G.R. No.

L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA, NAPOLEON VIRATA,
ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA VIRATA, and EVANGELINA
VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF CAVITE, 7th JUDICIAL
DISTRICT, BRANCH V, stationed at BACOOR, CAVITE, respondents.
Remulla, Estrella & Associates for petitioners
Exequil C. Masangkay for respondents.

FERNANDEZ, J.:
This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V, in Civil Case
No. B-134 granting the motion of the defendants to dismiss the complaint on the ground that there is another
action pending between the same parties for the same cause. 1
The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been bumped
while walking along Taft Avenue, Pasay City by a passenger jeepney driven by Maximo Borilla and registered
in the name Of Victoria Ochoa; that Borilla is the employer of Ochoa; that for the death of Arsenio Virata, a
action for homicide through reckless imprudence was instituted on September 25, 1975 against Maximo Borilla
in the Court of First Instance of Rizal at Pasay City, docketed as C Case No. 3162-P of said court; that at the
hearing of the said criminal case on December 12, 1975, Atty. Julio Francisco, the private prosecutor, made a
reservation to file a separate civil action for damages against the driver on his criminal liability; that on
February 19, 1976 Atty. Julio Francisco filed a motion in said c case to withdraw the reservation to file a
separate civil action; that thereafter, the private prosecutor actively participated in the trial and presented
evidence on the damages; that on June 29, 1976 the heirs of Arsenio Virata again reserved their right to
institute a separate civil action; that on July 19, 1977 the heirs of Arsenio Virata, petitioners herein,
commenced Civil No. B-134 in the Court of First Instance of Cavite at Bacoor, Branch V, for damages based on
quasi-delict against the driver Maximo Borilla and the registered owner of the jeepney, Victorio Ochoa; that on
August 13, 1976 the defendants, private respondents filed a motion to dismiss on the ground that there is
another action, Criminal Case No. 3162-P, pending between the same parties for the same cause; that on
September 8, 1976 the Court of First Instance of Rizal at Pasay City a decision in Criminal Case No. 3612-P
acquitting the accused Maximo Borilla on the ground that he caused an injury by name accident; and that on
January 31, 1977, the Court of First Instance of Cavite at Bacoor granted the motion to Civil Case No. B-134
for damages. 2
The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the damages based
on quasi-delict against Maximo Borilla and Victoria Ochoa, driver and owner, respectively on the passenger
jeepney that bumped Arsenio Virata.
It is settled that in negligence cases the aggrieved parties may choose between an action under the Revised
Penal Code or of quasi-delict under Article 2176 of the Civil Code of the Philippines. What is prohibited by
Article 2177 of the Civil Code of the Philippines is to recover twice for the same negligent act.
The Supreme Court has held that:

According to the Code Commission: 'The foregoing provision (Article 2177) though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a 'culpa aquiliana' or
quasi-delict, of ancient origin, having always had its own foundation and individuality, separate
from criminal negligence. Such distinction between criminal negligence and 'culpa extracontractual' or quasi-delito has been sustained by decision of the Supreme Court of Spain and
maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence,
whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double recovery. (Report of the Code Commission, p.
162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the
same argument of Justice Bocobo about construction that upholds 'the spirit that given life'
rather than that which is literal that killeth the intent of the lawmaker should be observed in
applying the same. And considering that the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and independence of liability in a civil action for
acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Penal Code, and, in a sense, the Rules of Court, under Sections 2
and 3(c), Rule 111, contemplate also the same separability, it is 'more congruent' with the spirit
of law, equity and justice, and more in harmony with modern progress', to borrow the felicitous
language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. to 359, to hod as We do hold, that
Article 2176, where it refers to 'fault covers not only acts 'not punishable by law' but also criminal
in character, whether intentional and voluntary or consequently, a separate civil action lies
against the in a criminal act, whether or not he is criminally prosecuted and found guilty and
acquitted, provided that the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be entitled in such eventuality only to
the bigger award of the, two assuming the awards made in the two cases vary. In other words
the extinction of civil liability refereed to in Par. (c) of Section 13, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the
same act considered as a quasi-delict only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not been
committed by the accused. Brief stated, We hold, in reitration of Garcia, that culpa aquilina
includes voluntary and negligent acts which may be punishable by law. 3
The petitioners are not seeking to recover twice for the same negligent act. Before Criminal Case No. 3162-P
was decided, they manifested in said criminal case that they were filing a separate civil action for damages
against the owner and driver of the passenger jeepney based on quasi-delict. The acquittal of the driver,
Maximo Borilla, of the crime charged in Criminal Case No. 3162-P is not a bar to the prosecution of Civil Case
No. B-134 for damages based on quasi-delict The source of the obligation sought to be enforced in Civil Case
No. B-134 is quasi-delict, not an act or omission punishable by law. Under Article 1157 of the Civil Code of the
Philippines, quasi-delict and an act or omission punishable by law are two different sources of obligation.
Moreover, for the petitioners to prevail in the action for damages, Civil Case No. B-134, they have only to
establish their cause of action by preponderance of the evidence.
WHEREFORE, the order of dismissal appealed from is hereby set aside and Civil Case No. B-134 is reinstated
and remanded to the lower court for further proceedings, with costs against the private respondents.
SO ORDERED.

G.R. No. 78911-25 December 11, 1987

CHARMINA
B.
BANAL, petitioner,
vs.
THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario
Claudiarespondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch
105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty. Nicolito L. Bustos as private
prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario Claudio is the accused for
violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for
reconsideration of the order dated 8 January 1987; and for mandamus to allow Atty. Bustos to enter his
appearance as private prosecutor in the aforestated criminal cases.
It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing
Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against respondent Claudio before the
Regional Trial Court of Quezon City and originally assigned to Branch 84.
The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition
for recuse dated May 19,1986.
The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then
presided over by Judge Johnico G. Serquina
During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she
pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987.
In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105.
On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos
as private prosecutor on the ground that the charge is for the violation of Batas Pambansa Blg. 22 which does
not provide for any civil liability or indemnity and hence, "it is not a crime against property but public order."
The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March
10, 1987.
Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.
In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration.
Hence, this petition questioning the orders of the respondent Court.
The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in
excess of its jurisdiction in rejecting the appearance of a private prosecutor.
The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing
worthless checks as an offense against public order. As such, it is argued that it is the State and the public that

are the principal complainants and, therefore, no civil indemnity is provided for by Batas Pambansa Blg. 22 for
which a private party or prosecutor may intervene.
On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly
liable," contends that indemnity may be recovered from the offender regardless of whether or not Batas
Pambansa Blg. 22 so provides.
A careful study of the concept of civil liability allows a solution to the issue in the case at bar.
Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man
criminally liable is also civilly liable" (Art. 100, The Revised Penal Code). Underlying this legal principle is the
traditional theory that when a person commits a crime he offends two entities namely ( 1) the society in which
he lives in or the political entity called the State whose law he had violated; and (2) the individual member of
that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the
same punishable act or omission. However, this rather broad and general provision is among the most
complex and controversial topics in criminal procedure. It can be misleading in its implications especially where
the same act or omission may be treated as a crime in one instance and as a tort in another or where the law
allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is
intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion
that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or
omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what
gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the
damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or
not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same
felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof.
Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal
actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless
of whether or not it also causes material damage to another. (See Sangco, Philippine Law on Torts and
Damages, 1978, Revised Edition, pp. 246-247).
Article 20 of the New Civil Code provides:
Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may
be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of
another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by
law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of
Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party,
and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses.
(United States v. Bernardo, 19 Phil. 265).
Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against
her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks
to protect. She was assured that the checks were good when she parted with money, property or services. She
suffered with the State when the checks bounced.
In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we
held that "The effects of a worthless check transcend the private interests of the parties directly involved in the
transaction and touch the interests of the community at large." Yet, we too recognized the wrong done to the

private party defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee
or the holder, but also an injury to the public."
Civil liability to the offended private party cannot thus be denied, The payee of the check is entitled to receive
the payment of money for which the worthless check was issued. Having been caused the damage, she is
entitled to recompense.
Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave the offended
private party defrauded and empty- handed by excluding the civil liability of the offender, giving her only the
remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To do so, may
leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching
the errant drawer at the expense of the payee. The protection which the law seeks to provide would, therefore,
be brought to naught.
The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the
protection of her interests but also in the interest of the speedy and inexpensive administration of justice
mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate civil action
for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further
delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioner's rights may
be fulIy adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil liability
is clearly unwarranted.
WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of
a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution of the civil aspect of Criminasl
Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo for further
proceedings. This decision is immediately executory.
SO ORDERED.
G.R. No. 82146 January 22, 1990
EULOGIO
OCCENA, petitioner,
vs.
HON. PEDRO M. ICAMINA, Presiding Judge, Branch X of the Regional Trial Court Sixth Judicial Region,
San Jose, Antique; THE PEOPLE OF THE PHILIPPINES, represented by the Honorable Provincial Fiscal
of Antique; and CRISTINA VEGAFRIA, respondents.
Comelec Legal Assistance Office for petitioner.
Comelec Legal Assistance Officer for private respondent.

FERNAN, C.J.:
On May 31, 1979, herein petitioner Eulogio Occena instituted before the Second Municipal Circuit Trial Court of
Sibalom, San Remigio Belison, Province of Antique, Criminal Case No. 1717, a criminal complaint for Grave
Oral Defamation against herein private respondent Cristina Vegafria for allegedly openly, publicly and
maliciously uttering the following insulting words and statements: "Gago ikaw nga Barangay Captain, montisco,
traidor, malugus, Hudas," which, freely translated, mean: "You are a foolish Barangay Captain, ignoramus,
traitor, tyrant, Judas" and other words and statements of similar import which caused great and irreparable
damage and injury to his person and honor.

Private respondent as accused therein entered a plea of not guilty. Trial thereafter ensued, at which petitioner,
without reserving his right to file a separate civil action for damages actively intervened thru a private
prosecutor.
After trial, private respondent was convicted of the offense of Slight Oral Defamation and was sentenced to pay
a fine of Fifty Pesos (P50.00) with subsidiary imprisonment in case of insolvency and to pay the costs. No
damages were awarded to petitioner in view of the trial court's opinion that "the facts and circumstances of the
case as adduced by the evidence do not warrant the awarding of moral damages." 1
Disagreeing, petitioner sought relief from the Regional Trial Court, which in a decision dated March 16, 1987
disposed of petitioner's appeal as follows:
IN VIEW OF ALL THE FOREGOING, the civil aspect of the lower court's decision of April 20,
1981 subject of this appeal, for lack of merit, is hereby DENIED.
After the decision shall have become final, remand the records of this case to the court of origin,
Second Municipal Circuit Trial Court of Sibalom, San Remigio-Belison, Antique, for the
execution of its decision on the criminal aspect.
SO ORDERED. 2
Petitioner is now before us by way of a petition for review on certiorari seeking to annul the RTC decision for
being contrary to Article 100 of the Revised Penal Code providing that every person criminally liable for a
felony is also civilly liable, and Article 2219 of the New Civil Code providing that moral damages may be
recovered in libel, slander or any other form of defamation. He submits that public respondent RTC erred in
relying on the cases of Roa vs. de la Cruz, 107 Phil. 10 and Tan vs. Standard Vacuum Oil Co., et al., 91 Phil.
672 cited therein. He differentiates said cases from the case at bar by saying that in the case of Roa, the
decision of the trial court had become final before Maria C. Roa instituted a civil action for damages; whereas
in the instant case, the decision of the trial court has not yet become final by reason of the timely appeal
interposed by him and no civil action for damages has been instituted by petitioner against private respondent
for the same cause. Tan, on the other hand, contemplates of two actions, one criminal and one civil, and the
prosecution of the criminal case had resulted in the acquittal of the accused, which is not the situation here
where the civil aspect was impliedly instituted with the criminal action in accordance with Section 1, Rule 111,
of the Rules of Court.
Private respondent for her part argues that the decision of the trial court carries with it the final adjudication of
her civil liability. Since petitioner chose to actively intervene in the criminal action without reserving his right to
file a separate civil action for damages, he assumed the risk that in the event he failed to recover damages he
cannot appeal from the decision of the lower court.
We find merit in the petition.
The issues confronting us in the instant petition is whether or not the decision of the Second Municipal Trial
Court of Sibalom, San-Remigio-Belison, Province of Antique constitutes the final adjudication on the merits of
private respondent's civil liability; and whether or not petitioner is entitled to an award of damages arising from
the remarks uttered by private respondent and found by the trial court to be defamatory.
The decision of the Municipal Circuit Trial Court as affirmed by the Regional Trial Court in Criminal Case No.
1709 cannot be considered as a final adjudication on the civil liability of private respondent simply because
said decision has not yet become final due to the timely appeal filed by petitioner with respect to the civil
liability of the accused in said case. It was only the unappealed criminal aspect of the case which has become
final.

In the case of People vs. Coloma, 105 Phil. 1287, we categorically stated that from a judgment convicting the
accused, two (2) appeals may, accordingly, be taken. The accused may seek a review of said judgment, as
regards both civil and criminal actions; while the complainant may appeal with respect only to the civil action,
either because the lower court has refused to award damages or because the award made is unsatisfactory to
him. The right of either to appeal or not to appeal in the event of conviction of the accused is not dependent
upon the other. Thus, private respondent's theory that in actively intervening in the criminal action, petitioner
waived his right to appeal from the decision that may be rendered therein, is incorrect and inaccurate.
Petitioner may, as he did, appeal from the decision on the civil aspect which is deemed instituted with the
criminal action and such appeal, timely taken, prevents the decision on the civil liability from attaining finality.
We tackle the second issue by determining the basis of civil liability arising from crime. Civil obligations arising
from criminal offenses are governed by Article 100 of the Revised Penal Code which provides that "(E)very
person criminally liable for a felony is also civilly liable," in relation to Article 2177 of the Civil Code on quasidelict, the provisions for independent civil actions in the Chapter on Human Relations and the provisions
regulating damages, also found in the Civil Code.
Underlying the legal principle that a person who is criminally liable is also civilly liable is the view that from the
standpoint of its effects, a crime has dual character: (1) as an offense against the state because of the
disturbance of the social order; and (2) as an offense against the private person injured by the crime unless it
involves the crime of treason, rebellion, espionage, contempt and others wherein no civil liability arises on the
part of the offender either because there are no damages to be compensated or there is no private person
injured by the crime. 3 In the ultimate analysis, what gives rise to the civil liability is really the obligation of
everyone to repair or to make whole the damage caused to another by reason of his act or omission, whether
done intentional or negligently and whether or not punishable by law. 4
In the case at bar, private respondent was found guilty of slight oral defamation and sentenced to a fine of
P50.00 with subsidiary imprisonment in case of insolvency, but no civil liability arising from the felonious act of
the accused was adjudged. This is erroneous. As a general rule, a person who is found to be criminally liable
offends two (2) entities: the state or society in which he lives and the individual member of the society or
private person who was injured or damaged by the punishable act or omission. The offense of which private
respondent was found guilty is not one of those felonies where no civil liability results because either there is
no offended party or no damage was caused to a private person. There is here an offended party, whose main
contention precisely is that he suffered damages in view of the defamatory words and statements uttered by
private respondent, in the amount of Ten Thousand Pesos (P10,000.00) as moral damages and the further
sum of Ten Thousand Pesos (P10,000) as exemplary damages.
Article 2219, par. (7) of the Civil Code allows the recovery of moral damages in case of libel, slander or any
other form of defamation This provision of law establishes the right of an offended party in a case for oral
defamation to recover from the guilty party damages for injury to his feelings and reputation. The offended
party is likewise allowed to recover punitive or exemplary damages.
It must be remembered that every defamatory imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown. And malice may be inferred from the style and tone
of publication 5 subject to certain exceptions which are not present in the case at bar.
Calling petitioner who was a barangay captain an ignoramus, traitor, tyrant and Judas is clearly an imputation
of defects in petitioner's character sufficient to cause him embarrassment and social humiliation. Petitioner
testified to the feelings of shame and anguish he suffered as a result of the incident complained of. 6 It is
patently error for the trial court to overlook this vital piece of evidence and to conclude that the "facts and
circumstances of the case as adduced by the evidence do not warrant the awarding of moral damages."
Having misapprehended the facts, the trial court's findings with respect thereto is not conclusive upon us.

From the evidence presented, we rule that for the injury to his feelings and reputation, being a barangay
captain, petitioner is entitled to moral damages in the sum of P5,000.00 and a further sum of P5,000.00 as
exemplary damages.
WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court is hereby MODIFIED
and private respondent is ordered to pay petitioner the amount of P5,000.00 as moral damages and another
P5,000.00 as exemplary damages. Costs against private respondent.
SO ORDERED.
PACIS VS. MORALES
The Case
This petition for review[1] assails the 11 May 2005 Decision[2] and the 19 August 2005 Resolution of the Court of
Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners) filed with the trial court a
civil case for damages against respondent Jerome Jovanne Morales (respondent). Petitioners are the parents
of Alfred Dennis Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident inside the Top Gun
Firearms and Ammunitions Store (gun store) in Baguio City. Respondent is the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the
Baguio Colleges Foundation taking up BS Computer Science, died due to a gunshot wound in
the head which he sustained while he was at the Top Gun Firearm[s] and Ammunition[s] Store
located at Upper Mabini Street, Baguio City. The gun store was owned and operated by
defendant Jerome Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They were sales
agents of the defendant, and at that particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the gun store for
repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194 (Exhibit Q), was left by
defendant Morales in a drawer of a table located inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando Jarnague, who was the regular caretaker
of the gun store was also not around. He left earlier and requested sales agents Matibag and Herbolario to
look after the gun store while he and defendant Morales were away. Jarnague entrusted to Matibag and
Herbolario a bunch of keys used in the gun store which included the key to the drawer where the fatal gun was
kept.
It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it
on top of the table. Attracted by the sight of the gun, the young Alfred Dennis Pacis got hold of
the same. Matibag asked Alfred Dennis Pacis to return the gun. The latter followed and handed
the gun to Matibag. It went off, the bullet hitting the young Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this Court. Matibag, however, was
acquitted of the charge against him because of the exempting circumstance of accident under Art. 12, par. 4 of
the Revised Penal Code.

By agreement of the parties, the evidence adduced in the criminal case for homicide against
Matibag was reproduced and adopted by them as part of their evidence in the instant case.[3]
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs
[Spouses Alfredo P. Pacis and Cleopatra D. Pacis] and against the defendant [Jerome Jovanne
Morales] ordering the defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial
expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.
SO ORDERED.[4]
Respondent appealed to the Court of Appeals. In its Decision[5] dated 11 May 2005, the Court of Appeals
reversed the trial courts Decision and absolved respondent from civil liability under Article 2180 of the Civil
Code.[6]
Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 19
August 2005.
Hence, this petition.
The Trial Courts Ruling
The trial court held respondent civilly liable for the death of Alfred under Article 2180 in relation to Article 2176
of the Civil Code.[7] The trial court held that the accidental shooting of Alfred which caused his death was partly
due to the negligence of respondents employee Aristedes Matibag (Matibag). Matibag and Jason Herbolario
(Herbolario) were employees of respondent even if they were only paid on a commission basis. Under the Civil
Code, respondent is liable for the damages caused by Matibag on the occasion of the performance of his
duties, unless respondent proved that he observed the diligence of a good father of a family to prevent the
damage. The trial court held that respondentfailed to observe the required diligence when he left the key to the
drawer containing the loaded defective gun without instructing his employees to be careful in handling the
loaded gun.
The Court of Appeals Ruling
The Court of Appeals held that respondent cannot be held civilly liable since there was no employer-employee
relationship between respondent and Matibag. The Court of Appeals found that Matibag was not under the
control of respondent with respect to the means and methods in the performance of his work. There can be no
employer-employee relationship where the element of control is absent. Thus, Article 2180 of the Civil Code
does not apply in this case and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an employer of Matibag, still
respondent cannot be held liable since no negligence can be attributed to him. As explained by the Court of
Appeals:
Granting arguendo that an employer-employee relationship existed between Aristedes Matibag
and the defendant-appellant, we find that no negligence can be attributed to him.

Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test of negligence is this:
x x x. Could a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of
the course about to be pursued? If so, the law imposes a duty on the actor to
refrain from that course or take precaution against its mischievous results, and
the failure to do so constitutes negligence. x x x.
Defendant-appellant maintains that he is not guilty of negligence and lack of due care as he did
not fail to observe the diligence of a good father of a family. He submits that he kept the firearm
in one of his table drawers, which he locked and such is already an indication that he took the
necessary diligence and care that the said gun would not be accessible to anyone. He puts [sic]
that his store is engaged in selling firearms and ammunitions. Such items which are per
se dangerous are kept in a place which is properly secured in order that the persons coming
into the gun store would not be able to take hold of it unless it is done intentionally, such as
when a customer is interested to purchase any of the firearms, ammunitions and other related
items, in which case, he may be allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased, defendant-appellant is not
to be blamed. He exercised due diligence in keeping his loaded gun while he was on a business
trip in Manila. He placed it inside the drawer and locked it. It was taken away without his
knowledge and authority. Whatever happened to the deceased was purely accidental.[8]
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING THE DECISION
AND RESOLUTION IN QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE BY
REVERSING THE ORDER OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO
CITY NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS AND TESTIMONIES
PRESENTED DURING THE TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN RENDERING
THE DECISION AND RESOLUTION IN QUESTION BY DEPARTING FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS THEREBY IGNORING
THE FACTUAL FINDINGS OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO
CITY SHOWING PETITIONERS CLEAR RIGHTS TO THE AWARD OF DAMAGES.[9]
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners son. Under Article 1161[10] of the Civil
Code, petitioners may enforce their claim for damages based on the civil liability arising from the crime under
Article 100[11] of the Revised Penal Code or they may opt to file an independent civil action for damages under
the Civil Code. In this case, instead of enforcing their claim for damages in the homicide case filed against
Matibag, petitioners opted to file an independent civil action for damages against respondent whom they
alleged was Matibags employer. Petitioners based their claim for damages under Articles 2176 and 2180 of the
Civil Code.
Unlike the subsidiary liability of the employer under Article 103 [12] of the Revised Penal Code,[13] the liability of
the employer, or any person for that matter, under Article 2176 of the Civil Code is primary and direct, based on
a persons own negligence. Article 2176 states:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun store. Under PNP Circular No. 9, entitled
the Policy on Firearms and Ammunition Dealership/Repair, a person who is in the business of purchasing and
selling of firearms and ammunition must maintain basic security and safety requirements of a gun dealer,
otherwise his License to Operate Dealership will be suspended or canceled.[14]
Indeed, a higher degree of care is required of someone who has in his possession or under his control an
instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in
possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent
any injury being done thereby.[15] Unlike the ordinary affairs of life or business which involve little or no risk, a
business dealing with dangerous weapons requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have
known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to
others. Respondent has the duty to ensure that all the guns in his store are not loaded. Firearms should be
stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive
use.[16] With more reason, guns accepted by the store for repair should not be loaded precisely because they
are defective and may cause an accidental discharge such as what happened in this case. Respondent was
clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that
it was not loaded. In the first place, the defective gun should have been stored in a vault. Before accepting the
defective gun for repair, respondent should have made sure that it was not loaded to prevent any untoward
accident. Indeed, respondent should never accept a firearm from another person, until the cylinder or action is
open and he has personally checked that the weapon is completely unloaded.[17] For failing to insure that the
gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this case whether
respondent had a License to Repair which authorizes him to repair defective firearms to restore its original
composition or enhance or upgrade firearms.[18]
Clearly, respondent did not exercise the degree of care and diligence required of a good father of a family,
much less the degree of care required of someone dealing with dangerous weapons, as would exempt him
from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19 August 2005
Resolution of the Court of Appeals in CA-G.R. CV No. 60669. We REINSTATE the trial courts Decision dated 8
April 1998.
G.R. No. L-34666 October 30, 1981
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, MERCEDES
vs.
ITONG AMISTAD respondent.

