wheel and the top cover of the jeep@ that plaintiff Firgilio Catuar was thrown to the middle of the road@ his wrist was bro2en and he sustained contusions on the head@ that li2ewise plaintiff "ntonio (armiento, (r. was trapped inside the fallen jeep, and one of his legs was fractured.

vidence also shows that the plaintiff Firgilio Catuar spent a total of %6,-C-.BB for repairs of the jeep, as shown by the receipts of payment of labor and spare parts ; xhs. > to >-1 %laintiffs li2ewise tried to prove that plaintiff Firgilio Catuar, immediately after the accident was ta2en to 'mmaculate Concepcion >ospital, and then was transferred to the 5ational !rthopedic >ospital@ that while plaintiff Catuar was not confined in the hospital, his wrist was in a plaster cast for a period of one month, and the contusions on his head were under treatment for about two ;6< wee2s@ that for hospitali*ation, medicine and allied expenses, plaintiff Catuar spent %.,BBB.BB. vidence also shows that as a result of the incident, plaintiff "ntonio (armiento, (r. sustained injuries on his leg@ that at first, he was ta2en to the 5ational !rthopedic >ospital ; xh. G but later he was confined at the $a2ati $edical Center from /uly 60, to "ugust 60, ,01, and then from (eptember ,. to 6., ,01,@ that his leg was in a plaster cast for a period of eight ;9< months@ and that for hospitali*ation and medical attendance, plaintiff "ntonio (armiento, (r. spent no less than %,8,19..6. as evidenced by receipts in his possession. ; xhs. 5 to 5-,<. %roofs were adduced also to show that plaintiff "ntonio sarmiento (r. is employed as "ssistant "ccountant of the Canlubang (ugar state with a salary of %,,6BB.BB a month@ that as sideline he also wor2s as accountant of Anited >aulers 'nc. with a salary of %.BB.BB a month@ and that as a result of this incident, plaintiff (armiento was unable to perform his normal wor2 for a period of at least 9 months. !n the other hand, evidence shows that the other plaintiff Firgilio Catuar is a Chief Cler2 in Canlubang (ugar state with a salary of %.BB.BB a month, and as a result of the incident, he was incapacitated to wor2 for a period of one ;,< month. The plaintiffs have filed this case both against !scar (abiniano as driver, and against 3ualberto +uavit as owner of the jeep. +efendant 3ualberto +uavit, while admitting ownership of the other jeep ;%late 5o. 00-B1-7-/ $anila, ,01,<, denied that the other defendant ;!scar (abiniano< was his employee. +uavit claimed that he has not been an employer of defendant !scar (abiniano at any time up to the present.

!n the other hand documentary and testimonial evidence show that defendant !scar (abiniano was an employee of the &oard of )iquidators from 5ovember ,-, ,0CC up to /anuary -, ,018 ;"nnex " of "nswer<. +efendant (abiniano, in his testimony, categorically admitted that he too2 the jeep from the garage of defendant +uavit without the consent or authority of the latter ;T(5, (eptember 1, ,019, p. 9<. >e testified further, that +uavit even filed charges against him for theft of the jeep, but which +uavit did not push through as his ;(abiniano=s< parents apologi*ed to +uavit on his behalf. +efendant !scar (abiniano, on the other hand in an attempt to exculpate himself from liability, ma2es it appear that he was ta2ing all necessary precaution while driving and the accident occurred due to the negligence of Firgilio Catuar. (abiniano claims that it was plaintiffs vehicle which hit and bumped their jeep. ;#eno, pp. 6,-68< The trial court found !scar (abiniano negligent in driving the vehicle but found no employer-employee relationship between him and the petitioner because the latter was then a government employee and he too2 the vehicle without the authority and consent of the owner. The petitioner was, thus, absolved from liability under "rticle 6,9B of the Civil Code. The private respondents appealed the case. !n /anuary 1, ,099, the Court of "ppeals rendered the questioned decision holding the petitioner jointly and severally liable with (abiniano. The appellate court in part ruled: Ee cannot go along with appellee=s argument. 't will be seen that in 4argas v. Langcay, supra, it was held that it is immaterial whether or not the driver was actually employed by the operator of record or registered owner, and it is even not necessary to prove who the actual owner of the vehicle and who the employer of the driver is. Ehen the (upreme Court ruled, thus: =Ee must hold and consider such owneroperator of record ;registered owner< as the employer in contemplation of law, of the driver,= it cannot be construed other than that the registered owner is the employer of the driver in contemplation of law. 't is a conclusive presumption of fact and law, and is not subject to rebuttal of proof to the contrary. !therwise, as stated in the decision, we quote:

The purpose of the principles evolved by the decisions in these matters will be defeated and thwarted if we entertain the argument of petitioner that she is not liable because the actual owner and employer was established by the evidence. ... "long the same vein, the defendant-appellee 3ualberto +uavit cannot be allowed to prove that the driver (abiniano was not his employee at the time of the vehicular accident. The ruling laid down in Amar 4. Soberano ;,0CC<, C8 !.3. C9.B, by this Court to the effect that the burden of proving the non-existence of an employer-employee relationship is upon the defendant and this he must do by a satisfactory preponderance of evidence, has to defer to the doctrines evolved by the (upreme Court in cases of damages arising from vehicular mishaps involving registered motor vehicle. ;(ee Tugade v. Court of "ppeals, 9. (C#" 66C, 68B<. ;#ollo, pp. 6C-61< The appellate court also denied the petitioner=s motion for reconsideration. >ence, this petition. The petitioner contends that the respondent appellate court committed grave abuse of discretion in holding him jointly and severally liable with (abiniano in spite of the absence of an employer-employee relationship between them and despite the fact that the petitioner=s jeep was ta2en out of his garage and was driven by (abiniano without his consent. "s early as in ,080, we have ruled that an owner of a vehicle cannot be held liable for an accident involving the said vehicle if the same was driven without his consent or 2nowledge and by a person not employed by him. Thus, in -u%uillo v. +ayot ;C1 %hil. ,8,-,88-,8-< H,080I we said: Ander the facts established, the defendant cannot be held liable for anything. "t the time of the accident, /ames $c3ur2 was driving the truc2, and he was not an employee of the defendant, nor did he have anything to do with the latter=s business@ neither the defendant nor 7ather "yson, who was in charge of her business, consented to have any of her truc2s driven on the day of the accident, as it was a holy day, and much less by a chauffeur who was not in charge of driving it@ the use of the defendant=s truc2 in the circumstances indicated was done without her consent or 2nowledge@ it may, therefore, be said, that there was not the

remotest contractual relation between the deceased %io +uquillo and the defendant. 't necessarily follows from all this that articles ,,B, and following of the Civil Code, cited by the appellant, have no application in this case, and, therefore, the errors attributed to the inferior court are without basis. The Court upholds the above ruling as still relevant and better applicable to present day circumstances. The respondent court=s misplaced reliance on the cases of 6re!o v. &epte ;,B6 %hil. ,B8 H,0.1I and 4argas v. Langcay ;C (C#" ,1- H,0C6I< cannot be sustained. 'n the re*o case, /epte, the registered owner of the truc2 which collided with a taxicab, and which resulted in the 2illing of re*o, claimed that at the time of the accident, the truc2 belonged to the %ort &ro2erage in an arrangement with the corporation but the same was not 2nown to the $otor Fehicles !ffice. This Court sustained the trial court=s ruling that since /epte represented himself to be the owner of the truc2 and the $otor Fehicles !ffice, relying on his representation, registered the vehicle in his name, the 3overnment and all persons affected by the representation had the right to rely on his declaration of ownership and registration. Thus, even if /epte were not the owner of the truc2 at the time of the accident, he was still held liable for the death of re*o significantly, the driver of the truc2 was fully authori*ed to drive it. )i2ewise, in the Fargas case, just before the accident occurred Fargas had sold her jeepney to a third person, so that at the time of the accident she was no longer the owner of the jeepney. This court, nevertheless, affirmed Fargas= liability since she failed to surrender to the $otor Fehicles !ffice the corresponding "C plates in violation of the #evised $otor Fehicle )aw and Commonwealth "ct 5o. ,-C. Ee further ruled that the operator of record continues to be the operator of the vehicle in contemplation of law, as regards the public and third persons, and as such is responsible for the consequences incident to its operator. The vehicle involved was a public utility jeepney for hire. 'n such cases, the law does not only require the surrender of the "C plates but orders the vendor operator to stop the operation of the jeepney as a form of public transportation until the matter is reported to the authorities. "s can be seen, the circumstances of the above cases are entirely different from those in the present case. >erein petitioner does not deny ownership of the vehicle involved in tire mishap but completely denies having employed the driver (abiniano or even having authori*ed the latter to drive his jeep. The jeep was virtually stolen from the petitioner=s garage. To hold, therefore, the petitioner liable for the accident caused by the negligence of (abiniano who was neither his driver nor employee would be absurd as it would be li2e

holding liable the owner of a stolen vehicle for an accident caused by the person who stole such vehicle. 'n this regard, we cannot ignore the many cases of vehicles forcibly ta2en from their owners at gunpoint or stolen from garages and par2ing areas and the instances of service station attendants or mechanics of auto repair shops using, without the owner=s consent, vehicles entrusted to them for servicing or repair. Ee cannot blindly apply absolute rules based on precedents whose facts do not jibe four square with pending cases. very case must be determined on its own peculiar factual circumstances. Ehere, as in this case, the records of the petition fail to indicate the slightest indicia of an employer-employee relationship between the owner and the erring driver or any consent given by the owner for the vehicle=s use, we cannot hold the owner liable. Ee, therefore, find that the respondent appellate court committed reversible error in holding the petitioner jointly and severally liable with (abiniano to the private respondent. E> # 7!# , the petition is 3#"5T + and the decision and resolution appealed from are hereby "55A)) + and ( T "('+ . The decision of the then Court of 7irst 'nstance ;now #egional Trial Court< of )aguna, 9th /udicial +istrict, &ranch C, dated /uly 8B, ,09, is # '5(T"T +. (! !#+ # +. 7ernan, .&., / hairman0, 7eliciano, +idin and ortes &&., concur.

These are appeals brought, on the one hand, by the $etro $anila Transit Corporation ;$$TC< and %edro $usa and, on the other, by the spouses #odolfo F. #osales and )ily #. #osales from the decision, H,I dated "ugust ., ,00-, of the Court of "ppeals, which affirmed with modification the judgment of the #egional Trial Court of Pue*on City holding $$TC and $usa liable to the spouses #osales for actual, moral, and exemplary damages, attorneyRs fees, and the costs of suit for the death of the latterRs daughter. $$TC and $usa in 3.#. 5o. ,,CC,1 appeal insofar as they are held liable for damages, while the spouses #osales in 3.#. 5o. ,6C80. appeal insofar as the amounts awarded are concerned. The facts are as follows: $$TC is the operator of a fleet of passenger buses within the $etro $anila area. $usa was its driver assigned to $$TC &us 5o. 61. The spouses #osales were parents of )i*a #osalie, a third-year high school student at the Aniversity of the %hilippines 'ntegrated (chool. "t around a quarter past one in the afternoon of "ugust 0, ,09C, $$TC &us 5o. 61, which was driven by $usa, hit )i*a #osalie who was then crossing Gatipunan "venue in Pue*on City. "n eye witness said the girl was already near the center of the street when the bus, then bound for the south, hit her.H6I (he fell to the ground upon impact, rolled between the two front wheels of the bus, and was run over by the left rear tires thereof. H8I >er body was dragged several meters away from the point of impact. )i*a #osalie was ta2en to the %hilippine >eart Center, H-I but efforts to revive her proved futile. %edro $usa was found guilty of rec2less imprudence resulting in homicide and sentenced to imprisonment for a term of 6 years and - months, as minimum, to C years, as maximum, by the #egional Trial Court of Pue*on City.H.I The trial court found: "ll told, this Court, therefore, holds that the accused, who was then the driver of $$TC &us 5o. B61, is criminally responsible for the death of the girl victim in violation of "rticle 8C.;6< of the #evised %enal Code. 7or, in the light of the evidence that the girl victim was already at the center of the Gatipunan #oad when she was bumped, and, therefore, already past the right lane when the $$TC &us 5o. B61 was supposed to have passed@ and, since the said bus was then running at a speed of about 6. 2ilometers per hour which is inappropriate since Gatipunan road is a busy street, there is, consequently, sufficient proof to show that the accused was careless, rec2less and imprudent in the operation of his $$TC &us 5o. B61, which is made more evident by the circumstance that the accused did not blow his horn at the time of the accident, and he did not even 2now that he had bumped the girl victim and had ran over her, demonstrating thereby that he did not exercise diligence and ta2e the necessary precaution to avoid injury to persons in the