L.

JAVELLANA, petitioner,

DE CASTRO, J.:
The legal question raised in this petition for certiorari is whether from a decision of acquittal, the complainant in
a criminal action for estafa, may appeal with respect to the civil aspect of the case.
The criminal action in this case was commenced in the Court of First Instance of Baguio and Benguet, under
an information which reads:
I N F O R M AT I O N

The undersigned Acting 1st Assistant City Fiscal accuses ITONG AMISTAD of the crime of
Estafa penalized under Article 316 Paragraph 2, of the Revised Penal Code, committed as
follows:
That on or about January 30, 1965, October 11, 1965, and December 23, 1965,
in the City of Baguio, Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused, did then and there, willfully, unlawfully, and
feloniously
(1) (January 30, 1965) sell, convey, transfer and deliver by way of a deed of sale in favor of Ben
Palispis an unsegregated portion of 42,326 square meters of that parcel of land described in
ORIGINAL CERTIFICATE OF TITLE No. 0-105
A parcel of land (Lot 1, plan Psu-203086-Amd., Civil Reservation Case No. 1,
L.R.C. Civil Reservation Record No. 211), situated in the Res. Sec. "J", City of
Baguio. Bounded on the NE., by property of Honor Kingdoms; on the SW., by Lot
2; on the W and NW., by Public land. ... containing an area of EIGHTY FOUR
THOUSAND SIX HUNDRED AND FIFTY THREE (84,653) Square meters, more
or less, ... in the names of spouses I tong Amistad and Luisa Tengdan.
(2) (October 11, 1965) sell, convey, transfer and deliver by way of a deed of sale in favor of
Teodoro Mat-an the remaining 42,326 square meters of the above-described parcel of land; and
(3) (December 23, 1965) execute a supplemental deed of sale over the entire area covered by
Original Certificate of Title No. 0-105 in favor of vendees Ben Palispis and Teodoro Mat-an
which effected the issuance of two separate titles in favor of said vendees
knowing fully well and purposely withholding the information that on or about February 10, 1962,
he had previously entered into an agreement with one MERCEDES L. JAVELLANA to convey to
her an area of 10,000 square meters from the above-described parcel of land for the sum of
TEN THOUSAND (P10,000.00) PESOS and had already received from her the sum of FIVE
THOUSAND ( P5,000.00) PESOS, thereby causing damage and prejudice to said Mercedes L.
Javellana in the amount of FIVE THOUSAND (P5,000.00) PESOS, Philippine Currency.
All contrary to law.
After trial, decision was rendered dated February 8, 1971, and promulgated on March 18, 1971 acquitting the
accused, respondent herein, the Court holding that "the case of the prosecution is civil in nature" and that "the
guilt of the accused has not been proven beyond reasonable doubt."
From the judgment of acquittal, the complainant, the petitioner herein, appealed to the Court of Appeals insofar
as the civil liability of the accused is concerned. Without awaiting the completion of the transcript of the
stenographic notes in the case, the Court of Appeals dismissed the appeal merely on the legal proposition that
an appeal by the complainant from a judgment of acquittal should be disallowed.
The Resolution of the Court of Appeals dated December 1, 1971, is set forth in full as follows:
This refers to an appeal against the judgment of the Court of First Instance of Baguio, in
Criminal Case No. 4205, wherein the accused Itong Amistad who was prosecuted for the crime
of estafa paragraph 2, Article 316 R.P.C.), was acquitted. The decision was promulgated on
March 18, 1971 and on that same day, the complainant, through counsel, filed a Notice of

Appeal from said judgment, "insofar as the civil liability of the accused is concerned." Apparently
the appeal was approved by the trial court, the records of the case were elevated to this Court,
and this Court required the completion of the same.
Now, while the right of the offended party to intervene in the criminal action (Section 15, Rule
110, Rules) as well as to appeal from a final judgment or ruling or from an order made after
judgment affecting the substantial rights of the appellant (Section 2, Rule 122, Rules) is
recognized, the offended party however, cannot appeal if the accused is acquitted as matters
are (People vs. Herrera 74 Phil. 21). indeed, the trial court in acquitting the herein defendant
stated:
In the mind of the court, the case of the prosecution is civil in nature. In fact, the
supervening acts of the parties after the execution of Exhibit A until the execution
of Exhibit D are clear and unequivocal which ineluctably lead this court to believe
that the guilt of the accused has not been proven beyond reasonable doubt.
An appeal from the judgment of the Court of First Instance would perforce require a new
determination of defendant's criminal liability. This cannot be done. Besides, the offended party
has the remedy of bringing a civil action independently of the criminal action.
Indeed, this question is not new. It has already been so ruled by the Supreme Court in several
cases (People vs. Flores, G.R. No. L-7523, December 18, 1957, citing People vs. Velez, 77
Phil. 1026; People vs. Benjamin Liggayu et al., No. 8224, October 31, 1955; People vs. Joaquin
Lipana 72 Phil. 166; People vs. Florendo, 73 Phil. 679 [decided under the new Rules of Court];
Ricafort vs. Fernan, 101 Phil. 575, 572).
Considering that the complainant is appealing from a judgment acquitting the accused in a
criminal case, her appeal should be disallowed.
WHEREFORE, the appeal is hereby ordered dismissed. The stenographers who were required
to submit their respective transcripts of stenographic notes in this case are hereby excused
therefrom. (pp. 6-7, Brief for the Respondent, p. 78, Rollo).
A motion for reconsideration of the Resolution of the Court of Appeals was filed but was denied on January 4,
1972. From both aforesaid Resolutions dismissing the appeal and the order denying the Motion for
Reconsideration, the petitioner came to this Court on a petition for certiorari with prayer that the Resolution of
the Court of Appeals be reversed, and that judgment be rendered in favor of petitioner and against respondent
insofar as the latter's hability is concerned
(a) Ordering respondent to pay to petitioner such sum as this Court shall adjudge to rightfully
represent the value of the one hectare portion of the land involved agreed to be conveyed to
petitioner by respondent in accordance with the Agreement to Convey Real Property (Exhibit
"A");
(b) Ordering respondent to pay to petitioner the expenses of litigation actually incurred by the
latter; and
(c) Ordering respondent to pay the costs of suit. (p.28, Brief for the Petitioner, p. 60, Rollo).
The sole legal question for determination as stated at the outset, is whether an appeal by the complainant for
estafa, may be allowed from a decision acquitting the accused of the crime charged, only insofar as the latter's
civil liability is concerned.

In support of her affirmative position on the issue above stated, petitioner cites Section 2, Rules 122 of the
Rules of Court which provides:
SEC. 2. Who may appeal.The People of the Philippines can not appeal if the defendant would
be placed thereby in double jeopardy. In all other cases either party may appeal from a final
judgment or ruling or from an order made after judgment affecting the substantial rights of the
appellant. (p. 12, Brief for the Petitioner, p. 60, Rollo).
Additionally, she cites Section 3 of Rule 111, from which she quotes the following:
SEC. 3. Other civil actions arising from offenses.In all cases not included in the preceding
section the following rules shall be observed:
xxx xxx xxx
(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that the fact from which the civil might arise did
not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction
and in the manner provided by law against the person who may be liable for restitution of the
thing and reparation or indemnity for the damage suffered. (Rule 111, Rules of Court in the
Philippines.) (pp. 13-14, Id)
Finally, she cites Article 29 of the Civil Code of the Philippines which reads:
ART. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil action for damages for the same act or
omission may be instituted. Such action requires only a preponderance of evidence. Upon
motion of the defendant, the court may require the plaintiff to file a bond to answer for damages
in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so
declare. In the absence of any declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground. (p. 14, id).
From the aforequoted provisions, petitioners contend that the remedy of appeal is expressly granted to her
inasmuch as the civil action for the recovery of civil liability is impliedly instituted with the criminal action,
Criminal Case No. 4205 of the Court of First Instance of Baguio and Benguet, there having been no
reservation to file a separate civil action or a waiver of the right to file one. She had in fact hired a private
prosecutor to handle, primarily the civil aspect of the case, the prosecution of the crime remaining under the
direction and control of the prosecuting Fiscal. The private prosecutor presented evidence bearing on the civil
liability of the accused. In a memorandum he filed, he also discussed extensively the civil liability of the
accused, despite which, the trial court failed to rule on the latter's civil liability to the complainant.
It is this omission, as alleged by petitioner herein, that con constitutes the thrust of her first assignment of error,
the only one We feel called upon to rule on, among her three assigned errors, the other two having relation to
how the trial court evaluated the evidence, and the extent of damages petitioner alleges to be entitled to under
such evidence, which evidently may not be passed upon in the instant proceedings, the evidence presented
during the trial not having been elevated to this Court, nor even to the Court of Appeals, at least not fully or
completely.
Confining ourselves, therefore, to the first assigned error, We find no ground to reverse the Resolution of the
Court of Appeals on the purely legal question of whether the petitioner, as complainant in Criminal Case No.

4025 of the Court of First Instance of Baguio and Benguet, for estafa, can appeal from the judgment acquitting
the accused, because the trial court failed to declare the latter's civil liability to the complainant, which was
allegedly proven by the evidence.
The provision of Article 29 of the Civil Code relied upon by the petitioner clearly requires the institution of a
separate action by the filing of the proper complaint. To such complaint, the accused as the defendant therein,
may file the appropriate responsive pleading, which may be an answer or a motion to dismiss. In a criminal
action, notwithstanding that the action for the recovery of civil liability is impliedly instituted therewith, if not
reserved or waived, the accused is not afforded the same remedy. Neither is the mandatory pre-trial held as is
required of all civil actions. The obvious reason is that the civil liability recoverable in the criminal action is one
solely dependent upon conviction, because said liability arises from the offense, with respect to which pre-trial
is never held to obtain admission as to the commission thereof, except on the occasion of arraignment. This is
the kind of civil liability involved in the civil action deemed filed simultaneously with the filing of criminal action,
unless it is reserved or waived, as so expressly provided in Section 1, Rule 111 of the Rules of Court and as
held in People vs. Herrera, 74 Phil. 21.
If the civil liability arises from other sources than the commission of the offense, such as from law or contract or
quasi-delict, its enforcement has to be by an ordinary civil action, which, as expressly provided in Article 29 of
the Civil Code may be disposed of as a mere preponderance of evidence would warrant. Then, all the
defenses available, such as prescription, lack of jurisdiction, set-off, and the other grounds for a motion to
dismiss may be availed of, as may be proper under the peculiar facts and circumstances of the case, complete
with pre-trial after issues have been joined. Upon these considerations, it becomes clear that the argument of
petitioner invoking the rule against multiplicity of action may not forcefully or convincingly be put forth.
In the Resolution of the Court of Appeals several cases have been cited which held that an appeal from the
dismissal of the criminal case on motion by the fiscal may not be taken by the offended party (People vs.
Lipana 72 Phil. 168; People vs. Florendo, 73 Phil. 679). In the case of People vs. Herrera, et al., 74 Phil. 21,
the accused was acquitted without the court making any pronouncement as to his civil liability, in exactly the
same manner that the Court of First Instance of Baguio and Benguet in Criminal Case No. 4025, was charged
with a similar omission in the case at bar. The Supreme Court did not permit an appeal by the offended party,
the Court saying:
The decision of the justice of the peace court which acquitted the defendant of the charge and
did not make any pronouncement holding the defendant civilly liable put an end to the case, not
only by freeing the defendant from criminal responsibility but also by rejecting all liability for
damages arising from the alleged crime of malicious mischief. The offended parties not having
reserved their right to bring a separate civil action, the aforesaid decision of acquittal covered
both the criminal and the civil aspects of the case under Rule 107, section l (a) of the new Rules
of Court. An appeal from that decision to the Court of First Instance, as intended by the offended
parties, would reopen the question of defendant's civil liability arising from the alleged crime.
And considering that such civil liability must be based on the criminal responsibility of the
defendant (art. 100, Revised Penal Code), any review or re-examination of the question of civil
liability would perforce require a new determination of defendant's criminal liability. But another
trial upon defendant's criminal responsibility cannot be held, in view of his previous acquittal in
the justice of the peace court. So the appeal from the decision of the justice of the peace court
is not authorized by law.
Brought out in bold relief in the aforequoted ruling is that what is impliedly brought simultaneously with the
criminal action is the civil action to recover civil liability arising from the offense. Hence, the two actions may
rise or fall together. However, if the civil action is reserved, or if the ground of acquittal is reasonable doubt as
to the guilt of the accused, a separate civil action may be filed, the complainant alleging a cause of action

independent of, and not based on, the commission of an offense. Only preponderance of evidence would then
be required.
The futility of petitioner's instant recourse becomes all too evident upon consideration of the principles
enunciated, particularly in the Herrera case, since if the civil liability recoverable in a criminal action is one
arising from the crime charged, no longer may the respondent be found criminally liable upon a review of the
evidence, after the verdict of acquittal has been handed down by the trial court. Again, petitioner tries to show
that the cases cited by the Court of Appeals are not in point. But she has not cited one single case faintly
supporting her position as she has tried to maintain in the instant case.
Nevertheless, petitioner may not complaint, as she does of being denied due process for disallowing her
appeal. She can institute a separate civil action if her cause of action could come under the category of quasidelict or one arising from law, contract or any other known source of civil liability, but certainly not anymore
from the offense of which petitioner had already been acquitted. It is but fair to require petitioner to take this
course of action, not only because she would have to pay for the lawful expenses for instituting the action to
obtain the relief she seeks from respondent, from which she is spared in the prosecution of a criminal case, but
also for the respondent or defendant to avail of all defenses and remedies as are open to him in a separate
civil action not otherwise available in a criminal action that carries with it the civil action when deemed
simultaneously filed with it, to recover civil liability arising from the crime charged.
For all the foregoing, the Resolution appealed from is affirmed, and the instant petition is, accordingly,
dismissed, without pronouncement as to costs.
EDGAR
vs.
COURT OF APPEALS and JOSE KUAN SING, respondents.

JARANTILLA, petitioner,

Corazon Miraflores and Vicente P. Billena for petitioner.

Manuel S. Gemarino for private respondent.

REGALADO, J.:
The records show that private respondent Jose Kuan Sing was "side-swiped by a vehicle in the evening of July
7, 1971 in lznart Street, Iloilo City" 1 The respondent Court of Appeals concurred in the findings of the court a
quo that the said vehicle which figured in the mishap, a Volkswagen (Beetle type) car, was then driven by
petitioner Edgar Jarantilla along said street toward the direction of the provincial capitol, and that private
respondent sustained physical injuries as a consequence. 2
Petitioner was accordingly charged before the then City Court of Iloilo for serious physical injuries thru reckless
imprudence in Criminal Case No. 47207 thereof. 3 Private respondent, as the complaining witness therein, did
not reserve his right to institute a separate civil action and he intervened in the prosecution of said criminal
case through a private prosecutor. 4 Petitioner was acquitted in said criminal case "on reasonable doubt".5
On October 30, 1974, private respondent filed a complaint against the petitioner in the former Court of First
Instance of Iloilo, Branch IV, 6 docketed therein as Civil Case No. 9976, and which civil action involved the
same subject matter and act complained of in Criminal Case No. 47027. 7 In his answer filed therein, the
petitioner alleged as special and affirmative detenses that the private respondent had no cause of action and,
additionally, that the latter's cause of action, if any, is barred by the prior judgment in Criminal Case No. 47207

inasmuch as when said criminal case was instituted the civil liability was also deemed instituted since therein
plaintiff failed to reserve the civil aspect and actively participated in the criminal case. 8
Thereafter, acting on a motion to dismiss of therein defendant, the trial court issued on April 3, 1975 an order of
denial, with the suggestion that "(t)o enrich our jurisprudence, it is suggested that the defendant brings (sic)
this ruling to the Supreme Court by certiorari or other appropriate remedy, to review the ruling of the court". 9
On June 17, 1975, petitioner filed in this Court a petition for certiorari, prohibition and mandamus, which was
docketed as G.R. No. L-40992, 10 assailing the aforesaid order of the trial court. Said petition was dismissed
for lack of merit in the Court's resolution of July 23, 1975, and a motion for reconsideration thereof was denied
for the same reason in a resolution of October 28, 1975. 11
After trial, the court below rendered judgment on May 23, 1977 in favor of the herein private respondent and
ordering herein petitioner to pay the former the sum of P 6,920.00 for hospitalization, medicines and so forth,
P2,000.00 for other actual expenses, P25,000.00 for moral damages, P5,000.00 for attorney's fees, and
costs. 12
On July 29, 1987, the respondent Court of Appeals 13 affirmed the decision of the lower court except as to the
award for moral damages which it reduced from P25,000.00 to P18,000.00. A motion for reconsideration was
denied by respondent court on September 18, 1987. 14
The main issue for resolution by Us in the present recourse is whether the private respondent, who was the
complainant in the criminal action for physical injuries thru reckless imprudence and who participated in the
prosecution thereof without reserving the civil action arising from the act or omission complained of, can file a
separate action for civil liability arising from the same act or omission where the herein petitioner was acquitted
in the criminal action on reasonable doubt and no civil liability was adjudicated or awarded in the judgment of
acquittal.
Prefatorily, We note that petitioner raises a collateral issue by faulting the respondent court for refusing to
resolve an assignment of error in his appeal therein, said respondent court holding that the main issue had
been passed upon by this Court in G.R. No. L-40992 hereinbefore mentioned. It is petitioner's position that the
aforesaid two resolutions of the Court in said case, the first dismissing the petition and the second denying the
motion for reconsideration, do not constitute the "law of the case' which would control the subsequent proceed
ings in this controversy.
1. We incline favorably to petitioner's submission on this score.
The "doctrine of the law of the case" has no application at the aforesaid posture of the proceedings when the
two resolutions were handed down. While it may be true that G.R. No. L-40992 may have involved some of the
issues which were thereafter submitted for resolution on the merits by the two lower courts, the proceedings
involved there was one for certiorari, prohibition and mandamus assailing an interlocutory order of the court a
quo, specifically, its order denying therein defendants motion to dismiss. This Court, without rendering a
specific opinion or explanation as to the legal and factual bases on which its two resolutions were predicated,
simply dismissed the special civil action on that incident for lack of merit. It may very well be that such
resolution was premised on the fact that the Court, at that stage and on the basis of the facts then presented,
did not consider that the denial order of the court a quo was tainted with grave abuse of discretion. 15 To
repeat, no rationale for such resolutions having been expounded on the merits of that action, no law of the
case may be said to have been laid down in G.R. No. L-40992 to justify the respondent court's refusal to
consider petitioner's claim that his former acquittal barred the separate action.
'Law of the case' has been defined as the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably established, as the controlling legal rule

of decision between the same parties in the same case continues to be the law of the case,
whether correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court (21 C.J.S. 330). (Emphasis
supplied). 16
It need not be stated that the Supreme Court being the court of last resort, is the final arbiter of
all legal questions properly brought before it and that its decision in any given case constitutes
the law of that particular case . . . (Emphasis supplied). 17
It is a rule of general application that the decision of an appellate court in a case is the law of the
case on the points presented throughout all the subsequent proceedings in the case in both the
trial and the appellate courts, and no question necessarily involved and decided on that appeal
will be considered on a second appeal or writ of error in the same case, provided the facts and
issues are substantially the same as those on which the first question rested and, according to
some authorities, provided the decision is on the merits . . . 18
2. With the foregoing ancillary issue out of the way, We now consider the principal plaint of petitioner.
Apropos to such resolution is the settled rule that the same act or omission (in this case, the negligent
sideswiping of private respondent) can create two kinds of liability on the part of the offender, that is, civil
liability ex delicto and civil liability ex quasi delicto. Since the same negligence can give rise either to a delict or
crime or to a quasi-delict or tort, either of these two types of civil liability may be enforced against the culprit,
subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages
under both types of liability. 19
We also note the reminder of petitioner that in Roa vs. De la Cruz, et al., 20 it was held that where the offended
party elected to claim damages arising from the offense charged in the criminal case through her intervention
as a private prosecutor, the final judgment rendered therein constituted a bar to the subsequent civil action
based upon the same cause. It is meet, however, not to lose sight of the fact that the criminal action involved
therein was for serious oral defamation which, while within the contemplation of an independent civil action
under Article 33 of the Civil Code, constitutes only a penal omen and cannot otherwise be considered as a
quasi-delict or culpa aquiliana under Articles 2176 and 2177 of the Civil Code. And while petitioner draws
attention to the supposed reiteration of the Roa doctrine in the later case of Azucena vs. Potenciano, et
al., 21 this time involving damage to property through negligence as to make out a case of quasi-delict under
Articles 2176 and 2180 of the Civil Code, such secondary reliance is misplaced since the therein plaintiff
Azucena did not intervene in the criminal action against defendant Potenciano. The citation of Roa in the later
case of Azucena was, therefore, clearly obiter and affords no comfort to petitioner.
These are aside from the fact that there have been doctrinal, and even statutory, 22 changes on the matter of
civil actions arising from criminal offenses and quasi-delicts. We will reserve our discussion on the statutory
aspects for another case and time and, for the nonce, We will consider the doctrinal developments on this
issue.
In the case under consideration, private respondent participated and intervened in the prosecution of the
criminal suit against petitioner. Under the present jurisprudential milieu, where the trial court acquits the
accused on reasonable doubt, it could very well make a pronounce ment on the civil liability of the
accused 23 and the complainant could file a petition for mandamus to compel the trial court to include such
civil liability in the judgment of acquittal. 24
Private respondent, as already stated, filed a separate civil aciton after such acquittal. This is allowed under
Article 29 of the Civil Code. We have ruled in the relatively recent case of Lontoc vs. MD Transit & Taxi Co.,
Inc., et al. 25that:

In view of the fact that the defendant-appellee de la Cruz was acquitted on the ground that 'his
guilt was not proven beyond reasonable doubt' the plaintiff-appellant has the right to institute a
separate civil action to recover damages from the defendants-appellants (See Mendoza vs.
Arrieta, 91 SCRA 113). The well-settled doctrine is that a person, while not criminally liable may
still be civilly liable. 'The judgment of acquittal extinguishes the civil liability of the accused only
when it includes a declaration that the facts from which the civil liability might arise did not exist'.
(Padilla vs. Court of Appeals, 129 SCRA 558 cited in People vs. Rogelio Ligon y Tria, et al.,
G.R. No. 74041, July 29, 1987; Filomeno Urbano vs. Intermediate Appellate Court, G.R. No.
72964, January 7, 1988). The ruling is based on Article 29 of the Civil Code which provides:
When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages
for the same act or omission may be instituted. Such action requires only a
preponderance of evidence ... 26
Another consideration in favor of private respondent is the doctrine that the failure of the court to make any
pronouncement, favorable or unfavorable, as to the civil liability of the accused amounts to a reservation of the
right to have the civil liability litigated and determined in a separate action. The rules nowhere provide that if
the court fails to determine the civil liability it becomes no longer enforceable. 27
Furthermore, in the present case the civil liability sought to be recovered through the application of Article 29 is
no longer that based on or arising from the criminal offense. There is persuasive logic in the view that, under
such circumstances, the acquittal of the accused foreclosed the civil liability based on Article 100 of the
Revised Penal Code which presupposes the existence of criminal liability or requires a conviction of the
offense charged. Divested of its penal element by such acquittal, the causative act or omission becomes in
effect a quasi-delict, hence only a civil action based thereon may be instituted or prosecuted thereafter, which
action can be proved by mere preponderance of evidence. 28 Complementary to such considerations, Article
29 enunciates the rule, as already stated, that a civil action for damages is not precluded by an acquittal on
reasonable doubt for the same criminal act or omission.
The allegations of the complaint filed by the private respondent supports and is constitutive of a case for a
quasi-delict committed by the petitioner, thus:
3. That in the evening of July 7, 197l at about 7:00 o'clock, the plaintiff crossed
Iznart Street from his restaurant situated at 220 lznart St., Iloilo City, Philippines,
on his way to a meeting of the Cantonese Club at Aldeguer Street, Iloilo City and
while he was standing on the middle of the street as there were vehicles coming
from the Provincial Building towards Plazoleta Gay, Iloilo City, he was bumped
and sideswiped by Volkswagen car with plate No. B-2508 W which was on its
way from Plazoleta Gay towards the Provincial Capitol, Iloilo City, which car was
being driven by the defendant in a reckless and negligent manner, at an
excessive rate of speed and in violation of the provisions of the Revised Motor
Vehicle (sic) as amended, in relation to the Land Transportation and Traffic Code
as well as in violation of existing city ordinances, and by reason of his
inexcusable lack of precaution and failure to act with due negligence and by
failing to take into consideration (sic) his degree of intelligence, the atmospheric
conditions of the place as well as the width, traffic, visibility and other conditions
of lznart Street; 29
Since this action is based on a quasi-delict, the failure of the respondent to reserve his right to file a separate
civil case and his intervention in the criminal case did not bar him from filing such separate civil action for
damages. 30 The Court has also heretofore ruled in Elcano vs. Hill 31 that

... a separate civil action lies against the offender in a criminal act whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is
also actually charged criminally, to recover damages on both scores; and would be entitled in
such eventuality only to the bigger award of the two, assuming the awards made in the two
cases vary. In other words, the extinction of civil liability referred to in Par. (c) of Sec. 3 Rule 111,
refers exclusively to civil liability founded on Article 100 of the Revised Penal Code; whereas the
civil liability for the same act considered as a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused . . .
The aforecited case of Lontoc vs. MD Transit & Taxi Co., Inc., et al. involved virtually the same factual situation.
The Court, in arriving at the conclusion hereinbefore quoted, expressly declared that the failure of the therein
plaintiff to reserve his right to file a separate civil case is not fatal; that his intervention in the criminal case did
not bar him from filing a separate civil action for damages, especially considering that the accused therein was
acquitted because his guilt was not proved beyond reasonable doubt; that the two cases were anchored on
two different causes of action, the criminal case being on a violation of Article 365 of the Revised Penal Code
while the subsequent complaint for damages was based on a quasi-delict; and that in the judgment in the
criminal case the aspect of civil liability was not passed upon and resolved. Consequently, said civil case may
proceed as authorized by Article 29 of the Civil Code.
Our initial adverse observation on a portion of the decision of respondent court aside, We hold that on the
issues decisive of this case it did not err in sustaining the decision a quo.
WHEREFORE, the writ prayed for is hereby DENIED and the decision of the respondent Court of Appeals is
AFFIRMED, without costs.
SO ORDERED.
HUN HYUNG PARK,
Petitioner,

G.R. No. 165496

Present:

- versus -

EUNG WON CHOI,

Respondent.

QUISUMBING, J., Chairperson,

CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:

February 12, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioner, Hun Hyung Park, assails the Court of Appeals (CA) Resolutions dated May 20,
2004[1] and September 28, 2004[2] in CA G.R. CR No. 28344 dismissing his petition and denying
reconsideration thereof, respectively.
In an Information[3] dated August 31, 2000, respondent, Eung Won Choi, was charged for violation
of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, for issuing on June 28,

1999 Philippine National Bank Check No. 0077133 postdated August 28, 1999 in
of P1,875,000 which was dishonored for having been drawn against insufficient funds.

the

amount

Upon arraignment, respondent, with the assistance of counsel, pleaded not guilty to the offense
charged. Following the pre-trial conference, the prosecution presented its evidence-in-chief.
After the prosecution rested its case, respondent filed a Motion for Leave of Court to File Demurrer to
Evidence to which he attached his Demurrer, asserting that the prosecution failed to prove that he received the
notice of dishonor, hence, the presumption of the element of knowledge of insufficiency of funds did not arise.[4]
By Order[5] of February 27, 2003, the Metropolitan Trial Court (MeTC) of Makati, Branch 65 granted the
Demurrer and dismissed the case. The prosecutions Motion for Reconsideration was denied.[6]
Petitioner appealed the civil aspect[7] of the case to the Regional Trial Court (RTC) of Makati,
contending that the dismissal of the criminal case should not include its civil aspect.
By Decision of September 11, 2003, Branch 60 of the RTC held that while the evidence presented was
insufficient to prove respondents criminal liability, it did not altogether extinguish his civil liability. It accordingly
granted the appeal of petitioner and ordered respondent to pay him the amount of P1,875,000 with legal
interest.[8]
Upon respondents motion for reconsideration, however, the RTC set aside its decision and ordered the
remand of the case to the MeTC for further proceedings, so that the defendant [-respondent herein] may
adduce evidence on the civil aspect of the case. [9] Petitioners motion for reconsideration of the remand of the
case having been denied, he elevated the case to the CA which, by the assailed resolutions, dismissed his
petition for the following reasons:
1.

The verification and certification of non-forum shopping attached to the petition does not
fully comply with Section 4, as amended by A.M. No. 00-2-10-SC, Rule 7, 1997 Rules of
Court, because it does not give the assurance that the allegations of the petition are true
and correct based on authentic records.

2.

The petition is not accompanied by copies of certain pleadings and other material portions
of the record, (i.e., motion for leave to file demurrer to evidence, demurrer to evidence and
the opposition thereto, and the Municipal [sic] Trial Courts Order dismissing Criminal Case
No. 294690) as would support the allegations of the petition (Sec. 2, Rule 42, ibid.).

3.

The Decision dated September 11, 2003 of the Regional Trial Court attached to the
petition is an uncertified and illegible mere machine copy of the original (Sec. 2, Rule
42, ibid.).

4.

Petitioners failed to implead the People of the Philippines as party-respondent in the

petition.[10]

In his present petition, petitioner assails the above-stated reasons of the appellate court in dismissing
his petition.
The manner of verification for pleadings which are required to be verified, such as a petition for review
before the CA of an appellate judgment of the RTC, [11] is prescribed by Section 4 of Rule 7 of the Rules of
Court:
Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need
not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.
A pleading required to be verified which contains a verification based on information and
belief, or upon knowledge, information and belief, or lacks a proper verification shall be treated
as an unsigned pleading.[12] (Emphasis and underscoring supplied)
Petitioner argues that the word or is a disjunctive term signifying disassociation and independence,
hence, he chose to affirm in his petition he filed before the court a quothat its contents are true and correct of
my own personal knowledge,[13] and not on the basis of authentic documents.
On the other hand, respondent counters that the word or may be interpreted in a conjunctive sense and
construed to mean as and, or vice versa, when the context of the law so warrants.
A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading may be verified under
either of the two given modes or under both. The veracity of the allegations in a pleading may be affirmed
based on either ones own personal knowledge or on authentic records, or both, as warranted. The use of the
preposition or connotes that either source qualifies as a sufficient basis for verification and, needless to state,
the concurrence of both sources is more than sufficient.[14] Bearing both a disjunctive and conjunctive sense,
this parallel legal signification avoids a construction that will exclude the combination of the alternatives or bar
the efficacy of any one of the alternatives standing alone.[15]
Contrary to petitioners position, the range of permutation is not left to the pleaders liking, but is
dependent on the surrounding nature of the allegations which may warrant that a verification be based either
purely on personal knowledge, or entirely on authentic records, or on both sources.
As pointed out by respondent, authentic records as a basis for verification bear significance in petitions
wherein the greater portions of the allegations are based on the records of the proceedings in the court of
origin and/or the court a quo, and not solely on the personal knowledge of the petitioner. To illustrate, petitioner
himself could not have affirmed, based on his personal knowledge, the truthfulness of the statement in his
petition[16] before the CA that at the pre-trial conference respondent admitted having received the letter of
demand, because he (petitioner) was not present during the conference.[17] Hence, petitioner needed to rely on
the records to confirm its veracity.
Verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the
name of mere expedience or sheer caprice. For what is at stake is the matter of verity attested by the sanctity
of an oath[18] to secure an assurance that the allegations in the pleading have been made in good faith, or are
true and correct and not merely speculative.[19]
This Court has strictly been enforcing the requirement of verification and certification and enunciating
that obedience to the requirements of procedural rules is needed if fair results are to be
expected therefrom. Utter disregard of the rules cannot just be rationalized by harking on the policy of liberal
construction.[20] While the requirement is not jurisdictional in nature, it does not make it less a rule. A relaxed
application of the rule can only be justified by the attending circumstances of the case.[21]
To sustain petitioners explanation that the basis of verification is a matter of simple preference would
trivialize the rationale and diminish the resoluteness of the rule. It would play on predilection and pay no heed
in providing enough assurance of the correctness of the allegations.
On the second reason of the CA in dismissing the petition that the petition was not accompanied by
copies of certain pleadings and other material portions of the record as would support the allegations of the
petition (i.e., Motion for Leave to File Demurrer to Evidence, Demurrer to Evidence and the Opposition thereto,
and the MeTC February 27, 2003 Order dismissing the case) petitioner contends that these documents are
immaterial to his appeal.

Contrary to petitioners contention, however, the materiality of those documents is very apparent since
the civil aspect of the case, from which he is appealing, was likewise dismissed by the trial court on account of
the same Demurrer.
Petitioner, nonetheless, posits that he subsequently submitted to the CA copies of the enumerated
documents, save for the MeTC February 27, 2003 Order, as attachments to his Motion for Reconsideration.
The Rules, however, require that the petition must be accompanied by clearly legible duplicate original
or true copies of the judgments or final orders of both lower courts,certified correct by the clerk of court.[22]
A perusal of the petition filed before the CA shows that the only duplicate original or certified true copies
attached as annexes thereto are the January 14, 2004 RTC Order granting respondents Motion for
Reconsideration and the March 29, 2004 RTC Order denying petitioners Motion for Reconsideration. The copy
of the September 11, 2003 RTC Decision, which petitioner prayed to be reinstated, is not a certified true copy
and is not even legible. Petitioner later recompensed though by appending to his Motion for Reconsideration a
duplicate original copy.
While petitioner averred before the CA in his Motion for Reconsideration that the February 27,
2003 MeTC Order was already attached to his petition as Annex G, Annex G bares a replicate copy of a
different order, however. It was to this Court that petitioner belatedly submitted an uncertified true copy of the
said MeTC Order as an annex to his Reply to respondents Comment.
This Court in fact observes that the copy of the other MeTC Order, that dated May 5, 2003, which
petitioner attached to his petition before the CA is similarly uncertified as true.
Since both Orders of the MeTC were adverse to him even with respect to the civil aspect of the case,
petitioner was mandated to submit them in the required form.[23]
In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42, the mandatory tenor of which
is discernible thereunder and is well settled.[24] He has not, however, advanced any strong compelling reasons
to warrant a relaxation of the Rules, hence, his petition before the CA was correctly dismissed.
Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants
alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances,
allows a relaxation in the application of the rules, this we stress, was never intended to forge a
bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation
and application of the rules applies only in proper cases and under justifiable causes and
circumstances. While it is true that litigation is not a game of technicalities, it is equally true that
every case must be prosecuted in accordance with the prescribed procedure to insure an
orderly and speedy administration of justice.[25] (Emphasis supplied)
As to the third reason for the appellate courts dismissal of his petition failure to implead the People of
the Philippines as a party in the petition indeed, as petitioner contends, the same is of no moment, he having
appealed only the civil aspect of the case. Passing on the dual purpose of a criminal action, this Court ruled:
Unless the offended party waives the civil action or reserves the right to institute it
separately or institutes the civil action prior to the criminal action, there are two actions involved
in a criminal case. The first is the criminal action for the punishment of the offender. The parties
are the People of the Philippines as the plaintiff and the accused. In a criminal action, the
private complainant is merely a witness for the State on the criminal aspect of the action. The
second is the civil action arising from the delict. The private complainant is the plaintiff and the
accused is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of
suits.[26] (Underscoring supplied)

It bears recalling that the MeTC acquitted respondent.[27] As a rule, a judgment of acquittal is
immediately final and executory and the prosecution cannot appeal the acquittal because of the constitutional
prohibition against double jeopardy.
Either the offended party or the accused may, however, appeal the civil aspect of the judgment despite
the acquittal of the accused. The public prosecutor has generally no interest in appealing the civil aspect of a
decision acquitting the accused. The acquittal ends his work. The case is terminated as far as he is
concerned. The real parties in interest in the civil aspect of a decision are the offended party and the
accused.[28]
Technicality aside, the petition is devoid of merit.
When a demurrer to evidence is filed without leave of court, the whole case is submitted for judgment
on the basis of the evidence for the prosecution as the accused is deemed to have waived the right to present
evidence.[29] At that juncture, the court is called upon to decide the case including its civil aspect, unless the
enforcement of the civil liability by a separate civil action has been waived or reserved.[30]
If the filing of a separate civil action has not been reserved or priorly instituted or the enforcement of
civil liability is not waived, the trial court should, in case of conviction, state the civil liability or damages caused
by the wrongful act or omission to be recovered from the accused by the offended party, if there is any.[31]
For, in case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal
action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable
doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is
only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which
the accused was acquitted.[32]
The civil action based on delict may, however, be deemed extinguished if there is a finding on the final
judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. [33]
In case of a demurrer to evidence filed with leave of court, the accused may adduce countervailing
evidence if the court denies the demurrer.[34] Such denial bears no distinction as to the two aspects of the case
because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the
case. In other words, a court may not deny the demurrer as to the criminal aspect and at the same time grant
the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime
beyond reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by mere
preponderance of evidence.
On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it
does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court
grants the demurrer, proceedings on the civil aspect of the case generally proceeds. The only recognized
instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding
that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as
to the civil aspect of the case must perforce continue. Thus this Court, in Salazar v. People,[35] held:
If demurrer is granted and the accused is acquitted by the court, the accused has the
right to adduce evidence on the civil aspect of the case unless the court also declares that the
act or omission from which the civil liability may arise did not exist.[36]
In the instant case, the MeTC granted the demurrer and dismissed the case without any finding that the
act or omission from which the civil liability may arise did not exist.
Respondent did not assail the RTC order of remand. He thereby recognized that there is basis for a
remand.

Indicatively, respondent stands by his defense that he merely borrowed P1,500,000 with the remainder
representing the interest, and that he already made a partial payment of P1,590,000. Petitioner counters,
however, that the payments made by respondent pertained to other transactions. [37] Given these conflicting
claims which are factual, a remand of the case would afford the fullest opportunity for the parties to ventilate,
and for the trial court to resolve the same.
Petitioner finally posits that respondent waived his right to present evidence on the civil aspect of the
case (1) when the grant of the demurrer was reversed on appeal, citing Section 1 of Rule 33, [38] and (2) when
respondent orally opposed petitioners motion for reconsideration pleading that proceedings with respect to the
civil aspect of the case continue.
Petitioners position is tenuous.
Petitioners citation of Section 1 of Rule 33 is incorrect. Where a court has jurisdiction over the subject
matter and over the person of the accused, and the crime was committed within its territorial jurisdiction, the
court necessarily exercises jurisdiction over all issues that the law requires it to resolve.
One of the issues in a criminal case being the civil liability of the accused arising from the crime, the
governing law is the Rules of Criminal Procedure, not the Rules of Civil Procedure which pertains to a civil
action arising from the initiatory pleading that gives rise to the suit.[39]
As for petitioners attribution of waiver to respondent, it cannot be determined with certainty from the
records the nature of the alleged oral objections of respondent to petitioners motion for reconsideration of the
grant of the demurrer to evidence. Any waiver of the right to present evidence must be positively
demonstrated. Any ambiguity in thevoluntariness of the waiver is frowned upon,[40] hence, courts must indulge
every reasonable presumption against it.[41]
This Court therefore upholds respondents right to present evidence as reserved by his filing of leave of
court to file the demurrer.
WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.
The case is REMANDED to the court of origin, Metropolitan Trial Court of Makati City, Branch 65 which
is DIRECTED to forthwith set Criminal Case No. 294690 for further proceedings only for the purpose of
receiving evidence on the civil aspect of the case.

People of the Philippines vs. Mario Navoa, et al.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. L-67966 September 28, 1984
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
MARIO NAVOA, RAFAEL NAVOA, RICARDO SITCHON MACARIO SAGUINZA JOHN DOE and PETER
DOE, defendants-appellants.
The Solicitor General for plaintiff-appellee,
Roman Daguna & Associates Law Offices for defendants-appellants.
RESOLUTION

MELENCIO-HERRERA, J.:
In this Motion for Reconsideration of the Decision of this Court promulgated on July 31, 1984, which affirmed
the judgment of conviction upon defendants-appellants Mario Navoa, Rafael Navoa, and Ricardo Sitchon and
sentenced them to suffer reclusion perpetua, and to indemnify, jointly and solidarity, the heirs of the victim,
Tomas Izon, in the amount of P30,000.00, the two assigned errors are that "the basic finding of the
Intermediate Appellate Court that the appellants shot and killed the late Tomas Izon is not supported by the
evidence on record," and "that defendant-appellant Mario Navoa's death on June 14, 1984 properly manifested
before the Intermediate Appellate Court on June 20, 1984, had not been accorded proper legal consideration in
the Decision."
The first contention is untenable. The Appellate Court's conclusion that the testimony of Macario Saguinza, a
co-accused turned State witness, is substantially correct was based on a careful and judicious review of the
entire record, specifically based on Exhibits "F", "G", "H" and the testimonies during the hearing of June 9,
1977. The same is true with the Appellate Court's conclusion that the minor inconsistencies in the testimony of
witness Baltazar de la Rosa strengthened rather than weakened his credibility. 1 Even assuming that the
testimony of de la Rosa is without probative value, still, the unrebutted testimony of Saguinza is more than
sufficient to sustain a conviction as it established not only conspiracy, treachery, and evident premeditation, but
even the very motive of defendants-appellants in perpetrating the crime.
In respect of the second contention, it appears that the accused, Mario Navoa, died on June 14, 1984 due to a
cerebro-vascular attack as shown by the Death Certificate attached to the Motion for Reconsideration. When
counsel for the accused manifested the fact before the Appellate Court, on June 20, 1984. he was unaware
that the latter had already certified the case to this Court, which, in turn, promulgated its Decision on July 31,
1984 unaware of appellant Mario Navoa's death. The judgment of conviction will thus have to be set aside as
against him. However, the plea for extinguishment of the deceased's civil and criminal liability is without merit.
Only his criminal liability is extinguished by his death but the civil liability remains. 2
ACCORDINGLY, 1) the prayer for the acquittal of the two remaining accused is hereby denied; 2) the
dispositive portion of the Decision of this Court promulgated on July 31, 1984, is hereby modified to read as
follows:
WHEREFORE, we affirm the judgment of conviction imposed upon Rafael Navoa and Ricardo
Sitchon and sentence them to suffer reclusion perpetua. And since the guilt of Mario Navoa has
been established beyond reasonable doubt, his death during the pendency of this appeal
extinguishes only his criminal liability but not his civil liability, so that, his estate and the accused
Rafael Navoa and Ricardo Sitchon are hereby sentenced to indemnify, jointly and severally, the
heirs of the victim, Tomas Izon in the amount of P30,000.00. With proportionate costs.
SO ORDERED.
SO ORDERED.
G.R. No. 72990 November 21, 1991
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
MANUEL BADEO, ESPERIDION BADEO, ROGELIO BADEO (at large) and BONIFACIO TANGPUS (at
large), defendants. MANUEL BADEO and ESPERIDION BADEO, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for Manuel Badeo.