8G.R. No. 117717. NoD0/30( 17, 19989 ME%RO MANILA %RANSI% $ORPORA%ION EMM%$F, PEDRO A. MUSA, $ONRADO %OLEN%INO, FELI$IANA $ELEBRADO a!" %HE GO&ERNMEN% SER&I$E INSURAN$E S*S%EM, petitioners, vs. $OUR% OF APPEALS, SPS. RODOLFO &. ROSALES a!" LIL* ROSALES, respondents. 8G.R. No. 157396. NoD0/30( 17, 19989 RODOLFO &. ROSALES a!" LIL* R. ROSALES, petitioners, vs. %HE $OUR% OF APPEALS, ME%RO MANILA %RANSI% $ORPORA%ION EMM%$F, PEDRO A. MUSA, $ONRADO %OLEN%INO, FELI$IANA $ELEBRADO a!" %HE GO&ERNMEN% SER&I$E INSURAN$E S*S%EM, respondents. DE$ISION MENDO#A, J.:

operation of his vehicle, as, in fact, he ran over the girl victim who died as a result thereof.HCI The spouses #osales filed an independent civil action for damages against $$TC, $usa, $$TC "cting 3eneral $anager Conrado Tolentino, and the 3overnment (ervice 'nsurance (ystem ;3('(<. They subsequently amended their complaint to include 7eliciana Celebrado, a dispatcher of the $$TC, as a defendant therein. The counsel of $$TC and $usa attempted to introduce testimony that $usa was not negligent in driving &us 5o. 61 but was told by the trial judge: C!A#T: That is it. ?ou can now limit your question to the other defendant here but to re-try again the actual facts of the accident, this Court would not be in the position. 't would be improper for this Court to ma2e any findings with respect to the negligence of herein driver. ?ou as2 questions only regarding the civil aspect as to the other defendant but not as to the accused. H1I The counsel submitted to the ruling of the court. H9I 'n a decision rendered on $arch C, ,00B, the #egional Trial Court of Pue*on City found $$TC and $usa guilty of negligence and ordered them to pay damages and attorneyRs fees, as follows: E> # 7!# , foregoing premises considered, judgment is hereby rendered ordering defendant $etro $anila Transit Corporation primarily and defendant %edro $usa subsidiarily liable to plaintiffs-spouses #odolfo F. #osales and )ily #. #osales as follows: ,. "ctual damages in the amount of %,.B,BBB.BB@ 6. $oral damages in the amount of %.BB,BBB.BB@ 8. xemplary damages in the amount of %,BB,BBB.BB@ -. "ttorneyRs fees in the amount of %.B,BBB.BB@ and .. Costs of suit.H0I &oth parties appealed to the Court of "ppeals. !n "ugust ., ,00-, the Court of "ppeals affirmed the decision of the trial court with the following modification: E> # 7!# , except for the modification deleting the award of %,.B,BBB.BB as actual damages and awarding in lieu thereof the amount

of %8B,BBB.BB as death indemnity, the decision appealed from is, in all other aspects, hereby "77'#$ +.H,BI The spouses #osales filed a motion for reconsideration, which the appellate court, in a resolution, dated (eptember ,6, ,00C, partly granted by increasing the indemnity for the death of )i*a #osalie from %8B,BBB.BB to %.B,BBB.BB. >ence, these appeals. 'n 3.#. 5o. ,,CC,1, $$TC and $usa assail the decision of the Court of "ppeals on the following grounds: %A&)'C # (%!5+ 5T C!A#T !7 "%% ")( ## + '5 "77'#$'53 T> C!A#T " PA!R( + C'('!5 %"#T'CA)"#)? '5 5!T >!)+'53 T>"T % T'T'!5 #"%% ))"5T $$TC J #C'( + T> +')'3 5C !7 " 3!!+ 7"T> # !7 " 7"$')? '5 T> ( ) CT'!5 "5+ (A% #F'('!5 !7 'T( +#'F #(. T>'( & '53 T> C"( , "%% ))"5T $$TC '( 5T'T) + T! & "&(!)F + 7#!$ "5? )'"&')'T? !# "T ) "(T T! " # +ACT'!5 !7 T> # C!F #"&) +"$"3 (. T> %A&)'C # (%!5+ 5T C!A#T !7 "%% ")(, /A(T )'G T> C!A#T " PA!, !F #)!!G + T> 7"CT T>"T % T'T'!5 # $$TC, " 3!F #5$ 5T-!E5 + C!#%!#"T'!5, C!$$'TT + 5! 7#"A+, $")'C , &"+ 7"'T>, 5!# E"5T!5, 7#"A+A) 5T, !%%# (('F "5+ $") F!) 5T "CTA"T'!5( "3"'5(T > # '5 # (%!5+ 5T(-"%% )) (. T> %A&)'C # (%!5+ 5T C!A#T !7 "%% ")( ## + '5 "77'#$'53 T> C!A#T " PA!R( + C'('!5 T! >!)+ % T'T'!5 #-"%% ))"5T $$TC %#'$"#')? )'"&) T! %#'F"T # (%!5+ 5T(-"%% )) ( '5 T> "$!A5T !7%.BB,BBB "( $!#") +"$"3 (, %,BB,BBB "( J $%)"#? +"$"3 ( "5+ %8B,BBB &? E"? !7 + "T> '5+ $5'T?. T> %A&)'C # (%!5+ 5T C!A#T !7 "%% ")( ## + '5 "77'#$'53 T> C!A#T " PA!R( + C'('!5 '5 # 5+ #'53 /A+3$ 5T 7!# "TT!#5 ?R( 7 ( '5 T> "$!A5T !7 %.B,BBB.BB '5 7"F!# !7 %#'F"T # (%!5+ 5T(-"%% )) (. !n the other hand, in 3.#. 5o. ,6C80., the spouses #osales contend: The Court of "ppeals erred in:

7irst, considering that death indemnity which this >onorable Court set at %.B,BBB.BB is a2in to actual damages@ Second, not increasing the amount of damages awarded@ <hird, refusing to hold all the defendants, now private respondents, solidarily liable. $$TC and $usa do not specifically question the findings of the Court of "ppeals and the #egional Trial Court of Pue*on City that )i*a #osalie was hit by $$TC &us 5o. 61. 5onetheless, their petition contains discussions which cast doubts on this point. H,,I 5ot only can they not do this as the rule is that an appellant may not be heard on a question not specifically assigned as error, but the rule giving great weight, and even finality, to the factual conclusions of the Court of "ppeals which affirm those of the trial court bars a reversal of the finding of liability against petitioners $$TC and $usa. !nly where it is shown that such findings are whimsical, capricious, and arbitrary can they be overturned. To the contrary, the findings of both the Court of "ppeals and the #egional Trial Court are solidly anchored on the evidence submitted by the parties. Ee, therefore, regard them as conclusive in resolving the petitions at bar. H,6I 'ndeed, as already stated, petitionersR counsel submitted to the ruling of the court that the finding of the trial court in the criminal case was conclusive on them with regard to the questions of whether )i*a #osalie was hit by $$TC &us 5o. 61 and whether its driver was negligent. #ather, the issue in this case turns on "rt. 6,9B of the Civil Code, which provides that Memployers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tas2s, even though the former are not engaged in any business or industry.S The responsibility of employers for the negligence of their employees in the performance of their duties is primary, that is, the injured party may recover from the employers directly, regardless of the solvency of their employees.H,8I The rationale for the rule on vicarious liability has been adumbrated thus: Ehat has emerged as the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a ris2. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employerRs enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the tort of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them@ and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. "dded to this is the ma2eweight argument that an employer who is held strictly liable is under the greatest

incentive to be careful in the selection, instruction and supervision of his servants, and to ta2e every precaution to see that the enterprise is conducted safely.H,-I 'n ampo v. amarote,H,.I we explained the basis of the presumption of negligence in this wise: The reason for the law is obvious. 't is indeed difficult for any person injured by the carelessness of a driver to prove the negligence or lac2 of due diligence of the owner of the vehicle in the choice of the driver. Eere we to require the injured party to prove the ownerRs lac2 of diligence, the right will in many cases prove illusory, as seldom does a person in the community, especially in the cities, have the opportunity to observe the conduct of all possible car owners therein. (o the law imposes the burden of proof of innocence on the vehicle owner. 'f the driver is negligent and causes damage, the law presumes that the owner was negligent and imposes upon him the burden of proving the contrary. mployers may be relieved of responsibility for the negligent acts of their employees within the scope of their assigned tas2s only if they can show that Mthey observed all the diligence of a good father of a family to prevent damage.SH,CI 7or this purpose, they have the burden of proving that they have indeed exercised such diligence, both in the selection of the employee who committed the quasi-delict and in the supervision of the performance of his duties. 'n the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. H,1I !n the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. H,9I To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence. H,0I 'n this case, $$TC sought to prove that it exercised the diligence of a good father of a family with respect to the selection of employees by presenting mainly testimonial evidence on its hiring procedure. "ccording to $$TC, applicants are required to submit professional driving licenses, certifications of wor2 experience, and clearances from the 5ational &ureau of 'nvestigation@ to undergo tests of their driving s2ills, concentration, reflexes, and vision@ and, to complete training programs on traffic rules, vehicle maintenance, and standard operating procedures during emergency cases.
H6BI

$$TCRs evidence consists entirely of testimonial evidence ;,< that transport supervisors are assigned to oversee field operations in designated areas@ ;6< that the maintenance department daily inspects the engines of the

vehicles@ and, ;8< that for infractions of company rules there are corresponding penalties.H6,I"lthough testimonies were offered that in the case of %edro $usa all these precautions were followed, H66I the records of his interview, of the results of his examinations, and of his service were not presented. $$TC submitted brochures and programs of seminars for prospective employees on vehicle maintenance, traffic regulations, and driving s2ills and claimed that applicants are given tests to determine driving s2ills, concentration, reflexes, and vision, H68I but there is no record that $usa attended such training programs and passed the said examinations before he was employed. 5o proof was presented that $usa did not have any record of traffic violations. 5or were records of daily inspections, allegedly conducted by supervisors, ever presented. 5ormally, employers 2eep files concerning the qualifications, wor2 experience, training, evaluation, and discipline of their employees. The failure of $$TC to present such documentary proof puts in doubt the credibility of its witnesses. Ehat was said in entral <a3icab orporation v. 63$Meralco 6mployees <ransportation orporationH6-I applies to this case: This witness spo2e of an affidavit of experience which a driver-applicant must accomplish before he is employed by the company, a written time schedule for each bus, and a record of the inspections and thorough chec2s pertaining to each bus before it leaves the car barn@ yet no attempt was ever made to present in evidence any of these documents, despite the fact that they were obviously in the possession and control of the defendant company. .... "lbert also testified that he 2ept records of the preliminary and final tests given by him as well as a record of the qualifications and experience of each of the drivers of the company. 't is rather strange, therefore, that he failed to produce in court the all important record of #oberto, the driver involved in this case. The failure of the defendant company to produce in court any record or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefor by both the trial court and the opposing counsel, argues strongly against its pretensions. 't is noteworthy that, in another case involving $$TC, testimonial evidence of identical content, which $$TC presented to show that it exercised the diligence of a good father of a family in the selection and supervision of employees and thus avoid vicarious liability for the negligent

acts of its employees, was held to be insufficient to overcome the presumption of negligence against it. 'n Metro Manila <ransit orp. v. ourt of Appeals, H6.I this Court said: Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, or even object evidence for that matter, inasmuch as the witnessesR testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. %etitionerRs attempt to prove its diligentissimi patris familiasin the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony. >aving found both $$TC and its driver %edro $usa liable for negligence for the death of )i*a #osalie on "ugust 0, ,09C, we now consider the question of damages which her parents, the spouses #osales, are entitled to recover, which is the subject of the appeal in 3.#. 5o. ,6C80.. 'ndemnity for +eath. "rt. 66BC provides for the payment of indemnity for death caused by a crime or quasi-delict. 'nitially fixed in said article of the Civil Code at %8,BBB.BB, the amount of the indemnity has through the years been gradually increased based on the value of the peso. "t present, it is fixed at%.B,BBB.BB.H6CI To conform to this new ruling, the Court of "ppeals correctly increased the indemnity it had originally ordered the spouses #osales to be paid from %8B,BBB.BB to %.B,BBB.BB in its resolution, dated (eptember ,6, ,00C. "ctual +amages. "rt. 6,00 provides that Mexcept as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.S The spouses #osales are claiming actual damages in the amount of %680,6-..-B. >owever, during the trial, they submitted receipts showing that expenses for the funeral, wa2e, and interment of )i*a #osalie amounted only to %CB,66C.C. itemi*ed as follows: H61I $edical "ttendance 7uneral (ervices Ereaths mbalment !bituaries % 180.C. .,,BB.BB 6,.BB.BB ,,BBB.BB 1,,6..BB

'nterment fees xpenses during wa2e $ourning clothes %hotography Fideo Coverage %rinting of invitation cards T!T")

6,8.B.BB ,-,08..BB .,BBB.BB 8,.BB.BB ,B,BBB.BB 1,011.BB CB,66C.C.

The death of )i*a #osalie left a void in their lives. #odolfo #osales testified on the devastating effect of the death of )i*a #osalie: P: "nd after she died, what changes, if any, did you feel in your familyL ": Eell, there is something hollow in our family, something is missing. (he used to greet me when ' came home and smell if ' was drun2 and would tell me to dress up and ta2e a shower before her mommy could see me. (he would call me up at the office and say: M+addy, come home, please help me with my homewor2.S 5ow, all these things, ' am missing, you 2now. . . . ' do not feel li2e going home early. (ometimes my wife would complain and as2: MEhere did you goLS &ut ' cannot explain to her how ' feel.H8BI )ily #osales described life without )i*a #osalie thus: P: 5ow, your life without )i*a, how would you describe it, +r. #osalesL

>ence, apart from the indemnity for death, the spouses #osales are entitled to recover the above amount as actual damages. $oral +amages. Ander "rt. 66BC, the Mspouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.S The reason for the grant of moral damages has been explained thus: . . . the award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo ante@ and therefore, it must be proportionate to the suffering inflicted. The intensity of the pain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the wealth or means of the offender.H69I 'n the instant case, the spouses #osales presented evidence of the intense moral suffering they had gone through as a result of the loss of )i*a #osalie who was their youngest child. #odolfo #osales recounted the place of )i*a #osalie in the family and their relationship with her in the following words: P: $r. #osales, how was )i*a to you as a daughterL ": Eell, )i*a as a daughter was the greatest joy of the family@ she was our pride, and everybody loved her - all her brothers and sisters because she was sweet and unspoiled. . . . (he was soft-spo2en to all of us@ and she still slept with us at night although she had her own room. (ometimes in the middle of the night she would open our door and as2 if she could sleep with us. (o we let her sleep with us, as she was the youngest.H60I

": ?ou 2now it is very hard to describe. The family was bro2en apart. Ee could not go together because we remember )i*a. very time we go to the cemetery we try as much as possible not to go together. (o, we go to the cemetery one at a time, sometimes, my husband and ', or my son and another one, but we never go together because we remember )i*a. &ut before her death we would always be together, the whole family on wee2ends and on our days off. $y husband wor2s very hard, ' also wor2 very hard and my children go to school. They study very hard. 5ow we cannot go together on outings because of the absence of )i*a. H8,I The spouses #osales claim moral damages in the amount of %.,BBB,BBB.BB. 'n People v. <eehan,ee, &r.,H86I this Court awarded %, million as moral damages to the heirs of a seventeen-year-old girl who was murdered. This amount seems reasonable to us as moral damages for the loss of a minor child, whether he or she was a victim of a crime or a quasidelict. >ence, we hold that the $$TC and $usa are solidarily liable to the spouses #osales in the amount of %,,BBB,BBB.BB as moral damages for the death of )i*a #osalie. xemplary +amages. "rt. 668, provides that exemplary damages may be recovered in cases involving quasi-delicts if Mthe defendant acted with gross negligence.S This circumstance obtains in the instant case. The records indicate that at the time of the mishap, there was a pending criminal case against $usa for rec2less imprudence resulting in slight physical injuries with another branch of the #egional Trial Court, Pue*on City. H88I The evidence also shows that he failed to stop his vehicle at once even after eye witnesses shouted at him. The spouses #osales claim exemplary damages in the amount of %.,BBB,BBB.BB. Ander the circumstances, we deem it reasonable to award the spouses #osales exemplary damages in the amount of five hundred thousand pesos ;%.BB,BBB.BB<.

"ttorneyRs 7ees. %ursuant to "rt. 66B9, attorneyRs fees may be recovered when, as in the instant case, exemplary damages are awarded. 'n the recent case of Sulpicio Lines, Inc. v. ourt of Appeals ,H8-I which involved the death of a minor child in the sin2ing of a vessel, we held an award of %.B,BBB.BB as attorneyRs fees to be reasonable. >ence, we affirm the award of attorneyRs fees made by the Court of "ppeals to the spouses #osales in that amount. Compensation for )oss of arning Capacity. "rt. 66BC of the Civil Code provides that in addition to the indemnity for death caused by a crime or quasi delict, the Mdefendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter@ . . . .S Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. H8.I vidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession.H8CI 'n People v. <eehan,ee,H81I no award of compensation for loss of earning capacity was granted to the heirs of a college freshman because there was no sufficient evidence on record to show that the victim would eventually become a professional pilot. H89I &ut compensation should be allowed for loss of earning capacity resulting from the death of a minor who has not yet commenced employment or training for a specific profession if sufficient evidence is presented to establish the amount thereof. 'n the Anited (tates it has been observed: This raises the broader question of the proper measure of damages in death cases involving children, housewives, the old, and others who do not have mar2et income so that there is no pecuniary loss to survivors or to the estate of the decedent. The traditional approach was to award no or merely nominal damages in such cases. . . . 'ncreasingly, however, courts allow expert testimony to be used to project those lost earnings. H80I Thus, in Haumersen v. 7ord Motor o. ,H-BI the court allowed the heirs of a seven-year-old boy who was 2illed in a car accident to recover compensation for loss of earning capacity: Considerable evidence was presented by plaintiffs in an effort to give the jury a foundation on which to ma2e an award. &riefly stated, this evidence showed Charles >aumersen was a seven-year-old of above average characteristics. >e was described as Mvery intelligentS and Mall"merican.S >e received high mar2s in school. >e was active in church affairs and participated in recreational and athletic events, often with children older than himself. 'n addition, he had an unusual talent for creating numerous cartoons and other drawings, some of which plaintiffs introduced at trial.

The record does not disclose passion and prejudice. The 2ey question is whether the verdict of U,BB,BBB has support in the evidence. Apon analysis of the record, we conclude that we should not disturb the award. The argument for allowing compensation for loss of earning capacity of a minor is even stronger if he or she was a student, whether already training for a specific profession or still engaged in general studies. 'n 5rohmer v. -ahl,H-,I the court, in affirming the award by the jury of U9.,BBB.BB to the heirs of an eighteen-year-old college freshman who died of carbon monoxide poisoning, stated as follows: There are numerous cases that have held admissible evidence of prospective earnings of a student or trainee. . . . The appellants contend that such evidence is not admissible unless the course under study relates to a given occupation or profession and it is shown that the student is reasonably certain to follow that occupation or profession. 't is true that the majority of these decisions deal with students who are studying for a specific occupation or profession. >owever, not one of these cases indicate that evidence of oneRs education as a guide to future earnings is not admissible where the student is engaged in general studies or whose education does not relate to a specific occupation. 'n sharp contrast with the situation obtaining in People v. <eehan,ee, where the prosecution merely presented evidence to show the fact of the victimRs graduation from high school and the fact of his enrollment in a flying school, the spouses #osales did not content themselves with simply establishing )i*a #osalieRs enrollment at A% 'ntegrated (chool. They presented evidence to show that )i*a #osalie was a good student, promising artist, and obedient child. (he consistently performed well in her studies since grade school.H-6I " survey ta2en in ,09- when )i*a #osalie was twelve years old showed that she had good study habits and attitudes. H-8I Cleofe Chi, guidance counselor of the Aniversity of the %hilippines 'ntegrated (chool, described )i*a #osalie as personable, well-li2ed, and with a balanced personality.H--I %rofessor "lfredo #ebillon, a faculty member of the Aniversity of the %hilippines College of 7ine "rts, who organi*ed wor2shops which )i*a #osalie attended in ,096 and ,098, testified that )i*a #osalie had the potential of eventually becoming an artist.H-.I %rofessor #ebillonRs testimony is more than sufficiently established by the ., samples of )i*a #osalieRs watercolor, charcoal, and pencil drawings submitted as exhibits by the spouses #osales. H-CI 5either $$TC nor %edro $usa controverted this evidence. Considering her good academic record, extra-curricular activities, and varied interests, it is reasonable to assume that )i*a #osalie would have

enjoyed a successful professional career had it not been for her untimely death. >ence, it is proper that compensation for loss of earning capacity should be awarded to her heirs in accordance with the formula established in decided casesH-1I for computing net earning capacity, to wit: 3ross ssary 5et arning Capacity s )ife expectancy is equivalent to two thirds ; 6K8< multiplied by the difference of eighty ;9B< and the age of the deceased. H-9I (ince )i*a #osalie was ,C at the time of her death, her life expectancy was -- more years. H-0I >er projected gross annual income, computed based on the minimum wage for wor2ers in the non-agricultural sector in effect at the time of her death,H.BI then fixed at %81.BB,H.,I is %,-,C8B.-C.H.6I "llowing for necessary living expenses of fifty percent ;.BO< of her projected gross annual income, H.8I her total net earning capacity amounts to %86,,91B.,6.H.-I 7inally, the spouses #osales argue that the Court of "ppeals erred in absolving Conrado Tolentino, 7eliciana Celebrado, and the 3('( of liability. The spouses #osales alleged that Tolentino, as "cting 3eneral $anager of the $$TC, and Celebrado, as a dispatcher thereof, were charged with the supervision of $usa and should, therefore, be held vicariously liable under "rt. 6,9B of the Civil Code. Eith respect to the 3('(, they contend that it was the insurer in a contract for third party liability it had with the $$TC. "lthough the fourth paragraph of "rt. 6,9B mentions MmanagersS among those made responsible for the negligent acts of others, it is settled that this term is used in the said provision in the sense of Memployers.S H..I Thus, Tolentino and Celebrado cannot be held liable for the tort of %edro $usa. 'n 4da. de Maglana v. onsolacion ,H.CI it was ruled that an insurer in an indemnity contract for third party liability is directly liable to the injured party up to the extent specified in the agreement, but it cannot be held solidarily liable beyond that amount. The 3('( admitted in its answer that it was the insurer of the $$TC for third party liability with respect to $$TC &us 5o. 61 to the extent of %.B,BBB.BB.H.1I >ence, the spouses #osales have the option either to claim the said amount from the 3('( and the balance of the award from $$TC and $usa or to enforce the entire judgment against the latter, subject to reimbursement from the former to the extent of the insurance coverage.H.9I !ne last word. The #egional Trial Court of Pue*on City erred in holding $$TC primarily and $usa secondarily liable for damages arising from the
V

death of )i*a #osalie. 't was error for the appellate court to affirm this aspect of the trial courtRs decision. "s already stated, $$TC is primarily liable for damages for the negligence of its employee in view of "rt. 6,9B. %ursuant to "rt. 6,9,, it can recover from its employee what it may pay. This does not ma2e the employeeRs liability subsidiary. 't only means that if the judgment for damages is satisfied by the common carrier, the latter has a right to recover what it has paid from its employee who committed the fault or negligence which gave rise to the action based on quasi-delict. H.0I >ence, the spouses #osales have the option of enforcing the judgment against either $$TC or $usa. 7rom another point of view, "rt. 6,0- provides that Mthe responsibility of two or more persons who are liable for a quasi-delict is solidary.S Ee ruled in"elisan v. AldayHCBI that Mthe registered ownerKoperator of a public service vehicle is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries sustained in the operation of said vehicle.S 'n +ali2ag <ransit, Inc. v. ourt of Appeals HC,Iit was held that Mto escape solidary liability for a quasi-delict committed by an employee, the employer must adduce sufficient proof that it exercised such degree of care.S 7inally, we held in the recent case of Philtranco Service 6nterprises, Inc. v. ourt of Appeals HC6I that Mthe liability of the registered owner of a public service vehicle . . . for damages arising from the tortious acts of the driver is primary, direct, and joint and several or solidary with the driver.S WHEREFORE, the decision of the Court of "ppeals is ( T "('+ and another one is # 5+ # + holding the $etro $anila Transit Corporation and %edro $usa jointly and severally liable for the death of )i*a #osalie #. #osales and !#+ #'53 them as such to pay to the spouses #odolfo F. #osales and )ily #. #osales the following amounts: ,< death indemnity in the amount of fifty thousand pesos ;%.B,BBB.BB<@ 6< actual damages in the amount of sixty thousand two hundred twenty six pesos and sixty five centavos ;%CB,66C.C.<@ 8< moral damages ;%,,BBB,BBB.BB<@ in the amount of one million pesos

5ece

)ife xpectancy

"nnual - )iving 'ncome xpense

-< exemplary damages in the amount of five hundred thousand pesos ;%.BB,BBB.BB<@ .< attorneyRs fees in the amount of fifty thousand pesos ;%.B,BBB.BB<@

C< compensation for loss of earning capacity in the amount of three hundred twenty-one thousand eight hundred seventy pesos and twelve centavos ;%86,,91B.,6<@ and 1< the costs of suit. SO ORDERED. Melo /Acting hairman0 and Puno, &&., concur. Martine!, &., no part. !n official leave. G.R. No. 85476 F03(.a(y 56, 1991 S%. FRAN$IS HIGH S$HOOL, a) (01(0)0!20" 3y SPS. FERNANDO NAN%ES AND ROSARIO LA$ANDULA, BEN+AMIN ILUMIN, %IRSO DE $HA&E#, LUISI%O &INAS, $ONNIE AR,UIO AND PA%RIA $ADI#, petitioners, vs. %HE HONORABLE $OUR% OF APPEALS, ELE&EN%H DI&ISION a!" DR. ROMULO $AS%ILLO a!" LILIA $ADI#,respondents. &ose . 7lores, &r. for petitioners.

absolved from liability, and the case against them, together with their respective counterclaims, is hereby ordered dismissed. (! !#+ # +. ;p. CB, Rollo< The complaint alleged that 7erdinand Castillo, then a freshman student of (ection ,-C at the (t. 7rancis >igh (chool, wanted to join a school picnic underta2en by Class '-& and Class '-C at Talaan &each, (ariaya, Pue*on. 7erdinand=s parents, respondents spouses +r. #omulo Castillo and )ilia Cadi* Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the picnic, with the directive that he should go bac2 home after doing so. >owever, because of persuasion of the teachers, 7erdinand went on with them to the beach. +uring the picnic and while the students, including 7erdinand, were in the water, one of the female teachers was apparently drowning. (ome of the students, including 7erdinand, came to her rescue, but in the process, it was 7erdinand himself who drowned. >is body was recovered but efforts to resuscitate him ashore failed. >e was brought to a certain +r. )una in (ariaya, Pue*on and later to the $t. Cannel 3eneral >ospital where he was pronounced dead on arrival. Thereupon, respondent spouses filed a complaint doc2eted as Civil Case 5o. 998-, in the #egional Trial Court, &ranch )F''' of )ucena City, against the (t. 7rancis >igh (chool, represented by the spouses 7ernando 5antes and #osario )acandula, &enjamin 'llumin ;its principal<, and the teachers: Tirso de Chaves, )uisito Finas, Connie "rquio, 5ida "ragones, ?oly /aro, and %atria Cadi*, for +amages which respondents allegedly incurred from the death of their ,8-year old son, 7erdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the proper diligence of a good father of the family in preventing their son=s drowning, respondents prayed of actual, moral and exemplary damages, attorney=s fees and expenses for litigation. The trial court found in favor of the respondents and against petitionersteachers "rquio, de Chaves, Finas, "ragones, /aro and Cadi*, ordering all of them jointly and severally to pay respondents the sum of %8B,BBB.BB as actual damages, %6B,BBB.BB as moral damages, %,.,BBB.BB as attorney=s fees, and to pay the costs. The court a %uo reasoned: Ta2ing into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie "rquio, )uisito Finas, Tirso de Chaves, ?oly /aro, 5ida "ragones and %atria Cadi* had failed to exercise the diligence required

&ovito 6. <alabong for private respondents.

PARAS, J.:p This is a petition for review of the decision G of the Court of "ppeals, the dispositive portion of which reads: E> # 7!# , the decision under appeal is hereby affirmed, with the following modifications: ;,< xemplary damages in the amount of %6B,BBB.BB are hereby awarded to plaintiffs, in addition to the actual damages of %8B,BBB.BB, moral damages of %6B,BBB.BB and attorney=s fees in the amount of %,.,BBB.BB awarded to plaintiffs in the decision under appeal@ ;6< (t. 7rancis >igh (chool, represented by the (pouses 7ernando 5antes and #osario )acandula, and &enjamin 'llumin, are hereby held jointly and severally liable with defendants Connie "rquio, Tirso de Chaves, )uisito Finas and %atria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages and attorney=s fees, and for costs@ and ;8< +efendants ?oly /aro and 5ida "ragones are hereby

of them by law under the circumstances to guard against the harm they had foreseen. ;pp. 608B, Rollo< xxx xxx xxx Ehile it is alleged that when defendants ?oly /aro and 5ida "ragones arrived at the picnic site, the drowning incident had already occurred, such fact does not and cannot excuse them from their liability. 'n fact, it could be said that by coming late, they were remiss in their duty to safeguard the students. ;p. 8B, Rollo< The students, young as they were then ;,6 to ,8 years old<, were easily attracted to the sea without aforethought of the dangers it offers. ?et, the precautions and reminders allegedly performed by the defendants-teachers definitely fell short of the standard required by law under the circumstances. Ehile the defendants-teachers admitted that some parts of the sea where the picnic was held are deep, the supposed lifeguards of the children did not even actually go to the water to test the depth of the particular area where the children would swim. "nd indeed the fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons during the picnic got drowned at the same time. >ad the defendant teachers made an actual and physical observation of the water before they allowed the students to swim, they could have found out that the area where the children were swimming was indeed dangerous. "nd not only that, the male teachers who according to the female teachers were there to supervise the children to ensure their safety were not even at the area where the children were swimming. They were somewhere and as testified to by plaintiffs= witness they were having a drin2ing spree. ;pp. ..-.C, Rollo< !n the other hand, the trial court dismissed the case against the (t. 7rancis >igh (chool, &enjamin 'llumin and "urora Cadorna. (aid the court a %uo: "s shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school sanctioned one. (imilarly no evidence has been shown to hold defendants &enjamin 'llumin and "urora Cadorna responsible for the death of 7erdinand Castillo together with the other defendant teachers. 't has been sufficiently shown that &enjamin 'llumin had himself not consented to the picnic