FERNAN, C.J.:p
In this appeal, father and son Esperidion and Manuel Badeo, seek the reversal of the July 5, 1985 decision of
the Regional Trial Court of Leyte, Branch XV at Palo, 1 the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, finding the two accused Manuel Badeo and
Esperidion Badeo guilty beyond reasonable doubt of Murder and hereby sentences said two
accused to the penalty of RECLUSION PERPETUA, to indemnify the heirs of Cresenciano
Germanes the sum of P30,000.00 without subsidiary imprisonment in case of insolvency, and to
pay each half of the costs.
It appearing that the two accused Manuel Badeo and Esperidion Badeo were detained since
December 4, 1984, when they were arrested by the police authorities of Tanauan, Leyte, they
should be credited with the full time during which they have undergone preventive
imprisonment, if they agreed voluntarily in writing to abide by the same disciplinary rules
imposed upon convicted prisoners; other wise, they shall be credited with 4/5 only of the time
during which they have undergone preventive imprisonment.
SO ORDERED.
According to the sole prosecution eyewitness Eega Abrio (Iega Abreo), at around six o'clock in the evening
of March 21, 1981, she was walking on her way home. Cresenciano Germanes was walking ahead of her.
Near the house of Esperidion Badeo, four men attacked Cresenciano. Being about ten arms length away, she
saw Manuel Badeo hack Cresenciano at the back with a bolo measuring around fifty-five centimeters in length.
Rogelio Badeo then hacked Cresenciano with another long bolo also at the back. Bonifacio Tangpus followed
with a stab at the right portion of Cresenciano's stomach, after which Esperidion Badeo hacked Cresenciano's
back. Cresenciano fell down on his back. 2
Cresenciano shouted after he had fallen. Noticing that Cresenciano was still alive, Rogelio came back and
"finished him off." 3 During the attack, Eega was as near to the group at seven arms length. 4 She did not go
nearer because she was afraid. 5 Instead, she ran home taking a shortcut through the property of a certain
Adriano. She immediately informed her husband, Gregorio, about the incident. She told him, however, not to
go out anymore to inform Cresenciano's relatives about the hacking incident, as it was already dark. She
eventually told Cresenciano's relatives about his fate in the morning of the following day, Sunday. 6
The body of Cresenciano, who was single and 42 years old when he died, was autopsied on March 23, 1981
by Dr. Lesmes C. Lumen, the municipal health officer of Dagami, Leyte. The following findings appear on the
medical certificate (Exh. A) issued by Dr. Lumen:
1. Hacking wound on the skull, from vertex to left temporal area, 10 inches long, 1 inch wide, 2
inches deep with exposure of brain substance
2. Hacking wound, left supraclavicular area, 2.5 inches long, .5 inch wide, .5 ench deep
3. Hacking wound, extending from left subcostal area to the level of the third rib, 9.5 inches
long, 2 inches wide, 1 inch deep
4. Stab wounds at the inframammary area, left
a) 2 inches long, .5 inch wide, 2 inches deep

b) .5 inch long, .5 inch wide, 2 inches deep

c) .5 inchlong, .5 inch wide, 2 inches deep
5. Stab wound, right iliac region, level of the umbilicus, 2.5 inches long, 2 inches wide, 1 inch
deep
6. Longitudinal, oblique, abrasion at left iliac region, 2.5 inches long
7. Hacking wound, extending from right to left lumbar areas crossing the vertebral column, 7
inches long, 1 inch wide, 2 inches deep
8. Hacking wound, left suprascapular region, 5 inches long, 2 inches wide, 1.5 inches deep
9. Hacking wound, left shoulder area (deltoid portion), 7 inches long, 3 inches wide, 2 inches
deep.
Uldarico Germanes, a nephew of Cresenciano, believed that his uncle was killed by the four because
Cresenciano was instrumental in dividing the land being tenanted by Manuel two portions. One portion was to
be retained by Manuel while the other half would be tenanted by him (Uldarico). He accompanied Cresenciano
when the latter told Manuel of the new arrangement. Manuel did not like the arrangement because according
to him, he could still work on the whole area. 7
Manuel Badeo admitted having hacked Cresenciano but averred that he did so in self-defense. According to
him, he was at home in the afternoon of March 21, 1981 as he was cutting the grass in his home in barangay
Katipunan. Later in the afternoon, he went to barangay Hilabago to ask for kerosene from his mother arriving
there at past six o'clock in the evening.
While he was at his mother's house, his brother-in-law, Rosito Dumpang and. the latter's nephew Gabriel,
passed by. They invited him to go home with them. As they were walking, they met Cresenciano Germanes
behind the copra drier of Manuel's mother. Cresenciano asked him where he was going. When Manuel
answered that he was going home, Cresenciano held him by his shirt and pointed a gun at him. As Manuel was
about an arm's length away, he noticed that Cresenciano was reeking with the smell of tuba.
While pointing the gun at him, Cresenciano threatened to kill Manuel. After telling Cresenciano that they had
nothing to fight about, Manuel retreated to a coconut tree, went around it, drew a bolo and hacked Cresenciano
hitting him on the head. Then he stabbed Cresenciano's stomach. Manuel ran towards Rosito and Gabriel
Dumpang who, in turn, "castigated" Cresenciano. Manuel told them to stop punishing Cresenciano but the two
did not heed his advice.
Manuel did not see Eega Abreo when he hacked Cresenciano. Neither was his father, Esperidion, around.
But he noticed that when Rosito hacked Cresenciano, the latter's pistol fell from his hand. Manuel picked it up
and later surrendered it to barangay captain Andrea Olimberio. When Manuel surrendered to the police
authorities, he did not implicate Rosito and Gabriel Dumpang because they had threatened that should he
mention their names, they would kill him. That threat was also the reason why, together with Esperidion, he
transferred his residence to Tanauan, Leyte.
Manuel stated in court that Eega Abreo testified against him because her husband, Sabino (sic), was the first
suspect in the killing of Cresenciano as there was "bad blood" between Sabino and Cresenciano. 8
Andrea Olimberio, who was the barangay captain of barangay Katipunan when the incident occurred,
corroborated Manuel's claim that he surrendered to her. According to Andrea, at about eleven o'clock in the

evening of March 21, 1981, Manuel, accompanied by his wife and sister, came to her house and told her that
he had killed Cresenciano Germanes. Manuel surrendered to her a pistol which he had taken from the victim.
Andrea knew that the pistol belonged to Cresenciano because the latter had shown it to her when he drank
liquor
at
store. 9
Esperidion Badeo, on the other hand, denied being at the scene when the killing occurred. He was then in the
mountain in Saransang making a kaingin on the land owned by Estelita Tangpus. Saransang was more than
seven kilometers from barangay Hilabago and the distance could only be negotiated by foot through a trail
used by sled-drawing carabaos. With him in the mountain were Estelita, Rogelio Badeo and Bonifacio
Tangpus. He left the place only on March 22, 1981 when his wife fetched him because his son Manuel had
wounded somebody. He went to Hilabago but he immediately left for the mountain because he was afraid that
revenge might be taken on him. 10Estelita Rubo corroborated Esperidion's alibi claiming that Esperidion did
not leave the kaingin area even after work.11
Sometime in Jurte, 1981, Esperidion and Rogelio Badeo executed a joint affidavit denying participation in the
killing Cresenciano. They affirmed therein that they had been in the homestead owned by Bonifacio Tangpus
since March 14, 1981 when the crime transpired. 12 Bonifacio Tangpus did not execute any affidavit nor
surrender to the authorities. Neither was he apprehended.
For his part, Manuel executed a counter-affidavit dated June 1, 1981 stating that in the afternoon of March 21,
1981, as he was cutting the grass in his lawn, Sagino Abrio (sic), the husband of Iiga (Eega), approached
him and intimated to him that he had a big problem because Iiga and Cresenciano were having an illicit
relationship. Sagino said that the relationship downgraded his honor because it was known to everyone their
place. Sagino vowed that something would happen to Cresenciano.
According to the same affidavit, when Manuel arrived at his mother's house to get kerosene, his mother, Maria
Badeo, Estelita Tangpuz (sic), Elena Borja, Cresencio (sic) Germanes and Sagino Abrio were drinking liquor.
As Manuel was about to leave, Germanes forced him to drink liquor. After taking one glass, Manuel turned to
leave but Germanes grabbed his shirt. Sagino then followed Germanes, hacked him "many times" while telling
Manuel that it was a problem he could handle. Upon seeing that Germanes had a firearm tucked in his waist,
Sagino ordered Manuel to get it. Manuel and Germanes grappled for possession of the firearm and as soon as
Manuel took hold of it, Sagino told him to surrender it to the police. 13
The contents of said counter-affidavit as well as Manuel's insistence at the preliminary investigation that it was
Eega Abrio's husband who was responsible for Cresenciano Germanes' killing were totally discredited by the
investigating fiscal who noted that during Manuel's 20-day detention, he never mentioned to the police
Sagino's involvement in the crime. The investigating fiscal concluded that the rather belated facts revealed by
Manuel
were
designed "to coerce or force Eega Abrio from becoming a witness for the complainant." 14
On February 8, 1982, an information for murder was filed against Manuel, Esperidion and Rogelio Badeo and
Bonifacio Tangpus. 15 They were charged with having conspired to kill and treacherously killing Cresenciano.
On September 24,1984, the assistant provincial fiscal filed a motion for the issuance of an alias warrant of
arrest. 16Through the alias warrant of arrest issued by the court, on December 4, 1984, Manuel Badeo and
Esperidion Badeo were apprehended by the police. 17
On arraignment, Manuel pleaded guilty to the lesser offense of homicide while Esperidion pleaded not guilty to
the crime charged. Manuel invoked the mitigating circumstances of voluntary plea of guilty 18 and voluntary
surrender. However, the court ruled that a plea of guilty to a lesser offense demanded the conformity of the

offended party. 19 Inasmuch as Catalina Germanes, the mother of the victim, was not agreeable to the plea
entered by Manuel, the court considered the plea as one of not guilty.
After trial, the court rendered the aforementioned decision. Manuel and Esperidion appealed to this Court
contending that the trial court erred in not appreciating the justifying circumstance of self-defense and the
mitigating circumstance of voluntary surrender in favor of Manuel, and in not giving weight and credence to the
alibi of Esperidion.
On August 10, 1990, Esperidion died of cardio-respiratory arrest secondary to pulmonary tuberculosis at the
prison hospital in Muntinlupa, Metro Manila. 20 Inasmuch as no final judgment had as yet been rendered, in
the resolution of August 21, 1991, the case against Esperidion was dismissed with costs de oficio and entry of
judgment was made on August 22, 1991. 21
On September 17, 1991, the Solicitor General filed a motion for the reconsideration of said resolution alleging
that while the criminal liability of appellant Esperidion Badeo had been extinguished by his death pursuant to
Article 89 of the Revised Penal Code, his civil liability arising from the criminal offense subsisted in accordance
with Articles 1231 and 1161 of the Civil Code in relation to Article 112 of the Revised Penal Code and the ruling
in People vs. Pancho, 145 SCRA 323. Hence, as provided for in Section 17, Rule 3 of the Rules of Court, upon
proper notice, the legal representatives of the deceased appellant should appear as substitute parties herein
insofar as the deceased's civil liability for the crime is concerned. 22
We find merit in the motion for reconsideration. Article 89 of the Revised Penal Code provides that criminal
liability is totally extinguished "by the death of the convict, as to the personal penalties; and as to pecuniary
penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment."
In People vs. Alison, 23 the Court, upon the recommendation of the then Solicitor General who was required to
comment on the information that appellant Alison had died at the prison hospital, resolved that, there being no
final judgment as yet, "the criminal and civil liability (sic) of Alison was extinguished by his death."
The Alison resolution was the basis of the resolution in People vs. Satorre 24 similarly dismissing the case
against the deceased appellant. In a separate opinion in the resolution, then Associate Justice Ramon C.
Aquino stated that as to the personal penalties, criminal liability therefor is extinguished only when the death of
the offender occurs before final judgment. According to Justice Aquino, the term " pecuniary penalties" (las
pecuniarias) in Article 89 refers to fine and costs as distinguished from " pecuniary liability" (responsabilidades
pecunarias) in Article 38 which include reparation and indemnity.
As every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to a civil
action for the restitution of the thing, repair of the damage and indemnification for the losses 25 whether the
particular act or omission is done intentionally or negligently or whether or not punishable by
law, 26 subsequent decisions of the Court held that while the criminal liability of an appellant is extinguished by
his death, his civil liability subsists. 27 In such case, the heirs of the deceased appellant are substituted as
parties in the criminal case and his estate shall answer for his civil liability. 28
In the light of the foregoing, we reconsider the resolution August 21, 1991 insofar as it considers as
extinguished Esperidion Badeo's civil liability, in order to determine whether or not such liability exist. 29
Well-settled is the rule that where the accused admits having authored the death of the victim and his defense
is anchored on self-defense, he must rely on the strength of his own evidence and not on the weakness of that
of the prosecution. 30 Otherwise his conviction is inescapable.31
Of the three requisites of self-defense as stated in Article 11 (1) of the Revised Penal Code, namely: (a)
unlawful aggression; (b) reasonable necessity of the means employed to prevent or repel it, and (c) lack of
sufficient provocation on the part of person defending himself, the first requisite is indispensable 32 for without

it, there is nothing to prevent or repel. After a close scrutiny of the records, the Court finds that appellant
Manuel Badeo failed to prove unlawful aggression.
Manuel contends that he was the object of Cresenciano's unlawful aggression because the latter held his shirt
and points a gun at him. His testimony, however, was completely uncorroborated. He failed even to present
Cresenciano's gun in evidence notwithstanding his claim that he surrendered it to the barangay captain and
later, to the police. 33 Indeed, we agree with the trial court that if there really was a gun, Cresenciano would
have used it not only against Manuel but also against Rosito and Gabriel Dumpang. 34
Moreover, the location, number and seriousness of the wounds sustained by Cresenciano belie the claim of
self-defense. 35 Of the nine wounds found on Cresenciano's body, Manuel admitted having inflicted the two
wounds which the physician performed the autopsy considered as fatal: the hacking wound on the skull and
the stabbing wound on the stomach.36 As such, even without the concerted assistance of the other accused,
Manuel could have nonetheless produced the lethal consequence: the death of Cresenciano.
Manuel's assertion that the credibility of the sole prosecution eyewitness is questionable is belated if not
baseless. He insists that Eega had an illicit relationship with the victim and that if her testimony were true, she
would not have lost time in reporting the murder to Cresenciano's relatives. On the issue of credibility, we find
no reason to depart from the settled rule that the findings of the trial court on the credibility of witnesses should
be accorded the highest respect because it had the advantage of observing the demeanor of witnesses and to
discern if a witness was telling the truth. 37 The imputation of an illicit relationship between the prosecution
witness and the victim which was not shown other than by the counter-affidavit of Manuel and which the
investigating fiscal had even discredited, is not an acceptable evidence insofar as proof of improper motive on
the part of Eega is concerned. 38 Neither may Eega's initial reluctance to denounce Manuel and his other
co-accused as the killers immediately after the commission of the crime, affect the probative value of her
testimony, specifically her positive identification of Manuel as one of the perpetrators of the crime. Usually
triggered by fear, such reluctance is common and has been judicially declared not to affect credibility. 39
However, we agree with the Solicitor General that the mitigating circumstance of voluntary surrender should be
appreciated in favor of Manuel. Ordinarily, where there has been actual arrest, the mitigating circumstance of
voluntary surrender cannot be invoked. 40 While it is true that Manuel was arrested with his father on
December 4, 1981, the records show that Manuel did surrender: first, to the barangay captain and, in the
morning of March 22, 1981, to the police of Dagami. 41 In fact, after his surrender, Manuel was detained for
twenty days. 42
The killing of Crecenciano is qualified by treachery which is shown by the suddenness by which he was
attacked. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion temporal maximum
to death. There being one mitigating circumstance, the penalty imposable shall be the minimum
period. 43 Applying the indeterminate sentence law, proper penalty is ten (10) years and one (1) day of prision
mayor maximum as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal maximum as maximum penalty.
Anent Esperidion Badeo's civil liability, we find that there is no basis for its imposition in view of the absence of
a clear showing that he committed the crime imputed to him. 44 Esperidion could not have been at the scene
of the crime because the kainginarea where he had been staying since January 7, 1983 until he was fetched
by his wife on March 22, 1985 45 was a good five-hour hike away through a trail.46 Alibi is generally
considered a weak defense but it assumes importance where the evidence for the prosecution is weak and
betrays concretenes on the question of whether or not the accused committed the
crime. 47
In this case, Esperidion was implicated by the uncorroborated testimony of sole prosecution eyewitness Iego
Abrio. Her identification of Esperidion as one of the perpetrators of the crime is, however, short of the

positiveness and reliability essential for conviction. 48 As several people committed the crime, it is probable
that Abrio mistook Esperidion for another person considering that according to her, the attack was perpetrated
when it was already getting dark. This does not however, totally discredit her entire testimony especially the
portion thereof which imputes on Manuel the authorship of the fatal hacking blows on Cresenciano. Court may
believe one part of a testimony and disbelieve another part. 49
WHEREFORE, the decision of the lower court is hereby affirmed insofar as appellant Manuel Badeo is
concerned subject to the modifications that he shall serve the penalty of ten (10) years and one (1) day
of prision mayormaximum to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal maximum and indemnify the heirs of Cresenciano Germanes in the amount of fifty thousand pesos
(P50,000).
The resolution of August 21, 1991 is hereby reconsidered insofar as it considers as extinguished Esperidion
Badeo's civil liability. However, finding that Esperidion Badeo should be acquitted as he did not commit the
crime imputed to him, no civil liability is hereby imposed on him. No costs.
SO ORDERED.
ROLITO CALANG and PHILTRANCO
SERVICE ENTERPRISES, INC.,
Petitioners,

G.R. No. 190696

Present:

CARPIO MORALES, J., Chairperson,

-

versus -

BRION,
BERSAMIN,
*

PEOPLE OF THE PHILIPPINES,

ABAD, and

VILLARAMA, JR., JJ.

Respondent. -- Promulgated:

August 3, 2010
x-----------------------------------------------------------------------------------------x
RESOLUTION
BRION, J.:

We resolve the motion for reconsideration filed by the petitioners, Philtranco Service Enterprises, Inc.
(Philtranco) and Rolito Calang, to challenge our Resolution of February 17, 2010. Our assailed Resolution
denied the petition for review on certiorari for failure to show any reversible error sufficient to warrant the
exercise of this Courts discretionary appellate jurisdiction.

Antecedent Facts

At around 2:00 p.m. of April 22, 1989, Rolito Calang was driving Philtranco Bus No. 7001, owned by Philtranco
along Daang Maharlika Highway in Barangay Lambao, Sta. Margarita, Samar when its rear left side hit the
front left portion of a Sarao jeep coming from the opposite direction. As a result of the collision, Cresencio
Pinohermoso, the jeeps driver, lost control of the vehicle, and bumped and killed Jose Mabansag, a bystander
who was standing along the highways shoulder. The jeep turned turtle three (3) times before finally stopping at
about 25 meters from the point of impact. Two of the jeeps passengers, Armando Nablo and an unidentified
woman, were instantly killed, while the other passengers sustained serious physical injuries.

The prosecution charged Calang with multiple homicide, multiple serious physical injuries and damage to
property thru reckless imprudence before the Regional Trial Court (RTC), Branch 31, Calbayog City. The RTC,
in its decision dated May 21, 2001, found Calang guilty beyond reasonable doubt of reckless imprudence
resulting to multiple homicide, multiple physical injuries and damage to property, and sentenced him to suffer
an indeterminate penalty of thirty days of arresto menor, as minimum, to four years and two months of prision
correccional, as maximum. The RTC ordered Calang and Philtranco, jointly and severally, to pay P50,000.00
as death indemnity to the heirs of Armando;P50,000.00 as death indemnity to the heirs of Mabansag;
and P90,083.93 as actual damages to the private complainants.

The petitioners appealed the RTC decision to the Court of Appeals (CA), docketed as CA-G.R. CR No.
25522. The CA, in its decision dated November 20, 2009, affirmed the RTC decision in toto. The CA ruled that
petitioner Calang failed to exercise due care and precaution in driving the Philtranco bus. According to the CA,
various eyewitnesses testified that the bus was traveling fast and encroached into the opposite lane when it
evaded a pushcart that was on the side of the road. In addition, he failed to slacken his speed, despite
admitting that he had already seen the jeep coming from the opposite direction when it was still half a kilometer
away. The CA further ruled that Calang demonstrated a reckless attitude when he drove the bus, despite
knowing that it was suffering from loose compression, hence, not roadworthy.

The CA added that the RTC correctly held Philtranco jointly and severally liable with petitioner Calang, for
failing to prove that it had exercised the diligence of a good father of the family to prevent the accident.

The petitioners filed with this Court a petition for review on certiorari. In our Resolution dated February
17, 2010, we denied the petition for failure to sufficiently show any reversible error in the assailed decision to
warrant the exercise of this Courts discretionary appellate jurisdiction.

The Motion for Reconsideration

In the present motion for reconsideration, the petitioners claim that there was no basis to hold
Philtranco jointly and severally liable with Calang because the former was not a party in the criminal case (for
multiple homicide with multiple serious physical injuries and damage to property thru reckless imprudence)
before the RTC.

The petitioners likewise maintain that the courts below overlooked several relevant facts, supported by
documentary exhibits, which, if considered, would have shown that Calang was not negligent, such as the
affidavit and testimony of witness Celestina Cabriga; the testimony of witness Rodrigo Bocaycay; the traffic
accident sketch and report; and the jeepneys registration receipt. The petitioners also insist that the jeeps
driver had the last clear chance to avoid the collision.

We partly grant the motion.

Liability of Calang

We see no reason to overturn the lower courts finding on Calangs culpability. The finding of
negligence on his part by the trial court, affirmed by the CA, is a question of fact that we cannot pass upon
without going into factual matters touching on the finding of negligence. In petitions for review
on certiorari under Rule 45 of the Revised Rules of Court, this Court is limited to reviewing only errors of law,
not of fact, unless the factual findings complained of are devoid of support by the evidence on record, or the
assailed judgment is based on a misapprehension of facts.

Liability of Philtranco

We, however, hold that the RTC and the CA both erred in holding Philtranco jointly and severally liable
with Calang. We emphasize that Calang was charged criminally before the RTC. Undisputedly, Philtranco was
not a direct party in this case. Since the cause of action against Calang was based on delict, both the RTC and
the CA erred in holding Philtranco jointly and severally liable with Calang, based on quasi-delict under Articles
2176[1] and 2180[2] of the Civil Code. Articles 2176 and 2180 of the Civil Code pertain to the vicarious liability of
an employer for quasi-delicts that an employee has committed. Such provision of law does not apply to civil
liability arising from delict.

If at all, Philtrancos liability may only be subsidiary. Article 102 of the Revised Penal Code states the
subsidiary civil liabilities of innkeepers, tavernkeepers and proprietors of establishments, as follows:

In default of the persons criminally liable, innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly liable for crimes committed in their establishments, in all
cases where a violation of municipal ordinances or some general or special police regulations
shall have been committed by them or their employees.

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

The foregoing subsidiary liability applies to employers, according to Article 103 of the Revised Penal
Code, which reads:

The subsidiary liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices, or employees in the discharge of
their duties.

The provisions of the Revised Penal Code on subsidiary liability Articles 102 and 103 are deemed
written into the judgments in cases to which they are applicable. Thus, in the dispositive portion of its decision,
the trial court need not expressly pronounce the subsidiary liability of the employer.[3] Nonetheless, before the
employers subsidiaryliability is enforced, adequate evidence must exist establishing that (1) they are indeed
the employers of the convicted employees; (2) they are engaged in some kind of industry; (3) the crime was
committed by the employees in the discharge of their duties; and (4) the execution against the latter has not
been satisfied due to insolvency. The determination of these conditions may be done in the same criminal
action in which the employees liability, criminal and civil, has been pronounced, in a hearing set for that precise
purpose, with due notice to the employer, as part of the proceedings for the execution of the judgment.[4]

WHEREFORE, we PARTLY GRANT the present motion. The Court of Appeals decision that affirmed in
toto the RTC decision, finding Rolito Calang guilty beyond reasonable doubt of reckless imprudence resulting
in multiple homicide, multiple serious physical injuries and damage to property, is AFFIRMED, with
the MODIFICATIONthat Philtrancos liability should only be subsidiary. No costs.