and in fact he did not join it. !n the other hand, defendant "urora Cadorna had then her own class to supervise and in fact she was not amongst those allegedly invited by defendant Connie "rquio to supervise class '-C to which 7erdinand Castillo belongs. ;p. 8B, Rollo< &oth petitioners and respondents appealed to the Court of "ppeals. #espondents-spouses assigned the following errors committed by the trial court: ,. The lower court erred in not declaring the defendant (t. 7rancis >igh (chool and its administratorKprincipal &enjamin 'llumin as equally liable not only for its approved cocurricular activities but also for those which they unreasonably failed to exercise control and supervision li2e the holding of picnic in the dangerous water of Talaan &each, (ariaya, Pue*on. 6. The lower court erred in not declaring the (t. 7rancis >igh (chool and principal &enjamin 'llumin as jointly and solidarily liable with their co-defendants-teachers #osario )acandula, et als., for the tragic death of 7erdinand Castillo in a picnic at Talaan &each, (ariaya, Pue*on, last $arch 6B, ,096. 8. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death of 7erdinand Castillo in favor of plaintiffs-appellants against all the defendants. ;pp. .C-.1, Rollo< The Court of "ppeals ruled: Ee find plaintiffs-appellants= submission well-ta2en. ven were Ee to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be gainsaid that the same was held under the supervision of the teachers employed by the said school, particularly the teacher in charge of Class '-C to whom the victim belonged, and those whom she invited to help her in supervising the class during the picnic. Considering that the court a %uo found negligence on the part of the six defendantsteachers who, as such, were charged with the supervision of the children during the picnic, the (t. 7rancis >igh (chool and the school principal, &enjamin 'llumin, are liable under "rticle 6,1C ta2en together with the ,st, -th and .th

paragraphs of "rticle 6,9B of the Civil Code. They cannot escape liability on the mere excuse that the picnic was not an :extra-curricular activity of the (t. 7rancis >igh (chool.: Ee find from the evidence that, as claimed by plaintiffsappellants, the school principal had 2nowledge of the picnic even from its planning stage and had even been invited to attend the affair@ and yet he did not express any prohibition against underta2ing the picnic, nor did he prescribe any precautionary measures to be adopted during the picnic. "t the least, Ee must find that the school and the responsible school officials, particularly the principal, &enjamin 'llumin, had acquiesced to the holding of the picnic. Ander "rticle 6,9B, supra, the defendant school and defendant school principal must be found jointly and severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the death of their son. 't is the rule that in cases where the above-cited provisions find application, the negligence of the employees in causing the injury or damage gives rise to a presumption of negligence on the part of the owner andKor manager of the establishment ;in the present case, (t. 7rancis >igh (chool and its principal<@ and while this presumption is not conclusive, it may be overthrown only by clear and convincing proof that the owner andKor manager exercised the care and diligence of a good father of a family in the selection andKor supervision of the employee or employees causing the injury or damage ;in this case, the defendantsteachers<. The record does not disclose such evidence as would serve to overcome the aforesaid presumption and absolve the (t. 7rancis >igh (chool and its principal from liability under the above-cited provisions. "s to the third assigned error interposed by plaintiffsappellants, while Ee cannot but commiserate with the plaintiffs for the tragedy that befell them in the untimely death of their son 7erdinand Castillo and understand their suffering as parents, especially the victim=s mother who, according to appellants, suffered a nervous brea2down as a result of the tragedy, Ee find that the amounts fixed by the court a %uo as actual damages and moral damages ;%8B,BBB.BB and %6B,BBB.BB, respectively< are reasonable and are those which are sustained by the evidence and the law.

>owever, Ee believe that exemplary or corrective damages in the amount of %6B,BBB.BB may and should be, as it is hereby, imposed in the present case by way of example of correction for the public good, pursuant to "rticle 6660 of the Civil Code. ;pp. .1-.0, Rollo< !n the other hand, petitioners-teachers assigned the following errors committed by the trial court: ,. :. . . in finding the defendants Connie "rquio, Tirso de Chave*, )uisito Finas, 5ida "ragones, ?oly /aro and %atria Cadi* guilty of negligence and jointly and severally liable for damages such finding not being supported by facts and evidence. 6. :. . . in dismissing the counterclaim interposed by the defendants. ;p. .0, Rollo< !n this score, respondent Court ruled: The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim 7erdinand Castillo, were not able to prove by their evidence that they did not give their son consent to join the picnic in question. >owever, Ee agree with the trial court in its finding that whether or not the victim=s parents had given such permission to their son was immaterial to the determination of the existence of liability on the part of the defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their son. Ehat is material to such a determination is whether or not there was negligence on the part of defendants vis$a$vis the supervision of the victim=s group during the picnic@ and, as correctly found by the trial court, an affirmative reply to this question has been satisfactorily established by the evidence, as already pointed out. >owever, Ee sustain defendants-appellants insofar as two of the defendants-teachers, ?oly /aro and 5ida "ragones, are concerned. "s to them, the trial court found: Ehile it is alleged that when defendants ?oly /aro and 5ida "ragones arrived at the picnic site, the drowning incident had already occurred, such fact does not and cannot excuse them from their liability. 'n

fact, it could be said that by coming late, they were remiss in their duty to safeguard the students. The evidence shows that these two defendants had satisfactorily explained why they were late in going to the picnic site, namely, that they had to attend to the entrance examination being conducted by the school which is part of their duty as teachers thereof. (ince they were not at the picnic site during the occurrence in question, it cannot be said that they had any participation in the negligence attributable to the other defendants-teachers who failed to exercise diligence in the supervision of the children during the picnic and which failure resulted in the drowning of plaintiffs= son. Thus, Ee may not attribute any act or omission to the two teachers, ?oly /aro and 5ida "ragones, as to ma2e them liable for the injury caused to the plaintiffs because of the death of their son resulting from his drowning at the picnic. "ccordingly, they must be absolved from any liability. "s to the second assigned error raised by defendantsappellants, Ee agree with the court a %uo that the counterclaim must be dismissed for lac2 of merit. ;pp. .0CB, Rollo< >ence, this petition. The issues presented by petitioners are: "< Ehether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs@ &< Ehether or not "rt. 6,9B, in relation to "rt. 6,1C of the 5ew Civil Code is applicable to the case at bar@ C< Ehether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. ;pp. 9,-96, Rollo< 'n the resolution of /anuary ,C, ,090, Ee gave due course to the petition and required the parties to submit their respective memoranda. The petition is impressed with merit.

'f at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under them. 'n the instant case however, as will be shown hereunder, petitioners are neither guilty of their own negligence or guilty of the negligence of those under them. >ence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages of any 2ind. "t the outset, it should be noted that respondent spouses, parents of the victim 7erdinand, allo2ed their son to join the excursion. <estimony of -r. astillo on cross e3am. by Atty. 7lores

P 5ow, when your son as2ed you for money to buy food, did you not as2 him where he will bring thisL " ' as2ed him where he was going, he answered, ' am going to the picnic, and when ' as2ed him where, he did not answer, sir. P "nd after giving the money, you did not tell him anything moreL " 5o more, sir. P "nd after that you just learned that your son join the picnicL " ?es, sir. P "nd you came to 2now of it after the news that your son was drowned in the picnic came to you, is that correctL " ?es, sir. P 7rom 9:BB o=cloc2 in the morning up to ,6:BB o=cloc2 noon of $arch 6B, ,096, you did not 2now that your son join the picnicL " 5o, sir, ' did not 2now.

P +id you not loo2 for your son during that timeL " ' am too busy with my profession, that is why ' was not able, sir. P ?ou did not as2 your wifeL " ' did not, sir. P "nd neither did your wife tell you that your son join the picnicL " )ater on after ,6:BB, sir. P "nd during that time you were too busy that you did not inquire whether your son have joined that picnicL " ?es, sir. ;T(5, pp. ,C-,1, hearing of "pril 6, ,09witness #omulo Castillo< The fact that he gave money to his son to buy food for the picnic even without 2nowing where it will be held, is a sign of consent for his son to join the same. 7urthermore. <estimony of -r. La!aro on cross e3amination: P >ow did you conduct this mental and physical examinationL " I have intervie2ed several persons and the patient herself She even felt guilty about the death of her son because she coo,ed adobo for him so he could 8oin the e3cursion 2here her son died of dro2ning. P Ehy were you able to say she was feeling guilty because she was the one who personally coo2ed the adobo for her sonL

" 't was during the interview that ' had gathered it from the patient herself. (he was very sorry had she not allowed her son to join the excursion her son would have not drowned. ' don=t 2now if she actually permitted her son although she said she coo,ed adobo so he could 8oin. ; mphasis (upplied< ;T(5, p. ,0, hearing of "pril 8B, ,09-, +r. )a*aro D witness<. #espondent Court of "ppeals committed an error in applying "rticle 6,9B of the Civil Code in rendering petitioner school liable for the death of respondent=s son. "rticle 6,9B, par. - states that: The obligation imposed by article 6,1C is demandable not only for one=s own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx mployers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tas2s, even though the former are not engaged in any business or industry. Ander this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused damage or prejudice must have occurred while an employee was in the performance of his assigned tas2s. 'n the case at bar, the teachersKpetitioners were not in the actual performance of their assigned tas2s. The incident happened not within the school premises, not on a school day and most importantly while the teachers and students were holding a purely private affair, a picnic. 't is clear from the beginning that the incident happened while some members of the 'C class of (t. 7rancis >igh (chool were having a picnic at Talaan &each. This picnic had no permit from the school head or its principal, &enjamin 'llumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular activity. "s earlier pointed out by the trial court, mere 2nowledge by petitionerKprincipal 'llumin of the planning of the picnic by the students and their teachers does not in any way or in any manner show acquiescence or

consent to the holding of the same. The application therefore of "rticle 6,9B has no basis in law and neither is it supported by any jurisprudence. 'f we were to affirm the findings of respondent Court on this score, employers wig forever be exposed to the ris2 and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while they are not in the performance of their duties. 7inally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-spouses. %etitioners Connie "rquio the class adviser of '-C, the section where 7erdinand belonged, did her best and exercised diligence of a good father of a family to prevent any untoward incident or damages to all the students who joined the picnic. 'n fact, Connie invited co-petitioners Tirso de Chave* and )uisito Finas who are both %. . instructors and scout masters who have 2nowledge in 7irst "id application and swimming. $oreover, even respondents= witness, (egundo Finas, testified that :the defendants ;petitioners herein< had life savers especially brought by the defendants in case of emergency.: ;p. 9., Rollo< The records also show that both petitioners Chave* and Finas did all what is humanly possible to save the child. Testimony of )uisito Finas on cross examination, P "nd when you saw the boy, 7erdinand Castillo, you approached the boy and claim also having applied first aid on himL " ?es, sir. P "nd while you were applying the so called first aid, the children were covering you up or were surrounding youL " ?es, sir. P ?ou were rattled at that time, is it notL " 5o, sir. P ?ou mean you were in calm and peaceful conditionL

" ?es, sir. P +espite the fact that the boy was no longer responding to your application of first aidL " ?es, sir. P ?ou have never been disturbed, :nababahala: in the process of your application of the first aid on the body of 7erdinand CastilloL " 5o, sir, because we were attending to the application of first aid that we were doing, sir. P "fter you have applied bac2 to bac2 pressure and which you claimed the boy did not respond, were you not disturb anywayL " ' was disturbed during that time, sir. P 7or how many minutes have you applied the bac2 to bac2 pressureL " 7rom 0 to ,, times, sir. P ?ou mean 0 to ,, times of having applied the pressure of your body on the body of 7erdinand CastilloL " ?es, sir. P Eill you please describe how you applied a single act of bac2 to bac2 pressureL " This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by massaging the bac2 of the child, sir.: ;T(5, pp. 86-8., hearing of /uly 8B, ,09-< Testimony of Tirso de Chave* on direct examination

"TT?. 7)!# (: P Eho actually applied the first aid or artificial respiration to the childL " $yself, sir. P >ow did you apply the first aid to the guyL " The first step that ' too2, with the help of $r. )uisito Finas, was ' applied bac2 to bac2 pressure and too2 notice of the condition of the child. Ee placed the feet in a higher position, that of the head of the child, sir. P "fter you have placed the boy in that particular position, where the feet were on a higher level than that of the head, what did you do nextL " The first thing that we did, particularly myself, was that after putting the child in that position, ' applied the bac2 to bac2 pressure and started to massage from the waistline up, but ' noticed that the boy was not responding, sir. P 7or how long did you apply this bac2 to bac2 pressure on the boyL " "bout ,B seconds, sir. P Ehat about $r. FinasL " "lmost the same a little longer, for ,. seconds, sir. P "fter you noticed that the boy was not responding, what did you doL " Ehen we noticed that the boy was not responding, we changed the position of the boy by placing the child facing upwards laying on the sand then we applied the PADILLA, J., dissenting:

mouth to mouth resuscitation, sir. ;pp. 0608, Rollo< Eith these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case at bar does not fall under any of the grounds to grant moral damages. "rt. 66,1. $oral +amages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shoc2, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the pro3imate result of the defendant1s 2rongful act or omission. $oreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages can be assessed against them. Ehile it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. &ut in the case at bar, petitioners were able to prove that they had exercised the required diligence. >ence, the claim for moral or exemplary damages becomes baseless. %# $'( ( C!5('+ # +, the questioned decision dated 5ovember ,0, ,091, finding petitioners herein guilty of negligence and liable for the death of 7erdinand Castillo and awarding the respondents damages, is hereby ( T "('+ insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their counterclaim, there being no merit, is hereby "77'#$ +. (! !#+ # +. Sarmiento and Regalado, &&., concur. S01a(a20 O1'!'o!)

' regret that ' can not concur with the majority. ' believe that the reversal of respondent appellate court=s decision gives rise to a situation which was neither contemplated nor intended by the applicable laws. ' refer more particularly to the fact that the ponencia has left private respondents-spouses with no one to hold liable for the untimely demise of their son. !n the other hand, they have, to my mind, been wronged. and they should at least be recompensed for their sufferings. 7or this and other reasons stated hereunder. ' dissent. The issues, as adopted by the ponencia from the record, are as follows: "< Ehether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs@ &< Ehether or not "rt. 6,9B, in relation to "rt. 6,1C of the 5ew Civil Code is applicable to the case at bar@ C< Ehether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. 1 'n my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception of "ragones and /aro. "s to these two, respondent court absolved them from liability for their having satisfactorily demonstrated lac2 of participation in the negligence of their colleagues. ' am in agreement with said conclusion. &ut ' also agree with the respondent court in its finding that Tirso de Chave*, )uisito FiQas, Connie "rguio and %atria Cadi* failed to exercise +')'3 5T (A% #F'('!5 over the children during the ill-fated excursion. ' may concede, albeit with reservation, that the afore-mentioned petitioners may not have been negligent in finding ways and means to revive the young Castillo "7T # the drowning incident. Their application of first-aid measures may have failed to revive him but the petitioners had fully exhausted their efforts to save the deceased. This concession, however, is given with hesitation, for there is indication in the record that petitioner petitioners may have tarried too long in securing immediate medical attention for the deceased. ' refer to the trial court=s finding that :it still too2 the jeep which brought 7erdinand Castillo to the poblacion six ;C< minutes before it finally moved to await the other teachers.: 5 "ll this aside, ' am really disturbed about, and would li2e to emphasi*e the demonstrated lac2 of diligence on the part of the petitioners-teachers & 7!# the unfortunate incident too2 place. +espite awareness that the

waters in the area were deep, petitioners- teachers did not ta2e concrete steps to ma2e sure their wards did not stray too far and too deeply. ven if they were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first :tested the waters:, so to spea2, to ensure which parts thereof were safe for swimming purposes. >owever, this was not the case for as testified to by petitioner de Chave*, :they admitted that they did not even go to the water to chec2 its depth although they were aware that some parts of it were deep.: 3"t best, it appears that only oral safety instructions were imparted to the young excursionists. &ut, what ' find most disturbing is the fact that at the time the trouble arose, FiQas and de Chave*, the male teachers who were supposed to ensure the children=s safety, being physical education instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, :at his house getting some foods ;sic< and thin2s.: The Court a %uo even went as far as to say that :they were somewhere and as testified to by plaintiffs= witness they were having a drin2ing spreeT: 4 't thus appears that the petitioners-teachers failed to exercise the proper diligence or what ' may refer to as +')'3 5C & 7!# T> 7"CT. "s earlier mentioned, the steps ta2en to revive the deceased may be considered adequate, despite my reservations, but the over-all lac2 of diligence on the part of petitioners-teachers suffices to put them within the standards set by this Court in determining the existence of negligence. "s held in Hedy "an y 9u vs. ourt of Appeals, et al., the test in determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Eould a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursuedL 'f so, the law imposes the duty on the doer T! T"G %# C"AT'!5 against its mischievous results and the failure to do so constitutes negligence. 6 The next issue to be addressed pertains to the liability of the petitioner (t. 7rancis >igh (chool as represented by petitioners-spouses 7ernando 5antes and #osario )acandula. The majority would li2e to emphasi*e the fact that the unfortunate incident having occurred during a purely private affair, the teachers involved therein were not in the actual performance of their assigned tas2s. Consequently, any act or omission caused by them cannot bind their employer, petitioner (t. 7rancis >igh (chool. ' ta2e exception to this proposition. "lthough the excursion may not have been attended by the appropriate school authorities, the presence or stamp of authority of the school nevertheless pervaded by reason of the participationnot of one but of several teachers, the petitioners. "s found by the court a %uo, the excursion was an activity :organi*ed by the teachers

themselves, for the students and to which the student, 5"TA#"))?, acceded.: 7 $oreover, the record indicates that petitioner &enjamin 'llumin, school principal, 2new of the excursion and had, in fact, been invited to attend. "s the majority see it, such 2nowledge does not in any manner show acquiescence or consent to the holding of the excursion, a view which ' do not accept. 't seems to me that having 2nown of the forthcoming activity, petitioner 'llumin, as school principal, should have ta2en appropriate measures to ensure the safety of his students. >aving preferred to remain silent, and even indifferent, he now see2s excuse from such omission by invo2ing his alleged lac2 of consent to the excursion. &ut it is precisely his silence and negligence in performing his role as principal head of the school that must be construed as an implied consent to such activity. "s administrative head ;principal< of (t. 7rancis >igh (chool, petitioner 'llumin acted as the agent of his principal ;the school< or its representatives, the petitioners-spouses 5antes and )acandula. Consequently, and as found by the respondent court. "rticle 6,1C in conjunction with "rticle 6,9B, paragraphs ;,< and ;.< are applicable to the situation. 'n the application of these provisions, the negligence of the employee in causing injury or damage gives rise to a presumption of negligence on the part of the owner andKor manager of the establishment. Ehile this presumption is not conclusive, it may be overcome only by clear and convincing evidence that the owner andKor manager exercised the care and diligence of a good father of a family in the selection andKor supervision of the employees causing the injury or damage. ' agree with the respondent court that no proof was presented to absolve the owner andKor manager, herein petitioners-spouses 5antes and )acandula, and 'llumin. Thus, as correctly held by the respondent court, they too must be accountable for the death of 7erdinand Castillo. The majority view appears to be apprehensive that employers will be continuously held accountable for misdeeds of their employees committed even when the same are done not in the actual exercise of their duties. ' fail to appreciate such apprehensions, which need not arise on the part of employers, so long as the latter have no 2nowledge of, or give consent to, such act or omission on the part of their employee. ducational institutions have responsibilities which cannot be equated with those of the ordinary employer or business establishment. (uch institutions, particularly the primary and secondary schools, hold the tremendous responsibility of exercising supervision over young children. Too often, such schools avoid liabilities, as in the instant cage, by invo2ing the absence of approval on their part for activities that may be held outside school premises or held on a day not a school day. 't is about time that such schools reali*e that theirs is not a mere moneyma2ing entity or one impersonally established

for the sole tas2 of teaching the rudimentary s2ills of :reading, writing and =rithmetic.: They must consider that their students are children of tender years who are in need of adequate care, continuing attention and guidance. "nent the issue of damages, from the foregoing discussion the award thereof is clearly proper. ' only wish to point out the basis for moral damages which is found in "rticle 66,0 of the Civil Code, to wit: $oral damages may be recovered in the following and analogous cases: ,. . . . . 6. Puasi-delicts causing physical injuries@ xxx xxx xxx 't should be noted that the term :physical injuries: must not be construed in its penal sense alone but rather in its generic sense, in the spirit of this Court=s rulings in arandang vs. Santiago ;., !.3. 6919< and Made8a vs. aro, et al., ;3.#. 5o. .,,98, 6, +ecember ,098, ,6C (C#" 608<. Thus, the death of private respondents= son as a result of petitioners= negligence gives rise to an action for quasi-delict which, as provided, entitles the claimant to an award of moral damages. 'n the light of the foregoing, ' vote to "77'#$ the decision of the respondent court and thus hold the petitioners jointly and severally liable for the death of 7erdinand Castillo. Melencio$Herrera, &., concur. S01a(a20 O1'!'o!) PADILLA, J., dissenting: ' regret that ' can not concur with the majority. ' believe that the reversal of respondent appellate court=s decision gives rise to a situation which was neither contemplated nor intended by the applicable laws. ' refer more particularly to the fact that the ponencia has left private respondents-spouses with no one to hold liable for the untimely demise of their son. !n the other hand, they have, to my mind, been wronged. and they should at least be recompensed for their sufferings. 7or this and other reasons stated hereunder. ' dissent.

The issues, as adopted by the ponencia from the record, are as follows: "< Ehether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs@ &< Ehether or not "rt. 6,9B, in relation to "rt. 6,1C of the 5ew Civil Code is applicable to the case at bar@ C< Ehether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. 1 'n my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception of "ragones and /aro. "s to these two, respondent court absolved them from liability for their having satisfactorily demonstrated lac2 of participation in the negligence of their colleagues. ' am in agreement with said conclusion. &ut ' also agree with the respondent court in its finding that Tirso de Chave*, )uisito FiQas, Connie "rguio and %atria Cadi* failed to exercise +')'3 5T (A% #F'('!5 over the children during the ill-fated excursion. ' may concede, albeit with reservation, that the afore-mentioned petitioners may not have been negligent in finding ways and means to revive the young Castillo "7T # the drowning incident. Their application of first-aid measures may have failed to revive him but the petitioners had fully exhausted their efforts to save the deceased. This concession, however, is given with hesitation, for there is indication in the record that petitioner petitioners may have tarried too long in securing immediate medical attention for the deceased. ' refer to the trial court=s finding that :it still too2 the jeep which brought 7erdinand Castillo to the poblacion six ;C< minutes before it finally moved to await the other teachers.: 5 "ll this aside, ' am really disturbed about, and would li2e to emphasi*e the demonstrated lac2 of diligence on the part of the petitioners-teachers & 7!# the unfortunate incident too2 place. +espite awareness that the waters in the area were deep, petitioners- teachers did not ta2e concrete steps to ma2e sure their wards did not stray too far and too deeply. ven if they were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first :tested the waters:, so to spea2, to ensure which parts thereof were safe for swimming purposes. >owever, this was not the case for as testified to by petitioner de Chave*, :they admitted that they did not even go to the water to chec2 its depth although they were aware that some parts of it were deep.: 3"t best, it appears that only oral safety instructions were imparted to the young excursionists.

&ut, what ' find most disturbing is the fact that at the time the trouble arose, FiQas and de Chave*, the male teachers who were supposed to ensure the children=s safety, being physical education instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, :at his house getting some foods ;sic< and thin2s.: The Court a %uo even went as far as to say that :they were somewhere and as testified to by plaintiffs= witness they were having a drin2ing spreeT: 4 't thus appears that the petitioners-teachers failed to exercise the proper diligence or what ' may refer to as +')'3 5C & 7!# T> 7"CT. "s earlier mentioned, the steps ta2en to revive the deceased may be considered adequate, despite my reservations, but the over-all lac2 of diligence on the part of petitioners-teachers suffices to put them within the standards set by this Court in determining the existence of negligence. "s held in Hedy "an y 9u vs. ourt of Appeals, et al., the test in determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Eould a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursuedL 'f so, the law imposes the duty on the doer T! T"G %# C"AT'!5 against its mischievous results and the failure to do so constitutes negligence. 6 The next issue to be addressed pertains to the liability of the petitioner (t. 7rancis >igh (chool as represented by petitioners-spouses 7ernando 5antes and #osario )acandula. The majority would li2e to emphasi*e the fact that the unfortunate incident having occurred during a purely private affair, the teachers involved therein were not in the actual performance of their assigned tas2s. Consequently, any act or omission caused by them cannot bind their employer, petitioner (t. 7rancis >igh (chool. ' ta2e exception to this proposition. "lthough the excursion may not have been attended by the appropriate school authorities, the presence or stamp of authority of the school nevertheless pervaded by reason of the participationnot of one but of several teachers, the petitioners. "s found by the court a %uo, the excursion was an activity :organi*ed by the teachers themselves, for the students and to which the student, 5"TA#"))?, acceded.: 7 $oreover, the record indicates that petitioner &enjamin 'llumin, school principal, 2new of the excursion and had, in fact, been invited to attend. "s the majority see it, such 2nowledge does not in any manner show acquiescence or consent to the holding of the excursion, a view which ' do not accept. 't seems to me that having 2nown of the forthcoming activity, petitioner 'llumin, as school principal, should have ta2en appropriate measures to ensure the safety of his students. >aving preferred to remain silent, and even indifferent, he now see2s excuse from such omission by

invo2ing his alleged lac2 of consent to the excursion. &ut it is precisely his silence and negligence in performing his role as principal head of the school that must be construed as an implied consent to such activity. "s administrative head ;principal< of (t. 7rancis >igh (chool, petitioner 'llumin acted as the agent of his principal ;the school< or its representatives, the petitioners-spouses 5antes and )acandula. Consequently, and as found by the respondent court. "rticle 6,1C in conjunction with "rticle 6,9B, paragraphs ;,< and ;.< are applicable to the situation. 'n the application of these provisions, the negligence of the employee in causing injury or damage gives rise to a presumption of negligence on the part of the owner andKor manager of the establishment. Ehile this presumption is not conclusive, it may be overcome only by clear and convincing evidence that the owner andKor manager exercised the care and diligence of a good father of a family in the selection andKor supervision of the employees causing the injury or damage. ' agree with the respondent court that no proof was presented to absolve the owner andKor manager, herein petitioners-spouses 5antes and )acandula, and 'llumin. Thus, as correctly held by the respondent court, they too must be accountable for the death of 7erdinand Castillo. The majority view appears to be apprehensive that employers will be continuously held accountable for misdeeds of their employees committed even when the same are done not in the actual exercise of their duties. ' fail to appreciate such apprehensions, which need not arise on the part of employers, so long as the latter have no 2nowledge of, or give consent to, such act or omission on the part of their employee. ducational institutions have responsibilities which cannot be equated with those of the ordinary employer or business establishment. (uch institutions, particularly the primary and secondary schools, hold the tremendous responsibility of exercising supervision over young children. Too often, such schools avoid liabilities, as in the instant cage, by invo2ing the absence of approval on their part for activities that may be held outside school premises or held on a day not a school day. 't is about time that such schools reali*e that theirs is not a mere moneyma2ing entity or one impersonally established for the sole tas2 of teaching the rudimentary s2ills of :reading, writing and =rithmetic.: They must consider that their students are children of tender years who are in need of adequate care, continuing attention and guidance. "nent the issue of damages, from the foregoing discussion the award thereof is clearly proper. ' only wish to point out the basis for moral damages which is found in "rticle 66,0 of the Civil Code, to wit: $oral damages may be recovered in the following and analogous cases:

,. . . . . 6. Puasi-delicts causing physical injuries@ xxx xxx xxx 't should be noted that the term :physical injuries: must not be construed in its penal sense alone but rather in its generic sense, in the spirit of this Court=s rulings in arandang vs. Santiago ;., !.3. 6919< and Made8a vs. aro, et al., ;3.#. 5o. .,,98, 6, +ecember ,098, ,6C (C#" 608<. Thus, the death of private respondents= son as a result of petitioners= negligence gives rise to an action for quasi-delict which, as provided, entitles the claimant to an award of moral damages. 'n the light of the foregoing, ' vote to "77'#$ the decision of the respondent court and thus hold the petitioners jointly and severally liable for the death of 7erdinand Castillo. Melencio$Herrera, &., concur. G.R. No. 110596 O;2o30( 18, 1993 $O$AH$OLA BO%%LERS PHILIPPINES, IN$., D). %HE HONORABLE $OUR% OF APPEALS EF'A24 D'D')'o!F a!" MS. L*DIA GERONIMO, (0)1o!"0!2). "ngara, "bello, Concepcion, #egala N Cru* )aw !ffices for petitioner. "lejandro $. Fillamil for private respondent. +"F'+ , /#., &.= This case concerns the proprietress of a school canteen which had to close down as a consequence of the big drop in its sales of soft drin2s triggered by the discovery of foreign substances in certain beverages sold by it. The interesting issue posed is whether the subsequent action for damages by the proprietress against the soft drin2s manufacturer should be treated as one for breach of implied warranty against hidden defects or merchantability, as claimed by the manufacturer, the petitioner herein which must therefore be filed within six months from the delivery of the thing sold pursuant to "rticle ,.1, of the Civil Code, or one for %uasi$delict, as held by the public