G.R. No. 71137 October 5, 1989

SPOUSES
FEDERICO
vs.
INTERMEDIATE APPELLATE
LUGUErespondents.

FRANCO

and

COURT, ANTONIO

FELICISIMA
REYES,

MRS.

R.
SUSAN

FRANCO, petitioners,
CHUAY and

LOLITA

FERNAN, C.J.:
The instant petition for review of a decision of the Court of Appeals deals mainly with the nature of an
employer's liability for his employee's negligent act.
At about 7:30 in the evening of October 18, 1974, Macario Yuro swerved the northbound Franco Bus with Plate
No. XY320-PUB he was driving to the left to avoid hitting a truck with a trailer parked facing north along the
cemented pavement of the MacArthur Highway at Barrio Talaga, Capas Tarlac, thereby taking the lane of an
incoming Isuzu Mini Bus bearing Plate No. YL-735 being driven by one Magdaleno Lugue and making a
collision between the two (2) vehicles an unavoidable and disastrous eventuality.
Dragged fifteen (15) meters from the point of impact (midway the length of the parked truck with trailer), the
mini bus landed right side down facing south in the canal of the highway, a total wreck. The Franco Bus was
also damaged but not as severely. The collision resulted in the deaths of the two (2) drivers, Macario Yuro and
Magdaleno Lugue, and two (2) passengers of the mini bus, Romeo Bue and Fernando Chuay.

Consequently, Antonio Reyes, the registered owner of the Isuzu Mini Bus, Mrs. Susan Chuay, the wife of victim
Fernando Chuay, and Mrs. Lolita Lugue, the wife of driver-victim Magdaleno Lugue, filed an action for
damages through reckless imprudence before the Court of First Instance of Pampanga in Angeles City, Branch
IV, docketed as Civil Case No. 2154 against Mr. & Mrs. Federico Franco, the owners and operators of the
Franco Transportation Company. The complaint alleged that: (a) the recklessness and imprudence of the
Franco Bus driver caused the collision which resulted in his own death and that of the mini bus driver and two
(2) other passengers thereof; (b) that as a consequence of the vehicular mishap, the Isuzu Mini Bus became a
total wreck resulting in actual damages amounting to P50,000.00 and the loss of an average net income of
P120.00 daily or P3,600.00 monthly multiplied by a minimum of one more year of serviceability of said mini bus
or P40,200.00; and, (c) that in view of the death of the three (3) passengers aforementioned, the heirs of each
should be awarded a minimum of P12,000.00 and the expected average income of P6,000.00 each of the
driver and one of the passengers and P12,000.00 of the Chinese businessman passenger.
In answer to the complaint, defendants set up, among others, the affirmative defense that as owners and
operators of the Franco Transportation Company, they exercised due diligence in the selection and supervision
of all their employees, including the deceased driver Macario Yuro.
Said defense was, however, rejected by the trial court in its decision 1 dated May 17, 1978, for the reason that
the act of the Franco Bus driver was a negligent act punishable by law resulting in a civil obligation arising from
Article 103 of the Revised Penal Code and not from Article 2180 of the Civil Code. It said: "This is a case of
criminal negligence out of which civil liability arises, and not a case of civil negligence and the defense of
having acted like a good father of a family or having trained or selected the drivers of his truck is no defense to
avoid civil liability." 2 On this premise, the trial court ruled as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs,
Antonio Reyes, Lolita Lugue, and Susan Chuay, and against the defendants Mr. and Mrs.
Federico Franco, ordering the latter:
(1) To pay Antonio Reyes, actual and compensatory damages in the amount of P90,000.00 for
the Isuzu Mini Bus;
(2) To pay Lolita Lugue, the widow of Magdaleno Lugue, actual and compensatory damages in
the total sum of P18,000.00;
(3) To pay Susan Chuay, the widow of Fernando Chuay, actual and compensatory damages in
the total sum of P24,000.00; and
(4) To pay attorney's fee in the amount of P5.000.00;
All with legal interests from the filing of this suit on November 11, 1974 until paid; and the costs
of this suit.
SO ORDERED. 3
On appeal by herein petitioners as defendants-appellants, respondent appellate court, agreeing with the lower
court, held that defendants-appellants' driver who died instantly in the vehicular collision, was guilty of reckless
or criminal imprudence punishable by law in driving appellants' bus; that the civil obligation of the appellants
arises from Article 103 of the Revised Penal Code resulting in the subsidiary liability of the appellants under the
said provisions, 4 that the case subject of appeal is one involving culpable negligence out of which civil liability
arises and is not one of civil negligence; 5 and that there is nothing in Articles 102 and 103 of the Revised
Penal Code which requires a prior judgment of conviction of the erring vehicle driver and his obligation to pay

his civil liability before the said provisions can be applied. 6Respondent appellate court increased the award of
damages granted by the lower court as follows:
WHEREFORE, the decision appealed from is hereby modified as follows:
1. To pay Susan Chuay, widow of Fernando Chuay, the sum of P30,000.00 for the latter's death
and P112,000.00 for loss of earning capacity;
2. To pay Lolita Lugue, widow of Magdaleno Lugue, the sum of P30,000.00 for the latter's death
and P62,000.00 for loss of earning capacity. The rest of the judgment appealed from is affirmed.
Costs against defendants-appellants.
SO ORDERED. 7
On April 1, 1985, petitioners filed a motion for reconsideration of the aforesaid respondent appellate court's
decision dated January 2, 1985 but the same was denied on May 13, 1985.
Hence, the instant petition raising two (2) legal questions: first, whether the action for recovery of damages
instituted by herein private respondents was predicated upon crime or quasi-delict; and second, whether
respondent appellate court in an appeal filed by the defeated parties, herein petitioners, may properly increase
the award of damages in favor of the private respondents Chuay and Lugue, prevailing parties in the lower
court, who did not appeal said court's decision.
Petitioners contend that the allegations in paragraph 9 of the Amended Complaint 8 of herein private
respondents as plaintiffs in Civil Case No. 2154 unequivocally claim that the former as the employers of
Macario Yuro, the driver of the Franco Bus who caused the vehicular mishap, are jointly and severally liable to
the latter for the damages suffered by them which thus makes Civil Case No. 2154 an action predicated upon a
quasi-delict under the Civil Code subject to the defense that the employer exercised all the diligence of a good
father of a family in the selection and supervision of their employees.
We find merit in this contention. Distinction should be made between the subsidiary liability of the employer
under the Revised Penal Code and the employer's primary liability under the Civil Code which is quasi-delictual
or tortious in character. The first type of liability is governed by Articles 102 and 103 of the Revised Penal Code
which provide as follows:
Art. 102. Subsidiary civil liability of innkeepers, tavern-keepers and proprietors of
establishments. In default of the persons criminally liable, innkeepers, tavern-keepers, and
any other persons or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general or
special police regulations shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the payment of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself, or the person representing
him, of the deposits of such goods within the inn; and shall furthermore have followed the
directions which such innkeeper or his representative may have given them with respect to the
care and vigilance over such goods. No liability shall attach in case of robbery with violence
against or intimidation of persons unless committed by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the
next preceding article shall also apply to employers, teachers, persons, and corporations

engaged in any kind of industry for felonies committed by the servants, pupils, workmen,
apprentices, or employees in the discharge of their duties;
while the second kind is governed by the following provisions of the Civil Code:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties is called a quasi-delict and is governed by the
provisions of this Chapter.
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the defendant.
Art. 2180. The obligations imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry,
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.
Under Article 103 of the Revised Penal Code, liability originates from a delict committed by the employee who
is primarily liable therefor and upon whose primary liability his employer's subsidiary liability is to be based.
Before the employer's subsidiary liability may be proceeded against, it is imperative that there should be a
criminal action whereby the employee's criminal negligence or delict and corresponding liability therefor are
proved. If no criminal action was instituted, the employer's liability would not be predicated under Article 103. 9
In the case at bar, no criminal action was instituted because the person who should stand as the accused and
the party supposed to be primarily liable for the damages suffered by private respondents as a consequence of
the vehicular mishap died. Thus, petitioners' subsidiary liability has no leg to stand on considering that their
liability is merely secondary to their employee's primary liability. Logically therefore, recourse under this remedy
is not possible.
On the other hand, under Articles 2176 and 2180 of the Civil Code, liability is based on culpa aquiliana which
holds the employer primarily liable for tortious acts of its employees subject, however, to the defense that the
former exercised all the diligence of a good father of a family in the selection and supervision of his employees.
Respondent appellate court relies on the case of Arambulo, supra, where it was held that the defense of
observance of due diligence of a good father of a family in the selection and supervision of employees is not
applicable to the subsidiary liability provided in Article 20 of the Penal Code (now Article 103 of the Revised
Penal Code). By such reliance, it would seem that respondent appellate court seeks to enforce the subsidiary
civil liability of the employer without a criminal conviction of the party primarily liable therefor. This is not only
erroneous and absurd but is also fraught with dangerous consequences. It is erroneous because the conviction
of the employee primarily liable is a condition sine qua non for the employer's subsidiary liability 10 and, at the
same time, absurd because we will be faced with a situation where the employer is held subsidiarily liable even

without a primary liability being previously established. It is likewise dangerous because, in effect, the
employer's subsidiary liability would partake of a solidary obligation resulting in the law's amendment without
legislative sanction.
The Court in the aforecited M.D. Transit case went further to say that there can be no automatic subsidiary
liability of defendant employer under Article 103 of the Revised Penal Code where his employee has not been
previously criminally convicted.
Having thus established that Civil Case No. 2154 is a civil action to impose the primary liability of the employer
as a result of the tortious act of its alleged reckless driver, we confront ourselves with the plausibility of
defendants-petitioners' defense that they observed due diligence of a good father of a family in the selection
and supervision of their employees.
On this point, the appellate court has unequivocally spoken in affirmation of the lower court's findings, to wit:
Anyway, a perusal of the record shows that the appellants were not able to establish the
defense of a good father of a family in the supervision of their bus driver. The evidence
presented by the appellants in this regard is purely self-serving. No independent evidence was
presented as to the alleged supervision of appellants' bus drivers, especially with regard to
driving habits and reaction to actual traffic conditions. The appellants in fact admitted that the
only kind of supervision given the drivers referred to the running time between the terminal
points of the line (t.s.n., September 16, 1976, p. 21). Moreover, the appellants who ran a fleet of
12 buses plying the Manila-Laoag line, have only two inspectors whose duties were only ticket
inspection. There is no evidence that they are really safety inspectors. 11
Basically, the Court finds that these determinations are factual in nature. As a painstaking review of the
evidence presented in the case at bar fails to disclose any evidence or circumstance of note sufficient to
overrule said factual findings and conclusions, the Court is inclined to likewise reject petitioners' affirmative
defense of due diligence. The wisdom of this stance is made more apparent by the fact that the appellate
court's conclusions are based on the findings of the lower court which is in a better position to evaluate the
testimonies of the witnesses during trial. As a rule, this Court respects the factual findings of the appellate and
trial courts and accord them a certain measure of finality. 12 Consequently, therefore, we find petitioners liable
for the damages claimed pursuant to their primary liability under the Civil Code.
On the second legal issue raised in the instant petition, we agree with petitioners' contention that the
Intermediate Appellate Court (later Court of Appeals) is without jurisdiction to increase the amount of damages
awarded to private respondents Chuay and Lugue, neither of whom appealed the decision of the lower court.
While an appellee who is not also an appellant may assign error in his brief if his purpose is to maintain the
judgment on other grounds, he cannot ask for modification or reversal of the judgment or affirmative relief
unless he has also appealed. 13 For failure of plaintiffs-appellees, herein private respondents, to appeal the
lower court's judgment, the amount of actual damages cannot exceed that awarded by it. 14
Furthermore, the records 15 show that plaintiffs-private respondents limited their claim for actual and
compensatory damages to the supposed average income for a period of one (1) year of P6,000.00 for the
driver Magdaleno Lugue and P12,000.00 for the Chinese businessman Fernando Chuay. We feel that our
award should not exceed the said amounts . 16
However, the increase in awards for indemnity arising from death to P30,000.00 each remains, the same
having been made in accordance with prevailing jurisprudence decreeing such increase in view of the
depreciated Philippine currency. 17

WHEREFORE, the decision of the Court of Appeals is hereby modified decreasing the award to private
respondents of actual and compensatory damages for loss of average income for the period of one year to
P6,000.00 for the deceased Magdaleno Lugue and P12,000.00 for the deceased Fernando Chuay. The rest of
the judgment appealed from is hereby affirmed. Costs against the private respondents. This decision is
immediately executory.
SO ORDERED.
G.R. No. L-12191

October 14, 1918

JOSE
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon
Kincaid & Hartigan for appellee.

Sotelo

CANGCO, plaintiff-appellant,

for

appellant.

FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the
pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant railroad
company; and in coming daily by train to the company's office in the city of Manila where he worked, he used a
pass, supplied by the company, which entitled him to ride upon the company's trains free of charge. Upon the
occasion in question, January 20, 1915, the plaintiff arose from his seat in the second class-car where he was
riding and, making, his exit through the door, took his position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform which
begins to rise with a moderate gradient some distance away from the company's office and extends along in
front of said office for a distance sufficient to cover the length of several coaches. As the train slowed down
another passenger, named Emilio Zuiga, also an employee of the railroad company, got off the same car,
alighting safely at the point where the platform begins to rise from the level of the ground. When the train had
proceeded a little farther the plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact
with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was drawn under the moving car, where his right arm
was badly crushed and lacerated. It appears that after the plaintiff alighted from the train the car moved
forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by
a single light located some distance away, objects on the platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the
fact that it was the customary season for harvesting these melons and a large lot had been brought to the
station for the shipment to the market. They were contained in numerous sacks which has been piled on the
platform in a row one upon another. The testimony shows that this row of sacks was so placed of melons and
the edge of platform; and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one
of these melons at the moment he stepped upon the platform. His statement that he failed to see these objects
in the darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which
he had received were very serious. He was therefore brought at once to a certain hospital in the city of Manila
where an examination was made and his arm was amputated. The result of this operation was unsatisfactory,
and the plaintiff was then carried to another hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It appears in evidence that the plaintiff expended
the sum of P790.25 in the form of medical and surgical fees and for other expenses in connection with the
process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to
recover damages of the defendant company, founding his action upon the negligence of the servants and
employees of the defendant in placing the sacks of melons upon the platform and leaving them so placed as to
be a menace to the security of passenger alighting from the company's trains. At the hearing in the Court of
First Instance, his Honor, the trial judge, found the facts substantially as above stated, and drew therefrom his
conclusion to the effect that, although negligence was attributable to the defendant by reason of the fact that
the sacks of melons were so placed as to obstruct passengers passing to and from the cars, nevertheless, the
plaintiff himself had failed to use due caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling these
sacks on the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted
from the train; and that they therefore constituted an effective legal cause of the injuries sustained by the
plaintiff. It necessarily follows that the defendant company is liable for the damage thereby occasioned unless
recovery is barred by the plaintiff's own contributory negligence. In resolving this problem it is necessary that
each of these conceptions of liability, to-wit, the primary responsibility of the defendant company and the
contributory negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and
that the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that
contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability
is direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the
exercise of due care in their selection and supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual obligations or to use the technical form of
expression, that article relates only to culpaaquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out
this distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference
between "culpa, substantive and independent, which of itself constitutes the source of an obligation between
persons not formerly connected by any legal tie" and culpa considered as an accident in the performance of an
obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article
1903 of the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be
those not growing out of pre-existing duties of the parties to one another. But where relations already
formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those
duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and
Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases
imposed upon employers with respect to damages occasioned by the negligence of their employees to
persons to whom they are not bound by contract, is not based, as in the English Common Law, upon the
principle of respondeat superior if it were, the master would be liable in every case and unconditionally
but upon the principle announced in article 1902 of the Civil Code, which imposes upon all persons who by
their fault or negligence, do injury to another, the obligation of making good the damage caused. One who
places a powerful automobile in the hands of a servant whom he knows to be ignorant of the method of
managing such a vehicle, is himself guilty of an act of negligence which makes him liable for all the
consequences of his imprudence. The obligation to make good the damage arises at the very instant that the
unskillful servant, while acting within the scope of his employment causes the injury. The liability of the master
is personal and direct. But, if the master has not been guilty of any negligence whatever in the selection and
direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of his
employment or not, if the damage done by the servant does not amount to a breach of the contract between
the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the
master from liability for the latter's acts on the contrary, that proof shows that the responsibility has never
existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a
voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused
damage to another. A master who exercises all possible care in the selection of his servant, taking into
consideration the qualifications they should possess for the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, thereby performs his duty to third persons to whom he
is bound by no contractual ties, and he incurs no liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment, such third person suffer damage. True it is that under
article 1903 of the Civil Code the law creates apresumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to proof of due care and diligence in this
respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held
that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20
Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and
Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual liability of the
defendant to respond for the damage caused by the carelessness of his employee while acting within the
scope of his employment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was negligence on the part
of the master or employer either in selection of the servant or employee, or in supervision over him after
the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of
the court that in selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that of
his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations with strangers, the negligence of the servant in
conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon
negligence, it is necessary that there shall have been some fault attributable to the defendant personally, and

that the last paragraph of article 1903 merely establishes a rebuttable presumption, is in complete accord with
the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is
imposed by reason of the breach of the duties inherent in the special relations of authority or superiority
existing between the person called upon to repair the damage and the one who, by his act or omission, was
the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or
agents, when such acts or omissions cause damages which amount to the breach of a contact, is not based
upon a mere presumption of the master's negligence in their selection or control, and proof of exercise of the
utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its
source in the breach or omission of those mutual duties which civilized society imposes upon it members, or
which arise from these relations, other than contractual, of certain members of society to others, generally
embraced in the concept of status. The legal rights of each member of society constitute the measure of the
corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all
other members of society. The breach of these general duties whether due to willful intent or to mere
inattention, if productive of injury, give rise to an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which arise from contract, rests upon the fact that in
cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates
the vinculum juris, whereas in contractual relations the vinculumexists independently of the breach of the
voluntary duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent
for the legislature to elect and our Legislature has so elected whom such an obligation is imposed is
morally culpable, or, on the contrary, for reasons of public policy, to extend that liability, without regard to the
lack of moral culpability, so as to include responsibility for the negligence of those person who acts or mission
are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over
them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability with certain
well-defined exceptions to cases in which moral culpability can be directly imputed to the persons to be
charged. This moral responsibility may consist in having failed to exercise due care in the selection and control
of one's agents or servants, or in the control of persons who, by reason of their status, occupy a position of
dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to another, is
wholly different from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's
cause of action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the
negligence if he does not his action fails. But when the facts averred show a contractual undertaking by
defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it
is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault
or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract and of its
nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume
the burden of proof of its existence, as the only fact upon which his action is based; while on the
contrary, in a case of negligence which presupposes the existence of a contractual obligation, if the
creditor shows that it exists and that it has been broken, it is not necessary for him to prove negligence.
(Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due
to the negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the
breach, it is obvious that proof on the part of defendant that the negligence or omission of his servants or

agents caused the breach of the contract would not constitute a defense to the action. If the negligence of
servants or agents could be invoked as a means of discharging the liability arising from contract, the
anomalous result would be that person acting through the medium of agents or servants in the performance of
their contracts, would be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free him from his liability for the breach of his contract, which
involves the duty to exercise due care in the preservation of the watch, if he shows that it was his servant
whose negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy
practically complete immunity from damages arising from the breach of their contracts if caused by negligent
acts as such juridical persons can of necessity only act through agents or servants, and it would no doubt be
true in most instances that reasonable care had been taken in selection and direction of such servants. If one
delivers securities to a banking corporation as collateral, and they are lost by reason of the negligence of some
clerk employed by the bank, would it be just and reasonable to permit the bank to relieve itself of liability for the
breach of its contract to return the collateral upon the payment of the debt by proving that due care had been
exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere
incident to the performance of a contract has frequently been recognized by the supreme court of Spain.
(Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of November
20, 1896, it appeared that plaintiff's action arose ex contractu, but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a defense. The Spanish Supreme Court rejected defendant's
contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such
as those to which article 1902 of the Civil Code relates, but of damages caused by the defendant's
failure to carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage done by the
negligent acts of their servants will show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable
for the damages caused by the negligence of his driver. In that case the court commented on the fact that no
evidence had been adduced in the trial court that the defendant had been negligent in the employment of the
driver, or that he had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the
defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by
the negligence of defendant's servants in the course of the performance of a contract of towage. The court
held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made
between it and the plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to
the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages
for the personal injuries caused by the negligence of defendant's chauffeur while driving defendant's
automobile in which defendant was riding at the time. The court found that the damages were caused by the
negligence of the driver of the automobile, but held that the master was not liable, although he was present at
the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a
reasonable opportunity to observe them and to direct the driver to desist therefrom. . . . The act

complained of must be continued in the presence of the owner for such length of time that the owner by
his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true
that the court rested its conclusion as to the liability of the defendant upon article 1903, although the facts
disclosed that the injury complaint of by plaintiff constituted a breach of the duty to him arising out of the
contract of transportation. The express ground of the decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his servants "makes the distinction between private individuals
and public enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the presumption of negligence had not been
overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in
tort rather than as based upon the breach of the contract of carriage, and an examination of the pleadings and
of the briefs shows that the questions of law were in fact discussed upon this theory. Viewed from the
standpoint of the defendant the practical result must have been the same in any event. The proof disclosed
beyond doubt that the defendant's servant was grossly negligent and that his negligence was the proximate
cause of plaintiff's injury. It also affirmatively appeared that defendant had been guilty of negligence in its
failure to exercise proper discretion in the direction of the servant. Defendant was, therefore, liable for the
injury suffered by plaintiff, whether the breach of the duty were to be regarded as constituting culpa
aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs an
incident in the course of the performance of a contractual undertaking or its itself the source of an extracontractual undertaking obligation, its essential characteristics are identical. There is always an act or omission
productive of damage due to carelessness or inattention on the part of the defendant. Consequently, when the
court holds that a defendant is liable in damages for having failed to exercise due care, either directly, or in
failing to exercise proper care in the selection and direction of his servants, the practical result is identical in
either case. Therefore, it follows that it is not to be inferred, because the court held in the Yamada case that
defendant was liable for the damages negligently caused by its servants to a person to whom it was bound by
contract, and made reference to the fact that the defendant was negligent in the selection and control of its
servants, that in such a case the court would have held that it would have been a good defense to the action, if
presented squarely upon the theory of the breach of the contract, for defendant to have proved that it did in fact
exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of
contractual and extra-contractual obligations. The field of non- contractual obligation is much more broader
than that of contractual obligations, comprising, as it does, the whole extent of juridical human relations. These
two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by
contract does not relieve him from extra-contractual liability to such person. When such a contractual relation
exists the obligor may break the contract under such conditions that the same act which constitutes the source
of an extra-contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and
to provide safe means of entering and leaving its trains (civil code, article 1258). That duty, being contractual,
was direct and immediate, and its non-performance could not be excused by proof that the fault was morally
imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent conduct of its
servants in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe
means of approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff
was his own contributory negligence in failing to wait until the train had come to a complete stop before
alighting. Under the doctrine of comparative negligence announced in the Rakes case (supra), if the accident
was caused by plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's