respondent, which can be filed within four years pursuant to "rticle ,,-C of the same Code. !n 1 $ay ,00B, )ydia ). 3eronimo, the herein private respondent, filed a complaint for damages against petitioner with the #egional Trial Court ;#TC< of +agupan City. , The case was doc2eted as Civil Case 5o. +-0C60. (he alleges in her complaint that she was the proprietress of Gindergarten Eonderland Canteen doc2eted as located in +agupan City, an enterprise engaged in the sale of soft drin2s ;including Co2e and (prite< and other goods to the students of Gindergarten Eonderland and to the public@ on or about ,6 "ugust ,090, some parents of the students complained to her that the Co2e and (prite soft drin2s sold by her contained fiber-li2e matter and other foreign substances or particles@ he then went over her stoc2 of softdrin2s and discovered the presence of some fiber-li2e substances in the contents of some unopened Co2e bottles and a plastic matter in the contents of an unopened (prite bottle@ she brought the said bottles to the #egional >ealth !ffice of the +epartment of >ealth at (an 7ernando, )a Anion, for examination@ subsequently, she received a letter from the +epartment of >ealth informing her that the samples she submitted :are adulterated@: as a consequence of the discovery of the foreign substances in the beverages, her sales of soft drin2s severely plummeted from the usual ,B cases per day to as low as 6 to 8 cases per day resulting in losses of from %6BB.BB to %8BB.BB per day, and not long after that she had to lose shop on ,6 +ecember ,090@ she became jobless and destitute@ she demanded from the petitioner the payment of damages but was rebuffed by it. (he prayed for judgment ordering the petitioner to pay her %.,BBB.BB as actual damages, %16,BBB.BB as compensatory damages, %.BB,BBB.BB as moral damages, %,B,BBB.BB as exemplary damages, the amount equal to 8BO of the damages awarded as attorney=s fees, and the costs. 6 The petitioner moved to dismiss 8 the complaint on the grounds of failure to exhaust administrative remedies and prescription. "nent the latter ground, the petitioner argued that since the complaint is for breach of warranty under "rticle ,.C, of the said Code. 'n her Comment - thereto, private respondent alleged that the complaint is one for damages which does not involve an administrative action and that her cause of action is based on an injury to plaintiff=s right which can be brought within four years pursuant to "rticle ,,-C of the Civil Code@ hence, the complaint was seasonably filed. (ubsequent related pleadings were thereafter filed by the parties. . 'n its !rder of 68 /anuary ,00,, C the trial court granted the motion to dismiss. 't ruled that the doctrine of exhaustion of administrative remedies does not apply as the existing administrative remedy is not adequate. 't also stated that the complaint is based on a contract, and not on %uasi$delict, as there exists pre-existing contractual relation between the parties@ thus, on the

basis of "rticle ,.1,, in relation to "rticle ,.C6, the complaint should have been filed within six months from the delivery of the thing sold. >er motion for the reconsideration of the order having been denied by the trial court in its !rder of ,1 "pril ,00,, 1the private respondent came to this Court via a petition for review on certiorari which we referred to the public respondent :for proper determination and disposition. 9 The public respondent doc2eted the case as C"-3.#. (% 5o. 6.80,. 'n a decision promulgated on 69 /anuary ,006, 0 the public respondent annulled the questioned orders of the #TC and directed it to conduct further proceedings in Civil Case 5o. +-0C60. 'n holding for the private respondent, it ruled that: %etitioner=s complaint being one for %uasi$delict, and not for breach of warranty as respondent contends, the applicable prescriptive period is four years. 't should be stressed that the allegations in the complaint plainly show that it is an action or damages arising from respondent=s act of :rec2lessly and negligently manufacturing adulterated food items intended to be sold or public consumption: ;p. 6., rollo<. 't is truism in legal procedure that what determines the nature of an action are the facts alleged in the complaint and those averred as a defense in the defendant=s answer ;' $oran ,6C@ Calo v. #oldan, 1C %hil. --.@ "lger lectric, 'nc. v. C", ,8. (C#" 8-B<. (econdly, despite the literal wording of "rticle 6,1C of the Civil code, the existence of contractual relations between the parties does not absolutely preclude an action by one against the other for%uasi$delict arising from negligence in the performance of a contract. 'n Singson v. ourt of Appeals ;68 (C#" ,,,1<, the (upreme Court ruled: 't has been repeatedly held: that the existence of a contract between the parties does not bar the commission of a tort by the one against the other and the consequent recovery of damages therefor . . . . Thus in "ir 7rance vs. Carrascoso, . . . ;it was held that< although the relation between a passenger and a carrier is

:contractual both in origin and in nature the act that brea2s the contract may also be a tort. (ignificantly, in "merican jurisprudence, from which !ur law on (ales was ta2en, the authorities are one in saying that he availability of an action or breach of warranty does not bar an action for torts in a sale of defective goods. ,B 'ts motion for the reconsideration of the decision having been denied by the public respondent in its #esolution of ,- $ay ,008, ,, the petitioner too2 his recourse under #ule -. of the #evised #ules of Court. 't alleges in its petition that: '. T> >!5!#"&) C!A#T !7 "%% ")( C!$$'TT + " 3#"F "5+ # F #('&) ##!# '5 #A)'53 T>"T "#T'C) 6,1C, T> 3 5 #") %#!F'('!5 !5 >?ASI$ -6LI <S, '( "%%)'C"&) '5 T>'( C"( E> 5 T> ")) 3"T'!5( !7 T> C!$%)"'5T C) "#)? (>!E T>"T %#'F"T # (%!5+ 5T=( C"A( !7 "CT'!5 '( &"( +!5 &# "C> !7 " ( )) #=( '$%)' + E"##"5T' ( A5+ # !A# )"E !5 (") (. ''. C!##!)"#')?, T> >!5!#"&) C!A#T !7 "%% ")( C!$$'TT + " 3#"F "5+ # F #('&) ##!# '5 !F ##A)'53 % T'T'!5 #=( "#3A$ 5T T>"T %#'F"T # (%!5+ 5T=( C"A( !7 "CT'!5 >"+ %# (C#'& + A5+ # "#T'C) ,.1, !7 T> C'F') C!+ . ,6 The petitioner insists that a cursory reading of the complaint will reveal that the primary legal basis for private respondent=s cause of action is not "rticle 6,1C of the Civil Code on %uasi$delict D for the complaint does not ascribe any tortious or wrongful conduct on its part D but "rticles ,.C, and ,.C6 thereof on breach of a seller=s implied warranties under the law on sales. 't contends the existence of a contractual relation between the parties ;arising from the contract of sale< bars the application of the law on %uasi$delicts and that since private respondent=s cause of action arose from the breach of implied warranties, the complaint should have been filed within six months room delivery of the soft drin2s pursuant to "rticle ,1, of the Civil Code.

'n her Comment the private respondent argues that in case of breach of the seller=s implied warranties, the vendee may, under "rticle ,.C1 of the Civil Code, elect between withdrawing from the contract or demanding a proportionate reduction of the price, with damages in either case. (he asserts that Civil Case 5o. +-0C60 is neither an action for rescission nor for proportionate reduction of the price, but for damages arising from a %uasi$ delict and that the public respondent was correct in ruling that the existence of a contract did not preclude the action for %uasi$delict. "s to the issue of prescription, the private respondent insists that since her cause of action is based on %uasi$delict, the prescriptive period therefore is four ;-< years in accordance with "rticle ,,-- of the Civil Code and thus the filing of the complaint was well within the said period. Ee find no merit in the petition. The public respondent=s conclusion that the cause of action in Civil Case 5o. +-0C60 is found on %uasi$delict and that, therefore, pursuant to "rticle ,,-C of the Civil Code, it prescribes in four ;-< years is supported by the allegations in the complaint, more particularly paragraph ,6 thereof, which ma2es reference to the rec2less and negligent manufacture of :adulterated food items intended to be sold for public consumption.: The vendee=s remedies against a vendor with respect to the warranties against hidden defects of or encumbrances upon the thing sold are not limited to those prescribed in "rticle ,.C1 of the Civil Code which provides: "rt. ,.C1. 'n the case of "rticles ,.C,, ,.C6, ,.C-, ,.C. and ,.CC, the vendee may elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damages either case. ,8 The vendee may also as2 for the annulment of the contract upon proof of error or fraud, in which case the ordinary rule on obligations shall be applicable. ,- Ander the law on obligations, responsibility arising from fraud is demandable in all obligations and any waiver of an action for future fraud is void. #esponsibility arising from negligence is also demandable in any obligation, but such liability may be regulated by the courts, according to the circumstances. ,. Those guilty of fraud, negligence, or delay in the performance of their obligations and those who in any manner contravene the tenor thereof are liable for damages. ,C The vendor could li2ewise be liable for %uasi$delict under "rticle 6,1C of the Civil Code, and an action based thereon may be brought by the vendee. Ehile it may be true that the pre-existing contract between the parties may, as a general rule, bar the applicability of the law on %uasi$delict, the liability

may itself be deemed to arise from %uasi$delict, i.e., the acts which brea2s the contract may also be a %uasi$delict. Thus, in Singson vs. +an, of the Philippine Islands, ,1 this Court stated: Ee have repeatedly held, however, that the existence of a contract between the parties does not bar the commission of a tort by the one against the other and the consequent recovery of damages therefor. ,9 'ndeed, this view has been, in effect, reiterated in a comparatively recent case. Thus, inAir 7rance vs. arrascoso, ,0 involving an airplane passenger who, despite hi first-class tic2et, had been illegally ousted from his first-class accommodation and compelled to ta2e a seat in the tourist compartment, was held entitled to recover damages from the air-carrier, upon the ground of tort on the latter=s part, for, although the relation between the passenger and a carrier is :contractual both in origin and nature . . . the act that brea2s the contract may also be a tort. !therwise put, liability for %uasi$delict may still exist despite the presence of contractual relations. 6B Ander "merican law, the liabilities of a manufacturer or seller of injury-causing products may be based on negligence, 6, breach of warranty, 66 tort, 68 or other grounds such as fraud, deceit, or misrepresentation.6- >uasi$delict, as defined in "rticle 6,1C of the Civil Code, ;which is 2nown in (panish legal treaties asculpa a%uiliana, culpa e3tra$contractual or cuasi$delitos< 6. is homologous but not identical to tort under the common law, 6C which includes not only negligence, but also intentional criminal acts, such as assault and battery, false imprisonment and deceit. 61 't must be made clear that our affirmance of the decision of the public respondent should by no means be understood as suggesting that the private respondent=s claims for moral damages have sufficient factual and legal basis. '5 F' E !7 ")) T> 7!# 3!'53, the instant petition is hereby + 5' + for lac2 of merit, with costs against the petitioner. (! !#+ # +. Cru*, &ellosillo and Puiason, //., concur. 3riQo-"quino, /., is on leave.

G.R. No. LH53065

+a!.a(y 59, 1978

$I%* OF MANILA, petitioner, vs. GENARO N. %EO%I$O a!" $OUR% OF APPEALS, respondents. ity 7iscal Manuel <. Reyes for petitioner. Sevilla, -a!a and Associates for respondents. $ON$EP$ION, C.J.: "ppeal by certiorari from a decision of the Court of "ppeals. !n /anuary 61, ,0.9, at about 9:BB p.m., 3enaro 5. Teotico was at the corner of the !ld )uneta and %. &urgos "venue, $anila, within a :loading and unloading: *one, waiting for a jeepney to ta2e him down town. "fter waiting for about five minutes, he managed to hail a jeepney that came along to a stop. "s he stepped down from the curb to board the jeepney, and too2 a few steps, he fell inside an uncovered and unlighted catch basin or manhole on %. &urgos "venue. +ue to the fall, his head hit the rim of the manhole brea2ing his eyeglasses and causing bro2en pieces thereof to pierce his left eyelid. "s blood flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of the manhole. !ne of them brought Teotico to the %hilippine 3eneral >ospital, where his injuries were treated, after which he was ta2en home. 'n addition to the lacerated wound in his left upper eyelid, Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus injections administered to him in the hospital, required further medical treatment by a private practitioner who charged therefor %,,-BB.BB. "s a consequence of the foregoing occurrence, Teotico filed, with the Court of 7irst 'nstance of $anila, a complaint D which was, subsequently, amended D for damages against the City of $anila, its mayor, city engineer, city health officer, city treasurer and chief of police. "s stated in the decision of the trial court, and quoted with approval by the Court of "ppeals, "t the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the Aniversity of the ast. >e held responsible positions in various business firms li2e the %hilippine $erchandising Co., the ".A. Falencia and Co., the (ilver (wan $anufacturing Company and the (incere %ac2ing Corporation. >e was also associated with several civic organi*ations such as the Eac2 Eac2 3olf Club, the Chamber of Commerce of the %hilippines, ?=s $en Club of $anila and the Gnights of #i*al. "s a result of the

incident, plaintiff was prevented from engaging in his customary occupation for twenty days. %laintiff has lost a daily income of about %.B.BB during his incapacity to wor2. &ecause of the incident, he was subjected to humiliation and ridicule by his business associates and friends. +uring the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was their only support. +ue to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of %6,BBB.BB. !n the other hand, the defense presented evidence, oral and documentary, to prove that the (torm +rain (ection, !ffice of the City ngineer of $anila, received a report of the uncovered condition of a catchbasin at the corner of %. &urgos and !ld )uneta (treets, $anila, on /anuary 6-, ,0.9, but the same was covered on the same day ; xhibit -<@ that again the iron cover of the same catch basin was reported missing on /anuary 8B, ,0.9, but the said cover was replaced the next day ; xhibit .<@ that the !ffice of the City ngineer never received any report to the effect that the catchbasin in question was not covered between /anuary 6. and 60, ,0C9@ that it has always been a policy of the said office, which is charged with the duty of installation, repair and care of storm drains in the City of $anila, that whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by immediately replacing the missing cover or covering the catchbasin with steel matting that because of the lucrative scrap iron business then prevailing, stealing of iron catchbasin covers was rampant@ that the !ffice of the City ngineer has filed complaints in court resulting from theft of said iron covers@ that in order to prevent such thefts, the city government has changed the position and layout of catchbasins in the City by constructing them under the sidewal2s with concrete cement covers and openings on the side of the gutter@ and that these changes had been underta2en by the city from time to time whenever funds were available. "fter appropriate proceedings the Court of 7irst 'nstance of $anila rendered the aforementioned decision sustaining the theory of the defendants and dismissing the amended complaint, without costs. !n appeal ta2en by plaintiff, this decision was affirmed by the Court of "ppeals, except insofar as the City of $anila is concerned, which was sentenced to pay damages in the aggregate sum of %C,1.B.BB. , >ence, this appeal by the City of $anila. The first issue raised by the latter is whether the present case is governed by (ection - of #epublic "ct 5o. -B0 ;Charter of the City of $anila< reading:

The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the $ayor, the $unicipal &oard, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said $ayor, $unicipal &oard, or other officers while enforcing or attempting to enforce said provisions. or by "rticle 6,90 of the Civil Code of the %hilippines which provides: %rovinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of defective conditions of road, streets, bridges, public buildings, and other public wor2s under their control or supervision. $anila maintains that the former provision should prevail over the latter, because #epublic "ct -B0, is a special law, intended exclusively for the City of $anila, whereas the Civil Code is a general law, applicable to the entire %hilippines. The Court of "ppeals, however, applied the Civil Code, and, we thin2, correctly. 't is true that, insofar as its territorial application is concerned, #epublic "ct 5o. -B0 is a special law and the Civil Code a general legislation@ but, as regards the subject-matter of the provisions above quoted, (ection - of #epublic "ct -B0 establishes a general rule regulating the liability of the City of $anila for: :damages or injury to persons or property arising from the failure of: city officers :to enforce the provisions of: said "ct :or any other law or ordinance, or from negligence: of the city :$ayor, $unicipal &oard, or other officers while enforcing or attempting to enforce said provisions.: Apon the other hand, "rticle 6,90 of the Civil Code constitutes a particular prescription ma2ing :provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by any person by reason: D specifically D :of the defective condition of roads, streets, bridges, public buildings, and other$public 2or,s under their control or supervision.: 'n other words, said section - refers to liability arising from negligence, in general, regardless of the object thereof, whereas "rticle 6,90 governs liability due to :defective streets,: in particular. (ince the present action is based upon the alleged defective condition of a road, said "rticle 6,90 is decisive thereon. 't is urged that the City of $anila cannot be held liable to Teotico for damages: ,< because the accident involving him too2 place in a national highway@ and 6< because the City of $anila has not been negligent in connection therewith.

"s regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City. $oreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the defective condition of a street which is :under the supervision and control: of the City. 'n its answer to the amended complaint, the City, in turn, alleged that 'the streets aforementioned 2ere and have been constantly ,ept in good condition and regularly inspected and the storm drains and manholes thereof covered by the defendant ity and the officers concerned' 2ho 'have been ever vigilant and !ealous in the performance of their respective functions and duties as imposed upon them by la2 .' Thus, the City had, in effect, admitted that %. &urgos "venue was and is under its control and supervision. $oreover, the assertion to the effect that said "venue is a national highway was made, for the first time, in its motion for reconsideration of the decision of the Court of "ppeals. (uch assertion raised, therefore, a question of fact, which had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof. "t any rate, under "rticle 6,90 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. Ehat said article requires is that the province, city or municipality have either :control or supervision: over said street or road. ven if %. &urgos "venue were, therefore, a national highway, this circumstance would not necessarily detract from its :control or supervision: by the City of $anila, under #epublic "ct -B0. 'n fact (ection ,9;x< thereof provides: (ec. ,9. Legislative po2ers. D The $unicipal &oard shall have the following legislative powers: xxx xxx xxx

public places@ to provide for the abatement of nuisances in the same and punish the authors or owners thereof@ to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts@ to prohibit and regulate ball playing, 2ite-flying, hoop rolling, and other amusements which mayannoy persons using the streets and public places, or frighten horses or other animals@ to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives within the limits of the city@ to regulate the lights used on all vehicles, cars, and locomotives@ . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad to raise or lower its trac2s to conform to such provisions or changes@ and to require railroad companies to fence their property, or any part thereof, to provide suitable protection against in8ury to persons or property , and to construct and repair ditches, drains, se2ers, and culverts along and under their trac2s, so that the natural drainage of the streets and adjacent property shall not be obstructed. This authority has been neither withdrawn nor restricted by #epublic "ct 5o. 0,1 and xecutive !rder 5o. ,,8, dated $ay 6, ,0.., upon which the City relies. (aid "ct governs the disposition or appropriation of the highway funds and the giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets within their respective boundaries, and xecutive !rder 5o. ,,8 merely implements the provisions of said #epublic "ct 5o. 0,1, concerning the disposition and appropriation of the highway funds. $oreover, it provides that :the construction, maintenance and improvement of national primary, national secondary and national aid provincial and city roads shall be accomplished by the >ighway +istrict ngineers and >ighway ity ngineers under the supervision of the Commissioner of %ublic >ighways and shall be financed from such appropriations as may be authori*ed by the #epublic of the %hilippines in annual or special appropriation "cts.: Then, again, the determination of whether or not %. &urgos "venue is under the control or supervision of the City of $anila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were decided by the Court of "ppeals in the affirmative, is one of fact, and the findings of said Court thereon are not subject to our review. E> # 7!# , the decision appealed from should be as it is hereby affirmed, with costs against the City of $anila. 't is so ordered. @A2phB@.#Ct Reyes, &.+.L., -i!on, Ma,alintal, +eng!on, &.P., Daldivar, Sanche!, Angeles and 7ernando, &&., concur. astro,

;x< (ubject to the provisions of existing law to provide for the laying out, construction andimprovement, and to regulate the use of streets, avenues, alleys, sidewal2s, wharves, piers, par2s, cemeteries, and other public places@ to provide for lighting, cleaning, and sprin2ling of streets and public places@ . . . to provide for the inspection of, fix the license fees for and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires therein@ to provide for and regulate cross$2or,s, curbs, and gutters therein, . . . to regulate traffic and sales upon the streetsand other

G.R. No. 71049 May 59, 1987 BERNARDINO +IMENE#, petitioner, vs. $I%* OF MANILA a!" IN%ERMEDIA%E APPELLA%E $OUR%, respondents.

home. >e felt ill and developed fever and he had to be carried to +r. /uanita $ascardo. +espite the medicine administered to him by the latter, his left leg swelled with great pain. >e was then rushed to the Feterans $emorial >ospital where he had to be confined for twenty ;6B< days due to high fever and severe pain. Apon his discharge from the hospital, he had to wal2 around with crutches for fifteen ;,.< days. >is injury prevented him from attending to the school buses he is operating. "s a result, he had to engage the services of one &ienvenido Falde* to supervise his business for an aggregate compensation of nine hundred pesos ;%0BB.BB<. ;+ecision, "C-3.#. CF 5o. B,891, #ollo, pp. ,86B<. %etitioner sued for damages the City of $anila and the "siatic 'ntegrated Corporation under whose administration the (ta. "na %ublic $ar2et had been placed by virtue of a $anagement and !perating Contract ;#ollo, p. -1<. The lower court decided in favor of respondents, the dispositive portion of the decision reading: E> # 7!# , judgment is hereby rendered in favor of the defendants and against the plaintiff dismissing the complaint with costs against the plaintiff. 7or lac2 of sufficient evidence, the counterclaims of the defendants are li2ewise dismissed. ;+ecision, Civil Case 5o. 0C80B, #ollo, p. -6<. "s above stated, on appeal, the 'ntermediate "ppellate Court held the "siatic 'ntegrated Corporation liable for damages but absolved respondent City of $anila. >ence this petition.

PARAS, J.: This is a petition for review on certiorari of: ;,< the decision G of the 'ntermediate "ppellate Court in "C-3.#. 5o. B,8991-CF +ernardino &imene! v. Asiatic Integrated orporation and ity of Manila , reversing the decision GG of the Court of 7irst 'nstance of $anila, &ranch JJ'' in Civil Case 5o. 0C80B between the same parties, but only insofar as holding "siatic 'ntegrated Corporation solely liable for damages and attorney=s fees instead of ma2ing the City of $anila jointly and solidarily liable with it as prayed for by the petitioner and ;6< the resolution of the same "ppellate Court denying his %artial $otion for #econsideration ;#ollo, p. 6<. The dispositive portion of the 'ntermediate "ppellate Court=s decision is as follows: E> # 7!# , the decision appealed from is hereby # F #( +. " new one is hereby entered ordering the defendant "siatic 'ntegrated Corporation to pay the plaintiff %66,.0B actual medical expenses, %0BB.BB for the amount paid for the operation and management of a school bus, %6B,BBB.BB as moral damages due to pains, sufferings and sleepless nights and % lB,BBB.BB as attorney=s fees. (! !#+ # +. ;p. 6B, #ollo< The findings of respondent "ppellate Court are as follows: The evidence of the plaintiff ;petitioner herein< shows that in the morning of "ugust ,., ,01- he, together with his neighbors, went to (ta. "na public mar2et to buy :bagoong: at the time when the public mar2et was flooded with an2le deep rainwater. "fter purchasing the :bagoong: he turned around to return home but he stepped on an uncovered opening which could not be seen because of the dirty rainwater, causing a dirty and rusty four- inch nail, stuc2 inside the uncovered opening, to pierce the left leg of plaintiff-petitioner penetrating to a depth of about one and a half inches. "fter administering first aid treatment at a nearby drugstore, his companions helped him hobble

The lone assignment of error raised in this petition is on whether or not the 'ntermediate "ppellate Court erred in not ruling that respondent City of $anila should be jointly and severally liable with "siatic 'ntegrated Corporation for the injuries petitioner suffered. 'n compliance with the resolution of /uly ,, ,09. of the 7irst +ivision of this Court ;#ollo, p. 60< respondent City of $anila filed its comment on "ugust ,8, ,09. ;#ollo, p. 8-< while petitioner filed its reply on "ugust 6,, ,09. ;#eno, p. .,<.

Thereafter, the Court in the resolution of (eptember ,,, ,09. ;#ollo, p. C6< gave due course to the petition and required both parties to submit simultaneous memoranda %etitioner filed his memorandum on !ctober ,, ,09. ;#ollo, p. C.< while respondent filed its memorandum on !ctober 6-, ,09. ;#ollo, p. 96<. 'n the resolution of !ctober ,8, ,09C, this case was transferred to the (econd +ivision of this Court, the same having been assigned to a member of said +ivision ;#ollo, p. 06<. The petition is impressed with merit. "s correctly found by the 'ntermediate "ppellate Court, there is no doubt that the plaintiff suffered injuries when he fell into a drainage opening without any cover in the (ta. "na %ublic $ar2et. +efendants do not deny that plaintiff was in fact injured although the "siatic 'ntegrated Corporation tries to minimi*e the extent of the injuries, claiming that it was only a small puncture and that as a war veteran, plaintiff=s hospitali*ation at the Ear Feteran=s >ospital was free. ;+ecision, "C-3.#. CF 5o. B,891, #ollo, p. C<. #espondent City of $anila maintains that it cannot be held liable for the injuries sustained by the petitioner because under the $anagement and !perating Contract, "siatic 'ntegrated Corporation assumed all responsibility for damages which may be suffered by third persons for any cause attributable to it. 't has also been argued that the City of $anila cannot be held liable under "rticle ,, (ection - of #epublic "ct 5o. -B0 as amended ;#evised Charter of $anila< which provides: The City shall not be liable or held for damages or injuries to persons or property arising from the failure of the $ayor, the $unicipal &oard, or any other City !fficer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said $ayor, $unicipal &oard, or any other officers while enforcing or attempting to enforce said provisions. This issue has been laid to rest in the case of ity of Manila v. <eotico ;66 (C#" 6C0-616 H,0C9I< where the (upreme Court squarely ruled that #epublic "ct 5o. -B0 establishes a general rule regulating the liability of the City of $anila for :damages or injury to persons or property arising from the failure of city officers: to enforce the provisions of said "ct, :or any other law

or ordinance or from negligence: of the City :$ayor, $unicipal &oard, or other officers while enforcing or attempting to enforce said provisions.: Apon the other hand, "rticle 6,90 of the Civil Code of the %hilippines which provides that: %rovinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of defective conditions of roads, streets, bridges, public buildings and other public wor2s under their control or supervision. constitutes a particular prescription ma2ing :provinces, cities and municipalities ... liable for damages for the death of, or injury suffered by any person by reason: D specifically D :of the defective condition of roads, streets, bridges, public buildings, and other public wor2s under their control or supervision.: 'n other words, "rt. ,, sec. -, #.". 5o. -B0 refers to liability arising from negligence, in general, regardless of the object, thereof, while "rticle 6,90 of the Civil Code governs liability due to :defective streets, public buildings and other public wor2s: in particular and is therefore decisive on this specific case. 'n the same suit, the (upreme Court clarified further that under "rticle 6,90 of the Civil Code, it is not necessary for the liability therein established to attach, that the defective public wor2s belong to the province, city or municipality from which responsibility is exacted. Ehat said article requires is that the province, city or municipality has either :control or supervision: over the public building in question. 'n the case at bar, there is no question that the (ta. "na %ublic $ar2et, despite the $anagement and !perating Contract between respondent City and "siatic 'ntegrated Corporation remained under the control of the former. 7or one thing, said contract is explicit in this regard, when it provides: '' That immediately after the execution of this contract, the ( C!5+ %"#T? shall start the painting, cleaning, saniti*ing and repair of the public mar2ets and talipapas and within ninety ;0B< days thereof, the ( C!5+ %"#T? shall submit a program of improvement, development, rehabilitation and reconstruction of the city public mar2ets and talipapas subject to prior approval of the 7'#(T %"#T?. ;#ollo, p. --<

xxx xxx xxx F' That all present personnel of the City public mar2ets and talipapas shall be retained by the ( C!5+ %"#T? as long as their services remain satisfactory and they shall be extended the same rights and privileges as heretofore enjoyed by them. %rovided, however, that the ( C!5+ %"#T? shall have the right, subject to prior approval of the 7'#(T %"#T? to discharge any of the present employees for cause. ;#ollo, p. -.<. F''

under the terms of the contract. ; xhibit :1-":< ; mphasis supplied.< ;#ollo, p. 1.<. 'n fact, the City of $anila employed a mar2et master for the (ta. "na %ublic $ar2et whose primary duty is to ta2e direct supervision and control of that particular mar2et, more specifically, to chec2 the safety of the place for the public. Thus the "sst. Chief of the $ar2et +ivision and +eputy $ar2et "dministrator of the City of $anila testified as follows: Court This mar2et master is an employee of the City of $anilaL $r. ?mson ?es, ?our >onor.