negligence merely contributed to his injury, the damages should be apportioned. It is, therefore, important to
ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular
injury suffered by him could not have occurred. Defendant contends, and cites many authorities in support of
the contention, that it is negligence per se for a passenger to alight from a moving train. We are not disposed
to subscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated
and is at variance with the experience of every-day life. In this particular instance, that the train was barely
moving when plaintiff alighted is shown conclusively by the fact that it came to stop within six meters from the
place where he stepped from it. Thousands of person alight from trains under these conditions every day of the
year, and sustain no injury where the company has kept its platform free from dangerous obstructions. There is
no reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it not been
for defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on
Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in attempting to
alight from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether
an ordinarily prudent person, of the age, sex and condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by the evidence. This care has been defined to be,
not the care which may or should be used by the prudent man generally, but the care which a man of
ordinary prudence would use under similar circumstances, to avoid injury." (Thompson, Commentaries
on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we
may say that the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he
alighted from the train which would have admonished a person of average prudence that to get off the train
under the conditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and
his failure so to desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that
plaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly
the condition of the platform and while the train was yet slowly moving. In considering the situation thus
presented, it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction
which was caused by the sacks of melons piled on the platform existed; and as the defendant was bound by
reason of its duty as a public carrier to afford to its passengers facilities for safe egress from its trains, the
plaintiff had a right to assume, in the absence of some circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a
failure upon the part of the defendant in the performance of a duty owing by it to the plaintiff; for if it were by
any possibility concede that it had right to pile these sacks in the path of alighting passengers, the placing of
them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to
stepping off. The nature of the platform, constructed as it was of cement material, also assured to the
passenger a stable and even surface on which to alight. Furthermore, the plaintiff was possessed of the vigor
and agility of young manhood, and it was by no means so risky for him to get off while the train was yet moving
as the same act would have been in an aged or feeble person. In determining the question of contributory
negligence in performing such act that is to say, whether the passenger acted prudently or recklessly the

age, sex, and physical condition of the passenger are circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been observed, as a general rule are less capable than
men of alighting with safety under such conditions, as the nature of their wearing apparel obstructs the free
movement of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was his
daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind with
regard either to the length of the step which he was required to take or the character of the platform where he
was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet
slightly under way was not characterized by imprudence and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk,
and that the injuries he has suffered have permanently disabled him from continuing that employment.
Defendant has not shown that any other gainful occupation is open to plaintiff. His expectancy of life, according
to the standard mortality tables, is approximately thirty-three years. We are of the opinion that a fair
compensation for the damage suffered by him for his permanent disability is the sum of P2,500, and that he is
also entitled to recover of defendant the additional sum of P790.25 for medical attention, hospital services, and
other incidental expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25,
and for the costs of both instances. So ordered.
G.R. No. L-21438

September 28, 1966

AIR
FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco,
Picazo
and
Agcaoili
Bengzon Villegas and Zarraga for respondent R. Carrascoso.

for

petitioner.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00
by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare
between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with
interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys'
fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok,
plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G.
Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When
asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's
Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p.
12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the
appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in
the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the
facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain
complete findings of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely
insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court
of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and
the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the
facts"which a party "considered as proved". 11 This is but a part of the mental process from which the Court
draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not
confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant
its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the
evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed,
"the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that inManigque, it was held that the mere fact that the findings "were based
entirely on the evidence for the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the
court did not recite in the decision the testimony of each witness for, or each item of evidence presented by, the
defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At
any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters
within an issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of
the ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 16They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter
the facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support
its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed reservations for first class on any specific
flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such would depend upon the availability of first class
seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the firstclass compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could have the indiscretion to give
out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with
the ordinary course of business that the company should know whether or riot the tickets it issues are
to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

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

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for
a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of
the lower court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in
the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error
and all questions that might have been raised are to be regarded as finally adjudicated against the appellant".
So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction
because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are
in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground
or grounds different from those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the
fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of
the hands of an airline. What security then can a passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal
agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first
class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do
we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29And this because, as petitioner states, Carrascoso went to see the Manager at his office in
Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was
he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right
to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there
must be an averment of fraud or bad faith; 31 and that the decision of the Court of Appeals fails to make a
finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point
up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only TouristClass accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane on
his return trip from Madrid to Manila.32
xxx

xxx

xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff
suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious
anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of
P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was
already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and
social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in
the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set
forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the
action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso
was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for
moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of
the plane who was asked by the manager of defendant company at Bangkok to intervene even refused
to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence
for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but defendant did neither. 37

The Court of appeals further stated

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if
the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had
already been taken, surely the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence committed by defendant's
employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened
there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the
meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for
first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the
Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove
"any better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff
was occupying and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the
defendant could have easily proven it by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that evidence willfully suppressed
would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not
give up his "first class" seat because the said Manager wanted to accommodate, using the
words of the witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the
term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager
not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to
the tourist class compartment - just to give way to another passenger whose right thereto has not been
established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating
with furtive design or with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many passengers to have him thrown out of
the airplane to give the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to

accommodate, and the defendant has not proven that this "white man" had any "better right" to
occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled
in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21
of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of
Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly
with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a passenger gives the latter an action for damages
against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a
tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection, though the language used was not insulting and she
was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in
origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash
fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such
point he would pay the cash fare from that point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and
the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier
a case ofquasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already that was already in the trip I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said, "We
will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything there because I am
protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me because it was recorded in
French "First class passenger was forced to go to the tourist class against his will, and that the
captain refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best evidence would be the
notes. Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook
reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not
think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come
within the proscription of the best evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then,
in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has
been guaranteed.52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have
been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no
such entry was made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary
damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as
it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees.

The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.
G.R. No. L-24837

June 27, 1968

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

Galang

for

plaintiffs.

CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of the Court of First
Instance of Manila dismissing their complaint against defendants herein, the Bank of the Philippine Islands and
Santiago Freixas.
It appears that Singson, was one of the defendants in civil case No. 23906 of the Court of First Instance,
Manila, in which judgment had been rendered sentencing him and his co-defendants therein, namely, Celso
Lobregat and Villa-Abrille & Co., to pay the sum of P105,539.56 to the plaintiff therein, Philippine Milling Co.
Singson and Lobregat had seasonably appealed from said judgment, but not Villa-Abrille & Co., as against
which said judgment, accordingly, became final and executory. In due course, a writ of garnishment was
subsequently served upon the Bank of the Philippine Islands in which the Singsons had a current account
insofar as Villa-Abrille's credits against the Bank were concerned. What happened thereafter is set forth in
the decision appealed from, from which we quote:
Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all matters of execution
and garnishment, upon reading the name of the plaintiff herein in the title of the Writ of Garnishment as
a party defendants, without further reading the body of the said garnishment and informing himself that
said garnishment was merely intended for the deposits of defendant Villa-Abrille & Co., Valentin Teus,
Fernando F. de Villa-Abrille and Joaquin Bona, prepared a letter for the signature of the President of the
Bank informing the plaintiff Julian C. Singson of the garnishment of his deposits by the plaintiff in that
case. Another letter was also prepared and signed by the said President of the Bank for the Special
Sheriff dated April 17, 1963.
Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the amount of P383 in favor
of B. M. Glass Service dated April 16, 1963 and bearing No. C-424852, and check No. C-394996 for
the amount of P100 in favor of the Lega Corporation, and drawn against the said Bank, were deposited
by the said drawers with the said bank. Believing that the plaintiff Singson, the drawer of the check, had
no more control over the balance of his deposits in the said bank, the checks were dishonored and
were refused payment by the said bank. After the first check was returned by the bank to the B. M.
Glass Service, the latter wrote plaintiff Julian C. Singson a letter, dated April 19, 1963, advising him that
his check for P383.00 bearing No. C-424852 was not honored by the bank for the reason that his
account therein had already been garnished. The said B. M. Glass Service further stated in the said
letter that they were constrained to close his credit account with them. In view thereof, plaintiff Julian C.
Singson wrote the defendant bank a letter on April 19, 1963, claiming that his name was not included in

the Writ of Execution and Notice of Garnishment, which was served upon the bank. The defendant
President Santiago Freixas of the said bank took steps to verify this information and after having
confirmed the same, apologized to the plaintiff Julian C. Singson and wrote him a letter dated April 22,
1963, requesting him to disregard their letter of April 17, 1963, and that the action of garnishment from
his account had already been removed. A similar letter was written by the said official of the bank on
April 22, 1963 to the Special Sheriff informing him that his letter dated April 17, 1963 to the said Special
Sheriff was considered cancelled and that they had already removed the Notice of Garnishment from
plaintiff Singson's account. Thus, the defendants lost no time to rectify the mistake that had been
inadvertently committed, resulting in the temporary freezing of the account of the plaintiff with the said
bank for a short time.
xxx

xxx

xxx

On May 8, 1963, the Singsong commenced the present action against the Bank and its president, Santiago
Freixas, for damages1 in consequence of said illegal freezing of plaintiffs' account.1wph1.t
After appropriate proceedings, the Court of First Instance of Manila rendered judgment dismissing the
complaint upon the ground that plaintiffs cannot recover from the defendants upon the basis of a quasi-delict,
because the relation between the parties is contractual in nature; because this case does not fall under Article
2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs have not established the amount of
damages allegedly sustained by them.
The lower court held that plaintiffs' claim for damages cannot be based upon a tort or quasi-delict, their relation
with the defendants being contractual in nature. We have repeatedly held, however, that the existence of a
contract between the parties does not bar the commission of a tort by the one against the order and the
consequent recovery of damages therefor.2 Indeed, this view has been, in effect, reiterated in a comparatively
recent case. Thus, in Air France vs. Carrascoso,3 involving an airplane passenger who, despite his first-class
ticket, had been illegally ousted from his first-class accommodation and compelled to take a seat in the tourist
compartment, was held entitled to recover damages from the air-carrier, upon the ground of tort on the latter's
part, for, although the relation between a passenger and a carrier is "contractual both in origin and nature ...
the act that breaks the contract may also be a tort".
In view, however, of the facts obtaining in the case at bar, and considering, particularly, the circumstance, that
the wrong done to the plaintiff was remedied as soon as the President of the bank realized the mistake he and
his subordinate employee had committed, the Court finds that an award of nominal damages the amount of
which need not be proven4 in the sum of P1,000, in addition to attorney's fees in the sum of P500, would
suffice to vindicate plaintiff's rights.5
WHEREFORE, the judgment appealed from is hereby reversed, and another one shall be entered sentencing
the defendant Bank of the Philippine Islands to pay to the plaintiffs said sums of P1,000, as nominal damages,
and P500, as attorney's fees, apart from the costs. It is so ordered.
G.R. No. 120554 September 21, 1999
SO
PING
BUN, petitioner,
vs.
COURT OF APPEALS, TEK HUA ENTERPRISES CORP. and MANUEL C. TIONG, respondents.

QUISUMBING, J.:

This petition for certiorari challenges the Decision 1 of the Court of Appeals dated October 10, 1994, and the
Resolution 2dated June 5, 1995, in CA-G.R. CV No. 38784. The appellate court affirmed the decision of the
Regional Trial Court of Manila, Branch 35, except for the award of attorney's fees, as follows:
WHEREFORE, foregoing considered, the appeal of respondent-appellant So Ping Bun for lack
of merit is DISMISSED. The appealed decision dated April 20, 1992 of the court a quo is
modified by reducing the attorney's fees awarded to plaintiff Tek Hua Enterprising Corporation
from P500,000.00 to P200,000.00. 3
The facts are as follows:
In 1963, Tek Hua Trading Co, through its managing partner, So Pek Giok, entered into lease agreements with
lessor Dee C. Chuan & Sons Inc. (DCCSI). Subjects of four (4) lease contracts were premises located at Nos.
930, 930-Int., 924-B and 924-C, Soler Street, Binondo, Manila. Tek Hua used the areas to store its textiles. The
contracts each had a one-year term. They provided that should the lessee continue to occupy the premises
after the term, the lease shall be on a month-to-month basis.
When the contracts expired, the parties did not renew the contracts, but Tek Hua continued to occupy the
premises. In 1976, Tek Hua Trading Co. was dissolved. Later, the original members of Tek Hua Trading Co.
including Manuel C. Tiong, formed Tek Hua Enterprising Corp., herein respondent corporation.
So Pek Giok, managing partner of Tek Hua Trading, died in 1986. So Pek Giok's grandson, petitioner So Ping
Bun, occupied the warehouse for his own textile business, Trendsetter Marketing.
On August 1, 1989, lessor DCCSI sent letters addressed to Tek Hua Enterprises, informing the latter of the
25% increase in rent effective September 1, 1989. The rent increase was later on reduced to 20% effective
January 1, 1990, upon other lessees' demand. Again on December 1, 1990, the lessor implemented a 30%
rent increase. Enclosed in these letters were new lease contracts for signing. DCCSI warned that failure of the
lessee to accomplish the contracts shall be deemed as lack of interest on the lessee's part, and agreement to
the termination of the lease. Private respondents did not answer any of these letters. Still, the lease contracts
were not rescinded.
On March 1, 1991, private respondent Tiong sent a letter to petitioner which reads as follows:
March 1, 1991
Mr. So Ping Bun
930 Soler Street
Binondo, Manila
Dear Mr. So,
Due to my closed (sic) business associate (sic) for three decades with your late grandfather Mr.
So Pek Giok and late father, Mr. So Chong Bon, I allowed you temporarily to use the warehouse
of Tek Hua Enterprising Corp. for several years to generate your personal business.
Since I decided to go back into textile business, I need a warehouse immediately for my stocks.
Therefore, please be advised to vacate all your stocks in Tek Hua Enterprising Corp.
Warehouse. You are hereby given 14 days to vacate the premises unless you have good

reasons that you have the right to stay. Otherwise, I will be constrained to take measure to
protect my interest.
Please give this urgent matter your preferential attention to avoid inconvenience on your part.
Very truly yours,
(Sgd) Manuel C. Tiong
MANUEL C. TIONG
President 4
Petitioner refused to vacate. On March 4, 1992, petitioner requested formal contracts of lease with DCCSI in
favor Trendsetter Marketing. So Ping Bun claimed that after the death of his grandfather, So Pek Giok, he had
been occupying the premises for his textile business and religiously paid rent. DCCSI acceded to petitioner's
request. The lease contracts in favor of Trendsetter were executed.
In the suit for injunction, private respondents pressed for the nullification of the lease contracts between DCCSI
and petitioner. They also claimed damages.
After trial, the trial court ruled:
WHEREFORE, judgment is rendered:
1. Annulling the four Contracts of Lease (Exhibits A, A-1 to A-3,
inclusive) all dated March 11, 1991, between defendant So Ping
Bun, doing business under the name and style of "Trendsetter
Marketing", and defendant Dee C. Chuan & Sons, Inc. over the
premises located at Nos. 924-B, 924-C, 930 and 930, Int.,
respectively, Soler Street, Binondo Manila;
2. Making permanent the writ of preliminary injunction issued by
this Court on June 21, 1991;
3. Ordering defendant So Ping Bun to pay the aggrieved party,
plaintiff Tek Hua Enterprising Corporation, the sum of
P500,000.00, for attorney's fees;
4. Dismissing the complaint, insofar as plaintiff Manuel C. Tiong is
concerned, and the respective counterclaims of the defendant;
5. Ordering defendant So Ping Bun to pay the costs of this lawsuit;
This judgment is without prejudice to the rights of plaintiff Tek Hua Enterprising Corporation and
defendant Dee C. Chuan & Sons, Inc. to negotiate for the renewal of their lease contracts over
the premises located at Nos. 930, 930-Int., 924-B and 924-C Soler Street, Binondo, Manila,
under such terms and conditions as they agree upon, provided they are not contrary to law,
public policy, public order, and morals.
SO ORDERED. 5

Petitioner's motion for reconsideration of the above decision was denied.

On appeal by So Ping Bun, the Court of Appeals upheld the trial court. On motion for reconsideration, the
appellate court modified the decision by reducing the award of attorney's fees from five hundred thousand
(P500,000.00) pesos to two hundred thousand (P200,000.00) pesos.
Petitioner is now before the Court raising the following issues:
I. WHETHER THE APPELLATE COURT ERRED IN AFFIRMING THE
TRIAL COURT'S DECISION FINDING SO PING BUN GUILTY OF
TORTUOUS INTERFERENCE OF CONTRACT?
II. WHETHER THE APPELLATE COURT ERRED IN AWARDING
ATTORNEY'S FEES OF P200,000.00 IN FAVOR OF PRIVATE
RESPONDENTS.
The foregoing issues involve, essentially, the correct interpretation of the applicable law on tortuous conduct,
particularly unlawful interference with contract. We have to begin, obviously, with certain fundamental
principles on torts and damages.
Damage is the loss, hurt, or harm which results from injury, and damages are the recompense or
compensation awarded for the damage suffered. 6 One becomes liable in an action for damages for a
nontrespassory invasion of another's interest in the private use and enjoyment of asset if (a) the other has
property rights and privileges with respect to the use or enjoyment interfered with, (b) the invasion is
substantial, (c) the defendant's conduct is a legal cause of the invasion, and (d) the invasion is either
intentional and unreasonable or unintentional and actionable under general negligence rules. 7
The elements of tort interference are: (1) existence of a valid contract; (2) knowledge on the part of the third
person of the existence of contract; and (3) interference of the third person is without legal justification or
excuse. 8
A duty which the law of torts is concerned with is respect for the property of others, and a cause of action ex
delictomay be predicated upon an unlawful interference by one person of the enjoyment by the other of his
private
property. 9 This may pertain to a situation where a third person induces a party to renege on or violate his
undertaking under a contract. In the case before us, petitioner's Trendsetter Marketing asked DCCSI to
execute lease contracts in its favor, and as a result petitioner deprived respondent corporation of the latter's
property right. Clearly, and as correctly viewed by the appellate court, the three elements of tort interference
above-mentioned are present in the instant case.
Authorities debate on whether interference may be justified where the defendant acts for the sole purpose of
furthering his own financial or economic interest. 10 One view is that, as a general rule, justification for
interfering with the business relations of another exists where the actor's motive is to benefit himself. Such
justification does not exist where his sole motive is to cause harm to the other. Added to this, some authorities
believe that it is not necessary that the interferer's interest outweigh that of the party whose rights are invaded,
and that an individual acts under an economic interest that is substantial, not merely de minimis, such that
wrongful and malicious motives are negatived, for he acts in self-protection. 11Moreover justification for
protecting one's financial position should not be made to depend on a comparison of his economic interest in
the subject matter with that of others. 12 It is sufficient if the impetus of his conduct lies in a proper business
interest rather than in wrongful motives. 13

As early as Gilchrist vs. Cuddy, 14 we held that where there was no malice in the interference of a contract, and
the impulse behind one's conduct lies in a proper business interest rather than in wrongful motives, a party
cannot be a malicious interferer. Where the alleged interferer is financially interested, and such interest
motivates his conduct, it cannot be said that he is an officious or malicious intermeddler. 15
In the instant case, it is clear that petitioner So Ping Bun prevailed upon DCCSI to lease the warehouse to his
enterprise at the expense of respondent corporation. Though petitioner took interest in the property of
respondent corporation and benefited from it, nothing on record imputes deliberate wrongful motives or malice
on him.
Sec. 1314 of the Civil Code categorically provides also that, "Any third person who induces another to violate
his contract shall be liable for damages to the other contracting party." Petitioner argues that damage is an
essential element of tort interference, and since the trial court and the appellate court ruled that private
respondents were not entitled to actual, moral or exemplary damages, it follows that he ought to be absolved of
any liability, including attorney's fees.
It is true that the lower courts did not award damages, but this was only because the extent of damages was
not quantifiable. We had a similar situation in Gilchrist, where it was difficult or impossible to determine the
extent of damage and there was nothing on record to serve as basis thereof. In that case we refrained from
awarding damages. We believe the same conclusion applies in this case.
While we do not encourage tort interferers seeking their economic interest to intrude into existing contracts at
the expense of others, however, we find that the conduct herein complained of did not transcend the limits
forbidding an obligatory award for damages in the absence of any malice. The business desire is there to make
some gain to the detriment of the contracting parties. Lack of malice, however, precludes damages. But it does
not relieve petitioner of the legal liability for entering into contracts and causing breach of existing ones. The
respondent appellate court correctly confirmed the permanent injunction and nullification of the lease contracts
between DCCSI and Trendsetter Marketing, without awarding damages. The injunction saved the respondents
from further damage or injury caused by petitioner's interference.
Lastly, the recovery of attorney's fees in the concept of actual or compensatory damages, is allowed under the
circumstances provided for in Article 2208 of the Civil Code. 16 One such occasion is when the defendant's act
or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his
interest. 17 But we have consistently held that the award of considerable damages should have clear factual
and legal bases. 18 In connection with attorney's fees, the award should be commensurate to the benefits that
would have been derived from a favorable judgment. Settled is the rule that fairness of the award of damages
by the trial court calls for appellate review such that the award if far too excessive can be reduced. 19 This
ruling applies with equal force on the award of attorney's fees. In a long line of cases we said, "It is not sound
policy to place in penalty on the right to litigate. To compel the defeated party to pay the fees of counsel for his
successful opponent would throw wide open the door of temptation to the opposing party and his counsel to
swell the fees to undue proportions." 20
Considering that the respondent corporation's lease contract, at the time when the cause of action accrued,
ran only on a month-to-month basis whence before it was on a yearly basis, we find even the reduced amount
of attorney's fees ordered by the Court of Appeals still exorbitant in the light of prevailing
jurisprudence. 21 Consequently, the amount of two hundred thousand (P200,000.00) awarded by respondent
appellate court should be reduced to one hundred thousand (P100,000.00) pesos as the reasonable award or
attorney's fees in favor of private respondent corporation.
WHEREFORE, the petition is hereby DENIED. The assailed Decision and Resolution of the Court of Appeals
in CA-G.R. CV No. 38784 are hereby AFFIRMED, with MODIFICATION that the award of attorney's fees is

reduced from two hundred thousand (P200,000.00) to one hundred thousand (P100,000.00) pesos. No
pronouncement as to costs.1wphi1.nt
SO ORDERED.
[G.R. No. 145804. February 6, 2003]
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, vs. MARJORIE NAVIDAD, Heirs of
the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled Marjorie
Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al., which has modified the decision of
11 August 1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security Agency
(Prudent) from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages
on account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor Navidad, then drunk,
entered the EDSA LRT station after purchasing a token (representing payment of the fare). While Navidad was
standing on the platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area
approached Navidad. A misunderstanding or an altercation between the two apparently ensued that led to a
fist fight. No evidence, however, was adduced to indicate how the fight started or who, between the two,
delivered the first blow or how Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an
LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train, and
he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her
children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit
Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and Roman filed a
counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer, denied
liability and averred that it had exercised due diligence in the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting
evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his
assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent
Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following:
a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
b) Moral damages of P50,000.00;
c) Attorneys fees of P20,000;

d) Costs of suit.
The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.
The compulsory counterclaim of LRTA and Roman are likewise dismissed.[1]
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now
assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding
the LRTA and Roman jointly and severally liable thusly:
WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for
the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority
(LRTA) are held liable for his death and are hereby directed to pay jointly and severally to the plaintiffsappellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorneys fees.[2]
The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a
contract of carriage theretofore had already existed when the victim entered the place where passengers were
supposed to be after paying the fare and getting the corresponding token therefor. In exempting Prudent from
liability, the court stressed that there was nothing to link the security agency to the death of Navidad. It said
that Navidad failed to show that Escartin inflicted fist blows upon the victim and the evidence merely
established the fact of death of Navidad by reason of his having been hit by the train owned and managed by
the LRTA and operated at the time by Roman. The appellate court faulted petitioners for their failure to present
expert evidence to establish the fact that the application of emergency brakes could not have stopped the train.
The appellate court denied petitioners motion for reconsideration in its resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:
I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF
FACTS BY THE TRIAL COURT
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE
FOR THE DEATH OF NICANOR NAVIDAD, JR.
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN
EMPLOYEE OF LRTA.[3]

Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial
court by holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the
part of a common carrier was not overcome. Petitioners would insist that Escartins assault upon Navidad,
which caused the latter to fall on the tracks, was an act of a stranger that could not have been foreseen or
prevented. The LRTA would add that the appellate courts conclusion on the existence of an employeremployee relationship between Roman and LRTA lacked basis because Roman himself had testified being an
employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a contract of carriage was
deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of the
latter, entitling Navidad to all the rights and protection under a contractual relation, and that the appellate court
had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary diligence
imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons
of public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.
[4]
The Civil Code, governing the liability of a common carrier for death of or injury to its passengers, provides:
Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault
or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in
articles 1733 and 1755.
Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or
willful acts of the formers employees, although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good
father of a family in the selection and supervision of their employees.
Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts
or negligence of other passengers or of strangers, if the common carriers employees through the exercise of
the diligence of a good father of a family could have prevented or stopped the act or omission.
The law requires common carriers to carry passengers safely using the utmost diligence of very cautious
persons with due regard for all circumstances.[5] Such duty of a common carrier to provide safety to its
passengers so obligates it not only during the course of the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to the contract of carriage. [6] The statutory provisions render
a common carrier liable for death of or injury to passengers (a) through the negligence or wilful acts of its
employees or b) on account of wilful acts or negligence of other passengers or of strangers if the
common carriers employees through the exercise of due diligence could have prevented or stopped
the act or omission.[7] In case of such death or injury, a carrier is presumed to have been at fault or been
negligent, and[8] by simple proof of injury, the passenger is relieved of the duty to still establish the fault or
negligence of the carrier or of its employees and the burden shifts upon the carrier to prove that the injury is
due to an unforeseen event or to force majeure. [9] In the absence of satisfactory explanation by the carrier on
how the accident occurred, which petitioners, according to the appellate court, have failed to show, the
presumption would be that it has been at fault,[10] an exception from the general rule that negligence must be
proved.[11]

The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises
from the breach of that contract by reason of its failure to exercise the high diligence required of the common
carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its
own employees or avail itself of the services of an outsider or an independent firm to undertake the task. In
either case, the common carrier is not relieved of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of
Article 2176[12] and related provisions, in conjunction with Article 2180, [13] of the Civil Code. The premise,
however, for the employers liability is negligence or fault on the part of the employee. Once such fault is
established, the employer can then be made liable on the basis of the presumption juris tantum that the
employer failed to exercise diligentissimi patris families in the selection and supervision of its employees. The
liability is primary and can only be negated by showing due diligence in the selection and supervision of the
employee, a factual matter that has not been shown. Absent such a showing, one might ask further, how then
must the liability of the common carrier, on the one hand, and an independent contractor, on the other hand, be
described? It would be solidary. A contractual obligation can be breached by tort and when the same act or
omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 2194[14] of
the Civil Code can well apply.[15]In fine, a liability for tort may arise even under a contract, where tort is that
which breaches the contract.[16] Stated differently, when an act which constitutes a breach of contract would
have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules on tort to apply.[17]
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this
Court is concluded by the factual finding of the Court of Appeals that there is nothing to link (Prudent) to the
death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not been duly
proven x x x. This finding of the appellate court is not without substantial justification in our own review of the
records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or
omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT and
Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made liable only for
his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. [18] It
is an established rule that nominal damages cannot co-exist with compensatory damages.[19]
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in
that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from
liability. No costs.
SO ORDERED.
[G.R. No. 138569. September 11, 2003]
THE CONSOLIDATED BANK and TRUST CORPORATION, petitioner, vs. COURT OF APPEALS and L.C.
DIAZ and COMPANY, CPAs, respondents.
DECISION
CARPIO, J.:

The Case
Before us is a petition for review of the Decision [1] of the Court of Appeals dated 27 October 1998 and its
Resolution dated 11 May 1999. The assailed decision reversed the Decision[2]of the Regional Trial Court of
Manila, Branch 8, absolving petitioner Consolidated Bank and Trust Corporation, now known as Solidbank
Corporation (Solidbank), of any liability. The questioned resolution of the appellate court denied the motion for
reconsideration of Solidbank but modified the decision by deleting the award of exemplary damages, attorneys
fees, expenses of litigation and cost of suit.
The Facts
Solidbank is a domestic banking corporation organized and existing under Philippine laws. Private
respondent L.C. Diaz and Company, CPAs (L.C. Diaz), is a professional partnership engaged in the practice of
accounting.
Sometime in March 1976, L.C. Diaz opened a savings account with Solidbank, designated as Savings
Account No. S/A 200-16872-6.
On 14 August 1991, L.C. Diaz through its cashier, Mercedes Macaraya (Macaraya), filled up a savings
(cash) deposit slip for P990 and a savings (checks) deposit slip for P50.Macaraya instructed the messenger of
L.C. Diaz, Ismael Calapre (Calapre), to deposit the money with Solidbank. Macaraya also gave Calapre the
Solidbank passbook.
Calapre went to Solidbank and presented to Teller No. 6 the two deposit slips and the passbook. The teller
acknowledged receipt of the deposit by returning to Calapre the duplicate copies of the two deposit slips. Teller
No. 6 stamped the deposit slips with the words DUPLICATE and SAVING TELLER 6 SOLIDBANK HEAD
OFFICE. Since the transaction took time and Calapre had to make another deposit for L.C. Diaz with Allied
Bank, he left the passbook with Solidbank. Calapre then went to Allied Bank. When Calapre returned to
Solidbank to retrieve the passbook, Teller No. 6 informed him that somebody got the passbook.[3] Calapre went
back to L.C. Diaz and reported the incident to Macaraya.
Macaraya immediately prepared a deposit slip in duplicate copies with a check of P200,000. Macaraya,
together with Calapre, went to Solidbank and presented to Teller No. 6 the deposit slip and check. The teller
stamped the words DUPLICATE and SAVING TELLER 6 SOLIDBANK HEAD OFFICE on the duplicate copy of
the deposit slip. When Macaraya asked for the passbook, Teller No. 6 told Macaraya that someone got the
passbook but she could not remember to whom she gave the passbook. When Macaraya asked Teller No. 6 if
Calapre got the passbook, Teller No. 6 answered that someone shorter than Calapre got the passbook.
Calapre was then standing beside Macaraya.
Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 for the deposit of a check
for P90,000 drawn on Philippine Banking Corporation (PBC). This PBC check of L.C. Diaz was a check that it
had long closed.[4] PBC subsequently dishonored the check because of insufficient funds and because the
signature in the check differed from PBCs specimen signature. Failing to get back the passbook, Macaraya
went back to her office and reported the matter to the Personnel Manager of L.C. Diaz, Emmanuel Alvarez.
The following day, 15 August 1991, L.C. Diaz through its Chief Executive Officer, Luis C. Diaz (Diaz),
called up Solidbank to stop any transaction using the same passbook until L.C. Diaz could open a new
account.[5] On the same day, Diaz formally wrote Solidbank to make the same request. It was also on the same
day that L.C. Diaz learned of the unauthorized withdrawal the day before, 14 August 1991, of P300,000 from its
savings account. The withdrawal slip for the P300,000 bore the signatures of the authorized signatories of L.C.
Diaz, namely Diaz and Rustico L. Murillo. The signatories, however, denied signing the withdrawal slip. A
certain Noel Tamayo received the P300,000.

In an Information[6] dated 5 September 1991, L.C. Diaz charged its messenger, Emerano Ilagan (Ilagan)
and one Roscon Verdazola with Estafa through Falsification of Commercial Document. The Regional Trial
Court of Manila dismissed the criminal case after the City Prosecutor filed a Motion to Dismiss on 4 August
1992.
On 24 August 1992, L.C. Diaz through its counsel demanded from Solidbank the return of its
money. Solidbank refused.
On 25 August 1992, L.C. Diaz filed a Complaint [7] for Recovery of a Sum of Money against Solidbank with
the Regional Trial Court of Manila, Branch 8. After trial, the trial court rendered on 28 December 1994 a
decision absolving Solidbank and dismissing the complaint.
L.C. Diaz then appealed[8] to the Court of Appeals. On 27 October 1998, the Court of Appeals issued its
Decision reversing the decision of the trial court.
On 11 May 1999, the Court of Appeals issued its Resolution denying the motion for reconsideration of
Solidbank. The appellate court, however, modified its decision by deleting the award of exemplary damages
and attorneys fees.
The Ruling of the Trial Court
In absolving Solidbank, the trial court applied the rules on savings account written on the passbook. The
rules state that possession of this book shall raise the presumption of ownership and any payment or
payments made by the bank upon the production of the said book and entry therein of the withdrawal shall
have the same effect as if made to the depositor personally.[9]
At the time of the withdrawal, a certain Noel Tamayo was not only in possession of the passbook, he also
presented a withdrawal slip with the signatures of the authorized signatories of L.C. Diaz. The specimen
signatures of these persons were in the signature cards. The teller stamped the withdrawal slip with the words
Saving Teller No. 5. The teller then passed on the withdrawal slip to Genere Manuel (Manuel) for
authentication. Manuel verified the signatures on the withdrawal slip. The withdrawal slip was then given to
another officer who compared the signatures on the withdrawal slip with the specimen on the signature cards.
The trial court concluded that Solidbank acted with care and observed the rules on savings account when it
allowed the withdrawal of P300,000 from the savings account of L.C. Diaz.
The trial court pointed out that the burden of proof now shifted to L.C. Diaz to prove that the signatures on
the withdrawal slip were forged. The trial court admonished L.C. Diaz for not offering in evidence the National
Bureau of Investigation (NBI) report on the authenticity of the signatures on the withdrawal slip
for P300,000. The trial court believed that L.C. Diaz did not offer this evidence because it is derogatory to its
action.
Another provision of the rules on savings account states that the depositor must keep the passbook under
lock and key.[10] When another person presents the passbook for withdrawal prior to Solidbanks receipt of the
notice of loss of the passbook, that person is considered as the owner of the passbook. The trial court ruled
that the passbook presented during the questioned transaction was now out of the lock and key and
presumptively ready for a business transaction.[11]
Solidbank did not have any participation in the custody and care of the passbook. The trial court believed
that Solidbanks act of allowing the withdrawal of P300,000 was not the direct and proximate cause of the loss.
The trial court held that L.C. Diazs negligence caused the unauthorized withdrawal. Three facts establish L.C.
Diazs negligence: (1) the possession of the passbook by a person other than the depositor L.C. Diaz; (2) the
presentation of a signed withdrawal receipt by an unauthorized person; and (3) the possession by an

unauthorized person of a PBC check long closed by L.C. Diaz, which check was deposited on the day of the
fraudulent withdrawal.
The trial court debunked L.C. Diazs contention that Solidbank did not follow the precautionary procedures
observed by the two parties whenever L.C. Diaz withdrew significant amounts from its account. L.C. Diaz
claimed that a letter must accompany withdrawals of more than P20,000. The letter must request Solidbank to
allow the withdrawal and convert the amount to a managers check. The bearer must also have a letter
authorizing him to withdraw the same amount. Another person driving a car must accompany the bearer so
that he would not walk from Solidbank to the office in making the withdrawal. The trial court pointed out that
L.C. Diaz disregarded these precautions in its past withdrawal. On 16 July 1991, L.C. Diaz withdrew P82,554
without any separate letter of authorization or any communication with Solidbank that the money be converted
into a managers check.
The trial court further justified the dismissal of the complaint by holding that the case was a last ditch effort
of L.C. Diaz to recover P300,000 after the dismissal of the criminal case against Ilagan.
The dispositive portion of the decision of the trial court reads:
IN VIEW OF THE FOREGOING, judgment is hereby rendered DISMISSING the complaint.
The Court further renders judgment in favor of defendant bank pursuant to its counterclaim the amount of
Thirty Thousand Pesos (P30,000.00) as attorneys fees.
With costs against plaintiff.
SO ORDERED.[12]
The Ruling of the Court of Appeals
The Court of Appeals ruled that Solidbanks negligence was the proximate cause of the unauthorized
withdrawal of P300,000 from the savings account of L.C. Diaz. The appellate court reached this conclusion
after applying the provision of the Civil Code on quasi-delict, to wit:
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions of this chapter.
The appellate court held that the three elements of a quasi-delict are present in this case, namely: (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
damage incurred by the plaintiff.
The Court of Appeals pointed out that the teller of Solidbank who received the withdrawal slip for P300,000
allowed the withdrawal without making the necessary inquiry. The appellate court stated that the teller, who
was not presented by Solidbank during trial, should have called up the depositor because the money to be
withdrawn was a significant amount. Had the teller called up L.C. Diaz, Solidbank would have known that the
withdrawal was unauthorized. The teller did not even verify the identity of the impostor who made the
withdrawal. Thus, the appellate court found Solidbank liable for its negligence in the selection and supervision
of its employees.
The appellate court ruled that while L.C. Diaz was also negligent in entrusting its deposits to its messenger
and its messenger in leaving the passbook with the teller, Solidbank could not escape liability because of the

doctrine of last clear chance. Solidbank could have averted the injury suffered by L.C. Diaz had it called up
L.C. Diaz to verify the withdrawal.
The appellate court ruled that the degree of diligence required from Solidbank is more than that of a good
father of a family. The business and functions of banks are affected with public interest. Banks are obligated to
treat the accounts of their depositors with meticulous care, always having in mind the fiduciary nature of their
relationship with their clients. The Court of Appeals found Solidbank remiss in its duty, violating its fiduciary
relationship with L.C. Diaz.
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and a new one
entered.
1. Ordering defendant-appellee Consolidated Bank and Trust Corporation to pay plaintiff-appellant the
sum of Three Hundred Thousand Pesos (P300,000.00), with interest thereon at the rate of 12%
per annum from the date of filing of the complaint until paid, the sum of P20,000.00 as
exemplary damages, and P20,000.00 as attorneys fees and expenses of litigation as well as the
cost of suit; and
2. Ordering the dismissal of defendant-appellees counterclaim in the amount of P30,000.00 as
attorneys fees.
SO ORDERED.[13]
Acting on the motion for reconsideration of Solidbank, the appellate court affirmed its decision but modified the
award of damages. The appellate court deleted the award of exemplary damages and attorneys fees. Invoking
Article 2231[14] of the Civil Code, the appellate court ruled that exemplary damages could be granted if the
defendant acted with gross negligence. Since Solidbank was guilty of simple negligence only, the award of
exemplary damages was not justified. Consequently, the award of attorneys fees was also disallowed pursuant
to Article 2208 of the Civil Code. The expenses of litigation and cost of suit were also not imposed on
Solidbank.
The dispositive portion of the Resolution reads as follows:
WHEREFORE, foregoing considered, our decision dated October 27, 1998 is affirmed with modification by
deleting the award of exemplary damages and attorneys fees, expenses of litigation and cost of suit.
SO ORDERED.[15]
Hence, this petition.
The Issues
Solidbank seeks the review of the decision and resolution of the Court of Appeals on these grounds:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER BANK SHOULD SUFFER
THE LOSS BECAUSE ITS TELLER SHOULD HAVE FIRST CALLED PRIVATE RESPONDENT
BY TELEPHONE BEFORE IT ALLOWED THE WITHDRAWAL OF P300,000.00 TO
RESPONDENTS MESSENGER EMERANO ILAGAN, SINCE THERE IS NO AGREEMENT
BETWEEN THE PARTIES IN THE OPERATION OF THE SAVINGS ACCOUNT, NOR IS
THERE ANY BANKING LAW, WHICH MANDATES THAT A BANK TELLER SHOULD FIRST

CALL UP THE DEPOSITOR BEFORE ALLOWING A WITHDRAWAL OF A BIG AMOUNT IN A

SAVINGS ACCOUNT.
II. THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF LAST CLEAR CHANCE
AND IN HOLDING THAT PETITIONER BANKS TELLER HAD THE LAST OPPORTUNITY TO
WITHHOLD THE WITHDRAWAL WHEN IT IS UNDISPUTED THAT THE TWO SIGNATURES
OF RESPONDENT ON THE WITHDRAWAL SLIP ARE GENUINE AND PRIVATE
RESPONDENTS PASSBOOK WAS DULY PRESENTED, AND CONTRARIWISE
RESPONDENT WAS NEGLIGENT IN THE SELECTION AND SUPERVISION OF ITS
MESSENGER EMERANO ILAGAN, AND IN THE SAFEKEEPING OF ITS CHECKS AND
OTHER FINANCIAL DOCUMENTS.
III. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE INSTANT CASE IS A LAST
DITCH EFFORT OF PRIVATE RESPONDENT TO RECOVER ITS P300,000.00 AFTER
FAILING IN ITS EFFORTS TO RECOVER THE SAME FROM ITS EMPLOYEE EMERANO
ILAGAN.
IV. THE COURT OF APPEALS ERRED IN NOT MITIGATING THE DAMAGES AWARDED AGAINST
PETITIONER UNDER ARTICLE 2197 OF THE CIVIL CODE, NOTWITHSTANDING ITS
FINDING THAT PETITIONER BANKS NEGLIGENCE WAS ONLY CONTRIBUTORY.[16]
The Ruling of the Court
The petition is partly meritorious.
Solidbanks Fiduciary Duty under the Law
The rulings of the trial court and the Court of Appeals conflict on the application of the law. The trial court
pinned the liability on L.C. Diaz based on the provisions of the rules on savings account, a recognition of the
contractual relationship between Solidbank and L.C. Diaz, the latter being a depositor of the former. On the
other hand, the Court of Appeals applied the law on quasi-delict to determine who between the two parties was
ultimately negligent. The law on quasi-delict or culpa aquiliana is generally applicable when there is no preexisting contractual relationship between the parties.
We hold that Solidbank is liable for breach of contract due to negligence, or culpa contractual.
The contract between the bank and its depositor is governed by the provisions of the Civil Code on simple
loan.[17] Article 1980 of the Civil Code expressly provides that x x x savings x x x deposits of money in banks
and similar institutions shall be governed by the provisions concerning simple loan. There is a debtor-creditor
relationship between the bank and its depositor.The bank is the debtor and the depositor is the creditor. The
depositor lends the bank money and the bank agrees to pay the depositor on demand. The savings deposit
agreement between the bank and the depositor is the contract that determines the rights and obligations of the
parties.
The law imposes on banks high standards in view of the fiduciary nature of banking. Section 2 of Republic
Act No. 8791 (RA 8791),[18] which took effect on 13 June 2000, declares that the State recognizes the fiduciary
nature of banking that requires high standards of integrity and performance.[19] This new provision in the
general banking law, introduced in 2000, is a statutory affirmation of Supreme Court decisions, starting with the
1990 case of Simex International v. Court of Appeals,[20] holding that the bank is under obligation to treat the
accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship.
[21]

This fiduciary relationship means that the banks obligation to observe high standards of integrity and
performance is deemed written into every deposit agreement between a bank and its depositor. The fiduciary
nature of banking requires banks to assume a degree of diligence higher than that of a good father of a
family. Article 1172 of the Civil Code states that the degree of diligence required of an obligor is that prescribed
by law or contract, and absent such stipulation then the diligence of a good father of a family. [22] Section 2 of
RA 8791 prescribes the statutory diligence required from banks that banks must observe high standards of
integrity and performance in servicing their depositors. Although RA 8791 took effect almost nine years after
the unauthorized withdrawal of the P300,000 from L.C. Diazs savings account, jurisprudence [23] at the time of
the withdrawal already imposed on banks the same high standard of diligence required under RA No. 8791.
However, the fiduciary nature of a bank-depositor relationship does not convert the contract between the
bank and its depositors from a simple loan to a trust agreement, whether express or implied. Failure by the
bank to pay the depositor is failure to pay a simple loan, and not a breach of trust. [24] The law simply imposes
on the bank a higher standard of integrity and performance in complying with its obligations under the
contract of simple loan, beyond those required of non-bank debtors under a similar contract of simple loan.
The fiduciary nature of banking does not convert a simple loan into a trust agreement because banks do
not accept deposits to enrich depositors but to earn money for themselves. The law allows banks to offer the
lowest possible interest rate to depositors while charging the highest possible interest rate on their own
borrowers. The interest spread or differential belongs to the bank and not to the depositors who are not cestui
que trust of banks. If depositors are cestui que trust of banks, then the interest spread or income belongs to the
depositors, a situation that Congress certainly did not intend in enacting Section 2 of RA 8791.
Solidbanks Breach of its Contractual Obligation
Article 1172 of the Civil Code provides that responsibility arising from negligence in the performance of
every kind of obligation is demandable. For breach of the savings deposit agreement due to negligence,
or culpa contractual, the bank is liable to its depositor.
Calapre left the passbook with Solidbank because the transaction took time and he had to go to Allied
Bank for another transaction. The passbook was still in the hands of the employees of Solidbank for the
processing of the deposit when Calapre left Solidbank. Solidbanks rules on savings account require that the
deposit book should be carefully guarded by the depositor and kept under lock and key, if possible. When the
passbook is in the possession of Solidbanks tellers during withdrawals, the law imposes on Solidbank and its
tellers an even higher degree of diligence in safeguarding the passbook.
Likewise, Solidbanks tellers must exercise a high degree of diligence in insuring that they return the
passbook only to the depositor or his authorized representative. The tellers know, or should know, that the
rules on savings account provide that any person in possession of the passbook is presumptively its owner. If
the tellers give the passbook to the wrong person, they would be clothing that person presumptive ownership
of the passbook, facilitating unauthorized withdrawals by that person. For failing to return the passbook to
Calapre, the authorized representative of L.C. Diaz, Solidbank and Teller No. 6 presumptively failed to observe
such high degree of diligence in safeguarding the passbook, and in insuring its return to the party authorized to
receive the same.
In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that the
defendant was at fault or negligent. The burden is on the defendant to prove that he was not at fault or
negligent. In contrast, in culpa aquiliana the plaintiff has the burden of proving that the defendant was
negligent. In the present case, L.C. Diaz has established that Solidbank breached its contractual obligation to
return the passbook only to the authorized representative of L.C. Diaz. There is thus a presumption that
Solidbank was at fault and its teller was negligent in not returning the passbook to Calapre. The burden was on
Solidbank to prove that there was no negligence on its part or its employees.