That the ( C!5+ %"#T? may from time to time be required by the 7'#(T %"#T?, or his duly authori*ed representative or representatives, to report, on the activities and operation of the City public mar2ets and talipapas and the facilities and conveniences installed therein, particularly as to their cost of construction, operation and maintenance in connection with the stipulations contained in this Contract. ;lbid< The fact of supervision and control of the City over subject public mar2et was admitted by $ayor #amon &agatsing in his letter to (ecretary of 7inance Cesar Firata which reads: These cases arose from the controversy over the $anagement and !perating Contract entered into on +ecember 69, ,016 by and between the City of $anila and the "siatic 'ntegrated Corporation, whereby in consideration of a fixed service fee, the City hired the services of the said corporation to underta2e the physical management, maintenance, rehabilitation and development of the City=s public mar2ets and= Talipapas= subject to the control and supervision of the City. xxx xxx xxx 't is believed that there is nothing incongruous in the exercise of these powers vis-a-vis the existence of the contract, inasmuch as the ity retains the po2er of supervision and control over its public mar,ets and talipapas

P Ehat are his functionsL " +irect supervision and control over the mar2et area assigned to him.:;T.s.n.,pp. -,-6, >earing of $ay 6B, ,011.< xxx xxx xxx Court "s far as you 2now there is or is there any specific employee assigned with the tas2 of seeing to it that the (ta. "na $ar2et is safe for the publicL $r. ?mson "ctually, as ' stated, ?our >onor, that the (ta. "na has its own mar2et master.<he primary duty of that mar,et master is to ma,e the direct supervision and control of that particular mar,et, the chec2 or verifying whether the place is safe for public safety is vested in the mar2et master. ;T.s.n., pp. 6-6., >earing of /uly 61, ,011.< ; mphasis supplied.< ;#ollo, p. 1C<. 7inally, (ection 8B ;g< of the )ocal Tax Code as amended, provides: <he treasurer shall e3ercise direct and immediate supervision administration and control over public mar,ets and the personnel thereof, including those whose

duties concern the maintenance and up2eep of the mar2et and ordinances and other pertinent rules and regulations. ; mphasis supplied.< ;#ollo, p. 1C< The contention of respondent City of $anila that petitioner should not have ventured to go to (ta. "na %ublic $ar2et during a stormy weather is indeed untenable. "s observed by respondent Court of "ppeals, it is an error for the trial court to attribute the negligence to herein petitioner. $ore specifically stated, the findings of appellate court are as follows: ... The trial court even chastised the plaintiff for going to mar2et on a rainy day just to buy bagoong. " customer in a store has the right to assume that the owner will comply with his duty to 2eep the premises safe for customers. 'f he ventures to the store on the basis of such assumption and is injured because the owner did not comply with his duty, no negligence can be imputed to the customer. ;+ecision, "C3. #. CF 5o. B,891, #ollo, p. ,0<. "s a defense against liability on the basis of a quasi-delict, one must have exercised the diligence of a good father of a family. ;"rt. ,,18 of the Civil Code<. There is no argument that it is the duty of the City of $anila to exercise reasonable care to 2eep the public mar2et reasonably safe for people frequenting the place for their mar2eting needs. Ehile it may be conceded that the fulfillment of such duties is extremely difficult during storms and floods, it must however, be admitted that ordinary precautions could have been ta2en during good weather to minimi*e the dangers to life and limb under those difficult circumstances. 7or instance, the drainage hole could have been placed under the stalls instead of on the passage ways. ven more important is the fact, that the City should have seen to it that the openings were covered. (adly, the evidence indicates that long before petitioner fell into the opening, it was already uncovered, and five ;.< months after the incident happened, the opening was still uncovered. ;#ollo, pp. .1@ .0<. $oreover, while there are findings that during floods the vendors remove the iron grills to hasten the flow of water ;+ecision, "C-3.#. CF 5o. B ,891@ #ollo, p. ,1<, there is no showing that such practice has ever been prohibited, much less penali*ed by the City of $anila. 5either was it shown that any sign had been placed thereabouts to warn passersby of the impending danger.

To recapitulate, it appears evident that the City of $anila is li2ewise liable for damages under "rticle 6,90 of the Civil Code, respondent City having retained control and supervision over the (ta. "na %ublic $ar2et and as tortfeasor under "rticle 6,1C of the Civil Code on quasi-delicts %etitioner had the right to assume that there were no openings in the middle of the passageways and if any, that they were adequately covered. >ad the opening been covered, petitioner could not have fallen into it. Thus the negligence of the City of $anila is the proximate cause of the injury suffered, the City is therefore liable for the injury suffered by the peti- - petitioner. #espondent City of $anila and "siatic 'ntegrated Corporation being joint tortfeasors are solidarily liable under "rticle 6,0- of the Civil Code. %# $'( ( C!5('+ # +, the decision of the Court of "ppeals is hereby $!+'7' +, ma2ing the City of $anila and the "siatic 'ntegrated Corporation solidarily liable to pay the plaintiff %66,.0B actual medical expenses, %0BB.BB for the amount paid for the operation and management of the school bus, %6B,BBB.BB as moral damages due to pain, sufferings and sleepless nights and %,B,BBB.BB as attorney=s fees. (! !#+ # +. 7ernan / hairman0, "utierre!, &r., Padilla, +idin and &&., concur. G.R. No. 71617 Ma(;4 51, 1989 FLOREN%INA A. GUILA%$O, petitioner, vs. $I%* OF DAGUPAN, a!" 240 HONORABLE $OUR% OF APPEALS, respondents. .olan R. 6vangelista for petitioner. <he ity Legal ;fficer for respondents. SARMIEN%O, J.: 'n a civil action 1 for recovery of damages filed by the petitioner 7lorentina ". 3uilatco, the following judgment was rendered against the respondent City of +agupan: xxx ortes

;,< !rdering defendant City of +agupan to pay plaintiff actual damages in the amount of % ,.,06- ;namely %9,B.-.BB as hospital, medical and other expenses H xhs. > to >-CBI, % 1,-6B.BB as lost income for one ;,< year H xh. 7I and % -.B.BB as bonus<. % ,.B,BBB.BB as moral damages, % .B,BBB.BB as exemplary damages, and % 8,BBB.BB as attorney=s fees, and litigation expenses, plus costs and to appropriate through its (angguniang %anglunsod ;City Council< said amounts for said purpose@ ;6< +ismissing plaintiffs complaint as against defendant City ngr. "lfredo 3. Tangco@ and ;8< +ismissing the counterclaims of defendant City of +agupan and defendant City ngr. "lfredo 3. Tangco, for lac2 of merit. 5 The facts found by the trial court are as follows: 3 't would appear from the evidences that on /uly 6., ,019, herein plaintiff, a Court 'nterpreter of &ranch ''', C7'-+agupan City, while she was about to board a motori*ed tricycle at a sidewal2 located at %ere* &lvd. ;a 5ational #oad, under the control and supervision of the City of +agupan< accidentally fell into a manhole located on said sidewal2, thereby causing her right leg to be fractured. "s a result thereof, she had to be hospitali*ed, operated on, confined, at first at the %angasinan %rovincial >ospital, from /uly 6. to "ugust 8, ,019 ;or for a period of ,C days<. (he also incurred hospitali*ation, medication and other expenses to the tune of % 9,B.8.C. ; xh. > to >-CB< or a total of % ,B,BBB.BB in all, as other receipts were either lost or misplaced@ during the period of her confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only on her right leg which was fractured but also on all parts of her body@ the pain has persisted even after her discharge from the $edical City 3eneral >ospital on !ctober 0, ,019, to the present. +espite her discharge from the >ospital plaintiff is presently still wearing crutches and the Court has actually observed that she has difficulty in locomotion. 7rom the time of the mishap on /uly 6., ,019 up to the present, plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotion in going up the stairs of her office, located near the city hall in +agupan City. (he earns at least % 16B.BB a month consisting of her monthly salary and other means of income, but since /uly 6., ,019 up to

the present she has been deprived of said income as she has already consumed her accrued leaves in the government service. (he has lost several pounds as a result of the accident and she is no longer her former jovial self, she has been unable to perform her religious, social, and other activities which she used to do prior to the incident. +r. 5orberto 7elix and +r. +ominado $an*ano of the %rovincial >ospital, as well as +r. "ntonio (ison of the $edical City 3eneral >ospital in $andaluyong #i*al ; xh. '@ see also xhs. 7, 3, 3-, to 3-,0< have confirmed beyond shadow of any doubt the extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. !n the other hand, %atrolman Claveria, +e "sis and Cere*o corroborated the testimony of the plaintiff regarding the mishap and they have confirmed the existence of the manhole ; xhs. ", &, C and sub-exhibits< on the sidewal2 along %ere* &lvd., at the time of the incident on /uly 6., ,019 which was partially covered by a concrete flower pot by leaving gaping hole about 6 ft. long by , ,K6 feet wide or -6 cms. wide by 1. cms. long by ,.B cms. deep ;see xhs. + and +-,<. +efendant "lfredo Tangco, City ngineer of +agupan City and admittedly ex-officio >ighway ngineer, City ngineer of the %ublic Eor2s and &uilding !fficial for +agupan City, admitted the existence of said manhole along the sidewal2 in %ere* &lvd., admittedly a 5ational #oad in front of the )u*on Colleges. >e also admitted that said manhole ;there are at least ,, in all in %ere* &lvd.< is owned by the 5ational 3overnment and the sidewal2 on which they are found along %ere* &lvd. are also owned by the 5ational 3overnment. &ut as City ngineer of +agupan City, he supervises the maintenance of said manholes or drainage system and sees to it that they are properly covered, and the job is specifically done by his subordinates, $r. (antiago de Fera ;$aintenance 7oreman< and ngr. rnesto (olermo also a maintenance ngineer. 'n his answer defendant Tangco expressly admitted in par. 1-, thereof, that in his capacity as ex-officio >ighway ngineer for +agupan City he exercises supervision and control over 5ational roads, including the %ere* &lvd. where the incident happened. !n appeal by the respondent City of +agupan, the appellate court 4 reversed the lower court findings on the ground that no evidence was presented by the

plaintiff- appellee to prove that the City of +agupan had :control or supervision: over %ere* &oulevard. 6 The city contends that %ere* &oulevard, where the fatal drainage hole is located, is a national road that is not under the control or supervision of the City of +agupan. >ence, no liability should attach to the city. 't submits that it is actually the $inistry of %ublic >ighways that has control or supervision through the >ighway ngineer which, by mere coincidence, is held concurrently by the same person who is also the City ngineer of +agupan. "fter examination of the findings and conclusions of the trial court and those of the appellate court, as well as the arguments presented by the parties, we agree with those of the trial court and of the petitioner. >ence, we grant the petition. 'n this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue: whether or not control or supervision over a national road by the City of +agupan exists, in effect binding the city to answer for damages in accordance with article 6,90 of the Civil Code. The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition of roads is expressed in the Civil Code as follows: "rticle 6,90. %rovinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public wor2s under their control or supervision. 't is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street. 7 'n the case at bar, this control or supervision is provided for in the charter of +agupan and is exercised through the City ngineer who has the following duties: (ec. 66. The City ngineer-->is powers, duties and compensation-There shall be a city engineer, who shall be in charge of the department of ngineering and %ublic Eor2s. >e shall receive a salary of not exceeding three thousand pesos per annum. >e shall have the following duties:

xxx ;j< >e shall have the care and custody of the public system of waterwor2s and sewers, and all sources of water supply, and shall control, maintain and regulate the use of the same, in accordance with the ordinance relating thereto@ shall inspect and regulate the use of all private systems for supplying water to the city and its inhabitants, and all private sewers, and their connection with the public sewer system. xxx The same charter of +agupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewal2s, and regulation of the use thereof, may be legislated by the $unicipal &oard . 7 Thus the charter clearly indicates that the city indeed has supervision and control over the sidewal2 where the open drainage hole is located. The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar.8 The charter only lays down general rules regulating the liability of the city. !n the other hand article 6,90 appliesin particular to the liability arising from :defective streets, public buildings and other public wor2s.: 9 The City ngineer, $r. "lfredo 3. Tangco, admits that he exercises control or supervision over the said road. &ut the city can not be excused from liability by the argument that the duty of the City ngineer to supervise or control the said provincial road belongs more to his functions as an ex-officio >ighway ngineer of the $inistry of %ublic >ighway than as a city officer. This is because while he is entitled to an honorarium from the $inistry of %ublic >ighways, his salary from the city government substantially exceeds the honorarium. Ee do not agree. "lfredo 3. Tangco :;i<n his official capacity as City ngineer of +agupan, as x- !fficio >ighway ngineer, as x-!fficio City ngineer of the &ureau of %ublic Eor2s, and, last but not the least, as &uilding !fficial for +agupan City, receives the following monthly compensation: % ,,9,B.CC from +agupan City@ % 6BB.BB from the $inistry of %ublic >ighways@ % ,BB.BB from the &ureau of %ublic Eor2s and % .BB.BB by virtue of %.+. ,B0C,

respectively.: 10This function of supervision over streets, public buildings, and other public wor2s pertaining to the City ngineer is coursed through a $aintenance 7oreman and a $aintenance ngineer.11 "lthough these last two officials are employees of the 5ational 3overnment, they are detailed with the City of +agupan and hence receive instruction and supervision from the city through the City ngineer. There is, therefore, no doubt that the City ngineer exercises control or supervision over the public wor2s in question. >ence, the liability of the city to the petitioner under article 6,09 of the Civil Code is clear. &e all that as it may, the actual damages awarded to the petitioner in the amount of % ,B,BBB.BB should be reduced to the proven expenses of % 9,B.8.C. only. The trial court should not have rounded off the amount. 'n determining actual damages, the court can not rely on :speculation, conjecture or guess wor2: as to the amount. Eithout the actual proof of loss, the award of actual damages becomes erroneous. 15 !n the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is discretionary on the court.13 Though incapable of pecuniary estimation, moral damages are in the nature of an award to compensate the claimant for actual injury suffered but which for some reason can not be proven. >owever, in awarding moral damages, the following should be ta2en into consideration: ;,< 7irst, the proximate cause of the injury must be the claimee=s acts.14 ;6< (econd, there must be compensatory or actual damages as satisfactory proof of the factual basis for damages. 16 ;8< Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code. 17 'n the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Eitnesses from the petitioner=s place of wor2 testified to the degeneration in her disposition-from being jovial to depressed. (he refrained from attending social and civic activities. 17 5evertheless the award of moral damages at % ,.B,BBB.BB is excessive. >er handicap was not permanent and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and anguish existed to warrant the award of damages,18 the moderating hand of the law is called for. The Court has time and again called attention to the

reprehensible propensity of trial judges to award damages without basis,19 resulting in exhorbitant amounts.50 "lthough the assessment of the amount is better left to the discretion of the trial court 51 under preceding jurisprudence, the amount of moral damages should be reduced to % 6B,BBB.BB. "s for the award of exemplary damages, the trial court correctly pointed out the basis: To serve as an example for the public good, it is high time that the Court, through this case, should serve warning to the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when they are engaged in construction wor2 or when there are manholes on their sidewal2s or streets which are uncovered, to immediately cover the same, in order to minimi*e or prevent accidents to the poor pedestrians.55 Too often in the *eal to put up :public impact: projects such as beautification drives, the end is more important than the manner in which the wor2 is carried out. &ecause of this obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of the projects, causing public inconvenience and inviting accidents. %ending appeal by the respondent City of +agupan from the trial court to the appellate court, the petitioner was able to secure an order for garnishment of the funds of the City deposited with the %hilippine 5ational &an2, from the then presiding judge, >on. Eillelmo 7ortun. This order for garnishment was revo2ed subsequently by the succeeding presiding judge, >on. #omeo +. $agat, and became the basis for the petitioner=s motion for reconsideration which was also denied. 53 Ee rule that the execution of the judgment of the trial court pending appeal was premature. Ee do not find any good reason to justify the issuance of an order of execution even before the expiration of the time to appeal . 54 E> # 7!# , the petition is 3#"5T +. The assailed decision and resolution of the respondent Court of "ppeals are hereby # F #( + and ( T "('+ and the decision of the trial court, dated $arch ,6, ,010 and amended on $arch ,8, ,010, is hereby # '5(T"T + with the indicated modifications as regards the amounts awarded: ;,< !rdering the defendant City of +agupan to pay the plaintiff actual damages in the amount of % ,.,06- ;namely

% 9,B.-.BB as hospital, medical and other expenses@ % 1,-6B.BB as lost income for one ;,< year and % -.B.BB as bonus<@ % 6B,BBB.BB as moral damages and % ,B,BBB.BB as exemplary damages. The attorney=s fees of % 8,BBB.BB remain the same. (! !#+ # +. Melencio$Herrera, / haiperson0, Paras, Padilla and Regalado, &&., concur.