Solidbank failed to discharge its burden. Solidbank did not present to the trial court Teller No. 6, the teller
with whom Calapre left the passbook and who was supposed to return the passbook to him. The record does
not indicate that Teller No. 6 verified the identity of the person who retrieved the passbook. Solidbank also
failed to adduce in evidence its standard procedure in verifying the identity of the person retrieving the
passbook, if there is such a procedure, and that Teller No. 6 implemented this procedure in the present case.
Solidbank is bound by the negligence of its employees under the principle of respondeat superior or
command responsibility. The defense of exercising the required diligence in the selection and supervision of
employees is not a complete defense in culpa contractual, unlike in culpa aquiliana.[25]
The bank must not only exercise high standards of integrity and performance, it must also insure that its
employees do likewise because this is the only way to insure that the bank will comply with its fiduciary
duty. Solidbank failed to present the teller who had the duty to return to Calapre the passbook, and thus failed
to prove that this teller exercised the high standards of integrity and performance required of Solidbanks
employees.
Proximate Cause of the Unauthorized Withdrawal
Another point of disagreement between the trial and appellate courts is the proximate cause of the
unauthorized withdrawal. The trial court believed that L.C. Diazs negligence in not securing its passbook under
lock and key was the proximate cause that allowed the impostor to withdraw the P300,000. For the appellate
court, the proximate cause was the tellers negligence in processing the withdrawal without first verifying with
L.C. Diaz. We do not agree with either court.
Proximate cause is that cause which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result would not have occurred. [26] Proximate
cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and
precedent.[27]
L.C. Diaz was not at fault that the passbook landed in the hands of the impostor. Solidbank was in
possession of the passbook while it was processing the deposit. After completion of the transaction, Solidbank
had the contractual obligation to return the passbook only to Calapre, the authorized representative of L.C.
Diaz. Solidbank failed to fulfill its contractual obligation because it gave the passbook to another person.
Solidbanks failure to return the passbook to Calapre made possible the withdrawal of the P300,000 by the
impostor who took possession of the passbook. Under Solidbanks rules on savings account, mere possession
of the passbook raises the presumption of ownership. It was the negligent act of Solidbanks Teller No. 6 that
gave the impostor presumptive ownership of the passbook. Had the passbook not fallen into the hands of the
impostor, the loss of P300,000 would not have happened. Thus, the proximate cause of the unauthorized
withdrawal was Solidbanks negligence in not returning the passbook to Calapre.
We do not subscribe to the appellate courts theory that the proximate cause of the unauthorized
withdrawal was the tellers failure to call up L.C. Diaz to verify the withdrawal. Solidbank did not have the duty
to call up L.C. Diaz to confirm the withdrawal. There is no arrangement between Solidbank and L.C. Diaz to
this effect. Even the agreement between Solidbank and L.C. Diaz pertaining to measures that the parties must
observe whenever withdrawals of large amounts are made does not direct Solidbank to call up L.C. Diaz.
There is no law mandating banks to call up their clients whenever their representatives withdraw
significant amounts from their accounts. L.C. Diaz therefore had the burden to prove that it is the usual practice
of Solidbank to call up its clients to verify a withdrawal of a large amount of money. L.C. Diaz failed to do so.

Teller No. 5 who processed the withdrawal could not have been put on guard to verify the withdrawal. Prior
to the withdrawal of P300,000, the impostor deposited with Teller No. 6 theP90,000 PBC check, which later
bounced. The impostor apparently deposited a large amount of money to deflect suspicion from the withdrawal
of a much bigger amount of money. The appellate court thus erred when it imposed on Solidbank the duty to
call up L.C. Diaz to confirm the withdrawal when no law requires this from banks and when the teller had no
reason to be suspicious of the transaction.
Solidbank continues to foist the defense that Ilagan made the withdrawal. Solidbank claims that since
Ilagan was also a messenger of L.C. Diaz, he was familiar with its teller so that there was no more need for the
teller to verify the withdrawal. Solidbank relies on the following statements in the Booking and Information
Sheet of Emerano Ilagan:
xxx Ilagan also had with him (before the withdrawal) a forged check of PBC and indicated the amount of
P90,000 which he deposited in favor of L.C. Diaz and Company. After successfully withdrawing this large sum
of money, accused Ilagan gave alias Rey (Noel Tamayo) his share of the loot. Ilagan then hired a taxicab in the
amount of P1,000 to transport him (Ilagan) to his home province at Bauan, Batangas.Ilagan extravagantly and
lavishly spent his money but a big part of his loot was wasted in cockfight and horse racing. Ilagan was
apprehended and meekly admitted his guilt.[28] (Emphasis supplied.)
L.C. Diaz refutes Solidbanks contention by pointing out that the person who withdrew the P300,000 was a
certain Noel Tamayo. Both the trial and appellate courts stated that this Noel Tamayo presented the passbook
with the withdrawal slip.
We uphold the finding of the trial and appellate courts that a certain Noel Tamayo withdrew
the P300,000. The Court is not a trier of facts. We find no justifiable reason to reverse the factual finding of the
trial court and the Court of Appeals. The tellers who processed the deposit of the P90,000 check and the
withdrawal of the P300,000 were not presented during trial to substantiate Solidbanks claim that Ilagan
deposited the check and made the questioned withdrawal. Moreover, the entry quoted by Solidbank does not
categorically state that Ilagan presented the withdrawal slip and the passbook.
Doctrine of Last Clear Chance
The doctrine of last clear chance states that where both parties are negligent but the negligent act of one
is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence
caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable
with the loss.[29] Stated differently, the antecedent negligence of the plaintiff does not preclude him from
recovering damages caused by the supervening negligence of the defendant, who had the last fair chance to
prevent the impending harm by the exercise of due diligence.[30]
We do not apply the doctrine of last clear chance to the present case. Solidbank is liable for breach of
contract due to negligence in the performance of its contractual obligation to L.C. Diaz. This is a case of culpa
contractual, where neither the contributory negligence of the plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability.[31]Such contributory negligence or last clear chance by the plaintiff
merely serves to reduce the recovery of damages by the plaintiff but does not exculpate the defendant from his
breach of contract.[32]
Mitigated Damages
Under Article 1172, liability (for culpa contractual) may be regulated by the courts, according to the
circumstances. This means that if the defendant exercised the proper diligence in the selection and supervision
of its employee, or if the plaintiff was guilty of contributory negligence, then the courts may reduce the award of
damages. In this case, L.C. Diaz was guilty of contributory negligence in allowing a withdrawal slip signed by

its authorized signatories to fall into the hands of an impostor. Thus, the liability of Solidbank should be
reduced.
In Philippine Bank of Commerce v. Court of Appeals,[33] where the Court held the depositor guilty of
contributory negligence, we allocated the damages between the depositor and the bank on a 40-60
ratio. Applying the same ruling to this case, we hold that L.C. Diaz must shoulder 40% of the actual damages
awarded by the appellate court. Solidbank must pay the other 60% of the actual damages.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner
Solidbank Corporation shall pay private respondent L.C. Diaz and Company, CPAs only 60% of the actual
damages awarded by the Court of Appeals. The remaining 40% of the actual damages shall be borne by
private respondent L.C. Diaz and Company, CPAs.Proportionate costs.
SO ORDERED.
[G.R. No. 138334. August 25, 2003]
ESTELA L. CRISOSTOMO, petitioner, vs. THE COURT OF APPEALS and CARAVAN TRAVEL &
TOURS INTERNATIONAL, INC., respondents.
DECISION
YNARES-SANTIAGO, J.:
In May 1991, petitioner Estela L. Crisostomo contracted the services of respondent Caravan Travel and
Tours International, Inc. to arrange and facilitate her booking, ticketing and accommodation in a tour dubbed
Jewels of Europe. The package tour included the countries of England, Holland, Germany, Austria,
Liechstenstein, Switzerland and France at a total cost of P74,322.70. Petitioner was given a 5% discount on
the amount, which included airfare, and the booking fee was also waived because petitioners niece, Meriam
Menor, was respondent companys ticketing manager.
Pursuant to said contract, Menor went to her aunts residence on June 12, 1991 a Wednesday to deliver
petitioners travel documents and plane tickets. Petitioner, in turn, gave Menor the full payment for the package
tour. Menor then told her to be at the Ninoy Aquino International Airport (NAIA) on Saturday, two hours before
her flight on board British Airways.
Without checking her travel documents, petitioner went to NAIA on Saturday, June 15, 1991, to take the
flight for the first leg of her journey from Manila to Hongkong. To petitioners dismay, she discovered that the
flight she was supposed to take had already departed the previous day. She learned that her plane ticket was
for the flight scheduled on June 14, 1991. She thus called up Menor to complain.
Subsequently, Menor prevailed upon petitioner to take another tour the British Pageant which included
England, Scotland and Wales in its itinerary. For this tour package, petitioner was asked anew to pay
US$785.00 or P20,881.00 (at the then prevailing exchange rate of P26.60). She gave respondent US$300 or
P7,980.00 as partial payment and commenced the trip in July 1991.
Upon petitioners return from Europe, she demanded from respondent the reimbursement of P61,421.70,
representing the difference between the sum she paid for Jewels of Europe and the amount she owed
respondent for the British Pageant tour. Despite several demands, respondent company refused to reimburse
the amount, contending that the same was non-refundable.[1] Petitioner was thus constrained to file a complaint
against respondent for breach of contract of carriage and damages, which was docketed as Civil Case No. 92133 and raffled to Branch 59 of the Regional Trial Court of Makati City.

In her complaint,[2] petitioner alleged that her failure to join Jewels of Europe was due to respondents fault
since it did not clearly indicate the departure date on the plane ticket.Respondent was also negligent in
informing her of the wrong flight schedule through its employee Menor. She insisted that the British Pageant
was merely a substitute for the Jewels of Europe tour, such that the cost of the former should be properly setoff against the sum paid for the latter.
For its part, respondent company, through its Operations Manager, Concepcion Chipeco, denied
responsibility for petitioners failure to join the first tour. Chipeco insisted that petitioner was informed of the
correct departure date, which was clearly and legibly printed on the plane ticket. The travel documents were
given to petitioner two days ahead of the scheduled trip.Petitioner had only herself to blame for missing the
flight, as she did not bother to read or confirm her flight schedule as printed on the ticket.
Respondent explained that it can no longer reimburse the amount paid for Jewels of Europe, considering
that the same had already been remitted to its principal in Singapore, Lotus Travel Ltd., which had already
billed the same even if petitioner did not join the tour. Lotus European tour organizer, Insight International Tours
Ltd., determines the cost of a package tour based on a minimum number of projected participants. For this
reason, it is accepted industry practice to disallow refund for individuals who failed to take a booked tour.[3]
Lastly, respondent maintained that the British Pageant was not a substitute for the package tour that
petitioner missed. This tour was independently procured by petitioner after realizing that she made a mistake in
missing her flight for Jewels of Europe. Petitioner was allowed to make a partial payment of only US$300.00
for the second tour because her niece was then an employee of the travel agency. Consequently, respondent
prayed that petitioner be ordered to pay the balance of P12,901.00 for the British Pageant package tour.
After due proceedings, the trial court rendered a decision,[4] the dispositive part of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. Ordering the defendant to return and/or refund to the plaintiff the amount of Fifty Three Thousand
Nine Hundred Eighty Nine Pesos and Forty Three Centavos (P53,989.43) with legal interest
thereon at the rate of twelve percent (12%) per annum starting January 16, 1992, the date when
the complaint was filed;
2. Ordering the defendant to pay the plaintiff the amount of Five Thousand (P5,000.00) Pesos as and
for reasonable attorneys fees;
3. Dismissing the defendants counterclaim, for lack of merit; and
4. With costs against the defendant.
SO ORDERED.[5]
The trial court held that respondent was negligent in erroneously advising petitioner of her departure date
through its employee, Menor, who was not presented as witness to rebut petitioners testimony. However,
petitioner should have verified the exact date and time of departure by looking at her ticket and should have
simply not relied on Menors verbal representation. The trial court thus declared that petitioner was guilty of
contributory negligence and accordingly, deducted 10% from the amount being claimed as refund.
Respondent appealed to the Court of Appeals, which likewise found both parties to be at fault. However,
the appellate court held that petitioner is more negligent than respondent because as a lawyer and welltraveled person, she should have known better than to simply rely on what was told to her. This being so, she
is not entitled to any form of damages. Petitioner also forfeited her right to the Jewels of Europe tour and must

therefore pay respondent the balance of the price for the British Pageant tour. The dispositive portion of the
judgment appealed from reads as follows:
WHEREFORE, premises considered, the decision of the Regional Trial Court dated October 26, 1995 is
hereby REVERSED and SET ASIDE. A new judgment is hereby ENTERED requiring the plaintiff-appellee to
pay to the defendant-appellant the amount of P12,901.00, representing the balance of the price of the British
Pageant Package Tour, the same to earn legal interest at the rate of SIX PERCENT (6%) per annum, to be
computed from the time the counterclaim was filed until the finality of this decision. After this decision becomes
final and executory, the rate of TWELVE PERCENT (12%) interest per annum shall be additionally imposed on
the total obligation until payment thereof is satisfied. The award of attorneys fees is DELETED. Costs against
the plaintiff-appellee.
SO ORDERED.[6]
Upon denial of her motion for reconsideration, [7] petitioner filed the instant petition under Rule 45 on the
following grounds:
I
It is respectfully submitted that the Honorable Court of Appeals committed a reversible error in reversing and
setting aside the decision of the trial court by ruling that the petitioner is not entitled to a refund of the cost of
unavailed Jewels of Europe tour she being equally, if not more, negligent than the private respondent, for in the
contract of carriage the common carrier is obliged to observe utmost care and extra-ordinary diligence which is
higher in degree than the ordinary diligence required of the passenger. Thus, even if the petitioner and private
respondent were both negligent, the petitioner cannot be considered to be equally, or worse, more guilty than
the private respondent. At best, petitioners negligence is only contributory while the private respondent [is
guilty] of gross negligence making the principle of pari delicto inapplicable in the case;
II
The Honorable Court of Appeals also erred in not ruling that the Jewels of Europe tour was not indivisible and
the amount paid therefor refundable;
III
The Honorable Court erred in not granting to the petitioner the consequential damages due her as a result of
breach of contract of carriage.[8]
Petitioner contends that respondent did not observe the standard of care required of a common carrier
when it informed her wrongly of the flight schedule. She could not be deemed more negligent than respondent
since the latter is required by law to exercise extraordinary diligence in the fulfillment of its obligation. If she
were negligent at all, the same is merely contributory and not the proximate cause of the damage she suffered.
Her loss could only be attributed to respondent as it was the direct consequence of its employees gross
negligence.
Petitioners contention has no merit.
By definition, a contract of carriage or transportation is one whereby a certain person or association of
persons obligate themselves to transport persons, things, or news from one place to another for a fixed price.
[9]
Such person or association of persons are regarded as carriers and are classified as private or special
carriers and common or public carriers. [10] A common carrier is defined under Article 1732 of the Civil Code as

persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or
goods or both, by land, water or air, for compensation, offering their services to the public.
It is obvious from the above definition that respondent is not an entity engaged in the business of
transporting either passengers or goods and is therefore, neither a private nor a common carrier. Respondent
did not undertake to transport petitioner from one place to another since its covenant with its customers is
simply to make travel arrangements in their behalf. Respondents services as a travel agency include procuring
tickets and facilitating travel permits or visas as well as booking customers for tours.
While petitioner concededly bought her plane ticket through the efforts of respondent company, this does
not mean that the latter ipso facto is a common carrier. At most, respondent acted merely as an agent of the
airline, with whom petitioner ultimately contracted for her carriage to Europe. Respondents obligation to
petitioner in this regard was simply to see to it that petitioner was properly booked with the airline for the
appointed date and time. Her transport to the place of destination, meanwhile, pertained directly to the airline.
The object of petitioners contractual relation with respondent is the latters service of arranging and
facilitating petitioners booking, ticketing and accommodation in the package tour. In contrast, the object of a
contract of carriage is the transportation of passengers or goods. It is in this sense that the contract between
the parties in this case was an ordinary one for services and not one of carriage. Petitioners submission is
premised on a wrong assumption.
The nature of the contractual relation between petitioner and respondent is determinative of the degree of
care required in the performance of the latters obligation under the contract. For reasons of public policy, a
common carrier in a contract of carriage is bound by law to carry passengers as far as human care and
foresight can provide using the utmost diligence of very cautious persons and with due regard for all the
circumstances.[11] As earlier stated, however, respondent is not a common carrier but a travel agency. It is thus
not bound under the law to observe extraordinary diligence in the performance of its obligation, as petitioner
claims.
Since the contract between the parties is an ordinary one for services, the standard of care required of
respondent is that of a good father of a family under Article 1173 of the Civil Code. [12] This connotes reasonable
care consistent with that which an ordinarily prudent person would have observed when confronted with a
similar situation. The test to determine whether negligence attended the performance of an obligation is: did
the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty of negligence.[13]
In the case at bar, the lower court found Menor negligent when she allegedly informed petitioner of the
wrong day of departure. Petitioners testimony was accepted as indubitable evidence of Menors alleged
negligent act since respondent did not call Menor to the witness stand to refute the allegation. The lower court
applied the presumption under Rule 131, Section 3 (e) [14] of the Rules of Court that evidence willfully
suppressed would be adverse if produced and thus considered petitioners uncontradicted testimony to be
sufficient proof of her claim.
On the other hand, respondent has consistently denied that Menor was negligent and maintains that
petitioners assertion is belied by the evidence on record. The date and time of departure was legibly written on
the plane ticket and the travel papers were delivered two days in advance precisely so that petitioner could
prepare for the trip. It performed all its obligations to enable petitioner to join the tour and exercised due
diligence in its dealings with the latter.
We agree with respondent.

Respondents failure to present Menor as witness to rebut petitioners testimony could not give rise to an
inference unfavorable to the former. Menor was already working in France at the time of the filing of the
complaint,[15] thereby making it physically impossible for respondent to present her as a witness. Then too,
even if it were possible for respondent to secure Menors testimony, the presumption under Rule 131, Section
3(e) would still not apply. The opportunity and possibility for obtaining Menors testimony belonged to both
parties, considering that Menor was not just respondents employee, but also petitioners niece. It was thus error
for the lower court to invoke the presumption that respondent willfully suppressed evidence under Rule 131,
Section 3(e). Said presumption would logically be inoperative if the evidence is not intentionally omitted but is
simply unavailable, or when the same could have been obtained by both parties.[16]
In sum, we do not agree with the finding of the lower court that Menors negligence concurred with the
negligence of petitioner and resultantly caused damage to the latter. Menors negligence was not sufficiently
proved, considering that the only evidence presented on this score was petitioners uncorroborated narration of
the events. It is well-settled that the party alleging a fact has the burden of proving it and a mere allegation
cannot take the place of evidence.[17] If the plaintiff, upon whom rests the burden of proving his cause of action,
fails to show in a satisfactory manner facts upon which he bases his claim, the defendant is under no obligation
to prove his exception or defense.[18]
Contrary to petitioners claim, the evidence on record shows that respondent exercised due diligence in
performing its obligations under the contract and followed standard procedure in rendering its services to
petitioner. As correctly observed by the lower court, the plane ticket [19] issued to petitioner clearly reflected the
departure date and time, contrary to petitioners contention. The travel documents, consisting of the tour
itinerary, vouchers and instructions, were likewise delivered to petitioner two days prior to the trip. Respondent
also properly booked petitioner for the tour, prepared the necessary documents and procured the plane tickets.
It arranged petitioners hotel accommodation as well as food, land transfers and sightseeing excursions, in
accordance with its avowed undertaking.
Therefore, it is clear that respondent performed its prestation under the contract as well as everything else
that was essential to book petitioner for the tour. Had petitioner exercised due diligence in the conduct of her
affairs, there would have been no reason for her to miss the flight. Needless to say, after the travel papers
were delivered to petitioner, it became incumbent upon her to take ordinary care of her concerns. This
undoubtedly would require that she at least read the documents in order to assure herself of the important
details regarding the trip.
The negligence of the obligor in the performance of the obligation renders him liable for damages for the
resulting loss suffered by the obligee. Fault or negligence of the obligor consists in his failure to exercise due
care and prudence in the performance of the obligation as the nature of the obligation so demands. [20] There is
no fixed standard of diligence applicable to each and every contractual obligation and each case must be
determined upon its particular facts. The degree of diligence required depends on the circumstances of the
specific obligation and whether one has been negligent is a question of fact that is to be determined after
taking into account the particulars of each case.[21]
The lower court declared that respondents employee was negligent. This factual finding, however, is not
supported by the evidence on record. While factual findings below are generally conclusive upon this court, the
rule is subject to certain exceptions, as when the trial court overlooked, misunderstood, or misapplied some
facts or circumstances of weight and substance which will affect the result of the case.[22]
In the case at bar, the evidence on record shows that respondent company performed its duty diligently
and did not commit any contractual breach. Hence, petitioner cannot recover and must bear her own damage.
WHEREFORE, the instant petition is DENIED for lack of merit. The decision of the Court of Appeals in CAG.R. CV No. 51932 is AFFIRMED. Accordingly, petitioner is ordered to pay respondent the amount of

P12,901.00 representing the balance of the price of the British Pageant Package Tour, with legal interest
thereon at the rate of 6% per annum, to be computed from the time the counterclaim was filed until the finality
of this Decision. After this Decision becomes final and executory, the rate of 12% per annum shall be imposed
until the obligation is fully settled, this interim period being deemed to be by then an equivalent to a
forbearance of credit.[23]
SO ORDERED.